Brozinic v The Federal Capital Press Pty Limited trading as The Canberra Times [2015] ACTCA 8 considered the following issues:

  • Whether the defendant could claim the benefit of a Deed of Release the plaintiff had entered into with his employer in relation to the injuries; and
  • The liability of the defendant occupier for injuries caused by a solid heavy fire door being opened onto the plaintiff’s shoulder.

In this Alert, Special Counsel Brooke Jacobs considers the rule against double compensation and the scope of an occupier’s duty of care in negligence.

The facts

The plaintiff suffered two injuries during the course of his employment for cleaning company ISS Facility Services Australia Limited (the employer).

The first injury occurred on 26 March 2010 when the plaintiff reached into his vehicle to take hold of a bundle of supplies and suffered a twinge in his right shoulder.

The second injury occurred on 8 April 2010 when the plaintiff attended the defendant’s premises to deliver cleaning supplies.The plaintiff alleged he suffered further injury to his right shoulder when entering the defendant’s premises due to being struck by a fire door that had been opened from the other side by an employee of the defendant.

The plaintiff initially sued his employer in relation to both incidents.The action was settled by Deed of Release dated 30 August 2013.The terms of the Release specified that it extended to injuries arising from both incidents.The defendant argued that the settlement monies paid by the employer to the plaintiff was capable of attracting the rule against double compensation and that the onus was on the plaintiff to show that the settlement monies were not paid by way of compensation for the loss arising from the second incident at the defendant’s premises.

The defendant otherwise argued it was not liable to the plaintiff for injuries arising from the second incident because they did not arise from any breach of duty on its behalf.

The decision at first instance

The primary judge held that the plaintiff failed to discharge the onus to show that he had not already recovered compensation for the second incident.Accordingly, the trial judge found that, even if negligence by the defendant was established, the plaintiff was not entitled to damages from the defendant due to the operation of the rule against double compensation.

The trial judge otherwise noted a history of incident free usage of the fire door since 1987 and found that there was no evidence of breach of duty on behalf of the defendant occupier.

The decision on appeal

The plaintiff appealed against the trial judge’s finding that the defendant was not negligent for failing to install a window in the fire door.

The plaintiff relied on a Safety Hazard Report commissioned by the defendant on 13 July 2009 which identified in relation to the fire door a risk of “dangerous collisions coming in/going out/climbing and alighting stairs”.  The Report was considered by the defendant’s Occupational Health & Safety Committee on 14 July 2009, at which time the Committee erroneously concluded that a “half glass” fire door was not available on the market.

The plaintiff maintained that:

  • the risk to which he was exposed was foreseeable by the defendant;
  • that the defendant failed to address the risk by installing a fire door with a glass window (which were readily available); and
  • that the trial judge erred in failing to find negligence on the defendant’s behalf.

However, the evidence at trial disclosed that the fire door had been used approximately 320 times per day without reported incident since approximately 1987.

The Court of Appeal referred to the decision in Jones v Bartlett and confirmed that:

“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’”.  

In the circumstances, the Court of Appeal did not consider that there was sufficient evidence to conclude that the defendant could or should have taken further measures to avoid the risk of injury when that risk was not significant.

The plaintiff’s appeal was dismissed.

Key take away points

  • Plaintiffs are generally prohibited from seeking “double compensation”;
  • Defendant occupiers, even when on notice of potential risks, are not necessarily bound to take action, particularly when the risks are not significant.