The Facts

Wheelie bins placed around racecourse in anticipation of large crowd

A case in 2019 examined the question of whether a race club had provided one of its casual employees with a safe system of work.

Because of the big crowd of racegoers, and copious supplies of food and drink (which could be brought in or purchased), more than a hundred 240-litre wheelie bins were placed at various locations around the racecourse.

The bins had soft plastic bin liners placed in them and were positioned in groups at various locations. Some were on paved areas, but others on grass.

On one of these grassed areas (with a moderate but unquantified slope) was a group of six bins. Despite the worker's emphatic evidence to the contrary, the trial judge accepted that the bins were placed back-to-back, with their handles touching.

About twenty metres away from these bins was a garbage skip, where full bin liners were dumped. It was accepted that the weight of a full bin liner could vary considerably, depending on the mix of food waste and lightweight items, such as empty cardboard cups and drink cans.

Labourer employed by club as casual employee

A man was employed by the race club as a manual labourer on a casual basis. He had not stayed in school past Year 8 and was unskilled, so his wide range of tasks relied generally on his physical strength.

On the Club Race Day, one of those tasks was transferring full bin liners to the garbage skip, and putting a fresh liner into each empty bin. This could be done either by wheeling the bin over to the skip and lifting the full liner out and over the side of the skip, or by leaving the bin where it stood, and carrying or dragging the full liner over to the skip.

The worker's evidence was that his method was the latter, because it was hard and unsafe to haul the wheelie bin itself through a crowd of racegoers; and that he had never even thought of wheeling a bin to the skip.

However there was a question at trial as to whether the club had specified either method as the required or preferred system of work. There was a "Safety Brochure" with instructions such as using the knees to bend, but it did not address transferring bin liners.

Worker suffers slip and fall while emptying bin

On the Club Race Day in question, the worker saw an "overfull" bin and took hold of the loaded liner in order to remove it from the bin. Starting to do so he realised, while it was only part way out of the bin, that the loaded liner was heavier than he had anticipated, and that he needed to give it "a bit more oomph".

As the worker lifted the bin liner, his right leg was braced on the slope which was a bit soggy, apparently from food and drink spilled by racegoers. He slipped and fell.

The worker felt "major pain" and heard a noise from his knee. After the pain had subsided a bit, he remained at the course but did no more manual work.

The man sued the club, saying that it owed him a duty of care to have a safe workplace, and that it had breached that duty, with the result that he was injured.

Judge finds club in breach of duty of care to worker

It was not a matter of controversy that as the man's employer, the club owed him a duty of care. The question was, instead, what was the content of that duty, and whether there had been a breach of it.

The judge at first instance found that the club was in breach of its duty because there were steps it reasonably could have taken to avoid what happened to the worker. (Please see Cottom v Scone Racing Club Ltd [2023] NSWSC 779.)

Specifically, Her Honour said that the club could have installed concrete pads which would be solid and could be made level as platforms for the bins, at least on sloping ground. While Her Honour said the risk was foreseeable, she recognised that the risk was only moderate and action to rectify would be relatively simple and inexpensive.

Accordingly Her Honour found for the worker and awarded damages of just under $340,000. The club appealed. It was up to the Court of Appeal to review this decision.

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