A global engineering firm found to have breached its duty of care after one of its Canberra elevators plummeted and injured four women, leaving one at risk of becoming a quadriplegic, has had parts of its ACT court appeal described as having "no substance".
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The ACT Supreme Court in April 2020 found that KONE Elevators breached its duty of care when a lift in the Lovett Tower fell twice in September 2013 because of a power malfunction and awarded the four plaintiffs about $2.43 million in damages.
Court documents state that the lift fell from the 19th floor with one woman saying the lift then became dislodged between floors three and four.
Most injuries were to the women's upper bodies with one undergoing neurosurgery after being informed she could become a quadriplegic if she did not.
There were also psychological injuries with one woman experiencing the avoidance of lifts, "intrusive re-experiencing phenomena of nightmares and flashbacks" and some general loss of resilience.
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Justice John Burns found that all the plaintiffs were injured as the lift had stopped due to "an intermittency of power" because during maintenance, a KONE technician broke a wire connected to a transformer within the lift control unit.
The now-retired judge found that KONE was "vicariously liable in negligence for the injuries".
In its appeal, KONE argued that Justice Burns made 28 errors related to liability, breach of duty, foreseeability of injury and causation, damages and costs.
KONE argued that one of the many wires in the lift control unit breaking does not bespeak negligence.
It also said the broken wire was not associated with the technician's work because the lift did not have the problem of intermittent stoppages leading up to the event.
As for duty of care, it said a failure to detect a loose wire did not amount to a breach because even with reasonable care, that detection would not have occurred.
KONE also argued the primary judge should have accepted "the uncontradicted and unchallenged" findings of a simulation, showing the forces of the lift stopping the way it did would have been "well below any possibility of injury".
A recent ACT Court of Appeal decision dismissed the grounds of appeal related to liability, saying primary judge was justified in drawing the inference that the wire was broken by a KONE technician's negligence.
The court said "there was no substance" to the grounds of appeal related to duty of care being breached.
In relation to the injuries, the court said KONE had accepted the evidence that it was a known fact in the industry that the sudden stop of a lift travelling at speed could cause damage to any passengers.
KONE's evidence also did not establish that the simulation "exactly replicated what had occurred in the incident".
"However, more telling is the consideration that it was not known just how each of the plaintiffs was positioned in the lift or how pre-existing injuries or weaknesses may have exacerbated their vulnerability to injury," the court said.
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The court reduced damages by about $320,000 for three of the women after upholding some of the appeal grounds related to damages.
Most of the grounds related to legal costs were also upheld.
Sangeeta Sharmin, special counsel at Ken Cush and Associates that represented the four women, said their clients "suffered tragic injuries in 2013 and after eight years, we are a step closer to holding Kone accountable".
"Our clients are pleased with the result and thankful to the court for making a considered decision," Ms Sharmin said.
Jérme Audais, KONE Australia's managing director, said the incident was "an unfortunate and unusual set of facts and circumstances" that the company believes were unlikely to happen again.
"Safety and quality are of paramount importance at KONE and we take pride in our high standards," Mr Audais said.
"If any lessons can be taken to improve Kone's processes and procedures then these will be immediately implemented."
Court documents state that the evidence did not show that KONE's maintenance regime was deficient and that the Lovett Tower defect in 2013 was a "single instance of carelessness".
The costs of the appeal are yet to be determined.
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