New South Wales Court of Appeal CITATION : Brewster v Rethmann Australia Environmental Services Pty Limited [2004] NSWCA 96 HEARING DATE(S) : 23/03/04 JUDGMENT DATE : 23 March 2004 JUDGMENT OF : Mason P at 27 & 29; Handley JA at 28; Ipp JA at 1 DECISION : (1) Appeal allowed (2) In the proceedings relating to the accident on 8 August 2000, set aside the verdict for the defendant. In lieu thereof enter a verdict for the plaintiff in the sum of $549,146, being $610,162 subject to a 10 per cent deduction for contributory negligence, such verdict taking effect from 20 May 2003 (3) Defendant to pay plaintiff's costs of proceedings in the District Court (4) Respondent to pay appellant's costs of appeal and to have a certificate under the Suitors' Fund Act if qualified. CATCHWORDS : NEGLIGENCE - Personal injury - Plaintiff injured during accident in course of employment - Whether employer vicariously liable - Whether employer breached a non-delegable duty of care to provide a safe system of work - Whether employee was contributorily negligent. ND PARTIES : Robert Michael Brewster (Appellant) Rethmann Australia Environmental Services Pty Limited (Respondent) FILE NUMBER(S) : CA 40487/03 COUNSEL : P Semmler QC/I Roche (Appellant) H N Kelly SC (Respondent) SOLICITORS : R J Rimes (Appellant) Cutler Hughes & Harris (Respondent) LOWER COURT District Court JURISDICTION : LOWER COURT DC 2480/02 FILE NUMBER(S) : LOWER COURT Garling DCJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40487/03 DC 2480/02 MASON P HANDLEY JA IPP JA Tuesday 23 March 2004 ROBERT MICHAEL BREWSTER v RETHMANN AUSTRALIA ENVIRONMENTAL SERVICES PTY LIMITED Judgment 1 IPP JA: This appeal concerns an accident to the plaintiff that occurred on 8 August 2000. 2 The defendant operated a garbage collection service. A team of two or three of the defendant's employees would collect garbage bins from householders. A hydraulic mechanism on a garbage truck used by the employees would lift the bins, compress the garbage, and deposit the garbage in the truck. When the bins were empty they would be returned to where they had been deposited by the householders. This operation was conducted early in the morning, and the accident in question in fact occurred at about 5.30am when it was fairly dark. 3 On the morning in question, the defendant employed the plaintiff as a "puller outer". The task of a puller outer was to assist the other employees of the defendant in collecting garbage bins from where they had been placed by householders. 4 At times, the puller outer would not be required to remove the bins and bring them to the truck. On those occasions he would assist another of the employees, the "runner", in his work. The principal task of the runner was to collect bins and attach them to a mechanical device at the rear of the truck so that the garbage could be removed from them. 5 The plaintiff had in the past assisted the runner by running ahead to collect bins. He had done so at times not by running on the footpath but by running on the roadway between the footpath and the truck itself. This appears not to have occasioned any alarm on the part of the truck's crew. 6 On the day of the accident, the plaintiff was part of a team of three men collecting garbage. There came a point in the morning's work when the plaintiff was assisting his workmates by carrying out the tasks of a runner. 7 The official runner was a man named Mr Grief. Mr Grief testified that, shortly before the accident, the men emptied a particular bin. The bin was then returned to the place where the householder had stored it. The driver then went to the driver's side of the truck, plainly with the intention of driving it further. The plaintiff, with the intention of going forward and collecting bins ahead (in order to assist the runner), proceeded along the passenger side of the truck between the footpath and the truck itself. There was only a one metre space between the footpath and the truck. The plaintiff moved ahead in a slow jog. Mr Grief jumped onto the rear step of the truck, closest to the footpath. 8 Seeing the plaintiff jogging alongside the truck, Mr Grief signalled to the driver to go ahead. The driver commenced driving the truck, and it moved forward. Immediately thereafter, the plaintiff tripped and fell. He put out his hand on to the wheel of the truck in an attempt to steady himself. He was dragged forward and was seriously injured. 9 The plaintiff brought proceedings in the District Court for damages for the personal injuries he suffered. The particulars of negligence put the case on two bases, one was vicarious liability, the other was breach of a non-delegable duty in failing to provide a safe system of work. 10 In argument on appeal, Mr Semmler QC, who together with Mr Roche appeared for the plaintiff, submitted that the defendant was vicariously liable for the negligence of Mr Grief in signalling the driver to move forward at a time when the plaintiff was next to the truck in a position that was obviously dangerous. 11 The non-delegable duty case was based on the proposition that the defendant, negligently, had not implemented any system of work. It was also argued that the system that in fact was in place was inadequate because it did not involve instructing the workers to run on the footpath and not on the roadway. 12 On the evidence, the employer had not itself implemented any system of work. A system had evolved however by the conduct of the men themselves who were highly experienced workers in this industry. Basically the system involved the runner standing at the back of the truck and signalling the driver from that position when it was safe to proceed further. The runner would do this by holding up his hand, and the driver would then move forward. The structure of the truck was such that the driver could not himself see to the rear and to the side of the truck, and was dependent on the runner for advice in this respect. 13 The trial judge found for the defendant despite holding that, to use his words, on this occasion "there was obviously no system in place". He said that the driver drove in a "normal manner", and Mr Grief acted in a "normal manner", but nevertheless an "accident" resulted. His Honour made no mention in his reasons of the plaintiff's case based on vicarious liability. As I understand his Honour's reasons, he considered that the accident had occurred without fault on the part of any person. 14 The plaintiff contends on appeal that his Honour should have found, on the facts he held to have been established, that Mr Grief was negligent, and that the defendant was vicariously responsible for that negligence. 15 The plaintiff also argued that the absence of a system of work constituted a breach of the non-delegable duty of care. 16 In my opinion Mr Grief was undoubtedly negligent in signalling the driver to proceed when he saw the plaintiff move forward alongside the truck in a position in which he would have been vulnerable to serious injury were anything untoward to occur, such as a fall. The defendant is vicariously liable for that negligence. The appeal must succeed on this ground alone. 17 As regards the non-delegable duty of care point, in my opinion there was a safe system of work in place, namely, that which required the runner to advise the driver when it was safe to proceed forwards. Part of this system was the hydraulic mechanism, which prevented the truck from moving forward while it was in operation. Thus, provided the runner acted with due care, there was no risk of injury to other workers. 18 I accept that, seen in a vacuum, the defendant was negligent in failing to itself take steps to ensure that a system was in place, in leaving it to the workers themselves to develop their own system, and in failing to enforce the system. In my opinion, however, that negligence had no causative effect. Firstly, the existing system in operation was adequate. Secondly, the risks involved in jogging between the truck and the footpath were so obvious that it was not necessary for the defendant to give the workers instructions not to perform their work in that way. Thirdly, I cannot see that enforcing the system (for example, by giving the relevant instructions and taking steps to remind the workers of them) would have resulted in the plaintiff behaving in any different manner. 19 It remains to deal with the question of contributory negligence. 20 In my opinion, the negligence of Mr Grief has to be regarded as far more serious than any contributory negligence on the part of the plaintiff. 21 It was Mr Grief's specific duty to take due care for the safety of persons in the plaintiff's position, namely, beside the truck – an area that was not visible to the driver. The system itself depended on Mr Grief carrying out his duty with due care. 22 The position of the plaintiff at the time was, in my opinion, inherently dangerous. He was very close to the side of the truck, and was susceptible to injury should any slight mishap occur. He had fallen in the past while jogging. 23 It was not a difficult matter on this occasion for Mr Grief to exercise reasonable care. He saw the plaintiff jog along the side of the truck with only one metre between the truck and the footpath. Even before the plaintiff began to jog, Mr Grief was aware that he was likely to move forwards. Therefore, Mr Grief was fully aware of the position in which the plaintiff had put himself. Nevertheless, he signalled the driver to move ahead. 24 Mr Grief was in control of the situation, the plaintiff was reliant on him for his safety. 25 When one compares the degree of fault and the causative potency of the conduct of both men, the neglect and causative influence of the conduct of Mr Grief were far greater. 26 For these reasons I consider that the plaintiff should be awarded 90 per cent of his damages, and the apportionment of damage should be on the basis of 90/10. 27 MASON P: I agree. 28 HANDLEY JA: I also agree. 29 MASON P: Then the orders of the court are as follows: 1. Appeal allowed. 2. In the proceedings relating to the accident on 8 August 2000, set aside the verdict for the defendant. In lieu thereof enter a verdict for the plaintiff in the sum of $549,146, being $610,162 subject to a 10 per cent deduction for contributory negligence, such verdict taking effect from 20 May 2003. 3. Defendant to pay plaintiff's costs of proceedings in the District Court. 4. Respondent to pay appellant's costs of appeal and to have a certificate under the Suitors' Fund Act if qualified. 30 MASON P: They will be the orders of the Court. ********** Last Modified: 03/31/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.