EVERY CASE TURNS ON ITS FACTS

Legal Directions

Jancevski v WR Engineering Pty Ltd [2018] ACT CA 34

Background

The plaintiff was engaged by the defendant to install garage doors at residential premises in the ACT. In his first week of employment, the plaintiff commenced on the job training with an experienced installer. After the initial training, the plaintiff had a further five weeks of regular work, generally under the supervision of other installers, before undertaking jobs alone.

Following a faulty installation by the plaintiff in late 2012, rectification work was required under warranty. The defendant directed the plaintiff to return to the residential premises together with an experienced installer who would supervise the rectification works. A date and time was agreed for the parties to attend the premises.

The plaintiff arrived at the premises on the agreed date, but prior to the agreed time. He commenced the rectification work by himself, in breach of the direction given by the defendant. He also adopted a ‘short cut’ method of work, contrary to his training. In performing this rectification work, the plaintiff sustained injuries to his thumb and index finger.

Judicial history

The plaintiff commenced common law proceedings seeking damages in the Magistrates Court of the Australian Capital Territory. The plaintiff alleged that the defendant had breached its duty of care, with reference to the relevant tests and standards prescribed by the Civil Law (Wrongs) Act 2002 (ACT).

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

At first instance, Her Honour Magistrate Campbell found that the defendant had breached its duty of care to the plaintiff. The Magistrate found that the task being performing by the plaintiff was so dangerous that an explicit warning was required not to implement a ‘short cut’ method of work. However, the Magistrate reduced the award of damages by 50% on account of the plaintiff’s contributory negligence.

WR Engineering Pty Ltd ATF WR Engineering Trust v Nickola Jancevski [2017] ACTSC 202

In our Legal Directions dated 24 August 2017, we reported on the decision of the Supreme Court of the Australian Capital Territory in its appellate jurisdiction. Acting Judge Ashford was:

satisfied the scope of the appellant’s [the defendant’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 [the plaintiff] was the author of his own misfortune.

Acting Judge Ashford commented that the Magistrate’s finding of negligence was ‘akin to a finding of strict liability being imposed on the appellant, which is not the case.’

ACT Court of Appeal — Jancevski v WR Engineering Pty Ltd [2018] ACT CA 34

The plaintiff appealed the decision of Acting Judge Ashford to the Full Court of the ACT Court of Appeal. The appeal was heard before Murrell CJ, Elkaim and Charlesworth JJ.

The Chief Justice delivered judgment in the ACT Court of Appeal on 24 August 2018, dismissing the plaintiff’s appeal. In so finding, the Court of Appeal reiterated the importance of statutory interpretation when considering allegations of negligence.

ACTCA judicial consideration

The evidence established in the Magistrates Court proceedings was unchallenged in either appeal.

Accordingly, the Court of Appeal was required to interpret the accepted evidence against the relevant legislative standard of negligence as prescribed in Chapter 4 of the Civil Law (Wrongs) Act 2002 (ACT). The provisions within this Chapter are similar to those contained within analogous civil liability legislation in other jurisdictions.

The Court of Appeal commented that the categorisation of the relationship between an employer and employee was well known. Indeed, the High Court of Australia had considered this class of legal relationship on numerous occasions. However, the Court of Appeal warned against the general application of broad ‘catch-all phrases’ when examining such a relationship.

In particular, the Court of Appeal commented that commonly pleaded allegations of negligence against employers such as ‘a failure to provide adequate training’, is actually comprised of various discrete steps of statutory interpretation. The Court of Appeal also warned against the misapplication of phrases such as ‘strict liability’, noting that liability in any given case is to be construed against the relevant legislative standards.

The Court of Appeal applied a simple approach in determining whether the defendant, with all information that it had or ought reasonably to have had, protected against the relevant risk of harm viewed in the prospective manner. This approach can often be overlooked in search of all-encompassing common law principles. Indeed, the Court of Appeal warned against this analysis at [51] of the judgment:

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).

Takeaway points

The decision is a helpful reminder that an employer’s duty of care to an employee, while onerous, does not extend to protecting against every potential risk of injury. The duty is to be viewed in a prospective manner, applying the tests imposed by the relevant legislation.

When advising on claims in negligence, the prospects of success should be confined to what can be established in evidence and whether the relevant tests prescribed by statute can be discharged. In that same vein, caution should be heeded in interpreting too broadly general statements of the judiciary, even in cases which may appear to be analogous.

As has often been cited, each case will turn on its facts. This decision is an important reminder that this self‑evident legal approach should not be overlooked in the search of wide-reaching jurisprudential principles.

Moray & Agnew acted for the respondent, WR Engineering Pty Ltd.

Further information / assistance regarding the issues raised in this article is available from the author, Chase Deans, Senior Associate.


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