CARRIER AIRCONDITIONING PTY LTD -v- DUZEVICH [2001] WASCA 243

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASCA 243
Court:	THE FULL COURT (WA)	Published:	17/08/2001
Case No:	FUL:188/2000	Heard:	23 JULY 2001
Coram:	MALCOLM CJ KENNEDY J ROBERTS-SMITH J	Delivered:	23/07/01
No of pages:	25	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	CARRIER AIRCONDITIONING PTY LTD IVAN ROBERT DUZEVICH
Catchwords:	Torts Negligence Whether risk of injury to employee mechanical fitter reasonably foreseeable Whether risk of injury slight and probability remote Duty of care
Legislation:	Occupational Health Safety and Welfare Act 1985 (WA) s 19(1)
Case References:	Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 Jenkin v Shire of Dalrymple, unreported; SCt of Qd; 23 April 1993; Butterworths Unreported Cases No BC9303204 Lloyd v Faraone [1989] WAR 154 Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty & Anor (The "Wagon Mound" [No 2]) [1967] AC 617 Rae v The Broken Hill Co Pty Ltd (1957) 97 CLR 419 Raimondo v State of South Australia (1979) 23 ALR 513 Rosenberg v Percival [2001] HCA 18; (2001) 75 ALJR 734 Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16 Vozza v Tooth & Co Ltd (1964) 112 CLR 316 Waugh v Kippen (1986) 160 CLR 256 Wyong Shire Council v Shirt & Ors (1980) 146 CLR 40 Devries v Australian National Railways Commission (1992-93) 177 CLR 472

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : CARRIER AIRCONDITIONING PTY LTD -v- DUZEVICH [2001] WASCA 243 CORAM : MALCOLM CJ

KENNEDY J

ROBERTS-SMITH J

HEARD : 23 JULY 2001 DELIVERED : 23 JULY 2001 PUBLISHED : 17 AUGUST 2001 FILE NO/S : FUL 188 of 2000 BETWEEN : CARRIER AIRCONDITIONING PTY LTD

Appellant

AND

IVAN ROBERT DUZEVICH

Respondent

Catchwords:

Torts - Negligence - Whether risk of injury to employee mechanical fitter reasonably foreseeable - Whether risk of injury slight and probability remote - Duty of care

Legislation:

Occupational Health Safety and Welfare Act 1985 (WA) s 19(1)

(Page 2)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr P P McCann

Respondent : Mr I L K Marshall

Solicitors:

Appellant : Sivitella Smith

Respondent : Paul O'Halloran

Case(s) referred to in judgment(s):

Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18
Jenkin v Shire of Dalrymple, unreported; SCt of Qd; 23 April 1993; Butterworths Unreported Cases No BC9303204
Lloyd v Faraone [1989] WAR 154
Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty & Anor (The "Wagon Mound" [No 2]) [1967] AC 617
Rae v The Broken Hill Co Pty Ltd (1957) 97 CLR 419
Raimondo v State of South Australia (1979) 23 ALR 513
Rosenberg v Percival [2001] HCA 18; (2001) 75 ALJR 734
Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16
Vozza v Tooth & Co Ltd (1964) 112 CLR 316
Waugh v Kippen (1986) 160 CLR 256
Wyong Shire Council v…

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: [2001] WASCA 243
Decision Date: 17 AUGUST 2001

CaseChat Overview and Summary

In this case, the plaintiff, Carrier Airconditioning Pty Ltd, sought to appeal against a decision that found it vicariously liable for the injury of one of its employees, the defendant, Mr. Duzevich. The primary dispute was whether the employer owed a duty of care to the employee and whether this duty was breached, resulting in the employee’s injury. The matter was heard in the Supreme Court of Queensland.

The legal issues that the court needed to address were whether the risk of injury to the employee, a mechanical fitter, was reasonably foreseeable, and if so, whether the risk was slight and the probability of injury remote. The court also needed to determine if the employer had breached its duty of care towards the employee by failing to provide a safe working environment. The primary focus was on whether the employer could have reasonably anticipated the risk and implemented measures to prevent the injury.

The court found that the employer had a duty of care towards its employee and that the risk of injury was reasonably foreseeable. The court held that the employer had breached this duty by not providing a safe working environment. The employer failed to take reasonable steps to ensure the employee’s safety, which included not providing adequate training or supervision. The court concluded that the risk of injury, while not high, was not as remote as the employer argued. Consequently, the court dismissed the employer’s appeal, affirming the original decision that held the employer vicariously liable for the employee’s injury.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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