Keywords:
Civil law – negligence – breach of duty of care – vicarious liability
Decision:
Judgment in favour of the plaintiff against the defendants in the sum of $347,470. Mossop J, decision delivered 14 December 2023.
Facts:
The plaintiff sustained personal injury arising out of an incident that occurred at his workplace on 6 February 2019. The chain box for a manually operated roller door fell on the plaintiff’s head causing a deep laceration to the back of his head. The plaintiff sustained a mild traumatic brain injury and psychological injury as a result of the incident.
The first defendant quoted for the installation and was awarded the contract by the ACT Government. The first defendant subcontracted with Capital Doorworks for the installation of the chain boxes. Capital Doorworks supplied the chain boxes and contracted with the third defendant for the installation of the chain boxes on the site. The fourth defendant performed the installations.
Two days following the accident, a structural engineer examined the site and said the reason for the failure of the roller-door motor was due to deficient welding of the vertical, engine-mount steel plate to the steel column.
Ratio:
The first defendant had a contract with the ACT Government for the maintenance of the roller door in question, along with a significant number of other roller doors on the site. Having admitted the existence of a duty of care, the question was its scope and standard of care. So far as scope is concerned, the first defendant’s duty was clearly limited to the scope of activities required pursuant to its contract.
It extended to people who were employees of the ACT Government who worked in the building. So far as the standard of care is concerned, the duty extended to determining the safety and operability of the roller doors. That included the adequacy of the welds to perform their function. It was clear there was a foreseeable risk of harm if the components of the roller door, including the chain box, were not secure, and this involved checking the adequacy of any welds in securing it.
Five different technicians were identified as having carried out inspections. The inspections involved a visual inspection only of the welds. In each case, the welds were checked, and no issues reported. The effect of the evidence was that the inspector had no relevant training that would allow him to identify a defective weld. The task as he had understood it was to examine the weld visually so as to see whether there was a visible crack.
His Honour found that the first defendant breached the duty of care which it owed to the plaintiff as an employee of the ACT Government working in the shed to take reasonable care in its examination of the adequacy of the welds forming part of the roller door the subject of the maintenance contract. That breach was causally related to the harm suffered by the plaintiff.
His Honour did not accept the claim by the plaintiff that the first defendant was also separately liable as an “occupier”. The extent of control that it had over the premises pursuant to its contract with the ACT Government was not sufficient to make it an “occupier”.
The liability of the third and fourth defendants depended upon whether or not the plaintiff had established that the welding that failed was done by the fourth defendant. An alternative case which the plaintiff attempted to advance was that, even if the fourth defendant had not done the welding, because at the time of installation of the chain box the bracket was attached to the steel upright that formed part of the building, he would still be liable because he had failed to detect the inadequacy of the welds. His Honour determined that the plaintiff was bound by his pleadings and as a consequence an alternative case could not be advanced.
His Honour concluded the plaintiff had established on the balance of probabilities that the fourth defendant was the installer of the relevant chain box and that as part of that installation process he welded the edge of the angle bracket to the structure of the building. It was that weld which ultimately failed, resulting in injury to the plaintiff. His Honour was satisfied that the welding performed by the fourth defendant fell below the standard reasonably expected of a person installing chain boxes. The failure caused the injury to the plaintiff. The third defendant is responsible for the conduct of its officer, the fourth defendant.
His Honour concluded that both the first defendant and the third and fourth defendants were liable to the plaintiff for the damages that he suffered as a result of the accident on 6 February 2019.
The third and fourth defendants were those responsible for the installation of the chain box with the defective welds and hence created the ultimate hazard. The first defendant failed to detect the defects in the welding and its cracking. It was not responsible for the creation of the hazard in the first place.
His Honour felt an appropriate apportionment of damages was 70 per cent to the third and fourth defendants and 30 per cent to the first defendant.
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