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

---

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.

---

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…

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.

Continue reading Taseska v MSS Security Pty Ltd

Details

AGLC: Taseska v MSS Security Pty Ltd [2016] VSC 252
Case: [2016] VSC 252
Decision Date: 20 May 2016

CaseChat Overview and Summary

The case of Taseska v MSS Security Pty Ltd involved the plaintiff, Taseska, who suffered an injury while working for the defendant, MSS Security. The dispute centred around the employer's duty of care towards the employee, specifically whether MSS Security adequately fulfilled its obligations to prevent physical and psychological harm in the workplace. The case was heard in the Federal Circuit Court of Australia, where it was necessary to determine the legal responsibilities and liabilities of the employer in relation to the injuries sustained by the plaintiff.

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.

Orders