Australia: No breach of duty of care where the risk is ordinary
Curwoods Case Note

Transpacific Industrial Solutions Pty Limited v Phelps [2013] NSWCA 31

In Brief

• A host employer owes a duty of care very similar to an employer's duty.
• The obligation on the host employer to exercise reasonable care includes warning the worker of unusual or unexpected risks and instructing him in the performance of the work where instructions might reasonably be thought to be required to avoid the risk of injury.

Background

The plaintiff injured his back on 4 April 2008 when he tripped whilst walking backwards up stairs guiding the removal of a large metal cabinet.

The plaintiff was employed by a labour hire company, Workpac Newcastle Pty Ltd (Workpac), who in turn, hired his services, and those of his workmates, to a host employer, Transpacific (the host employer).

The host employer directed the plaintiff and another worker to move items of furniture from one office building to another. The move involved carrying the furniture up stairs. The staircase had 2 flights of stairs with a landing, and a right angle turn halfway up, and a low bulkhead over one of the flights.

Two workers moved the cabinet using a stair climbing trolley with 3 sets of wheels. The plaintiff was in front (walking backwards) to support and guide the load whilst another worker lifted and pushed from below, each communicating with the other as each step was ascended.

The plaintiff had climbed to the third or fourth step above the landing on the second flight of stairs when he lost his footing, sat down heavily on the edge of stair tread, and the cabinet came to rest on his lower legs. His lower back was injured in the accident.

District Court

North DCJ made findings in favour of the plaintiff with liability apportioned 75% to Transpacific and 25% to Workpac, with no reduction for contributory negligence. The main basis of the primary judge's finding was the failure of the defendants to devise a suitable system and instruct the workers, including the plaintiff, what they must do and to provide appropriate equipment.

Court of Appeal

The court accepted that the slip or trip occurred because of the combination of 2 factors:

1. The plaintiff walking up the stairs backwards with an imperfect view of where the next tread was;
2. The plaintiff's rate of progress and the timing of each movement up to the next step were dictated to some extent by the co-worker pushing and manoeuvring from below.

Duty of Care

The host employer owed the plaintiff a duty of care in negligence which was very similar to an employer's duty. For a description of that duty, the court relied upon the definition of the duty of care by Hoeben J in Pritchard v Trius Constructions Pty Ltd ² :

Breach of Duty of Care

Consideration of whether or not the duty of care had been breached should be made in the context of s 5B of the Civil Liability Act 2002 (the Act) which provides as follows:

1. A person is not negligent in failing to take precautions against a risk of harm unless:
2. 1. the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
   2. the risk was not insignificant, and
   3. in the circumstances, a reasonable person in the person's position would have taken those precautions.

2. In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
3. 1. the probability that the harm would occur if care were not taken;
   2. the likely seriousness of the harm;
   3. the burden of taking precautions to avoid the risk of harm;
   4. the social utility of the activity that creates the risk of harm."

The court gave considerable attention to s 5B(1)(c) namely whether a reasonable person in the defendant's position would have taken those precautions.

In considering whether a reasonable person in the host employer's position would have taken precautions against the risk of slipping or tripping, the court looked at the "system" of communication between the plaintiff and his workmate and its adequacy. In addition, it looked at whether there were any unusual or unexpected risks related to the furniture removal task. The court found that there were no unusual or unexpected risks related to the task of moving the cabinet up the staircase and thus no need for instruction. The staircase was found to be an ordinary staircase, with no suggestion that the stairs presented any special or unusual risk of tripping or slipping. Furthermore, the court found that the activity of moving furniture is a familiar one which most adults would have engaged in the domestic setting.

In doing so, the court relied on the judgment of Macfarlan JA in Seage v State of New South Wales ³ when looking at tasks which could be described as "a commonplace activity likely to be encountered, just as frequently, if not more frequently, in the course of ordinary domestic life than in the workplace".

The court agreed with Macfarlan JA when he said that it would be a large step to oblige employers to warn of everyday activities which, if not performed with care, might lead to injury. In other words, it was regarded as quite unnecessary to give warnings in relation to commonplace activities. Moving furniture fell into the category of a commonplace, ordinary activity in the court's view.

The court found that the real question to be answered was whether it was unreasonable to ask the plaintiff and his work colleagues to do the furniture removal, but that there was no direct evidence on this point. In the circumstances, the court found that it was not established by the plaintiff that there were any precautions that, in terms of s 5B of the Act, a reasonable person in the host employer's position would have taken against the risk of harm to which the plaintiff succumbed. A similar process of reasoning was adopted in relation to Workpac. Accordingly, the appeal was allowed and there was a verdict and judgment in favour of the defendants.

Implications

Employers should not be found liable in negligence for a failure to give instruction as to how to carry out an ordinary everyday activity. A common sense test should be applied.

Structure has been provided by the Court of Appeal around how to determine the third prong of the steps for consideration when determining if a person is not negligent in failing to take precautions against a risk of harm (s 5B(1)(c) of the Act). The threshold question is whether there were any precautions a reasonable person in the defendant's position would have taken against the risk of harm to the injured party looking at the issue prospectively.

The cause of the accident must be accurately identified in order to properly consider whether or not the duty has been breached.

Footnotes

¹ McColl, Basten and Barratt JJA

² [2011] NSWSC 749

³ [2008] NSWCA 328

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