PRO-KRANE PTY LTD v NOBBS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY P, HANDLEY and COLE JJA 15 November 1996, 15 November 1996 [1996] NSWCA 436 CAUSE of industrial accident — casual act of negligence of an independent contractor does not necessarily mean lack of safe system of work by an employer. Cole JA Patten DCJ in a judgment delivered 3 December 1993 found that Mr Joseph Nobbs, the first respondent, who was employed by Nutri-Metics Pty Ltd, the second respondent, was injured on 23 December 1986 when his left foot was run over by a Crown Walkie Stacker fork lift truck which was being operated by Mr McGhee, who was employed by the appellant, Pro-Krane Pty Ltd. The fork lift truck was leased to Nutri-Metics. Pro-Krane Pty Ltd had been engaged by Nutri-Metics to move its operations and equipment from Castle Hill to Balmain where the accident occurred. The trial judge accepted the plaintiffs version of the accident. His Honour was satisfied on the probabilities that Mr McGhee had moved the fork lift towards a semi-trailer with a view to assisting its unloading. He and the fork lift were stationary whilst Mr McGhee was speaking to the trailer driver. He found that Mr Nobbs called out that he would take the fork lift from Mr McGhee but had not physically sought to take control of the machine. He was satisfied that Mr McGhee "inadvertently or otherwise put the fork lift truck into operation without first ensuring that it was safe to do so". Thus the appellant, as Mr McGhee's employer, was held to have acted negligently. The damages awarded to Mr Nobbs have been paid by the appellant. Patten DCJ rejected a submission on behalf of the appellant that Nutri-Metics, as Mr Nobbs' employer, was in breach of a non-delegable duty to provide a safe system of work in that the casual act of Mr McGhee was part of an unsafe system of work then in operation. The trial judge found that "the only breach of duty which I find to have occurred was the casual act of negligence of Mr McGhee a man experienced in the operation of fork lift trucks and for whom the second defendant is responsible". That finding has been challenged on appeal it being contended by Mr Toomey QC that Nutric-Metics, as Mr Nobb's employer, should have been found liable because: "The casual act (of) Mr McGhee was part of an unsafe system in operation; that no instructions had been given to the independent contractor by the employer to ensure the safety of its employee who was working with the contractor, and that the employee had been given no instruction as to the safe method of behaving in the vicinity of fork lifts when approaching them." That submission was put, notwithstanding a verdict for the employer when sued by the employee, alleging breach of the obligation of the employer to provide and maintain a safe system of work. It was argued that where an employer hands over control of the work in his premises and his equipment to an independent contractor who is working with the employer's workmen "the content of the employer's duty to take reasonable 2 UNREPORTED JUDGMENTS care to provide a a safe system and conditions of work for the employee is not discharged by (the) delegation unless the delegate... independent contractor, in fact provides the reasonable care which the employer was under an obligation to bring to bear".! In my opinion this submission fails in the circumstances of this case. It may be accepted that an employer has a non-delegable duty of care which is not discharged by engaging an independent contractor where that independent contractor does not perform his functions with appropriate care. It does not follow, however, that simply because an employee is injured in the workplace that there is a failure by an employer, by himself or an independent contractor, to provide a safe system of work. Injury can be caused by a "casual act of negligence" of a fellow employee, or of an independent contractor engaged by the employer, in circumstances which indicate that the injury was not related to absence of provision of safe premises or of a safe system of work. It may also occur in circumstances which do not establish that the employer has breached any obligation of supervision to ensure that there exists safe premises or a safe system of work. Ultimately the question remains whether the circumstances of the accident causing injury establishes a breach by the employer of a non-delegable duty to both take reasonable care for the safety of its employees or a breach of a duty to ensure that reasonable care is taken for its employee's safety by its other employees, or by subcontractors?. It may also be accepted that an employer is obliged to foresee casual acts of negligence, inadvertence or inattention which may cause injury to employees or acts of a similar nature by another employee or independent contractor which may cause injury to a fellow worker3. However the trial judge found that the injured plaintiffs allegation that its employer had failed to provide a safe system of work, had failed to take any or any adequate precautions for the safety of the plaintiff whilst he was engaged upon his work, and had exposed the plaintiff to risk of damage or injury of which it knew or ought to have known, were not established. Those allegations were pleaded in the particulars of claim+ and in the amended notice pursuant to Pt21 17A filed by the appellant against Nutri-Meticss. Although a challenge to the trial judge's finding was contemplated by the notice of appeal®, no submissions in support of those grounds were advanced in the written (or oral) submissions. Apart from that, I am unable to see what steps it could be suggested that the employer could have reasonably have been expected to take to minimise or eliminate the risk of a fellow employee, or contractor's employee acting in the negligent fashion that Mr McGhee did. Mr Nobbs could hardly have been instructed not to approach the fork lift because part of his task was to use it in unloading. Further, as Patten DCJ found, he made his presence known to Mr McGhee by calling out to him shortly before Mr McGhee carelessly engaged the fork lift and ran over Mr Nobbs' foot. The allegation that the fork lift should have had a guard to prevent a person's foot passing underneath it was rejected by the Kondis v State Transport Authority (1984) 154 CLR 672 at 694. See Mason J in Kondis v State Transport Authority (1984) 154 CLR 672 at 687-688. McLean v Tedman (1984) 145 CLR 206 at 311-312. Appeal Book, p3P-U. Appeal Book, p13R-S. Ground 7, 8, 9, 10, 15, 17, and 18. ANRYNS URJ PRO-KRANE PTY LTD v NOBBS (Handley JA) 3 trial judge. Accordingly, as it seems to me, the claim of negligence against the employer was properly rejected by the trial judge. It follows that the third party claim by the appellant against the employer also failed with the consequence that the appeal should be dismissed with costs. Mahoney P I agree. I think the appeal fails on the merits. Mr Toomey has argued the merits and, notwithstanding his argument, I do not think that on the merits the appeal should succeed. There is the additional difficulty that there is judgment for the employer against the plaintiff in relation to the, as I may call it, system of work point, and the effect of Mr Toomey's argument is really to attempt to set up a finding contrary to that judgment. I do not think that that has been established in the circumstances. But however that be, the case, as I have said, fails on the merits. I agree with what has been said by Mr Justice Cole and with the orders he proposes. Handley JA I also agree that the appeal fails on the merits. Mahoney P: The order of the Court is, therefore, that the appeal is dismissed with costs. Appeal dismissed with costs. Counsel for the Appellant: B M J Toomey QC Solicitors for the Appellant: McMahons Counsel for the First Respondent did not appear. Solicitors for the First Respondent: McDonnell Schroder Counsel for the Second Respondent: AS Morrison SC/ AJ Candy Solicitors for the Second Respondent: Hunt and Hunt