Foufoulas v FG Strang Pty Ltd

[1970] HCA 26

High Court of Australia|1970-07-01|Before: Walsh JJ

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Source facts

Court

High Court of Australia

Decision date

1970-07-01

Before

Walsh JJ

Source

Original judgment source is linked above.

Judgment (49 paragraphs)

[1]

High Court of Australia Barwick C.J. McTiernan, Menzies, Owen and Walsh JJ. Foufoulas v FG Strang Pty Ltd [1970] HCA 26

[2]

This is an appeal from a decision of the Full Court of the Supreme Court of Victoria setting aside the verdict returned by a jury in favour of the appellant in an action in which he sued the respondent, his employer, for breach of the employer's duty to take reasonable care for an employee's safety.

[3]

The appellant was a casual waterside worker registered under the Stevedoring Industry Act 1956-1966 Cth engaged by the respondent, a stevedore, as a member of a gang of waterside workers assigned to the respondent to do the particular task for which the respondent required labour, namely, the unloading of bales of wool from lorries to the floor of a shed on a wharf in the port of Melbourne. As is the custom at that port, and apparently at all Australian ports, the wharf labourers provide themselves with a hook to assist them in handling cargo. The respondent did not require the use of a hook in the performance of the work required to be done but doubtless it was aware that it was the practice of the wharf labourers, and perhaps that in some situations it was necessary, to use a hook to assist in moving wool bales when unloading them from a lorry as in the instant case. Wharf labourers at Australian ports universally furnish themselves with a single-pronged hook. Not all these hooks are identical with each other. The wharf labourer not merely chooses his own hook but determines its dimension and configuration. In some cases he has it specially made to his own order.

[9]

Also, whilst there was evidence which the jury were entitled to accept that the use of a double-pronged hook could have reduced the possibility of a hook coming out of a bale, it was apparent that the Waterside Workers' Federation, the organization of employees to which the appellant belonged, had resisted an attempt by the appellant to secure a change in the practice of using hooks in the handling of bales of wool. Indeed, an attempt by the appellant to cause a strike because of such use of hooks failed. The appellant's evidence of his union's reaction to his proposal was eloquent of the attitude of the Waterside Workers' Federation. He said "I suggested that" (i.e. a strike for the said cause) "to the Union but they said, you have a job, and if you don't like it, well leave it". There was no evidence to suggest that the respondent could have prevented the use by wharf labourers of hooks or of any particular form of hook: or that in the condition prevailing on the waterfront, it could have insisted on the use of a hook of a kind provided by it. This is not, in my opinion, a case where the employer was called upon to provide equipment for the performance of the task for which he engaged the appellant. The system of engagement of labour to do stevedoring work which was then current in the ports of Australia was that the Stevedoring Authority set up under the Stevedoring Industry Act, having called for and obtained labour at the pick-up point, assigned to the stevedore wharf labourers customarily equipped for their task in numbers and at times dictated by the nature of the stevedoring work to be done, see s. 17 (1) (b) of the Stevedoring Industry Act. General statements as to the employer's duty to provide equipment for the performance of the required work such as are to be found in General Cleaning Contractors Ltd. v. Christmas [1] are, in my opinion, of no present relevance. In saying that I would not wish to deny that there may be circumstances in which the employer, not having any obligation to supply tools or equipment, but becoming aware of the use by the employee of tools or equipment which it can reasonably be foreseen will subject the employee to a risk of injury avoidable by the taking of steps which may reasonably be required, becomes obliged to take such available and reasonable steps to protect the employee against such risk. The degree of the risk, and the nature and extent of the step suggested to be taken will be elements in considering whether the employer failing to take the same is in breach of a duty to take reasonable care. However, in my opinion, bearing in mind the circumstances to which I have adverted, this is not such a case.

[12]

The second ground of negligence can be disposed of quite simply. Assuming that the evidence went so far as to permit the conclusion that the unloading of bales of wool by a specially-equipped front end loader would involve less risk of injury to workmen employed in such an operation, (a matter on which I express no opinion), had that method been employed by the respondent the appellant would not have been working for the respondent on the day in question unloading wool. He was not a driver of such mechanical equipment: and the suggested method did not require a wharf labourer on the load. The proposition of the appellant therefore is in substance that it was a breach of the employer's duty of care towards his employee to have employed him at all. But, in my opinion, it just cannot be a breach of a duty of care to an employee to have employed him. cf. Withers v. Perry Chain Co. Ltd. [1] , per Devlin L.J. It is the existence of the relationship of employer and employee which gives rise to the duty of care. It is a failure to take care for the safety of a person who has become an employee and during his employment which constitutes the relevant negligence. It is not a question whether it was unreasonable for the respondent to seek to have the wool bales manually unloaded or whether it was unreasonable not to have adopted a mechanical means of doing so. The question is whether in the employment which existed the employer failed in his duty to the appellant. Subject to statutory provisions, the employer is entitled to decide his own method of achieving the result he desires. If that method involves unnecessary risks, i.e. risks avoidable by the exercise of reasonable care, the employer must take reasonable care to avoid them and their consequences. Of course, there may possibly be cases in which the risk is so considerable, the consequences so drastic and in which there exists no available method of avoiding or minimizing the apparent risk that the only reasonable step to be taken in performance of the employer's duty of care is not to send a workman in his employ to do the particular thing which attracts such a risk: but such a situation does not arise here.

[48]

The second ground upon which it is asserted that the respondent was negligent is that it allowed the appellant to use a single-pronged hook, whereas there was evidence that there would have been a smaller risk of the hook coming out of a bale and of consequent injury to the worker, if he had used a double-pronged hook. As to this ground the critical feature is, in my opinion, that it was the appellant who provided himself with a hook chosen by him. It is clear, of course, that in general an employer, in the course of carrying out the obligation to take reasonable care for the safety of an employee, has the responsibility of selecting or supervising the tools and equipment which are used by the employee and of taking any such steps as may be reasonably required to prevent the use of tools and equipment which expose the employee to avoidable risks. But for the special circumstances and conditions governing the employment in this case of the appellant by the respondent, I should have been of the opinion that there was sufficient evidence to enable the jury to find that the risk of injury to the employee would have been reduced by the use of a double-pronged hook and to find that the respondent was negligent in not providing a double-pronged hook or in not insisting upon its use or, at least, advising that it should be used. But, in my opinion, the special circumstances were such that the general rule that the provision of suitable equipment and tools is the responsibility of the employer and not of the employee cannot have any application in the determination of the question whether or not a finding was open in this case that the respondent had failed in this respect to exercise reasonable care for the safety of the appellant. The question is one of the reasonableness of the respondent's conduct and this cannot be considered as an abstract question but must be considered in relation to the circumstances which were present. It had long been the practice for the wharf labourers to provide themselves with hooks selected by them. This is what the appellant did. On the day on which the accident occurred he did not bring with him to the wharf some implement of an unusual or peculiar kind which might have been expected to invite the scrutiny of a prudent employer and an investigation of its suitability for the task in hand. On the contrary he brought a hook of a kind which was regularly used by the wharf labourers in such work. In the circumstances, even if a finding were open that it was practicable for the respondent to insist upon the use by the appellant of a double-pronged hook, a finding was not open, in my opinion, that the respondent was reasonably required to do this in order to fulfil its duty to take reasonable care for the appellant's safety.