Jancevski v WR Engineering Pty Ltd
[2018] ACTCA 34
•24 August 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Jancevski v WR Engineering Pty Ltd |
Citation: | [2018] ACTCA 34 |
Hearing Date: | 6 August 2018 |
DecisionDate: | 24 August 2018 |
ReasonsDate: | 24 August 2018 |
Before: | Murrell CJ, Elkaim and Charlesworth JJ |
Decision: | The appeal is dismissed. |
Catchwords: | TORTS – NEGLIGENCE - Standard of Care – standard owed by employer to employee – standard turning on facts of the particular case – whether employer provided employee with adequate training and warning in respect of a foreseeable and not insignificant risk of injury – adequate training provided. |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT) ss 40, 42 and 43 |
Cases Cited: | Czatyrko v Edith Cowan University [2005] HCA 14; 79 ALJR 839 Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192 Wyong Shire Council v Shirt (1980) 146 CLR 40 |
Parties: | Nickola Jancevski (Appellant) WR Engineering Pty Ltd ATF WR Engineering Trust (Respondent) |
Representation: | Counsel Mr I Roberts SC (Appellant) Mr A Muller (Appellant) Mr K Rewell SC (Respondent) |
| Solicitors Maliganis Edwards Johnson (Appellant) Moray and Agnew (Respondent) | |
File Number(s): | ACTCA 35 of 2017 |
Decision under appeal: | Court/Tribunal: Supreme Court of the Australian Capital Territory Before: Ashford AJ Date of Decision: 21 July 2017 Case Title: WR Engineering Pty Ltd ATF WR Engineering Trust v Nickola Jancevski Citation: [2017] ACTSC 202 |
THE COURT:
The respondent, WR Engineering Pty Ltd (WR), operates a business in the Australian Capital Territory for the supply and installation of residential and commercial garage doors. In 2012, the appellant, Mr Jancevksi, was employed by WR as a tradesperson.
About nine weeks after his employment commenced, Mr Jancevski undertook rectification works on a garage door he had previously installed in Chapman. The door mechanism included two highly tensioned springs anchored to the garage wall by a bracket. When Mr Jancevski loosened two of the bolts from the bracket, the considerable tension in the springs caused the bracket to break away from the wall. The bracket struck Mr Jancevksi, causing an injury to his left hand.
Mr Jancevski made a successful claim for damages against WR under the Civil Law (Wrongs) Act 2002 (ACT) (the Act). Relevantly, the trial Magistrate found that WR had breached its duty of care by failing to provide Mr Jancevski with adequate training in respect of the risks associated with the energy stored in the springs: Jancevski v WR Engineering ATF WR Engineering Trust [2016] ACTMC 8. The learned Magistrate found Mr Jancevski guilty of contributory negligence and so reduced the award of damages by 50 per cent.
On appeal, a single judge of the Supreme Court held that, on the facts found by the Magistrate, WR had provided Mr Jancevski with adequate training and so had not breached its duty of care. The Magistrate’s orders were set aside and judgment was entered for WR: WR Engineering Pty Ltd ATF WR Engineering Trust v Nickola Jancevski [2017] ACTSC 202. This is an appeal from that judgment.
Two issues arise. The first is whether the learned appeal judge erred in concluding that WR had not breached its duty of care. The second issue (arising on a Notice of Contention) is whether WR’s breach, if established, was the cause of Mr Jancevski’s injury.
For the reasons that follow, there is no appealable error affecting the conclusion that WR did not breach its duty of care. Accordingly, the appeal should be dismissed.
There being no breach, no question of causation arises. It is therefore unnecessary to decide the Notice of Contention.
Facts
The Magistrate’s findings of fact were not challenged on appeal before the Supreme Court. Nor are they challenged on this appeal.
The mechanism of a motorised panel lift door
It is convenient to begin with an explanation of the mechanics of a garage door of the kind Mr Jancevski worked on at the time of his injury.
The door consists of a number of panels hinged together. As the door opens, the panels fold as they change orientation from vertical to horizontal. Rollers at the outer edges of each of the panels run in a guide track on either side of the door opening. The tracks are L-shaped, running vertically up the frame of the opening then curving backward into the garage, parallel to the garage floor.
The door is opened and closed by an electric motor which drives a chain loop attached to the door handle. The movement of the door relies on spring-loaded cables situated on either side of the doorway. The cables act as a counterbalance against the weight of the door. One end of each cable is attached to a bracket at the bottom of the door. The other end of each cable locks into a slot at either end of a metal shaft, known as a torsion rod. The torsion rod runs above the door opening on the inner side of the garage wall. It is supported at its centre by a bracket known as a spring anchor bracket. The torsion rod may rotate freely within the bracket.
The springs each have a stationary end. The stationary ends are attached by bolts to the spring anchor bracket. The spring anchor bracket is, in turn, anchored to the garage wall by three bolts.
At the other end of each spring is a winding cone. The spring may be wound using two metal bars, known as reo bars, inserted into the cone. Once a spring is fully wound it may be fixed to the torsion rod using set screws. The reo bars may then be removed from the winding cone once the springs are fully tensioned and the set screws are in place.
The springs are fully tensioned when the garage door is completely closed. As the door lifts, the springs unwind. The force in the springs becomes progressively weaker as the door continues to lift. When the door is open, the springs are almost completely unwound.
For the purpose of carrying out adjustments or repairs, the springs may be de-tensioned, again by using the reo bar.
The process of tensioning the springs in a double garage door takes about seven minutes. The same amount of time is required to de-tension the springs. The process of tensioning and de-tensioning the springs involves some strenuous activity on the part of the installer.
The training provided to Mr Jancevski
Mr Jancevski commenced work with WR on 17 September 2012. Although an experienced and qualified carpenter, he had no previous experience in the installation or repair of automated garage doors of the kind supplied by WR.
Mr Jancevski had an initial induction session in which he was provided with manufacturers’ product and installation manuals.
In his first week of work, together with another new installer, Mr Jancevski undertook training under the instruction of Mr Wayne Kee. Mr Kee was experienced in the installation of commercial and residential garage doors. He took his role in educating the two installers seriously. The training included the installation of at least 10 to 12 doors.
Mr Kee explained to Mr Jancevski the mechanics and basic principles of the springs. He explained to Mr Jancevski that there was always a danger when working with a spring. He said that other than lifting weights, the spring was the biggest danger in dealing with the doors and that when putting up a door or taking it down, a worker had to consider if there was tension in the spring. Mr Kee told Mr Jancevski that the spring anchor bracket held the tension in the spring and that the bracket was crucial. He added that the spring anchor bracket had to be “secured solid” by bolts before any energy could be put into the spring.
Mr Kee explained to Mr Jancevski a method of adjusting the cables to make a door level (that is, parallel) to the ground without fully de-tensioning the springs. That method involved inserting a reo bar into the winding cone to prevent the tension in the spring from being transferred to the door, then bracing the door by propping the bar against it.
Mr Kee did not tell Mr Jancevski that the same bracing method could be used to alter the position of the spring anchor bracket.
After his initial training with Mr Kee, Mr Jancevski had a further five weeks of regular work generally under the supervision of other installers before undertaking jobs alone.
The injury
On 27 November 2012, Mr Jancevski was instructed to attend at a residence in Chapman to rectify problems with a garage door he had installed the previous month. Mr Jancevski was told that he was to meet a more experienced installer, Mr Craig Wilks, at the residence the following day and that he was to undertake the rectification work under Mr Wilks’ supervision. Whilst there was some dispute at trial and on appeal as to the reasons for that direction, it is not necessary to summarise any facts in relation to that issue.
Mr Jancevski gained access to the Chapman residence at 7.30am the following day. He did not wait for Mr Wilks to attend before commencing work on the door. He identified that in the closed position, the door did not seal against the brickwork of the doorway but instead left a gap of about 50mm at the top. The cause, he determined, was that the guide rails were too short. After some initial work involving the raising of the side rails, Mr Jancevski decided it was necessary to raise the height of the torsion rod along the top of the door.
Mr Jancevski used a reo bar to release only some of the tension from the springs. He then attempted to brace the springs by positioning the reo bar against the door. The bracing method employed by Mr Jancevski was the same as that shown to him by Mr Kee during his demonstration concerning the adjustment of cables.
Mr Jancevski loosened two of the three bolts securing the spring anchor bracket to the wall. He gave evidence to the effect that he intended, by loosening the bolts, to reposition the bracket (and hence the torsion rod) upward without removing it from the wall. He did not adequately explain to the Magistrate why he thought the spring anchor bracket could be moved upward by loosening two of the three bolts in that way.
The bracket, under the load of the two springs, came away from the brickwork, striking Mr Jancevski on the left hand and throwing him from his ladder.
Reasons of the Magistrate and the appeal judge
The Magistrate was satisfied (and it is not contested) that the only safe method for moving the spring anchor bracket was by first removing all of the tension from the springs. The learned Magistrate continued (at [210]–[212]):
210.It is plain that the defendant could reasonably foresee that there was a real risk that a worker carrying out the plaintiff’s duties would sustain an injury of the kind that occurred were he to attempt to move the spring anchor bracket without first removing all tension in the springs.
211.The issue is of such significance that there should be no doubt from the evidence that the plaintiff’s training included very clear guidance as to the extremely limited circumstances, if any, in which the practice of making minor adjustments to a door could be engaged in without first releasing the tension in the spring(s). While I am satisfied that the plaintiff was very aware of the potential danger of a tensioned spring, I am not satisfied that he was ever told not to brace a spring in the actual circumstances which arose in this case. The hazard posed by a tensioned spring warrants such a specific warning.
212.I am satisfied that the defendant breached its duty of care to the plaintiff by not ensuring that he was trained explicitly in relation to the potential hazard posed by tensioned springs in a double panel lift door and that the bracing of one spring (or indeed both) was not an acceptable method for making adjustments to the spring anchor bracket in any circumstance.
On appeal, the appeal judge rejected a submission that Mr Jancevski had only been warned of the risk of harm in general terms (at [61]).
Her Honour continued (at [63]–[68]):
63.The learned magistrate held the appellant’s breach of duty of care was in not training the respondent explicitly of the potential hazard posed by the springs in a double door and that bracing one spring or both was not an acceptable method for making adjustments to the spring anchor bracket.
64.This finding is akin to a finding of strict liability being imposed on the appellant, which is not the case.
65.In her determination of contributory negligence, her Honour found the respondent’s actions not to be a matter of inadvertence or inattention saying he was an experienced, mature tradesman and possessed ordinary commonsense and I agree with that finding. She held he intentionally did not follow proper practices and I find that to be so.
66.I am satisfied the scope of the appellant’s duty did not extend to providing minute details in respect of a work practice never anticipated by the appellant, and in circumstances where the respondent was the author of his own misfortune.
67.I find he had been trained to ensure the springs of the door mechanism had been fully de-tensioned before attempting to adjust a bracket, or the springs when the springs were under tension, or where the bracket was anchored, yet he failed to do so.
68.I thus conclude the magistrate fell in to error, and I find the appellant did not breach its duty of care to the respondent.
Grounds of appeal
The grounds of appeal (as amended) are expressed as follows:
a)Acting Justice Ashford erred in finding that the training provided to the appellant was adequate given that –
…
iiThe training by Mr Key [sic] included a demonstration of the method of bracing the tensioned spring utilised by the appellant at the time of his injury, albeit for a different purpose;
…
vThe training provided to the appellant did not include a specific warning of the type identified by her Honour, Magistrate Campbell, at paragraph 211 of her reasons.
b)Her Honour, having found that the Appellant was an employee of the Respondent, and having found that the risk of injury to him was foreseeable and not insignificant, erroneously:
iFailed to find the Respondent had breached its duty of care to the Appellant given the factual findings made by the learned Magistrate, and particularly the [finding] that the specific instructions with respect to the risks arising from the tensioned springs in a double panel lift door were required;
iiConflated matters that bore on contributory negligence with questions as to the scope of duty and breach of duty and causation;
c)Her Honour erred in concluding that the finding of the learned Magistrate amounted to a finding of strict liability.
The argument in ground (a) is founded upon the instruction Mr Jancevski received from Mr Kee for adjusting the cables running along the side of a door so as to make the door level. In these reasons the method demonstrated by Mr Kee will be referred to as the bracing method.
It is acknowledged that the instructions given to Mr Jancevski about the bracing method were specifically not given as a method for raising the height of the torsion bar or the spring anchor bracket or the door itself. The argument in ground (a) rested on the proposition that the giving of instructions about the bracing method in and of itself created a risk of harm because it permitted an exception to the “general principle” that the springs must in all cases be de-tensioned before any repairs or adjustments could be carried out to a door mechanism. It is submitted that WR was negligent in failing to warn Mr Jancevski of all of the circumstances in which the method could not be safely employed as an exception to the general principle, and specifically that it could not be employed in circumstances such as those presented to Mr Jancevski at the Chapman job. Expressed another way, the submission was that in the absence of such a warning, there existed a risk that Mr Jancevski would employ the method as a “short cut” for making minor adjustments to a door because it had been demonstrated by Mr Kee as a short cut for adjusting the cables.
WR submits that the argument should be rejected on the unchallenged facts as found by the Magistrate. For the reasons that follow, We agree.
Consideration
Resolution of this appeal turns principally upon the proper ascertainment of the standard of care upon which the question of breach necessarily turns. The complaint that WR failed to provide Mr Jancevski with “adequate training” is to be understood as a catch-all phrase encompassing these discrete steps. Although frequently used, the phrase “adequate training” is an unhelpful one in that it tends to encourage the conflation of two enquiries into one and so distract attention from the requirements of Pt 4.2 of Ch 4 of the Act.
Sections 42 and 43 of the Act provide:
42 Standard of care
For deciding whether a person (the defendant) was negligent, the standard of care required of the defendant is that of a reasonable person in the defendant’s position who was in possession of all the information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose.
43 Precautions against risk—general principles
(1) A person is not negligent in failing to take precautions against a risk of harm unless—
(a)the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b) the risk was not insignificant; and
(c)in the circumstances, a reasonable person in the person’s position would have taken those precautions.
(2)In deciding whether a reasonable person would have taken precautions against a risk of harm, the court must consider the following (among other relevant things):
(a) the probability that the harm would happen if precautions were not taken;
(b) the likely seriousness of the harm;
(c) the burden of taking precautions to avoid the risk of harm;
(d) the social utility of the activity creating the risk of harm.
Mr Jancevski’s case is that WR failed to take a precaution (in the nature of a warning) against a risk of harm that was foreseeable and not insignificant. On this appeal, the content of the warning contended for by Mr Jancevski is that which the Magistrate determined ought to have been given: specific training in relation to every circumstance in which the bracing method should not be used.
The question is whether a reasonable person in WR’s position, in possession of all of the information that WR knew, our ought reasonably to have known, would have taken the particular precaution: s 43(1)(c) of the Act. That question, in turn, cannot be answered without first articulating the actual risk of harm against which it is said the precaution ought to have been taken: Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; 234 CLR 330 (Dederer) at [59] (Gummow J). The foreseeability of the risk is to be determined prospectively: Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 at 47–48 (Mason J); Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 at [126]–[129] (Hayne J); Dederer at [18] and [65]–[66] (Gummow J).
At trial it was not contested that there existed a foreseeable and not insignificant risk that an employee may be struck and injured in the event of the sudden and uncontrolled release of the stored energy in the springs. Nor was it contested that WR knew that the spring anchor bracket was crucial, such that the removal or manipulation of the bracket might cause the stored energy in the springs to suddenly release. The uncontested evidence was that there existed a safe way and an unsafe way of performing rectification works on the door at Chapman and that Mr Jancevski had proceeded to perform the work in an unsafe way.
In Deal v Father Pius Kodakkathanath [2016] HCA 31; 258 CLR 281 the High Court considered whether an employer had contravened occupational health and safety laws by failing to provide training as to the safe use of a ladder capable of being used in a multitude of ways. The negligence cases informing that question were summarised in this passage of the judgment (at [53]):
[A]uthority makes clear that, where a task is capable of being carried out in more than one way, as it was in this case, it is the employer’s responsibility so far as is reasonably practicable to identify the risks potentially associated with each way and, so far as is reasonably practicable, to guard against those risks by implementing systems calculated to constrain the employee to carrying out the task in the safest way. Accordingly, it would be contrary to principle and illogical to suppose that, simply because there were a number of possible ways in which the appellant could have carried out the task of removing the displays with the use of the step ladder, it was not reasonably practicable for the respondent to identify the risks associated with the majority if not all of those possible ways. An employer cannot escape responsibility by identifying that there is one or even a number of ways of carrying out a task which do not attract such risks and assuming, without ensuring so far as is reasonably practicable, that the task will be carried out in those ways. Unless and until the employer has done what is reasonably practicable to prevent the employee performing the task other than in the safest way, the employer will be potentially liable for breach of regs 3.1.1 and 3.1.2.
The High Court cited Smith v Broken Hill Proprietary Co Ltd (1957) 97 CLR 337 (Smith) at 341–343 (Taylor J, with Dixon CJ, Fullagar and Kitto JJ agreeing at 339); Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192 (Da Costa) at 198 (Barwick CJ) and 218 (Gibbs J); Ferraloro v Preston Timber Pty Ltd (1982) 56 ALJR 872 at 873–874; Czatyrko v Edith Cowan University [2005] HCA 14; 79 ALJR 839 (Czatyrko) at [12]–[13].
In response to the foreseeable risk, it would not have been sufficient for WR to provide Mr Jancevski with a general warning about the risk of injury associated with the energy stored in the springs and so leave it to him to discern for himself the safest method of work. Specific instruction was required as to how the foreseeable risk of injury might be eliminated or reduced, so far as that could be done.
The difficulty for Mr Jancevski on this appeal is that he was indeed given specific directions in terms described by the Magistrate as follows (at [109]):
Mr Kee said that the mechanics and the basic principles of the springs were explained to the plaintiff and [the other new installer]. He also said there is always a danger when you are working with a spring because there is so much energy there:
You have to be very careful with it. The [central spring] anchor bracket is crucial. That’s what holds the tension in the spring.
He also added that the spring anchor bracket had to be ‘secured solid’ by bolts before any energy is put into the spring. Again these principles were explained to the two men.
The Magistrate accepted the evidence given by Mr Kee about the content of the instructions given to Mr Jancevski. It is notable that the content of that instruction was entirely consistent with the training that Mr Jancevski, in his pleaded case, claimed he ought to have received. The particulars of the training WR ought to have provided state:
Relevant training would have included a direction to release all the tension on the spring before relocating the spring mounting brackets.
The submission that the “bracing method” was demonstrated as an exception to a “general principle” should be rejected. If there was a “general principle” conveyed to Mr Jancevski it was that the spring anchor bracket must be “secured solid” before energy was put into the spring. The bracing method was not demonstrated as an exception to that general principle. Rather, it was demonstrated as a method of releasing some tension from the springs sufficient to adjust the cables, an adjustment that requires no manipulation or relocation of the spring anchor bracket at all.
Moreover, it has not been shown on the found facts that Mr Jancevski employed the bracing method because Mr Kee had conveyed the impression that it was a safe “short cut” that could be employed for other “minor adjustments”, nor has it been shown that his conscious decision to use the bracing method in the circumstances was, in fact, the result of “inadvertence” so as to affect the standard of care (as to which see Smith at 342–343 (Taylor J); Da Costa at 218 (Gibbs J); Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9; 208 CLR 460 at [128] (Kirby J); Czatyrko at [12]). The evidence at trial was to the effect that Mr Jancevski knew of the dangers associated with the springs, that he had been told to ensure the spring anchor bracket was secure before putting energy into the spring, and that he had been shown how to safely release the tension in the springs. Mr Jancevski nonetheless chose not to de-tension the springs before loosening the bracket that secured them to the garage wall.
As the learned appeal judge observed, the finding that WR was negligent in the circumstances is difficult to reconcile against the Magistrate’s conclusions as to contributory negligence:
219.The plaintiff knew very well that working with loaded springs was inherently dangerous. Whatever training he had, and I find it was considerably more than the plaintiff stated, by the time of November 2012 he was well aware of the danger of working with tensioned springs. He had been provided with the defendant’s safe system of work manual and the B&D installation manual itself. He knew there was a way of undertaking the task he was attempting that would guarantee that he would not suffer any injury (see his evidence in paras 85-93). The safe system involved him removing tension from the springs which would have taken 7-10 minutes.
220.By failing to de-tension the springs before adjusting the spring anchor bracket he failed to take the only practicable and straightforward step to enable the work to be done safely. This was not a matter of inadvertence or inattention. It was an experienced, mature tradesman, possessed of ordinary common sense and confident in his ability, intentionally not following proper practices with a significant result to himself. When asked why he proceeded without removing tension from the springs he answered ‘[a]t the time, I’m not quite sure ... I took some precautions – obviously not enough’. As he said, ‘hindsight is a wonderful thing’.
221.On the evidence the plaintiff would need to completely remove the fixed bolt from the spring anchor bracket to move the other bolts ‘slightly’. He was taking an additional risk with his own safety. Any reasonably prudent person would have known this was hazardous and, indeed based on the explanations given in court of the obvious flaw in such an approach, doomed to fail.
The “proper practices” intentionally not followed by Mr Jancevski were the very practices in respect of which he had been trained. The demonstration of the bracing method did not give rise to any further duty to warn Mr Jancevski in the terms identified by the Magistrate. The learned appeal judge was correct to so find.
Grounds (a) and (b) are not established.
As to ground (c), it is true that the reasons of the appeal judge employ the terminology of “strict liability” to describe the standard of care that had been articulated by the Magistrate. There is some substance to the complaint about the attachment of labels such as “strict” or “absolute” liability in a case such as the present.
A claim founded in negligence is a claim founded upon an allegation that the defendant failed to exercise reasonable care and skill: s 40 of the Act. The standard of care owed by an employer to an employee is that identified in s 42 of the Act, no more and no less. Where it is alleged that the standard required the taking of a particular precaution, the allegation must be determined in accordance with s 43. In all cases, determination of liability must turn on the application of the Act to the facts as found. Whilst generalised statements in the authorities may assist in identifying the existence of a duty of care in a particular class of case, generalised statements drawn from the authorities cannot be determinative of the standard of care in any particular case, including cases falling within long-established classes of relationships in which the existence of a duty of care cannot be sensibly disputed (such as that of an employer and employee).
Read in context, the phrase “strict liability” was employed by the appeal judge as a shorthand means of emphasising that an employer does not have a duty to prevent harm entirely.
There may be cases in which the standard of care imposed on an employer involves the giving of a specific warning as to every circumstance in which a particular methodology of work should not be used by an employee. It would have been preferable for the appeal judge to avoid the attachment of labels such as “strict liability” to the erroneous outcome in the Magistrates Court. The label might tend to suggest that a standard of care identified by the Magistrate could never be imposed by the proper application of the Act on the facts of any case. The possibility of such an outcome in cases that warrant it should not be foreclosed.
The terminology employed by the appeal judge does not justify the grant of relief on the appeal. The appeal judge was correct to identify error in the Magistrate’s judgment. Accordingly, the appeal should be dismissed.
| I certify that the preceding fifty-four [54] numbered paragraphs are a true copy of the Reasons for Judgment of the Court Associate: Date: |
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