Insurer successfully avoids liability for catastrophic injuries by establishing that the negligent driver was the unlicensed teenage plaintiff and not his father.

In Issue

  • Whether the appellant’s version of events was accurate.
  • Whether the employer ought to have replaced the lift mechanisms when they were on notice that the lift had “areas of non-compliance".

Background

The appellant was employed by the respondent. On 12 August 2008, she stumbled as she attempted to exit the lift of the building in which she worked. In attempting to regain her balance, she twisted her neck and exacerbated a pre-existing degenerative condition.

The appellant commenced proceedings against the owner of the building. A year later, she commenced separate proceedings against the respondent as her employer and the occupier of the building, and two other parties.

Decision at trial

The appellant submitted that upon exiting the lift, there was a height difference of between 30mm and 50mm from the lift floor to the foyer floor and this caused her to trip. She argued that there had been prior levelling problems with that particular lift and that the respondent should have replaced the lift mechanisms.

In giving judgment for the respondents, the trial judge rejected the appellant’s evidence as to the height of the step, determining it could not have been greater than 6mm and rejected the argument that the respondent’s duty extended to replacing the lift mechanisms.

Issues on appeal

The appellant filed notices of appeal in relation to each proceeding but only the proceeding against the employer respondent remained on foot by the time of the appeal hearing. The issues raised in that appeal were the trial judge’s rejection of the appellant’s evidence as to how the accident occurred and the scope of the duty of care owed by the respondent employer.

Decision on appeal

The appellant failed on both issues and the appeal was dismissed. Regarding the first issue, the Court of Appeal held that the trial judge drew inferences from circumstantial evidence but neither supported a finding as to the height of the step.

As to the second issue, the Court of Appeal upheld the trial judge’s decision that whilst the respondent had been notified that the lifts had “areas of non-compliance [with AS]”, the respondent was not advised that the machinery needed to be replaced. Further, had the respondent upgraded the lifts (at a cost of $475,000), there was no guarantee that the lifts would never stop out of level as the updated machinery had a levelling tolerance of +/- 6mm.

Implications for you

This case demonstrates that an occupier’s duty does not extend to replacing lift mechanisms unless advised to do so, provided they were of an appropriate standard at the time of installation. The duty extends to appointing an appropriate lift servicing company to carry out inspections and maintenance and implementing a system to verify the performance of regular maintenance.

Schneider v AMP Capital Investors Ltd; Schneider v Kent Street Pty Ltd [2017] NSWCA 40