Mungis (No.2) Pty Limited v Still [2011] NSWCA 261

Breach of duty of care by "host employer" – duty of care owed to contractor – tests under the Civil Liability Act – contributory negligence and inadvertence

Background

Still was an employee of a labour hire company working at the appellant's factory.

He sued the appellant as "host employer" for an injury sustained whilst attempting to clear a build up of plastic waste in a thermoforming machine. He had noticed that the waste compartment was overflowing and attempted to force open the compartment door in order to clear it. He managed to do so, but was injured as the door burst open due to a build up of pressure inside.

Still had in fact opened the compartment door earlier that day to clear a blockage. In doing so, he had set a lever into a position that enabled the task to be performed safely. However, he failed to reset the lever, so that when he returned to open the compartment, the door was under pressure. In forcing the door, he had overlooked his earlier failure to reset the lever.

The primary judge found that the appellant had breached its duty of care to Still by failing to automate the function he had omitted to perform. Furthermore, it had failed to warn him of the risks of opening the compartment without first shutting the machine down via the emergency switch. However, he found that Still had contributed to the accident by failing to use the emergency switch. He should have known that it would have rendered the machine safe and avoided any risk of a build up of pressure.

The host employer appealed against the finding of a breach of duty of care, arguing that there was no need to automate the function and that there were adequate safeguards. Still cross appealed against the trial Judge's finding of 25% contributory negligence. Both the appeal and the cross-appeal were dismissed.

The Appeal

The NSW Court of Appeal held that:

  • The host employer owes a non-delegable duty of care to a contractor where the host employer controls the system of work, the machinery used in the manufacturing process or the manufacturing process itself.
  • The primary Judge was correct in finding that Still had satisfied the preconditions set out in s.5B(1) of the Civil Liability Act NSW – (which mirror our s.5B(1) Civil Liability Act 2002 WA);
  • Automation was a simple and inexpensive means of eliminating the risk. That step had subsequently been taken and although not conclusive as to the need for such action to have been taken, it was relevant;
  • The host employer did not provide him with instructions or training to deal with the situation. Had it done so, it was likely that he would have followed those instructions;
  • The risk of injury was not remote.

Still's cross-appeal argued that his omission had been inadvertent or an error of judgment and should not be characterised as negligence.

Whilst acknowledging that he had not been given instructions and that, if given, he probably would have followed them, the Court of Appeal considered that he was sufficiently aware of the operating system to have appreciated the risk that of his actions. It was therefore open to the primary judge to find that his conduct was negligent rather than inadvertent and the 25% apportionment was not disturbed.

For more information, contact Vidal Hockless or Claude Armeli on (08) 9321 3755.

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