Australia: Reflex reactions and your duty: The Court of Appeal revisits occupier's duty and the contributory negligence of a worker in the heat of the moment.

Curwoods Case Notes
Last Updated: 16 September 2011
Article by Shannon Say

Judgment date: 6 September 2011

Mungis (No 2) Pty Ltd v Still [2011] NSWCA 2611

NSW Court of Appeal

In Brief

  • Contributory negligence will be balanced against the emergency of the situation.
  • Inattention, inadvertence and wrong decision making are factors that need to be taken into account when considering what precautions should be taken.
  • A host employer can still attract a non delegable duty of care to a contractor if it exerts the relevant control over the contractor's workplace and work duties.


Mr Still commenced employment with Trojan Workforce Pty Ltd (Trojan), a labour hire company in September 2005. In October 2005 Trojan assigned Mr Still to work in a factory owned by Mungis (No 2) Pty Ltd (Mungis) which manufactured plastic packaging for fresh and take-away food.

Mr Still's duties included periodically removing rolls of scrap plastic from the waste compartment of plastic thermoforming (moulding) machines (the machines). The system of work required Mr Still to go to each of several machines a number of times throughout each eight hour shift and to remove the waste plastic. Mr Still had performed this kind of work for approximately six months.

On 26 April 2006 Mr Still was injured when he attempted to open the access door of the scrap compartment of a particular machine. Mr Still was working at a nearby machine when he noticed an abundance of plastic waste had built up in another. Waste was even protruding out of a gap surrounding the closed access door. He raced over to the machine, did not stop the machine from operating, got on to his haunches and pulled the access door open. The access door flew open and struck him with considerable force causing him to fall backwards and sustain injuries.

It was found that earlier on that particular day Mr Still had opened the machine to remove waste plastic and in doing so, inadvertently left an internal machine lever in the "out" position instead of leaving it in the "in" position. This caused a spindle within the machine to extend under pneumatic pressure whilst the machine was in operation. The effect of this was that the spindle pressed against the access door on the inside and caused the door to fly open when unlocked by Mr Still later that day.

After Mr Still's accident Mungis fitted the relevant machine with an automatic "in/out" lever.

District Court decision

The original proceedings were heard before Armitage DCJ.

Mr Still's case was run on the basis that Mungis had breached its duty of care by failing to fit the relevant machine with an automatic "in/out" lever. Had this been fitted the accident would not have occurred. In response Mungis attempted to argue that the automatic lever had been fitted before Mr Still's accident. His Honour found that the automatic lever was fitted after Mr Still's accident. This finding was not challenged on appeal.

Mungis also argued that it could not have foreseen that an operator would negligently leave the lever in the "out" position and then attempt to open the access door whilst the lever was in this position. There had never previously been an accident of this kind. In particular, Mungis relied on the availability of a red emergency stop button that could have been used to stop the machine before opening the access door. Mungis also attempted to argue that even if it had given Mr Still warning about the dangers of the spindle exerting pressure on the door (which it was accepted that they failed to do) it would have been of no use because Mr Still admitted that he opened the door in a reflex action to stop the overflow of plastic.

His Honour found that whilst the duty owed by a manufacturer to an independent contractor on its premises is not co-extensive with the duty of care owed by an employer to an employee, nonetheless a non-delegable duty can arise, particularly in circumstances where the independent contractor had no control over the workplace or the system of work – applying the principles enunciated by Mason J at 687 in Kondis v State Transport Authority2.

His Honour also found that there was no evidence that Mr Still had been given instructions in the operation of the machine, particularly in the dangers of opening the access door. Nor had Mr Still received instruction on the use of the emergency button. He considered that reasonable care required instruction of this kind applying the principles articulated by Mason J in Wyong Shire Council v Shirt3.

Whilst his Honour found that installation of the automatic lever was cheap and practical and could have readily been implemented, he acknowledged s 5C(c) of the Civil Liability Act (CLA) which provides that the taking of an action after an accident that would have avoided a risk of harm does not of itself give rise to liability in respect of the risk and does not constitute an admission of liability. However, his Honour found that just because this action was taken after the accident did not make it entirely irrelevant.

Therefore his Honour found that Mungis breached the duty owed to Mr Still by failing to take the abovementioned precautions.

In relation to contributory negligence, his Honour found that Mr Still contributed to a substantial degree to his own injuries and even uninstructed, considered that Mr Still should still have appreciated the emergency switch button and used it before opening the access door. At first his Honour considered 50% contributory negligence may be appropriate but when balanced against the emergency of the situation, the cost to the company had the machine been shut down and how quickly Mr Still had to make the decision, his Honour considered a deduction of 25% for contributory negligence to be more appropriate.

Court of Appeal decision

On appeal Mungis did not challenge the formulation of the duty of care owed to Mr Still and it accepted the finding that the risk of harm created by the access door opening suddenly under pressure was foreseeable.

Mungis did however submit that a reasonable person in its position would not have taken the precautions as identified by his Honour. It also contended that the risk was obvious in accordance with section 5H of the CLA and a warning was not required.

Sackville AJA who delivered the unanimous judgment of the Court of Appeal confirmed that as Mr Still had no control over the system of work, the machinery or the manufacturing process, Mungis therefore was under a duty to exercise reasonable care to avoid and minimise unnecessary risks of injury applying Brennan J's statement of principle in Stevens v Brodribb Sawmilling Co Pty Ltd4.

While acknowledging the duty of care arises under the general law, Sackville AJA reaffirmed that a court cannot make a finding of breach of duty for failing to take precautions against a risk of harm unless the three preconditions set out in s 5B(1) of the CLA are met.

Sackville AJA found that the primary Judge was correct to find that Mungis had breached its duty of care to Mr Still by failing to take the simple precaution of fitting an automatic lever device. Sackville AJA also found the primary Judge was correct to find (as he implicitly did) that Mr Still had satisfied the preconditions set out in s 5B(1) of the CLA being that:

  1. the risk of harm from opening the access door when it was under pressure was a risk that Mungis should have been aware (and probably was aware);
  2. the risk of harm was not insignificant; and
  3. a reasonable person in the position of Mungis would have taken the precaution of installing the automatic in/out lever.

Sackville AJA also found that the primary Judge was entitled to find that Mungis breached its duty of care by not instructing Mr Still to engage the emergency button in the event of a machine malfunction.

Mr Still filed a cross-appeal in which he contended that the primary Judge erred in determining that he was guilty of contributory negligence and that he should bear 25% of responsibility for the accident. In relation to this challenge, Sackville AJA found that Mr Still failed to demonstrate that the exercise of the primary Judge's discretion was unreasonable or plainly unjust.

Sackville AJA acknowledged the primary Judge balanced Mr Still's lack of training and lack of understanding of the cause of the problem against the fact that a reasonable person in Mr Still's position should have thought to switch off the machine before opening it. Accordingly the finding of 25% contributory negligence was upheld.


It is important for host employers to appreciate that the use of hired labour does not necessarily negate any duty of care owed. This decision highlights that a host employer can attract a high duty of care that is proportionate to the control it exercises over hired labour. This decision also highlights the importance of taking adequate precautions to guard against the risk of injury and when assessing what precautions should be taken, one must also factor in inexperience, inadvertence and lack of attention particularly when workers can be faced with making decisions in the heat of the moment.

Taking steps after an accident that would have avoided the risk of harm, while not constituting an admission of liability, should not be disregarded. The question to ask is whether a simple precaution that was taken after an accident could and should have been taken beforehand to avoid the risk of injury.

Shannon Say

Curwoods Lawyers

1 Basten JA, Macfarlan JA, Sackville AJA

2 [1984] HCA 61

3 [1980] HCA 12

4 [1986] HCA 1

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