Kozjak v Fairfax Community Newspapers Pty Limited

[2001] NSWCA 37

Reported Decision: [2001] ACL Rep 300 NSW 20
[2001] ACL Rep 450 NSW 13

New South Wales

Court of Appeal

CITATION:	Kozjak v Fairfax Community Newspapers Pty Limited [2001] NSWCA 37
FILE NUMBER(S):	CA 40828/99
HEARING DATE(S):	7 February 2001
JUDGMENT DATE:	7 March 2001
PARTIES :	Karen Maree Kozjak Fairfax Community Newspapers Pty Limited
JUDGMENT OF:	Meagher JA at 1; Beazley JA at 2; Windeyer J at 41

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	8766/97
LOWER COURT JUDICIAL OFFICER :	Patten DCJ

COUNSEL:	Appellant: C E O'Connor QC/E Romaniuk Respondent: C R R Hoeben SC
SOLICITORS:	Appellant: Beilby Poulden Costello Respondent: Pieterse & Pieterse
CATCHWORDS:	Negligence - Employer duty of care - Unsafe place of work
CASES CITED:	Chomentowski v Red Garter Restaurant Ltd (1970) 92 WN (NSW) 1070 Wyong Shire Council v Shirt (1980) 146 CLR 40
DECISION:	Appeal dismissed with costs

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40828/99
DC 8766/97

MEAGHER JA
BEAZLEY JA
WINDEYER AJA

Wednesday, 7 March 2001


Karen Maree KOZJAK v FAIRFAX COMMUNITY NEWSPAPERS PTY LIMITED



FACTS

The appellant was employed by the respondent to sell advertising space in the respondent’s newspaper. After a short training period the appellant was assigned to canvass advertising in the Wetherill Park Estate. She was required to work unaccompanied. After her first day, the appellant complained to the respondent’s manager that she had been harassed by male workers in the estate and felt scared and threatened. On her second day the appellant was raped in an isolated area of the estate.

The appellant brought an action against the respondent employer for negligence in failing to provide a safe system of work. The trial judge found that the appellant had not established that the respondent had breached its duty of care.

ON APPEAL

HELD per Beazley JA (Meagher JA and Windeyer AJA agreeing):

(i) In this case the resolution of whether the respondent breached its duty to provide a safe place of work depended upon the nature of the area, the respondent’s experience in relation to sending female sales representatives there, any reputation the area had for danger and the complaints made by the appellant as to her apprehensions;

(ii) Accepting the complaint as made by the appellant, it was not established that permitting or requiring the appellant to canvass alone in the industrial estate exposed her to risk of injury against which the respondent was required to guard;

(iii) Taking into account the previous experience of the employer, the lack of history of physical or sexual violence directed towards women in the area and the fact that the appellant was required to attend the area in broad daylight and attend upon a multitude of operating businesses, the respondent did not fail to take reasonable care for the safety of the appellant.

ORDER

Appeal dismissed with costs

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40828/99
DC 8766/97

MEAGHER JA
BEAZLEY JA
WINDEYER AJA

Wednesday,…