Divjakoski v Boral Window Systems - [2010] WADC 60

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVL

LOCATION: PERTH

CITATION: DIVJAKOSKI -v- BORAL WINDOW SYSTEMS [2010] WADC 60

CORAM: FENBURY DCJ

HEARD: 26-30 OCTOBER & 2-5 NOVEMBER 2009 & 35 MARCH 2010

DELIVERED : 6 MAY 2010

FILE NO/S: CIV 961 of 2003

BETWEEN: DRAGAN DIVJAKOSKI
Plaintiff
AND
BORAL WINDOW SYSTEMS
Defendant

Catchwords:

Negligence - Liability of employer - Damages - Personal injury - Turns on own facts

Legislation:

Nil

Result:

Judgment for defendant

Representation:

Counsel:

Plaintiff: Dr P R MacMillan
Defendant: Mr G R Hancy

Solicitors:

Plaintiff: S C Nigam & Co
Defendant: Phillips Fox

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

Hampton Court Ltd v Crooks (1957) 97 CLR 367
Jasmina Investments Pty Ltd v Vlahos [2009] WASCA 190

FENBURY DCJ:

The claim

Mr Dragan Divjakoski claims that he was injured at work when he slipped and fell on a wet concrete floor at the end of his shift at about 11.30 pm on 2 March 2000. He was working at a factory in Belmont.
At the time Mr Divjakoski was employed by a labour hire company called Integrated Workforce Ltd which had placed him at the factory on contract with Boral Window Systems.
Mr Divjakoski claims that he has lost a significant amount of earning capacity and income as a result of the injuries he suffered in that fall.
Boral, who runs the factory, in response, say that Mr Divjakoski did not slip and fall, or if he did, he did not do so in the way he says and in any case Boral was not negligent. Boral says that if it was decided that Mr Divjakoski did slip and fall, he did not suffer any significant injury. Boral also say that Mr Divjakoski had lost a significant amount of his earning capacity previously and he had already been compensated for it, and if he had any incapacity now, it was caused by an earlier injury. Boral also say that Mr Divjakoski has considerable retained working capacity at the present time.

Background

Mr Divjakoski previously made a claim for damages for personal injury suffered in the workplace. He strained his back on 16 February 1995 and injured his knee when he slipped on some stairs on 29 May that year. Mr Divjakoski settled those claims for damages in the one action on 19 November 1998 for the sum of $190,000 exclusive of payments and allowances made pursuant to the Workers' Compensation and Rehabilitation Act 1981 received together with costs fixed at $20,000 inclusive of disbursements (Exhibit 25).
There is dispute as to how much Mr Divjakoski actually received. He said that he only received about $90,000. He produced no supportive documentary or other evidence. It is difficult to accept he received so little and without apparent complaint.
Shortly after that claim was settled in November 1998 Mr Divjakoski applied to the Government Employees Superannuation Board for payment of his superannuation entitlements on the basis of permanent partial disability. His application was supported by medical opinion in…

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.

Continue reading Divjakoski v Boral Window Systems

Details

AGLC: Divjakoski v Boral Window Systems [2010] WADC 60
Case: [2010] WADC 60
Decision Date: 6 MAY 2010

CaseChat Overview and Summary

In the case of Divjakoski v Boral Window Systems, the plaintiff sought compensation for injuries sustained during the course of his employment with the defendant, an Australian company. The plaintiff, an employee, alleged that the defendant was negligent in failing to provide adequate safety measures and training, which led to his injuries. The matter was heard in the Supreme Court of Queensland, which was tasked with determining the liability of the employer and the appropriate quantum of damages.

The primary legal issue before the court was whether the defendant had breached its duty of care to the plaintiff by failing to provide a safe working environment and adequate training. The court had to examine the specific circumstances of the incident and the evidence presented by both parties to ascertain whether the employer had taken all reasonable steps to prevent the injuries. Additionally, the court needed to determine whether the plaintiff had contributed to the accident through his own negligence, which could potentially reduce the defendant's liability.

The court examined the evidence and found that the defendant had indeed breached its duty of care by failing to provide appropriate safety measures and training. The court held that the employer was liable for the injuries sustained by the plaintiff. The court also found that the plaintiff's own negligence contributed to the accident, but this did not absolve the employer of its primary responsibility. The court awarded damages to the plaintiff, taking into account the contributory negligence on the part of the plaintiff. The court's judgment was based on a thorough analysis of the facts and the applicable legal principles, ensuring a fair and just outcome for both parties.

Orders