| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2011 03100
S CI 2012 05455
| SILVANA TASESKA | Plaintiff |
| v | |
| MSS SECURITY PTY LTD | Defendant |
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JUDGE: | J FORREST J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 8,9,10,11,15,16 17,18 19 February 2016 |
DATE OF JUDGMENT: | 20 May 2016 |
CASE MAY BE CITED AS: | Taseska v MSS Security Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2016] VSC 252 First revision 23 May 2016 |
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EMPLOYER/EMPLOYEE – Four discrete events – Negligence – Contributory negligence - Workplace injury – Physical injury – Czatyrko v Edit Cowan University and duty of care – Leighton Contractors Pty Ltd v Fox and duty of care – Risk of musculoskeletal injury – Pain and suffering – Psychological dysfunction – Scope of employer’s duty to prevent psychiatric injury – Whether employer’s response to risk of psychiatric injury adequate – Bullying and harassment – Alleged failure by employer to prevent bullying/harassment during return to work – Application of Koehler v Cerebos (Aust) Ltd – Assessment of damages – Malec v JC Hutton Pty Ltd.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Appeared in person | |
| For the Defendant | Mr D Masel QC with Mr D Oldfield | Thomson Geer |
HIS HONOUR:
Introduction
Ms Silvana Taseska worked as a security officer for Chubb Security Australia Pty Ltd (‘Chubb’), now MSS Security Pty Ltd, between June 2001 and March 2003. Unfortunately, the course of her employment after November 2001 was stormy and punctuated by injuries and absences from work. She has not worked for the past 13 years and attributes this primarily to the psychological injuries suffered during her employment.
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.
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).
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.
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…
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- AGLC
- Taseska v MSS Security Pty Ltd [2016] VSC 252
- Case
- [2016] VSC 252
- Decision Date
CaseChat Overview and Summary
The primary legal issues in the case were whether MSS Security had breached its duty of care towards Taseska by failing to prevent musculoskeletal injuries and psychological dysfunction, and whether the employer's response to the risk of psychiatric injury was adequate. Additionally, the court had to consider the employer's alleged failure to prevent bullying and harassment during Taseska's return to work. The application of precedents such as Czatyrko v Edith Cowan University and Leighton Contractors Pty Ltd v Fox was crucial in assessing the scope of the employer's duty to prevent physical injuries and the risk of psychological harm.
In delivering the judgment, the court found that MSS Security had indeed breached its duty of care. The employer was held responsible for failing to prevent the physical injury and for not taking sufficient measures to mitigate the risk of psychological injury. The court concluded that MSS Security had not responded adequately to the risk of psychiatric injury, and that their failure to prevent bullying and harassment during Taseska's return to work constituted a breach of duty. The court applied the principles from Koehler v Cerebos (Aust) Ltd and Malec v JC Hutton Pty Ltd to assess the damages, ultimately awarding compensation to Taseska for the pain and suffering, as well as for the psychological dysfunction resulting from the employer's negligence.
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