MIRYANA PALMINA SMOJE v TREND LABORATORIES PTY LIMITED (Formerly known as Trend Cosmetics Pty Limited) [1990] NSWCA 168

MIRYANA PALMINA SMOJE v TREND LABORATORIES PTY LIMITED (Formerly known as Trend Cosmetics Pty Limited)

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS PRIESTLY and CLARKE JJA 30 October 1990, 30 October 1990

[1990] NSWCA 168

NEGLIGENCE — employee claims injury in respect of which appeal brought happened because (1) employer negligently required her to work at unsuitable job — alternately (2) that employer negligent in employing her at all — claim (1) fails on facts — claim (2) then strictly does not arise — reference to Foufoulas v F G. Strang Pty Ltd (1970) 123 CLR 168; Withers v Perry Chain Company Limited (1961) 1 WLR 1314; Paris v Stepney Borough Council 51 AC 367; Bankstown Foundry PtY Ltd v Braistina (1986) 160 CLR 301.

INTEREST — at first instance appellant had succeeded on a small claim in respect of which judge had apparently not awarded interest — claim not otherwise challenged on appeal — no reason apparent why interest should not be awarded — Falkner v Bourke (CA, unreported, 29/5/1990) referred to — appeal upheld on this point.

Priestley JA The appellant in this appeal was employed by the respondent as a process worker between August 1979 and December 1981. In 1985 she brought proceedings against the respondent in which she claimed damages for three injuries said to be suffered by her because of the respondent's negligence as her employer. The first was said to have happened on 10 October 1980, the second on 24 February 1981 and the third on 29 October 1981. Her claims were heard by Mr Justice Cole who found against her on the first and third and gave judgment for her on the second for the sum of $2,000.

She appealed on various grounds but in the hearing of the appeal the pressed only two. The first concerned the fact that no interest had been allowed on the claim that resulted in the judgment in her favour and the second asserted that she was entitled to a new trial in regard to her claim for damages for the third injury.