Sides v Parole Board of New South Wales [2001] NSWCA 45 (12 March 2001)

Last Updated: 13 March 2001

NEW SOUTH WALES COURT OF APPEAL

CITATION: Kozjak v Fairfax Community Newspapers Pty Limited [2001] NSWCA 37

FILE NUMBER(S):

40828/99

HEARING DATE(S): 7 February 2001

JUDGMENT DATE: 07/03/2001

PARTIES:

Karen Maree Kozjak

Fairfax Community Newspapers Pty Limited

JUDGMENT OF: Meagher JA Beazley JA Windeyer J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 8766/97

LOWER COURT JUDICIAL OFFICER: Patten DCJ

COUNSEL:

Appellant: C E O'Connor QC/E Romaniuk

Respondent: C R R Hoeben SC

SOLICITORS:

Appellant: Beilby Poulden Costello

Respondent: Pieterse & Pieterse

CATCHWORDS:

Negligence

Employer duty of care

Unsafe place of work

LEGISLATION CITED:

DECISION:

Appeal dismissed with costs

JUDGMENT:

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40828/99

DC 8766/97

MEAGHER JA

BEAZLEY JA

WINDEYER AJA

Wednesday, 7 March 2001

Karen Maree KOZJAK v FAIRFAX COMMUNITY NEWSPAPERS PTY LIMITED

FACTS

The appellant was employed by the respondent to sell advertising space in the respondent's newspaper. After a short training period the appellant was assigned to canvass advertising in the Wetherill Park Estate. She was required to work unaccompanied. After her first day, the appellant complained to the respondent's manager that she had been harassed by male workers in the estate and felt scared and threatened. On her second day the appellant was raped in an isolated area of the estate.

The appellant brought an action against the respondent employer for negligence in failing to provide a safe system of work. The trial judge found that the appellant had not established that the respondent had breached its duty of care.

ON APPEAL

HELD per Beazley JA (Meagher JA and Windeyer AJA agreeing):

(i) In this case the resolution of whether the respondent breached its duty to provide a safe place of work depended upon the nature of the area, the respondent's experience in relation to sending female sales representatives there, any reputation the area had for danger and the complaints made by the appellant as to her apprehensions;

(ii) Accepting the complaint as made by the appellant, it was not established that permitting or requiring the appellant to canvass alone in the industrial estate exposed her to risk of injury against which the respondent was required to guard;

(iii) Taking into account the previous experience of the employer, the lack of history of physical or sexual violence directed towards women in the area and the fact that the appellant was required to attend the area in broad daylight and attend upon a multitude of operating businesses, the respondent did not fail to take reasonable care for the safety of the appellant.

ORDER

Appeal dismissed with costs

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40828/99

DC 8766/97

MEAGHER JA

BEAZLEY JA

WINDEYER AJA

Wednesday, 7 March 2001

Karen Maree KOZJAK v FAIRFAX COMMUNITY NEWSPAPERS PTY LIMITED

JUDGMENT

1    MEAGHER JA: I agree with Beazley JA.

2    BEAZLEY JA: The appellant/plaintiff sued her employer for damages for injuries she received on 4 March 1994 when she was raped in the course of her employment by two unknown assailants. The trial judge found that the appellant had not established a breach by the respondent of its duty of care and entered a verdict for the respondent. The appellant appeals against his Honour's finding.

Background Facts

3    The appellant, who was 21 at the time of the attack, commenced work for the respondent as a sales representative on 14 February 1994. Her job required her to sell advertising space in the respondent's newspaper to existing clients and to canvass new clients. The canvassing of new clients was known as `cold canvassing'.

4    When she commenced work, the appellant was advised she would undergo four weeks training, which involved accompanying an experienced sales person as that person canvassed old and prospective clients in nominated sales areas. In her first 2 ½ weeks, the appellant accompanied Ms Glenys Gibbons on her rounds in the retail and commercial areas of Fairfield, Canley Vale, Cabramatta and Wetherill Park. On one occasion they visited a garden centre on the outskirts of an industrial estate.

5    After 2 ½ weeks of training, the appellant was given the job of cold canvassing an area known as the Wetherill Park Industrial Estate by the manager at the respondent's Fairfield office, Mr Gatt.

6    The Wetherill Park Industrial Estate was located away from main shopping and residential areas and comprised a mix of small and large businesses. The small businesses included industries such as smash repairers, radiator repairers and air conditioning manufacturers and were conducted out of `module' style premises. The large businesses included multinational companies and warehousing facilities and were conducted out of large freestanding factory premises. The estate was also described in the evidence as containing numerous shopping centres and individual retailers. There was a predominantly male workforce employed in the area.

7    The circumstances whereby the appellant went to the industrial estate were in dispute between the parties. The appellant contended that Mr Gatt directed her to cold canvass the industrial estate to sell advertising for a feature on motor car racing. She said she objected as she felt too inexperienced to cold canvass on her own.

8    Mr Gatt contended that the appellant insisted on being allowed to canvass on her own so that she could earn commissions on any advertising sold. She had been denied commission on sales she had made up to that time in her training period.

9    There was also a dispute as to when the appellant first went to the industrial estate and the circumstances arising out of that.

10    The appellant said she was first directed to go to the industrial estate on 3 March 1994 and whilst there was subjected to wolf whistling and sexually suggestive comments by numerous male employees in the various businesses she visited. She said she felt "uncomfortable". She said she was approached by one group and she jumped back into the car. She described herself as being "scared" and the situation as being "scary".

11    When she returned to the respondent's premises she said Mr Gatt asked her how she had gone. She responded:

"... `[O]h, okay' ... then as I got closer, ... I said to him, `look, you know, I did get some advertising today but ...

...

`is there any chance Glenys is working with me tomorrow ... because look ... I went out there today ... I was harassed ... I was scared ... I just felt threatened, I felt like someone was going to hurt me or, or try to ... look, you know, I don't want to go out there by myself tomorrow ... look don't sent me out there tomorrow. Can Glenys work with me tomorrow'?"

12    She said Mr Gatt told her to "just deal with it" and that Ms Gibbons was not available to help her.

13    Mr Gatt denied the appellant went to the estate on 3 March and further denied the appellant had made any complaint to him about what she had experienced.

14    The appellant said other members of staff were present when she spoke to Mr Gatt. Two of the three other female staff members were called by the respondent and denied there was any such conversation.

15    There was no dispute that the appellant went to the industrial estate on 4 March 1994. The appellant said that on the morning of 4 March she lingered around the office as she was nervous about going out to the estate alone, because of the events of the day before. Eventually, Mr Gatt noticed she was still in the office, swore at her and told her she had the choice between doing the job or having no job. She said as she was keen to have this job, and did not want to give in, she went to the industrial estate as directed.

16    There seems no doubt that the appellant was late leaving the office, although Mr Gatt denied the appellant's version as to her reasons for this.

17    The appellant canvassed one customer without incident. This was a large sporting warehouse outlet at which some females were employed. She then decided to have a drink, attend to some paper work and make some telephone calls. She drove towards the end of the industrial area and parked in a dead end section of the main road to do this. There was no through traffic in this area, although the appellant observed a red laser which was parked nearby and left without incident, and no businesses, save that the Good Year factory backed onto the road. There was no access to the factory from the street where she was parked. There was a dumping area opposite and farmland along the side of the road where she was parked. In short, the area was deserted.

18    As she was seated in her car the appellant was sexually assaulted by two men. After the assault the two men drove away in a yellow four wheel drive with green and white number plates.

19    It was not in dispute that the appellant was raped as alleged.

Trial Judge's Findings

20    The trial judge found that the appellant had first gone to the industrial estate on 3 March and that on her return to the office complained to Mr Gatt and other members of staff "that she was subjected to sexual harassment". His Honour also found that the complaints were "not ... pitched at the level she now suggests".

21    This latter finding is difficult to reconcile with his Honour's acceptance of her complaint. The dispute in the case was whether the complaint was or was not made, not how forcefully it was made and no attention was drawn to this in the evidence. It may be his Honour's evaluation of this evidence was affected by some strenuous cross-examination of Mr Gatt, which asserted a level of complaint greater than that of which the appellant gave evidence. However, it is usually unwise to speculate and having regard to the conclusion I have reached on the appeal, this matter becomes irrelevant.

22    His Honour also found that Mr Gatt had acceded to the appellant's entreaties to allow her to cold canvass the estate.

23    The fact that the appellant had requested to be allowed to do that work does not, of course, absolve the respondent from any breach of its duty of care. The question remains whether there was such breach.

24    It is trite law that an employer has a duty of care to take reasonable care for its employee's safety. That duty may be particularised, relevantly for present purposes, as a duty to provide a safe work system and a safe place of work. The standard is, of course, of reasonableness.

25    As Asprey JA said in Chomentowski v Red Garter Restaurant Ltd (1970) 92 WN (NSW) 1070 at 1080:

"... to answer the question whether a defendant is in breach of the duty of care there must be either evidence to enable them to find that a defendant acting reasonably in the particular circumstances would have contemplated that there was a real risk in a practical sense that an event of the kind which did occur would be likely to occur and also that injury to the plaintiff was likely to occur in the course of that event unless those two matters are such as would be considered reasonably to be within the general knowledge and ordinary intelligence of reasonable men."

26    In Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, Mason J said at 47-8:

"In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position."

27    Whilst both system and place of work are relevant here, the resolution of the former is determined by the latter. If the place where the appellant was required or permitted to canvass was known or ought to have been known to be unsafe, then the respondent will have breached its duty of care to the appellant, unless it had implemented an appropriate system of work to meet the situation. There is no suggestion that it did so.

Was the Place of Work Unsafe?

28    The appellant's case focussed on the incidents of 3 March to establish that the place of work - that is the industrial estate - was unsafe to the knowledge of the respondent, in the sense that an unaccompanied female sales representative might come to physical harm there. In this case the resolution of that question depends upon the nature of the area, the respondent's experience in relation to sending female sales representatives there, any reputation the area had for danger and the complaints made by the appellant as to her apprehensions.

29    The complaints made by the appellant were in relation to unpleasant and disconcerting sexual remarks and wolf whistling by male workers as the appellant entered or came near the male dominated work place. There was no direct evidence that she felt in personal jeopardy of physical attack - although she said she complained to Mr Gatt that she was scared and felt threatened. She also reacted when a group of young men approached. She said she felt scared and jumped back into the car. She did not include that incident in her complaint to Mr Gatt.

30    Another of the respondent's young female employees, Ms Goorkiz had canvassed in the estate for a period of 18 months. She had experienced some wolf whistling but had made no complaint and had not felt it necessary to do so. She said she ignored such behaviour. She had not felt afraid when she went there and had never been threatened.

31    There was no history of that area being a likely place of physical (including sexual) danger. The area, although predominantly industrial, had mixed development including shops and a sporting goods warehouse outlet and there were female employees in some of the businesses.

32    The appellant had tendered a newspaper article reporting the rape of a woman one Sunday near a railway station some suburbs away. However, there was no other evidence relating to this. It occurred in different circumstances and in a different place to that involving the appellant and I do not consider it advanced the appellant's case.

33    In Chomentowski v Red Garter Restaurant Ltd Sugerman P observed at 1073 that in some circumstances, the absence of any previously encountered danger was decisive of the question of whether an employer had breached its duty of care. On the facts in that case, however it was not. That case was very different from this. There, the employee was required to deposit the nightly takings of a large and popular restaurant in the night deposit safe of a bank situated about half a mile from the restaurant. He always did so at about the same time - about 1am. At this time, the street where the bank was, was usually deserted. As might be expected, the Saturday night takings of the restaurant were considerably larger than those of weeknights. In the early hours of one Sunday morning, when the employee went to deposit the takings, the key would not work in the lock. He bent over to ascertain the problem and found it was jammed with pieces of wood. At about that point he was savagely bashed and the night bag of takings was stolen from him. It was assumed by the Court that the employee had been observed over a period of time by the thieves. As Sugerman P said at 1075:

"The plaintiff was a specially attractive target for the evilly-minded. His movements were regular and could be studied and anticipated. They occurred especially on a Saturday night at a time so late that the streets were likely to be deserted and risks of prevention or apprehension to be remote."

34    The evidence was that this task had been carried out, either by the plaintiff or his predecessor at least six hundred times previously. There was also evidence that there had been a huge increase in the crime of assault and robbery over at least a ten year period and was particularly on the increase at the time in question.

35    Sugerman P further noted at1081:

" robberies committed upon persons carrying moneys to and from banks, whether during banking hours or thereafter, are not chance events but come about through the observed regularity of the habits of persons who carry the moneys."

36    The Court was of the opinion that the risk attendant upon the task which the plaintiff was required to carry out was far greater than the normal risk that is encountered by an ordinary pedestrian on the way to the bank - or for that matter walking in any public place.

37    In this case, accepting the complaint as made by the appellant, I do not consider it has been established that permitting or requiring the appellant to canvass alone in the industrial estate exposed her to risk of injury against which the respondent was required to guard. Although the appellant did complain of what might be described as the `atmosphere' to which she felt subjected the previous day, she did not complain of any actual threat of physical harm. Her complaint was that she "just felt threatened ... felt like someone was going to hurt me" (emphasis added). However, she did not advance any reason for her feelings. The previous employee who had attended the area had not encountered any threat of physical harm, or of any behaviour which caused her to complain. Given this previous experience, the lack of a history of physical or sexual violence directed towards women in this particular area, the fact that the appellant was required to attend the area in broad daylight and attend upon a multitude of operating businesses, I am of the opinion that the respondent did not fail to take reasonable care for the safety of the appellant.

38    That disposes of the appeal. I should add that I am also of the opinion that the appellant has not established the necessary causative link between the injury and the employment. There is nothing to suggest that the assailants had any connection with the industrial estate. It was at least equally likely (and I believe more probable) that this was an opportunistic attack by assailants who had driven into the area.

39    None of this is to diminish the seriousness of the assault on the appellant or its consequences. Those matters however are independent of the question of whether the respondent breached its duty of care to her.

40    I would order that the appeal be dismissed with costs.

41    WINDEYER AJA: I agree with Beazley JA.

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LAST UPDATED: 09/03/2001