Silvana Taseska v MSS Security Pty Ltd - [2016] VSCA 193

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2016 0090

SILVANA TASESKA	Applicant
V
MSS SECURITY PTY LTD	Respondent

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JUDGES:	WEINBERG, HANSEN and KAYE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 August 2016
DATE OF JUDGMENT:	12 August 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 193	First Revision: 12 August 2016
JUDGMENT APPEALED FROM:	Taseska v MSS Security Pty Ltd [2016] VSC 252 (J Forrest J)

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NEGLIGENCE – Appeal – Application for leave to appeal – Applicant employed by respondent as security officer at airport – Alleged negligence against employer in respect of three separate incidents – Trial judge not satisfied incidents occurred as claimed by applicant – Not satisfied any breach of duty of care by respondent – Refusal by trial judge of application for adjournment – Failure by respondent to call particular witness – Whether explanation by respondent for absence of witness contradicted – Whether relevant documents not available to applicant – Whether trial judge’s factual findings supported by evidence – Whether credibility findings by judge consistent – Application for leave to appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
Applicant in person
For the Respondent	Mr M F Wheelahan QC with Ms M O’Sullivan	Thompson Geer Lawyers

WEINBERG JA
HANSEN JA
KAYE JA:

The applicant, in two proceedings in the Trial Division, claimed damages for personal injuries which, she alleged, she suffered in the course of her employment with the respondent (formerly known as Chubb Security) as a security officer at Melbourne Airport between June 2001 and March 2003.[1]
[1]Taseska v MSS Security Pty Ltd [2016] VSC 252 (‘Reasons’).

The two proceedings were heard together before the same judge. In proceeding SCI 2012 No 05455 (‘the Second Proceeding’), the applicant claimed damages for an injury to her left knee, which she sustained on 16 November 2001 while lifting a bag in the course of a screening operation at the airport. The judge upheld the applicant’s claim, and awarded her pain and suffering damages in the sum of $250,000.

In proceeding SCI 2011 No 03100 (‘the First Proceeding’), the applicant claimed damages in respect of three separate incidents or circumstances, namely:

(a) Psychological trauma on or about 13 June 2002, which she alleged she sustained as a result of an altercation with a passenger, in which the passenger used a spray can to spray her (‘the spray can incident’);

(b) Psychological and physical trauma on 18 August 2002 which the applicant claimed she sustained as a result of another altercation with a passenger (‘the lady with the papers incident’);

(c) Bullying and harassment to which the applicant claimed that she was subjected by fellow workers when she returned to work on reduced duties for eight hours per week for a period of three months from December 2002 to March 2003 (‘the return to work events’).

The judge dismissed the applicant’s claims in respect of each of those three events or circumstances.

As a consequence, on 20 May 2016, the judge made the following orders:

(1)In the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] VSCA 193
Decision Date: 12 August 2016

CaseChat Overview and Summary

The appellant, Silvana Taseska, was employed by MSS Security Pty Ltd as a security officer at an airport. Taseska alleged that she suffered injuries during three separate incidents while working for MSS Security and sought damages for negligence. The matter proceeded to trial before a judge without a jury. The trial judge found that the incidents did not occur as claimed by Taseska and, even if they did, MSS Security was not negligent. The judge refused Taseska’s application for an adjournment on the basis that she had not shown good cause for the delay and that the absence of a key witness, for whom MSS Security had provided no explanation, did not prejudice the appellant. The judge also held that the appellant had not been prejudiced by the absence of relevant documents, which MSS Security had failed to provide.

Taseska appealed the decision, contending that the trial judge had erred in finding that the incidents did not occur as claimed, in finding that there was no breach of duty of care by MSS Security, and in refusing the adjournment. She argued that the trial judge had not properly considered the evidence and had made inconsistent findings regarding the credibility of witnesses. MSS Security opposed the appeal, submitting that the trial judge’s findings were supported by the evidence and that there were no errors of law.

The court dismissed the application for leave to appeal. It found that the trial judge had carefully considered the evidence and had provided sufficient reasons for his findings. The court held that the trial judge had not erred in finding that the incidents did not occur as claimed by Taseska and that there was no breach of duty of care by MSS Security. The court also found that the trial judge had not erred in refusing the adjournment, as Taseska had not shown good cause for the delay and had not been prejudiced by the absence of the key witness or the relevant documents. The court concluded that the appeal did not raise any questions of law of general public importance and that leave to appeal should be refused.

The appeal was dismissed, and the decision of the trial judge was upheld. The trial judge’s findings were affirmed, and the appellant’s claims against MSS Security were dismissed.

Orders