Brozinic v ISS Facility Services Australia Ltd

[2014] ACTSC 8

DRAGO BROZINIC v ISS FACILITY SERVICES AUSTRALIA LIMITED and THE FEDERAL CAPITAL PRESS OF AUSTRALIA PTY LIMITED trading as THE CANBERRA TIMES

[2014] ACTSC 8 (7 February 2014)

NEGLIGENCE – breach of duty – standard of care – plaintiff injured by internal fire door on second defendant’s premises – where second defendant had actual knowledge of risk – whether the second defendant was negligent in failing to replace internal fire door with a fire door with a glass insert – building compliant with relevant standards at all times

DAMAGES – personal injury – assessment of damages – double compensation – settlement between plaintiff and first defendant – no apportionment of settlement between incidents – whether plaintiff has discharged onus to negative double compensation

DAMAGES – personal injury – whether disability caused by pre-existing rotator cuff pathology, earlier incident or events the subject of claim for damages

Civil Law (Wrongs) Act 2002 (ACT) ss 41, 42, 43, 44, 45, 168

Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420
Australian Safeway Stores v Zaluzna (1987) 162 CLR 479
Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
Baxter v Obacelo Pty Ltd (2001) 205 CLR 635
Caltex Tanker Co (Aust) Pty Ltd v Kerr [1999] NSWCA 115
Harris v Commissioner for Social Housing (2013) 8 ACTLR 98
Jones v Bartlett (2000) 205 CLR 166
McLaurin v Federal Commissioner of Taxation (1961) 104 CLR 381
Neindorf v Junkovic (2005) 80 ALJR 341
Phillis v Daly (1988) 15 NSWLR 65
SAS Trustee Corporation v Budd [2005] NSWCA 366
Shaw v Thomas (2010) NSWCA 169
Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574
Vairy v Wyong Shire Council (2005) 223 CLR 422
Watts v Rake (1960) 108 CLR 158
Waverley Council v Ferreira [2005] Aust Torts Reports 81-818

No.  SC 457 of 2011

Judge:             Master Mossop
Supreme Court of the ACT

Date:              7 February 2014

IN THE SUPREME COURT OF THE     )
  )          No.  SC 457 of 2011
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN:DRAGO BROZINIC

Plaintiff

AND:ISS FACILITY SERVICES AUSTRALIA LIMITED

First Defendant

AND:THE FEDERAL CAPITAL PRESS OF AUSTRALIA PTY LIMITED trading as THE CANBERRA TIMES

Second Defendant

ORDER

Judge:  Master Mossop
Date:  7 February 2014
Place:  Canberra

THE COURT ORDERS THAT:

1. Judgment be entered for the second defendant.
2. The plaintiff is to pay the second defendant’s costs.
3. Order 2 does not take effect if either party notifies my associate by email within seven days of the date of these orders that it wishes to be heard in relation to costs.

Introduction

1. The plaintiff was employed by ISS Facility Services Australia Limited, the first defendant.  He was a cleaning supervisor.  His formal title was Regional Manager Client Services – ACT.  One aspect of his duties was to deliver cleaning supplies to the premises where company cleaners worked.  On 8 April 2010 the plaintiff was delivering cleaning supplies to the premises of the second defendant, The Federal Capital Press of Australia Pty Limited in Fyshwick.  When entering the…