BURN PHILIP TRUSTEE CO LTD v CLARKE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, COLE JJA and ABADEE AJA 19 September 1996, 6 December 1996 [1996] NSWCA 79 Master and servant — Vicarious liability of employer for casual act of negligence of fellow employee — Employee injured whilst assisting other employee to lift heavy weight — Contributory negligence Priestley JA This is a difficult case because it lies near the rather vague line dividing the situations in which a defendant will and will not be held liable for negligence. The difficulties in deciding, in cases such as the present, whether or not a plaintiff should succeed are well illustrated in the reasons of Cole JA, who thinks the plaintiff should not have succeeded at first instance, and Abadee AJA who thinks that Grove J was correct in entering judgment for the plaintiff. In Abadee AJA's reasons the argument put by the plaintiff in defence of Grove J's decision and an analysis of the cases which need to be applied in considering that argument, are fully set out. My assessment is that the weight of that argument and analysis is somewhat greater than that of the opposing view. I therefore agree with Abadee AJA in thinking that the appeal should be dismissed. T also agree with Abadee AJA, for the reasons he gives, that the cross-appeal should be dismissed. In my opinion the orders proposed by Abadee AJA should be made. Cole JA The respondent, Peter Clarke, was the manager of the appellant's Parramatta branch, and was aged 40 when on 12 April 1985 he injured his back whilst assisting two fellow employees to move a credenza, which was a cupboard approximately four feet by one and a half feet by two and a half feet. The circumstances in which the injury occurred were that Mr Clarke had been asked to attend a promotional show at the Centrepoint Complex in Sydney on behalf of his employer. At the show there was a mock up office. He went to Centrepoint at about 9.30a.m. where he found two other employees, Miss Cooper and Miss Murdoch. Both were less than 30 years old but Miss Cooper was the marketing manager for the company. Grove J held that she was not in a superior position as an employee to Mr clarke, they both being managers of different aspects of the appellant's business. Miss Cooper wished to rearrange the credenza in the mock up office and said: "Oh, I would like to move this credenza to give the office a better looking appearance. If two of us girls get to one end and push, would you be able to lift the other end so we can just move it four or five feet or so over there". Mr Clarke acquiesced, lifted one end off the floor a couple of inches and the two ladies pushed it the requisite four to five feet. Mr Clarke felt twinges in his back as he put down the credenza. His evidence was that he did not open the credenza to see if it was empty, and on first lifting knew that it was heavy. Nonetheless, he did not put it down and suggest that it be emptied. He acknowledged in cross-examination that as there were brochures elsewhere in the office it was likely there would be brochures in the credenza, as in fact there were, although he said that was not to mind when 2 UNREPORTED JUDGMENTS he lifted the credenza. He acknowledged that, as a matter of general experience and common sense, if he felt on lifting that the cupboard was too heavy, he could have put it down and unloaded it. However, on first lifting it he made the assessment that it was within his capacity to lift it whilst it was pushed the few feet desired. Mr Clarke sued his employer in negligence. Grove J rejected not only the contention that Miss Cooper was in a superior position and had given Mr Clarke a direction to lift the credenza, but also the contention that the employer had failed to provide adequate assistance to the plaintiff in the moving task, and that the employer had failed to instruct him in the correct method of lifting the credenza. However his Honour found that the employer was liable in negligence because Miss Cooper had presumptive knowledge that there were many brochures in the cupboard and accordingly it was heavy and, as a fellow employee of Mr Clarke, she breached her duty to him in failing "to share with him her imputed knowledge that there was a considerable weight of paper within the piece of furniture which she was inviting him to assist in moving". Finding the employer vicariously liable for Miss Cooper's conduct, a verdict was entered for Mr Clarke. A challenge to that finding is the only matter raised by the employer on appeal. Grove J also found that Mr Clarke was guilty of contributory negligence in that "he had the opportunity to decline the request (to move the credenza), to make any inspection or inquiry that he chose, to test the weight and/or his grip on the item and, when a consciousness of the unexpected heaviness of the item affected him, he could have simply placed his end down on the carpet". The injury did not arise from inadvertence by Mr Clarke, but rather his conscious decision to proceed with the task, including after he assessed its weight. Grove J assessed contributory negligence at 40%. That is challenged by Mr Clarke by cross-appeal, and by a notice of contention he challenges the trial judge's rejection of his allegation that the employer was negligent in failing to provide a safe system of work, failing to provide assistance to Mr Clarke in the moving task, and failing to provide mechanical or other means to perform the task. In my opinion the appeal succeeds. The standard of care which an employee must exhibit towards a co-employee, if the employer is to avoid vicarious liability for injury caused by the employee to the co-employee, cannot be greater than the standard of care which the employer directly owes to the co-employee.! The obligation upon an employer is to take reasonable care to avoid exposing employees to unnecessary risks of injury2. As part of that duty an employer must warn an employee of unusual or unexpected risks3. However, as the High Court made clear in McLean's Roylen Cruisers Pty Ltd v McEwan', there may be occasions when an employer is under 1. In this respect it matters not whether the employer's liability flows because of responsibility for the servants torts as Staveley Iron and Chemical Co Ltd v Jones [1956] AC 627 suggests or because the employer is liable for his servant's acts as the majority held in Darling Island Stevedoring and Lightridge Co Ltd v Long (1957) 97 CLR 36; See Commissioner of Railways v Ruprecht (1979) 142 CLR 563 at 573 per Mason J. 2. Bankstown Foundry Pty Ltd v Brastina (1986) 160 CLR 301 at 308. See O'Connor v Commissioner of Government Transport (1954) 100 CLR 225 at 229; Nicol v Allyacht Spas Pty Ltd (1987) 163 CLR 611 at 617. 4. (1984) 58 ALJR 423 at 425. » URJ BURN PHILIP TRUSTEE CO LTD v CLARKE (Cole JA) 3 a duty to his employee to warn of risks which are "usual or expected". The example given by Gibbs CJ was employees repeatedly ignoring an obvious danger. As his Honour said: "No detailed rules can be laid down: the question is simply whether in all the circumstances of the case the taking of a reasonable care by the employer involved the giving of a warning."5 Mason J said in Raimondo v South Australia®: "T do not read these remarks (By Lord Reed in General Cleaning Contractors Ltd v Christmas (1953) AC 180 at 193-4) as enunciating an absolute proposition that an employer is never entitled to rely on the skill and experience of his workman in countering a risk which arises in the course of their employment. The remarks need to be understood in the light of the well accepted statement that the scope and extent of the employer's duty depend very much on the circumstances of the case. In the first place, the employer will not be liable unless it appears that he has failed to take measures, or adopt means, which were reasonably open to him and which would have eliminated or significantly reduced the element of danger... And it has been held that (a) the degree of risk of an accident occurring; (b) the degree of injury likely to result from such an accident; and (c) the nature and extent of the remedial action suggested to be taken are all elements to be considered in deciding whether the employer is in breach of a duty to take reasonable care". His Honour referred with approval to the remarks of Taylor J in Electric Power Transmission Pty Ltd v Cuiuli7 where his Honour said: "Tf one seeks far enough it is possible to perceive an element of risk in the performance of any task, however simple, but the duty of an employer does not extend to guarding against every conceivable risk however remote or fanciful..." To that may be added the statement of Windeyer J in Sungravure Pty Ltd v Meani': "Nothing said since 1856 has made less true the simple statement of Alderson B in Blyth v Birmingham Water Works Co: "Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do". Whether a person was negligent in that sense must be determined in every case in the light of all the circumstances." The question in issue may be reduced to this: Was it negligent for an employer, in this instance through its employee Miss Cooper, not to warn the respondent when requesting assistance to move a cupboard four or five feet, that the cupboard was heavy, having regard to the circumstance that the person to whom the request was made was a forty year old branch manager. Moving an object can give rise to the possibility of physical injury. That risk will be minimised by determining the weight of the object to be moved and, if appropriate, reducing the weight by removing contents from within the object where that was possible, as here it was. Commonsense and the common 5. See also the discussion by Mason J in Raimondo v South Australia (1979) 23 ALR 513 at 517-518. 6. (1979) 23 ALR 513. 7. (1961) 104 CLR 177 at 183. 8. (1964) 110 CLR 24 at 36. 9. [1856] 11 Exch 781. 4 UNREPORTED JUDGMENTS experience of man indicates that that is what occurs, whether in a domestic or employment situation, as Mr Clarke acknowledged. Mr Clarke had the option of declining to assist in moving the cupboard or, when testing its weight of saying it was too heavy and removing the contents. Whether the credenza was too heavy would become immediately obvious to Mr Clarke on his attempting to lift it. In fact he formed the view that it was not too heavy for him to lift. In my opinion, to adapt the words of Mason J in Raimondo, it is against common sense to say that Miss Cooper, who was herself partaking in the move of the credenza, should have warned Mr Clarke that it was heavy. It follows, in my view, that Grove J was in error in holding that Miss Cooper's failure to warn that the credenza was heavy constituted a negligent act for which the employer was responsible. Regarding the issues raised in the notice of contention, I am unable to see any sound basis for disturbing the findings of Grove J rejecting the remaining three heads of negligence pleaded. It seems to me to be fanciful to suggest that it would have been a reasonable response by an employer to risk of injury to an employee arising from the prospect that the marketing director may wish to move a piece of furniture at a temporary office erected at a promotional show that the employer should have provided furniture straps or a furniture dolly, and failure to do so constituted negligence. The reasonable response of an employer would be to contemplate that the employees would unload the furniture before moving it if it was too heavy. Further, Grove J's finding that the request by Miss Cooper to Mr Clarke to assist in moving the credenza did not constitute a direction is, in my opinion, clearly correct. It was contended on appeal that Grove J's finding that Miss Cooper was not authorised to give directions to Mr Clarke and that he did not partake in the move in response to such a direction was in error. I do not think that it was. The evidence was that each was a manager of an aspect of the appellant's business. There was no evidence of her superiority in status over Mr Clarke. The terms of her enquiry of Mr Clarke regarding whether he would be able to assist in the moving were not framed as a direction, and a position of superiority is not to be inferred, first by construing the terms actually used into a direction and then, second, from that assumed direction deriving a position of superiority and authority. Nor is it sensible to contemplate that an employer had an obligation to instruct Mr Clarke on the proper method of moving a credenza in circumstances where the wish to move it was unforeseen, alternative and safe methods of moving it were obvious, and the persons engaged in the task were, as the positions they had achieved demonstrate, persons of intelligence and common sense. In my opinion the grounds advanced in the notice of contention fail. I also see no basis upon which this Court should disturb Grove J's apportionment of contributory negligence. The matter involved an assessment of the factual circumstances, and no error in his Honour's assessment has been demonstrated. The circumstances in which this Court would interfere with an assessment of contributory negligence are limited and rare.!0 I would propose the following orders: 10. See House v The King (1936) 55 CLR 499 at 504-505; Pennington v Norris (1956) 96 CLR 10 at 16. URJ BURN PHILIP TRUSTEE CO LTD v CLARKE (Abadee AJA) 5 1. Appeal allowed. 2. Cross-appeal dismissed. 3. The orders of Grove J made 17 November 1995 be set aside and there be entered in lieu a verdict for the defendant. 4. The respondent is to pay the appellant's costs of the proceedings at first instance and is to pay the appellant's costs of the appeal and cross-appeal but is to have, in respect of the appeal, a certificate under the Suitors Fund Act if qualified. Abadee AJA The issues on the appeal, and the facts and circumstances pertaining to how the respondent sustained his injury have been generally considered by Cole JA in his reasons for judgment. The detailed findings in relation to the facts are also set forth in the reasons of the trial judge, Grove J. There is no need to repeat them. The appeal by the employer is one narrowly based. The question posed by it is whether the appellant was negligent in the particular respect found by his Honour. The respondent by his amended notice of contention submits that the decision of Grove J ought to be affirmed upon other grounds. These may be summarised as follows. Firstly, that his Honour was in error in failing to find that the appellant had failed to provide the plaintiff with a safe system of work. Secondly, that his Honour erred in failing to find that the appellant failed to provide the respondent proper assistance. Thirdly, that his Honour erred in failing to find that the appellant failed to provide the respondent with any or adequate mechanical or other means to assist in moving the credenza. These claims of negligence are perhaps modified variations of the allegations advanced at the trial on behalf of the respondent. Further, in the fourth ground set forth in his notice of contention the appellant suggests a number of other errors in the findings of the trial judge. Essentially the respondent contends that his Honour erred in holding that the appellant's Marketing Manager, Miss Cooper, was not authorised to give directions to the respondent for the purposes of the operation in the course of which he was injured. Next, it is said that his Honour should have held that the respondent lifted and moved the credenza in response to a direction from his superior for the purpose, Ms Cooper. The respondent has also filed a cross/appeal challenging his Honour's findings in relation to contributory negligence on the part of the respondent. It was submitted that there should have been no finding of contributory negligence and further that the assessment of contributory negligence as 40 per cent was excessive. It was also submitted that if the submissions contained in the fourth ground of the notice of contention were accepted by the Court such was also an additional reason as to why the finding of any contributory negligence should be set aside. I shall first consider the actual appeal itself. His Honour considered that any liability of the appellant to pay damages to the respondent had to be derived from the appellant's vicarious liability for some casual act of negligence on the part of Ms Cooper as a fellow employee of the respondent: Appeal Book 283. His Honour found a breach of duty in failing to share with the respondent her imputed foreknowledge that there was a considerable weight of paper within the piece of furniture which she was inviting him to assist in moving. Such liability of the employer is to be distinguished from the personal liability of the employer which depends upon a breach of a personal non-delegable duty. As to the discussion of an employer's non-delegable duty: 6 UNREPORTED JUDGMENTS see Kondis v State Transport Authority (1984) 154 CLR 672. His Honour found that the appellant was not in breach of such a duty. However, his Honour held that the plaintiff had succeeded in proof of negligence for which the defendant was liable upon what he referred to as the slender basis found. His Honour said (at Appeal Book 284): "The remaining assignment of negligence is particularized as the failure to warn the plaintiff. I am satisfied that the credenza (with its contents at the time) was sufficiently heavy to make lifting it accompanied by foreseeable risk. I am unimpressed by the extrapolated precision of a computation of the weight of the item using as factors estimated dimensions, approximate proportion of fill and assumed density of the mass of paper but, as I have noted in sketching the facts, it was unexpectedly heavy. Ms Cooper did not give evidence. Mr Gleeson QC for the defendant emphasized that her state of knowledge as to the specific content of the credenza was speculative. That is true but I am satisfied that she ought to have known of the substantial content and that, having regard to her proximity to the plaintiff as a fellow employee, she was in breach of a duty of care in failing to share with him her imputed foreknowledge that there was a considerable weight of paper within the piece of furniture which she was inviting him to assist in moving". His Honour's finding that Ms Cooper ought to have known of the substantial content is not altogether surprising. In his evidence the respondent said that when he put the credenza down he asked Ms Cooper "What's in this rocks?" or "is there rocks in this?" to which she responded "no it is only brochures". (Appeal Book 25A). As his Honour observed Ms Cooper did not give evidence. In my view this failure to give evidence is also not without significance: see S T V Lolomanaia v C L Rush (CA 15 July 1996, unreported). His Honour clearly found negligence only upon the slender basis stated, observing (at Appeal Book 285) that "if analysis is undertaken in accordance with modern precept a perception of negligence on the part of Ms Cooper is visible". I see no error in his Honour's approach. His Honour found the issue of proximity in the respondent's favour. Such a finding is not challenged. The issue became rather whether there had been a breach of her duty of care by Ms Cooper. His Honour found such a breach. As there was a casual act of negligence on her part, as fellow employee of the respondent then in the circumstances the appellant was as his Honour found vicariously responsible for such. The standard of care to be applied to the conduct of an employee when action is brought by a fellow employee "does not differ from the ordinary standard which would be applied at the instance of an injured stranger: Glass, McHugh and Douglas; The Liability of Employers in Damages for Personal Injury, 2nd ed, at 102-103. Ms Cooper's duty was the duty to take reasonable care. The measure for determining what constitutes reasonable care is an objective, impersonal one. It is the "standard of the reasonable [person]": per Fullagar J in Commissioner for Railways (NSW) v Anderson (1961) 105 CLR 42 at 56. That is to say what is required is "the conduct that would be expected of the reasonably careful [person] in the circumstances": see Cook v Cook (1986) 162 CLR 376 at 382. It is for the court to determine essentially as a question of fact how the reasonable person to whom Mason J referred in Wyong Council v Shirt (1980) 146 CLR 40 at 47-48 will act in each case. What was required of Ms Cooper was to be determined by "what a reasonable [person] would do by way of response to the risk": Shirt per Mason J at 47. URJ BURN PHILIP TRUSTEE CO LTD v CLARKE (Abadee AJA) 7 As Glass, McHugh and Douglas again observe (at 102) the enquiry whether an employee has been guilty of a breach of duty to a fellow employee resembles in many respects the enquiry as to whether there has been a breach of the employer's personal duty. However, a finding of negligence based upon the vicarious liability of the employer for the negligence of Ms Cooper does not of itself inhibit the conclusion that there was a breach of the non-delegable personal duty of the employer to provide a safe system of work: see Kondis per Mason J at 688. Indeed so much was not suggested by the appellant. Nor does a finding that the employer was not in breach of its personal non-delegable duty preclude a finding of the employer being vicariously liable for the casual act of negligence of Ms Cooper. In his notice of contention the respondent has submitted that in the circumstances despite the finding of casual negligence on the part of Ms Cooper such finding did not of itself preclude a further finding that there was also a breach of the appellant's non-delegable duty to provide a safe system of work. Indeed it is urged upon the Court that such a finding should further or alternatively, have been made. The appellant submitted that in the circumstances it was against common sense to suggest that Ms Cooper should have warned the respondent. I would agree that if Mr Gleeson QC could make good such a claim then no finding of a casual act of negligence on her part could be made involving her. It would be perhaps difficult to find that there is a failure to take reasonable care in a particular respect when common sense does not require that such reasonable care be taken in that respect. Generally reasonable care does not require negligence. Next, Mr Gleeson submitted that in determining whether Ms Cooper had been in breach of her duty to take care, one should pose the question whether the employer in the exercise of reasonable care would have been required to have given such a warning. With respect I do not agree with such an approach. It is trite law that the obligation of the employer is to take reasonable care to avoid exposing employees to unnecessary risk. The general duty of care is frequently analysed in terms of perhaps more discreet duties which do no more than affirm the employer's duty to take reasonable care for the safety of its employees: Quigley v The Commonwealth (1981) 55 ALJR 579 per Stephen J at 580. The failure to warn or instruct may perhaps be regarded as such a discreet duty. However, in the present case Grove J found that the appellant was not in breach of its non-delegable personal duty of care. The defendant's liability was held to be derived from its vicarious responsibility for a causal act of negligence of Ms Cooper with the issue being, whether Ms Cooper was in breach of her duty of care to her fellow employee, the respondent. Mr Gleeson relied upon the decision Raimondo v State of South Australia (1979) 23 ALR 513. In that case the question arose as to whether the employer had a duty to warn two experienced painters involved in inappropriate methods of trestle adjustment. Mason J said at 518: "Tt is against common sense to say that the taking of reasonable care by an employer called for the giving of an elementary instruction or caution in relation to the slight, albeit evident, possibility of injury which an imprudent mode of adjusting the trestles would entail". Mr Gleeson argued that if common sense had not required the employer exercising reasonable care to have given a caution, and therefore in circumstances such as the present, common sense then dictated that Ms Cooper exercising reasonable care, was likewise not required to give one. One proposition does not necessarily follow the other. I see no necessary warrant for 8 UNREPORTED JUDGMENTS testing whether Ms Cooper was in breach of her own duty of care to the respondent by posing the issue in the manner urged by the appellant. It is sufficient to observe that the question of whether Ms Cooper was in breach of her duty to take care in the manner found by his Honour was essentially a question of fact. It does not offend my common sense that Grove J should find her negligent for failing to give the warning. I generally also agree with his Honour the trial judge that if analysis is undertaken in accordance with "modern precepts", a perception of negligence on the part of Ms Cooper is visible. It perhaps also reflects of some of the views expressed by the High Court in another context and in relation to an employer's liability: Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 307-308. In Braistina the High Court was concerned with inter alia the question of what reasonable care was required of an employer owing a duty of care, observing that any assessment of the breach of duty of an employer was a question of fact to be determined in each particular case. The Court stated that what was to be considered to be reasonable in the circumstances must also be influenced by changing ideas of justice and current community standards. In any event it seems that the decision in Raimondo was one on its own facts involving no question of principle and even perhaps influenced by the then current community standards at the time it was decided. In Quigley Murphy J (in his dissenting judgment) at 584 expressed what, I might neutrally, refer to as reservations in relation to the decision. Indeed, there is some force in the submission of the respondent that it is questionable whether since the decision in Braistina the case of Raimondo would be decided in the same way today. There is no need to speculate further on this question. In any event not only is Raimondo a different case on the facts, it does not in this case require a view to be reached contrary to that found by the trial judge. The instant case illustrates that judges may differ and perhaps even markedly so as to what may be expected by way of reasonable care in the circumstances of a particular case. The instant case is such an example. In determining what is the proper inference to be drawn from facts which are undisputed or which having been disputed have been established by the trial judge's findings, then the appellate court will give respect and weight to the conclusions of the trial judge but having once reached its own conclusion will not shrink from giving effect to it: Warren v Coombs (1979) 142 CLR 531. In this case I give respect and weight to the finding of Grove J. My conclusion is that the decision has not been shown to be wrong. I am unable to see any basis for disturbing his Honour's decision on the issue of negligence. What I have said thus disposes of the employer's appeal. However, in the circumstances it is appropriate for me to make some further observations. I agree with Grove J, again essentially for the reasons given by him, that the request by Ms Cooper to the respondent in moving the credenza did not constitute a direction. Further, I also agree with his Honour's conclusion that Ms Cooper was not authorised to give a direction to the plaintiff on behalf of the appellant and nor did the respondent perceive that anything emanating from her was given as such. The respondent's challenge in relation to the matters raised in the fourth ground of the amended notice of contention have not been made good. The respondent has by its notice of contention sought to disturb the findings of Grove J in rejecting the remaining three heads of negligence. In respect of the allegation of the employer failing to provide assistance to Mr Clarke in the moving task, and failing to provide mechanical or other means to perform the task (or somewhat similar allegations advanced at the trial) I am unable to see any URJ BURN PHILIP TRUSTEE CO LTD v CLARKE (Abadee AJA) 9 reason for disturbing Grove J's findings rejecting such heads of negligence. As regards the respondent's further claim that his Honour should have found that the employer was negligent in failing to provide a safe system of work, perhaps not without some little hesitation, I have come to the conclusion that in the circumstances it was not negligent for the reasons given by Grove J in his reasons for judgment. TI now turn to the cross appeal. It was submitted that his Honour was in error in finding contributory negligence or to the extent alleged. Before us it was also argued that if the respondent were to succeed in establishing the matters set forth in ground 4 in the amended notice of contention; then in any event, the respondent was merely doing what he was told to do and could not, in such circumstances, be guilty of contributory negligence. As the respondent has not made good the matters or either of them referred to in ground 4 in the amended notice of contention this last submission should be rejected. Further, for reasons given by Grove J which I am content to accept, I see no ground for disturbing Grove J's finding that there was contributory negligence on the part of the respondent. The finding was one open to his Honour. Finally, I too see no basis upon which this Court should disturb Grove J's apportionment of contributory negligence. Again I do so by way of adoption of his Honour's reasons which reflect no error. On the question of apportionment I also agree with the views of Cole JA in relation to this matter. I would propose the following orders: 1. The appeal be dismissed. 2. The cross/appeal be dismissed. 3. The appellant to pay the respondent's costs. Appeal and cross-appeal dismissed, and the appellant will pay the respondent's costs. Representation: Counsel for the appellant: JN Gleeson QC; EG Romaniuk Counsel for the respondent: BMJ Toomey QC; J Drummond Solicitors for the appellant: Moray and Agnew Solicitors for the respondent: Ternes and Salier