Judgment date: 24 July 20091
Dib Group Pty Ltd t/as Hill & Co v Cole  NSWCA 210
- A defendant seeking to rely on a defence under s 151Z of the Workers Compensation Act 1987 bears the onus of establishing liability on the part of the employer.
- An employer's duty of care to its employees will operate differently in circumstances where it has full control over premises and in circumstances where it does not. However, in all instances, a court will ask what the employer should have reasonably done in the circumstances to avoid the risk of injury.
On 30 June 2005 the plaintiff was delivering fuel to the defendant's premises at Braidwood Road, Goulburn in Southern NSW. Whilst returning to his truck the plaintiff stepped on the cover of an inspection pit and as he did so the cover moved causing him to fall into the pit.
The metal cover of the pit was designed to rest upon a concrete rim within the pit. The pit was required to be inspected and cleaned by employees of the defendant on a weekly basis. For some time before the accident, the defendant's employees had chipped away the concrete at the corners of the rim so as to allow the lid to be more easily lifted by applying downward pressure on one side of the lid. This had resulted in the lid becoming unstable if stepped on.
The plaintiff had visited the defendant's depot on numerous occasions prior to the accident. The plaintiff gave evidence that he had walked across the area at least 50 times and had not stepped on the lid prior to the date of the accident.
District Court Decision
The plaintiff commenced proceedings against the defendant as occupier of the premises where the accident occurred. Goldring DCJ found that the defendant was liable to the plaintiff in negligence and the plaintiff was awarded damages in the sum of $318,719.23.
His Honour made no deduction in respect of the contributory negligence on the part of the plaintiff, holding that there was nothing to indicate that it was unsafe for a person to place weight on the cover of the pit.
In respect of the plaintiff's employer's negligence, Goldring DCJ held that an employer's duty of care is not absolute and that a site inspection would not have revealed that there was a problem with the pit cover. While his Honour found that there was a duty on the part of the employer, which was breached, he held there was no causal relationship between the breach and the injury sustained by the plaintiff.
The defendant appealed submitting that the trial judge erred in not finding that the plaintiff was contributorily negligent and not finding negligence on the part of the plaintiff's employer.
Basten JA delivered the unanimous judgment.
In respect of the plaintiff's contributory negligence, Basten JA held that the risk of injury which materialised was not one which the plaintiff was aware or ought reasonably to have been aware of. His Honour held that stepping on a metal pit cover is an everyday experience and does not or should not carry with it any significant degree of risk. His Honour noted that the trial judge dispensed with the defence of contributory negligence in a somewhat perfunctory way, but that nothing more was required in the circumstances.
In relation to the employer's negligence, Basten JA noted that the defendant did not plead in what way the employer was negligent or what steps should reasonably have been taken by the employer to ensure the safety of its employees. The negligence of the plaintiff's employer was pleaded in the following way:
"In further answer to the whole of the Amended Statement of Claim, the first defendant says that, if the plaintiff is entitled to damages as against the first defendant (which is denied) the first defendant is entitled to a reduction in those damages by the amount by [sic] which the plaintiff would have been entitled to recover from his employer as a joint tortfeasor and the first defendant relies on s 151Z of the Workers Compensation Act, 1987."
At the trial the defendant tendered no evidence relevant to this issue and sought to rely on the evidence of Ms Skelly, who was an employee of the plaintiff's employer.
In discussing the duty of the employer, Basten JA held that references to the employer's duty as "stringent" and "non-delegable" were unhelpful and inaccurate titles. His Honour reasoned that the problem with the use of the word "stringent" is that it implies a departure from the standard of reasonable care and the term "non-delegable" carries with it uncertainty which attaches to the concept of delegation.
His Honour held that the relevant question in the subject case was the extent to which the personal duty of care owed by the employer extended to premises over which it had limited or no control. Basten JA noted that evidence of control over premises may justify imposing liability on a non-employer but that the absence of control over premises need not form a basis for removing the liability from an employer.
Atkinson v Gameco (NSW) Pty Ltd2 involved an employee who had been sent to Thailand to promote his employer's product and was injured when on the premises of the Thai company after climbing a ladder which was not fully attached to a tanker he was asked to inspect. His Honour noted that in that case the absence of an opportunity for the employer to inspect the premises; the relatively short duration of the visit by the employee; the employer's lack of knowledge of the particular danger and its incapacity to shield its employee from the danger meant that the employer's duty of care did not extend to the state of the premises of the Thai company.
In relation to injuries caused by plant or equipment purchased from a reputable supplier and manufactured by reputable makers his Honour noted so long as it acted reasonably an employer will not be liable for injury to it's employee resulting from a defect in equipment or plant not identifiable by reasonable care on the part of the employer, even though the defect is the result of negligent manufacture: Davie v New Merton Board Milles Ltd3.
His Honour held that in cases involving the safety of premises it is appropriate to ask specific questions as to what may be expected from an employer when exercising reasonable care for the safety of its employees, such as whether it is reasonable for the employer to request or require access to the premises to carry out its own safety inspection.
Basten JA agreed with the trial judge's finding that a site inspection would not have, on the probabilities, revealed the risk arising from the unstable pit cover. His Honour held the onus lay upon the defendant to establish liability on the part of the employer: Maricic v Dalma Formwork (Australia) Pty Ltd4. In the present case the defendant failed to prove the necessary factual basis to establish liability on the part of the employer and accordingly the appeal was dismissed.
When relying on a defence under s 151Z of the Workers Compensation Act, 1987 a defendant bears the onus of establishing the liability on the part of the employer. This includes particularising the basis of the employer's liability and what steps should have reasonably been undertaken by the employer to protect its employees against the foreseeable risk of harm.
An employer who sends its employees to work at premises not under its control does not escape the imposition of a duty to take reasonable care for the safety of its employees. However, when considering whether there has been a breach of duty of care by the employer the court's enquiry will focus on what the employer should have reasonably done in the circumstances.
1. Beazley JA, McColl JA and Basten JA
2.  NSWCA 338
3.  AC 604
4.  NSWCA 174
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