BATES v ROSENBERG; ROSENBERG v SOGAL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS, MCHUGH and CLARKE JJA 21 September 1988, 21 September 1988 [1988] NSWCA 14 MASTER AND SERVANT — negligence — vicarious liability — safer system of work — employee injured in the course of priming the carburettor of a car in a manner in which instructed to carry out the task by the employer's foreman — system of performing task dangerous and employer claimed to be liable notwithstanding that plaintiff was the senior employee engaged in the operation and the employee himself was not a qualified mechanic — fellow employee pumps accelerator before receiving appropriate instruction. Held — employer liable for failure to maintain safe system of work and vicariously liable for fellow employee's negligence. Held also — that in view of the way the case was contested the owner of the car was liable for the negligence of his deemed agent. ORDERS Both appeals should be dismissed with costs. Clarke JA There are two appeals before the court, each brought by an unsuccessful defendant in a personal injuries action brought by Mr Laszlo Sogal. In that action his Honour Judge Moore found that both the defendants, who are the present appellants to whose names I will refer in future for convenience, were liable to the plaintiff and awarded damages in the sum of $40,500. Both appellants have raised the point that his Honour was in error in concluding that the plaintiff Sogal had established negligence. It is therefore necessary to consider firstly the factual material upon which his Honour based his findings in order to determine whether there was any error in the findings of negligence. Sogal was a motor mechanic at the time of the accident in the employ of Rosenberg. He had, upon leaving school, entered Rosenberg's employ as an apprentice under service to a man named Giaquanto. Giaquanto was, I infer, a foreman mechanic then in the employ of Rosenberg. It is of some note that the only experience as a mechanic which Sogal had had was under Giaquanto and during his continuing employment with Rosenberg following the completion of his apprenticeship. During the course of that apprenticeship he was instructed at all times by Giaquanto because Rosenberg himself was not a trained mechanic. During his apprenticeship he received some instruction in the manner of starting the engine of a car which had been repaired and which was proving difficult to start. What he said in evidence was that he was taught to prime the carburettor by pouring some petrol onto it and then having someone else work the ignition switch. In his evidence in chief he was asked whether there was any further instruction given and he said that he was told to step back after priming the carburettor. This meant, as I understanding it, that the exercise involved his pouring petrol onto the carburettor, stepping back instructing the other person involved to start the ignition and then seeing whether the engine would start. 2 UNREPORTED JUDGMENTS On the day of the accident he was involved with a Mr Tiltons in just that process. The other appellant, Mr. Bates, owned a Studebaker Lark motor vehicle. He had brought it to the Greengate Service Station which was operated by Rosenberg for repairs. The carburettor had been removed from the motor vehicle and sent for attention by a specialist. It had apparently been repaired and returned to the Greengate Service Station and Tiltins, another mechanic in the employ of Rosenberg, was engaged in replacing the carburettor in the car. Having completed that task he decided to start the car in order to take it out for a trial drive. He found that he was unable to get the engine to respond to the ignition switch and he called for Sogal's aid. Sogal thereupon came to the car armed with a glass of petrol. The bonnet was lifted and Sogal poured some petrol into the carburettor, stepped back and instructed Tiltins to start the engine. On that occasion the engine did respond but petered out fairly quickly and it was necessary to try again to start it. On this occasion Sogal poured some petrol into the carburettor and the ignition switch was worked by Tiltins. The engine backfired and a spark was blown out of the carburettor and ignited the petrol fumes, which were close to Sogal, causing him to receive significant burns. It was the receipt of those burns which led to his claim against both appellants. His case against the appellant Rosenberg was that the method of starting the car using petrol applied directly to the carburettor was an inherently dangerous one and that Rosenberg was negligent in employing such an unsafe system of work. He alternatively argued that Tiltins had been negligent in starting the engine before he had received an instruction from Sogal to do so, thereby causing Sogal to be in close proximity to the carburettor when the spark emerged. In other words, he had not completed his task of pouring the petrol into the carburettor and stepping back to a safe place when Tiltins tried to start the engine. On the basis that Rosenberg was vicariously liable for Tiltins' negligence he claimed against Rosenberg on this alternative head of negligence. His claim against Bates was based on Tiltins' negligence allied with the claim that Bates as the owner of the vehicle, should be deemed to be a principal responsible for any negligence of Tiltins. There was apparently some discussion during the trial of the question whether in the circumstances in which Sogal sustained injury there was relevantly a use of the motor vehicle. It is somewhat difficult to see why this was raised as an issue in the trial although it would have been understandable in the context of a denial that Bates was liable for the negligence of Tiltins. However, so far as one can tell from the Judgment under appeal there was no issue raised concerning the question of agency at the trial. His Honour said in his judgment that the case proceeded upon the basis that if Tiltins was negligent then Bates was liable for that negligence; notwithstanding there is some discussion in his Honour's judgment of the question whether the injuries do arise out of the use of the Studebaker motor vehicle although the importance of that discussion to the orders made is a matter which, as I have said, is somewhat difficult to appreciate. Nevertheless no issue was raised at the trial on the question of agency, nor was there any ground of appeal originally raised based upon a suggestion that his Honour erred in finding, or acting upon the basis, that the relevant agency existed. During the course of the appeal Bates' counsel made application for leave to add an additional ground of appeal putting this question of agency in issue but, in view of the terms of his Honour's judgment and the apparent fact that this question had not been agitated at the trial leave was refused. URJ BATES v ROSENBERG; ROSENBERG v SOGAL (Clarke JA) 3 Accordingly, the sole issue with which Bates is concerned is whether his Honour was in error in finding that Tiltins was negligent. It seems to me convenient to consider the question of Tiltins' negligence first, because that involves a consideration of the factual material upon which the findings were based and in the event that the appellants fail to displace a significant factual finding to which I will advert, then it would seem to me that - questions of contributory negligence apart - the appeals must fail. The particular factual finding which was challenged was one in which his Honour said that he accepted evidence to the effect that Tiltins had started the motor or engine without any signal from Sogal. This, of course, was a critical finding and counsel for both appellants have submitted that it was erroneous. They submit that there should have been a finding that the signal had been given or, alternatively, his Honour should have found that the plaintiff Sogal had failed to discharge the onus of proving the absence of a signal. It is necessary in this context to pay some closer attention to his Honour's findings. He pointed out that neither Tiltins nor Sogal said that he had a clear and positive recollection of whether Sogal had given the instructions to Tiltins to turn the starter on. Having noted that he concluded that on balance he believed from the plaintiff's evidence that the plaintiff Sogal did not give that instruction. In saying that he made it quite plain that insofar as there was conflict between the evidence of those two witnesses he accepted the evidence of the plaintiff whom he described as an absolutely truthful witness whose anxiety to be truthful, fair and cooperative flowed over into a wish to assist his cross-examiners. His Honour observed, correctly in my opinion, that this characteristic of Sogal had to be kept in mind when seeking to evaluate the evidence in order to determine what was the correct finding. The material from which his Honour drew his conclusions was then set out in the judgment. He pointed out that Sogal had said that he did not anticipate that Tiltins would turn the ignition on and Tiltins did not indicate his intention to use the starter. It is quite clear that evidence was given by Sogal to this effect and that it was open to his Honour to accept that evidence. His Honour then observed that Tiltins did work the starter at a moment when the plaintiff was not fully prepared. This is perhaps a critical finding and it is necessary to look at the evidence. What the plaintiff Sogal said initially was that he poured petrol down the throat of the carburettor, stood back and told Tiltins to start the engine. It then started for a short period of time and it stopped. Sogal asked Tiltins to start it again and it still would not start so he said to Tiltins "Stop trying to pump the accelerator and we will try again". He then poured petrol down the carburettor and it back fired and the petrol caught alight and burned his hand. There was some ambiguity about this evidence and he was asked to clear it up. He then said "I was pouring petrol in the carby, that's when Terry hit the starter and that's when my hand caught on fire". He added that he did not remember giving Terry any instruction at that time to start the carburettor. This portion of the evidence clearly supports his Honour's conclusions but what counsel has argued is that the effect of that evidence is significantly diluted by later statements which show that Sogal was unclear or did not have a clear recollection whether in fact he had given an instruction or not. Counsel added that when regard was paid to the evidence of Tiltins the proper finding on the evidence was that the instruction certainly had been given. What Tiltins said does not present as powerful evidence supporting that submission but 4 UNREPORTED JUDGMENTS rather suggests that he heard something which he interpreted as "start it" or words to that effect and then switched on the ignition and depressed the accelerator. It seems to me that the task of making a factual determination in the light of the degree of equivocation in the evidence of both witnesses required a careful assessment of those witnesses and an evaluation of the circumstances which in his Honour's opinion transpired. It seems clear from his judgment that his Honour was satisfied that the evidence given by Sogal to the effect that he was pouring petrol in the carby when Tiltins hit the starter should be accepted. If that is right, then the overwhelming probability would be that the instruction was not given. In the light of that probability and Sogal's evidence that he did not have any recollection of giving the appropriate instruction, it seems to me that it was well open to his Honour to come to the conclusion that what the plaintiff Sogal initially said was correct, that is that the ignition switch was turned on at a time when he was actually pouring petrol in the carburettor and before any signal had been given. In these circumstances I am unable to find any basis for interfering with the decision which was based to a large degree on the trial judge's assessment of the witnesses. Indeed I would, if pressed, tend to the view that his Honour's view of the probabilities was clearly correct. Upon that basis the case fell to be decided in the light of Tiltins' action in starting the engine prior to being given a signal and at a time when he could not see Sogal who was hidden by the open bonnet of the car. I would have no doubt at all that those actions were, in the particular circumstances of this case, negligent. I have very much in mind that the chance of the emission of a spark in close proximity to petrol fumes would obviously give rise to a risk, which would not be insignificant, of some sort of disaster. Having concluded therefore that his Honour was not in error in finding that Tiltins had acted in the manner suggested and also that that was appropriately described as negligent conduct on the part of Tiltins, it seems to me that the appeal against the findings of negligence must fail. In these circumstances it is not strictly necessary to advert to the claim that there was another head of negligence available against Rosenberg. That is a failure to employ and maintain a safe system of work. However, I should say shortly that there is no doubt that the system of work which was employed on this occasion was one which Sogal had learned in the employ of Rosenberg and at the hands of a mechanic who was Rosenberg's agent at the relevant times. He had continued that system ever since he had graduated as a mechanic and at the very least Rosenberg ought to have known of the system which was being employed in his service station. It was suggested, perhaps somewhat vaguely, that because Rosenberg was not himself a mechanic he could not be liable for the system being employed at this time. But that submission involves a fallacy insofar as an employer has no right to delegate to someone else the obligation of providing and maintaining a safe system of work. Rosenberg was the employer; it was his responsibility to devise, maintain and employ, either by himself or though an agent, a safe system of work and insofar as this system was employed initially through the agency of Giaquanto, it seems to me that he must remain liable for any inadequacies in it. That there were inadequacies was clearly established both by the factual evidence and that given by experts who attested to its inherently dangerous nature. URJ BATES v ROSENBERG; ROSENBERG v SOGAL (McHugh JA) 5 I would therefore be of the view that the plaintiff Sogal had in fact made good his claim of an unsafe system of work and that his Honour was correct to make a finding in accordance with that view. That brings me then to one other ground of appeal which was raised only by the appellant Rosenberg. He submitted that his Honour was in error in failing to find that contributory negligence had been established. The primary ground on which it was said during the appeal that the appellant was negligent was as follows: "He was careless in conducting the operation when the car was parked in such a position that he could not step back adequately to get out of the range of danger." Upon the findings of fact I do not see how that question arises. It does not really matter how far he could have stepped back because the incident occurred when he was actually pouring the petrol into the carburettor and it could not be suggested that he could have done that from some safe distance away. It was then said that Sogal was negligent in failing to step away and to the side of the car but the comments I have just made answer that submission also. The next submission was that he was carelessly standing in close proximity to the carburettor with the glass of petrol in his hand. Again, the findings of fact destroy the factual substratum upon which this submission was based. Finally, it was submitted that he was negligent in conducting the operation in the described manner when the person operating the ignition switch was unsighted by the raised bonnet. He was, as I have said, conducting the operation in that manner because that was the way which Rosenberg, through his agents, had taught him to carry out the operation. He was carrying out the operation in that way because he was following a system which apparently had been followed without any interruption ever since he had commenced employment with Rosenberg. In those circumstances, I am unable to see how it could be said that he was negligent in following the system which had been provided and maintained at all times. Accordingly, I would reject this ground of appeal also. I should add that in one of the notices of appeal there was an attack on the award of damages but that ground of appeal was not maintained at the hearing which was restricted in the ultimate solely to the issues of negligence and contributory negligence. In my opinion both appeals should be dismissed with costs. Samuels JA I agree. McHugh JA I also agree. SAMUELS JA: The order of the Court therefore is that each appeal is dismissed with costs.