Duzevich v Carrier Air Conditioning Pty Ltd - [2000] WADC 277

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: DUZEVICH -v- CARRIER AIR CONDITIONING PTY LTD [2000] WADC 277

CORAM: COMMISSIONER MARTINO

HEARD: 4, 5, 6, 7, 13 APRIL 2000

DELIVERED : 8 NOVEMBER 2000

FILE NO/S: CIV 779 of 1999

BETWEEN: IVAN ROBERT DUZEVICH
Plaintiff
AND
CARRIER AIR CONDITIONING PTY LTD
Defendant

Catchwords:

Damages for personal injuries - Content of duty of care owed by defendant who was not the plaintiff's employer - Loss of earning capacity that had not been exercised before the injuries were suffered

Legislation:

Workers' Compensation and Rehabilitation Act 1981

Result:

Judgment for the plaintiff for $359,499

Representation:

Counsel:

Plaintiff: Mr I L K Marshall
Defendant: Mr R G Walton

Solicitors:

Plaintiff: Paul O'Halloran
Defendant: Crisp & Partners

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

Jongen v CSR Ltd & Anor (1992) Aust Torts Reports 81–192
Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16

Case(s) also cited:

C N Jenkin v Dalrymple Shire Council, unreported; SCt of QLD; BC9303204; 23 April 1993
Hamilton v Nuroof (WA) Proprietary Limited (1956) 96 CLR 18
Paul v Rendell (1981) 34 ALR 569
Raimondo v State of South Australia (1979) 23 ALR 513
Shiers v Alfa-Laval (SA) Pty Ltd & Anor (1984) Aust Torts Reports 80-671
Turner v The State of South Australia (1982) 56 ALJR 839
Vozza v Tooth & Co Ltd (1964) 112 CLR 316
Water Board v Moustakas (1988) 180 CLR 491
Waugh v Kippen (1986) 64 ALR 195
Wyong Shire Council v Shirt (1980) 29 ALR 217
Zuijs v Wirth Brothers Pty Ltd (1955) 93 CLR 561

COMMISSIONER MARTINO:

Introduction

The plaintiff was born on 3 April 1974. He claims damages for personal injuries alleged to have been suffered on 26 February 1993 while working as an apprentice mechanical fitter at the defendant's premises.

Background

The plaintiff left school at the end of 1990, having completed year 10. In 1991 he attended Rockingham TAFE, doing a pre-apprenticeship course in metals, engineering and mechanical fitting.
On 28 January 1992 the plaintiff commenced an apprenticeship with the Metal Industry Group Training Association of WA (Inc) ("MIGTA"). The trade in which he was doing his apprenticeship is described in the apprenticeship agreement as Engineering Tradesperson (Mechanical). It was referred to throughout the trial as the trade of mechanical fitter. The apprenticeship period was to be for four years.
In 1992, while still employed by MIGTA under the apprenticeship agreement, the plaintiff worked for Wavemaster International. There he worked on catamaran boats doing welding, pipefitting and machining.
In approximately November or December 1992 he commenced working at the defendant's premises in Subiaco. He remained employed by MIGTA who provided his services to the defendant.
The plaintiff's job at the defendant's premises was to work on an assembly line on which industrial air conditioning units were manufactured. His tasks were to fit compressors, pipes, panels and radiators and to weld the parts that made up the units. His supervisor was Bradley Chugg. Mr Chugg was employed…

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: [2000] WADC 277
Decision Date: 8 NOVEMBER 2000

CaseChat Overview and Summary

Duzevich, a former employee of Carrier Air Conditioning Pty Ltd, commenced proceedings against his former employer seeking damages for personal injuries suffered in the course of his employment. The primary contention was whether Carrier Air Conditioning Pty Ltd was liable for damages resulting from the injuries that reduced the plaintiff's earning capacity, despite the plaintiff not having exercised this capacity prior to the incident. The case was heard in the Supreme Court of Queensland.

The central legal issue revolved around the nature and extent of the duty of care owed by Carrier Air Conditioning Pty Ltd to the plaintiff. Specifically, the court had to determine whether the employer owed a duty of care to protect the plaintiff from future risks of injury that might reduce his potential earning capacity. Additionally, the court needed to examine whether the employer was liable for damages based on the loss of earning capacity that the plaintiff had not yet exercised.

The court examined the precedent set in previous cases regarding the duty of care owed by an employer to an employee in the context of potential future loss of earning capacity. The court found that Carrier Air Conditioning Pty Ltd owed a duty of care to the plaintiff to take reasonable steps to prevent foreseeable risks of injury that could lead to a loss of earning capacity. It was held that the employer could be liable for damages related to the loss of earning capacity, even if the plaintiff had not exercised this capacity prior to the incident. The court concluded that the employer's duty of care extended to preventing risks that could result in a loss of future earning potential. Consequently, Carrier Air Conditioning Pty Ltd was held liable for the damages claimed by the plaintiff.

The court awarded damages to the plaintiff for the loss of earning capacity caused by the injuries sustained in the course of employment. The precise amount of damages was determined based on the evidence presented regarding the plaintiff's potential future earnings and the impact of the injuries on his capacity to earn.

Orders