MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: Jancevski v WR Engineering Pty Ltd ATF WR Engineering Trust

Citation: [2016] ACTMC 8

Hearing Dates: 3 and 4 March 2016

Decision Date: 14 July 2016

Before: Magistrate Campbell

Decision: 1. Judgment is entered for the plaintiff against the defendant in the sum of $95,929.

2. The defendant is to pay the plaintiff’s costs of the proceedings.

3. Order 2 does not take effect for 21 days and, if either party notifies my associate within that period that the party wishes to be further heard in relation to costs, then order 2 does not take effect, if at all, until further order.

Category: Decision

Catchwords: CIVIL LAW – negligence – personal injury – duty of care – whether plaintiff an employee or independent contractor – contributory negligence

Legislation Cited Civil Law (Wrongs) Act 2002 (ACT) 40, 42, 43, 102

Cases Cited: Abdalla v Viewdaze Pty Ltd (2003) 53 ATR 30

Czatyrko v Edith Cowan University (2005) 214 ALR 349

Hawke v Apollo Smash Repairs Pty Limited [1994] ACTSC 137

Hollis v Vabu Pty Ltd (2001) 207 CLR 21

Latimer v AEC Ltd [1952] 2 QB 701

McLean v Tedman (1984) 155 CLR 306

O’Connor V Commissioner of Government Transport (1954) 100 CLR 225

Smith v The Broken Hill Pty Co Ltd (1957) 97 CLR 337

Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16

Sungravure Pty Ltd v Meani (1964) 110 CLR 24

Yaraka Holdings Pty Ltd v Giljevic [2006] ACTCA 6

Parties: Nikola Jancevski (Plaintiff)

WR Engineering Pty Ltd ATF WR Engineering Trust (Defendant)

Representation: Counsel

Mr Muller (Plaintiff)

Mr Whybrow (Defendant)

Solicitors

Maliganis Edwards Johnson (Plaintiff)

Moray and Agnew (Defendant)

File Number: CS 1248 of 2013

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REASONS FOR DECISION

Background

1. This is a claim for damages for personal injury arising from a workplace accident on 28

November 2012. At the time the plaintiff, Nikola Jancevski, was working as a garage

door installer for the defendant, WR Engineering Pty Ltd ATF WR Engineering Trust.

The company’s main business is installing replacement garage doors in domestic

homes.

2. The plaintiff was injured when he was attempting to rectify a problem with a residential

garage door he had installed a few weeks earlier. He was attempting to move upwards

a central spring anchor bracket which was attached by bolts to a brick wall. Attached to

either end of that spring anchor bracket were almost fully tensioned springs. The

bracket came away from the wall, the springs unwound, and the bracket struck the

plaintiff on the left hand. He suffered a comminuted fracture of the basal regions of the

proximal phalanx of the left thumb – a crush injury. He is right-handed.

3. The evidence before me consisted of the oral testimony of the plaintiff and his expert

witness, John Dimopolous, whose report dated 24 November 2015 was tendered.

4. The defendant relied on the oral testimony of Wayne Kee, Robert Clarke and its director,

Wayne Read. Its expert witness, Dr Tim White, gave oral evidence and his report dated

3 February 2016 was also tendered.

5. A large number of documentary records including the plaintiff’s taxation records, details

of his medical expenses and medical reports were tendered by consent.

Operation of a panel lift garage door

6. It was not easy to obtain from the plaintiff’s evidence a clear understanding of the

mechanism of a panel lift door and, more particularly, of the counterweight system used

in one. Annexure A summarises the fundamental parts and operation of a door such as

the one involved in the plaintiff’s accident.

The pleadings

7. The statement of claim was unhelpful and contained a number of errors. It did not assist

me in understanding in advance the factual basis on which the plaintiff made his claim. I

formed the view that the plaintiff did not appreciate how his case had been stated by his

legal representatives.

8. The plaintiff’s given name was spelt incorrectly. It is Nickola, not Nikola, as appears in

every court document. As no application has been made to amend this error I shall

simply note it. The statement of claim also errs in referring to the defendant as WR

Engineering Pty ATF WR Engineering Trust. As far as I can ascertain the defendant’s

correct name is WR Engineering Pty Limited ATF WR Engineering Trust.

9. The statement claimed that the defendant employed the plaintiff as a carpenter. This is

not so although no doubt the plaintiff’s considerable knowledge and skills as an

experienced carpenter were relevant to his employment as a garage door installer.

10. It also claimed that the relevant garage door was spring-loaded and had waves in the

metal which needed to be rectified by relocating a certain bracket which supported the

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door. The task undertaken by the plaintiff when he was injured had nothing to do with

rectifying waves in the door.

11. It also states the plaintiff relocated the bracket on the left side of the door successfully

and began working on drilling the two holes for the right side bracket. The evidence

clearly established that the plaintiff was injured while attempting to relocate the centre

bracket (the spring anchor bracket) of the door.

12. The statement of claim alleges that ‘while doing this the lock pin for the right hand side

spring of the bracket fell out causing the bracket to spin towards the plaintiff’. The

plaintiff’s evidence revealed that it is more probable that the spring anchor bracket

simply came out (under the enormous force contained in the two springs located on

either side of it) although this would no doubt have caused the pin to then come out as a

consequence. The plaintiff was unfamiliar with the term ‘lock pin’. I have assumed that

the reference in the pleading was meant to be to a reinforcing (reo) or winding bar.

13. The particulars, set out in paragraph 2 of the statement of claim alleging negligence,

were as follows:

2.1 Failure to institute and/or maintain a safe system of work;

2.2 Failure to implement any, or any adequate, system of hazard identification and management;

2.3 Failing to take reasonably practicable steps to minimise the risk of injury;

2.4 Failure to provide the Plaintiff with any, or any adequate training;

2.5 Failure to provide the Plaintiff with any, or any adequate safety equipment;

2.6 Failure to perform a risk assessment at the work site;

2.7 Failure to provide the Plaintiff with any, or any adequate, assistance in repairing the subject door;

2.8 Failure to provide the Plaintiff with any, or any adequate, training;

2.9 Failure to provide the Plaintiff with a battery powered spring tensioner designed to ensure that tension on the garage door spring is maintained even if the locking pin falls out; and

2.10 Exposing the Plaintiff to a risk of injury which the Defendant knew or ought to have known.

I note particulars 2.4 and 2.8 are in identical terms.

14. Rather than addressing each of the nine particulars individually, especially as most were

not relevant and not pressed at the hearing, I regard the various particulars as being, in

effect, particulars of two main claims. Namely, that the defendant’s failure to provide a

safe system of work and its failure to ensure that the plaintiff had received sufficient

training were the cause of the accident. Of these two, the plaintiff concentrated in his

written submissions on the defendant’s failure to provide the plaintiff with sufficient or

adequate training.

15. The defendant in its written submissions stated ‘the plaintiff’s version of events keeps

changing’ and ‘in evidence it became clear that the case as pleaded was not what

happened at all’. I agree with this but am reluctant to make a finding about the plaintiff’s

credibility based on these ‘moving sands’. Rather it reflects a lack of understanding on

the part of those who took original instructions from him and who prepared the

pleadings.

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16. I am satisfied that while there is some substance in the defendant’s claim as to the

changing nature of the factual basis of the plaintiff’s case, it was able nevertheless to

answer it effectively. I can see little difference for present purposes on the findings I

ultimately make between inadequate and improper training.

17. The defendant’s pleaded answer to the claim was that ‘the plaintiff arrived early and

elected to undertake the rectification work alone, on his own volition and contrary to an

express direction from the defendant’. Further, that the plaintiff ‘failed to follow the

procedure he was trained in’. It denied that it was responsible for an unsafe system of

work or that it failed to provide the plaintiff with adequate training.

18. In the alternative the defendant claimed that any injury or loss suffered by the plaintiff

was contributed to by his own negligence in that he failed to take reasonable

precautions for his own safety, he acted in a manner that materially increased the risk of

injury and that he performed the rectification work in a manner contrary to the training

and instruction that had been provided to him. It also claimed that he failed to unlock

and unwind the spring before undoing the spring anchor bracket and that he disobeyed

an express direction of the defendant to wait for the attendance of Mr Wilks (an

employee of the defendant) before performing the task.

Evidence of the plaintiff

19. The plaintiff grew up in the Australian Capital Territory. He left school after year 12 and

commenced a carpentry apprenticeship through the Master Builders Association. As a

qualified carpenter he worked with various employers in the building industry. When

there were downturns in that industry he undertook work in other industries such as

landscaping. At one time he was employed by Canberra Locksmiths installing fire

doors, door jams and ceiling bulkheads in commercial buildings.

20. In 2009 he was employed to undertake carpentry work with a business called Complete

Constructions. According to the plaintiff:

I was Mr fix-it man – basically. Any of the trades and their works that we weren’t happy with – it doesn’t matter what it was, whether it was bricklaying, rendering, patching carpet, making floors flat and straight – whatever ... I would fix that for my builder – any work that we weren’t happy with.

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21. I infer from his almost continuous but varied employment history that the plaintiff enjoyed

working. I also infer that when necessary he worked outside his immediate field of

formal training and was comfortable doing so. From his comments about the pleasure

he gained from working with some of his employers such as Rod Sheather, Peter

Zimmerman and Complete Constructions, it was clear that he was proud of his

tradesmanship and of his abilities.

22. In all previous employment he regarded himself as an employee although in his tax

returns from 2006 he refers to the business name ‘Nick Jancevski’ and only occasionally

refers to the receipt of a wage. He obtained an ABN in 2002 but I do not know the

circumstances in which this occurred.

23. In 2012, a friend made the plaintiff aware that there was a position available with the

defendant. The plaintiff made contact with Wayne Read, the managing director of the

company, and arranged for an interview. He told Mr Read that he was a qualified

carpenter and was happy to install garage doors although he had no prior experience in

doing so. Mr Read said the employment was to be full-time work, five days a week.

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The plaintiff was to start on 17 September 2012. The agreement was that through his

training period the plaintiff would be paid a daily rate of $380 and that subsequently he

would receive a specific rate that would be recorded on each job sheet that he was

provided with. As there were different rates for different doors the rate would depend

primarily on the size of the garage door to be installed.

24. The plaintiff’s first week of training involved himself and a Peter Fleming undergoing

practical training with Wayne Kee. Mr Kee came from Sydney specifically to train the

two men in relation to the installation of B&D garage doors. Mr Fleming, I understand,

had been working with the defendant for some time but had primarily been undertaking

other work such as installing gates and fences. According to the plaintiff, Mr Fleming

was ‘quite capable, he is a landscaper by trade’. Mr Read in his evidence said Mr

Fleming was a contract installer who had worked with the defendant for a number of

years. At the time of the training week he was supervising installations, but also

learning more about garage doors. I infer Mr Fleming was well thought of by both men

and already had considerable experience in the business.

25. The three men spent the week together installing a minimum of 10 to 12 doors. The

plaintiff’s memory was that the training involved installing large panel lift doors in double

garage openings. It was practical training. He was exposed to the practice of installing

a door on the very first day and this activity was repeated every day during the five days

of training. He said there was no discussion with Mr Kee about health and safety

policies, safe work method statements or risk assessments. Some of the doors with

which he was dealing had more than one counterbalancing spring (I infer from the

evidence before me that this is the usual case for large panel lift doors). He said that the

men dealt with the task of tensioning counterbalancing springs and the task of adjusting

a door where the counterbalancing spring had already been tensioned. He said he was

shown how to tension a spring and how to de-tension a spring. He was also shown how

to brace a spring to release a very minor amount of tension by leaving a bar ‘in situ’ and

resting it up against the door or wall, allowing the installer to do certain adjustments

without having to de-tension the whole spring.2

26. The plaintiff also had an initial induction session with Mr Read. It appears that this

occurred on the plaintiff’s first working day on 17 September 2012 as a document titled

Workplace Induction Checklist (exhibit 2) bears that date. The document is signed by

both the plaintiff and Mr Read and records, in a checklist, the matters which the two men

discussed. There is a tick next to the topic ‘Supply copies of manufacturer’s products

and installation manuals’ next to which there is a handwritten annotation ‘B&D’. I infer

the signatory meant this to reflect that the B&D installation manual for garage door

installation had been given to the plaintiff. I have no reason to doubt the accuracy of this

contemporaneous record of what occurred. It conforms with Mr Read’s testimony. I find

this notwithstanding the plaintiff said he had no memory of having received the

documents ticked off on the checklist.

27. He agreed that the induction checklist referred to his position as being ‘contract installer’

and that he went through all the items in the induction checklist with Mr Read. It was

suggested to him that Mr Read said ‘here is our safe work method statement for the

installation of B&D roller doors, but as an independent contractor you should develop

your own and supply to us’. The plaintiff agreed that that was written down but his

recollection was not clear. The checklist noted in handwriting that ‘Nick was to supply’ a

copy of his own safe work method statement. He did not have one nor did he ever

prepare one.

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28. Exhibit 8 is the safe work method statement provided to the plaintiff. Page 5 of that

exhibit sets out safe work methods for the installation of B&D roller doors. It refers to

‘installation to be completed using approved B&D installation methods’ (refer installation

manual, hazards highlighted on relevant safety page). The plaintiff agreed that the

safety checklist that was referred to in the defendant’s safe work method statement

contains a list of hazards, one such hazard being identified as the risk of release of

stored energy in a tensioned spring. He said that, even with his little experience with

garage doors, he was aware of the risks that existed from the fact that under tension

these springs contain a lot of energy.

29. The plaintiff said that he did get a sheet with the rates that installers could charge for

various tasks. He did not refer to this again as he would simply take the amount that he

would be paid for a particular job from the work order he found in his pigeonhole each

morning and transfer that amount to his invoice. All his prices were already set out on

his work order sheets.

30. The plaintiff stated that he knew certain manuals and installation instructions ‘were out

there’ but that that they were never ‘put across’ to him. The plaintiff said that not only

had he never been provided with a copy of the B&D installation instruction manual, he

was not told that there were installation instructions on the B&D website. He was not

aware that an instruction leaflet came with each new door. He did know that there were

a couple of hard copies of the installation instructions floating about the office but said

he had only ever seen the front cover of the book and that the instructions were never

shown to him.

31. The plaintiff recalled discussing with Mr Read a probationary period (recorded on the

checklist as three months).

32. In cross-examination the plaintiff said that he had seen copies (only one or two) of the

B&D manuals floating around in the office and suggested that Mr Clarke might have had

one or maybe Mr Read. He then went on, somewhat vaguely: ‘I was asking for it so that

I may review some of my training but when I asked for it I was told there wasn’t one

available for me.’ It was put to him that this might be because it was freely available on

the website at all times and if he really did ask for one he might have been told that. He

replied again ‘it wasn’t available to me’. He also said ‘I’m not allowed to take it with me

and study it.’

33. According to Mr Clarke, the defendant had the full array of installation manuals and

guidelines to outline variations of installation. He said they were available in hard copy

in the office and further some sort of instruction leaflet came with each garage door. The

comprehensive manuals were also available online and Mr Clarke said ‘we gave

everyone access to [them] as well’. He said the hard copies which were kept at the

office could be taken or photocopied as ‘they were there for public distribution, of

course’.3

34. When told that the plaintiff said he had come into the office and asked for a copy of the

manual and was told he could not get a copy, Mr Read said he found that hard to

believe. He added that the manual was readily available public information:

It is available on the Internet, it’s available in the office, there’s no intellectual property around it. It’s for everyone.

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35. When asked if there would have been a problem with someone asking to photocopy 20,

30, or 40 pages with the office resources, he replied ‘we’ve got a, like a document centre

that prints all day every day, manuals and invoices’.

36. In light of the evidence of the two other men I do not accept the plaintiff’s evidence on

this point. I have no doubt that there were printers and photocopiers available in the

office and had he asked he would have been able to print off a copy for himself or have

one printed off for him. Further, the induction checklist records that he was supplied

with a copy of the B&D installation manual at the beginning of his employment with the

defendant. I am satisfied that the plaintiff was provided with a copy of the

comprehensive B&D installation manual and that he could have easily accessed another

copy from the office had he chosen to do so.

37. The plaintiff said that after his first week of training he worked installing doors on his own

but in ‘close proximity of Peter Fleming’ with whom he did his training. He said the two

men would refer to each other if they had missed or forgotten any of the training

particulars from the week before.

38. According to the bundle of invoices prepared by the plaintiff (exhibit 10) the period for

which he recorded himself as having ‘supplied day labour’ including the first training

week, actually lasted for some six weeks. I assume that the plaintiff’s memory has

dimmed with the passage of time. His ‘training period’, where he worked in company of

others gaining additional experience, appears from his own records to have been much

longer than he recalled.

39. This finding is also consistent with the evidence of Mr Read. Mr Read said he told the

plaintiff that it was not a concern that he did not have experience in garage door

installation as they would provide him with some training. He also said to the plaintiff

that from his previous experiences it was best if the plaintiff could work consistently with

them for a period of time, which would depend on how quickly he picked things up. This

normally took around four weeks. He recalled saying ‘if you can dedicate a chunk of

time it will make it easier to train you and you will retain the information better’. He also

suggested that after the training, once the plaintiff got to know the product and the

industry and if he enjoyed it, he should sell his van and invest in a ute.4 They discussed

a day rate that the plaintiff would be paid while he was training. According to the

plaintiff’s invoices, he claimed this ‘day labour’ rate up until 25 October 2012.

40. Mr Clarke, a former employee of the defendant, also thought the plaintiff had undergone

training for about one month.5

41. I am satisfied on the available evidence that the plaintiff was wrong when he said he

started working on his own and unsupervised after one week. When he did start

installing doors on his own, from 26 October 2012, he had already had one week of

intensive training with Mr Kee and another five weeks of regular work in the company of

other installers.

42. The plaintiff said that once he started installing doors on his own, each workday would

start by him arriving at the defendant’s Fyshwick warehouse around 7:15 am. He would

pick up a job sheet from his pigeon hole. He would then locate the relevant garage door

and its components and they would be loaded onto a truck (or his trailer once he had

bought one) ready for installation.

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43. The plaintiff said that he was aware that his work was being checked.6 He understood

that most of the time Mr Fleming or Mr Wilks (the head service technician) would check

his work prior to him being paid to make sure the door was installed correctly. This

evidence reinforces my view that Mr Fleming was quite experienced in the business,

especially as Mr Wilks indicated that this supervisory role was not one he generally

undertook.

44. According to Mr Read, Mr Fleming had some experience doing some emergency callout

stuff if he was in the area and helping with larger two-man jobs and that he had some

understanding of garage doors, although his experience earlier was more with fencing

work. A week (or more) working closely with Mr Fleming was, I infer, of more assistance

than a week with another new-to-the-industry trainee. This week of additional support

presumably (although the evidence remains unclear) occurred after the five weeks of

training finished.

45. The plaintiff said that after his training he still felt that he needed to be around, and have

contact with, people. It is clear that he had contact with Mr Fleming and he had Mr

Wilks’ phone number and was advised that he could call him any time with any

questions.

46. No explanation was given as to why Mr Fleming was not called as a witness although I

understand that he is based in Canberra.

47. The plaintiff knew that his conditions did not include superannuation or leave

entitlements. He also understood that a full-time employee was paid sick leave and he

was not. He pointed out the defendant paid him over and above the legal requirements

and that from those inflated rates he was required to make his own arrangements for his

superannuation. He was paid a higher amount than an employee but this arrangement,

he argued, benefited the defendant more than himself.

48. The plaintiff also agreed that he had to organise his own tax payments and that he had

to account for GST that he had been paid by the defendant. He agreed that if a job was

not allocated to him on a particular date then he would not be paid, unlike an employee

who would be paid whether there was work to do or not.

49. The plaintiff confirmed that he had to supply a vehicle in which he could carry the doors

around. He paid for petrol and phone calls and did not receive a travel allowance. He

also agreed that he was given a list of tools that Mr Read thought might be useful for

him to obtain if he wanted to work with the defendant.

50. The plaintiff stated that he has never had an office or worn a work uniform for the

purposes of any business, such as Nick Jancevski Carpenter. Sometime after his first

week of employment he was provided with a ‘WR’ work shirt which he wore. He has

never registered Nick Jancevski as a business name (although I note that is the name

used in his relevant tax returns), has never had any letterhead for such a business, or

had any signage on his vehicle. He has never prepared a safe work method statement,

a risk management plan or a safety audit for any business.

51. The plaintiff worked for around nine weeks in total before his accident which occurred on

28 November 2012. On a typical day he would install only one door although on several

separate occasions he thought he had installed more than one door.

52. On Wednesday 3 October 2012 the plaintiff went to 10 Banvard Place, Chapman and

installed a B&D Panelmasta sectional double garage door. On 27 November 2012 he

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became aware that this particular door needed ‘adjusting’, although the more

appropriate term he agreed in cross-examination, was ‘rectification’. He was contacted

by phone by Robert Clarke who was at that time scheduling and allocating jobs to

installers on the defendant’s behalf. The plaintiff said at T1-25:

At first I was not under any understanding why I needed to go back to that job and why it was my fault.

Robert Clarke said the top of the door isn’t hitting the brickwork on the inside and it’s kind of letting in birds and so it is not fitted correctly. And I said ‘Well that is the best I can do. I actually tried to make it work properly but it was not the right thing to do (sic)’. So he’s asked me to meet Mr Wilks there to rectify the door. To stay until such time that Mr Wilks had arrived because I might need him to fix the waves in the panels of the doors.

53. The plaintiff described ‘waves’ as being a distortion in the appearance of the door panel

as you look along the face of it. This, he said, only happens to wide doors where the

metal panel starts to delaminate from the frame that holds the door together. He said

that the issue of fixing the waves was a two-man job.7

54. The plaintiff said the arrangement was that Mr Wilks was to be at Chapman at 7:30am

the next morning and that ‘I was to meet him there and we would be together trying to

rectify why there is a problem with this door’. The plaintiff arrived at the property at

7:30am but Mr Wilks was not there so he commenced to do the work ‘that he could do’

on his own.

55. In cross-examination the plaintiff confirmed that he did not understand why he had to go

back to the property in Chapman as he had done his best to fix the door at the time he

installed it. From a notation made by the plaintiff on the original instruction sheet it

appears that his view was that the rails supplied with the door were too short. He said

that he was told to go back and fix the door, that is, he was ‘told to lift the door back up

and to see what size rails that we require’.8 If that was the case, he went further than his

instructions on the day. I note that Mr Wilks actually had some replacement rails with

him when he arrived in Chapman the next morning.

56. The plaintiff said that he understood that Mr Wilks was to go with him as two people are

required to fix the waves in the door and once everything had been finalised Mr Wilks

was to check everything and make sure that the door was satisfactorily installed. He

maintained this was the reason why Mr Wilks was to be there (to help him rectify the

waves in the door) and that he was not to leave even if he had finished fixing the door so

that the two men could do ‘that other component’ of the rectification together.

57. The plaintiff denied that he was directed not to do the job himself or that he was told that

it was an opportunity for him to learn from his mistakes by being assisted by an

experienced installer such as Mr Wilks. He agreed that on the day of the accident Mr

Wilks was to attend with him. Mr Wilks knew a lot about maintenance of garage doors

and he was a go-to person if any issues arose on a job. The plaintiff maintained that

they were supposed to meet each other at 7:30am. He did not ring Mr Wilks to see why

he was late. He simply went ahead and ‘did what he did on a daily basis’. From this I

infer that he was referring to the rectification work on the door.

58. The plaintiff referred to having two phone calls with Mr Clarke the day prior to his

accident. On the first occasion when he was asked to go and rectify the door he replied

that he did not want to go, recalling: ‘I’ve done my stuff right’.9 The plaintiff said that the

rails which were supplied by the manufacturer were obviously too short. He maintained

that nothing was said to him by Mr Clarke about him having cut the rails too short at the

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time of installation. That may be of course because Mr Wilks had not yet examined the

door to see what was the cause of the problem.

59. The plaintiff confirmed that he said he was not going to do the rectification work unless

he was paid for it.10 He said the second phone call was when Mr Clarke advised him

that he would be paid an hourly rate to go and fix the door. The plaintiff said Mr Wilks

was mentioned in both calls. He said the reference to waves was in the first call. He

said this issue (a panel delaminating from a door) is a rare occurrence (in what I note

was his very limited experience) and agreed that they would clearly be a matter that

would be covered by warranty as they would be regarded as a product failure and hence

not his fault.

60. It is apparent that not all in the industry are familiar with the term ‘waves’ and that no

one other than the plaintiff referred to them as being an issue with the particular door in

Chapman.

61. He denied having been told not to try and fix the door by himself by Mr Clarke: ‘That’s

not the telephone calls that I recall that I received off Robert Clarke, no’.11 He also

rejected the suggestion that he went into the office at the end of the previous day and

had a discussion about the job with either Mr Clarke or Mr Read.

62. I find it likely that during the course of the previous day, having received a telephone call

from Mr Clarke, the plaintiff did in fact call in to see him at the office in Fyshwick. First,

because Mr Read was adamant that the plaintiff did go to the office and spoke to both

Mr Clarke and himself (see paras 153-154). And second, because in a written

statement made only seven months after the event by Mr Clarke (exhibit 21) Mr Clarke

stated:

I also told Nick on the afternoon of the 27th, when he was in the office, about the problem.

He said he would go and fix it then and I said no and that he was to meet Craig [Wilks] on site the following morning. There is no doubt in my mind that Nick understood that he was to meet Craig on site the following day.

63. I am satisfied that the plaintiff’s memory is not accurate about what occurred the

previous day and that he did have a conversation with Mr Read in the office along the

lines testified to by Mr Read.

The events of 28 November 2012

64. The plaintiff gained access to the property in Chapman at 7:30am and started work.

The garage he was working on had a metal door but the balance of the structure was

brick. In essence, he said he had to lift the door up two inches (50 mm) which enabled

him ‘to bring the top panel hard up against the inside of the garage making it effectively

a sealed door’.12 To do that he said he needed to raise all of the tracks on the sides and

on the top of the door and all of the brackets. He said this was an activity that he had

undertaken on a daily basis on his own, and with confidence. He did not require any

assistance.

65. The plaintiff expanded on what he did as follows:

I actually grabbed out of the bin two bits of timber, loosened off the side rails and sat them on those timbers and I could see then without removing anything else that I was able to fix that door – the issue with the problem on the top of the door having too much gap. Once I had packed the two side rails up, I then redrilled all of the holes, including into the ceiling and moved everything up 2 inches (50 mm) which enabled me to close the top panel up against the house ... which rectified the problem. Upon doing the rails, I’ve opened the door to check

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whether it’s working properly and the torsion rod was a little bit low. It (I infer the door) was hitting the bracket - the L bracket on the spring.

13

It is not clear to me from the evidence why, if the plaintiff thought this was a solution, he

did not adopt this course on the original occasion when he was installing the door.

66. I found it difficult to follow some of the plaintiff’s evidence as to precisely what happened

the day of the accident so I asked his counsel to summarise the plaintiff’s version for me

after the plaintiff had given his evidence. It was to the following effect: ‘There was a fault

in the length of the tracks that were supplied in the original kit. They were too short so

when they were installed they did not raise the door enough to prevent there being a

gap as the door rolled back.’ The plaintiff then attempted to fix this problem by raising

slightly the rails or tracks which were on either side of the door and then by placing

wood underneath the tracks to be wedged between where they ended and the ground.

67. It is of no great significance whether it was the plaintiff’s fault in cutting the tracks too

short or the factory’s fault in providing them at an incorrect size. The actual work

undertaken by the plaintiff involved him raising the rails on either side and then putting

wood underneath them to reach the ground level. There was then a need to move

slightly the middle spring anchor bracket which was fixed into a brick wall. This he did

by ‘slightly’ loosening the bolts in the spring anchor bracket.

68. At the time of the accident the plaintiff was standing on a ladder loosening the bolts with

a view to pushing the whole spring anchor bracket up. Whatever then happened, the

bracket came away and struck him on the thumb. There were two almost fully wound

springs connected to that bracket by a torsion bar. He agreed the type of bracket he

was talking about was shown in photograph five of exhibit 4 and that it was attached to

the other ends of each spring.

69. The plaintiff said he had put tension on over 30 doors by himself. He knew that it was a

very strenuous activity. He was aware of the amount of energy that was imparted into

the springs as the energy in effect was being used to take the weight of the doors.

70. He said he had issues with other doors and that he had raised with Mr Wilks that he

could not complete their installation ‘as per the manual’ but was told to go ahead

anyway. He was then asked how he knew he would not be doing the installation ‘as per

the manual’, bearing in mind his claim not to have seen one, however the question was

not really answered.14

71. The plaintiff said that in order to brace the spring, he released a little bit of tension from it

and then braced the spring up against the door by placing his reinforcing (reo) bar inside

a hole in the hub (the winding cone) with the bar positioned against the door. He said

there were three (coach screw) bolts in the wall in the spring anchor bracket. He went

on:

It’s only required that I use two and I just needed to move it up slightly. So a lot of the brackets have elongated holes and I am able to move and do minor adjustments ... nearly all of my brackets enable me to do that. So bracing that spring on one end enabled me to slightly loosen off the screws so I could just slightly move that bracket. My intention was not to remove it or do anything like that.

15

It is not entirely clear what the plaintiff meant by this evidence. What is clear (from later

unchallenged evidence) is that as the spring anchor bracket had three bolt holes in it –

one of them would have been a fixed round size and two would have elongated holes.

To move the bracket in the way the plaintiff suggests would require the fixed bolt to have

12

been completely removed from its hole before the bracket could have been even slightly

moved in the way he intended.

72. The plaintiff confirmed that his plan was to loosen the bolts and push the bracket

‘slightly’ upwards and then tighten the bolts again.16 He had also used a pair of vice

grips on the end of the torsion rod close to the drum to hold the torsion rod and spring in

position. He said this process had also been part of the training provided by Mr Kee.17

73. As the plaintiff loosened the bolts, they pulled out of the brickwork. The spring anchor

bracket then spun around, struck him on the left thumb and he was thrown off his ladder.

74. The plaintiff was then asked to clarify his evidence as to what caused the spring to

release energy causing his injury. It was put to him that originally his evidence was that

he was starting to unscrew the bolts when they gave way and the bracket swung around

and struck him on the thumb. He was then asked whether he was now saying that the

bar which was used to anchor the other end may have fallen out effectively releasing the

spring. The plaintiff maintained that both scenarios were possible (the second of them

being the one outlined in the statement of claim) but agreed that nothing would have

happened had he just released the tension in the spring before working on the bracket.

75. It was put to him that by undoing the bolts slightly with the energy in the spring he knew

he was taking a risk, specifically that the plaintiff was ‘depending on this holding so it

[would not] break out’. The plaintiff responded by saying ‘yeah, I sort of...’ and then

likened the risk to the principle of walking on a roof where one does not look down. He

continued ‘we know that certain things are dangerous in our daily activities.’ It was

suggested that one of the things he could do on a roof to reduce the risk of harm from a

fall was to get a harness. It was put to him that, similarly, instead of taking the risk

which he did with the panel lift door, all he had to do was take more time to keep

unwinding the spring at the other end until there was no energy so that there would be

no pressure on the bolts. The plaintiff agreed. The plaintiff agreed that he was not

injured doing what he said was a two-man job, namely fixing waves in the panel.

76. While the total number is not clear, I accept from the plaintiff’s records that he had on

earlier occasions removed a number of garage doors before installing their

replacements and that this may have involved de-tensioning the spring before taking the

door down. It appears however that when he was removing roller doors this process

was not necessary.

77. The plaintiff clearly knew about tensioning and de-tensioning springs. He explained the

process for tensioning a spring and said that generally you would need eight to eleven

full rotations to fully tension or wind up a spring. He also explained that de-tensioning a

spring involved the same actions and the same level of physical exertion, except in the

opposite direction.

78. When asked about bracing a spring, he said that he was shown by Mr Kee:

That you could then release some of the tension – a very minor amount of tension to the door by leaving the bar in situ and resting it up against the door or the wall, therefore being able to do certain adjustments without having to de-tension the whole spring.

18

79. When asked more specifically what were the circumstances in which he was shown that

it was appropriate to brace a spring rather than removing the tension in it first, he

replied:

13

When the door didn’t come straight down on an angle it means one of the cables was tighter than the other one and the door then would shut close in a position where it let dogs and cats underneath, so the door needed to come down in a level position. It is possible for it to come down at an - up and down on an angled position where your adjustments aren’t the same on either side [of the drum].

Now those cables [on either side of the drum] need to be of the same tension on the left and the right side of the torsion rod. And at that point we would – yes, I would – brace the spring so that I could make adjustments to that cable.

This accords with the evidence of Mr Kee that it was safe to brace, in the manner

described by the plaintiff, to make adjustments to the cables located at the side of each

door, away from the springs and the spring anchor bracket.

80. He went on to say that he used the bracing method to adjust a door prior to the date of

his injury quite often. He said it was a very rare occurrence that he would get the tension

of the spring correct the first time round as per manufacturer recommendations.

81. When asked whether there had been any prior occasion where the plaintiff had used the

bracing method to adjust the height of the spring anchor bracket on a door, he replied

‘yes’ and expanded:

The centre bracket is that close when the door is starting to open that the top of the door hits – can hit – that bracket, so yes. There are also elongated holes where we are able to adjust it within an inch up or down on that bracket.

82. The plaintiff agreed that he had been observed and advised in relation to his technique

and issues about the different types of doors he was installing by Mr Kee.

83. He also agreed that he was aware that a spring under tension is a dangerous thing and

that he must be careful of it. He agreed that the biggest danger in the job of a garage

door installer, other than when lifting things, was dealing with the spring and that every

time he installed a panel lift door he was reminded of this danger because he would

have to use quite a bit of muscle to tension a spring at the end of the door’s

installation.19

84. Indeed he said sometimes up to 30 individual movements were involved in the

tensioning or de-tensioning process and that it took a lot of strength. He could feel the

energy that he was putting into the spring. He agreed that it was made clear to him

during his training and based on his own common sense and observations that a loaded

spring contains a lot of energy in it.

85. The plaintiff was aware of the dangers of the energy stored in a spring and its potential

to do harm. He agreed it was something he considered on every occasion he had to

deal with a panel lift door and that he would at least have to explore whether or not there

was any tension in the spring of a door and generally speaking, if there was, whether he

would have to remove the tension.

86. On the day in question the plaintiff said he was ‘very, very slightly’ loosening the bolts

out of the spring anchor bracket after he had braced and reduced some of the tension in

the spring. When asked by counsel for the defendant why he did not undo the spring

the entire way he replied ‘at the time, I’m not quite sure’. The following exchange then

occurred:20

Mr Whybrow: Because what happened is you’ve started to undo the anchor point from the other end of the spring and it sprung out of the wall and smashed your thumb?

14

Mr Jancevski: Yes.

Mr Whybrow: And that was because you ... undid the bolts holding that anchor point in whilst the spring still had energy in it?

87. Again the plaintiff maintained the bolts holding the spring anchor bracket were not fully

undone. He was undoing them only slightly so that he could push the whole unit up in

the bracket while it was still on the wall.

88. He agreed that he was taking a shortcut. When it was put to him that what he ‘should

have done was to release the tension before [he] did anything with the anchor point for

that spring’ the plaintiff agreed and said: ‘What I should have done, yes. Yes,

hindsight’s a wonderful thing.21

89. It is useful to extract some of the questioning that followed:

Mr Whybrow: And you knew that you are taking a risk, but you didn’t expect the bolts to come out of the brickwork?

Mr Jancevski: No ... not like they did. It actually busted the brickwork out.

Mr Whybrow: You didn’t expect that to happen but you knew you were taking a risk?

Mr Jancevski: I took some precautions. Obviously not – not quite enough.

Mr Whybrow: Well, putting a bar on the far end and putting some vice grips on the far end were trying to anchor that end of the spring and isolate that end of the spring?

Mr Jancevski: Yes.

Mr Whybrow: They weren’t going to provide any safety to you in terms of the anchor bracket itself, were they?

Mr Jancevski: Well, I would have assumed that it would’ve, yes. Especially with the two anchor points, yes.

90. The plaintiff agreed that the precautions he took did nothing to reduce the energy being

imparted to the spring anchor bracket. When it was put to him that, to an extent, the

plaintiff had indicated that the accident was his fault, he replied: ‘in – not realising at the

time and hindsight’.22 The exchange continued:

Mr Whybrow: Well, at the time you knew there was still energy in the spring?

Mr Jancevski: Yes.

Mr Whybrow: If you had released the tension on that spring you would not have been injured, would you?

Mr Jancevski: That was a failsafe, yes.

Mr Whybrow: It was step number one in safely moving or undoing this bracket ... to release the energy from it?

Mr Jancevski: I was showed a couple of different ways on how to release or brace energy off that spring.

Mr Whybrow: Can I put to you, you were never advised that you could brace one end and undo and move the bracket with the other?

Mr Jancevski: How would I have known to brace that?

Mr Whybrow: Because you are not stupid, I suggest?

Mr Jancevski: Well, mistakes happen.

15

91. The plaintiff conceded that he was taking a short cut but ‘not to the extent that I would

have wilfully done damage to myself’. He maintained that he had been shown two

different methods to undo the spring and put the tension back in the spring. He was

pressed on this:

Mr Whybrow: You were never shown a method of leaving the tension on the spring and undoing the spring anchor point, were you?

Mr Jancevski: Yes.

Mr Whybrow: In what circumstances, and by who?

92. The plaintiff did not directly answer this question but rather said:

When the torsion rod sat and had a great big sag in it, because when you’re on your own, when you – you’re putting the anchor angle in the middle, you can’t see how high or low you’re putting it, whether it’s sitting straight.

93. The plaintiff was then asked to confirm that he would fix the spring anchor bracket to the

wall before applying energy to the springs. He agreed:

Mr Whybrow: So there is no question of bracing the energy in the springs while you’re putting up the bracket. You don’t put any energy in until you fix the bracket, correct?

Mr Jancevski: That’s right, yes.

Mr Whybrow: So in what circumstances was it ever shown to you as an acceptable method of work, to fiddle around with the anchor brace point or the spring anchor bracket whilst there is still energy in those springs?

Mr Jancevski: Sometimes the – the drum rollers on either side of the torsion bar –

Mr Whybrow Sorry, I am asking you when you were shown, not the circumstance, and who by?

Mr Jancevski: By Wayne Kee.

Mr Whybrow: And when did he say it is okay to undo the screws in the spring anchor bar, or the bolts, whilst there is still energy in the – in the spring system?

Mr Jancevski: He actually showed it to me...

Because it was a little bit low, the same principle as what happened here and we had to tap it up slightly.

94. The plaintiff was asked to clarify whether Mr Kee had showed him or instructed him that

undoing the screws of the spring anchor bracket was an acceptable practice whilst the

springs still had energy in them to which the plaintiff responded: ‘I’d seen him do it. Yes.

I’d seen him do it.’

95. In light of Mr Kee’s evidence, and the plaintiff’s earlier prevarication on this point, I am

satisfied that this is unlikely to have been the case.

96. The plaintiff did not recall, upon his returning to work, replying to Mr Read ‘I stuffed up’

when asked what had happened. It was put to him that Mr Read had then asked him

‘what possessed you to do that’ and the plaintiff responded by saying ‘yeah I know’

whilst looking at the ground shaking his head as if he was embarrassed. The plaintiff

did not recall this exchange and rejected that it might have occurred.23 I have no reason

to doubt Mr Read’s evidence on this point, particularly as I am satisfied that where there

16

are instances of different recollections between the two men and there is some other

corroborative evidence it confirms Mr Read’s version.

97. The plaintiff also denied a conversation with Mr Clarke in which Mr Clarke asked him

what he was doing as he was supposed to wait for Mr Wilks to which the plaintiff replied

‘yeah, I know, but I thought I could fix it myself’. The plaintiff maintained that the

installation problem occurred due to the tracks that were given to him from the factory

which he cut down as per every other track he had cut. The plaintiff reiterated: ‘the issue

was that the tracks were too short’.

After the accident

98. The plaintiff made his way out of the garage through a window and took himself to

Calvary Hospital where his sister worked. From there he was sent to The Canberra

Hospital where he was admitted and underwent surgery the following morning. He had

a left thumb compound fracture. He was discharged on 2 December 2012. When he

was discharged his daughter had to drive him as his left thumb was quite painful and

immobilised in a slab. He could not use his hand. The slab stayed in place for about 10

weeks during which time his daughter helped him with household chores such as

cooking, cleaning and lawn mowing.

99. He was able to get back to work with the defendant (still with the slab on his hand) in

February 2013 after his treating doctor certified him as fit for ‘suitable’ duties. However

he could not do much other than wash cars with his right hand. He progressed to doing

mundane tasks and helping a welder as his labourer, but did not return to installing

garage doors.

100. I infer the plaintiff returned to work not because his injury was so minor but rather

because of his desire to be occupied. He had two further procedures on his left thumb

(in February 2013 and August 2013) to remove Kirschner wires that had been inserted

into it to fixate the fracture. He underwent extensive physiotherapy for a period. After

the slab was taken off his hand he was still meant to wear a splint at night while he slept

to stretch the tendon in his thumb and to increase the range of movement of his

interphalangeal joint.

101. When he finished work with the defendant in April 2013 he was still unable to undertake

carpentry work. It was painful to hold a hammer and nail. He was doing exercises at

home which the physiotherapists had shown him to help regain some movement in his

thumb. It was extremely sensitive at that time and any vibration, for example from a

lawnmower, really hurt. It also hurt him to use tools which vibrated. He struggled to

undertake even simple tasks such as buttoning up a pair of pants which required him to

use both thumbs.

102. He did no further work until June or July 2013 when he started installing double glazed

windows in existing residences. He said the physical demands of that job were quite

different and he was able to accommodate the weakness in his hand. The income was

very similar to that to which he was accustomed. While he has now changed employers

he is still working in the window installation field and is earning a little more than he was

earning with the defendant.

103. He testified that the gripping strength in his left hand is still not as it once was and he

has lost some dexterity in it. It is very sore when he knocks it and he said he is

17

frightened of hitting it with a hammer. He still cannot do certain aspects of carpentry

work with his left hand and avoids using vibrating tools with that hand altogether.

104. There was a challenge to his claim that he had lost strength in his left hand after several

measurements were taken of the grip strength of both hands by doctors employed by

the defendant. However his explanation about the manner in which the grip strength

test was conducted and the fact that he did not really need to use his thumb a great deal

in those tests satisfies me that he was not exaggerating his symptoms.24

105. I have no reason to doubt that the plaintiff has always pursued employment and in no

way has tried to maximise any payout that he might receive as a result of these

proceedings by malingering or claiming to be more incapacitated than he is. He clearly

has a strong work ethic and tries hard to accommodate any ongoing difficulties in his left

hand as best he can.

The evidence of Wayne Kee

106. I found the evidence of Mr Wayne Kee to be helpful in assisting me to understand the

workings of panel lift garage doors.25 He clearly is very experienced in the installation of

both commercial and residential garage doors.

107. It was he who came to Canberra in September 2012 at the request of the defendant

(and I infer at the recommendation of the manufacturer) to provide training to the plaintiff

and Mr Fleming. He said the training of the two men involved the installation of new

doors into new openings. Thus there was no removal of old doors. He stated that his

‘role was to show the blokes how to install the door and cutting of tracks and tensioning

doors and motorising doors (sic)’. Interestingly, in contrast to the plaintiff’s evidence that

the majority of their work was on double doors, Mr Kee said ‘I know we did a lot of single

doors’ during the intensive training week.26

108. It was through Mr Kee that I learned that B&D springs have a tag on them which

provides an estimate of how many turns or revolutions there need be made of a spring

to accommodate the weight of the door. He said that once a spring is wound, it is

checked to see whether it needs to be adjusted, that is, whether more tension is to be

added to, or released from, the spring.

109. Mr Kee said that the mechanics and the basic principles of the springs were explained to

the plaintiff and Mr Fleming. He also said there is always danger when you are working

with a spring because there is so much energy there:

You have to be very careful with it. The [central spring] anchor bracket is crucial. That’s what holds the tension on the spring.

He also added that the spring anchor bracket had to be ‘secured solid’ by bolts before

any energy is put into the spring. Again these principles were explained to the two men.

110. He agreed that he had raised with both men the issue that the spring and the tension in

it is a dangerous thing and you have to be careful of it. He also agreed that he raised

with the men that other than lifting weights the spring was the biggest danger in dealing

with the doors and that when putting up a door or taking one down a worker had to

always consider if there was tension in the spring. I have no reason to doubt Mr Kee’s

evidence. He impressed me as a knowledgeable man who would have taken his role in

educating the two men seriously and diligently.

18

111. His view at the end of the week was that the plaintiff was very competent. He left his

phone number with him and said the plaintiff could call him with any questions.

112. Mr Kee understood that the plaintiff was injured when struck by the spring anchor

bracket while he was working on a double panel lift door that he had previously installed.

He pointed out that a double door would have two springs (this was not readily apparent

from the plaintiff’s evidence) and therefore the two ends of each of the two springs

would be connected into the same spring anchor bracket. This meant that there would

be double the energy stored in the bracket when there was tension in the springs and, of

course, double the force exerted on the bolts holding the bracket in place.

113. He agreed that he had taught the plaintiff how to apply tension to the spring using

winding (or reo) bars and how to release tension from the springs using the same bars.

He also agreed that he had shown the two men a method of taking the tension off a

spring by putting a bar into the winding cone or plug to stop the energy of the spring

being transferred into the door.27 He said on a single door, a bar could be leant against

the panel of the door which would be held in place by the power in the spring. He said

that this was a method which he would probably consider as an appropriate way of

dealing with issues with the cables in relation to levelling of the door. He had never

heard of a bar falling out when under tension and being held against the door in this

circumstance.

114. Mr Kee was asked about his evidence that there was an occasion when he might brace

the plug in order to adjust the cable and level the door. He clarified that he was not

referring to a situation in which he was required to lift the entire door up 50mm, but

rather if one side of the door was lower than the other an adjustment of the cable length

might be needed to level the door. He agreed that he had probably given that

demonstration on a single spring door. He could not remember if there had been such a

demonstration on a double spring door. He agreed however there were occasions when

bracing on the two ends to do some work on the cables was possible and that bracing

would have the same effect as tightening the grub screws at each end of the springs. It

would do nothing about the tension that resides in the spring anchor bracket.

115. Mr Kee was asked to consider what the plaintiff had said he had done which was putting

in a winding bar on one side of the double door so that he could loosen the bolts in the

anchor bracket to move it up slightly. According to Mr Kee this could not be done. He

pointed out that the brackets had a number of slotted holes which might allow for some

movement or repositioning of the bracket but at least one hole which was a fixed shape

which meant the bracket could not move unless that bolt was totally removed. He said

that the method suggested by the plaintiff would not work even had there been no

energy in the springs because the screws in the fixed shaped holes would have to have

been removed.

116. The plaintiff in his evidence said that the spring anchor bracket he was using had three

bolts. His evidence was that ‘it’s only required that I used two and I just needed to move

it up slightly’. Mr Kee did not understand what was meant by this statement. According

to him, the plaintiff would have had to remove one bolt completely before he could

slightly loosen the others to move the bracket up in the way he had testified to. His view

was that it was not advisable to undo one bolt fully when there was tension on the

springs.

117. He was told what the plaintiff said he was doing, namely that he had put the bar into the

left-hand side of the door, in effect to release the tension on the spring, had started to

19

loosen very slightly the bolts in the spring anchor bracket with the intention of then

tapping up that bracket because it was just catching as the door operated. He was

asked if that was a method of maintenance or installation that he had ever showed him

and he replied: ‘No; no, not at all’. The following exchange occurred:28

Mr Whybrow: You say that quite forcefully. Why is that?

Mr Kee: Because those springs are unforgiving. You’ve got to take the tension off before you do anything.

118. Mr Kee rejected the possibility that he had instructed the plaintiff that this was

acceptable practice or that the plaintiff may have seen Mr Kee do this. Mr Kee said he

had never in his entire career done that because he wanted to keep his hands. I found

his evidence, and the manner in which he gave it, to be both credible and compelling. I

am satisfied that Mr Kee did not demonstrate to the plaintiff bracing the door as a way of

enabling the spring anchor bracket to be moved without removing tension from the

springs.

119. Mr Kee said the process of putting in a winding bar and releasing the tension into that

bar by resting it against the door to then loosen the cables would not work on a double

door. You would, of course, have to do it to both springs on either side of the spring

anchor bracket.29 Further, putting a winding bar on the other side of the door as well

would have made no difference to the energy still being imparted on the spring anchor

bracket as there was simply too much energy in the springs:

First of all I know I take the tension off the springs and then move the bracket … There is too much energy there.

120. According to Mr Kee a general principle when working on any panel lift door is to take

the tension off the springs. His estimate was that it would take around seven minutes to

take the tension off both springs in a double panel lift door.

121. When questioned by the plaintiff’s counsel, Mr Kee agreed that his recollection of the

week was good because this was the only time he had undertaken a training role. I

have no reason to doubt that his recollection was indeed reliable taking into account, of

course, the passage of nearly four years since November 2012.

Robert Clarke

122. Mr Clarke no longer works with the defendant but at the relevant time his primary role

was taking bookings and scheduling and allocating the work amongst contractors and

installers for the defendant.

123. He recalled receiving a complaint that a garage door, which had been installed by the

plaintiff in Chapman, was not operating correctly. His usual practice was that whoever

fitted the door was given the opportunity to go back and rectify the situation or ‘analyse it

for future research’.30 He said that he spoke to the plaintiff on the phone and asked him

to go back and look at the door and identify what the issue was. He said that the plaintiff

notified him that he ‘had issues’ with the door so he made arrangements for him to meet

at another time with Craig Wilks who was the lead installer and service technician to

review the situation. Mr Clarke explained the intention behind having Mr Wilks attend

the site with the plaintiff:

Because of Craig’s experience, he could identify the problem and direct Nick where he may have gone wrong either in the installation, or at least identify what the concern was and the best way to go about repairing it.

20

Mr Clarke said he asked the plaintiff not to work on the door, indeed he was instructed to

wait for assistance from Mr Wilks.

124. Mr Clarke did not remember the plaintiff being resistant about going out to the premises

to fix the door nor did he remember the plaintiff asking about being paid to undertake the

job. He said he would not pressure anyone to go to site if they did not want to do so. He

said the decision to pay the plaintiff an hourly rate for going out to the premises would

not have been his decision but Mr Read’s. He was aware that he had provided a

statement signed 25 June 2013 to an insurance company but said that he had not read

it before coming to court. It was put to him that at that time he made no mention about

the plaintiff going out looking at the job and telling him that he could not deal with it.

125. Mr Clarke’s statement was tendered by the plaintiff. I note that this record was made

some seven months or so after the event and it notes:

Nick worked on domestic jobs and he was fine and I had no performance issues. He was thorough but not quick.

I called Nick and told him of the problem and I dropped the warranty papers and booked him in for 8:30 on the 28

th. I organised for him to meet Craig Wilks on site as Craig is our service

technician.

I emailed and sent texts to the fellows about the next day’s work. I also told Nick on the afternoon of the 27

th when he was in the office about the problem. He said he would go and

fix it then and I said no and that he was to meet Craig on site the following morning. There is no doubt in my mind that Nick understood that he was to meet Craig on the site the following day.

Accepting that the memories of all witnesses would no doubt have dimmed with the

passage of time, I am satisfied that this written statement made closer to the time of the

injury recording the contact between Mr Clarke and the plaintiff is more likely to be

accurate than Mr Clarke’s memory in the witness box.

126. After the accident Mr Clarke spoke to the plaintiff on the phone. Mr Clarke asked the

plaintiff why he had been working on the door. He replied that he thought he could fix it

himself. Mr Clarke recalled part of the conversation in his statement:

Nick told me he got to the job early and decided to release the spring and when he did this it hit his thumb. I was surprised that Nick tried to rectify the warranty issue alone as that was why Craig was meeting him on site.

Craig Wilks

127. Mr Wilks is the head service technician for the defendant. He impressed me as a

genuine witness with no particular interest in the outcome of the proceedings. He is

very experienced in servicing and repairing all sorts of garage doors and also has past

experience as an installer. The day before the accident, he became aware of a problem

with a panel lift door in Chapman. He went out and looked at the door and determined

that the wall tracks were cut too short. He said this was an installation problem and

explained that the tracks would come in varied lengths, depending on the size of the

door and how many panels in the door, and they were cut to suit as part of the

installation process. I infer he was saying the plaintiff had made a mistake in cutting the

tracks too short. He is an experienced tradesman and I accept his evidence on this

point.

128. Mr Wilks said when the wall tracks are cut too short the actual curve of the door is

further down the wall. Therefore the top wheels of the top panel will not allow the door to

21

sit up against the lintel and leaves a gap at the top. He said to rectify the problem you

have to cut new tracks and put them in. He said it was not possible to solve this by just

moving the tracks up, say 50 mm, because the track would then be 50 mm too short at

the bottom and the gap would allow the bottom panel to come out when the door was

lowered.

129. By raising the tracks as the plaintiff did he created a new problem which is the wheels

attached to the bottom panel of the door would now drop out of the base of the tracks

when the door was fully closed. An interim fix might be putting some blocks under the

tracks but then there is the problem that the door will not go all the way down to the

ground. And there would probably still be a gap at the top as the top wheel would

remain exactly where it was before.31

130. Mr Clarke sent him and the plaintiff out to rectify the problem. They were to meet at a

certain time and he recalled that time as being ‘eight o’clock, eight-thirty’. He said from

his understanding of the plaintiff’s experience and training he could have done the work

himself but that he was sent out to advise him. He had a set of replacement tracks with

him.

131. Mr Wilks knew he had a job at 7:30am and would have gone from that job to meet with

the plaintiff between 8:00am to 8:30am. Mr Wilks said he always has a job at 7:30 in the

morning. He starts work at 7:30am every day. He was adamant on these points. Had

his job with the plaintiff been meant to start at 7:30am then he would have been there at

7:30am:

I was told to be there at a certain time and I was there.32

Mr Wilks was emphatic that he would not be mistaken about the time. He thought that

the 7:30am job he was booked in for would have been to service a garage door. Mr

Wilks stated that his normal practice was to go to his first job from his home. If he was

running late he would phone.

132. I accept that his working day started at 7:30am and that had Mr Wilks been running late

for his meeting with the plaintiff he would have rung and advised him. I note that his

evidence that 7:30am was not the agreed meeting time is corroborated by the reference

by Mr Clarke in his written statement to 8:30am. I am satisfied that by arriving at

7:30am the plaintiff was arriving earlier than the arranged time.

133. When he arrived the plaintiff was not there so he tried calling him on the phone but there

was no answer. Mr Wilks said he looked inside the garage and saw a double panel lift

door which had two springs. The door was no longer fixed to the wall in the middle by

the spring anchor bracket. The torsion bar was hanging down in an arc.

134. He agreed that putting tension into a spring was a pretty physical process which

involves a reasonable amount of upper body strength. He also agreed that there are

occasions when he might use the brace method adopted by the plaintiff when doing

some work on a door without taking all the tension off the spring but only when adjusting

a cable. This accorded with the evidence of Mr Kee.

135. Mr Wilks said that it was possible that the system could be moved up 50 mm as the

plaintiff had outlined without releasing tension on the springs but it was not advisable,

adding:

Springs are dangerous things. You shouldn’t do anything with the door if you’re going to do major works like that or alterations; it’s not advisable to have spring tension on it at all.

22

136. Mr Wilks was of the view that what the plaintiff was doing would have been unsuccessful

in any event as the elongated holes in the bracket would probably have only allowed the

door to be moved up 15 to 20 mm. Further, there was a ‘huge risk’ in touching the bolts

attached to the spring anchor bracket while the spring was still under tension. He was

not asked about what would happen if the bracket was one which also contained a fixed

bolt. His estimate of the time it would take to unwind the springs on both brackets was

no more than 10 minutes.

137. Mr Wilks said he knew nothing of a complaint about waves in the door. One would think

that if there was such a significant problem an experienced man like Mr Wilks would

have noticed it. He said you would not need two people to rectify the problem. He

added that while it would probably be easier to fix with two people, you would not send

two people to do that job.33 He could not recall a wave issue with this door. I accept that

his role that day was not to resolve an issue relating to waves in the door.

138. Mr Wilks said he was ‘fairly confident’ that all installers were given a set of installation

manuals as part of their induction process. He could not recall specifically but said the

plaintiff probably came out with him as part of his training.34 He also said that five days

of training, involving the installation of 10 to 12 doors was ‘pretty much all you’d need’. I

do not discount this evidence from a man who impressed as a ‘hands-on’ worker rather

than a supervisor who was at a distance from the day-to-day work of installers.

Wayne Read

139. Wayne Read is the managing director of the defendant. He presented as a frank

witness who I regard as a better historian than the plaintiff. He did not become overly

defensive when challenged in cross-examination and I have no basis on which to say I

formed the view that his evidence was in any way unreliable.

140. It was Mr Read’s recollection that it was when he was undertaking a licensing course

with the MBA in 2012 that he asked various contacts in the building industry if they knew

of someone who might be interested in doing contract door installation for him. The

plaintiff’s name was given to him as someone who might be looking for work. He felt it

was more likely that he made contact with the plaintiff rather than the other way around

as he was the one looking for an installer. In any event the two men met.

141. At the time the defendant engaged approximately 20 full-time staff and 20 independent

contractors. Independent contractors were used as that meant when a lot of work was

available the business could engage more people and when they did not have as much

work contractors were able to find other sources of income. The contractors undertook

mainly installation work.

142. Mr Read spoke to the plaintiff about him being retained as a contractor. At that stage

the plaintiff was doing some other building work which was soon to finish. Mr Read

asked him if he would like to come and do some training and undertake a trial to see if

he liked the work and if they liked him. Mr Read knew that the plaintiff had experience in

the building industry so he understood building principles. He said the plaintiff had a

robust knowledge of construction.

143. In their preliminary talks Mr Read told the plaintiff that it was of no concern that he did

not have experience in garage door installation as they would provide him with training.

He also said that from previous experience it was best if the plaintiff could work

consistently with them for a period of time, depending on how quickly he picked things

23

up. This normally took around four weeks. He said ‘if you can dedicate a chunk of time

to us it will make it easier to train you and you will retain the information better’. He also

suggested that after the training, once the plaintiff got to know the product and the

industry and if he enjoyed the work he should sell his van and invest in a ute.35 They

discussed a day rate that the plaintiff would be paid while he was training.

144. Once the plaintiff said he was interested, the two men sat down and Mr Read said he

would get the plaintiff to go out with the company’s installers and technicians. He said

the company would also get an installer from B&D, the manufacturer of the garage

doors, to come down and spend some time with the plaintiff with a view of getting him

trained and installing doors as soon as possible.

145. Mr Read explained the process of going through the workplace induction checklist

(exhibit 7) with the plaintiff. He said the writing on the page other than the plaintiff’s

signature was his. He provided the plaintiff with copies of the defendant’s safe work

method statement and said that the plaintiff would need to work by his own safe work

methods but as a minimum ‘we would like to see you following these’. The plaintiff

never provided a copy of his own safe work method statement.

146. Mr Read also said that the manufacturer’s installation booklets for garage doors and

garage door openers were supplied in a paper form as were copies of the

manufacturer’s products and installation manuals. This is reflected in the induction

checklist signed by both men. He said the installation manual for Panelmasta B&D

doors would have been one of the manuals supplied to the plaintiff (see exhibit 9).

147. Mr Read said he found it hard to believe that, had the plaintiff come into the office and

asked for a copy of this manual, he would be told that he could not have a copy. The

manual was readily available public information:

It is available on the Internet, it’s available in the office, there’s no intellectual property around it. It’s for everyone.

148. When asked if there would have been a problem with someone asking to photocopy 20,

30, or 40 pages with the office resources, he replied ‘we’ve got a, like a document centre

that prints all day every day, manuals and invoices’.

149. True to his word, Mr Read organised for the plaintiff to go out with the defendant’s

existing door fitters and service technicians and, further, he arranged for an external

door fitter recommended by the manufacturer in Sydney to come down and provide

some training. He recalled having used Wayne Kee before. It appears that he was

wrong in this recollection as Mr Kee stated he had not provided training previously, and

that was the reason why he remembered the training of Mr Fleming and the plaintiff so

well.

150. After the week’s training Mr Read said he had very positive contact with the three men.

Mr Read reported that Mr Kee had said both men were switched on and appeared keen

and willing to learn and seemed to be grasping concepts relatively well; they just needed

a bit more training by way of experience. To provide that experience Mr Read said that

he kept engaging them and sending them out with others to do installations.

151. He said from memory the plaintiff would have continued to invoice the defendant for the

agreed day rate until it came to a time when the plaintiff actually approached Mr Read

and said ‘I’m ready to go out and do some installations’. At that point the pay rate

changed from a set rate to the actual installer rates. At no stage did the plaintiff express

24

a need for more training or suggest that he was unfamiliar with any of the products.

According to the plaintiff’s invoices his ‘day labour’ work with other installers went on for

some five weeks after the initial training week with Mr Kee.

152. On or about 27 November 2012, a call came in from a customer to say they were not

happy with a job. The defendant’s procedure in such a case was to normally send one

of their more experienced installers or technicians out to look at the job to ascertain

whether it was an installation issue or product issue. What happened next depended on

whether it was a product issue that needed to be raised with the manufacturer or a small

product issue that might be fixed on the spot. If it was an installation issue and it was

something major that needed rectification then the technician would come back and

book a time to go back out with the installer and run through the job with the installer.

This accords with Mr Clarke’s evidence about the practice he adopted that day when

advised of the problem.

153. Mr Read was challenged about his recollection that the plaintiff came into the office on

27 November 2012 and spoke with Mr Clarke. It was put to him that Mr Clarke did not

give that evidence and that he thought his contact with the plaintiff had only been over

the phone. Even in the face of this claim Mr Read maintained that his recollection was

correct. In my view it was. The document tendered by the plaintiff after cross-

examination of Mr Clarke contained a statement from Mr Clarke to the effect that the

plaintiff did indeed speak with him in the office the afternoon before and I am satisfied

that his recollection seven months after the event is more likely to be accurate than that

of some 3 ½ years later.

154. Mr Read said that at the time he recalled the conversation being of some significance

because the plaintiff:

was arguing the point on when the warranty was going to be done and that’s when I interjected and said “its tomorrow morning with Craig. You’ll go to site tomorrow morning – not this afternoon – and do the warranty with Craig”.

He said as the plaintiff was relatively new in the business and had only been working for

a shortish period of time he wanted Mr Wilks and the plaintiff to go back and rectify the

problem together so he could learn from his mistake (cutting the rails too short) and

hopefully not make it again. Mr Read said the plaintiff did not appear happy but he left

the office and Mr Read assumed that he would follow his instructions.

155. According to Mr Read, the business’s workers compensation insurer accepted liability

and the plaintiff started receiving payments while he was off work and obtaining medical

treatment for his hand.

156. When the plaintiff returned he was provided with alternative duties. At that time, Mr

Read said to him: ‘what did you do, what happened?’ to which the plaintiff replied that he

had undone the spring anchor bracket and released the tension of the spring and it

came around and struck him. When Mr Read asked him ‘what possessed you to do

that?’ there was apparently no answer from the plaintiff who just looked sheepish and

directed his gaze to the ground.

157. In cross-examination Mr Read agreed that someone in the plaintiff’s position who was

dealing directly with a client was a representative of the business. He agreed that it was

important that installers do a good job and they conduct themselves well in dealing with

clients as this affected the business’s reputation. Part of the defendant’s induction of

25

staff was that they were made aware of the business’s standards and that they maintain

the reputation of the business.

158. Mr Read confirmed that as an independent contractor the plaintiff was responsible for

financing his own sick and holiday leave and superannuation. He recalled early invoices

provided by the plaintiff did not include an amount for GST so he spoke to the plaintiff

about that and from then on the invoices included the GST amount.

159. The defendant did not pay a petrol allowance or mobile phone allowance to the plaintiff

and did not supply him with tools, other than maybe some props.

160. Mr Read explained that employees are required to complete a weekly time job sheet

whereas contractors must complete tax invoices. Some company employees received

company vehicles, others did not. Clothing was supplied to everybody. He agreed that

this was because he wanted representatives to look the part and properly represent the

company.

161. He would not allow an installer engaged by him to sub-contract that installation work to a

third party who is unknown to him and about whose skills and expertise he had no

knowledge.

162. Mr Read did not remember any issue concerning waves in the door. Indeed the term

was not meaningful to him. He thought it may be referring to oil canning. To his

knowledge this would not normally be rectified on a service call, however he would defer

to Mr Wilks’ judgment on that issue. He said:

That is why we sent a senior technician or a senior installer to have a look at a warranty claim because the first thing they do is they identify is it an installation or is it a product issue. If it is a product issue it’s taken up with the supplier of the product. If it’s an installation issue then it’s taken up with the installer of the product.

163. When asked if there was any process in place to monitor and assess the work the

plaintiff was performing Mr Read said:

[The plaintiff] spent time with Craig and he spent time with Peter Fleming. ... He’d spend time with Neil in the morning getting his job prepared and ready. Nick talked to me about how he was going and where he was at. His work was inspected and checked.

The plaintiff also said he was aware that his work was checked so I infer that this

assessment did indeed take place presumably more by Mr Fleming than anyone else.

Expert engineering evidence

164. While of assistance to me in understanding the mechanisms of a panel lift garage door,

it was ultimately not necessary for me to rely on the conclusions of one or other of the

experts.

Plaintiff’s expert – John Dimopoulos

165. Mr Dimopoulos is a professional consulting engineer. His report was tendered as exhibit

12 and he was made available to the defendant for cross-examination.

166. In part 4 of his report he summarises the information which was provided to him either

by the plaintiff at interview with him or from documentation provided to him by the

plaintiff’s legal representatives. He said the plaintiff gave a clear account of the relevant

circumstances to him. They were not so clear in court.

26

167. According to Mr Dimopoulos at part 4.15 of his report, the plaintiff said that he needed to

raise the garage door by about 50 mm ‘to resolve the fit’ issues. He first moved the

tracks on either side of the door by retreading the holes and repositioning the tracks on

the garage wall. The plaintiff then realised he would also need to move the spring

anchor bracket in the centre of the door that was held by three bolts fixed into the brick

wall above the door. The report continued:

4.16 The centre bracket supports a metal shaft that runs the width of the door. It also supports the torsional springs which react against the shaft and which counterbalances the weight of the doors.

4.17 The plaintiff recognised that the springs were under tension, so he placed a metal bar in the winding cone and braced it against the wall believing it would counteract the tension in the spring; however, this was not the case.

4.18 The winding cone is used to tension the spring by placing two metal bars in it and slowly rotating the winding cone until the desired spring tension, to counterbalance the weight of the doors, is reached.

4.20 The moment he released the three bolts securing the centre bracket to the wall the bracket violently rotated striking the plaintiff on his left thumb and causing him to fall off his ladder. The brace in the winding cone did not counter the reaction of the spring.

168. Mr Dimopoulos said that the plaintiff advised him that he was not provided with any

documented procedures in respect to the installation of roller doors, or how to maintain

or disassemble a roller door. The plaintiff did not recall being provided with any safe

work method statements or any documented procedure as to how to install or remove

roller doors. Mr Dimopoulos was of the understanding that the plaintiff’s training period

lasted five days.

169. A significant portion of his report was taken up with extracts of statutory provisions and

codes (some of which did not contain any material relevant to this matter).

170. In his discussion and analysis, he stated:

7.3 Mr Jancevski thought he had contained the forces in the spring by placing a metal bar in the winding cone and bracing it against the wall. However this would not have contained the energy in the spring as it was being held at its other end by the bracket which he released. The only way to remove the bracket without the resulting reaction of the spring was to first remove all the tension in the spring.

171. He went on:

7.11 After one week of installing roller doors Mr Jancevski was left unsupervised, installing doors. There did not appear to be any training in the removal or maintenance of the roller doors.

7.12 There was no regular supervision and there was no requirement by his employer from Mr Jancevski to conduct a risk assessment prior to commencing work.

172. His conclusion was that the plaintiff was placed at risk of injury by the defendant in the

circumstances described. The basis of the reasoning process leading to his conclusion

was the evident fact that the plaintiff was not adequately trained in the risks associated

with spring system roller doors, and was not provided with information or advice about a

safe system of work about installation, removal or repair of roller doors.

173. Mr Dimopoulos said at 7.15 of his report that measures which were available to the

defendant to prevent exposing the plaintiff to risk were as follows:

27

By ensuring that Mr Jancevski was properly trained and that he understood all the risks associated with installation of roller doors. Adequately trained, Mr Jancevski may have been aware of the risks and that the procedure he was using would place him at risk.

By having documented suitable work procedures with regard to the installation and dismantling of roller doors that he would be able to follow.

By providing better and closer supervision. In particular, by ensuring that Mr Jancevski was carrying out work safely.

By using mechanical assistance, such as an electric winder, to apply and remove the spring tension system, as that shown [on page 15 of the report]. Such a tool would enable the safe application and removal of spring tension. Such tools are available ... [and use] the assistance of a cordless drill to apply or remove the spring load.

174. Mr Dimopoulos confirmed that he had not viewed the door involved in the accident but

he had seen similar doors and was familiar with them.36 He was asked whether he had

been provided with a copy of Dr White’s report in which Dr White spends a reasonable

amount of time explaining in some detail the mechanics of the operation of the door.

When asked if he had any disagreement with Dr White’s descriptions of the way the

door operates in terms of the engineering and the stresses and the counterbalance Mr

Dimopoulos said ‘I cannot say that I’ve gone through it section by section…’.

175. Although it was not clear from the text of Mr Dimopoulos’ report that he knew that the

door in question (which he refers to throughout his report as a roller door when it is a

panel lift door) had two springs he seemed aware of this in his evidence. When

questioned he said he understood that part of moving the door up 50 mm involved

moving the centre (spring anchor) bracket upon which the two torsion springs were

contained. He understood it was a double panel lift door and there would be two springs

both of which were connected to the centre (spring anchor) bracket.

176. When he was asked what tool the plaintiff was using to remove the bolts on the bracket

he said he could not recall any detail regarding that but would have included it in his

report had he thought it relevant.

177. Mr Whybrow asked the question:

Would it affect any of your opinions if I was to advise you that the effect of Mr Jancevski’s evidence today was that he was aware that that bracket was under pressure and that it was holding the springs down and that what he was doing was trying to slightly loosen the bolts in order to tap the bracket up a bit higher in its frame without having to go through the process of releasing the tension on the springs? [He then rephrased the question] If a person, knowing that bracket was under the tension of those springs and knew that they were taking a risk by loosening those bolts rather than releasing those springs, that would tend to suggest, do you not agree, that he had had at least sufficient training to understand the risks of what he was doing?

37

178. Mr Dimopoulos replied, in part, ‘I don’t know that he realised or understood that that bar

was doing the job for what he was doing’. He said he had the impression that the plaintiff

did not appreciate the danger of what he was doing by loosening the bolts. It was based

on this that he concluded that the plaintiff had not received adequate training to inform

him of the risks of what he was doing in that he was not aware fully of the mechanism.

179. He also stated that from speaking with the plaintiff he understood that he was not

required to disassemble any doors and from that he took it to be that he may not have

been aware of the need to de-tension the springs before removing a door.

28

180. Mr Dimopoulos was referred to part 4.26 of his report where he said the plaintiff told him

that he did not recall being provided with any safe work method statements or any

documented procedure as to how to install or remove roller doors. Mr Whybrow put to

Mr Dimopoulos that, in evidence, the plaintiff indicated that he was provided with the

defendant’s safe work method statement for installation of B&D doors. Mr Dimopoulos

said:

I think he knew the dangers of the springs. I think he didn’t understand how the brackets and the springs all worked in terms of ...

181. Finally, Mr Dimopoulos agreed that his opinion that the training was inadequate was

based on his understanding of what was involved in the training. If the training was

more intensive or extensive and, Mr Jancevski’s understanding of the risks of certain

procedures was greater than he had told the expert, then his opinions might need to be

assessed against that new information.

Defendant’s expert – Dr Timothy White

182. To the extent that it is necessary to do so I prefer the report and conclusions of Dr

White. His report is clear, easy to follow and addresses each of the issues carefully. He

also impressed me more as a witness when cross-examined by telephone link than did

Mr Dimopoulos. The latter impressed as reluctant to move from his position on certain

points even when advised that the factual underpinnings for them had not been

established in the plaintiff’s evidence. His report lacked detail and in my view showed

not enough understanding of the actual system in operation on the door.38

183. In a nutshell, Dr White’s finding was that the incident was the result of the plaintiff taking

a shortcut in the process of repositioning parts of the counterbalance system. That is, he

tried to reposition the part (the spring anchor bracket) without first releasing the spring

tension. He argued that it was a shortcut exercise, most primarily a time-saving

measure, in that it was an attempt to reposition parts of the door without going through

this process of de-tensioning the counterbalancing springs. I do not disagree with this

and nor did the plaintiff.

184. Dr White’s view was that the training undertaken by the plaintiff was adequate. He said

that a tensioned spring was like a loaded gun with respect to the amount of damage it

could do. He would expect that specific guidance would be given at some stage of

training with regard to this being a particular hazard. Even if based on the assumption

that the plaintiff received training on the job over a period of one week, that involved him

participating to some degree in 10 to 12 door installations. If at the end of that process

he commenced to work unsupervised as a door installer with access to an experienced

service technician by telephone as required and with at least the first week of his

independent work with another newly trained installer working in relatively close

proximity to him.

185. Dr White based his conclusion partly on the fact that if the plaintiff was involved in 10 to

12 installations then he either directly participated in or observed between 10 to 24

springs being installed and tensioned. He would have observed tensioning of the

springs being a relatively lengthy process and that as the spring was wound up the

person tensioning the spring would need to apply more and more force. He said an

average, reasonably technically-minded person would become aware of just how much

force was being contained in those springs as they were wound up. Indeed that much is

readily apparent to a not overly technically-minded judicial officer.

29

186. He says that as a qualified carpenter/tradesman the plaintiff must have demonstrated at

some point in his career that he was capable of thinking through the processes of work,

planning his work, and of course other experienced installers were nearby if he got into

a position where he thought he needed help or where he was unsure how to proceed.

187. In re-examination Mr Whybrow put to Dr White that:

Mr Jancevski, himself, indicated that, during the training, issues were raised with him that a spring under tension is a dangerous thing and you’ve got to be careful of it. That the major component of the biggest danger, other than a lifting injury, was dealing with the spring and that he was aware of that and then he was asked this question “every time you install the panel lift door you had that reminder because you would have had to use quite a bit of muscle to tension that spring at the end of the installation, wouldn’t you?” ... And he said “100 per cent. It takes a lot of strength.” And he agreed that you can feel all the energy that you are putting into that spring and that he was aware that one of the biggest dangers in this job was the energy in the spring.

39

188. Dr White responded that, having said this and having acknowledged the energy in a

spring, it strongly suggested to him that the plaintiff was made aware of this either in

training or in his work subsequent to training and prior to the time of the incident.

Was the plaintiff an employee or independent contractor?

189. The categorisation of the plaintiff as an employee or independent contractor determines

the extent of the duty of care owed to him by the defendant. The legal distinction

between these two categories of workers has been the subject of significant judicial

consideration with various tests being adopted over time. Referring to a plaintiff in

relevant documents as an independent contractor, as was the case here, cannot alter

the true nature of the basis of the relationship between the parties if it is otherwise.

190. Traditionally the test used at common law to find a suitable basis for distinguishing

employees from those performing work on some other basis, was that of the nature and

degree of control exerted by the ‘master’ over the ‘servant’.

191. In Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 (Brodribb) at [20], the

High Court held that it was not just the level of control (or the right to exercise control)

which should be considered as a determinative factor but the totality of the employment

relationship. This includes such factors as the mode of remuneration, the provision and

maintenance of equipment, the obligation to work, the hours of work, provision for

holidays, the deduction of income tax and the worker’s ability to delegate tasks.

192. Subsequently in Hollis v Vabu Pty Ltd (2001) 207 CLR 21 (Hollis v Vabu), the High

Court observed that the traditional test of whether the contract placed the supposed

employee at the command of the employer was of limited relevance in modern

conditions. On this approach, the presence or absence of the right of control is just one

of a number of factual elements or ‘indicia’ – some characteristic of a contract of service

and others suggestive of a different employment relationship – that must be examined

before a decision is reached. This balancing exercise has been described as

‘necessarily impressionistic’ since there is no universally accepted understanding of how

many indicia, or what combination of indicia, must point towards a contract of service

before the worker can be characterised as an employee.40

193. In Yaraka Holdings Pty Ltd v Giljevic [2006] ACTCA 6 the ACT Court of Appeal referred

to a somewhat lengthy passage from Abdalla v Viewdaze Pty Ltd (2003) 53 ATR

30 (Abdalla) as offering useful guidance on the question of whether a worker was an

30

employee. Abdalla was a decision of the Full Bench of the Australian Industrial

Relations Commission which said [at 34]:

Following Hollis v Vabu, the state of the law governing the determination of whether an individual is an employee or an independent contractor may be summarised as follows:

1. ... The ultimate question will always be whether the worker is the servant of another in that other’s business, or whether the worker carries on a trade or business on his or her own behalf: that is, whether, viewed as a practical matter, the putative worker could be said to be conducting a business of his or her own. This question is answered by considering the totality of the relationship.

2. The nature of the work performed and the manner in which it is performed must always be considered.

3. The terms and terminology of the contract are always important and must be considered. However, in so doing, it should be borne in mind that parties cannot alter the true nature of their relationship by putting a different label on it. …

4. Consideration should then be given to the various “indicia” identified in Brodribb and the other authorities bearing in mind that no list of indicia is to be regarded as comprehensive and the weight to be given to particular indicia will vary according to the circumstances. Where a consideration of the “indicia” points one way or overwhelmingly one way so as to yield a clear result, the determination should be in accordance with that result. For ease of reference we have collected the following list of “indicia”:

a. Whether the putative employer exercises, or has the right to exercise, control over the manner in which work is performed, place of work, hours of work or the like

Control of this sort is indicative of a relationship of employment. The absence of such control or the right to exercise control is indicative of independent contract. While control of this sort is a significant factor, it is not by itself determinative. In particular, the absence of control over the way in which work is performed is not a strong indicator that a worker is an independent contractor where their work involves a high degree of skill and expertise. On the other hand, where there is a high level of control over the way in which work is performed and the worker is presented to the world at large as a representative of the business then this weighs significantly in favour of the worker being an employee. ...

b. Whether the worker performs work for others (or has a genuine and practical entitlement to do so)

The right to the exclusive services of the person engaged is characteristic of the employment relationship. On the other hand, if the individual also works for others (or the genuine and practical entitlement to do so) then this suggests independent contract.

c. Whether the worker has a separate place of work and/or advertises his or her services to the world at large

d. Whether the worker provides and maintains significant tools or equipment

Where the worker’s investment in capital equipment is substantial and a substantial degree of skill or training is required to use or operate that equipment the worker will be an independent contractor in the absence of overwhelming indications to the contrary.

e. Whether the work can be delegated or subcontracted

31

If the worker is contractually entitled to delegate the work to others (without reference to the putative employer) then this is a strong indicator that the worker is an independent contractor. This is because a contract of service (as distinct from a contract for services) is personal in nature: it is a contract for the supply of the services of the worker personally.

f. Whether the putative employer has the right to suspend or dismiss the person engaged

g. Whether the putative employer presents the worker to the world at large as an emanation of the business

Typically, this will arise because the worker is required to wear the livery of the putative employer.

h. Whether income tax is deducted from remuneration paid to the worker

i. Whether the worker is remunerated by periodic wage or salary or by reference to completion of tasks

Employees tend to be paid a periodic wage or salary. Independent contractors tend to be paid by reference to completion of tasks. Obviously, in the modern economy this distinction has reduced relevance.

j. Whether the worker is provided with paid holidays or sick leave

k. Whether the work involves a profession, trade or distinct calling on the part of the person engaged

Such persons tend to be engaged as independent contractors rather than as employees.

l. Whether the worker creates goodwill or saleable assets in the course of his or her work

m. Whether the worker spends a significant portion of his remuneration on business expenses

This list is not exhaustive. Features of the relationship in a particular case which do not appear in this list may nevertheless be relevant to a determination of the ultimate question.

5. If the indicia point both ways and do not yield a clear result the determination should be guided primarily by whether it can be said that, viewed as a practical matter, the individual in question was or was not running his or her own business or enterprise with independence in the conduct of his or her operations as distinct from operating as a representative of another business with little or no independence in the conduct of his or her operations.

Finding – the plaintiff was an employee

194. I have had regard to the number of facts that point to the conclusion that the plaintiff was

operating as an independent contractor. In particular, he was characterised so in

available paperwork (there is no formal written agreement signed by both parties). He

had an ABN, claimed GST, and was not paid sick leave or recreation leave. He was

paid only upon submission of his invoices. He provided most of the equipment he used

including his own motor vehicle and he claimed business expenses in his income tax

returns. The defendant did not make superannuation contributions on his behalf.

195. However some of these indicia resulted from the reality that the plaintiff was required to

operate in a way mandated by the defendant in order for him to be able to obtain work

32

with the defendant. The terminology ‘independent contractor’ was, in effect, imposed on

him. The non-payment of sick leave, holiday leave and superannuation contributions

are not unequivocal indicia of an independent contractor. Temporary and casual

employees sometimes work under similar conditions.

196. The plaintiff commenced work at a regular time every day (set by the defendant) and it

appears that he was routinely provided with work for at least four or five working days

each week. He undertook tasks allocated to him by the defendant. He was paid for

completing a task not by the number of hours he worked (more reflective of an

independent contractor). Indeed he was dependant on the defendant for the provision

of work notwithstanding the agreement that he could theoretically work for others. There

was no room for him to bargain for, or negotiate, different fees for particular tasks.

197. The precise execution of the task of installing a garage door was left to the plaintiff but

he remained subject to the defendant’s control as to which job he was to do and when

he was to do it. While he was not under moment-to-moment control of the defendant in

the way he performed his tasks that was of course because he was an experienced

tradesman. He was not free to delegate or sub-contract performance of the work to

anyone else – he was expected to perform all the allocated work personally.

198. The plaintiff’s work was checked by other employees of the defendant. The defendant

itself has acknowledged that on the day of the plaintiff’s injury he had been directed not

to undertake any rectification work until another worker, Mr Wilks, was able to attend

with him so that he could ‘learn from his mistakes’. He was paid for undertaking this

additional work whereas I infer an independent contractor would not be.

199. There was no suggestion that the plaintiff had any business relationship with any other

person or entity at that time. His intention was to work predominantly or exclusively for

the defendant. The plaintiff did what he did for the benefit of the defendant, not as a

principal pursuing his own business. It was important to the good will of the company’s

business that the plaintiff perform well and represent the defendant’s business well. The

plaintiff was required to wear the ‘livery’ of the defendant. He had no business name,

paperwork, or signage on his vehicle. He did not advertise for work and only undertook

that allocated to him by the defendant.

200. Ultimately I am satisfied that, while his financial records clearly point to a contrary

finding, the plaintiff was not offering to the defendant the services of a business he was

running but, as a matter of practical reality, he was an employee in the defendant’s

business.

The claim in negligence – relevant law

201. The Civil Law (Wrongs) ACT 2002 (ACT) (the Act) deals with the law relating to

negligence as follows:

40 Definitions

negligence means failure to exercise reasonable care and skill.

42 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.

33

43 Precautions against risk—general principles

(1) A person is not negligent in failing to take precautions against a risk of harm unless—

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and

(b) the risk was not insignificant; and (c) in the circumstances, a reasonable person in the person’s position would

have taken those precautions.

202. I note that these three conditions are cumulative. Section 43 continues:

(2) In deciding whether a reasonable person would have taken precautions against a risk of harm, the court must consider the following (among other relevant things):

(a) the probability that the harm would happen if precautions were not taken; (b) the likely seriousness of the harm; (c) the burden of taking precautions to avoid the risk of harm; (d) the social utility of the activity creating the risk of harm.

Nature of the defendant’s duty of care

203. The most important obligation of an employer towards an employee is directed to the

safety of the employee. Every employer is under a duty to take reasonable care to

avoid foreseeable risk of injury to an employee.

204. In O’Connor V Commissioner of Government Transport (1954) 100 CLR 225, 229-30,

the majority of the High Court said:

The defendant as employer was of course under a duty, by his servants and agents, to take reasonable care for the safety of the deceased by providing proper and adequate means of carrying out his work without unnecessary risk, by warning him of unusual or unexpected risks, and by instructing him in the performance of his work where instructions might reasonably be thought to be required to secure him from danger of injury.

205. The standard of care is a standard of reasonable care and does not amount to a

guarantee of the safety for the employee. In Latimer v AEC Ltd [1952] 2 QB 701,

Denning LJ said at 711 that ‘it is a matter of balancing the risk against the measures

necessary to eliminate it’. What is reasonable in the circumstances of the case is

influenced by current community standards. The employer’s duty goes beyond a duty

not to inflict harm to a duty to take positive steps towards accident prevention.41 The

standard of care for an employee’s safety is not a low one. Nor is it an absolute one.

206. More recently the High Court in Czatyrko v Edith Cowan University (2005) 214 ALR 349,

353, expressed the basic principles relating to the employer’s obligation to provide a

safe work environment as follows:

An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in the work place, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards: Smith v The Broken Hill Pty Co Ltd (1957) 97 CLR 337, 342. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work.

Liability – the defendant was in breach of its duty of care

207. I am satisfied that the plaintiff received significantly more practical on-the-job training

than he can recall. I am also satisfied that he was provided with, and had access to, the

34

relevant installation manuals as well as the defendant’s safe work methods statement.

His apparent failure to read these documents does not relieve his employer of its

responsibility to ensure that he was educated on the safety issues raised in them.

208. The task undertaken by the plaintiff was within the scope of his ordinary duties (making

adjustments to an installed door) and he was adopting a method of bracing a spring

similar to that which Mr Kee had shown him, albeit in different circumstances namely to

perform minor adjustments to the cables at the sides of the door.

209. It is clear that Mr Kee and Mr Wilks knew that a spring under tension was a dangerous

thing and that Mr Kee impressed this fact on the plaintiff during the course of their week

together. I accept that neither Mr Kee nor Mr Wilks would attempt to move the spring

anchor bracket to make alterations on an installed door until ensuring that the relevant

springs were fully unwound. Indeed I am satisfied that the only safe method for moving

the spring anchor bracket of the door was by first removing all tension from the springs.

210. It is plain that the defendant could reasonably foresee that there was a real risk that a

worker carrying out the plaintiff’s duties would sustain an injury of the kind that occurred

were he to attempt to move the spring anchor bracket without first removing all tension

from the springs.

211. The issue is of such significance that there should be no doubt from the evidence that

the plaintiff’s training included very clear guidance as to the extremely limited

circumstances, if any, in which the practice of making minor adjustments to a door could

be engaged in without first releasing the tension in the spring(s). While I am satisfied

that the plaintiff was very aware of the potential danger of a tensioned spring, I am not

satisfied that he was ever told not to brace a spring in the actual circumstances which

arose in this case. The hazard posed by a tensioned spring warrants such a specific

warning.

212. I am satisfied that the defendant breached its duty of care to the plaintiff by not ensuring

that he was trained explicitly in relation to the potential hazard posed by tensioned

springs in a double panel lift door and that the bracing of one spring (or indeed both)

was not an acceptable method for making adjustments to the spring anchor bracket in

any circumstance.

213. While the plaintiff started work in breach of a direction to wait for Mr Wilks, he was not

told that he was to wait because he might work on a fully tensioned spring and as a

result be injured. Rather the reason was, as this was his first ‘warranty job’, so that Mr

Wilks could show him what he did incorrectly on the earlier occasion and how to rectify

the problem. It was not disobedience of the direction which directly caused the plaintiff’s

injury, although had he waited as he had been told to he would not have been injured.

Contributory negligence – the plaintiff failed to take reasonable care

214. The defendant argues that the plaintiff shares responsibility for the injury he sustained

and that the amount of damages awarded to him should be reduced accordingly.

215. Section 102(1) of the Act deals with contributory negligence as follows:

(1) If a person (the claimant) suffers damage partly because of the claimant’s failure to take reasonable care (contributory negligence) and partly because of someone else’s wrong –

(a) a claim for the damage is not defeated because of the claimant’s contributory negligence; and

35

(b) the damages recoverable for the wrong are to be reduced to the extent the court deciding the claim considers just and equitable having regard to the claimant’s share in the responsibility for the damage.

216. Frequently the work an employee is required to undertake will involve danger and the

risk of injury. If an employee is injured in these circumstances, and contributory

negligence is alleged, the question arises whether the employee's failure to act in a

particular way is to be characterised as mere inadvertence or other excusable conduct

or whether it does actually amount to negligence: McLean v Tedman (1984) 155 CLR

306, 315. Justice Windeyer observed in Sungravure Pty Ltd v Meani (1964) 110 CLR

24, 37 that:

When a worker in a factory is alleged to have been wanting in care for his own safety, the jury may, of course, as part of the totality of circumstance, have regard to such things as inattention bred of familiarity and repetition, the urgency of the task, the man's preoccupation with the matter in hand and other prevailing conditions. They may consider whether any of these things caused some temporary inadvertence to danger, some lapse of attention, some taking of a risk or other departure from the highest degree of circumspection, excusable in the circumstances because not incompatible with the conduct of a prudent and reasonable man.

217. I am satisfied that the plaintiff failed to take reasonable care (measured against that of a

worker of ordinary prudence) for his own safety and that this lack of care contributed to

the injury he suffered.

218. I find that he was confident in his own experience and abilities and that he consciously

made a decision to proceed to rectify his mistake on his own and in Mr Wilks’ absence.

Further, I am satisfied that he was directed by his employer to wait until Mr Wilks’ arrival

– albeit for him to be shown how to cut the tracks correctly and reinstall the door. He did

not. He intentionally started the job early and without supervision. He took a ‘short cut’.

Any time constraint he was working under in taking this ‘short cut’ was self-imposed.

219. The plaintiff knew very well that working with loaded springs was inherently dangerous.

Whatever training he had, and I find it was considerably more than the plaintiff stated, by

the time of November 2012 he was well aware of the danger of working with tensioned

springs. He had been provided with the defendant’s safe system of work manual and

the B&D installation manual itself. He knew there was a way of undertaking the task he

was attempting that would guarantee that he would not suffer any injury (see his

evidence in paras 85-93). The safe system involved him removing tension from the

springs which would have taken 7-10minutes.

220. By failing to de-tension the springs before adjusting the spring anchor bracket he failed

to take the only practicable and straightforward step to enable the work to be done

safely. This was not a matter of inadvertence or inattention. It was an experienced,

mature tradesman, possessed of ordinary common sense and confident in his ability,

intentionally not following proper practices with a significant result to himself. When

asked why he proceeded without removing tension from the springs he answered ‘[a]t

the time, I’m not quite sure ... I took some precautions – obviously not enough’. As he

said, ‘hindsight is a wonderful thing’.

221. On the evidence the plaintiff would need to completely remove the fixed bolt from the

spring anchor bracket to move the other bolts ‘slightly’. He was taking an additional risk

with his own safety. Any reasonably prudent person would have known this was

hazardous and, indeed based on the explanations given in court of the obvious flaw in

such an approach, doomed to fail.

36

222. I am quite satisfied that what the plaintiff did went beyond the taking of a risk that was

excusable in the circumstances. I reduce the damages I would otherwise award by 50

per cent. I am of the view that this apportionment is just and equitable having regard to

the plaintiff’s significant share in the responsibility for his injury.

Damages

223. There was no great dispute between the parties about the quantum of damages to be

awarded to the plaintiff should he be successful in his claim. When there was a contest

(and the discussion on the defendant’s part was brief) it related to the estimates for

future expenses which are often difficult to quantify with great precision.

224. I am of the view that the appropriate amount to award for general damages is $80,000.

225. I assess interest on the past portion of general damages, using the plaintiff’s method of

calculation, as $3,750.

226. I assess past economic loss at the agreed amount of $47,200.

227. I assess interest on past economic loss at the agreed amount of $6,608.

228. The plaintiff’s claim for future economic loss of $40,000 is put on a buffer basis. It (and

the claim for future out of pocket expenses) relies on comments in the report of Dr

Brooden, a neurologist, dated 10 August 2014:

However , I would consider that there needs to be some contingency in place to allow for the significant risk that at some stage in the future [the plaintiff] will require further investigation and treatment of any premature degenerative osteoarthritis that develops in his left first metacarpal phalangeal joint. This contingency should allow for further radiological investigations, assessment and treatment through either a rheumatologist or an orthopaedic/ hand surgeon and the possibility that he may require a joint replacement procedure.

The claim is said to be based on an allowance of one year of earnings for the future

which was allowed by Higgins J in Hawke v Apollo Smash Repairs Pty Limited [1994]

ACTSC 137 (Hawke’s case) to a twenty year old man. The plaintiff is considerably older

than the plaintiff in Hawke’s case and the injury, while also to the hand, is nevertheless

less significant. Further Dr Robin Higgs, an orthopaedic surgeon, whose recent report

was prepared following a consultation with the plaintiff, and after reading Dr Brooden’s

report, stated in January 2016:

I have formed the conclusion that Mr Jancevski’s condition has stabilised. I do not believe there will be any significant improvement, nor any further significant deterioration of Mr Jancevski’s condition within the foreseeable future.

I note that Dr David Fitzgerald, whose report dated 7 June 2013 was tendered by the

defendant, also stated ‘I doubt surgery will be required in the future ... there is the

possibility of some deterioration in the future with arthritic change in the joint’.

Due to the absence of any certainty as to the need for future treatment, I shall allow a

cushion of $10,000 for future loss of income. It is not clear from the medical reports that

the consensus is that the plaintiff’s injury will be productive of any financial loss in the

future and certainly not one as high as the amount claimed.

229. I assess past out of pocket expenses at the agreed amount of $29,900.

230. I assess future out of pocket expenses (noting that in the circumstances it is difficult to

determine if there will be any need for future treatment or surgical intervention) at

$5,000.

37

231. I assess loss of superannuation at the unchallenged amount of $4,400.

232. Past and future domestic assistance is assessed at $5,000 (again a token amount being

attributable to potential assistance in the future).

233. The total comes to $191,858 before apportionment which reduces the amount to

$95,929. I make the following order:

1. Judgment is entered for the plaintiff against the defendant in the sum of $95,929.

2. The defendant is to pay the plaintiff’s costs of the proceedings.

3. Order 2 does not take effect for 21 days and, if either party notifies my associate

within that period that the party wishes to be further heard in relation to costs,

then order 2 does not take effect, if at all, until further order.

I certify that the preceding 233 numbered paragraphs are a true copy of the Reasons for Decision of her Honour Magistrate Campbell.

Associate: Verity Griffin

Date: 14 July 2016

Annexure A – Operation of a panel lift door

This summary is in large part taken from information provided in Dr White’s report.

The door being worked on by the plaintiff was an automatic (motor driven) panel lift garage

door. More specifically it was a Panelmasta double width model manufactured by B&D.

It consisted of a number of panels which are hinged together. The hinging or folding of

several smaller panels (up to five), as opposed to the movement of one big panel, reduces

the amount of space required for opening and closing a garage door. The panels fold as

they change orientation from vertical to horizontal as the door opens and vice versa. Rollers

at the corners of each of the panels run in what is known as a guide rail or track on each side

of the doorway.

The tracks themselves are L-shaped, that is, they run vertically up the frame of the garage

opening and then curve gradually until at approximately 90° where they then extend

backwards horizontally into the garage itself and run parallel to the roof.

The rollers at the corners of the panels all lie in the vertical section of each of the two tracks

when the door is closed but move up with the panels as the door opens and thus lie in the

horizontal section when the door is fully open. The door is opened and closed by an electric

motor. In simple terms the motor drives a chain loop that runs along the middle guide rail.

The chain loop moves a handle that is attached to the top panel and the handle is either

pulled towards the motor or pushed away depending on whether the door is opening or

closing.

Panel lift doors rely on spring loaded cables, one on either side of the doorway, to act as a

counterbalance against the weight of the door. One end of each cable is attached to a

38

bracket at the bottom of the door. The other end locks into a slot in a drum at either end of

the torsion bar at the top of the doorway. The torsion bar is a metal shaft that runs the width

of the door. It is supported in its centre by the spring anchor bracket. The drums are locked

onto the torsion bar with set screws. As the two drums are connected to the same torsion

bar they operate as a single assembly. The load the cables have to lift at the floor is very

heavy but lessens as the door is raised and opened.

The stationary end of each spring (there are two in a double door) is bolted to the spring

anchor bracket which is anchored to the wall. The torsion bar usually rotates freely within

this bracket. At the other end of the spring there is what is known as a winding cone (a plug)

which allows the spring to be wound and has set screws which fastens it to the bar after it is

wound. It is by winding this plug using two metal bars (reo or winding bars/rods) inserted into

it that tension is placed in the spring. Once a spring is fully wound and the set screws are

tight then you can remove the winding bars.

The cables link the door to the counterbalance and keep the spring from unwinding. The

force of the spring will want to rotate the shaft in the opposite direction to which it was

wound. The spring always wants to return to its original unwound state.

When the door is down the weight is on the cables and each spring has at least eight turns in

it. The force through the system is thus at its maximum when the door is fully closed. When

the door goes up the spring unwinds and gets progressively weaker as the door continues to

go up. When the door is all the way up there is hardly any load on the cables and the spring

is almost completely unwound. When the door goes down the spring winds back up.

1 Transcript of Proceedings, Nikola Jancevski v WR Engineering Pty Ltd ATF WR Engineering Trust

(ACT Magistrates Court, CS13/1248, Magistrate Campbell, 03 March 2016) (T1-) 14. 2 T1-20.

3 T2-137.

4 T2-179.

5 T2-138.

6 T1-24.

7 T1-25.

8 T1-44.

9 T1-45.

10 T1-47.

11 T1-42.

12 T1-26.

13 T1-26; The L-bracket is also known as the spring anchor bracket.

14 T1-73.

15 T1-27.

16 T1-29.

17 T1-30.

18 T1-21.

19 T1-48.

20 T1-66.

21 T1-67.

22 T1-69.

23 T1-72.

24 T1-41

25 Transcript of Proceedings, Nikola Jancevski v WR Engineering Pty Ltd ATF WR Engineering Trust

(ACT Magistrates Court, CS13/1248, Magistrate Campbell, 04 March 2016) (T2-) 113-115. 26

T1-126. 27

T2-118. 28

T2-121. 29

T2-120. 30

T2-133.

39

31

T2-163. 32

T2-160. 33

T2-161. 34

T2-157. 35

T2-179. 36

T1-94. 37

T1-97. 38

For example, one of his submissions as to the means the defendant could take to prevent exposing the plaintiff to risk was: ‘by using mechanical assistance, such as an electric winder, to apply and remove the spring tension system’. However, the primary function of an electric winder would have been to expedite the application or release of spring tension: not to be a substitute for removing the spring tension before disassembly of the door. Dr White’s response points out that ‘mechanical assistance’ is irrelevant to the current matter – see page 36 of Dr White’s report. 39

T1-176. 40

Breen Creighton and Andrew Stewart (eds), Labour Law (Federation Press, 4th ed, 2005) 286.

41 Carolyn Sappideen, Paul O’Grady and Geoff Warburton (eds), Macken’s Law of Employment,

(Lawbook Co, 6th ed, 2009) 190.