Keywords
Negligence – workplace injury – occupier’s liability
Facts
Mrs Patricia Cox (the Respondent) was employed as an assistant in nursing at a residential aged care facility known as Opal Florence Tower, in Tweed Heads. On 4 July 2018, the Respondent was inside an elevator at her normal place of employment when the elevator suddenly stopped during its descent due to a test of an emergency power supply from a back-up generator.
The Respondent suffered an injury to her lumbar spine because of the sudden stopping of the elevator. The testing was conducted by two gentlemen named Mr Hyndes and Mr Garner. No notice was given to staff within the Opal Florence Tower that testing was going to occur.
The retirement village involved three related companies, ‘DAC Finance’, ‘DAC (NSW/QLD)’ and ‘DPG Services’. DAC Finance operated the business name ‘Opal Aged Care’, it did so on land owned by its wholly owned subsidiary DAC (NSW/QLD), while DPG Services (another subsidiary) owned the business name ‘Opal Florence Tower’ and employed the Respondent.
The Respondent successfully brought proceedings against DAC Finance and DAC (NSW/QLD) (the Appellants) in the NSW District Court before Acting Judge Levy SC, alleging that both entities were liable as owners/occupiers of the land where the incident occurred and breached a duty of care to her.
The Respondent did not commence proceedings against her employer, DPG Services, because her incident related injury had been assessed with 8 per cent whole person impairment (WPI) which did not overcome the 15 per cent WPI hurdle imposed by s151H of the Workers Compensation Act 1987 (NSW) (the Act).
The following pertinent points are noted from the primary decision of Acting Judge Levy SC:
- The primary judge did not make an explicit finding about the employment of Mr Hyndes or Mr Garner, despite being asked to do so by the parties.
- The primary judge considered the Appellants were both relevant occupiers of the premises where the Respondent was injured. The duty of care was held to extend to ‘consideration of matters of safety with regard to scheduled maintenance of fixtures within the premises, including passenger elevators’. The liability of DAC (NSW/QLD) was purported to turn on its ownership of the lift and the power generator as fixtures of the premises. While the liability for DAC Finance turned on a concession it ‘may have’ contracted with third party service providers to maintain the lift.
The Appellants appealed, challenging a number of the primary judge’s findings. The key issue on appeal was who caused the breach of duty and what entity (if any) was liable for the breach.
Decision
Ward P, Leeming JA, Mitchelmore JA decision delivered 16 July 2024. Appeal allowed.
Orders 1 and 2 made in the District Court were set aside and judgment entered in favour of the Defendants.
The Parties to be heard on costs.
Ratio
Leeming JA noted that the two people ultimately responsible for turning off the power supply to the lift at the time of the incident were Mr Hyndes and Mr Garner (neither of which were a party to the proceeding).
Both men provided statements to the workers’ compensation factual investigator in which they stated they were employed by Opal Florence Towers.
Leeming JA noted that while there is no entity named Opal Florence Towers, DPG Services owned the business name Opal Florence Tower. Leeming JA noted that none of the parties tendered any evidence to displace the inference that both Mr Hyndes and Mr Garner were also employed by DPG Services.
Leeming JA then explained that it was Mr Hyndes and Mr Garner that failed to warn staff and residents that the power was to be tested and therefore failed to take a reasonable step that would have avoided the not insignificant risk of harm.
Accordingly, DPG Services was vicariously liable for the negligent acts of its employees. However, DPG Services was not a defendant to the claim.
The critical issue identified by Leeming JA in relation to the primary judge’s decision is that both the findings of the nature of the duty of care and the alleged breach of duty with both Appellants was ‘divorced’ from what actually occurred on the day of the incident.
The Court explained that the breach of duty that caused the Respondent’s injuries was not some failure to repair or maintain the lift, or failure of electricity to the building due to a poorly maintained power supply. Rather, it was the positive act of two employees of DPG Services.
Ultimately, Leeming JA explained that the only conduct that was relevant towards the breach of duty to the Respondent was the conduct of Mr Hyndes and Mr Garner and the only vicarious liability available based on their conduct is the vicarious liability of their employer, DPG Services.
Share this article