SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL

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1 SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL Case Title: Brozinic v The Federal Capital Press Pty Limited trading as The Canberra Times Citation: [2015] ACTCA 8 Hearing Date: 14 November 2014 Decision Date: 17 April 2015 Before: Decision: Category: Burns, Gilmour JJ and Cowdroy AJ The appeal is dismissed. The Appellant is to pay the costs of the Respondent. Principal Judgment Catchwords: TORTS Negligence breach of duty standard of care proof of negligence appellant injured by internal fire door on respondent s premises where respondent had actual knowledge of risk whether the respondent was negligent in failing to insert a window in internal fire door. DAMAGES Personal Injury double compensation out of court settlement whether appellant has discharged onus to negative double compensation. APPEAL Appeal from the Supreme Court whether primary judge erred in finding the respondent was not negligent in failing to install a window in the fire door appeal dismissed with costs. Legislation Cited: Civil Law (Wrongs) Act 2002 (ACT) s 42 Cases Cited: Jones v Bartlett (2000) 205 CLR 166 SAS Trustee Corporation v Budd [2005] NSWCA 366 Shaw v Thomas [2010] NSWCA 169 Wyong Shire Council v Shirt (1980) 146 CLR 40 Parties: Representation: Drago Brozinic (Appellant) The Federal Capital Press trading as The Canberra Times (Respondent) Counsel Mr B Meagher SC (Appellant) Mr L King SC with Mr D Stretton (Respondent)

2 Solicitors Blumers Personal Injury Lawyers (Appellant) McCabes Lawyers (Respondent) File Number: ACTCA 9 of 2014 Decision under appeal: Court: Supreme Court of the ACT Before: Master Mossop Date of Decision: 7 February 2014 Case Title: Citation: [2014] ACTSC 8 Brozinic v ISS Facility Services Australia Limited and The Federal Capital Press of Australia Pty Limited trading as The Canberra Times THE COURT: 1. The Appellant appeals from the decision of the Master delivered on 7 February Facts and procedural history 2. The Appellant brought proceedings against the Respondent, claiming damages for personal injuries arising out of an accident that occurred on 8 April 2010 (the accident). The Appellant was employed by ISS Facility Services Australia Limited (the employer), which was engaged in providing cleaning supplies and services to its clients, one of whom was the Respondent. On such date, the Appellant was delivering cleaning supplies to the premises of the Respondent at Fyshwick. As he entered the building of the Respondent, the Appellant was struck by a fire door which had been opened from the other side of the door by an employee of the Respondent. As a result of the impact, the Appellant sustained personal injuries, namely an injury to his right shoulder. 3. The particulars of negligence alleged, and focused upon, the question of whether a window should have been inserted into the fire door, especially in view of the report on which the Appellant relied, which we shall refer to hereunder as the Williams Report. 4. The Master found that the Appellant s claim should not succeed and entered judgment for the Respondent. The Appellant was ordered to pay the Respondent s costs. There were two reasons for such decision. First, the Master found that negligence on the part of the Respondent had not been established. The second reason concerned an issue of the appellant being compensated twice for the same injury. 5. On 26 March 2010, the Appellant was injured in the course of his employment. On that occasion he was visiting premises in Dairy Road, Fyshwick, when he reached back into his car to take hold of a bundle of supplies when he felt a pain in his right shoulder, thereby sustaining an injury (the prior accident). The Appellant had sued the employer arising out of the two work-related injuries he sustained in the course of his employment, namely both the prior accident and the accident the subject of these proceedings (the prior proceedings). 2

3 6. The action was settled, but the Deed of Release dated 30 August 2013 entered into by the Appellant and the employer made it plain that the subject matter of the Release extended to injuries sustained resulting from both the prior accident and the accident the subject of these proceedings. The release encompassed: All injuries, whether they be physically or psychologically sustained by [the Appellant on this appeal] during the course of his employment with the [employer]. 7. The Master referred to the relevant authorities which cast the onus upon the Appellant to establish that the Appellant was seeking compensation from the Respondent for an injury which was not the subject of the Release: see, for example, SAS Trustee Corporation v Budd [2005] NSWCA 366. At [111], the Master said: Applied to the present case that approach would mean that once the second defendant [i.e. the Respondent on this appeal] had shown that money was paid to the plaintiff in circumstances capable of attracting the rule against double compensation because the claim related to the same incident as was alleged to give rise to liability of the first defendant, then the onus was on the plaintiff [i.e. the Appellant on this appeal] to show that the money was not received by way of compensation for the loss. 8. Accordingly, the settlement by Deed of Release of the prior proceedings constituted a further reason for his Honour to find against the Appellant; namely, the fact that an award of damages would amount to double compensation for the Appellant. The primary judge concluded that the Appellant had failed to discharge the onus to show that he had not already received compensation for the accident. It follows that, even if negligence by the Respondent were established, there remained a second hurdle confronting the Appellant, namely the issue of compensation had already been received by the appellant for his injury. The Appeal 9. The Appellant raised twelve grounds. However, the essential ground of appeal relied upon in this appeal was his Honour s finding that the Respondent was not negligent by failing to install a window in the subject fire door. Consideration 10. As referred to earlier, much emphasis was placed in this appeal on the Williams Report, which was prepared on 13 July It is described as a Safety Hazard / Accident Report and was maintained in the records of the Respondent. We state the relevant portions hereunder. 11. As to the Risk Identified, the Report stated: Air-lock area at bottom of stairs between advertising / chronicle and back door to outside. Dangerous collisions coming in / going out / climbing & alighting stairs.... Suggestion:- Peephole glass half door windows such as in restaurants & hospitals. 12. Under the heading Reason for Concern the following was recorded: We often get bumped & knocked carrying armfuls of photographic gear. A colleague has also lost a cup of coffee during one such collision. 13. The form of Report was designed to record a manager s recommendation for the elimination of the hazard, and the following was inserted in handwriting: 3

4 Notice to staff about carry [sic] mugs of coffee downstairs via Newsletter cannot change door as it is a fire door. 14. From this Report, the Appellant maintains that the risk to which the Appellant was exposed was foreseeable and that the Master erred in failing to find negligence of the Respondent. 15. The Williams Report was prepared by an employee of the Respondent, Ms Karleen Williams. Such report was thereafter considered by the Respondent s Occupational Health & Safety Committee (the Committee) on 14 July The Committee recommended: 3. Air lock area at bottom of advertising stairs - collisions, coffee spills. Noted this door is a fire door and therefore a glass half door is not an option. Also noted that this door had been changed around due to wind tunnel in that area. Staff to be reminded that cups of coffee are not to be carried up and down stairwells. 16. The Master found that the Williams Report had been considered by the Committee. The General Manager of the Respondent, Mr Ken Nichols, and the Manager of the Respondent s printing press, Mr Barry Murphy, were present when the discussion concerning the Williams Report took place. The Committee decided that it would monitor the issue raised by the Report. His Honour observed at [40]: Mr Nichols gave evidence that at the meeting Mr Murphy said that he had looked into a matter like this and the problem was that it was not possible to put glass in those doors because they were fire doors. 17. His Honour noted that there had been no documentary evidence of any complaint concerning the fire door in all the years between the opening of the building in 1987 and the preparation of the Williams Report in July Nor was there evidence of any dangerous collisions in the vicinity of the fire door until July There was evidence of other employees who had frequently used the door without incident. In light of the evidence, his Honour was not satisfied that the statement in the Report that dangerous collisions often occur was in fact correct. 18. The Master noted the evidence of Mr Cooke, architect, that fire doors with glass windows were available in both 2009 and in The decision also records the evidence of Dr Cubitt, engineer, that the fire door failed to comply with Australian Standard AS because of the force required to open it. However, there was also evidence that the fire door exit was, and had been, used on approximately 320 occasions per day and that no other incidents involving its use had been recorded. 19. The Master also had regard to the expert evidence that the fire door complied with all relevant Building Codes and Australian Standards at the time of the incident. In view of the evidence, his Honour was satisfied that the risk of a person being harmed by an opening door was a risk which was foreseeable and was one which the Respondent actually knew. However, his Honour was satisfied that the Committee s decision that the insertion of a window would impair the integrity of the fire door was reasonable. His Honour stated, inter alia, at [74]: It was faced with a claim of a hazard which, while being obvious, had not, so far as the evidence discloses, materialised in a way that caused harm of any significance in the 22 years the building had been occupied. The outcome of the committee process did not preclude it being revisited if more evidence of the materialisation of the risk appeared and that is consistent with the way in which Mr Nichols said it would be dealt with. 4

5 20. The Master concluded that non-transparent doors, such as the fire door which gave rise to the Appellant s claim, were an obvious hazard which ordinary people entering upon commercial premises must deal with every day and that the Respondent was not negligent in failing to install a window on the fire door. At [75] of the Master s decision, he stated: The strongest factual aspect of the case for the plaintiff is the volume of traffic through the doors. Non-transparent doors such as fire doors or toilet doors are obvious hazards which ordinary people entering upon commercial premises must deal with every day. However the volume of movement through the two doors in question was higher than would be expected for a door simply functioning as a fire door rather than a routine entry and exit point for a building. Plainly for high volume doors an inability to see another person approaching the door from the other side is a factor which increases the risk of an accident occurring. It is not likely that an architect designing a building today, [sic] would design such a routine entry and exit point in the manner that the relevant area was designed. However, those matters are not sufficient in this case to justify a conclusion that the result reached by the second defendant in the present case was not reasonable. The failure to replace the fire door was consistent with the evidence about the rarity of problems and the decision of the committee permitted a reconsideration of the issue if further evidence or complaints of problems arose. With the benefit of hindsight, it is clearly unfortunate that further action was not taken. However, looking at the matter from the point of view of the second defendant at the time, an incremental approach to addressing the problem was not an unreasonable response. 21. We note the observations of Gleeson CJ in Jones v Bartlett (2000) 205 CLR 166, especially at [23] where his Honour said: There is no such thing as absolute safety. All residential premises contain hazards to their occupants and to visitors. Most dwelling houses could be made safer, if safety were the only consideration. The fact that a house could be made safer does not mean it is dangerous or defective. Safety standards imposed by legislation or regulation recognise a need to balance safety with other factors, including cost, convenience, aesthetics and practicality. The standards in force at the time of the lease reflect this. They did not require thicker or tougher glass to be put into the door that caused the injury unless, for some reason, the glass had to be replaced. That, it is true, is merely the way the standards were framed, and it does not pre-empt the common law. But it reflects common sense. 22. At [61] the Master said: Gleeson CJ made similar comments in Neindorf v Junkovic (2005) 80 ALJR 341 at [7]-[9]. The comments were referred to in Shaw v Thomas [2010] NSWCA 169 where Macfarlan JA (with whom Beazley and Tobias JJA agreed) said: It is a regrettable but inevitable fact of life that dangers still exist in homes, and other places, despite reasonable care having been taken by those in control of such places. 23. We consider that the Master correctly applied the test for negligence as contained in s 42 of the Civil Law (Wrongs) Act 2002 (ACT), which provides: 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. 24. As to the several considerations under the Civil Law (Wrongs) Act, the Master said of the existence of the danger caused by the door at [70] of his decision: The ability of the person entering the premises to appreciate the danger (s 168(2)(f)): So far as there was a danger it was an obvious one. It was one which due to its obviousness, 5

6 the familiarity of the plaintiff with the door and his specific knowledge how the door was used he was in a position to fully appreciate [sic]. (Emphasis as per original) 25. The mere fact that a risk of injury was present on the Respondent s premises is not sufficient to render the Respondent liable in negligence. The risk must be shown to be one which was a substantial risk : see Wyong Shire Council v Shirt (1980) 146 CLR 40 at 48, per Mason J; Shaw v Thomas [2010] NSWCA 169 at [44]. In view of the evidence that the door had functioned without injury to any person from the time of the completion of the building in 1987 to 2009, his Honour was entitled to draw the conclusion that the fire door did not pose a substantial risk. 26. In these circumstances, there was no evidence before the Master that the absence of a vision panel in the fire door constituted negligence by the Respondent. We concur with the Master s finding that there was simply an absence of evidence to justify the conclusion that the Respondent could have, or should have, taken measures to avoid the risk of injury when that risk, on the evidence, was not significant. 27. Accordingly, it must follow that we dismiss the claim that his Honour erred with regard to his finding of the absence of negligence on the part of the Respondent. 28. Significantly, no challenge was made that the Master erred in his finding with respect to the issue of double compensation. Even if negligence had been established by the Appellant against the Respondent on the ground argued on this appeal, the onus nevertheless remained upon the Appellant to discharge the onus concerning double compensation. In the absence of such a successful challenge to this finding, the appeal could not have succeeded. Orders 29. This appeal must be dismissed, with costs. 30. The Court orders: (a) (b) the appeal be dismissed; and the Appellant pay the costs of the Respondent. I certify that the preceding thirty [30] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Justice Burns, Justice Gilmour and Acting Justice Cowdroy. Associate: Date: 17 April

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