Vukelic v Glad Cleaning Service

LOWER COURT District Court JURISDICTION : LOWER COURT 6588/00 FILE NUMBER(S) : LOWER COURT Patten DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 41210/02

HANDLEY JA TOBIAS JA YOUNG CJ in EQ

Monday 1 September 2003 SVETISLAVKA VUKELIC v GLAD CLEANING SERVICE Judgment 1 HANDLEY JA: The Court is in a position to give judgment and I will ask Justice Young to give the first judgment. 2 YOUNG CJ in EQ: This is an appeal from a decision of his Honour Judge Patten of the District Court. His Honour was trying a personal injury claim made by the present appellant against the respondent, her employer, with respect to an injury she suffered when she was at work cleaning office premises belonging to the Optus organisation at North Sydney. 3 The appellant is now thirty-five years of age. She was born in Bosnia and came to Australia on New Year's Eve 1992. She had studied at tertiary level in Yugoslavia. Since arriving in Australia, she has pursued her studies. She studied English at TAFE in 1993 to 1994 and in 1996 she was awarded an Associate Diploma in Arts, Ceramics. In 1997 she commenced a Bachelor of Visual Arts at the University of Sydney, which she completed and graduated in 2002. 4 She is single with a child. She has demonstrated that she is a person who is prepared to work hard to better herself. It would seem that she was working as a cleaner at this particular time, as well as her work as a student, to earn more income. Were sympathy the touchstone of our judgment, I would find no hesitation in finding for her. However, we must make our decision according to legal principles. 5 The basic facts are not in dispute though there has been some debate before us over some details. His Honour said that on Saturday 23 August 1997, by special arrangement, the appellant went to the Optus building at North Sydney, in the course of her employment, to carry out what was called a spring clean, which was to occupy both days of the weekend. If I can pause there. It would seem that there had been some complaint about the standard of cleaning generally and this weekend was put aside for a very thorough clean, including getting fluff out of crevices and making sure that the carpets were completely clean. 6 His Honour said that the appellant, having commenced work at about 8am and having taken a short break for lunch, was, at about 4pm, on her knees in a corner of one of the offices of the building vacuuming fluff with a flexible hose. Having finished apparently what was the last job of the day she commenced to stand up in the course of which she struck her head on a small white box protruding from a wall. The appellant said that that box protruded from the wall by about 50 millimetres. There was no actual evidence as to the height of the box above the floor but his Honour considered that it was probably about one metre from the floor. 7 His Honour said: "The Plaintiff was unclear as to the precise mechanics of the accident, which caused her to bring this action, and, initially I found some difficulty in understanding how it could have occurred, given the protrusion of the box from the wall by only 50 mm. However, a study of Ex 2 suggests she might have been working under the box, parallel to the wall from which it protruded, and facing the door shown in the photograph. On that basis, it is possible to understand how the left side of her head impacted with the underside of the box as she commenced to stand, perhaps rather exuberantly, in celebration of the end of her day's work. I am content to accept, in her favour, as it seems to me, that this is what happened. The Plaintiff claims that as a consequence of the blow to her head, she was quite seriously injured and asserts a breach of the duty of the defendant, her employer, to provide her with a safe place and system of work." 8 The appellant in her evidence before the learned trial judge was not at all sure of exactly what happened, though what his Honour said is as good a summary of what probably happened as one can find. The appellant, on this appeal, does raise some matters which she says caused his Honour to err in some respects, but the overall facts are basically clear. The appellant was on her hands and knees at the end of her work on this Saturday. She stood up quickly and her head hit a protrusion from the wall, a protrusion of about 50 millimetres, or two inches in the old system, which was about a metre from the floor. The probabilities are that this protrusion was the white box which is in various photographs and which appears to house a door release switch, but it really does not matter in the long run what it was. 9 The appellant said in evidence, when asked to describe to the trial judge what had happened: "I was really about like at the finish, like, complete vacuuming, and I was sitting like, how would I say, euphoric to finish the job because, yeah. I needed to go, to actually go to the last floor that day and just to finish and call the supervisor that we're finished and they're coming to picking us up and we would call by phone, and I was really euphoric to say we succeeded, I've done this floor, and I had to meet before I finish ... . I was vacuuming in the way I described, the corners, and I stood up heavily and hit my head on the I would say - I can't describe exactly but very, very hard object on the wall ... which was fixed on the wall." 10 His Honour dismissed the appellant's claim. He said at 36: "An employer is not required, by law, to ensure its employee's safety. The duty of care is governed by the notion of reasonableness. The question is, therefore, whether the Defendant, in the circumstances, exposed the Plaintiff to unreasonable risk by requiring her to work on her knees in the vicinity of the protruding box, and/or by failing to provide her with what the Plaintiff claims would have been more appropriate equipment." 11 His Honour, as I have said, found for the employer. The appellant's counsel, in his submissions in the orange appeal book, told us that the appeal has three essential components, first, a challenge to his Honour's finding of no breach of duty by the employer accepting his Honour's findings of fact; second, a challenge to his Honour findings of fact as to the size of the structure and that the appellant could have, ought to have and did see the structure; third, the challenge to the procedural fairness of the trial as regards, (a) the appellant being denied the use of an interpreter in a context where the questioning was particular and specific; and (b) the use of a poor quality black and white photocopy of a colour photo in cross-examination which, after cross-examination, was replaced by a good quality print of a colour photograph without being shown to the appellant and it was used by his Honour to make findings as to the ease of visual observation of the protruding structure and its surrounds. 12 The appellant asks that this Court find that there be a verdict for the appellant and that the matter be remitted to the District Court for assessment of damages. It would appear that the appeal is as of right as some time earlier an arbitrator had determined the appellant's damages at $157,000. The claim of this being an appeal as of right has not been challenged. 13 On the appeal, Mr Romaniuk of counsel appeared for the appellant, Mr Hoeben of senior counsel for the respondent, and I am indebted to both of them for the clear way in which they put their clients' respective positions. I will deal with each of the three matters that I have outlined above in turn. 14 (1) The court was reminded of the way in which 21st century courts approach matters of negligence. The learned judge was criticised for saying that an employer is not required by law to insure its employees' safety. 15 Of course his Honour was not talking about insurance policies but rather that the rule is that the employer is not required by law to guarantee its employees' safety. The employer's duty is to take reasonable care and the courts, especially in recent years, have been very careful to emphasise that concept of reasonability. 16 It is customary to commence with the words of Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48 that: "The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position." 17 In Liftronic Pty Ltd v Unver (2001) 75 ALJR 867, 871, McHugh J, with whom the Chief Justice agreed said: "His Honour and counsel seemed to have proceeded on the erroneous assumption that, if there was a reasonably foreseeable risk of injury to the plaintiff that could have been avoided by using mechanical means, the defendant was necessarily negligent. But the issue in negligence is always whether reasonable care required the elimination of the risk having regard to the consequences of the risk, the probability of its occurrence and the cost, expense and inconvenience of eliminating it."

His Honour then quoted the passage from Shirt's case which I have already set out. 18 There are other passages to the like effect which it is not necessary to set out but I will simply refer to Tame v NSW (2002) 76 ALJR 1348 at pars 96-99 and Van der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 [83]. 19 Mr Romaniuk referred us to McLean v Tedman (1984) 155 CLR 306 and one can read pages 312 to 313 as imposing quite a considerable duty on an employer to take care for the safety of an employee, not only in cases where the employee executes his work without inadvertence but also where he or she did become inadvertent. 20 However, it is unsafe to take passages from one case and apply them to the other. One must read McLean's case in the context of the particular facts which were quite different to this and one must also remember that one has to read the word "reasonable" into the employer's duty of care. It does not seem to me, with the greatest respect, that McLean's case takes us any distance at all on this appeal. 21 Mr Romaniuk says that there was evidence before the learned Judge that it was very simple to prevent the present accident. He points to the views of a Ms Lusted, an ergonomist, who had given evidence that the defendant should have provided the plaintiff with a vacuum cleaner with a long wand with a removable head and a special narrow head for crevices and that had she been provided with this then she would not have had to go down on her hands and knees. There was also evidence that some other cleaning company did in fact supply such equipment. 22 However, there really was little evidentiary material to show that the work which the appellant was required to do on this particular day could have been done properly in this way in any event. This was a special clean and it was necessary to get out all the fluff that had accumulated in the cracks and crevices between the carpet and the skirting boards. 23 Even if the work could have been done in this manner, it may very well be a case of being wise after the event to say that this particular equipment would have lessened the risk. 24 However, this is not the test. The test is, that one must assess the risk and any reasonable employer might quite properly have said to itself that any reasonable employee would have had to notice this little white box. It might then have reasoned "the usual work system that we use is to have a vacuum cleaner strapped to the back of the employee who may have to go down on her hands and knees to remove fluff, why should we have to vary our work system to deal with the possibility that an employee might inadvertently stand up quickly and hit her head on some protrudence from the wall?" 25 It seems to me that this is the attitude a reasonable employer may well have taken. His Honour took that view. His Honour reminded himself that the premises where the accident occurred were not premises of the employer, but premises of a third party. The work was being performed in daylight. The appellant, even if she may not have had in mind a small plastic box at the time she went down on her hands and knees would have had an opportunity to observe it earlier and that his Honour was quite justified in finding that what Ms Lusted said was counsel of perfection and there was no need for a reasonable employer to implement that particular system of work. 26 (2) The second ground is of no comfort to the appellant. Her counsel submitted that his Honour misdescribed the protrudence on which the appellant struck her head and he misdirected himself as to whether the appellant saw the box before she struck it. I do not accept that his Honour made any error in this respect. 27 It certainly was the case that the appellant was very vague as to just what her head did strike but the evidence at the trial seemed to be fairly clear that the white box was the only relevant object. Other witnesses indicated that this was the object. There was little cross-examination on this material and indeed it is hard to see what else the appellant's head could have struck. The mere fact that she did not admit it was the box really is neither here nor there. It is quite obvious she struck her head on something. 28 Likewise whether she saw it just before she stood up, whether she had it in mind or not, is again nothing from which the appellant could gain any comfort on this appeal. The box was there, she had an opportunity to observe generally and there was no flaw in the basal findings of fact which his Honour made in order to come to the conclusion that the employer had not breached its duty to its employee. 29 (3) The third matter raises two grounds: (a) that the appellant was denied an interpreter; and (b) the substitution of a photograph. 30 As to the first, the transcript shows that the appellant was represented at the trial by very experienced common law counsel. That learned counsel said to the Judge that he would like an interpreter in the Serbo-Croatian language to be sworn in and this happened. His Honour then said: "Does a witness who has graduated from university need an interpreter?" to which counsel replied: "I was going to come to that. I said to your Honour there was a matter that I wanted to deal with about that question. What I propose to do for reasons that I trust will become apparent in my examination in chief of the plaintiff in English, I will ask your Honour for leave for her evidence in chief to continue with the use of an interpreter and I have explained to the plaintiff and my intention is, once the interpreter is used, the interpreter will continue to be used in my examination in chief. So your Honour gets the clearest picture of the plaintiff I would like to commence in English. I have anticipated your Honour's observation and your Honour I will ask for leave in due course and then it is a matter for your Honour and my learned friend about that." 31 Counsel then said to the appellant: "I am now going to ask you some questions without the assistance of the interpreter, do you understand that?" to which the appellant replied: "Yes." 32 The questioning continued until at p 39 counsel was trying to find out from her in chief how she had stood up. He said: "But, please. Did you straighten your legs before you hit your head? Did you lean backwards as you indicated in the witness box, striking your head, or were you rising up from your crouched position and hit your head, is what I want to know?" 33 The appellant said: "Can I use the interpreter?" Her counsel said: "No you can't. Just describe what you did, you were on your hands and knees?" There is no other mention in the transcript as to the requiring of an interpreter. 34 The Evidence Act 1995, s 30 provides that a witness may give evidence about a fact through an interpreter unless the witness can understand and speak the English language sufficiently to enable the witness to understand and to make an adequate reply to questions that may be put about the fact. 35 However, the Judge never had to consider whether the appellant came within s 30 as no application was ever made to him and the appellant's counsel, despite the appellant saying, "Can I use the interpreter?" determined, doubtless for very good reason, to continue on. There is nothing that can be complained about at this stage. Indeed, even if there had been some problem with the delivery of the appellant's evidence, I cannot see how that could have had any influence on the result. 36 So far as the significance of the substitution of the photograph Ex 2, likewise, I cannot see how this could affect the result of the trial. In any event, it is to be noted that the transcript shows at p 154 that Ex 2 was supplemented by the substitution of a colour photograph tendered and admitted without objection. 37 The appellant was vague as to exactly what happened. It is true that she was shown the inferior type photograph but again I cannot see how, even if she had been shown the colour photo, the result would have been any different. 38 Accordingly, in my view, despite the fact that Mr Romaniuk put forward everything that could possibly be said for the appellant and despite the sympathy I find for the appellant, the only conclusion I can come to is that the appeal must be dismissed with costs. 39 HANDLEY JA: I agree. 40 TOBIAS JA: I also agree. 41 HANDLEY JA: The order of the court is appeal dismissed with costs.

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