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."