Brozinic v The Federal Capital Press Pty Limited trading as
The Canberra Times  ACTCA 8 considered the following
Whether the defendant could claim the benefit of a Deed of
Release the plaintiff had entered into with his employer in
relation to the injuries; and
The liability of the defendant occupier for injuries caused by
a solid heavy fire door being opened onto the plaintiff's
In this Alert, Special Counsel Brooke Jacobs considers the rule
against double compensation and the scope of an occupier's duty
of care in negligence.
The plaintiff suffered two injuries during the course of his
employment for cleaning company ISS Facility Services Australia
Limited (the employer).
The first injury occurred on 26 March 2010 when the plaintiff
reached into his vehicle to take hold of a bundle of supplies and
suffered a twinge in his right shoulder.
The second injury occurred on 8 April 2010 when the plaintiff
attended the defendant's premises to deliver cleaning
supplies.The plaintiff alleged he suffered further injury to his
right shoulder when entering the defendant's premises due to
being struck by a fire door that had been opened from the other
side by an employee of the defendant.
The plaintiff initially sued his employer in relation to both
incidents.The action was settled by Deed of Release dated 30 August
2013.The terms of the Release specified that it extended to
injuries arising from both incidents.The defendant argued that the
settlement monies paid by the employer to the plaintiff was capable
of attracting the rule against double compensation and that the
onus was on the plaintiff to show that the settlement monies were
not paid by way of compensation for the loss arising from the
second incident at the defendant's premises.
The defendant otherwise argued it was not liable to the
plaintiff for injuries arising from the second incident because
they did not arise from any breach of duty on its behalf.
The decision at first instance
The primary judge held that the plaintiff failed to discharge
the onus to show that he had not already recovered compensation for
the second incident.Accordingly, the trial judge found that, even
if negligence by the defendant was established, the plaintiff was
not entitled to damages from the defendant due to the operation of
the rule against double compensation.
The trial judge otherwise noted a history of incident free usage
of the fire door since 1987 and found that there was no evidence of
breach of duty on behalf of the defendant occupier.
The decision on appeal
The plaintiff appealed against the trial judge's finding
that the defendant was not negligent for failing to install a
window in the fire door.
The plaintiff relied on a Safety Hazard Report commissioned by
the defendant on 13 July 2009 which identified in relation to the
fire door a risk of "dangerous collisions coming in/going
out/climbing and alighting stairs". The Report was
considered by the defendant's Occupational Health & Safety
Committee on 14 July 2009, at which time the Committee erroneously
concluded that a "half glass" fire door was not available
on the market.
The plaintiff maintained that:
the risk to which he was exposed was foreseeable by the
that the defendant failed to address the risk by installing a
fire door with a glass window (which were readily available);
that the trial judge erred in failing to find negligence on the
However, the evidence at trial disclosed that the fire door had
been used approximately 320 times per day without reported incident
since approximately 1987.
The Court of Appeal referred to the decision in Jones v
Bartlett and confirmed that:
"in view of the evidence that the door had
functioned without injury to any person from the time of the
completion of the building in 1987 to 2009, his Honour was entitled
to draw the conclusion that the fire door did not pose a
In the circumstances, the Court of Appeal did not consider that
there was sufficient evidence to conclude that the defendant could
or should have taken further measures to avoid the risk of injury
when that risk was not significant.
The plaintiff's appeal was dismissed.
Key take away points
Plaintiffs are generally prohibited from seeking "double
Defendant occupiers, even when on notice of potential risks,
are not necessarily bound to take action, particularly when the
risks are not significant.
The failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn in accordance with Jones v Dunkel (1959) 101 CLR 298. An unfavourable inference is drawn only if evidence otherwise provides a basis on which that unfavourable inference can be drawn.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).