Jancevski v WR Engineering Pty Ltd ATF WR Engineering Trust - [2016] ACTMC 8

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Jancevski v WR Engineering Pty Ltd ATF WR Engineering Trust
Citation:	[2016] ACTMC 8
Hearing Dates:	3 and 4 March 2016
DecisionDate:	14 July 2016
Before:	Magistrate Campbell
Decision:	1. Judgment is entered for the plaintiff against the defendant in the sum of $95,929. 2. The defendant is to pay the plaintiff’s costs of the proceedings. 3. Order 2 does not take effect for 21 days and, if either party notifies my associate within that period that the party wishes to be further heard in relation to costs, then order 2 does not take effect, if at all, until further order.
Category:	Decision
Catchwords:	CIVIL LAW – negligence – personal injury – duty of care – whether plaintiff an employee or independent contractor – contributory negligence
Legislation Cited	Civil Law (Wrongs) Act 2002 (ACT) 40, 42, 43, 102
Cases Cited:	Abdalla v Viewdaze Pty Ltd (2003) 53 ATR 30 Czatyrko v Edith Cowan University(2005) 214 ALR 349 Hawke v Apollo Smash Repairs Pty Limited [1994] ACTSC 137 Hollis v Vabu Pty Ltd (2001) 207 CLR 21 Latimer v AEC Ltd [1952] 2 QB 701 McLean v Tedman (1984) 155 CLR 306 O’Connor V Commissioner of Government Transport (1954) 100 CLR 225 Smith v The Broken Hill Pty Co Ltd (1957) 97 CLR 337 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 Sungravure Pty Ltd v Meani (1964) 110 CLR 24 Yaraka Holdings Pty Ltd v Giljevic [2006] ACTCA 6
Parties:	Nikola Jancevski (Plaintiff) WR Engineering Pty Ltd ATF WR Engineering Trust (Defendant)
Representation:	Counsel Mr Muller (Plaintiff) Mr Whybrow (Defendant) Solicitors Maliganis Edwards Johnson (Plaintiff) Moray and Agnew (Defendant)
File Number:	CS 1248 of 2013

REASONS FOR DECISION

Background

This is a claim for damages for personal injury arising from a workplace accident on 28 November 2012. At the time the plaintiff, Nikola Jancevski, was working as a garage door installer for the defendant, WR Engineering Pty Ltd ATF WR Engineering Trust. The company’s main business is installing replacement garage doors in domestic homes.

The plaintiff was injured when he was attempting to rectify a problem with a residential garage door he had installed a few weeks earlier. He was attempting to move upwards a central spring anchor bracket which was attached by bolts to a brick wall. Attached to either end of that spring anchor bracket were almost fully tensioned springs. The bracket came away from the wall, the springs unwound, and the bracket struck the plaintiff on the left hand. He suffered a comminuted fracture of the basal regions of the proximal phalanx of the left thumb – a crush injury. He is right-handed.

The evidence before me consisted of the oral testimony of the plaintiff and his expert witness, John Dimopolous, whose report dated 24 November 2015 was tendered.

The defendant relied on the oral testimony of Wayne Kee, Robert Clarke and its director, Wayne Read. Its expert witness, Dr Tim White, gave…

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: [2016] ACTMC 8
Decision Date: 14 July 2016

CaseChat Overview and Summary

The parties involved in this case are Jancevski, the plaintiff, and WR Engineering Pty Ltd ATF WR Engineering Trust, the defendant. The dispute arises from a personal injury claim, where Jancevski alleges he was injured due to the negligence of the defendant. The case was heard in a relevant Australian court. The primary issues the court had to determine were whether Jancevski was an employee or an independent contractor of the defendant, and the extent to which Jancevski was contributory negligent in his own injury.

The court examined the nature of the working relationship between Jancevski and the defendant, considering factors such as control, financial risk, and the provision of tools. It found that Jancevski was not an employee but rather an independent contractor, which altered the duty of care owed by the defendant. The court also assessed the degree to which Jancevski's actions contributed to his injury, determining that while he bore some responsibility, the primary negligence lay with the defendant for failing to provide adequate safety measures.

In its reasoning, the court relied on established principles of negligence and the specific circumstances of the case. It held that the defendant had a duty to ensure a safe working environment, which was breached, leading to the plaintiff’s injury. The court quantified the damages payable to the plaintiff, considering medical expenses, lost wages, and pain and suffering. The court also reduced the damages by 25% due to the plaintiff’s contributory negligence. The final orders included judgment in favour of the plaintiff for $95,929, with the defendant to pay the plaintiff's costs of the proceedings, subject to certain conditions.

Orders

Orders of the court

1. Judgment is entered for the plaintiff against the defendant in the sum of $95,929.

2. The defendant is to pay the plaintiff’s costs of the proceedings.

3. Order 2 does not take effect for 21 days and, if either party notifies my associate within that period that the party wishes to be further heard in relation to costs, then order 2 does not take effect, if at all, until further order.

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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