Vukelic v Glad Cleaning Service - [2003] NSWCA 253

NEW SOUTH WALES COURT OF APPEAL

CITATION: Vukelic v Glad Cleaning Service [2003] NSWCA 253

FILE NUMBER(S):
41210/02

HEARING DATE(S): 01/09/03

JUDGMENT DATE: 01/09/2003

PARTIES:
Svetislavka Vukelic (Appellant)
Glad Cleaning Service (Respondent)

JUDGMENT OF: Handley JA Tobias JA Young CJ in Eq

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 6588/00

LOWER COURT JUDICIAL OFFICER: Patten DCJ

COUNSEL:
E Romaniuk (Appellant)
C Hoeben SC (Respondent)

SOLICITORS:
Appellant self-represented
TurksLegal (Respondent)

CATCHWORDS:
The appellant was working as a cleaner on her hands and knees near a wall. At knockoff time, she quickly stood up and her head hit a white box protruding from the wall for about 50mm. The appellant sued her employer on the basis that it should have supplied her with an extension tube, which would have permitted her to clean whilst standing. The trial judge dismissed her claim. The appeal was dismissed on the basis that the appellant had not demonstrated that her employer had breached its duty of reasonable care. TORT- Personal injury- Workplace injury- Duty of care- "Reasonable care". PROCEDURAL FAIRNESS- Denial of interpreter- Substitution of poor quality photograph with one of a much better quality. (ND)

LEGISLATION CITED:
Evidence Act 1995, s 30

DECISION:
Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

41210/02
HANDLEY JA
TOBIAS JA
YOUNG CJ in EQ
Monday 1 September 2003

SVETISLAVKA VUKELIC v GLAD CLEANING SERVICE

Judgment

HANDLEY JA: The Court is in a position to give judgment and I will ask Justice Young to give the first judgment.
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.
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.
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.
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…

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 Vukelic v Glad Cleaning Service

Details

AGLC: Vukelic v Glad Cleaning Service [2003] NSWCA 253
Case: [2003] NSWCA 253
Decision Date: 1 September 2003

CaseChat Overview and Summary

The appellant, Ms. Vukelic, sued her employer, Glad Cleaning Service, for personal injuries sustained at work. Ms. Vukelic was injured when, while cleaning on her hands and knees, she quickly stood up and struck her head on a white box protruding from a wall. She contended that her employer had breached its duty of care by failing to supply her with an extension tube that would have allowed her to clean while standing. The trial judge dismissed her claim, and Ms. Vukelic appealed this decision to the Court of Appeal.

The central legal issue before the Court of Appeal was whether Ms. Vukelic had demonstrated that her employer had breached its duty of reasonable care. This involved considering whether the employer ought to have provided an extension tube as a reasonable precaution against the risk of injury. The court also considered, but ultimately found to be irrelevant to the outcome, issues raised concerning the denial of an interpreter and the substitution of a photograph during the proceedings.

The Court of Appeal dismissed the appeal, upholding the trial judge's decision. The court reasoned that Ms. Vukelic had not established a breach of duty by her employer. The evidence did not demonstrate that the employer had failed to take reasonable care for her safety. The court found that the employer's duty of care did not extend to supplying an extension tube in these circumstances. Furthermore, any issues relating to the interpreter or the photograph did not affect the substantive outcome of the case. The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The Evidence Act 1995, s 30 provides that a witness may give evidence about a fact through an interpreter unless the witness can understand and speak the English language sufficiently to enable the witness to understand and to make an adequate reply to questions that may be put about the fact. However, the Judge never had to consider whether the appellant came within s 30 as no application was ever made to him and the appellant’s counsel, despite the appellant saying, “Can I use the interpreter?” determined, doubtless for very good reason, to continue on. There is nothing that can be complained about at this stage. Indeed, even if there had been some problem with the delivery of the appellant’s evidence, I cannot see how that could have had any influence on the result. So far as the significance of the substitution of the photograph Ex 2, likewise, I cannot see how this could affect the result of the trial. In any event, it is to be noted that the transcript shows at p 154 that Ex 2 was supplemented by the substitution of a colour photograph tendered and admitted without objection. The appellant was vague as to exactly what happened. It is true that she was shown the inferior type photograph but again I cannot see how, even if she had been shown the colour photo, the result would have been any different. Accordingly, in my view, despite the fact that Mr Romaniuk put forward everything that could possibly be said for the appellant and despite the sympathy I find for the appellant, the only conclusion I can come to is that the appeal must be dismissed with costs. HANDLEY JA: I agree. TOBIAS JA: I also agree. HANDLEY JA: The order of the court is appeal dismissed with costs.********************

Decision

Reasons for decision

YOUNG CJ

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Ratio Decidendi

Legal Principle Established

Established by: YOUNG CJ

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