New South Wales Court of Appeal CITATION: State of New South Wales v Watzinger [2005] NSWCA 329 HEARING DATE(S): 13/05/05 JUDGMENT DATE: 23 September 2005 JUDGMENT OF: Handley JA at 1; McColl JA at 2; Campbell AJA at 4 DECISION: 1. Verdict and judgment of Judge Blackman set aside. 2. The matter remitted to the District Court for a new trial limited to the issue of liability including contributory negligence. 3. The costs of the first trial to be determined by the judge hearing the retrial. 4. The respondent to pay the costs of the appeal and to have a Certificate under the Suitors' Fund Act if otherwise qualified. CATCHWORDS: Negligence - prisoner injured carrying out plumbing work - not an employee - duty of care - foreseeability - Shirt calculus - adequacy of reasons. Workers Compensation Act 1987 LEGISLATION CITED: Suitors' Fund Act Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 Hudson v Ridge Manufacturing Co Ltd (1957) 2 QB 348 Helmers v Department of Corrective Services [1997] 14 NSWCCR 248 Maviglia v Maviglia [1999] NSWCA 188 Tame v New South Wales [2002] 211 CLR 317 Beale v GIO of New South Wales (1997) 48 NSWLR 430 Quinn v Hill (1957) VR 439 Hall V Whatmore (1961) VR 225 Morgan v Attorney-General [1965] NZLR 134 CASES CITED: Ellis v Home Office [1953] 2 QB 135 Keatings v Secretary of State for Scotland 1961 SLT (Sh.Ct.) 63 R v Marshall [1985] 57 NR 308 McLean v The Queen (1972) 27 DLR 3rd. McCoy v Engle (537 NE 2d 665 (Ohio App 1987)) Australian Safeway Stores Pty Ltd v Zaluzna (1986-1987) 162 CLR 479 State of New South Wales v Seedsman [2000] NSWCA 119 Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424 Brodie v Singleton Shire Council (2001) 206 CLR 512 Ashrafi Persian Trading Co Pty Ltd v Ashrafinia [2001] NSWCA 243 State of New South Wales - Appellant PARTIES: Merrick Watzinger - Respondent FILE NUMBER(S): CA 40589/04 Mr D Davies SC with Mr S Finnane - Appellant COUNSEL: Mr D Nock SC with Mr J Mitchell - Respondent Crown Solicitor - A SOLICITORS: Stacks/Goudkamp - R LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 4893/02 LOWER COURT JUDICIAL OFFICER: Blackman DCJ IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40589/04 DC 4893/02 HANDLEY JA McCOLL JA M W CAMPBELL Friday 23 September 2005 STATE OF NEW SOUTH WALES v MERRICK WATZINGER Judgment 1 HANDLEY JA: I agree with Campbell AJA. 2 McCOLL JA: I have read Campbell AJA's draft judgment. I agree with his Honour that there should be a retrial and with his reasons for that conclusion. 3 I express no view as to the appropriate formulation of the duty of care the appellant owed the respondent or his Honour's observation concerning the "trade expertise" of an experienced plumber. 4 CAMPBELL AJA: This is an application for leave to appeal heard concurrently with the appeal. Leave to appeal was granted at the conclusion of the oral hearing. 5 The appeal is from a judgment of his Honour Judge Blackman SC of the District Court awarding the respondent a verdict in the sum of $89,787.15. The appeal, as finally presented, was confined to the issue of liability. The Circumstances 6 The respondent is an experienced plumber who, on 2 November 1999, was an inmate of the Mannus Correctional Establishment at Tumbarumba serving a six-month sentence for the possession of cannabis. 7 He had in 1991, whilst working as a plumber, suffered a significant back injury and thereafter limited his plumbing work to lighter work. 8 Mannus was a low security establishment. 9 Work to be engaged in by inmates was regulated by the provisions of the Correctional Centres Act 1952 and the Prisons (General) Regulation 1989. For reasons which will appear it is unnecessary to go to the detail of these provisions. 10 On arrival at Mannus the respondent was assigned to plumbing work. He gave evidence: "Q. What style of plumbing work? Was it heavy? Light? Occasional? How would you describe it? A. Mainly light. It was changing tap washers, fixing shower roses, blocked drains, like ie kitchen sink for instance. Q. Yes. A. Or work in the laundry." 11 The method by which work was allocated to him appears from the evidence I shall set out later. 12 On 2 November 1999 the respondent disconnected a large (1 tonne) industrial washing machine, sometimes described as a dryer, which was one of a pair in the laundry. It was common ground that it was not working and was to be removed and replaced with a wooden table on which clothes could be folded. When it was to be removed, as opposed to disconnected, was a matter in issue to which I shall come. 13 Having disconnected the machine the respondent commenced to move it single handedly using a crowbar and six steel pipes as rollers. To leave the building it was necessary to pass over what the respondent described as a dogleg of first twelve metres in one direction and eight metres in another direction. 14 The route passed through a double doorway which was probably at the junction of the dogleg, however, that is not clear. By the time the respondent had completed eight to ten changes of rollers he reached the doorway and the machine became stuck. 15 The machine sealed off the entrance to the laundry and inmates wishing to use the laundry proceeded to help move the machine. In particular a man, Adam Bennett, climbed over the machine into the laundry and attempted to help with the crow bar. The respondent, who was on the outer side pulled on the casing of the machine which, during the course of the operation, probably when the crow bar slipped, sprang back and damaged his right hand. 16 The respondent was subsequently treated in hospital for the injury to his hand and later sequelae of that injury. 17 It is relevant now to set out the respondent's version of how he came to move the washing machine and the version of the prison officer Mr Murphy who was the only other witness called at the trial. The Respondent's Version 18 The respondent gave evidence: "Q. And were you – in what way were you directed or authorised to do each piece of work? What was the process that was followed? A. I was asked to compile a list of the units that needed plumbing work done or I was to examine the plumbing work and any maintenance that was to be done I was asked to carry out. Q. Did you make lists in that way from time to time? A. Yes. Q. Having made a list, would you present it for approval to somebody? A. That's right. Q. And to whom? A. To the head of the building section. Q. and what was his name? A. I cannot be clear with his name. Q. And then if he authorised it, would you proceed to do the various plumbing jobs that were on the list? A. Yes, that's right." 19 The head of the building or maintenance section was later identified by Mr Murphy as Charlie Dow. 20 The respondent gave evidence: "Q. What I mean is, had there been a list of work following the process that you have described that included items in that particular laundry room? A. Yes. Q. And leaving aside the matter of the dryer that we will come to, was there any other plumbing – were there any other plumbing items to be done in that particular laundry room? A. Yes. Q. And what were they? A. Disconnect a sink; install a wooden folding bench. Q. Yes. A. After room was made from the removing the dryer. Q. And was there any discussion between you and your superior about the dryer and what was to happen to it? A. Yes. Q. Were you - to the best of your recollection tell us the discussion that occurred. Who said what and who said what, in reply? A. I presented my work list that I compiled that needed to be done and the head of the building section gave me the go ahead to do what was necessary around the prison. Q. Yes? A. He examined the list and said that was all fine, go ahead." 21 The then gave evidence: "Q. Now, I'm drawing your evidence (sic) specifically to the day in question and the room in question. Was there such a discussion in respect of the work in that room for that day? A. Yes Q. And what time of day would the discussion have taken place? A. In the morning. Q. Do you still have the list that you made out? A. Yes, I do." 22 The respondent then produced a diary apparently issued by Mannus. It was not suggested it was used other than as a convenient place to write a list. It was not date related. The respondent gave evidence: "Q. And is that the booklet in which day-to-day over the period prior to the accident you entered up items of plumbing that were required? A. That's right. Q. And was that shown day-to-day to the appropriate superior officer? A. That's right." 23 He did, however, say that he sometimes used other loose pieces of paper. He was not challenged as to this. 24 The diary was tendered. The relevant list has a heading Laundry, two items of pipe repair then "Dryer Disconnected" with under that "Bench in Laundry". 25 The respondent said that on 2 November 1999 he had spoken to Mr Murphy, the head of the mechanical division, in his separate workshop. He said: "I told him that I have (sic) moving a dryer from the laundry and that I needed the use of a trolley." 26 The response was, according to the respondent "We don't have one". The respondent said that Mr Murphy then told him to talk to the driver of a crane which was used for instructional purposes. The respondent did so and organised with the crane driver that he would bring the crane to the outside of the building after the course was finished. The crane would not be able to enter the building. 27 At the time the respondent spoke to Mr Murphy he asked could he take some steel pipes he had noticed, presumably in the workshop. He gave evidence: "Q. And what was your purpose in asking for those. A. I told him that I was going to roll the dryer out with them." 28 After the conversations with Mr Murphy and the crane driver the respondent took the six pipes and proceeded to disconnect and then move the machine. 29 The respondent was cross-examined as to an Inmate Injury Questionnaire he signed after the accident, it having been filled in by a Prison Officer, Mr Metcalfe, who asked the respondent questions. He gave evidence: "Q. And one of the questions Mr Metcalfe asked you was whether you wished ….. to complain about the action or inaction of any staff member, wasn't it? A. That's right. Q. And your answer to Mr Metcalfe was, 'No'? A. Well I was injured and I felt pressured not to say anything to anybody, at their mercy." ---- Q. You see on the day of the accident you would have been very concerned, wouldn't you, by Mr Murphy's failure to help you with the moving of the dryer? A. No, I was concerned about my hand and what was going to happen. Q. And, look, no – at no time during that conversation with Mr Metcalf did you raise anything with him about being instructed to move that dryer, did you? A. With Mr Metcalfe, no." 30 The respondent gave evidence in cross-examination about the list of work to be done: "Q. And is that – the list is a complete list of the jobs that you were to do that day, correct? A. Over a period of time. Q. I see. Was the list formulated on that day, 2 November 1999? A. Yes, I – yes. Q. And how long did you anticipate that this list of jobs would take to perform? A. Well, as long as they take, really. There was no – if there was anything urgent to be done of course it would gain priority but other than that it was just an ongoing thing I guess until I left and till the next person picked it up." 31 The respondent said that he gave the list to the "head of the building section" who, he said, was "Charlie somebody". He gave evidence: "Q. And did you say anything to him when you gave him the list? A. I've got it – 'these are the jobs that are necessary' or 'to be done and should I go ahead with them'. Q. And what did he say? A. 'Yes'. ---- Q. And you'd agree with me, wouldn't you, that if you gave that list to Charlie that Charlie would not see in that list anything to do with moving a one-tonne dryer, would he? A. No, but it was discussed with him about disconnecting it, removing it and replacing it with a wooden folding bench." 32 The respondent was challenged as to this and gave evidence: Q. Mr Watzinger, a moment ago you said nothing else was discussed, didn't you? A. Of course things were brought up – of course there was a conversation. There was a repertoire there, it wasn't just yes, sir; no, sir; goodbye, sir. Q. Why didn't you put 'remove one tonne dryer' in this list? A. Well, I did. Q. Well, it's – you would agree with me it's not in the list, is it? A. As I read the list this morning, it said disconnected but that was brought up as removed. Q. What do you mean 'that was brought up as removed'? A. Well, last time and now this time it's – when talking to Charlie I said did they want the dryer out, they want it removed – they want a folding bench put in there instead. Q. But, look, removal of the one -- A. And then - that's right – there was an issue of some brackets came up and they said, 'Have you seen any brackets' and I said, 'Yes, I've discovered some up stairs in one of the lock-ups.' Q. This is further conversation, is it, with Charlie? A. Well, it's conversation every day. It was constant meetings with Charlie as well. Q. And on the day of the accident -- A. Yes, I went and saw Charlie three times that day. Q. Three times that day? A. Well – yes – well – we're working under his supervision." 33 The respondent said that the bench was not there and ready to be installed that day and that the removal of the one tonne dryer would have been the biggest job of the three. He also agreed that if it were not for the crane that it would take a number of men to "move that machine". It is convenient to say that taken in context the respondent was speaking then of lifting it rather than moving it on rollers. 34 The respondent gave evidence: "Q. And indeed the installation of the bench wasn't going to take place that day, was it? A. We – in the – yes, either that day or the following. Q. Well, it wasn't there yet. Was it the bench? A. No, but the brackets had been chosen and the materials had been laid out and preparation for that bench to be installed was all in order." 35 The respondent agreed that he did not need a prisons officer to supervise him during the plumbing work or making the bench. He did, however, say that, as things turned out, supervision would have been good. He gave evidence: "Q. Well, what would a prison officer have been able to show you about plumbing jobs? A. He would have been in more control of the situation of the other inmates. He would have directed them not to do what they did." 36 The respondent said that he was not aware that there was a battery-operated forklift at Mannus. He said he did make inquiries about equipment and referred to his request for a trolley. 37 The respondent gave evidence: "Q. Look, Mr Watzinger, your attempt to move this one tonne dryer was a bit of a moment of madness, wasn't it? A. No Q. You had a bit of a brain explosion, didn't you? A. In hindsight to trust other prisoners the way that I did, yes, I must have had a brain explosion at the time but I thought they were just normal people. Q. You said earlier that you didn't know them? A. Well, I didn't. Q. Why didn't you ask some other inmates to help? A. Nobody's willing to help anybody do anything for the prison service, that's – you bring trouble upon yourself by doing so. I brought trouble upon myself by doing the plumbing work but it was the way that I wanted to pass my time." 38 Mr Murphy was a prisons officer working on 2 November 1999 as acting overseer of the motor shop at Mannus. On that day, on his account, he was also acting for Charlie Dow who was the overseer for building works and maintenance but was on leave. Mr Murphy gave evidence in cross-examination: "Q. Dow - was the overseer for building works and maintenance of buildings around the site – at the time this accident happened? A. He was but he was on leave. Q. Well, if there is evidence that he was on site either that day or perhaps the day before, are you able to remember when he went on leave? A. I'm not real sure but I think it might have been the week before. Q, Right? A. I'm not a hundred percent on that. Q. But you haven't had occasion to check it exactly from records? A. No, I haven't." 39 He had given evidence in chief as follows: "Q. Can you just briefly describe to his Honour the system for allocating work to the inmates? A. It was just having specific jobs like plumbing or a little bit of building, bit of painting done throughout the camp and I just allocated to individual inmates to do a specific task throughout the day. ---- Q. And do you recall delegating work to the plaintiff, Mr Watzinger, on 2 November 1999? A. I do, yes. Q. What work did you delegate to him? A. It was to disconnect a washing machine [in] the laundry. Q. And did you instruct him to do anything else apart from disconnect the washing machine. A. No. [I did not]. Q. I think you're aware now that he tried to move the machine, is that correct? A. Yes, that is correct. Q. And did you instruct him to move it? A. No, I did not." 40 Mr Murphy said that an electric forklift was available in the motor shop. He also spoke of a front-end loader, however, it was common ground that it could not have entered the laundry building. 41 Mr Murphy denied that he was asked for a trolley. He also said that the only available trolley would not have been suitable. 42 He gave evidence: "Q. And you say that you specifically told him that day – was it that day - to disconnect the dryer or washing machine? A. Yes – I just – I asked him that morning. I said there's a job -- Q. Did he show – did he show you perhaps a list of things he had written out that had to be done? A. No, I just knew that he – the dryer – the washing machine had to be disconnected." 43 Mr Murphy said that it was some two years after the event that a private investigator sought details of the incident from him. However, he thought his recollection reliable. 44 Mr Murphy gave evidence, it would appear in response to questions from Judge Blackman: "Q. You asked for the machine to be disconnected. Why did you do that? A. Because we knew it had to be removed because it was not working. It was condemned. Q. So there was no doubt it had to be moved? A. It had to be moved out but it wasn't to be moved that day. It was just asked to be disconnected. Q. Had you programmed in when it was to be moved? A. No, I – I had not. Q. And assuming it was going to be moved, then how was it going to be moved? A. With the electric forklift or some other means. Q. So it was just going to sit disconnected, was it, in the room for the moment? A. Yeah. Q. And you hadn't thought about how you were actually going to get it out of there – other than using this machinery? A. Yeah, there's no other thoughts on it. Q. Was there some other work that was supposed to be done in the room? A. Not right at that moment, no." 45 He said that he had not thought about how it was going to be got out except as to the electric forklift. He said that there was no other work to be done "right at that moment" and gave evidence: "Q. Was there some folding bench or something that was going to go into that room? A. That was coming in later but it wasn't a priority at the moment." The Reasons of the Primary Judge 46 After noting the nature of the event of 2 November 1999 Judge Blackman said: "The plaintiff claims that the defendant was negligent in a number of respects including in failing to provide any or any proper equipment for the task of moving the dryer, failing to warn the plaintiff of the danger associated with the undertaking, and failing to provide adequate assistance to carry out the task. ----- As to the negligence of the defendant the pleadings state that the 'injury, loss and damage arose out of the negligence of the defendant in the care, management and control of the said prison complex and prisoners within the said prison complex'. That claim would seem to encompass circumstances that are wider than those of merely alleging that the plaintiff was an employee although if I was to hold that he was an employee then such a finding would likely be sufficient to impute a duty of care to the defendant if the damage could be said to be reasonably foreseeable. I note that custodial authorities owe a duty to a person they detain to take reasonable care to protect that person from injury caused by third parties: L v Commonwealth (1976) 10 ALR 269, Thomas v Corrective Services Commission of New South Wales (unreported, NSWCA, 20 December 1989), but the plaintiff did not suggest during the proceedings that such a duty of care was breached in this case," 47 The Judge noted that the respondent claimed that the appellant should be held liable on the basis of being an employer owing a duty of care. That, he said, was challenged by the appellant who submitted that the position of the respondent was more akin to that of an independent contractor. 48 He referred to a further issue in the following terms: "The defendant accepts that the plaintiff was carrying out its instructions when he removed the large dryer from the wall of the laundry it was a task for which he was specifically trade qualified. However the defendant asserts that he was not authorised to move the dryer. It was during the process of moving the dryer that he was in fact injured. It submits that if the plaintiff had done what he was authorised to do then no damage would have occurred. The defendant submitted that the injury that occurred to the plaintiff was not reasonably foreseeable because he was operating entirely on a frolic of his own in moving the dryer." 49 The Judge then said: "I propose to initially examine whether the evidence supports the submission that the plaintiff was an employee, or that his position could be equated to that of an employee, of the defendant." 50 He then referred to evidence some going to this issue and some of more general application. I shall return to the latter portion later. 51 The Judge then discussed "the principles applicable to determine whether a contract is one of service or for services" particularly as appearing from Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16. He then dealt with the application of the principles and concluded that "the plaintiff's position more closely fits the description of an employee rather than someone who was an independent contractor". He said: "In my view the defendant had ultimate authority and control over the plaintiff and his work and he was subject to the defendant's orders and directions." 52 Judge Blackman thereafter proceeded, clearly enough, on the basis that the respondent was, in effect, an employee and the appellant the employer. For reasons which will appear it is unnecessary for me to go to the detail of the Judge's reasoning for reaching this conclusion. 53 I return to some of the factors referred to in the judgment and findings made. 54 The Judge noted that there was no dispute on the evidence that the respondent was an experienced plumber or that he was asked to work in the prison from time to time in that role. He said: "The process of allocating work, he said, was for him to compile a list of necessary maintenance. He then presented the list to management for approval and when approved he proceeded to carry out the jobs." 55 Judge Blackman said: "The plaintiff said that he was asked to do some work in the prison laundry. It was proposed that a large dryer would be removed from the wall and it can be inferred ultimately removed from the laundry. The dryer was a large commercial machine that weighed more than 1 tonne." 56 It is relevant to note that the Judge did not expressly find who asked the respondent to do the work and at no time in the judgment did he mention Charlie Dow. 57 The Judge noted the respondent's version of the conversation relating to the trolley and Mr Murphy's. He paraphrased Mr Murphy's dealing with the dryer by saying: "He said that he authorised the plaintiff to take the dryer off the wall in the laundry but he said that he did not ask or authorise him to move it." 58 Criticism of Mr Murphy's evidence on the basis of the passage of two years before he was asked to recall the events was referred to. Also criticism of the respondent's account in that it was not supported by the diary, that an account given by a solicitor in an earlier letter did not refer to the conversation with Mr Murphy and did contain a conversation in which the head of the carpentry and plumbing department was alleged to have said to the respondent "I don't know how you are going to get it out but hurry up, I'll leave it to you." That conversation was not, the Judge pointed out, given by the respondent in evidence. 59 His Honour said: "A real question arises on the evidence as to whether the plaintiff was asked to move the machine. There is no evidence that objectively supports that of the plaintiff. True it is he was using the steel pipes that he said he asked Mr Murphy for but there was no suggestion that he did not have access to those without needing prior approval. It was a low security prison and he was a plumber. There was also no support for the version given by the plaintiff in any of the written documents tendered in the proceedings. I have already referred to the letter from the plaintiff's solicitors and the plaintiff's diary. In addition there was a report filed and signed by the plaintiff on or around the date of the injury which did not make any complaint in relation to the staff at the prison and in particular about Mr Murphy who allegedly failed to supply him with the means of moving the dryer safely (see Exhibit C). Having regard to the evidence given by Mr Murphy, which I accept, in which he categorically denied asking for the dryer to be moved by the plaintiff, I am of the view that the plaintiff was not expressly asked to move the dryer. In effect he was on a venture of his own when he attempted to move the dryer. Of course, if he was an employee or could be so regarded, that finding does not mean that the defendant did not owe him a duty of care in the circumstances of the case. That raised the question of whether on the facts the plaintiff could be regarded as an employee." 60 The Judge did not make any express finding as to demeanour, however, it may reasonably be inferred that his acceptance of Mr Murphy was, in part, influenced by his view of him and the respondent. There was cross-examination of both the respondent and Mr Murphy as to matters going solely to credit. 61 After examining the question of employment as referred to above the Judge then adverted to his earlier reference to the duty of an employer to his employee being "a wide one" and to a passage from Hudson v Ridge Manufacturing Company Ltd (1957) 2 QB 348 which he had quoted describing that duty in conventional terms. 62 His Honour then said: "As previously noted there is an obligation on the defendant employer to provide a safe place of work. There was virtually no supervision of the plaintiff whatsoever during the whole period whilst he removed the dryer from the wall of the laundry and then whilst he employed the method he devised to move the dryer. There might have been no reason to supervise him closely when he was using his trade qualifications to remove the dryer from the wall however there was an obligation to provide a safe system of work for the movement of the dryer. In that respect the case is distinguishable from Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 as the plaintiff was not injured whilst he was using his trade expertise in removing the dryer from the wall but later when he was attempting to move the dryer. This was a task for which he had no special qualifications. Even a loose supervision, which is after-all the sort of supervision one would expect to exist in prison in any case, would have either stopped the plaintiff from attempting to move the dryer in the manner he did or provided additional personnel or mechanical assistance so that the job could be done safely. The evidence showed that it was necessary to move the dryer out of the laundry. The work was being carried out as part of a series of planned jobs in the laundry which had apparently been approved by the defendant. In the circumstances it was reasonably foreseeable that the plaintiff would attempt to move the dryer once he had removed it from the wall. Mr Murphy gave evidence that he was aware that the dryer was to be removed from the wall but, significantly in my view, he gave no evidence to the effect that he had put in place a specific plan for it to be removed from the laundry with the equipment that he had available to him. I accept that he did not direct the plaintiff to move the dryer, however it was by no means beyond the realms of possibility that the plaintiff would attempt to move it, particularly where no express alternative plan was put in place to move it. It was also reasonable for the plaintiff to believe that part of his role was to attempt to move the dryer from the laundry even though he was not expressly directed to and consequently it was important that the plaintiff be supervised at and around the time that he removed the dryer from the laundry wall and/or that the defendant provide a direct warning to the plaintiff not to attempt to move the dryer on his own and without assistance. I am satisfied that the plaintiff has shown that the defendant has breached its duty of care to the plaintiff." 63 In dealing with the issue of contributory negligence the Judge dealt, amongst other things, with the entitlement of the respondent to assume that the defendant had fulfilled its obligation to provide a safe system of work and said: "The plaintiff's position can be equated to that of an employee. The facts in this case establish that the plaintiff was not expressly instructed to move the dryer from the laundry. However I have also found that it was not unreasonable of the plaintiff to believe that it was part of the job. He undertook the job in a manner that was reasonably safe and it was only after the intervention of the other prisoner that circumstances changed. If the defendant had supervised the plaintiff in the manner in which I have suggested that they ought to have done then the other prisoner would, most likely, not have been permitted to intervene and no accident would have happened. Even if the plaintiff was injured by reason of his own inadvertence that does not provide a basis for a contribution. I do not see that the circumstances here are appropriate to ask the plaintiff to contribute and I so find." Notice of Appeal and Contention 64 The relevant grounds of appeal are as follows: "1. The Trial Judge erred in finding that the respondent was an employee of the appellant and that the duty of care owed to the respondent was based on a master-servant relationship. 2 The Trial Judge applied the wrong foreseeability test. 3. The Trial Judge erred in disposing of breach of duty by the mere finding of the existence of a foreseeable risk of injury. 4. The Trial Judge erred in finding the appellant breached its duty of care to the respondent. 5. The Trial Judge erred in finding that the respondent was not guilty of contributory negligence." 65 The respondent raised by Notice of Contention the following further grounds upon which the decision of Judge Blackman should be affirmed: "1. That His Honour erred in finding that the Respondent was on a frolic of his own when he was injured. 2. That His Honour erred in accepting that the evidence of Mr Murphy established that the Appellant had not instructed the Respondent to move the machine. 3. His Honour erred in finding that instructions to the Respondent to remove the dryer came only from Mr Murphy. 4. That the Appellant knew and approved the removal of the dryer to be replaced by a folding table." Grounds 1 and 5 66 Mr Nock of Senior Counsel, who appeared with Mr Mitchell of Counsel for the respondent conceded, that the relationship of the appellant and the respondent was not that of employer and employee. He observed that "the authorities are completely against that". 67 As it happens in Helmers v Department of Corrective Services [1997] 14 NSWCCR 248 I had held that a prisoner working in the situation of the respondent was not working under a contract of service. That decision was not challenged in this appeal and was accepted as applying in the present matter. Having regard to Mr Nock's concession I do not need to pursue this aspect further. 68 Mr Nock did submit that the position of the respondent was analogous to that of an employee and that there was no effective difference in the duty of care owed to him by the appellant and that owed to an employee. I do not agree, however, I shall defer setting out my reasons for that disagreement until I discuss the formulation of the duty of care owed by the appellant to the respondent later. 69 In my view Ground 1 has been made out. 70 Ground 5 relates to the finding of contributory negligence. As appears from his Honour's reasons the position of the respondent as being equivalent to that of an employee was central to the decision that he was not guilty of contributory negligence. Accordingly, this ground is also made out. Ground 2. 71 The Judge accepted that it was necessary to move the dryer out of the laundry and that the "work was being carried out as part of a series of planned jobs in the laundry which had apparently been approved by the defendant". He said: "In the circumstances it was reasonably foreseeable that the plaintiff would attempt to move the dryer once he had removed it from the wall." 72 In what would appear to be further explanation of the finding of foreseeability Judge Blackman continued: "Mr Murphy gave evidence that he was aware that the dryer was to be removed from the wall but, significantly in my view, he gave no evidence to the effect that he had put in place a specific plan for it to be removed from the laundry with the equipment that he had available to him. I accept that he did not direct the plaintiff to move the dryer, however it was by no means beyond the realms of possibility that the plaintiff would attempt to move it, particularly where no express alternative plan was put in place to move it." (emphasis added). 73 Whilst appropriate allowance should be given for the pressures under which judges of the District Court are placed by the volume of cases coming before them (Maviglia v Maviglia [1999] NSWCA 188) it is difficult to dismiss the phrase "by no means beyond the realms of possibility" when applied to an operation found to be "reasonably foreseeable". 74 It may have been a mere slip, however, the judgment was not an ex tempore one and, with some reluctance, I have come to the conclusion that it should be regarded as indicative of an erroneous approach to the issue of foreseeability. Thus this ground is made out. Ground 3 75 The language of the judgment does suggest that the Judge moved directly from the finding of foreseeability to the finding of breach of duty. 76 In Tame v New South Wales [2002] 211 CLR 317 at 353 McHugh J said: "Given the undemanding nature of the current foreseeability standard, an affirmative answer to the question whether damage was reasonably foreseeable is usually a near certainty. And a plaintiff usually has little trouble in showing that the risk was reasonably preventable and receiving an affirmative answer to the second question. This is especially so since Lord Reid said that a reasonable person would only neglect a very small risk of injury if there was "some valid reason" for disregarding it, a proposition that effectively puts the onus on the defendant to show why the risk could not have been avoided. Once these two questions are answered favourably to the plaintiff, there is a slide - virtually automatic - into a finding of negligence. Sometimes, courts do not even ask the decisive question in a negligence case: did the defendant's failure to eliminate this risk show a want of reasonable care for the safety of the plaintiff? They overlook that it does not follow that the failure to eliminate a risk that was reasonably foreseeable and preventable is not necessarily negligence. As Mason J pointed out in Wyong Shire Council v Shirt [1980] 146 CLR 40 at 47-48 in a passage that is too often overlooked: "The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position ." (emphasis added) " (Some references have been omitted). 77 The disconnection and (possibly) movement of the washing machine was a one off operation to be conducted by an experienced man. It would have been appropriate for Judge Blackman to consider the application of "The Shirt calculus". He did not do so. We do not have the addresses. It may be that the submissions developed in a way that made such consideration unnecessary. However, if that were so, it would be expected that the respondent would so submit either in the written or oral submissions. This did not occur. In these circumstances I consider this ground also made out. Ground 4 78 There is no utility in considering this ground in the abstract. Notice of Contention 79 Although the Notice of Contention is not elegantly drawn it sufficiently raises the matters put by Mr Nock to the effect that Judge Blackman had overlooked the reliance in the respondent's case upon his dealings with Mr Dow. 80 I have set out the passages of evidence in which the respondent recounts these dealings. They were substantially challenged only as to the events of 2 November 1999. Mr Dow was not called to give evidence. There is no reference in the judgment as to what, if anything, can be drawn from that fact. 81 The Judge does not refer directly to Mr Dow or to the respondent's account of his dealings with him. He appears to proceed on the basis that the only dealings, relevant to the washing machine, were with Mr Murphy and accepts Mr Murphy's evidence that he did not tell the respondent to move the washing machine. This does not exclude that, on one view of the evidence, Mr Dow so told him at least by necessary implication. 82 It is true that the respondent gave evidence that he gave his list on that day to Mr Dow and that, on Mr Murphy's evidence, Mr Dow was on leave. However, on all the evidence on this aspect there is ample room for a finding that the respondent may have been in error as to timing. There clearly was a list and Mr Murphy, on his account, knew nothing of it. 83 There is room on the evidence for a finding that Mr Dow had approved a list which, at least by implication, required moving the washing machine in order to install the table and that Mr Murphy, as the supervisor on 2 November 1999, merely "authorised", to use the Judge's word, one part of what was to be done. 84 Such a view, or something similar, appears not to have been considered. If it were and were rejected then that rejection and its explanation should have been referred to in the judgment. (Beale v GIO of New South Wales (1997) 48 NSWLR 430 per Meagher JA at 443). 85 The reference to the absence of evidence as to the particular conversation with the head of the carpentry and plumbing section referred to in the respondent's solicitor's letter does not amount to an explanation as to why the evidence of the arrangements made with that head were not considered. It is to be observed that the letter made no reference to a conversation with Mr Murphy which both the respondent and Mr Murphy say took place albeit they disagree as to its content. 86 The judgment contains some passages which may reflect an awareness of an ongoing practice, for example [53], however, if that be so that awareness has not been considered, so far as the judgment shows, as a matter to be taken into account. 87 We do not have the addresses. The absence of any reference in the judgment to Mr Dow and arrangements made with him raise the possibility that the relevant issues were limited during address. The nature of the material suggests that that is unlikely. Further, there has been no submission from the appellant that such a limitation occurred. Consideration 88 In my opinion the errors demonstrated on appeal lead to the conclusion that the verdict and judgment should be set aside. 89 In the context of this appeal the points made in the Notice of Contention do not support the upholding of the verdict; however, they do, in my view, mandate that there be a new trial rather than that this Court determine the outstanding issues. 90 A retrial is to be avoided if possible, however proper consideration of the claimed arrangements with Mr Dow will raise, amongst other things, questions of credit and fact finding which should be dealt with at trial. 91 I accordingly propose that there be a retrial. The appeal as to damages initially made was not pursued and it is not necessary for that issue to be revisited. The new trial should be limited to the issue of liability including contributory negligence. 92 As I propose a new trial I should set out my view on an appropriate formulation of the duty of care owed by the appellant to the respondent. The Duty of Care 93 Mr Davies of Senior Counsel, who appeared with Mr Finnane for the appellant, conceded that the appellant owed a duty of care to the respondent. He described that duty as a duty not to place the respondent in a position of harm. 94 He put that the extent of the duty is not the same duty that an employer has. He submitted: "An employer's duty is a very onerous duty to provide a safe system of work and proper supervision and proper tools of equipment and all the rest of it". 95 Whilst Mr Davies accepted that the duty was a duty to take reasonable care for the safety of the respondent while he was in custody, he submitted that at the level of particularity there was no duty to supervise or warn but there was a duty not to place the respondent in a position of danger. He relied upon authority, to which I shall come, for these propositions. 96 It is convenient to note that Mr Davies accepted that "if the plaintiff had been directed to move this machine by himself, then we wouldn't be here arguing about it because it would certainly fall within a duty of care that the prison authority owed". 97 Mr Nock, whilst accepting that there was not an employer and employee relationship between the appellant and the respondent, contended that circumstances supported an analogous relationship with a similar duty of care arising. 98 He submitted that the trend of High Court authority was away from drawing distinctions between categories of cases and towards the application of a common test. Thus, he argued, the appellant's duty of care to the respondent was analogous to that of an employer. I shall come to the authorities to which he briefly referred. The Authorities 99 Given the size of the prison population and the number of recent decisions dealing with the duty of care of prison authorities to protect prisoners from assault, it seems surprising that there is not recent authority on the matter at issue in this case. However, the researches of Counsel have not been able to identify any such cases. 100 In Helmers I held, as was accepted, that in circumstances similar to the present matter the prisoner is not working under a contract of service. The case was, however, concerned with entitlements under the Workers Compensation Act 1987 and says nothing, apart from that finding, as to the duty of care owed to the prisoner. 101 In Quinn v Hill (1957) VR 439 a wardress appealed against a judgment against her in favour of a prisoner who had injured herself working on a mechanical mangle in a laundry of which the wardress was in charge. The majority (Herring CJ and Gavan Duffy J, held that the wardress owed no duty of care to the operator which required her to prevent the operator feeding the mangle or to warn her of its dangers whether as the wardress in charge or as a fellow worker. Smith J, in a judgment which, with respect, I found more convincing, held that the wardress did owe a duty of care to the operator. Having so found Smith J observed: "There remains the more difficult problem of determining the extent of the duty owed." After reviewing the circumstances which did include, unlike the present matter, that the operator was obliged to work, he said: "In these circumstances the duty owed by the deceased to the respondent must, I think, be held to have extended at least this far, that it required the deceased to exercise reasonable care in making an allotment of work to the respondent so as to avoid exposing her to undue risk of physical injury". 102 As mentioned this case was against the wardress and the majority expressly said: "…. it is not the conduct of the gaol authorities with which we are concerned here, whether for example they provided a safe system of working or exercised proper supervision". 103 Mr Davies put that this matter was particularly applicable because the substance of the present case "is that it was Mr Murphy's negligence which brought about the plaintiff's injuries and that the department had a vicarious responsibility for that." 104 I am unable to agree with that proposition. The case was not conducted as one based upon vicarious liability for Mr Murphy's negligence but rather upon breach of duty by the prison authorities, as, indeed, the Judge found had occurred. 105 In Hall v Whatmore (1961) VR 225 the Full Court was asked to answer certain questions of law arising on the pleadings. The matters relevant to this case were conveniently summarised by Tompkins J in Morgan v Attorney-General [1965] NZLR 134 at 137) as follows: "In Hall v Whatmore [1961] VR 225, a prisoner had his left arm cut in the moving parts of a machine to which he had been assigned by one of the officers of the gaol to work in the gaol's wire netting machine shop. Questions of law were argued before trial before the Full Court. Herring CJ and Dean J said: 'We think, also, that it is now settled that those in charge of prisoners in gaols may owe to those prisoners some duty of care in appropriate circumstances..…A breach of that duty will give rise to a liability in tort against the servant or servants of the Crown and, therefore, the Crown itself can be sued in respect of that tort" (ibid.226). They refused, however, to agree to some of the answers given to the questions by Hudson J on the ground that they could not consider the questions properly in the absence of evidence. However, Hudson J answered the questions. He said: 'It was also argued that the mere existence of powers conferred by the Gaols Act upon the Director did not place him in such a relationship to prisoners as to give rise to a duty of care. I accept this argument and for this reason would hold the defendant Whatmore not liable for conduct merely amounting to nonfeasance. But when it comes to positive acts such as are involved in the exercise of his powers ….the giving of orders or instructions directly affecting a prisoner and which he could reasonably be expected to foresee would be likely to cause the prisoner physical harm, unless due care be exercised in the giving thereof, a different position arises. The prisoner … is bound to obey the order or conform to the instruction and it would be an extraordinary thing to say the least of it if the person giving such an order or instruction, be he the Director himself or some officer, warder or other employee at the gaol, could act without any regard to the consequences to the prisoner of his obedience. In these circumstances I am of the opinion, at the stage when any such order or instruction is given, a duty of care towards the prisoner would arise.' (ibid 232). Later he said: 'The remainder of the particulars appear to have been framed on the footing that the duty owed by the servants and agents of the Crown to the plaintiff and the measure thereof are the same as that which would have been owed to the plaintiff had he been an employee of the Crown. This in my view is entirely wrong. The defendant, Whatmore and other employees of the Crown concerned with the imprisonment of the plaintiff owed a duty to take reasonable care not to order or direct him to work on a machine that was dangerous and from the operation of which the plaintiff was likely to come to harm. But this is a very different thing from a duty to cause the machine to be made safe whether by the placing of guards thereon or otherwise …..The provision of clothing for prisoners is a duty resting upon the Crown and not its servants and agents and in fact is one of the subjects dealt with in the regulations made by the Governor-in-Council. The fault, if any, of the gaol employees is in ordering the plaintiff to work on the machine and the manner in which he was attired may be relevant to the question whether the giving of such an order amounted to negligence …Whatmore was not, nor were any of the other employees at the gaol, under any duty to warn the plaintiff of the dangers of the machine or to prevent him from voluntarily exposing himself to the dangers of operating it.' (ibid 233) " 106 In Morgan Tompkins J was dealing with an application for a nonsuit or for judgment following a jury verdict. The plaintiff was a prisoner working outside the gaol on a Sunday, which he did not have to do, who had been provided with unstudded boots to work at firewood cutting on a slippery slope. He slipped and was struck by a fellow prisoner's axe. 107 After referring to the legislation under which the prisoner was held Tompkins J said at 137: "It is clear that a prisoner is not an employee of the Prisons Department, notwithstanding the provisions of s 20: Pullin v Prisons Commissioners [1957] 1 WLR 1186, 1190; [1957] 3 All ER 470, 471 and Hall v Whatmore [1961] VR 225, 233 line 12. Accordingly the Prisons Department is not subject to the duties of an employer to provide safe equipment or a safe system of work or to being vicariously liable for injuries caused by a fellow prisoner." 108 He then examined a number of cases dealing with the duty of care of prison officers to prisoners (Ellis v Home Office [1953] 2 QB 135, Howard v Jarvis (1958) 98 CLR 177, Hall and Quinn). 109 In the present matter there is no dispute that the prison authorities owed a duty of care to the respondent. As Smith J observed in Quinn at 453: "There remains the more difficult problem of determining the extent of the duty owed." 110 Tompkins J said at 140: "I think, applying the above cases, that the Superintendent and each of his subordinate prison officers owed a duty to the plaintiff to take reasonable care for his safety during his detention. This duty, however, did not go so far as to put them under a duty to provide safe equipment or a safe system of work. Their duty is limited, so far as the employment of the prisoner is concerned, to using reasonable care not to allot the prisoner to work, and not to give him orders, which they could reasonably foresee would cause harm to him. They are not under a duty to warn the plaintiff of dangers in his work." 111 He also said at 142: "I have already said that the duty of a warder to take reasonable care for the safety of a prisoner does not include the duty of an employer to provide safe equipment for an employee, because that relationship does not exist between Prisons Department and prisoner. But it seems to me that if the Prisons Department allots work to a prisoner on a hillside firewood cutting job after he has been supplied with slippery boots, a jury might reasonably consider that to be a breach of the duty of the prison authorities to take reasonable care for the safety of the plaintiff. Similarly, I do not think the Department is excused by the submission that this was a mere nonfeasance on the part of the warder. The warder, it could reasonably be inferred, knew what the job was, and was instructed to give him working boots to wear on that hob. He gave him working boots suitable only for an inside job. That seems to me to be evidence to go to a jury of a positive breach of his duty." 112 In Keatings v Secretary of State for Scotland 1961 SLT (Sh. Ct.) 63 the Sheriff (W. Ross McLean, QC) in dismissing an appeal by a prisoner injured whilst preparing a ceiling for painting observed: "I therefore reject the prisoner's contention that as a prisoner doing work in prison he was himself a servant of the prison authority. The special duties of a master to his servant do not apply here". 113 In R v Marshall [1985] 57 NR 308, a case referred to by Mr Nock, the Appeal Division of the Canadian Federal Court applied a decision of the Supreme Court of Canada in McLean v The Queen ((1972) 27 DLR 3rd, p 365) which held that "the duty that the prison authority owes to the (prisoner) is to take reasonable care of his safety as a person in their custody ….". 114 I do not think it necessary to go further to the case for the facts were strong and the decision does not assist on the issues in the present matter. 115 In McCoy v Engle (537 NE 2d 665 (Ohio App 1987)), an appeal in respect of an injury to a prisoner working on a prison farm, the Court of Appeal held that "in the context of the custodial relationship between the state and the prisoner, the state owes a duty of reasonable care and protection from unreasonable risks." The judgment continued: "Having established that the state owed plaintiff a general duty of care, it should also be remembered that the duty does not exist in the abstract. Thus, where a prisoner also performs labor for the state, the duty owed by the state must be defined in the context of those additional factors which characterize the particular work performed. Accordingly, we hold that the state was under a duty to protect plaintiff against those unreasonable risks of physical harm associated with the performance of his duties as a 'farm hand'." 116 Mr Nock also referred to Australian Safeway Stores Pty Ltd v Zaluzna (1986-1987) 162 CLR 479 as exemplifying a departure from narrow categories of cases, such as the relationship of employer and employee, with distinct features. Whilst that case did away with the need to consider special duties qua occupier it does not follow that the distinction between the employer employee relationship and other relationships or situations was affected thereby. 117 Ten years after that case was decided Fleming, The Law of Torts 9th ed, 199 was to say at 559-560: "Today it is well settled that an employer, besides being vicariously liable for the casual negligence of his servants towards one another, also owes an overriding managerial responsibility to safeguard them from unreasonable risks of personal injury in regard to the fundamental conditions of employment – the safety of plant, premises and method of work. The relevant standard of care exacted from employers is high and over many years tended to increasing stringency." 118 In State of New South Wales v Seedsman [2000] NSWCA 119 Mason P, albeit in another context, referred with approval to a reference in Fleming at 177 to "independent duties like employers' duties". 119 In Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424 in the judgment of Gleeson CJ and McHugh, Gummow, Hayne and Heydon JJ it was said: "It is well accepted that, in the absence of statutory provisions to the contrary, an employer owes a common law duty to its employees to take reasonable care for their safety. The duty encompasses an obligation to take reasonable steps to provide safe plant and machinery and a safe system of work." 120 I do not think that the case of Brodie v Singleton Shire Council (2001) 206 CLR 512 bears upon this issue as Mr Nock has put. 121 Likewise I do not consider that the judgment of Heydon J to which Mr Nock referred, in Ashrafi Persian Trading Co Pty Ltd v Ashrafinia [2001] NSWCA 243 advances his argument. 122 Heydon J at 64 recognised a wide range of specific relationships including that of employer and employee. At 65 he said: "The relationship of employer and employee is one in which the law has for a long time been exceptionally solicitous for the employee's interests because of the control which the employer has over the incidents of the relationship." 123 That, however, is a very different thing to saying that, because the prison authorities control the incidents of the relationship with the prisoner, a prisoner should be taken to have the same relationship as an employee. Such a proposition is, amongst things, contrary to the authorities to which I have referred. Consideration of Duty 124 It is clear that the appellant owed to the respondent a duty to take reasonable care for his safety whilst in custody. 125 If the prison authorities expressly or impliedly directed the respondent to move the washing machine I consider that a duty was owed to provide him with such mechanical or manual assistance, or both, as was necessary to allow that operation to be carried out with reasonable safety. 126 In accordance with the thrust of the authorities to which I have referred I do not consider that the duty extended to warning or supervising the respondent. The relevant context included the fact that he was an experienced plumber. Another Matter 127 As there may be a new trial I think it appropriate that I comment upon a finding made by his Honour even though it was not expressly challenged on the appeal. 128 In the first paragraph of the passage quoted in [61] the Judge observed of the movement of the dryer: "This was a task for which he had no special qualifications". This situation was contrasted with the trade expertise the respondent applied in "removing" the dryer from the wall. 129 With all due respect I do not think it a tenable proposition that an experienced plumber, let alone one who spent some years in "industrial sized work" as the respondent did, would not have "trade expertise" in the movement of all manner of objects large and small including into and out of awkward and restricted spaces. Proposed Orders 130 I propose the following orders: 1. Verdict and judgment of Judge Blackman set aside. 2. The matter remitted to the District Court for a new trial limited to the issue of liability including contributory negligence. 3. The costs of the first trial to be determined by the judge hearing the retrial. 4. The respondent to pay the costs of the appeal and to have a Certificate under the Suitors' Fund Act if otherwise qualified. ********** 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.