Jody Lee Cvilikas (Plaintiff) was employed by Sunshine Coast Hospital and Health Service (Defendant) as a patient support assistant (PSA) at the Nambour General Hospital. Adam Leneghan was also employed by the Defendant as a PSA and was working a nightshift with the Plaintiff. Mr Leneghan was placing a standard mattress on a bed that he was going to deliver to the ward, and the Plaintiff intervened and her left arm caught between the mattress and the bed.
Mr Leneghan did not request assistance from the Plaintiff. The Plaintiff offered assistance with the task and Mr Leneghan refused that assistance. Mr Leneghan alleged he did not require the Plaintiff's assistance, and had no reason to reasonably expect the Plaintiff would assist or attempt to assist him in the task
The Plaintiff claimed damages of $888,738.21 clear of the WorkCover refund of $77,712.06.
The Defendant denied any liability and asserted 30% contributory negligence by the Plaintiff. The Defendant alleges the Plaintiff's injury and any loss and damage were caused and contributed to by her failure to take precautions against the risk of injury to herself that a reasonable person in her position would have taken.
The Defendant was found to be negligent on the basis that Mr Leneghan failed to warn the Plaintiff that he was moving the mattress.
In this case, the Plaintiff intervened in work being undertaken by Mr Leneghan, in circumstances where she had not been requested to do so and her express offer of assistance had been clearly rejected. Mr Leneghan was a fit, strong and competent PSA who was moving the mattress onto the bed. There was no good reason for the Plaintiff to intervene. Sticking out her left arm to "catch" a moving, bulky and weighty mattress that was otherwise going to land on an empty bed, hurting nobody was ill- advised.
It was found that the Plaintiff's conduct was not 'mere advertence, inattention or misjudgement', which would, by reference to Bankstown Foundry v Braistin, (1) excuse her from a finding of contributory negligence. Rather, the Plaintiff's conduct was interventionalist and unnecessary, warranting a significant reduction for contributory negligence.
The Defendant submitted that a 30% contributory negligence figure was made with reference to Osborne v Downer (2) and Burn Philip Trustee Co Ltd v Clarke. (3) The actions of the Plaintiff was not considered to be as negligent as those in Osborne and Clarke, where contributory negligence was assessed at 35% and 40% respectively. However, it was held that the Plaintiff's intervention in the task being carried out by Mr Leneghan required a finding of contributory negligence.
- The Defendant was negligent.
- The Plaintiff was contributory negligent to the extent of 25% and damages were reduced accordingly.
- The Plaintiff was entitled to the sum of $196,193.33 clear of the WorkCover refund of $77,712.06.
(1) Bankstown Foundry v Braistina (1986) 160 CLR 301
(2) Osborne v Downer EDI Mining P/L & Anor  QSC 470
(3) Burn Philip Trustee Co Ltd v Clarke  NSWCA 79
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We would like to acknowledge the contribution of Annie Finch (Paralegal) to this article.