Plaintiff v Defendant

2 Ms Taseska says that her problems began when she was deployed by Chubb to work at Melbourne Airport at the screening entrance for Qantas domestic passengers.

3 Determining the cause of Ms Taseska's injuries is difficult, as is ascertaining their relationship to her employment and, more importantly, the scope of Chubb's negligence (if any).

4 The causation exercise is complicated by the fact that Ms Taseska suffers from a serious liver condition (resulting in a liver transplant), which has produced ongoing problems over the past 25 years. Of particular relevance to her claim is the regular prescription of the anti-rejection steroid Prednisolone.

5 Ms Taseska's case against Chubb involves a series of discrete incidents at the airport (all of which are said to give rise to claims in negligence), namely:

(a) an injury to her left knee on 16 November 2001 while lifting a bag in the course of a screening operation ('the bag lifting incident');

(b) psychological trauma on or about 13 June 2002 as a result of an altercation with a passenger, which ultimately resulted in the passenger using a spray can to spray Ms Taseska ('the spray can incident');

(c) psychological and physical trauma on 18 August 2002 as a result of another altercation with a passenger ('the lady with the papers incident'); and

(d) bullying and harassment by fellow workers when she returned to work for eight hours a week for a period of about three months from December 2002 to March 2003 ('the return to work events').

6 The claim for damages as a result of the bag lifting incident is limited to pain and suffering, and is the subject of a discrete proceeding issued in 2012.[1] The other claim issued in 2011 is for the psychological injuries resulting from subsequent events and seeks damages for both pain and suffering and pecuniary loss.[2]

7 I will deal with each of the events which give rise to the four causes of action separately in these reasons.

8 The first trial began on 29 August 2013 before Cavanough J. At that hearing, Ms Taseska was represented by counsel. For reasons that do not require elaboration, the hearing was adjourned after opening addresses while Ms Taseska was in the course of giving evidence-in-chief.

9 The trial before me commenced on 8 February 2016. Ms Taseska conducted the trial on her own behalf with the assistance of her brother, Goran, who was seated at the Bar table. The transcribed evidence of Ms Taseska from the first trial was adopted for the purpose of this hearing, as were the exhibits tendered in the course of her evidence. Ms Taseska gave further evidence at this trial and was cross-examined by senior counsel for Chubb.

(c) Mr Simon Talbot, treating orthopaedic surgeon,

and tendered a voluminous number of medical reports, including:

(b) five reports of the orthopaedic surgeon, Mr Roger Westh;[4]

(e) four reports of orthopaedic surgeon, Mr Peter Wilson;[7]

(f) one report of psychiatrist, Dr Leon Fail;[8]

(g) one report of orthopaedic surgeon, Mr Anthony Dunin;[9]

(h) one report of orthopaedic surgeon, Mr Ian Jones;[10]

(i) three reports of psychiatrist, Dr Alan Jager;[11] and

(j) two reports of psychiatrist, Dr Ian Jackson.[12]

(a) Mr Anthony Poskus, Chubb Aviation Services Manager from November 2001 to 2003;

(b) Mr Bruce Lowe, Chubb Screening Point Supervisor from the mid-1990s to 2011;

(c) Ms Caterina Suares, Return to Work Coordinator at Chubb;

(d) Mr Trevor Richardson, Deputy Aviation Manager from 2002 to 4 January 2016;

(e) Ms Georgina Hedges, Partner at Thomson Geer, solicitors acting for Chubb;

(f) Associate Professor Noel Cranswick, clinical pharmacologist; and

(g) Mr Greg Paulay, Service Director of L3 Communications Security and Detection Systems since 2007.

(a) photograph of Ms Taseska in about 2001 in front of a line scan machine;[13]

(b) photograph of Ms Taseska sitting on the scanner for the Tasmanian terminal;[14]

(c) L3 Communications Brochure for the Line scan 110-11;[15]

(d) records of the Austin Hospital relating to Ms Taseska;[16]

(e) report of Mr Brendan Dooley dated 15 December 2009;[17]

(f) report of Dr Noel Cranswick dated 12 November 2015;[18]

(g) clinical notes of Dr Chris Gorgioski relating to Ms Taseska with a photocopy of entries in 2002;[19]

(h) 2005 Edition of Security Officer's standing instructions (the Blue Book);[20] and

(i) bundle of Return to Work Documents for the period June 2002 to November 2003.[21]

13 Ms Taseska was born in September 1975 in Macedonia.

14 In 1984, Ms Taseska experienced symptoms caused by idiopathic cirrhosis of the liver. She was very unwell during her teens. Ultimately, through extraordinary efforts on the part of her family, it was arranged that she travel to Australia in 1991 to undergo a liver transplant.

15 The transplant was successfully carried out at the Austin Hospital in September 1991.[22] Since that time her condition has been managed by specialists at the Austin.

16 Following the transplant, Ms Taseska was prescribed intensive courses of Prednisolone,[23] which she has taken in varying doses since.[24] On occasion, her body has shown signs of early rejection of the transplant, resulting in an increased dosage. There have also been periods where she has been off the drug, or on a decreased dosage.[25] For instance, in 2001, when the bag lifting incident occurred, Ms Taseska was taking a decreased dose of Prednisolone.[26]

17 Two years after the transplant, Ms Taseska resumed schooling and completed a six month English course in Collingwood. She then attended Reservoir Secondary College as a mature age student and finished her secondary education at the age of 19 or 20.[27]

18 Ms Taseska's general practitioner, Dr Gorgioski, has treated Ms Taseska since May 1996. He described her as having 'an interesting medical history' including a liver transplant with 'no past history of psychological complaints'.[28]

19 After the transplant, Ms Taseska was managed by the Liver Transplant Unit at the Austin Hospital.[29] The clinical records of that unit and of Dr Gorgioski, (who was cross examined in detail on this issue) confirm that she was generally well in the following years.[30] He said of her condition at the time she commenced employment with Chubb:

As far as I remember she was in very good health condition until then, especially regarding her liver. Like, she's one of probably the best examples of a liver transplant. She was really, really excellent at all the way.[31]

20 Ms Taseska said that she did not suffer from any physical or mental problems as a result of the liver transplant.[32] This was, at least in a general sense, confirmed by the Austin Hospital records.[33]

21 In 1997, Ms Taseska underwent surgery to repair varicose veins in her right leg. After recovering, she travelled for six months to Macedonia and, upon returning to Australia, started looking for work.

22 In 2000, Ms Taseska met her fiancé and in 2005 they moved into a house in Korweinguboora, near Daylesford.[34]

23 In 2000, Ms Taseska completed a security employee course which qualified her to work as a security guard.[35]

24 In May 2001, Ms Taseska was involved in a motor vehicle accident. Her knees were slightly bruised and there were no adverse long term effects. [36]

25 Sometime between early October and November 2001, Ms Taseska developed symptoms of tiredness associated with gout in her big toes.[37] However, she was able to continue working during this episode. She said:

It didn't affect my work. I never stopped work from the gout at that stage. It wasn't that bad that I couldn't go to work and continue with my job.[38]

26 Ms Taseska applied for a job with Chubb in February 2001.[39] She was offered (and accepted) employment as a security officer in June 2001.[40]

27 Ms Taseska worked 38 hours per week at locations nominated by Chubb. She could not recall any induction or training prior to commencing work. However, several Chubb employees said (and I accept) that all new employees were inducted and provided with an instruction manual referred to as 'the Blue Book'.[41] There is also evidence that Ms Taseska signed an 'induction form' acknowledging that she underwent training.[42] I am satisfied that Ms Taseska was provided with a copy of the Blue Book.

28 In late June 2001, after several short deployments, she was transferred to Melbourne Airport and worked in a team that managed baggage security for Qantas domestic flights.[43] Her duties required her to complete a series of rotating tasks involving screening passengers and luggage at security checkpoints.[44]

29 The Chubb management team at the airport included Mr Poskus, the aviation services manager; Mr Richardson, the operations supervisor who reported directly to Mr Poskus; and Mr Lowe, the supervisor at the screening point who reported to Mr Richardson.[45]

30 It was common ground that the airport screening team at this time comprised five employees with four positions, as follows:[46]

(a) one who supervised and managed the placing of bags on a conveyor ('the loader');

(b) one who manned the line machine through which the bags passed whilst on a moving conveyor ('the scanner operator');

(c) one who managed the collection of the bags once they had passed through the scanner ('the off loader');

(d) one who operated the scanning wand for persons walking through the security entrance ('the pedestrian scanner'); and

(e) a fifth employee who was, in effect, on a rotated break.

31 At trial, Mr Poskus described the operation as follows:

The security staff were based at a 'screening lane' with supervisors who were rostered from the start to cessation of operations every day. Staff were assigned to 20 minute rotational roles (including a break rotation) over the course of a shift performing a variety of functions. [47]

32 Management representatives were often in the area of the scanning staff. A lunch room was situated a short distance from the screening point.

33 At peak times, a minimum of three screening lines with associated scanners and teams operated at the Qantas Domestic Terminal. That number could expand to four or five lines.[48]

34 It was also not in issue that after 11 September 2001 security checks were intensified with greater interaction with passengers.[49] New technology was introduced in order to deal with higher demand. The result was that at times there were long queues and many bags to be searched. [50] According to Mr Poskus, the actual method of screening and deployment of the team remained the same.[51]

35 There was no weight restriction on bags going through the scanner. Usually the bags would be around 10 kilograms - the hand luggage limit - but they could weigh up to 30 kilograms.[52]

36 Ms Taseska was given two days training in her new duties at the airport and instructed on how to carry out the tasks associated with use of the scanner.[53] She said that she was not given any training as to how to lift or handle luggage.[54]

37 Below is a photograph of a scanner and its conveyer parts which is generally similar to that in use at the airport in 2001.

38 A duress alarm was located on the scanner and could be operated to alert the Australian Federal Police ('AFP') of an incident which required its attention.

39 Mr Paulay, a representative of the Australian distributor of the scanner, gave evidence about the dimensions of the screening part of the machine. He said that the scanner 'came with fairly standard entry and exit conveyers' and that 'the length of the machine typically would have been from the beginning of the entry shroud to the end of the exit shroud'.[55] Mr Paulay explained that the overall length of the machine was approximately 1,700 millimetres.[56]

40 Ms Taseska and the Chubb employees explained that the operator would sit on a chair and observe the video image of the contents of the bag. The pace of the conveyer (on which the bags were placed) was controlled by a foot pedal.[57]

41 In her statement of claim, Ms Taseska asserts that she suffered pain to her right knee as a result of lifting a heavy bag while operating a security scanning conveyer by foot pedal. She claims that her right leg twisted awkwardly, causing immediate pain to her right knee. This resulted in an injury to the medial meniscus which has now produced osteoarthritis in the knee joint.

42 Ms Taseska alleges that she was required to perform heavy and awkward manual handling tasks and that Chubb failed to provide a safe system of work when it knew, or ought to have known, that she was at risk of musculoskeletal injury.

43 It was not disputed by Chubb that Ms Taseska suffered an injury to her right knee in the course of her employment. However, the circumstances in which that injury arose - and any liability of Chubb - were hotly debated.

44 Ms Taseska said that the incident occurred in the morning of 16 November 2001 when she was working at the scanner operator.[58] It was very busy and the loader was absent from his post as he had been deployed to assist elsewhere.[59] Later in her evidence she said that the off loader had been stationed at a table checking bags for prohibited items rather than standing next to Ms Taseska to receive the bag travelling through the conveyer belt.[60] In re-examination she said the loader and off loader were both absent having been deployed to assist with the departure of QF93 to the United States.[61]

45 According to Ms Taseska, part of the scanning process required the bags to be laid flat on their side on the conveyor so that they could be properly observed by the scanning machine.[62] A large heavy bag[63] (which Ms Taseska said was not hand luggage) was placed in an upright position on the scanner by a passenger. Usually this would have been remedied by the loader instructing the passenger how to place the bag down.

46 At the time of the incident, Ms Taseska was seated while operating the scanner with her right foot on the pedal. The upright bag proceeded through the scanner, however, as a result of its positioning, she was unable to determine whether it contained any prohibited items.

47 Ms Taseska said that she attempted to retrieve the bag so that it could be re-scanned. When she stretched to recover the bag, she was partly seated and partly standing, with her right foot remaining on the pedal. As she did so, she felt her right knee crack. She retrieved the bag and placed it flat side down on the loading side so it could be rescanned. Her knee was painful but she continued working.[64]

48 Ms Taseska said that the bag was really heavy, but was unable to estimate its weight.[65] It was not disputed that there was no weight limit on bags placed on the conveyor. Provided a bag could fit on the conveyor and travel through the scanner, it was acceptable.[66]

49 In cross examination, it was put to Ms Taseska that it was her job to tell another team member about the position of the bag, but that she did not. Ms Taseska replied that there was 'supposed to be someone else, but no one was there'.[67]

50 The focus of the cross-examination related to the alleged implausibility of Ms Taseska's account. It was put to her that given the length and size of an x-ray machine for hand luggage, a person could not have kept his or her foot on the pedal and at the same time reach and lift a bag coming out the exit.[68] She said that it was possible and this is what she was required to do if the bag had not been placed on the conveyor correctly.

51 In cross-examination, senior counsel for Chubb did not put to Ms Taseska that:

(a) she did not injure her knee whilst working on the scanner; nor

(b) that her account of the absence of the fellow employees was either inaccurate or false.

52 Rather, counsel relied upon inconsistencies in her account of the circumstances of the accident, asserting that it could not have occurred in the way she had described, given the configuration of the scanner and the conveyers.

53 Three Chubb employees gave evidence as to the likelihood of Ms Taseska injuring herself as she alleged. None had seen the incident, but each had varying degrees of familiarity with the process.

54 Mr Poskus said that he could not recall a bag lifting incident resulting in Ms Taseska injuring her knee.[69] He said that the occurrence of a workplace injury incident such as the one described would have been recorded.[70] Mr Poskus was shown photos of the scanning machine used by Ms Taseska, however, he was not prepared to say whether it would have been possible for Ms Taseska to reach over and lift the bag while sitting at the machine.[71] He noted that the gap between the conveyer belt and the seated position at the scanner meant that it would have been a long way to reach to retrieve the bag.[72]

55 Mr Poskus also said that if it was necessary to rescan a bag after it had passed through the scanner, the operator should stop the conveyer, remove the bag 'and indicate to the loader that you needed it placed through again'.[73]

56 In my view, Mr Richardson was the most relevant witness as to the operations of the security team on a day to day basis. He was the supervisor charged with overseeing these operations and was usually in the vicinity of the screening team.[74] He clearly understood the process and the potential risks when the terminal was busy. Mr Richardson said that airport security became extremely busy post September 11 and that if a guard stopped the belt, this would cause greater delay in the process of scanning material.[75] He also said that there was greater pressure on operators who worked in security for domestic outbound flights, causing more scanning machines to be used and more bags to be off loaded.[76]

57 He had no recollection of the incident or Ms Taseska suffering an injury to her knee.[77] He thought it would be impractical to carry out the task as described by Ms Taseska, but also said he would be guessing as to how far a person would have to reach.[78] Mr Richardson said also that the scanner operator's tasks were not confined to operating the machine. If the off loader had disappeared on another task then the scanner was required to remove the bag on the unloading side and wait for the off loader to return.[79]

58 Mr Richardson said as to the situation after September 11:

But the problem was that there were a lot of changes, and there was a lot of pressure on all the staff as well. But, at the end of the day, to take a bag off there you had to stop the belt and place it on the ground. That was the only thing to do.[80]

59 Ms Taseska cross examined Mr Richardson as to the possibility of a scanner operator removing luggage off the belt if it was not positioned properly.[81] Mr Richardson accepted that, at times this occurred, and explained that if the loader was busy, then it was also the scanner's job to take luggage off the conveyor.[82]

60 Ms Taseska then pointed to the fact that if she stopped the conveyor it would be difficult to actually hold the bag while it was still moving on the machine. Mr Richardson said that the scanner operator in that situation needed to stop the belt once the bag had come out of the machine.[83] Ms Taseska put it to Mr Richardson that during busy periods, especially after September 11, passengers would often grab their bags off the machine and leave without being checked, making it more difficult to stop the belt from a security perspective.[84] In response to this, Mr Richardson confirmed that it was also part of Ms Taseska's job not to let the passengers run away with their bags without being checked properly.[85]

61 Ms Taseska then perceptively asked, 'so how many jobs am I supposed to do?'[86] Her cross-examination of Mr Richardson continued:

MS TASESKA: Watch the screen, watch the people not to take the bag without being checked or take the bag out or how many jobs one person can do at one time? The whole process of watching the bag on the screen, allowing that to come to the end of the belt where the curtain was, stopping the belt and then grabbing the bag from there, that was - you are only looking after one bag at a time. Or was it more important for me to watch the screen and see that I don't miss anything going through the plane? Was that more important, or should I worry if that bag was nabbed by someone and wasn't checked properly, most of the time until you realise the bag was gone?

HIS HONOUR: Just leave it there for the moment. Can you answer that? I guess what Ms Taseska is putting to you is what were the priorities for her job?

MR RICHARDSON: As far as I'm concerned you were looking after one bag at a time and that was part of the x-ray screen was that once you saw a bag that needed to be checked you would then monitor that bag until it got to the screen or onto the roller beds coming out of the x-ray machine. You would stop the belt, go over and pick the bag up, place it on the floor and would then wait for the off loader to come back and you would advise them of what was in the bag so that they could go off and check it.

MS TASESKA: So through the machine how many bags are coming at the same time one after another? Is it just one bag and you have maybe two, three minutes apart or is it bag after bag after bag?

MR RICHARDSON: Basically it was bag after bag, yes.[87]

62 Mr Richardson's evidence establishes that the scanner operator was, from time to time, expected to fulfil several, not just one, of the following tasks during busy periods (in the absence of team members usually involved in loading or collecting):

(b) keep his or her foot on the peddle so as to keep the conveyer belt moving;

(c) watch the passengers so that they did not collect their bags before being properly checked;

(d) stop the conveyer belt if a bag was not positioned correctly; and

(e) move a bag off the belt if it was not positioned correctly so that it could be re-scanned.

63 This was consistent with the evidence of Mr Poskus, who said that the primary role of the scanner operator, and without doubt the most important, was to identify prohibited items. However, at times the operator could be required to perform other tasks.[88]

64 Mr Richardson also said that at times members of the security team could be deployed to other duties - such as removing a suspicious bag. This was confirmed by Mr Poskus.[89]

65 Ms Taseska continued working after the incident.[90] However, the pain in her knee worsened. On 29 November 2001 she saw Dr Gorgioski who diagnosed a ligament sprain of the knee and prescribed medication. His evidence as to her complaints at that time was as follows:[91]

Right knee pain when she twisted the knee two weeks before that at work, where she worked as a security (stet) - security at airport.

On examination tender knee, little crepitus.[92]

66 There was detailed cross-examination about the original entry and whether the above note accurately represented the history taken (and particularly whether the note referred to the left knee where the letter 'L' was crossed out and amended to read 'R' for right) .[93] Having reviewed the original and subsequent entries and taken into account Dr Gorgioski's explanation for the overwriting on the note, I am satisfied that the account I have set out above is accurate.

67 Dr Gorgioski's opinion was that the original injury was a sprain and strain of the knee, which was subsequently diagnosed as a meniscus tear.[94]

68 Ms Taseska saw Dr Gorgioski again on 4 and 19 December 2001 with continuing problems in her right knee.[95] When the knee condition did not improve, she was sent for an ultrasound and then referred to an orthopaedic surgeon, Mr Roger Westh. In a letter of 25 January 2002 to Dr Gorgioski, Mr Westh noted that Ms Taseska sustained an injury to her right knee (in December) and: [96]

On examination of the right knee there was a small effusion and there was a palpable Baker's cyst. She was slightly tender over the lateral joint line and there was some bilateral patella-femoral crepitus. An ultrasound shows an effusion and a significant Baker's cyst.

69 In May and April 2002, Ms Taseska reported persisting pain in the right knee to Dr Gorgioski.[97]

70 In a further letter to Dr Gorgioski on 9 June 2002, Mr Westh described Ms Taseska as 'a 30 year old woman who is certainly in a lot of trouble with her painful right knee and painful right hip'.[98]

71 Ms Taseska completed a worker's claim form in September 2002 relating to her knee injury.[99] The claim form states, 'damaged cartilige (sic) in the right knee' during 'normal duties of screening and lifting passenger bags' at Melbourne Tullamarine Airport.

72 It should be noted that there is no reference in the claim form to any psychological disorder associated with the knee problem.

Findings relevant to breach of duty and causation

1. The first task is to determine whether Ms Taseska has established that the incident occurred generally as she described. In my opinion, it did.
2. Chubb argued that the manoeuvre claimed by Ms Taseska was physically impossible, although it accepted that Ms Taseska injured her knee in the course of her employment.[100] Counsel for Chubb also argued that it was not part of her job to keep the pedal running and lean over to move the bag. Common sense demanded that Ms Taseska leave the bag aside.[101]
3. In closing submissions, counsel for Chubb also pointed out a number of inconsistencies in Ms Taseska's evidence regarding the bag lifting incident. Primarily this related to her evidence before myself and Cavanough J in which Ms Taseska said that other members of the security team were called away and she was left unassisted.[102] In contrast, in her evidence before Cavanough J, she said that the off loader was present but was checking bags at a table near the scanning machine.[103]
4. It was also said that Ms Taseska was a highly unreliable witness and I should be cautious in accepting her evidence as to the manner in which she injured her knee.
5. For the following reasons, I do not accept these submissions.
6. First, I do not regard Ms Taseska's account of this incident, at least in a general sense, as implausible. Whilst I have considerable reservations as to Ms Taseska's reliability as a witness in relation to the other aspects of her claim (which I shall set out in a moment), this account seems not only plausible, but is supported by Mr Richardson's evidence regarding the numerous tasks she was required to perform and the pressure that existed in carrying out the scanning task after September 2001. As I mentioned earlier, no other Chubb witness was prepared to say that the incident, as she described, could not have happened.
7. Whilst I cannot conclude affirmatively that her foot was on the pedal at the time she endeavoured to retrieve the bag or how many co-workers, if any, remained at the screening point, I think the basis of it should be accepted: that, whilst sitting at the scanner, Ms Taseska, owing to the absence of at least one of her colleagues, was forced to manoeuvre her body as she endeavoured to retrieve a heavy bag from a moving conveyor. This caused her knee to twist. I do not regard the inconsistencies in her evidence as to the actual whereabouts of the fellow employees as impugning the proposition that the off loader was absent from his task - particularly when the absence of a fellow employee was not challenged in cross-examination. It was clear from the evidence of Mr Richardson that this was a distinct possibility.
8. Secondly, Ms Taseska said that bags were not weighed before they were screened. Mr Richardson corroborated this.[104] No other witness questioned this proposition. I am therefore satisfied that the item in question, as described by Ms Taseska, was a relatively heavy full size bag.[105] She was not challenged on this point.
9. Thirdly, there is relatively contemporaneous corroboration of an incident involving twisting with an injury to the knee. Ms Taseska consulted Dr Gorgioski on 29 November 2001, two weeks after the incident occurred.[106] Dr Gorgioski's notes record that Ms Taseska gave a history of right knee pain after she twisted her knee at work.
10. Finally, the medical opinions, including that of Ms Taseska's treating orthopaedic surgeon, Mr Talbot, identify this form of activity as a potential cause of Ms Taseska's injury. Mr Talbot did not see Ms Taseska until 2011. In August of that year, he performed an arthroscopy which identified a torn meniscus with severe osteoarthritic changes. He thought that the history of twisting the knee in 2001 was consistent with those findings, particularly given the development of arthritis in the knee.[107]
11. Dr Gorgioski concurred with this opinion. In other words, there is a consistency between the nature of the injury and the alleged actions which precipitated the injury.

1. The next question is whether, in the circumstances, there was a breach of duty on the part of Chubb.
2. The duty owed by Chubb to Ms Taseska was described by the High Court in Czatyrko v Edith Cowan University[108] as follows:

An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work.[109]

1. This was re-stated by the High Court in Leighton Contractors Pty Ltd v Fox[110]:

An employer owes a personal, non-delegable, duty of care to its employees requiring that reasonable care is taken. This is a more stringent obligation than a duty to take reasonable care to avoid foreseeable risk of injury to a person to whom a duty is owed. While an employer is not vicariously liable for the negligent conduct of an independent contractor, it may incur liability where the negligent conduct occasions injury to its employee. This is because it will have failed to discharge the special duty that it owes to its employees to ensure that reasonable care be taken, whether by itself, its employees or its independent contractors, for the safety of its injured employee.[111]

1. It is important at the outset to identify, with some precision, the relevant risk of injury that underpins the asserted breach. In this case it was the risk of sustaining a musculoskeletal injury as a result of being required to engage in tasks which necessitated Ms Taseska to stretch from a seated position and lift bags of moderate to heavy weight.
2. Ms Taseska must establish that this risk of injury was foreseeable, in the sense that it was not 'farfetched or fanciful'. Then, for the purposes of the breach inquiry, the primary issue is determining the response, if any, of a reasonable employer confronted with this risk; then determining whether the employer fell short of that response.[112]
3. I am satisfied that, at the time of this incident, it was known to Chubb management (as demonstrated by the evidence of Mr Richardson) that employees carrying out the loading and receiving duties could be called away, with the result that the scanning operator (whose primary function was to ensure that prohibited items in passengers' luggage were not carried onto the plane) would be required to carry out extra duties such as lifting luggage, including from a moving conveyer belt.
4. This kind of scenario occurred in situations of some urgency. Passengers were often in queues, some in a hurry to catch a plane. This was particularly so after September 11. It was accepted by all that the screening became more intensive with greater wait times for passengers. Chubb should have appreciated that there was a risk of physical injury to Ms Taseska in the busier periods at the airport, taking into account the stringent security process and lack of weight restriction on the bags. The likelihood of an injury occurring was that of a real, not a remote, chance or possibility.[113]
5. Given the risk of injury, it was inappropriate that Ms Taseska be required to perform additional duties, which included stretching and lifting passengers' bags of indeterminate weight. I am satisfied that it was inevitable that such an activity could place undue and excessive strains and stresses on her limbs. In my view, an appropriate and reasonable response to the risk was:

(a) firstly, to ensure that more employees were rostered on during busier periods so that the scanner operator was able to perform that task without interruption and without the need to stretch and manhandle bags in the event of an absent team member;

(b) secondly, to put in place further training (especially after September 11) to instruct security guards which tasks to prioritise; and

(c) thirdly, to implement weight restrictions on bags being put onto the conveyer belt and through the scanner.

1. No evidence was led by Chubb to suggest that any of these alternatives were impractical.
2. Had these steps been taken, Ms Taseska would have:

(b) been alerted to the need to either stop the conveyer belt before attempting to lift luggage, or wait for someone else to assist.

The identified risk of injury could have been minimised or eliminated by Chubb.

1. Mrs Taseska's case on breach of duty is established.

1. Next, the evidence of Dr Gorgioski and Mr Talbot establishes that the breach of duty was a cause of Ms Taseska's knee injury.
2. I am satisfied that, consistent with Mr Talbot's opinion (which I have set out above), the injury was caused by the bag lifting incident - in particular, the twisting of her knee whilst operating the scanner.
3. In summary, I conclude that Chubb breached its duty of care to Ms Taseska and that breach was a cause of her knee injury.

98 Chubb's amended defence contained the following particulars of contributory negligence:

(a) failing to exercise reasonable care for her own safety;

(b) failing to assess the weight of the bag being lifted before attempting to do so whereupon she could have assessed whether assistance was required to lift the bag and sought said assistance in the circumstances;

(c) failing to wait for and/or call for assistance;

(d) failing to allow the bag to travel to the end of the conveyor;

(e) continuing to operate the foot control for the conveyor when it was inappropriate to do so; and

(f) failing to initially stop the conveyor, stand up, move to the bag and to then move it.

99 The essence of this allegation, as put by Chubb's counsel at trial, was that if Ms Taseska's account was accepted, it was imprudent of her not to stop the conveyor and then walk to the bag and remove it from the conveyor - as Mr Richardson and Mr Poskus suggested in their evidence. [114]

100 There might be some force to this argument in an ideal world. But here, the real life situation, as averted to by Mr Richardson, was of a constant stream of passengers wanting to get through the security check and, as I have found, with an inadequate number of staff provided by Chubb; on this occasion, particularly as there was no off loader to assist in retrieval of the bag.

101 It is simply fanciful to suggest that Ms Taseska should have done what was suggested by Chubb. Her primary job (an important one) was to monitor the bags for suspicious objects. It was not appropriate, in my view, for the scanner operator to manhandle bags in such a pressured environment. Ms Taseska, in endeavouring to further her employer's interests by, in effect, doing the job of an absent employee, in no way renders her liable for a finding of contributory negligence.

102 There was no contributory negligence on Ms Taseska's part.

1. Ms Taseska's claim for damages is confined to pain and suffering.
2. Before going to the nature of the knee injury and its consequences, I should say something about the course of Ms Taseska's life since March 2003.
3. In particular, it is necessary to identify, albeit briefly, a number of the tribulations that Ms Taseska has endured since that time which have no relationship to the bag lifting incident. These problems fall in two categories.
4. The first is the consequence of the significant disability to both hips - which have affected her for many years - and which are not related to the knee injury, or indeed to any work related activity.
5. As her senior counsel put it in opening the case before Cavanough J:

The hip problem has surfaced for the plaintiff in a major way. It's hard to pinpoint a time and there'll be certainly big issue in the case about this but the plaintiff's case is that from probably some time in the first half of 2006 the hips became a problem for her such that on the balance of the medical evidence she would be regarded as unable to work from the hip point of view and, of course, that's unrelated to any claim in this case in terms of negligence.[115]

1. The second issue is that Ms Taseska has suffers from ongoing major psychological issues related both to her work for Chubb and to her liver condition.
2. The evidence of Dr Wahr, and her own presentation at trial, demonstrate that she attributes most, if not all, of her psychological upset and distress (which is continuing) to her work at Chubb.[116] This was clearly the dominating feature of her presentation. As far as I could tell, it was not part of her case that there was any significant (or indeed material) psychological consequence associated with the knee injury.
3. Returning to the right knee injury, Chubb argues that the extent of Ms Taseska's injury was that of a soft tissue injury to her ligaments that involved fluid and a Baker's cyst, which later appeared to resolve.[117] It contends that whilst there may have been a knee injury at work, the real or, at least, predominant cause of Ms Taseska's ongoing problems was her use of Prednisolone.
4. I do not accept this analysis. The weight of the medical evidence, particularly that of Mr Talbot, clearly establishes that the knee injury is of considerable significance and is directly related to the bag lifting incident.
5. The diagnosis of the injury, made by both Mr Talbot and Dr Gorgioski, is one of damage to the meniscus with the associated development of osteoarthritis.
6. Ms Taseska's symptoms have continued over the past 15 years.
7. On 25 March 2002, a CT scan of Ms Taseska's right knee recorded two findings: the first confirmed, or revealed, the Baker's cyst; the second recorded that no bone injury was evident.[118]
8. In April 2002 when seen in the Austin Hospital orthopaedics clinic, the following was noted:[119]

Twisted knee back in November. Swelling and now complaining of:

1. From May 2002, Ms Taseska was seen on multiple occasions by Dr Gorgioski for treatment for her right knee pain which Dr Gorgioski described on one occasion as 'very bad'. [120]
2. When seen by Mr Tram (orthopaedic surgeon) in November 2002, Ms Taseska complained of pain in the knee with clicking and a giving-way sensation which occurred occasionally. For the rest of her time in employment with Chubb, it appears that she was able to manage her symptoms, and that her primary issues (which will be discussed in a moment) were psychological.
3. In April 2004, Dr Gorgioski noted that Ms Taseska presented with persisting right knee pain. He said it was 'very painful in movements'.[121]
4. In June 2004, an X-ray revealed severe osteoarthritis of the right knee. This was confirmed by an MRI in May 2005.
5. In November 2009, a CT scan confirmed, again, the presence of osteoarthritis, effusion and a Baker's cyst.
6. The problems with her knee were overshadowed from 2006 onwards by increasing problems with her hips, although it appears that the painful right knee remained an issue.
7. In June 2006, Mr Westh organised for a plain X-ray of the pelvis, which showed arthritis in both hips.
8. Although the problems with the left hip first required medical assessment in 2006, Ms Taseska's problems appeared to have commenced earlier than that. For instance, in June 2007, Mr Baré (an orthopaedic surgeon) took a history of four years of increasing left hip pain with a limp, and problems with the right hip for a period of four months. He also thought that Ms Taseska needed a left hip replacement.
9. The consensus of the medical opinion is that physical deterioration of the hips is due to the ongoing use of Prednisolone.
10. The hip problems were of such significance that, by 2010, Ms Taseska was using elbow crutches bilaterally and a walking stick,[122] with the end result that, on 19 September 2011, Mr Wilson, an orthopaedic surgeon, performed a left hip total joint replacement.[123] It was clear from the evidence of Mr Talbot and Dr Gorgioski[124] that, inevitably, the right hip will require similar operative intervention.
11. Returning again to the right knee: in January 2011, Ms Taseska was sent by Dr Gorgioski for review by Mr Talbot. He has managed her orthopaedic issues since. In his report of 10 February 2011[125], Mr Talbot noted that, by February 2011, the radiology demonstrated complete articular cartilage loss over the lateral compartment of the knee with a macerated meniscus with 'severe osteoarthritis'.
12. On 12 August 2011, Mr Talbot performed an arthroscopy which confirmed the severe nature of degenerative changes of the right knee and, in a report of 30 August, confirmed that the severe osteoarthritis was likely to be secondary to the clinical lateral meniscus tear in 2001.
13. Notwithstanding the arthroscopy, Ms Taseska continued to experience ongoing pain in, and disability (such as walking, climbing stairs) relating to, her knee. The ongoing degeneration was confirmed again by X-rays carried out in June 2012.
14. Ms Taseska's condition stabilised during 2012 after wearing a knee brace. However, in April 2013 she presented to Mr Talbot with increasing symptoms, notwithstanding cortisone injections into the knee in August 2013. At that time, Mr Talbot and Ms Taseska discussed the option of a knee replacement.[126]
15. In recent years, Ms Taseska has taken medication intermittently. She has utilised hydrotherapy and participated in a gym program to assist with her knee condition, but it is clear that the only solution to ensuring a significant improvement of her symptomology is a full knee replacement.[127] For the moment, conservative measurements such as hydrotherapy, physiotherapy and braces will be utilised.[128]
16. A knee replacement is a significant procedure. It require five nights in hospital, four weeks on crutches and then three or four months of recovery. It would not restore normal knee function, but would improve the symptoms.[129]
17. Due to Ms Taseska's age, it has been agreed that it would be best to postpone the surgery for as long as possible - however, Mr Talbot regards it as inevitable.[130]
18. Mr Talbot is also of the opinion that there is a real possibility that a second knee replacement will be required: the younger the patient, the more likely it is that he or she will wear out the prosthetic knee. The likely life span of a prosthetic knee is 15 to 20 years.[131]
19. As to the likely course of her ongoing symptoms absent a knee replacement, Mr Talbot said:

Given the history over the last five years I think they are likely to follow the same course, which is that there is a fluctuating level of symptoms, but generally she will always have persisting symptoms with the knee. They may overall slowly get worse, but it will probably be relatively gradual seeing that it's been reasonably gradual over the last five years. But it's not going to get better.[132]

1. The cause of the ongoing knee disability and the role played by the Prednisolone regime was debated in some depth at trial. It is, of course, accepted that in assessing damages for pain and suffering, a court must take into account 'the chance that factors, unconnected with the defendant's negligence, might have brought about the onset of a similar... condition'.[133]
2. It was not in issue that the Prednisolone therapy has the capability of producing a vascular necrosis of the body joints with resultant osteoarthritis. Indeed, it seemed to be accepted that this was the most likely cause of the bilateral hip degeneration. However, the question of the role of the bag lifting incident (as opposed to the Prednisolone therapy) as a cause of the right knee condition was a live issue.
3. Chubb relied on the opinion of orthopaedic surgeon, the late Mr Brendan Dooley, who, in a report of 15 December 2009, stated that Ms Taseska 'was markedly disabled by osteoarthritis affecting both hip joints and the right knee joint' and attributed it to the use of Prednisolone.[134]
4. Chubb called an expert as to the effects of regular steroidal treatment, Dr Noel Cranswick, who provided a report dated 14 November 2015.[135] The doctor specialises in paediatrics and clinical pharmacology and I accept, was eminently qualified to comment on the side effects of the use of Prednisolone. His report was directed to the psychiatric/psychological side effects of the use of Prednisolone. However, Dr Cranswick also said that Prednisolone treatment causes cumulative effects when it has been used over a period of time, as well as side effects, which occur when the dosage is at a higher level.[136] He confirmed that a decreased dosage does not 'guarantee that the side effect will go away'.[137]
5. Dr Cranswick said that there were many well recognised side effects of Prednisolone, including weight gain and depression. In particular, he was asked to comment upon Mr Dooley's opinion, which in detail was to the following effect:

The operation successfully carried out by surgeons at the Austin Hospital and, while she had to date a remarkable result following this transplant surgery, unfortunately, because of the need for Cortisone treatment before and after her transplant surgery, she had developed complications affecting the joints in her legs, namely her hip joints bilaterally, particularly her left hip, and probably also her right knee. Prolonged Cortisone treatment sometimes leads to the development of vascular necrosis which may affect any major joint or also the vertebra due to the either osteoporosis or a vascular necrosis. In this case, she has not developed osteoporosis affecting the spine, femur or humerae, but rather vascular necrosis affecting the femoral heads of the hip joint and the femoral condyle, in this case probably the lateral femoral condyle of her right knee joint.[138]

Dr Cranswick explained that Prednisolone can cause a specific injury to the bone, such as vascular necrosis, as well as causing softening of the bone.[139] However, he also agreed that a patient could have an early onset of osteoarthritis without steroidal treatment and said that 'both of those can occur spontaneously'.[140]

1. Mr Talbot's opinion is significant on this issue. He was firm in his view that the osteoarthritis in Ms Taseska's knee resulted from a previous injury, rather than the use of Prednisolone. In cross examination, Mr Talbot was asked whether the osteoarthritis in Ms Taseska's knee was caused by avascular necrosis, a condition likely to have been caused by ongoing Prednisolone treatment. In answering this, Mr Talbot said that his assessment of Ms Taseska's MRI scan and her clinical history satisfied him that it was more likely that the osteoarthritis in her knee was related to an injury, such as described by Ms Taseska. He explained that if the underlying cause of the knee condition was necrosis (associated with ongoing Prednisolone treatment) then there would be a change in the shape or flattening of the femoral condyle. These changes were not present and the appearance was consistent with a frank injury.[141]
2. I prefer and rely upon the opinion of Mr Talbot that the knee injury is related to the bag lifting incident and that it is the operative cause of her right knee condition. Mr Talbot was an impressive witness with considerable expertise in treating knee and joint complaints. He has seen Ms Taseska on many occasions and has access to all relevant studies. I accept his evidence on this issue in preference to that of Mr Dooley. I did not understand Dr Cranswick's evidence to be suggesting that the knee condition was not related to the alleged injury but, rather, he explained the potential role of Prednisolone in causing such a condition.
3. I am therefore satisfied that the Prednisolone treatment has not, in any meaningful sense, played a part in the development of Ms Taseska's knee condition. There is no Malec[142] discount for the prospect that this condition would have come on in any event.
4. Taking into account all these factors, I think that an appropriate award for pain and suffering damages, past and future, is $250,000.

1. Ms Taseska says that she suffered psychological injuries as a result of two assaults by passengers where Chubb failed to intervene. The first involved a passenger and a spray can.
2. In her statement of claim Ms Taseska asserts:

The first incident occurred on or about 13 June 2002, when Ms Taseska was removing some spray cans from a male passenger's hand luggage when he became angry and grabbed the spray can and sprayed it contents in Ms Taseska's face. Ms Taseska's manager was standing nearby at the time and did not intervene.

1. Ms Taseska contends that Chubb failed to provide a safe workplace with adequate supervision so as to reasonably avoid foreseeable psychiatric injury and that, as a result of the spray can incident (in conjunction with the other incidents of which she complains), she suffered major reactive depression, post-traumatic stress disorder, shock, anxiety, depression and pain. Specific to this claim, and the lady with the papers incident, are the following allegations:

(o) Failing to conduct any or any adequate duty performance risk assessment;

(p) Failing to provide and enforce a prompt system of intervention, support and assistance for screening personnel at times of conflict with members of the public;

(q) Failing to adequately train staff in such a system referred to in (p);

(r) Failing to provide adequate staff numbers at Airport screening points;

(s) Failing to display visible signs at screening points with words to the following effect: 'Public patience and co-operation is requested. Assaults on security staff will be prosecuted.'

147 On 13 June 2002, Ms Taseska was working at the receiving position of the security team, which involved supervising passengers retrieving their bags from the scanner.

148 On her account, she was asked by a fellow employee operating the scanner to check a male passenger's bag, as her colleague could not see its contents properly.[143] She asked the passenger to take the bag to a table where it could be opened and inspected. She says that the passenger then started screaming and continued to do so for one to two minutes as he was 'late for his plane'.[144] The passenger was then taken to a table and asked to open the bag. According to Ms Taseska, this took about two minutes and:

He searched through his bag to find a can - spray cans - and he just took the can and he just sprayed it into me - into my face.[145]

149 Ms Taseska said that the passenger then grabbed the bag and boarded his plane.[146]

1. According to Ms Taseska, all of this occurred in the presence of Mr Poskus and Mr Richardson, both of whom failed to intervene.[147]

151 The incident resulted in Ms Taseska having three days off work.

152 By closing submissions, Chubb did not dispute that some form of incident occurred between Ms Taseska and a passenger on 13 June 2002. However, the circumstances which gave rise to the incident, and its gravity, were very much in issue.

153 It was acknowledged by Mr Poskus that, after the increased security as a result of September 11, the possibility of conflict between passengers and security staff increased.[148] However, I also accept his evidence that there was a significant management presence overseeing the operations, as well as increased staff training.[149]

154 Mr Poskus could not recall witnessing such an incident, nor having received a report about it.[150] Whilst he had no recollection of the incident described by Ms Taseska after perusing an email written by him on 14 June 2002,[151] he agreed that Ms Taseska had reported a 'run- in with a passenger' in the baggage search area.[152] However he went on to say that had it occurred in the terms alleged by Ms Taseska at trial, he would have been alerted to it, and the AFP would have been notified via the duress button.[153]

155 Similarly, Mr Richardson could not recall any such incident occurring. He also said that if he had witnessed this alleged event, he would have intervened immediately and called the AFP if required (who had personnel on site at all times).[154]

156 The documents produced by Chubb demonstrate that something happened on 13 June 2002 involving Ms Taseska and a passenger. For instance, the 14 June 2002 email from Mr Poskus to Mr MacLeod and Ms Suares (Mr MacLeod was in charge of rostering and Ms Suares managed the employees' return to work programs), relevantly, read:[155]

Silvana has stated that she doesn't want to be paid for her days off - I responded that I want her 'back on the horse' as soon as possible, but if she wants the time off, so be it...

... I will arrange a counsellor through yourself...

...I have told her that she may be required to make a claim for time off over the weekend etc."

157 Mr Poskus accepted that an injury report was probably completed, but said that it could not be located.

158 Ms Taseska saw Dr Gorgioski on the day of the incident. He noted that she was 'very stressed at work because of an argument.'[156] There was no mention of a spray can nor an irate fleeing passenger.[157] The doctor gave Ms Taseska four days sick leave, after which she returned to work.

159 On 16 July 2002, Ms Taseska returned to Dr Gorgioski, whose note records:

Very nervous because of work and headaches, insomnia, mostly she said because of shift work and right knee pain still was persisting. Crepitus in the knees.[158]

160 In her claim form submitted to Chubb in September 2002, Ms Taseska described the incident as: 'Customer spray aerosol can into my face'. In this report Ms Taseska asserts that she reported the incident to Mr Poskus.[159]

161 I do not accept Ms Taseska's account of this incident with a passenger.

162 I have no doubt that if such an event, as described by Ms Taseska, had occurred, Mr Poskus, and Mr Richardson (who, on her version, were both at the scene and witnessed the whole episode), would not only have been able to recall it, but it would also be ingrained in their memory. A screaming passenger, a spray can used on an employee, and an unimpeded decampment from the scene to a flight without screening completed would not be easily, if ever, forgotten. Indeed, an event of the magnitude described by Ms Taseska amounts to a major security breach, one which would have required action by the AFP, closure of the entire screening point, or re-scanning of all passengers.

163 Both Mr Poskus and Mr Richardson were impressive and thoughtful witnesses. I accept their evidence on this issue and repeat that I am satisfied that if such an incident had occurred it would have been recalled by both and acted upon.

164 It is also significant that Ms Taseska did not mention the use of the aerosol can (and being sprayed in the face) to Dr Gorgioski when she saw him on the day of the incident - she referred only to an argument. One would have thought that, in terms of medical treatment, the asserted assault would have been her primary concern.

165 I do, however, accept that an altercation between Ms Taseska and a passenger occurred. This, as I mentioned earlier, is substantiated by the evidence of Mr Poskus, and Ms Taseska's account to Dr Gorgioski which the doctor described as 'just stress situation'.[160] Whilst I am satisfied that there was some form of acrimonious exchange between Ms Taseska and a passenger, there is a world of difference between Ms Taseska's perception and the reality of what actually occurred.

166 It has been many years since the events described occurred and I accept counsel for Chubb's submission that Ms Taseska has ruminated on incidents, such as this one. This, I am satisfied, has influenced her account of this event.

167 I proceed on the basis that there was some form of altercation or 'run in' between Ms Taseska and a passenger, noting that it is not possible to identify what actually occurred. Bearing in mind that Ms Taseska carries the onus of proving the facts that give rise to any breach of duty, there is insufficient evidence to substantiate a breach of duty on the part of Chubb. Put simply, a dispute between a passenger and a member of a security team, absent more, does not lead to an inference of negligence on the part of the employer.

168 I accept Chubb's submission that all jobs contain an element of stress, especially airport security by virtue of its very nature. Workplace stress, such as that experienced by Ms Taseska, can lead to recognised psychiatric injury. However, it does not necessarily lead to the conclusion that:

the risk of such injury always requires a response for the purpose of attributing legal responsibility. Predictability is not enough. [161]

169 Although Chubb may have been able to predict that Ms Taseska would encounter workplace stress from interactions with passengers, this is not sufficient to establish negligence on its part.

170 Absent findings as to what actually happened in any argument with a passenger, none of the particulars of negligence, as detailed above, can be sustained.

171 I am not satisfied that that Chubb breached its duty of care

The lady with the papers incident on 18 August 2002

172 Ms Taseska asserts that she was assaulted by a female passenger who became angry about being searched. She claims that her supervisor, Mr Lowe, was present and did not intervene to prevent the assault.

173 She says that Chubb failed to provide and enforce a prompt system of intervention and failed to provide support and assistance for screening personnel at times of conflict with members of the public.

174 Ms Taseska claims that as a result of this incident she suffered from a number of psychological injuries.

175 Ms Taseska said that on 18 August 2002, a female passenger came to the screening point pushing a person in a wheelchair. She was carrying a jacket and some papers. At the time, Ms Taseska was operating pedestrian scanner and the hand held wand for scanning passengers. The passenger was sent through the scanning machine a number of times but, due to continuous scanning and beeping, became upset.[162]

176 Ms Taseska said that she asked the passenger to put down the jacket and hand over the papers she was holding so that she could be scanned with the wand. The passenger started to yell and said 'I'm not terrorist. I don't have anything on me. I don't have any bombs. Why are you doing this and all this?'[163] Ms Taseska said that the passenger then threw her papers on the floor and yelled 'don't step on my papers' and pushed Ms Taseska in her stomach, causing her to 'bend a little back' but not to fall.[164]

177 Ms Taseska said that Mr Lowe was standing behind her during the incident and that, after she was pushed, Ms Taseska asked him to finish the screening, and he completed the job.[165] After 10 - 20 minutes, Ms Taseska said Mr Lowe told her to go home.[166]

178 Ms Taseska said that Mr Lowe was abusive to her later in the lunch room. She said that he screamed at her saying 'you come back to your job because I don't have anyone to do it... I can't find anyone to replace you'.[167]

179 Mr Jerome Beling, a security guard employed by Chubb, was not called to give evidence at trial. There is, however, an unsigned statement made by him which includes a report describing the incident in the following terms:[168]

At approx. 17:35 hrs on Sunday the 18th of August 2002, the guard who was watching the screen (Wayne), told me that there were 2 pairs of scissors and a bar tool in a black handbag coming out through the tunnel. I retrieved the handbag and walked to the desk which is directly opposite the guard who uses the scanner...The lady passenger who was in front of the guard looked agitated and was saying, "I don't have time for this". She kept repeating herself. The passenger was then asked to give the jacket so that the wand could be used over it. The passenger then pushed her left hand with the jacket on it into the guard's stomach. The guard then said, "Ma'am, I'm only doing my job". The guard then scanned the jacket and put it on the desk behind her and upon turning around, the passenger threw a magazine newspaper onto the ground... The guard then said, "I can't take this anymore, I'm going home". Then senior guard, Bruce Lowe, who was approaching the location took the wand and carried out the necessary duties...I went in and asked the guard (Silvana) if she was ok and to take it easy and I could see tears running down her face...After about 8 minutes, I approached Silvana again...she broke down again and said, "why do we have to put up with this". I then said, "you better see a doctor" as she left the site in tears.

180 Mr Lowe also filed a report that day that read:[169]

At approx. 17:45, I was standing at senior's station no.1 observing operations. Officer Silvana Taseska handed me the screening wand and asked me to screen a lady (which I duly proceeded to do). Silvana walked away and went in the tea room. A short time later she came back out of the tea room crying and told me she was going home. I made a telephone call to Trevor Richardson, then I told Silvana to go home. A short time after several officers whom had been talking to Silvana, told me she had been assaulted. Nobody including Silvana bothered to inform me of this fact prior to Silvana going home.

181 In his evidence at the trial, Mr Lowe said that even after reading his incident report, he could not recall this incident,.[170] However, he said that if a staff member was visibly upset due to an incident at work, his response would be to ensure that someone would talk to that person about their problem.[171]

182 Mr Richardson said that he thought he was told about the incident days after it occurred; and was told that 'something had happened at the screening point'.[172] I suspect that he is mistaken in terms of timing given the evidence of Mr Lowe and Mr Poskus. In any event, I accept his evidence that he had no real recollection of this incident or of any conversations with Mr Lowe or Mr Poskus.[173]

183 Mr Richardson also said in relation to altercations with passengers:

no-one has ever hit anybody, no. There has been a bit of push and shove, but no actual punching or anything like that, no.[174]

Mr Richardson said that the screening points were fitted with duress alarms, 'so if there was ever any incident the duress alarm would be set off, to which AFP would be required to respond ASAP.'[175] I accept the evidence of Mr Richardson on this point.

184 Mr Poskus recalled Mr Richardson bringing the incident to his attention. Mr Poskus said that after being told of the incident he watched a closed circuit television video of the incident within twenty minutes of being notified of it.[176] The video was recorded as part of the Qantas security system, but has not been retained.

185 Mr Poskus' recollection of the contents of the video was as follows:

A male passenger went through the metal detector with outstretched hands ready to have the wand waved over him. He did not see anyone in a wheelchair. As there was no audio in the tape, Mr Poskus could not hear what the passenger was saying.[177] There was 'some sort of interaction' in which Ms Taseska placed the wand on the table near the scanner and walked away Mr Lowe, observed what happened, took the wand off the table and finished Ms Taseska's job.[178]

186 Mr Poskus could not recall having a conversation with Mr Lowe after the incident.[179]

187 Ms Taseska saw Dr Gorgioski the next day - 19 August 2002. He noted the following:

Very upset at work yesterday. A passenger refused to be scanned and she had an argument and then said felt anxious, shaking tremor and she was crying and her boss helped her to calm down"[180]

188 Although Dr Gorgioski subsequently prepared a report dated 5 July 2004[181] that mentioned 'a dressing down by her supervisor', he agreed that this was based on information subsequently supplied by Ms Taseska and not a contemporaneous account at the time of her consultation.[182] This part of the doctor's evidence (i.e as to the dressing down) was unsatisfactory as it directly conflicted with the contemporaneous note that 'her boss helped her to calm down'. I am satisfied that the original note is accurate.[183]

189 On 19 August 2002, Dr Gorgioski completed a Workcover Certificate of Capacity stating that Ms Taseska was unfit for any work duties from that day until 31 August 2002.[184] He completed further certificates stating that she was unfit for work until 13 November 2002. Subsequently, on 10 December 2002, Dr Gorgioski certified Ms Taseska as fit to return to work, two days per week at four hours per day.[185]

190 On 11 October 2002, at the referral of Dr Gorgioski, Ms Taseska first saw psychiatrist Dr George Wahr, who noted that Ms Taseska described 'two episodes at work of great distress' and that, 'following the second incident, she has not been able to return to work'.[186] He said that Ms Taseska presented with anxiety, depression and trouble sleeping. He diagnosed her with agitated depression.[187]

191 There are a number of internal inconsistencies in Ms Taseska's account:

(a) The push: at the trial and hearing before Cavanough J, Ms Taseska gave evidence that the passenger pushed her so that she 'bent back a little' but did not fall.[188] However, at paragraph (b) of the further amended statement of claim, Ms Taseska claims that the push to her abdomen causing her to be 'knocked backwards'.

(b) Mr Lowe's behaviour: In the further amended statement of claim, Ms Taseska alleges that Mr Lowe yelled at her immediately after she was 'knocked backwards' telling her to do her job and finish the search. However in her evidence before Cavanough J, Ms Taseska said that her confrontation with Mr Lowe did not occur at the screening point but afterwards in the lunch room.[189]

192 Ms Taseska's account is contradicted in detail by the sworn evidence of Mr Lowe and his contemporaneous record of the events, which I accept. Ms Taseska said at trial that Mr Lowe was standing directly behind her during the incident.[190] However, the incident simply did not register with Mr Lowe, who said that if such an incident had occurred in his presence, he would have intervened.[191] His report confirms the complaint of an assault made to fellow workers, and that description tallies with Mr Beling's report of a minor incident.

193 Mr Beling's report provides a detailed account of this incident. Although it was unsigned, it forms part of the Chubb records. No evidence was adduced by Chubb to suggest that the report was inaccurate or misconceived. It is a contemporaneous record of the incident involving Ms Taseska and a passenger on 18 August 2002. It confirms a push by a passenger to Ms Taseska's stomach. However, in important respects, it does not tally with the account of Ms Taseska. Mr Beling simply notes that there was, at best, a mild push that merely resulted in Ms Taseska responding that she was doing her job. No suggestion of any violence resulting in Ms Taseska becoming upset and departing her work station. No suggestion of inappropriate behaviour by Mr Lowe.

194 Mr Poskus' evidence of his observations of the CCTV video has some failings; particularly as to the gender of the passenger. Ms Taseska and Mr Beling describe a female passenger, whereas Mr Poskus was certain that it was a male passenger shown in the footage. However, I accept that Mr Poskus probably watched a tape of this incident given that he did so soon after the event with the purpose of determining what had happened to Ms Taseska and that he saw her walk off the job after wand screening a passenger. What is significant about his evidence, which I accept, is that he did not observe a push that caused Ms Taseska to move backwards or fall - nor any altercation between Mr Lowe and Ms Taseska.

195 Ms Taseska did not report any mistreatment by Chubb. She simply walked off the job. That afternoon she saw Dr Gorgioski. His notes are a contemporaneous record of Ms Taseska's mental state after the incident. There is no mention of Mr Lowe or any Chubb employee treating Ms Taseska badly during or after incident. On the contrary, Dr Gorgioski took a history that her supervisor helped calm her down. From what I observed of Ms Taseska, if she was mistreated by Chubb, then the company or the doctor would have known all about it.

196 I should add that Ms Taseska's subsequent exaggerated account to her general practitioner (i.e. after her initial attendance) and her pleaded case of being mistreated by Mr Lowe, is indicative of her personality. On the question of her interaction with passengers, and fellow employees she is prone to blowing any minor incident out of all proportion to the point where she has now convinced herself as to the accuracy of her account.

197 As with the spray can incident, I have no confidence in Ms Taseska's reliability as to this event.

198 Ultimately I am satisfied that there was an incident involving a female passenger which resulted in Ms Taseska being pushed mildly in the stomach by that passenger. As a result, she became particularly upset and left her work station. She was comforted, rather than mistreated, by Mr Lowe.

199 In my view there was no breach of duty. This was a spontaneous incident which could not have been avoided by the exercise of reasonable care.

200 It was regrettable that the incident resulted in physical contact between Ms Taseska and an aggressive passenger.

201 But Chubb acted reasonably. Whilst I accept that it was foreseeable that there may be altercations between security staff and passengers, Chubb could not have prevented disagreements from occurring in an area where employeees deal constantly with members of the public. In fact, the law does not require Chubb to do so. To mitigate against the possibility of this occurring, Chubb provided at least one management staff member on the floor to supervise security staff and their dealings with the public. As it turned out, Mr Lowe was in reasonable proximity to Ms Taseska at the time of this incident and became involved once its effects were apparent. I am satisfied that there was an appropriate amount of supervision in place and that there was no lack of training of Chubb of its employees in this regard.

202 No evidence was led as to the utility of warning signs at trial. Nor was there any evidence that such signs were appropriate fifteen years ago. In any event, the suggested wording of the sign was no more than a statement of 'the bleeding obvious'. Further, if such a sign had been on display it could not be inferred that it would have had any restraining effect on the passenger.

203 I am not satisfied that Chubb breached its duty of care.

Return to work from December 2001 to March 2002

204 Ms Taseska claims that upon her return to work, she was subjected to ridiculing treatment, such as taunting and mocking by her co-workers at Chubb in the International Terminal. She says that:

(c) she was frequently called 'stupid', along with other names; and

(d) she was mocked for a seeing a psychiatrist.

205 Ms Taseska alleges that Chubb management failed to prevent or respond adequately to the bullying and harassment.

206 It should be mentioned here that it was not part of Ms Taseska's pleaded claim that she was subjected to stress as a result of being returned to inappropriate duties - although, by the time of final submissions, this appeared to be a significant aspect of her case.

207 On 2 December 2002, Ms Taseska returned to work on restricted duties for four hours per day, two days per week. She was deployed to work on security duties for QF93, a Los Angeles outbound Qantas flight. She ceased work on 17 March 2003.

208 During the period of her restricted duties, she claims she was bullied and harassed by fellow employees. Her evidence was as follows: [192]

I started to be abused by my co-workers. I didn't know any of them. I went to my managers and I told them to move me a couple of times, lots of times, every time, but they told me they can't find where a position for me so they just left me there.

209 Ms Taseska said that, in light of the treatment to which she was subjected, she repeatedly requested that her managers, Mr Richardson and Mr Poskus, relocate her back to her previous station at Qantas Domestic terminal, as opposed to QF93.[193] She did not tell Mr Richardson or Mr Poskus that she was being bullied as she was scared of the reaction from other staff.[194] Both said that no complaint was made.

210 The background to Ms Taseska's redeployment to QF93 screening duties is comprehensively documented in Exhibit D9 - the Return to Work material ('the RTW material'). In summary, it discloses that there was detailed, indeed exhaustive, consultation between August and September 2002 between Chubb employees Ms Suares (the return to work officer), Mr Poskus, Mr McLeod, Ms Karen Hunt (a psychologist at IRS, the rehabilitation service engaged by Chubb), Dr Gorgioski and Dr Wahr (Ms Taseska's treating medical practitioners), and Ms Taseska concerning her return to work.

211 Ms Suares did not have any independent memory of managing Ms Taseska's return to work.[195] However, upon reviewing the RTW material, she said (and I accept) that:[196]

(a) Mr Poskus told Ms Suares that he did not believe Ms Taseska was suitable in the airport environment.

(b) Mr Poskus and Ms Suares were actually searching for alternative positions for Ms Taseska. This included both other types of jobs with different duties or positions at other sites.

(c) Ms Taseska told Ms Suares that she wanted to remain at the airport so Mr Poskus and Ms Suares searched for other positions for her at the airport.

(d) Mr Poskus found the casual guarding post position at QF93 which was available at the time.

212 Mr Poskus gave detailed evidence about the steps he had taken to find appropriate duties for Ms Taseska. As I have mentioned, Chubb had engaged Ms Hunt, the psychologist, to liaise regularly with Ms Taseska and Ms Suarez in an effort to find work for her away from the security screening area which, it was perceived, was inappropriate for her to return to given the problems she had encountered.

213 Ultimately, and having given the matter real consideration, it was decided to deploy Ms Taseska on a particularly limited part-time basis working as security for QF93, which was a Qantas international flight to Los Angeles. Mr Poskus chose this flight because there was a high level of supervision and the passengers were those who had been checked through immigration control and original screening checks.[197] Mr Poskus had formed the view that given the previous incidents, Ms Taseska should, if possible, not work in the airport environment. If that could not be avoided then he thought that she should not return to her former job.[198]

214 Mr Poskus had no recollection of any complaint by Ms Taseska during this time as to how she was treated by other workers. He said that if there had been, it would have been investigated to see whether the complaint was substantiated and if so, action would have been taken.[199]

215 Mr Poskus explained that the work on QF93 involved the staff meeting (which numbered up to 19 persons) at an assembly point and then being deployed to various positions. [200] Generally, they worked in the seated area of the lounge where there was screening prior to the passengers boarding the aircraft. There was no scanning machine and bags were searched on tables. In addition, there were other security roles (such as checking the plane and the air bridge) performed by the staff.[201] All passengers were searched immediately prior to boarding the flight.

216 The RTW material (confirmed by Ms Suares)[202] reveals that during this period Ms Taseska did not attend work regularly (albeit that her return to work hours were, on any view, minimal). On multiple occasions, she was absent from work (with or without a medical certificate), which shortly before she ceased work in March 2003 was attributed to anxiety.[203]

217 What is singular about this return to work program is that it was closely monitored by Ms Hunt and Ms Suares, with whom it is clear Ms Taseska had a close association.[204] Ms Hunt was unable to be located for the trial,[205] but both her correspondence, and the evidence of Ms Suares, demonstrate that no complaint about bullying or harassment was made by Ms Taseska between December 2012 and March 2003.[206] The only mention of any problem is in Ms Hunt's note of 13 March 2003 which reads as follows: [207]

Silvana is seeing Psychiatrist Dr Wahr on 3/2/03, until then she continues to do 2 days 4 hours. She is reporting ongoing anxiety etc at work. I have sent Dr Wahr info and questions regarding the RTW goal and capacity. Dr Gorgioski GP did not want to do anything before she saw Dr Wahr, so unfortunately we are a bit stuck on 2 days 4 hours until she sees him.

218 Mr Richardson, who was her direct supervisor on this job, had no recollection of any complaint about bullying being made by Ms Taseska.[208]

219 Due to her perceived problems with passengers and co-workers, Ms Taseska stopped working altogether on 17 March 2003.

220 During this period Dr Wahr (or his locum) saw Ms Taseska on three occasions. There was no mention of bullying or harassment. There is a note of Ms Taseska wanting to return to her old job:

she does an easy job. Allowed to express feeling. A person kicked something at work which upset her a lot.[209]

221 In his report of February 2003 to Ms Hunt, Dr Wahr described Ms Taseska complaining of anxiety, chest pain and headaches.

222 On 28 March 2003, Dr Wahr wrote to Professor Jones at the Austin Hospital. The letter included the following:

Ms Taseska came for review today and she weighed 71.8 kg and she told me that 'my liver results are bad - there are early signs of rejection'.

Because she developed a fear that Avanza or Xanax could have produced this she stopped her medication and is now not sleeping, is upset, very nervous and depressed.

She stopped working 'because after I stopped the tablets I could not handle people talking to me.'

She is very distressed and I am writing to you to ask your opinion regarding whether Ms Taseska can resume the psychotropics as outlined above.

Without the psychotropic medication her depression may worsen and she may decompensate.[210]

223 No mention of bullying or harassment was made to Dr Gorgioski during this period. Dr Gorgioski issued a number of medical certificates to Chubb - none of which mentioned bullying and/or harassment.

224 The allegations made by Ms Taseska concerning bullying and harassment are vague and unsubstantiated. As I suspect has become clear, I regard Ms Taseska's credibility as wanting on issues concerning her interaction with staff and passengers. Absent contemporaneous complaints and corroboration, I am not prepared to accept her account of these allegations.

225 By contrast, I accept, without hesitation, the evidence of Mr Poskus and Ms Suares on this issue. Each was a credible witness whose evidence was corroborated by the contemporaneous documentation.

226 The objective facts do not support, and indeed, disprove, Ms Taseska's case. As a result of her previous problems she was placed under close supervision and had many people both within and outside Chubb to whom she could turn to for assistance. The absence of any complaint about bullying or harassment to Mr Poskus, Ms Hunt, Ms Suares and Drs Wahr and Gorgioski, is telling. In particular, the account given by Dr Wahr, only a few weeks or so after she ceased work demonstrates the lack of substance to the complaints made at trial.

227 Whilst one might accept that there was a basis for not telling Mr Poskus or Mr Richardson about the bullying - there is no rational basis for her not telling the psychologist Mr Hunt, or Dr Wahr, who were completely removed from the workplace, of this conduct.

228 In any event, it is difficult to see how bullying or harassment could have occurred. Ms Taseska was at work for a maximum of eight hours (it was often less) a week and her workplace duties were varied and closely supervised. Indeed, the gist of Ms Taseska's complaints at trial related to where she was redeployed, with the alleged bullying running a distant second.[211]

229 Even if Ms Taseska's complaint was that she was placed on inappropriate alternative duties (which was not her pleaded case), I do not regard Chubb's conduct as having been unreasonable. In my view, Chubb (and particularly, Mr Poskus and Ms Suares), did everything it could and perhaps more to place Ms Taseska in a less stressful work environment given her previous confrontations with passengers in domestic security. It was clear from the RTW material and his own testimony, that Mr Poskus was conscious of keeping her away from the stress of the domestic airport environment.[212] He should be complimented, not criticised, for the efforts made to find an appropriate area for Ms Taseska to return on limited duties.

230 The High Court made it clear in Koehler v Cerebos (Aust) Ltd[213] that there are limits to an employer's obligations in relation to an employee's working environment. Here, I think that Chubb behaved in a totally reasonable fashion in endeavouring to look after Ms Taseska. The company was faced with an employee who had become extraordinarily dissatisfied with her working environment and was suffering from considerable anxiety. I am of the view that whatever Chubb management did would have been the subject of complaint by Ms Taseska - even if it was exemplary - which it was.

231 There was no bullying or harassment. There was no breach of duty.

232 I propose to enter judgment in accordance with the following conclusions:

(a) Ms Taseska's knee injury, on or about 16 November 2001, was caused by the negligence of Chubb.

(b) There was no contributory negligence on the part of Ms Taseska.

(c) In proceeding no. 05455 of 2012, Ms Taseska is entitled to damages in the sum of $250,000.

(d) In proceeding no. 03100 of 2011, Ms Taseska's claims for psychological injury in relation to the spray can incident, the lady with the papers incident and the return to work activities are not made out. The proceeding is dismissed.

[3] Exhibit P24, Bundle of reports of Mr Simon Talbot.

[4] Exhibit P20, Bundle of reports of Mr Roger Westh.

[5] Exhibit P21, Bundle of reports of Dr Chris Gorgioski.

[6] Exhibit P22, Bundle of reports of Dr George Wahr.

[7] Exhibit P23, Bundle of reports of Mr Peter Wilson.

[8] Exhibit P42, Report of Dr Fail dated 25 October 2002.

[9] Exhibit P43, Report of Dr Anthony Dunin - dated 4 June 2010.

[10] Exhibit P44, Report of Mr Ian Jones dated 26 May 2010.

[11] Exhibit P46, 3 Reports of Alan Jager - dated 30 January 2008, 30 May 2008, 8 April 2010.

[12] Exhibit P47, 2 Reports of Ian Jackson - dated 20 May 2004, 20 April 2008.

[13] Exhibit D1, Photograph of the Plaintiff in about 2001 in front of a line scan machine.

[14] Exhibit D2, Photograph of the Plaintiff sitting on the scanner for the Tasmanian terminal.

[15] Exhibit D3, L3 Communications Brochure for the Line scan 110-11.

[16] Exhibit D4, Whole of the Austin Hospital file as subpoenaed and provided to the Court including the extracted parts tendered by the defendant.

[17] Exhibit D5, Report of Mr Brendan Dooley - dated 15 December 2009.

[18] Exhibit D6, Report of Dr Noel Cranswick - dated 12 November 2015.

[19] Exhibit D7, Dr Chris Gorgioski's original clinical notes relating to the plaintiff with a photocopy of entries in 2002.

[20] Exhibit D8, 2005 Edition of Security Officer's standing instructions (the Blue Book).

[21] Exhibit D9, Bundle of Return to Work Documents between June 2002 and November 2003.

[28] Report of Dr Chris Gorgioski - dated 5 July 2004.

[30] Exhibit D4, Notes of the Austin Hospital relating to Ms Taseska, T212 - 219, T294.

[34] August 2013 hearing, T50, 2016 hearing, T29.

[35] August 2013 hearing, T49, Exhibit P2, Certificate from Ascet Flexible Training - dated 24 January 2000.

[39] Exhibit P3, Written employment application to Chubb by Ms Taseska.

[40] Exhibit P4, Letter of employment - dated 1 June 2001, August 2013 hearing, T142.11-15.

[41] Exhibit D8, 2005 Edition of Security Officer's standing instructions (the Blue Book), T305, T491 - 492.

[43] August 2013 hearing, T2, 2016 hearing, T3.

[46] August 2013 hearing, T145 - 146, 2016 hearing, T309 - 310, T493.

[57] August 2013 hearing, T155 - 156, 2016 hearing, T314 - 315.

[58] August 2013 hearing, T154, T147 - 148.

[92] T220, T204-205, Exhibit D7, Dr Chris Gorgioski's original clinical notes relating to the plaintiff with a photocopy of entries in 2002.

[96] Exhibit P20, Bundle of reports of Mr Roger Westh.

[99] Exhibit P12, Worker's claim form 2001.

[102] August 2013 hearing, T155, 2016 hearing, T147 - 148.

[108] [2005] HCA 14; (2005) 214 ALR 349.

[109] Ibid [12] (citations omitted).

[110] [2009] HCA 35; (2009) 240 CLR 1.

[112] Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 [124]-[126] (Hayne J). See also Brown v Maurice Blackburn Cashman (2013) 45 VR 22, 58 [200].

[113] Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40.

[116] T263, Exhibit P22, Bundle of reports of Dr George Wahr.

[123] Exhibit P23, Bundle of reports of Mr Peter Wilson.

[125] Exhibit P24, Bundle of reports of Mr Simon Talbot.

[133] Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638, 645 (Deane, Gaudron and McHugh JJ) (Malec), Smith v Gellibrand Support Services Inc [2013] VSCA 368; (2013) 42 VR 197, 211 - 217 [60] - [77].

[135] Exhibit D6, Report of Dr Noel Cranswick dated 12 November 2015.

[142] [1990] HCA 20; (1990) 169 CLR 638.

[144] August 2013 hearing, T160, T162.

[147] August 2013 hearing, T163 - 164.

[151] Exhibit P39, Bundle of emails between June 2002 and April 2003.

[159] Exhibit P16, Worker's claim form - dated 3 September 2002.

[161] Nationwide News Pty Ltd v Naidu [2007] NSWCA 377; (2007) 71 NSWLR 471, 477 [20], 478 [23].

[168] Exhibit P11, Worker's claim form dated 3 September 2002.

[169] Exhibit P14, Passenger screening incident report by Bruce Lowe 18 August 2012.

[181] Exhibit P21, Bundle of reports of Dr Chris Gorgioski.

[184] Exhibit P10, Bundle of Workcover certificates of capacity from 19 August 2002 to 14 March 2003.

[186] Exhibit P22, Report of Dr Wahr - dated 11 October 2002.

[188] August 2013 hearing, T170 - 174, 2016 hearing, T91 - 93.

[207] Exhibit P39, Bundle of emails between June 2002 and April 2003.

[210] Exhibit P22, Bundle of reports of Dr George Wahr (emphasis added).

[213] (2005) 222 CLR 44.