ACI Metal Stamping & Spinning Pty Ltd v Boczulik

1. [1956] 2 Q.B. 580. 2. [1956] 2 Q.B., at p. 593.

For the appellant (defendant) it was contended that it had observed its duty of care to the respondent in respect of means of access between the plaintiff's place of work and the highway. The defendant relied on evidence that the path on which the plaintiff sustained injury was only one of a number of paths leading to the highway and that any one of the other paths was available to her. In my opinion this contention should fail because there is no evidence that the respondent was aware that the excavation had been dug in the path which she took. It was a regular means of access used by the employees. The evidence proved that no precaution of any kind was taken to save an employee who was walking over that path at night from stepping into the excavation.

This appeal is against an order of the Full Court of the Supreme Court of New South Wales refusing a motion for a new trial or alternatively the entry of a verdict and judgment for the defendant, in an action in which the respondent as plaintiff had recovered a verdict for damages against the appellant. As happens all too often, the plaintiff's case at the trial proved to be quite different from that which she had pleaded, yet the trial was allowed to proceed to verdict without any amendment having been made. Although the jury was sworn to try the issues joined between the parties, counsel for both parties and the presiding Judge joined in placing substantially different issues before them.

In this case the plaintiff's declaration contained only one count. The count disclosed that the case was one between a servant and her master, and that damages were claimed by the servant for injuries suffered by reason of a failure on the part of the master to take reasonable care for her safety in relation to a hole into which she had fallen. But it alleged that the hole was in certain premises in which the plaintiff was employed by the defendant to work, that the defendant had the care, control and management of those premises and of the hole and of certain operations being performed in connexion with the hole, and that the defendant so negligently conducted itself in the care, control and management of the premises, the hole and the operations that the plaintiff sustained the injuries complained of. At the trial it turned out that the premises in which the defendant employed the plaintiff to work consisted of a certain building and did not include any of the surrounding land, that the hole into which the plaintiff fell was not in the building but was in an adjoining pathway, and that the defendant (so far as appeared) had neither title to nor easement over the pathway and had not the care, control or management thereof. The defendant contended that the duty of care which it owed the plaintiff as its servant entailed no obligation with respect to the hole in the pathway. In order to enable the contention to be fully understood a brief account of the proved facts must be given.

The plaintiff was employed to work in a building called a "cap shop", her main duty being to put rubber inside screw-top caps for bottles. The building was occupied exclusively by the defendant, but it stood in a large tract of land containing many other buildings of which only one other was used by the defendant. The rest were occupied by other companies, and the portions of the land that were not built upon were devoted largely to roadways or pathways, some of which gave access to public streets. No proof was offered at the trial as to the title to any part of the land. Consequently the plaintiff's case had to be considered on the footing that in order to get from the cap shop to any public street it was necessary to pass along a roadway or pathway to which the defendant was, in law, a stranger. There were suggestions in the evidence that the companies respectively occupying the several buildings and owning the land in the area had some form of interconnexion; but even without taking that into account the inference was clear enough that the defendant had with the person or company which held the title to the pathways some arrangement or understanding that persons employed in the cap shop should be allowed to use the pathways for the purpose of passing between the cap shop and public streets.

The cap shop had no fewer than eight doors by which employees might enter and leave. Which was the most convenient for a person to use on a particular occasion depended largely upon which public street he wished to reach, and the defendant had given no instructions as to using any one door rather than another. On the day on which the plaintiff sustained her injuries the ways upon which several of the doors opened were free of danger. But one door, called variously the front door, the back door and the bundy door, opened upon a pathway known as Tenth Street which led to a public highway called Lachlan Street. It was to Lachlan Street that the plaintiff wished to go when she finished her work, for there she could catch a convenient 'bus. The bundy door was open. According to uncontradicted evidence, it was a popular door for employees in the cap shop to use, and the defendant had added to its advantages by placing close to it the bundy clock at which employees had to punch their cards at knock-off time. Tenth Street was a narrow laneway, lying for some of its length between the cap shop and a machine shop used by a company other than the defendant. Building operations in connexion with the machine shop had been proceeding for some weeks, and a barricade of some sort obstructed Tenth Street a short distance to the left of the bundy door. It was to the right of that door that the plaintiff's route lay. The time was about 7.45 in the evening. It was dark, and there was no artificial light except a lamp of undisclosed efficiency some distance from the door. Tenth Street at the relevant part was between eight and ten feet wide. A hole had been dug in it, to the right of a person emerging from the bundy door, and it extended over about half the width of Tenth Street. The plaintiff, having punched the bundy, passed through the door, turned right, hurried towards Lachlan Street and fell into the hole. She had never been warned of any danger there. She had often used Tenth Street; and she said, and the jury presumably found, that on the night of her accident she did not know there was any hole in the pathway.

The jury returned a verdict for the plaintiff for £10,000 damages, and the Full Court of the Supreme Court (Else-Mitchell and Moffitt JJ., Sugerman J. dissenting) dismissed a motion for judgment in favour of the defendant or alternatively for a new trial. The learned dissenting Judge would have ordered judgment for the defendant on the ground (in effect) that it was not open to the jury on the evidence to find the defendant guilty of any breach of the duty of care which it owed to the plaintiff as its servant, since the plaintiff at the time of her injury was outside the place of her employment and of any place under the control of the defendant, the hours of employment had ended, and she was not engaged in the employment or anything belonging or incidental to it. His Honour considered that while she was in Tenth Street the situation as regards the defendant's duty of care was the same as if she had been in a public street on her way home from work.

Whether a breach of a master's duty of care for his servant's safety be regarded as a breach of contract or as a tort (see Matthews v. Kuwait Bechtel Corporation [1] ), the duty is to take all reasonable precautions against injury to the servant "in the course of his employment": Priestley v. Fowler [2] ; Brydon v. Stewart [3] . But as Lord Cranworth was at pains to make clear in his judgment in the lastmentioned case, in this connexion "the course of the employment" is not a narrow conception. It extends beyond the period of work to every situation in which the master sustains the character of master towards the servant. See also Jury v. Commissioner for Railways (N.S.W.) [4] . Such a situation may exist even after the servant has left his place of work at the end of a day: Tunney v. Midland Railway Co. [1] . It may exist (though what is required for its performance may be very little) even in a case where the servant is exercising his right as a member of the public to pass along a public highway, for he may be performing an errand for his master or travelling to or from his place of work in a manner provided for by an express or implied term of the contract of employment. On the other hand it is clear that where the servant is using the highway simply as a means of getting to or from his place of work in such circumstances that the journey is either preliminary or subsequent to, and not in the course of, the employment, the master, as such, owes him no duty of care. The point to be observed is that the question upon which the existence of the duty depends is not in what character has the servant the right of passage, but whether the master is master in relation to the journey. Again, where the servant at the material time is traversing private land of a third person by the latter's leave, as for instance where the employer occupies a suite of rooms in a large building and the employee is using a common lift or passage-way in the building, the existence of a duty of care on the part of the master for the servant's safety depends, not upon whether the owner is to be considered as allowing the servant the use of the lift or passage-way in the character of, or because he is, the master's servant, but upon whether the master is master in relation to what the servant does in exercise of the licence. Suppose, then, that at the time of the hurt which the servant suffers he is upon the land of a third person pursuant to a permission which the master has obtained for him from the owner. If no more than that be known it is impossible to say whether the master owes the servant a duty of care, for it may be that the relation of master to the servant does not subsist in respect of the servant's exercise of the permission. If, for example, a master gratuitously presents his servant with a theatre ticket, he is not master in respect of the servant's exercise of the liberty the ticket gives him in the theatre, and accordingly he owes the servant no duty of care while there.

1. [1959] 2 Q.B. 57. 2. (1837) 3 M. & W. 1, at p. 6 [150 E.R. 1030, at p. 1032]. 3. (1855) 2 Macq. 30. 4. (1935) 53 C.L.R. 273. 5. (1866) L.R. 1 C.P. 291.

In the present case, accordingly, it is necessary to determine what was the situation of the defendant in relation to the plaintiff's use of Tenth Street on the occasion when she fell into the hole. As I have indicated, I think it was a necessary inference for the jury to draw that the defendant had some kind of arrangement with the owner of Tenth Street under which the employees in the cap shop might pass by that way in order to get from their work to Lachlan Street. Accordingly the plaintiff was in Tenth Street at the material time in the character of an employee of the defendant in the cap shop. But that merely raises the crucial question, whether the defendant stood in the relation of master to the plaintiff not only in respect of her work, nor only in respect of her presence in the cap shop, but also in respect of her use of Tenth Street on the occasion of her accident. It was at this point that the difference of opinion among the learned Judges of the Supreme Court arose. I find myself in agreement with the majority, and I do so by asking myself two questions: (1) Was there an implied term in the plaintiff's contract of employment - there was no proof of any express term - obliging the defendant to see that one or more ways over the private land surrounding the cap shop should be available to the plaintiff for the purpose of her reaching a public highway after leaving work? and (2) Was the availability of Tenth Street for her use for that purpose being maintained by the defendant on the occasion in question in performance of that obligation? If the answer be Yes to both questions, the conclusion must follow that the defendant was sustaining the character of master to the plaintiff while she was using Tenth Street at the time of her injury, and the duty of reasonable care for her safety existed at that time as an incident of the relationship.

Sugerman J. addressed himself to the first of these questions and thought it should be answered in the negative. His Honour considered that a master "is no more under a legal duty to provide a means of access to the place where (his servants) are to work than, in the ordinary case, he is under a legal duty to provide work for them to do". It is important to bear in mind that whether a master is under a legal duty to provide work for his servant depends on the terms of the contract, and the nature and circumstances of the employment may suffice to raise an implication in the contract that he is: Marbe v. George Edwardes (Daly's Theatre) Limited [1] . Whether he is bound to provide access to the workplace must depend similarly on the terms of the contract, and again the nature and circumstances of the employment may raise a necessary implication that access shall be provided. In a contract of employment requiring the servant to work in a building which is surrounded by land of a third party it must, I think, ordinarily be implied (if there be nothing express) that the master will arrange with the third party to allow the servant to traverse the third party's land for the purposes of access to and egress from the building. It is not to be supposed that the servant binds himself to commit a trespass every time he goes to or from his work; and only in exceptional circumstances could the mutual intention be inferred that the servant shall obtain the third party's permission. If authority be needed it is to be found in the judgment of Havers J. in Ashdown v. Samuel Williams & Sons Ltd. [1] , and in the dissenting observations of Romer L.J. in Holness v. Mackay & Davis [2] which Lord Finlay L.C. approved in John Stewart & Son (1912) Ltd. v. Longhurst [3] . At the very least there must be an implied term in such a case as the present that when the servant has finished his work for the day the master will see that there is available to him some lawful means of crossing the third party's land to a public highway.

1. [1928] 1 K.B. 269. 2. [1956] 2 Q.B. 580, at p. 593 (affirmed [1957] 1 Q.B. 409). 3. [1899] 2 Q.B. 319, at p. 328. 4. [1917] A.C. 249, at p. 254.

On the evidence in this case it was, I think, a conclusion which the jury could not reasonably omit to draw that the terms of the plaintiff's employment included a term that the defendant would see that the plaintiff, whenever she should leave her work, would have open to her a way or ways over the surrounding land to one or more of the highways in the vicinity. I am prepared to assume, as the defendant contends, that it would have been a sufficient performance of the obligation to see that one safe way was available; and I see no reason to doubt that if the defendant had arranged for a way other than Tenth Street to be available and had presented that way to the plaintiff as her only means of egress any use she might have chosen to make of Tenth Street would not have been in the course of her employment and would not have been covered by the defendant's duty of care for her safety. (The case of Pritchard v. Lang [4] , upon which the defendant relied, does not warrant any wider proposition.) But the evidence left no room for doubt that, whatever other ways were available to the plaintiff by express or tacit arrangement between the defendant and the owner of the surrounding land, certainly Tenth Street was so available; and the defendant, by keeping the popular bundy door open and the bundy clock close to it, plainly held out Tenth Street to the employees in the cap shop as a way that was being offered them in performance of the defendant's obligation to see that they could lawfully get to a highway. While, therefore, the plaintiff was proceeding in Tenth Street on the night of her accident, the relationship of master and servant between the defendant and the plaintiff was being sustained: a term of the contract of employment was being currently performed by the one and availed of by the other. It follows, in my opinion, that the defendant's duty to take reasonable precautions for the plaintiff's safety in the course of her employment extended to what she was then engaged in doing.

That was the footing on which the case was left to the jury by the trial Judge. They had to decide whether they were satisfied that the defendant failed to take the requisite reasonable precautions, and if so whether the failure was a cause of the plaintiff's injury. The fact that Tenth Street was not shown to be in the care, control or management of the defendant was relevant to the question what precautions the defendant ought reasonably to have taken: see Wilson v. Tyneside Window Cleaning Co. [1] , but that, in my opinion, was its only relevance in the case. The learned Judge in his summing-up mentioned some precautions, the omission of which by the defendant he thought the jury might regard as a failure to take reasonable care. Perhaps he might have mentioned others (such as locking the bundy door or forbidding its use by employees), while maintaining the clear distinction between suggestions of possible precautions and evidence of actual negligence: see Crafter v. Metropolitan Railway Co. [2] . His Honour, however, was not asked to rule that there was no evidence that anyone in the defendant's organization knew or had reason to suspect that Tenth Street between the bundy door and Lachlan Street was or might be in a dangerous condition, and he was not invited to direct the jury that in the circumstances they could not properly find against the defendant unless they considered (a) that reasonable care for the plaintiff's safety required, notwithstanding the usually safe condition of Tenth Street, periodical inspections of that street for the purpose of discovering any danger therein: cf. Cole v. de Trafford [No. 2] [3] ; Wilson v. Tyneside Window Cleaning Co. [4] ; Smith v. Austin Lifts Ltd. [5] , and (b) that a cause of her injury was an omission to make such an inspection and to warn the plaintiff against the danger it would have revealed or to take reasonable steps to prevent her from encountering it. Nothing of this kind is open for consideration now. On the only question before us, namely whether the duty of care existed while the plaintiff was in Tenth Street, I am of opinion that the defendant must fail.

1. [1958] 2 Q.B. 110, at pp. 121, 122. 2. (1866) L.R. 1 C.P. 300, at p. 304. 3. [1918] 2 K.B. 523. 4. [1958] 2 Q.B. 110, at p. 119. 5. [1959] 1 All E.R. 81, at p. 94.

I agree that for the reasons given by Kitto J. this appeal should be dismissed.

The only question of law in the case seems to me to be whether the defendant had any duty of care for the safety of the plaintiff at the time and place of the accident. The plaintiff entirely failed to prove, indeed no evidence was tendered in support of the allegation in the declaration, that that place was in the control of the defendant. What was relied upon, however, was a duty of care said to arise from the relationship of the parties as master and servant. The servant was one whose work was performed upon the master's premises, and who had to present herself for work there daily. The breach of duty was said to lie in a failure on the part of the master to use reasonable care to provide for the servant safe conditions of work, including a means of access to and departure from the premises where her work was to be performed. There was evidence on which the jury could find for the plaintiff if when she was hurt she was where she was in the course of her employment. She was in a passage which was one of the ways of access provided by her employer for her use. In what right her employer was able to have the use of the passage for its employees does not appear. But the plaintiff was not concerned with that. She was simply using one of the ways that had been made available to her for her coming and going as an incident of her employment. It was by virtue of her employment, and not otherwise, that she had a right to be where she was. That she was still within the area and course of her employment when using the passage-way to leave the premises after ceasing work appears, I think, from many cases both at common law and under workmen's compensation statutes. That there was another, and safe, way also available to her is not decisive if she were not, by warning, lighting or guarding or otherwise, made aware of or kept away from the pitfall that had been created in this one. I agree in what my brother Kitto has written. The appeal should be dismissed.

The respondent to this appeal was the plaintiff in an action for damages for personal injuries brought by her against the defendant, now the appellant, in which she recovered a verdict for £10,000. An appeal was taken to the Full Supreme Court which by a majority (Else-Mitchell and Moffitt JJ., Sugerman J. dissenting) dismissed it and from that order of dismissal this appeal is brought.

The facts are that the defendant's premises at which the plaintiff was employed at the relevant time included a building used as a factory of which it was the lessee. The building occupied portion of a much larger enclosed area of land known as the Australian Glass Manufacturing Company Works which was bounded by a number of public streets. There were many other buildings in the area which were occupied and used by other organizations, all of which were presumably associated in some way, as was the defendant, with the Glass Company's works. Access to the defendant's building from the public streets surrounding the area was by means of a number of what may be called private roadways or passageways running across the land between the various buildings on it. One of these roadways, called Tenth Street, bounded one side of the defendant's premises. Another, called Twelfth Street, gave access to the other side of those premises. There were several doors in the defendant's building, some opening on to Tenth Street and others on to Twelfth Street. Inside one of the doors opening on to Tenth Street, stood the bundy clock used by the defendant's employees when arriving at and leaving work and for this reason it was a common practice for employees to use Tenth Street as a means of going to and from the building in which they worked. The evidence did not disclose in whom the ownership or control of these private roadways was vested but the inference was obviously open that some arrangement existed between the defendant and the owner of the whole area, under which the former's employees were entitled to use the roadways for the purpose of going to and returning from the defendant's building. On 3rd March 1960, at 7.45 p.m. when her work ended, the plaintiff left the defendant's premises by the door close to which the bundy clock stood and walked along Tenth Street in the direction of one of the public streets bounding the area. The route which she took led her past another building fronting Tenth Street and close to the defendant's premises where constructional work had been in progress for some time. In the course of this work, an excavation, some inches deep, had been made in the roadway. It was dark, the roadway was ill-lit and the plaintiff, failing to see the excavation, stepped into it and sustained the injuries for which she sought to recover damages. In her declaration she averred that "at all material times the defendant had the care control and management of certain premises and of a certain hole situate therein and of certain operations being performed in connexion with the said hole" and went to allege (inter alia) that it had negligently conducted itself "in and about the care control and management of the said premises hole and operations". By one of its pleas the defendant put the preliminary averment in issue. No evidence was led by the plaintiff in support of the allegation that the defendant had the care control and management of Tenth Street, nor was any evidence given from which it could be inferred that it knew or should reasonably have known of the existence of the excavation. At the trial, however, no submissions based upon either of these matters were made by counsel for the defendant. At the close of the evidence he made only one submission, namely that a verdict should be directed in favour of his client on the ground that the defendant's obligation to provide its employees with a safe means of access between its premises and the public streets was shown to have been performed since there were admittedly other and safe routes available to her, either by walking along Tenth Street in the opposite direction to that which she had taken or by walking along Twelfth Street. The learned trial judge refused the application and left it to the jury to say whether the defendant had failed to take reasonable care not to expose the plaintiff to unnecessary risk by omitting to warn her of the existence of the excavation or directing her not to take the route which she had taken. No objection was taken to the summing up nor was his Honour's attention drawn to the fact that there was no evidence to show when the excavation had been made or that the defendant knew or should have known of its existence. Before the Full Supreme Court the arguments for the defendant covered a wide field, the principal submission being that the defendant owed no duty of care to its employees who used Tenth Street as a means of coming to or leaving work because it was not shown that it had any control over that roadway. In the alternative it was submitted, as it had been at the trial, that, since there was a safe alternative route available between the defendant's premises and the public streets, the plaintiff could not recover. Having regard to what had occurred at the trial, the first of these contentions was not, in my opinion, open to the defendant on appeal. It was, however, considered and rejected, the Court proceeding upon the assumption, which seems to have been accepted by counsel for the defendant, that there was evidence that the existence of the excavation was known to the defendant at all relevant times. In these circumstances the Court considered that it was open to the jury to take the view that, notwithstanding the absence of any control by the defendant over Tenth Street, it should have warned its employees who used the roadway of the existence of the excavation. Had the assumption upon which the argument and their Honours' reasons proceeded been correct, I think the submission made on behalf of the defendant was rightly rejected. A similar argument was advanced, without success, in Ashdown v. Samuel Williams & Sons Ltd. [1] and, on appeal, [2] . But, as I have said earlier, I think the point was not open to the defendant and for that reason alone it should have been rejected. Turning then to the alternative submission, which was repeated before this Court, it cannot, in my opinion, be sustained. It concedes that an employer's duty to take reasonable care to avoid subjecting his employees to unnecessary risk does, in circumstances such as existed here, extend to providing them with a reasonably safe means of passing across private land belonging to another in order to get to and from their place of work but asserts, as a matter of law, that if there are several recognized routes used by those employees and one of them is shown to be safe that duty is performed, however dangerous the other routes may be. It is not surprising that authority for such a proposition is lacking and I do not accept it. It finds no support in the cases of Pritchard v. Lang [3] and Bolch v. Smith [4] , upon which reliance was placed.

1. [1956] 2 Q.B. 580. 2. [1957] 1 Q.B. 409. 3. (1889) 5 T.L.R. 639. 4. (1862) 7 H. & N. 736 [158 E.R. 666].

In my opinion the appeal fails and should be dismissed.