A Contract Worker performed an activity outside the
scope of his engagement and the NSW Court of Appeal found that
there was no breach of duty of care by either the
occupier/principal or the employer as the incident was not
South Sydney Junior Rugby League Club v Gazis
 NSWCA 8
The plaintiff, Ross Gazis, a security guard, injured his back at
South Sydney Junior Rugby League Club (the Club)
whilst moving a large trolley used to transport money from poker
The Club contracted with Sermacs Australia
(Sermacs) for the provision of armed security
services at the Club. Sermacs, in turn, sub-contracted the security
services to MPS Security (MPS) who was Mr
At first instance it was found that the Club was liable for 75%
whilst MPS was liable for 25% of the damages assessed at
$929,329.20 plus costs, which is not an unusual apportionment in
circumstances where Mr Gazis was a contract worker.
The Court of Appeal found in favour of the Club and Sermacs. The
primary aspects of the judgment were:
the act of moving the trolley was an activity outside
the scope of the Mr Gazis' retainer. As a security
contractor at the Club he was not retained to move the trolley
transporting the poker machine takings;
neither the Club or MPS had knowledge that the
task would be performed by Gazis and the risk was therefore
MPS was found to have breached its duty to inspect the Club,
being Mr Gazis' workplace, however, this breach did not
cause the accident given any inspection or investigation
by MPS would not have revealed any particular risk of injury
arising from the movement of trolleys by him.
Duty of care and foreseeability
Neither the Club nor MPS could have warned Mr Gazis of the risk
associated with the equipment or the undertaking which had no
relationship to his retainer as a security contractor at the
It was accepted that the Club owed a duty of care
as occupier of the premises at which Mr Gazis worked. That duty,
however, did not extend to giving a direction to Mr Gazis on how to
safely move trolleys as it did not have any knowledge that he was
Even if Mr Gazis had been successful in proving that the Club
had knowledge of him moving the trolley, the failure to prevent him
from doing so did not, in and of itself, amount to a breach of duty
of care as that risk would be considered insignificant and not one
which would have caused or ought to have caused a reasonable
person, in the position of the Club, to prevent the movement of the
trolley, that is, it was not foreseeable.
MPS, as an employer, owed a non-delegable duty of
care to Mr Gazis, the scope of that duty, however is affected by
the work specified to be performed by him.
The trial judge found that a non-delegable duty of care also
meant that the scope of that duty was to ensure safety at work in
all circumstances. The Court of Appeal found that the scope
of MPS' duty was to take reasonable care to avoid unnecessary
risks of injury.
Mr Gazis was a security guard and not responsible for using the
trolley in question. The events associated with the trolley were,
in those circumstances, not foreseeable by MPS.
Scope of duty v existence of duty for employers
The apportionment of liability between an occupier and employer
in labour hire cases is determined in accordance with the widely
cited the decisions of TNT v Christie  NSWCA 47 and
Pollard v Baulderstone Hornibrook Engineering Pty Limited
 NSWCA 99. In both Christie and Pollard,
the Court of Appeal found that in circumstances where an employee
has been sent to work at another's premises and where there is
an opportunity for the employer to ascertain the system of work,
the employer is obligated to do so. A failure to inspect and/or
devise a safe system of work resulted in a finding of liability
against the employers.
Gazis can be distinguished from Christie and
Pollard on the basis that no breach of duty was found to
exist in respect of either the Club or MPS as it was not
foreseeable that Mr Gazis would use the trolley in the course of
undertaking an activity which was not part of his role.
The most important aspect of this decision is that the
scope of an employer's duty is not to ensure safety at work in
all circumstances, rather is to take reasonable care to avoid
unnecessary risks of injury.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
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