WR Engineering Pty Ltd ATF WR Engineering Trust v Nickola Jancevski
[2017] ACTSC 202
•21 July 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | WR Engineering Pty Ltd ATF WR Engineering Trust v Nickola Jancevski |
Citation: | [2017] ACTSC 202 |
Hearing Date: | 23 June 2016 |
DecisionDate: | 21 July 2017 |
Before: | Ashford AJ |
Decision: | See [71]-[74]. |
Catchwords: | TORTS – NEGLIGENCE - Personal injury – Appeal from Magistrates Court – Cross-appeal - employee or contractor – duty of care – liability – duty of care not breached - appeal upheld. |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT) |
Cases Cited: | Abdalla v Viewdaze Pty Ltd [2003] AIRC 927971; 53 ATR 30 Czatyrko v Edith CowanUniversity [2005] HCA 14; 214 ALR 349 |
Parties: | WR Engineering Pty Ltd ATF WR Engineering Trust (Appellant) Nickola Jancevski (Respondent) |
Representation: | Counsel Mr K Rewell (Appellant) Mr R Crowe SC and Mr A Muller (Respondent) |
| Solicitors Moray and Agnew (Appellant) Maliganis Edwards Johnson (Respondent) | |
File Number: | SCA 54 of 2016 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Magistrate Campbell Date of Decision: 14 July 2016 Case Title: Nikola Jancevski v WR Engineering Pty Ltd ATF WR Engineering Trust Court File Number: SC 1248 of 2013 |
ASHFORD AJ:
By Notice of Appeal filed 2 August 2016, the appellant appeals the decision of Magistrate Campbell made 14 July 2016.
The grounds of appeal are set out thus:
(a)Magistrate Campbell erred in finding that the respondent was an employee of the appellant at the time of the respondent’s injury on 28 November 2012.
(b)Magistrate Campbell erred in failing to find that the legal relationship between the appellant and the respondent was that of principal and independent contractor, having regard to the findings of fact made by her Honour.
(i)The respondent was not paid hourly rates, superannuation, annual leave or sick leave;
(ii)In agreements and other documents passing between the appellant and the respondent, the latter was referred to only as a “contract installer”;
(iii)The respondent had his own ABN and was required to provide tax invoices for his services, including GST.
(iv)The respondent had to provide his own tools and vehicle;
(v)The respondent could claim business expenses against his taxable income and;
(vi)The respondent had no security of work. If there was a downturn, the appellant would give first preference to those on its books as “employees” and would leave on those books as contractors, (such as the respondent), to find other work for themselves.
(c)Whether or not Magistrate Campbell erred in finding that the respondent was an employee of the appellant at the time of the respondent’s injury, her Honour erred in finding that the appellant breached its duty of care.
(d)Having made the following findings of fact, Magistrate Campbell erred in finding that the appellant breached its duty of care by failing to provide adequate training to the respondent.
(i)Mr Wayne Kee, a specialist in the field came to Canberra specifically to train the respondent in the installation of garage doors such as those that were involved in the subject accident. The men spent a week together installing at least 10 to 12 doors, including doors with two counterbalancing springs.
(ii)The respondent was shown how to tension and de-tension a spring. He was also shown how to brace the spring but only to release a small amount of tension.
(iii)Mr Kee explained the principles of tensioning and de-tensioning springs to the respondent. He warned him of the danger of working with tensioned springs.
(iv)Mr Kee told the respondent to be careful when working with a spring anchor bracket. He said, “The anchor bracket is crucial. That’s what holds the tension in the spring.”
(v)Mr Kee explained to the respondent that the spring anchor bracket had to be secured solid by bolts before any energy was put into the spring. Mr Kee taught the respondent how to tension and de‑tension the springs, using winding bars.
(vi)After intensive training with Mr Kee, the respondent had five weeks work with other more experienced installers before being allowed to do any work on his own; and
(vii)The respondent also underwent a general induction and all product manuals and installation instructions were made available to him at the appellant’s office.
(e)Magistrate Campbell erred in finding that the appellant’s duty of care required it to provide explicit training to the respondent, who was an experienced and mature tradesman, in relation to the potential hazard posed by loosening a spring anchor bracket, to which two near fully tensioned springs were secured, without first de-tensioning both springs in circumstances where:
(i)The respondent had been specifically trained as to the dangers inherent in working with tensioned springs only a matter of weeks before the accident occurred.
(ii)It was clearly visible and obvious to the respondent, before he loosened the spring and the bracket, that the springs were still highly tensioned, despite his attempt to take a shortcut by bracing the springs.
(iii)The respondent had been specifically trained as to how to de‑tension the springs and of the necessity to do so before doing any work in relation to the springs.
(iv)The respondent defied Mr Read’s instructions to wait for a supervisor to arrive before commencing work.
(v)It was, in any event, commonsense, to de-tension the springs, which would have taken only seven to ten minutes, before loosening the anchor bracket to which they were attached.
(f)Having found that the respondent’s injury would not have not occurred had he waited for the supervisor to arrive at the site, as he was specifically directed by the appellant to do, Magistrate Campbell erred in finding that the respondent’s disobedience of that instruction was not the legal cause of his injury.
The respondent in its notice of cross-appeal states the grounds to be:
(a)That the evidence established nothing more than inadvertence on the part of the plaintiff (respondent), in the performance of the task.
(b)The plaintiff was mistaken about the effectiveness of the bracing method he adopted at the time of his injury.
(c)In the circumstances, the defendant failed to meet its onus in establishing a breach of duty on the part of the plaintiff.
I note the magistrate reduced the damages awarded to the respondent by 50 per cent for contributory negligence and the respondent initially placed that in issue. However, neither counsel addressed on that and it is not pressed.
Senior counsel for the appellant, in submissions, advised the appeal relates to the issues of:
(a)Was the respondent an independent contractor rather than an employee of the appellant;
(b)Did the appellant breach its duty of care to the respondent by not providing sufficiently specific training to the respondent; and
(c)Causation.
Background
Nickola Jancevski sustained injury to his left non-dominant thumb and index finger on 28 November 2012 whilst in the course of rectifying an error he made on installing a garage door.
A claim was made under the Civil Law (Wrongs) Act 2002 (ACT) for damages. That claim was heard in the ACT Magistrates Court on 3 March 2016 and 4 March 2016 before Magistrate Campbell who handed down her decision on 14 July 2016.
She awarded the respondent damages in the sum of $95,929, having deducted 50 per cent of the damages awarded for contributory negligence.
The learned magistrate found the respondent was an employee of the appellant, rather than an independent contractor and she found the appellant to have been negligent in failing to ensure the respondent “was trained explicitly in relation to the potential hazard posed by the tensioned springs in a double panel lift door” and in failing to instruct the respondent that the method he employed was unacceptable and unsafe.
Was the respondent an employee or a contractor?
The magistrate carefully considered this issue and she looked at authorities in respect of determining the issue.
She noted correctly that the categorisation of the respondent, as an employee or independent contractor, determines the extent of the duty of care owed to him by the defendant.
She looked at Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 noting the High Court to have determined that it was not just the level of control (or the right to exercise control) which should be considered as a determinative factor but the totality of the employment relationship, including factors such as the mode of remuneration, provision and maintenance of equipment, the obligation to work, the hours of work, provision for holidays, deduction of income tax and the worker’s ability to delegate tasks.She then considered Hollis v Vabu Pty Ltd [2001] HCA 44; 207 CLR 21 noting this to state the presence or absence of the right of control was but one of the indicia which needed to be examined and that the balancing exercise was “necessarily impressionistic”, as there is no universally accepted understanding of how many or what combination of indicia must point to a contract of service before the worker can be characterised as an employee.
She thought Yaraka Holdings Pty Ltd v Giljevic [2006] ACTCA 6; 149 IR 339, which referred to Abdalla v Viewdaze Pty Ltd [2003] AIRC 927971; 53 ATR 30, offered useful guidance on the question.
She carefully went through the indicia. In respect of indicia of the respondent being classified as an independent contractor, she noted he was thus characterised in paperwork, noting the induction checklist referred to him as a contract installer. He had an ABN he claimed GST and was not paid holiday or sick leave. He was paid on submission of invoices. He provided his own tools and motor vehicle. The appellant did not make superannuation contributions for him. He claimed his business expenses on his tax return.
She then noted “some of these indicia” resulted from the reality that the plaintiff was required to operate in a way mandated by the defendant, in order for him to be able to obtain work with the defendant and the terminology “independent contractor” was in effect imposed on him and the non-payment of sick leave and holiday pay were not unequivocal indicia of an independent contractor, as she remarked temporary and casual employees sometimes work under similar conditions.
In respect of the indicia of the respondent being an employee, she noted the respondent worked regular hours set by the appellant and he was routinely provided with work on at least four or five days a week. He undertook tasks which were allocated to him by the appellant and he was dependent on the appellant for the provision of work, notwithstanding that he could, theoretically at least, work for others. He could not bargain or negotiate for fees for particular jobs.
As well, the magistrate found the respondent was subject to the appellant’s control in respect of his tasks and could not delegate work to anyone else, and his work was checked by the appellant. She found there was no suggestion the respondent had any business relationship with any other business or entity. He had no business name and no paperwork or vehicle signage which showed any business of the respondent. He did not advertise for work and he undertook the jobs allocated to him by the appellant. He also wore the appellant’s “livery”.
The ultimate conclusion of the learned magistrate was that the respondent was an employee, having weighed all those matters. It is clear she reached that conclusion after careful consideration of the authorities and after correctly assessing the indicia.
Senior counsel for the appellant submitted the only indicia of employment were the respondent wearing the appellant’s uniform and holding himself out as a representative of the company, and also, that the respondent did not have a business name, nor advertise for work in his own right.
He submitted the following to be “neutral indicia”:
(a)The respondent’s work was allocated to him by the appellant and he was required to do the work promptly.
(b)The respondent was required to do the work in the manner specified by the appellant.
(c)The respondent could not subcontract the work.
(d)The respondent’s work was checked by the appellant’s employees and where necessary, as in this case, an experienced employee was asked to supervise rectification of any unsatisfactory work.
(e)The respondent only undertook the work allocated to him by the appellant and had no other work, nor did it appear he intended to seek other work, at least while he was given sufficient work by the appellant.
Senior counsel for the respondent submitted those factors were not neutral at all, but significant factors properly taken into account by the magistrate in concluding the respondent to be an employee and I believe that to be so.
To an extent, determination of the issue is impressionistic. Some of the indicia, identified as neutral by the appellant, are to my mind, indicative of an employee relationship and show a high level of control over the respondent by the appellant, as to his work and its performance.
Clearly, the appellant had the power to tell the respondent how to do the work and where and when he was to do so. He was also directed in respect of his hours and work. He was given an induction and training. He was not able to delegate work to others and thus the power to control the work was a power of the appellant. Those matters are all noted by the magistrate along with other matters.
Having considered all the indicia, I am satisfied the learned magistrate was correct in her categorisation of the respondent as an employee, rather than an independent contractor and I so find.
Duty of care - liability
Having found the respondent to be an employee, the learned magistrate considered the nature of the duty of care owed to the respondent. She referred to the Civil Law (Wrongs) Act 2002 (ACT) and in particular to sections 40, 42 and 43 and correctly set out the common law standards of the duty of care owed by employers to employees. The standard is not one of strict liability. The duty of an employer is to take reasonable care for the safety of employees. She cited Czatyrko v Edith CowanUniversity [2005] HCA 14; 214 ALR 349 (Czatyrko) which expressed the basic principles relating to an employer’s obligation to provide a safe work environment, as follows:
An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in the workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards [Smith v Broken Hill Pty Ltd Company (1957) 97 CLR 337, at 342]. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work.
It is accepted the respondent was a mature tradesman and a qualified carpenter. He had worked generally in the building industry for many years but had not done work in installing garage roller doors of the type installed by the appellant. There were a variety of doors and mechanisms of operation.
The appellant provided training to the respondent in respect of the tasks he was to perform of installing those garage doors. A trainer, Mr Kee, came from Sydney to train the respondent and another man for one week. For a further five weeks, the respondent was not permitted to work by himself but worked with experienced installers and it is estimated that during that period, he was involved in the installation of about 30 doors.
From 26 October 2012, the respondent began installing doors on his own, doing about five doors per week, until the time of his accident on 28 November 2012, thus a period of about a further five weeks.
The respondent was responsible for installing a double garage door at a residential property in October 2012. The particular door operated on tracks which are installed on the sides of the door opening and on to the roof of the garage and are propelled by a motor. On installation, the tracks need to be cut to size. The respondent made an error in that he cut the tracks too short and thus a gap was left in the door opening and this was not completely sealed.
The customer was not satisfied and thus the appellant needed to make arrangements to rectify the error. Part of the door mechanism involves a spring system anchored to the bricks of the garage by a spring anchored bracket. The respondent gave evidence, he had been shown how to tension and de-tension the springs and also how to brace the spring to release a very minor amount of tension by leaving a bar in situ and resting it up against the door or a wall, without having to de-tension the whole spring.
Various documentation was provided to the respondent, at his induction, including a workplace induction checklist and a safe work method statement and the magistrate accepted he had been provided with those. One of the hazards on the safety checklist, was identified as the risk of release of stored energy in a tension spring. The respondent’s evidence was that he was aware of the risks which existed in respect of those springs under tension.
The respondent was contacted on the afternoon of 27 November 2012 by Mr Robert Clarke, who was at that time responsible for job allocation and scheduling. Mr Clarke told the respondent there was a problem with a door the respondent had installed and told him he was to go back to the site next morning and to meet Craig Wilks, the appellant’s lead installer, and service technician. The learned magistrate accepted the respondent to have also spoken to Wayne Read, the director of the appellant company, that afternoon. Mr Read said that Craig Wilks had identified what the problem was with the door, in that the tracks were too short and thus Mr Read wanted the respondent to go back to the job next day, with Craig, to rectify the problem and so that the respondent could learn from his mistake.
The respondent gave evidence that he did not understand why he had to go back to the job but he was told by Mr Clarke, the top of the door was not fitted correctly. He said he had done his best but was told he had to meet Mr Craig Wilks to rectify the door and stay until Mr Wilks arrived because he might need to fix “waves” in the panels of the door and this required two men. No-one other than the respondent referred to there being any “waves” issue with the door but rather a question of refitting the correct rails. A time was arranged for Mr Wilks and the respondent to meet at the site.
The respondent maintained that this time was 7.30 am. Mr Wilks thought the meeting was to be 8 am or 8.30 and not 7.30 am. The respondent said he formed the view when he got to the job, that he had to lift the door some two inches and to do so he needed to raise the tracks on the sides and top of the door and all of the brackets, and this was a task he felt able to do on his own.
He then placed wood under the tracks, to be wedged between where they ended and the ground. He did not wait for Craig Wilks, as he had been instructed to do. Mr Wilks had new tracks which were to be installed by the respondent under the supervision of the experienced Mr Wilks.
The respondent decided he needed to move the middle spring anchor bracket which was fixed in to a brick wall.
At this stage, of course, Mr Wilks had not arrived but the respondent went ahead. He was clearly aware that a spring under tension is dangerous and was aware that a loaded spring contains a lot of energy. He was aware one of the biggest dangers in the job is the energy in the spring and it was necessary to explore whether or not there was tension in the spring, and if there was, to remove the tension.
He decided to move the spring anchor bracket without de-tensioning the springs. Instead he decided to take a short cut and started to take the bolts out of the anchor bracket, having first braced that spring with a reo bar at one end and then slightly loosening the screws. As a result, the spring bracket pulled out of the brick wall because of the tension in the springs and the bracket struck the respondent’s left hand causing injury.
The respondent gave evidence that his actions in attempting to brace the springs, rather than removing the tension in them, was something he had been shown by Mr Kee, who had given him initial training.
It seems the action of completely de-tensioning both springs, takes some seven to ten minutes each and a further seven to 10 minutes to then re-tension, after the job is completed. Mr Wilks and Mr Kee both gave evidence that the respondent had never been instructed to proceed in the way he did and to attempt to move the spring anchor bracket without first fully de-tensioning them, was not something which would have ever been done because of the inherent risk.
Mr Kee was clear in his evidence that the method used by the respondent, to use a bar to release some tension in the cable and then starting to slightly loosen the bolts in the anchor bracket, with an intention of “tapping” up that bracket, was not a method of installation or maintenance he had ever shown the respondent because, as he said, “those springs are unforgiving. You’ve got to take the tension off before you do anything.” He said he had never used such a method ever because of the danger and in any event, the procedure utilised by the respondent would not have worked.
He said he had taught the respondent how to apply tension to the springs, using reo bars, but this method could be used on a single door, if there was an issue with the cables in respect of levelling the door. Mr Kee explained the mechanism of the springs and anchor bracket and said the procedure involved in replacing panel lift doors was to take the tension off first, before touching anything else.
Mr Wilks’ evidence was that he inspected the subject door the day prior to the accident and he had determined they had been cut too short and thus new tracks needed to be cut and installed. As noted, the respondent did not wait for him to arrive, as he had been instructed, and began work instead, using his own short cut method. Mr Wilks said the method the respondent attempted to rectify the problem would probably not have worked, as it would only advance the door up 15 to 20 mms and leave a gap and there was a huge risk in doing that, even if the winding bar was in place and held against the door, as there was still spring tension on the bracket, which was under load from both springs.
He said he was aware of the method of bracing a tension spring, rather than de-tensioning the spring for the purpose of making some adjustments to the door and this practice had an advantage, in that it took less time to do so, rather than de‑tensioning the springs, but the method was one used to adjust the cables, not to do a job such as the respondent was attempting.
Clearly there was evidence the respondent had been provided with a week of training by Mr Kee and a further period of about five weeks where he worked on installing doors in company with another worker. There was a manual relating to the installation of doors and a safe work method statement. It seems those documents were made available to the respondent, as well as documentation or instruction leaflets which were provided with each door to be installed. Mr Clarke and Mr Read gave evidence those documents were available for the respondent and indeed there was a checklist for the induction process which indicates the respondent was supplied with such material. The respondent agreed the safe work method statement, to include a reference to a list of hazards, including the hazard of the risk of release of stored energy in a tension spring.
The learned magistrate was satisfied she should accept the evidence of Messrs Read and Clarke where it differed from the respondent’s evidence in respect of training and information, or induction documents and that seems to me, to be a finding well open to her, noting as well, that she had the opportunity of assessing the demeanour of each of the witnesses. She did not accept the respondent’s evidence that he only received one week’s training and again, that finding is borne out by the evidence.
From the respondent’s own evidence, it is clear the respondent was very aware of the dangers involved in working with springs and of the energy stored in them. The magistrate found this to be so and noted that he had tried to take a short cut by not releasing the tension before he did anything with the anchor point for the spring, saying that he realised that in hindsight, although agreeing, he knew he was taking a risk.
She also found Mr Kee to be a witness of credit and accepted that he had instructed the respondent the issue that the spring and the tension in it is a dangerous thing and something to be careful about and that the spring was the biggest danger in dealing with the doors.
The learned magistrate, in reference to section 43 of the Act, correctly identified the standard of care to be a standard of reasonable care, which does not amount to a guarantee of safety for an employee. She referred to Czatyrko and other authorities in respect of the duty of care.
She concluded the respondent:
(a)had received significantly more practical training on the job than he could recall
(b)was provided with and had access to installation manuals and the appellant’s safe work methods but thought his apparent failure to read the documents did not relieve the employer of its responsibility to ensure he was educated on the safety issues raised in them.
This appears to overlook the evidence that the respondent was provided specific on the site training by Mr Kee, as to the dangers inherent in the springs under tension and the spring anchor bracket, although she accepted Mr Kee had impressed on the respondent those factors in his training.
Clearly, from the evidence, there were only very limited circumstances where a reo bar could be used to partially de-tension the springs, such as for adjusting cables, however in any circumstance where the spring anchor bracket needed to be unbolted, the springs needed to be de-tensioned and it is clear the appellant, through Mr Kee had given specific warnings to the respondent about the springs and the energy stored in them.
The magistrate was satisfied the respondent was very aware of the potential danger of a tensioned spring but she concluded that a specific warning should have been given to the respondent in respect to the circumstances of this case. Clearly, the risk of injury from the springs and especially the anchor bracket was foreseeable and was the subject of explicit safety instructions and instruction from Mr Kee, and I am satisfied the respondent was quite aware of the risk. It was also a significant risk. Mr Wilks had also clearly explained this to the respondent.
The magistrate held that the appellant breached its duty of care as an employer by not specifically and explicitly training the respondent in relation to the potential hazard posed by the tension springs, in a double panel lift door, and that bracing one of the springs, (or indeed both), was not an acceptable method for making adjustments to the spring anchor bracket under any circumstances.
Senior counsel for the respondent submits it may be accepted the appellant was not required to train the respondent in the minutiae of every task or hazard associated with the work, however the magistrate correctly assessed the application of section 43 being an assessment of the probability of injury, potential seriousness and the burden of providing necessary training. He submitted that her finding that the hazard posed by a tension spring warrants such a specific warning and that the risk of the manoeuvre attempted by the respondent was so obvious, there was no need for the appellant to provide a specific instruction, was not something accepted by the magistrate.
Senior counsel for the appellant submits the hazard posed by the springs and the spring anchor bracket was very obvious and it had been explained to the respondent that springs should be de-tensioned before doing any work, and that it was dangerous in the extreme to attempt to loosen the bolts securing the spring anchor bracket without de-tensioning them. It was submitted the training provided had given specific warnings of the dangers and the procedure adopted by the respondent was the respondent’s invention of a method of doing the job which could not have been anticipated or contemplated by the appellant at all.
He submitted that there were specific repeated warnings to the respondent in regard to the tension springs being very dangerous and the respondent had confirmed that he had been warned of those dangers.
It was submitted there were no circumstances where unbolting the anchor bracket while the springs were tensioned should be done, noting the respondent was a mature tradesman, who had been instructed as to the dangers but he chose to adopt his own method.
Senior counsel for the respondent submitted the respondent’s actions that day were thoughtless in taking a short cut but because of those actions the magistrate accepted the appellant should have taken that in to account and provided the respondent with specific training. He also referred to a decision in the Supreme Court of Queensland of Reck v Queensland Rail [2005] QCA 228, a decision of 24 June 2005, in support of that contention.
I am satisfied it was reasonably foreseeable that injury to a worker may result from the springs and anchor bracket and this risk was not insignificant.
The real issue is, therefore, whether in the circumstances of this accident the appellant should have taken precautions against the risk of injury to the respondent by specific training and instruction in relation to his task. Senior counsel for the respondent submits the respondent did not have sufficient training in respect of the dangers involved, or the risks of moving the anchor bracket whilst the springs were under tension, saying he had only been warned in general terms. I do not accept that submission.
The respondent was a tradesman. He had done some six weeks working with other experienced people, one week in training and five or so weeks with another man, and he was well aware of the dangers inherent in the springs, yet he chose to utilise his own short cut. As well, he had been told to meet the more experienced man at the job that day but he chose not to do so and thus he proceeded to begin work without de-tensioning the springs, which was a necessary thing to have been done.
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.
This finding is akin to a finding of strict liability being imposed on the appellant, which is not the case.
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.
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.
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.
I thus conclude the magistrate fell in to error, and I find the appellant did not breach its duty of care to the respondent.
In respect of Causation, the learned magistrate held the injury would not have happened had the respondent waited for Mr Wilks to arrive at the job site to instruct and assist him, but she found his disobedience of that instruction was not the cause of the injury.
I find the respondent’s actions in not waiting for the experienced workman were a cause of the injury, however having accepted the appellant did not breach its duty of care, in that it provided proper training to the respondent, the respondent’s actions in devising his own method, and also by not waiting for Mr Wilks, all contributed to the result.
Accordingly, I set aside the decision of Magistrate Campbell of 14 July 2016.
I give judgment for the appellant.
Respondent to pay the appellant’s costs.
Liberty to apply in 28 days.
| I certify that the preceding seventy-four [74] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice Ashford. Associate: Date: 3 August 2017 |
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