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Zlateska v Consolidated Cleaning Services Pty Ltd

Zlateska v Consolidated Cleaning Services Pty Ltd

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

No. 3760 of 2005

LENKA ZLATESKA
	Appellant
v.
CONSOLIDATED CLEANING SERVICES PTY LTD & NRMA WORKERS COMPENSATION (VIC) LTD
	Respondents

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JUDGES:	MAXWELL, A.C.J., EAMES and REDLICH, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 March 2006
DATE OF JUDGMENT:	7 July 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 141

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ACCIDENT COMPENSATION – Entitlement to statutory benefits – Inquiry said to have been caused by act of employer - Worker with non-compensable knee injury required by supervisor to obtain medical clearance before continuing work as a cleaner – Worker psychologically vulnerable and traumatised by request – Whether worker suffered injury “arising out of employment” – Sufficient for worker to show that employer’s act (or omission) was a cause of the injury – Need not be sole or dominant cause - Question of causation to be determined as a matter of common sense – Worker not required to prove that employment created “special exposure” to injury or “special risk” of injury – Employer must take worker as it finds her – Special vulnerability of worker does not affect causation –Not necessary to prove that work event a significant contributing factor to injury – Accident Compensation Act 1985 s.82(1).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R.P. Gorton, Q.C. with Mr R.C. Forsyth	John Dellios & Associates
For the Respondents	Mr J.J. Noonan, S.C. with Mr I.S. Gourlay	Wisewoulds

MAXWELL, A.C.J.,
EAMES, J.A.,
REDLICH, J.A.:

The judgment of the Court was delivered by Eames, J.A.

This appeal raises for decision a question concerning the interpretation of s.82(1) of the Accident Compensation Act 1985 (“the Act”). The analysis which follows is, of necessity, lengthy and detailed. It may therefore be of assistance if we first summarise the conclusions we have reached on the interpretation issues. Before we do so, we should identify more precisely the question which arises.

Subsection 82(1), as in force at the time of the injury sustained by the appellant (“Z”), provided as follows:

“(1) If there is caused to a worker an injury arising out of or in the course of any employment and if the worker’s employment was a significant contributing factor the worker shall be entitled to compensation in accordance with this Act.”

The underlined words were inserted by Act 67/1992.

On its face, the provision comprised two limbs, and the entitlement to compensation depended on the worker satisfying both. That is, to establish the entitlement, the worker needed to show that –

(a) the injury arose out of or in the course of his/her employment; and

(b) the employment was a significant contributing factor to the injury.

In May 2002, however, this Court held that the second limb of s.82(1) was inoperative. In dismissing an appeal from Ashley J,[1] the Court adopted his Honour’s reasons for concluding that the ”significant contributing factor” requirement was intended to apply only where the injury in question fell within paragraph (b) or (c) of the definition of “injury”[2]. (At that time, each…

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: [2006] VSCA 141
Decision Date: 7 July 2006

CaseChat Overview and Summary

In the matter of Zlateska v Consolidated Cleaning Services Pty Ltd, the Queensland Court of Appeal was tasked with determining whether the claimant, Zlateska, was entitled to statutory accident compensation benefits following a psychological injury she claimed was caused by an act of her employer. Zlateska, who had a pre-existing non-compensable knee injury, was required by her supervisor to obtain medical clearance before continuing her work as a cleaner. She experienced significant psychological distress and trauma as a result of this request, leading her to claim an entitlement to compensation.

The legal issues before the court were centred around the definition and application of the phrase "injury arising out of employment" as stipulated in section 82(1) of the Accident Compensation Act 1985. The court needed to determine whether Zlateska's psychological injury could be deemed to have arisen out of her employment and whether her employer's actions constituted a sufficient cause of that injury. Specifically, the court had to consider if Zlateska needed to prove that her employment created a special exposure or risk of injury, or if it was enough to show that her employer's act or omission was a cause of the injury.

The court held that Zlateska did not need to prove that her employment created a special exposure or risk of injury for her to be entitled to compensation. Instead, it was sufficient for her to show that her employer's act or omission was a cause of her injury. The court emphasised that the employer must take the employee as they find them, and the employee's special vulnerability does not affect the causation of the injury. Additionally, it was not necessary for Zlateska to prove that the work event was a significant contributing factor to her injury. The court concluded that the question of causation should be determined as a matter of common sense.

The court's decision ultimately favoured Zlateska, finding that her employer's actions were indeed a cause of her psychological injury, and that she was entitled to statutory accident compensation benefits. The court's reasoning established an important precedent in the interpretation of "injury arising out of employment" and the standard of proof required for such claims.

Orders