HRYBYNYUK v. MAZUR [2004] NSWCA 374

LOWER COURT District Court JURISDICTION : LOWER COURT DC 3380/02 FILE NUMBER(S) : LOWER COURT Walmsley DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41096/03

SHELLER JA BEAZLEY JA IPP JA

Mr. Hrybynyuk was a member of the Russian Club which is an unincorporated association. Whilst assisting in the demolition of a shed at the rear of Club premises he suffered extensive injuries when he fell through a gap in the roof of the shed.

Mr. Hrybynyuk brought proceedings against Mr. Mazur on the basis that, as President of the Russian Club, he owed Mr. Hrybynyuk a duty of care in relation to the demolition work for which he had requested Mr. Hrybynyuk's assistance. The trial judge held that although there was a duty of care, there had been no breach of this duty and thus entered a verdict for Mr. Mazur. HELD per Beazley JA (Sheller and Ipp JJA agreeing):

(i) Generally, a member of an unincorporated association does not owe a duty of care to other members of the association if that is the only relationship between them; Owen v Northampton Borough Council [1992] 156 LGR 23; Prole v Allen [1950] 1 All ER 476; Robertson v Ridley & Anor [1989] 1 WLR 872. (ii) Membership of an association's committee is not sufficient to displace that principle. For a duty of care to arise between the members of an unincorporated association, it needs to be established on ordinary principles of negligence that a duty of care is owed in the particular circumstances.

(iii) In accepting the task of arranging for the demolition of two sheds on Club premises given to him by the committee, Mr. Mazur owed Mr. Hrybynyuk a duty of care. Generally, a person who seeks the services of a volunteer may be liable in negligence: Hehir v Harvie & Duffield [1949] SASR 77.

(iv) The duty of care in this case arose on the ordinary principles of negligence. The factors relevant to liability were common and coextensive regardless of whether the case is considered under the construct of a duty owed by Mr. Mazur as a committee member or a duty owed to Mr. Hrybynyuk as a volunteer. On either basis, a duty of care was owed.

(v) There was no evidence to establish breach of duty. In particular, there was no evidence the defect would have been ascertained upon an inspection by a qualified builder. Nor was there evidence that a person with appropriate supervisory skills would have directed Mr. Hrybynyuk not to climb onto the roof. ORDERS

Appeal dismissed with costs. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41096/03

SHELLER JA BEAZLEY JA IPP JA

19 October 2004 HRYBYNYUK v. MAZUR Judgment 1 SHELLER JA: I agree with Beazley JA. 2 BEAZLEY JA: Mr. Hrybynyuk was a member of the Russian Club which is an unincorporated association. The Club operates out of premises at 1-3 William Street, Lidcombe. On 9 December 2001 Mr. Hrybynyuk was at the Club's premises as part of a working bee to demolish an old shed at the rear of the premises. He had assisted in the demolition of another shed the day before, which had been able to be pushed over. The second shed, it appears, was more substantial and was also near a gas pipe that Mr. Hrybynyuk was anxious to avoid damaging. 3 Mr. Hrybynyuk climbed onto the ironclad roof of the shed, which he was proposing to remove as the first stage of the demolition. Mr. Hrybynyuk said that, before climbing up onto the roof, he had had a "look from ground level to see how the roof was set on that building". He said that there was nothing about the roof that suggested that it would be unsafe or that it might collapse. 4 The iron sheets were screwed onto timber rafters. The plaintiff undid three or four of these screws when, without any warning, a beam under the iron collapsed, opening up a gap in the iron sheeting. Mr. Hrybynyuk fell through the gap onto the concrete floor below. He suffered serious injuries. 5 Mr. Hrybynyuk had been requested to assist with the demolition of the shed by Mr. Mazur, the President of the Club. Mr. Mazur had asked Mr. Hrybynyuk to bring along some friends to help. Mr. Hrybynyuk said that he had expected Mr. Mazur to be there. He said "I thought that he would be there if it's a working bee or 'sybotnik'. So people are there. It's not just people who - volunteers are there. There must be something - a person to direct everyone, to organise everyone, someone who's in charge". 6 Mr. Hrybynyuk brought proceedings for damages against Mr. Mazur on the basis that, as President of the Russian Club, he had undertaken on behalf of the Club's members, the role of the preservation and repair of the Club's premises. The trial judge held that Mr. Mazur owed Mr. Hrybynyuk a duty of care but found there was no breach of duty and thus entered a verdict for Mr. Mazur. 7 The questions of duty and breach are in issue on the appeal. The resolution of the duty question is not straightforward and falls to be determined in circumstances where Mr. Mazur was the President of the Russian Club which is an unincorporated association and the appellant was a volunteer.

Liability of members of an unincorporated association 8 There was little evidence about the Club except that it is mainly a social club and has about 60 members. There was no evidence as to whether there are written rules of the Club. The trial judge found that the members of the Club had delegated their power to run the Club to a Committee. He found that Mr. Mazur had been authorised and directed by the Club's committee to arrange for the sheds to be demolished and that he had requested Mr. Hrybynyuk to undertake that work. 9 A member of an unincorporated association does not owe a duty of care to other members of the association if that is the only relationship between them: see Owen v. Northampton Borough Council [1992] 156 LGR 23 at 29; Prole v. Allen [1950] 1 All ER 476; Robertson v. Ridley & Anor. [1989] 1 WLR 872. Membership of an association's committee is not sufficient of itself to displace that basic principle. For a duty of care to arise between the members of an unincorporated association, it needs to be established on ordinary principles of negligence that a duty of care is owed in the particular circumstances. 10 This principle finds explication in Robertson v. Ridley. In that case, a member of an unincorporated association rode his motorcycle over a pothole in the driveway of the club premises, fell off and was injured. He sued the chairman and secretary who, on the club's rules, were "responsible in law for the conduct of the club". It was held that there was no duty of care owed by committee members to another member of the club for the state of the road merely arising out of the responsibilities imposed on the chairman and secretary by the club's rules. There was nothing else in the relationship of the plaintiff and committee members that gave rise to a duty. 11 The liability of a member of a committee of a voluntary association was considered in Prole, with a different outcome. Prole's case however, was different. The plaintiff, a member of an unincorporated association, fell down some unlit exit steps during club hours. There was a light near the steps that had been switched off by the club steward shortly before the accident. The steward, who was also the secretary of the club and one of the freeholders of the building, was held liable in negligence. As steward and secretary of the club, he had been appointed by the committee to look after the premises and to see that they were in a fit condition for use by members. His specific duties included turning the lights on and off. 12 It was held that, as steward of the club, he was in a different relationship to the members of the club from other members. He had been appointed the agent of each member to perform his duties reasonably and in that way owed a duty of care to each of the members to carry out his duties without negligence. The other committee members were found not to owe a duty of care to the plaintiff. 13 In Harrison v. West of Scotland Kart Club & Ors. [2000] Scots CS 284, the office bearers of the club were sued by a go-kart driver who was injured when he collided with the wall of a building. It was held that the action could proceed against the office bearers in circumstances where there had been a previous accident at the raceway and, the office bearers had been involved in the preparation and submission of plans for the raceway to the local authority and knew that unless there was some crash protection in the particular area where this crash occurred, there was a danger that a kart driver might lose control of the vehicle and collide with the building. The Court held that in such circumstances there was a prima facie case against the office bearers sufficient to enable the case to proceed. The Court said: "The fact that the [office bearers] were at all relevant times members of the same club as the [plaintiff] does not give them any immunity: Owen v. Northampton Borough Council . Nor is it the fact that the [office bearers] were members or office bearers which fixes them with a duty of care: Prole v. Allen; Robertson v. Ridley . Rather it is their knowledge as outlined above coupled with their de facto assumption of the responsibility for taking executive decisions relating to track safety: Woolf LJ in Robertson v. Ridley ; Owen v. Northampton Borough Council ." 14 Mr. Hrybynyuk also relied upon the decision of this Court in Smith v. Yarnold [1969] 2 NSWR 410. In that case, a spectator at a greyhound race meeting conducted by the Taree Greyhound Racing Club was injured when a grandstand collapsed. The club was an unincorporated association and the management of its affairs was vested in the committee for the time being. The injured spectator was a contractual invitee having paid a fee for admission to the race meeting. He brought a claim against the members of the committee and the secretary of the club based both in contract and in negligence for breach of their duty as an occupier. The issue for the jury's determination was whether or not the committee members were the proper parties to be sued. The committee members had argued that all the members of the committee should have been sued. 15 Herron CJ observed at p.414 that "a claim in tort is not defeated because all tortfeasors are not sued" and held that there was sufficient evidence to establish that the club was the occupier of the racetrack. His Honour stated the law as to the liability of members of a club and committee members in the same terms as have been stated above. He added, at p.414 "As regards liability to a stranger, there is no distinction between a member of a committee and an ordinary member of the club, though members of a committee will be liable personally, to the exclusion of the other members, if they act personally". 16 There was no dispute between the parties here as to the application of these principles. The question was whether there was something in the circumstances that made Mr. Mazur liable beyond his membership of the Club. In this regard, Mr. Hrybynyuk conceded that Mr. Mazur was not sued because of his status as President of the Club. Rather, he was sued as the person who gave the direction for the demolition of the sheds. Mr. Hrybynyuk submitted that in the circumstances, Mr. Mazur was under a duty of the kind found to be owed by the principal to an independent contractor: see Rockdale Beef Pty. Limited v. Carey [2003] NSWCA 132. 17 In that case Mr. Carey, a stockman engaged as an independent contractor to work on Rockdale's feed lot, was injured when a steer ran suddenly into the path of the horse Mr Carey was riding, causing the horse and Mr Carey to fall. Mr. Carey was severely injured. Mr. Carey had originally been an employee of Rockdale. However, some time prior to the accident, Rockdale had changed its work arrangement and terminated the relationship of employer and employee and engaged Mr. Carey as an independent contractor. His duties remained the same, as did the overall control of the work that was carried out, that control remaining in Rockdale. Ipp JA, with whom Mason P and McColl J agreed, stated at [90]-[91]: "90 Although he was an independent contractor, Mr Carey worked for no one apart from Rockdale and had done so for many years. The bargaining power of the parties was not equal. Mr Carey was as vulnerable to potential misuse as any employee. In Perre v Apand Pty Limited (1999) 198 CLR 180 the vulnerability of a specific plaintiff was regarded, generally, as being an important factor in determining whether a duty of care arises. 91 A defendant's control over the conduct that gives rise to the risk, a defendant's knowledge of the risk, and the relative inability of plaintiffs to protect themselves are also important factors in determining whether a duty of care arises (see, in particular, McHugh J in Perre v Apand Pty Limited at 226 to 229).

18 In this case the trial judge held that Mr. Mazur was liable because his role was "outside the ordinary". He said that the members of the Club had delegated their powers to the committee. Mr. Mazur, in turn, had the powers and duties given to him by the committee. His Honour found at [36] "When it decided to act, as I find the committee did, in having him carry out the arrangement I have found he did, I consider he owed a duty to take reasonable care of the members including the plaintiff" . 19 It is not entirely clear why it was relevant for his Honour to refer to the committee in this passage as Mr Hrybynyuk case was not based upon Mr Mazur's status as President of the club or his relationship with the committee. The question was whether, given that Mr Mazur had undertaken the responsibility to organise the demolition of the sheds, he owed a duty of care to Mr Hrybynyuk. That question has to be answered having regard to what Mr Hrybynyuk was asked to do. 20 The evidence was that, from time to time, the Club conducted working bees around the Club premises in which the members participated. Details of the type of work undertaken was sparse, but it appeared to be general cleaning up type work, typical of what might be undertaken by members of a voluntary association to keep their premises in good and tidy order. This arrangement however, involving demolition of a structure that had steel framework and was high enough to require a ladder to access the roof, was different in scale and concept. It was not a usual activity undertaken by members in the use and enjoyment of the Club and its facilities. More particularly, such work is potentially dangerous and Mr Hrybynyuk had no skill or experience in such work. He worked in a factory. Previously, he was a physical trainer and masseur and had accompanied the Ukrainian Olympic team to the Sydney 2000 Olympics. He had stayed in Australia at the conclusion of the Games. Apart from the fact that he appeared to be a fit person, there was no suggestion that he had any expertise or experience in building or demolition work. 21 These factors, namely that the work was potentially dangerous, that Mr Hrybynyuk was not experienced in demolition work and such work was not the usual type of activity undertaken by the club in its working bees, were presumably what lead the trial judge to find that Mr Mazur's role was "out of the ordinary". By that I understand him to mean not part of the ordinary relationship of one club member to another. In this I consider that his Honour was correct. In my opinion, Mr. Mazur, in requesting Mr Hrybynyuk to undertake the demolition work with its potential hazards, owed him to a duty of care. Duty of care in relation to a volunteer 22 During the course of the hearing of the appeal, a question also arose as to whether Mr. Mazur owed a duty to Mr. Hrybynyuk as a volunteer who undertook work at Mr Mazur's request. A person who seeks the services of a volunteer may be liable in negligence: Hehir v. Harvie & Duffield [1949] SASR 77. In that case the plaintiff was injured when he was assisting in the changing of a punctured tyre. It was dark, the car was on the wrong side of the road and one of the headlights was obscured. A car coming in the opposite direction "misread" the nature of what was before him because he saw only one headlight. Mayo J decided the case on the basis that the relationship between the driver and passenger was that of invitor and invitee. He held the defendant was under an obligation to prevent harm to the plaintiff from the risks of on-coming traffic, particularly as the stationary vehicle was on the wrong side of the road. The defendant was not entitled to surrender that duty to the driver of the on-coming vehicle. His Honour said at p.84: "The plaintiff, by assuming the position with the jack, had ceased to be able to guard himself from hazards, whether the same arose by reason of the negligence of the other road users, or in the absence of such negligence. His own protection he had relinquished, depending on [the defendant], who was bound to exercise a care commensurate with the plaintiff's vulnerable predicament." 23 Abbott J agreed. Ligertwood J also agreed that the defendant was liable to the plaintiff but reasoned the matter solely on the basis that the defendant owed the plaintiff a duty of care within the principles enunciated in Donoghue v. Stevenson [1932] AC 562. His Honour said (at 87): "[The defendant] ought to have appreciated the probability that the operation of changing the wheel would obscure the off-side light and the possibility that [the driver of the other car] might be deceived. In assisting to change the wheel, the plaintiff was [the defendant's] 'neighbour' because he was engaged on [the defendant's] business. In my opinion, the fact that the plaintiff was a volunteer made no difference."

His Honour considered that in failing to give a warning that the car was coming in the opposite direction the defendant was guilty of negligence. 24 In my opinion, no different considerations arise in this case in determining whether a duty of care arose in the circumstances that Mr. Mazur was a committee member and the question whether a duty of care was owed to Mr. Hrybynyuk as a volunteer. If there is a duty of care, it is a duty that arises on the ordinary principles of negligence. The factors relevant to liability were common and co-extensive regardless of whether the case is considered under the construct of a duty owed by Mr. Mazur as a committee member or a duty owed to Mr Hrybynyuk as a volunteer. On either basis, a duty of care was owed.

Breach of Duty 25 Having found duty, the question arises whether there was a breach of duty. It was argued that there was a breach of duty in that the respondent should have required a building inspection before permitting Mr. Hrybynyuk to demolish the shed or that there should have been a person with building experience available to supervise the demolition work. 26 The difficulty with the appellant's case on breach was that he did not call any evidence on the point. There was no evidence that Mt Mazur was aware of the condition of the two sheds other than that he was aware that both were run-down and needed demolition.

27 There was no evidence to establish what caused the fall. The trial judge inferred that the crossbeam was not properly attached to the beam to which it had been abutted at either side of the shed. He found that the lack of attachment and the presence of a gap between the sheets of iron caused the plaintiff to fall. It is not clear upon what evidence his Honour drew this inference. It may have been because Mr. Hrybynyuk did not feel the beam crack beneath him. Rather, it fell underneath his weight.

28 However, accepting that his Honour was entitled to draw the inference as to the cause of the beam falling, there was no evidence that the defect would have been ascertained upon an inspection by a qualified builder. Accordingly, the trial judge's finding that the insecure abutment of the crossbeam would not have been necessarily apparent on a careful and searching inspection by a builder was open to him. Nor was there any evidence that some person with appropriate supervisory skills in this type of work would have directed Mr. Hrybynyuk not to climb onto the roof. 29 The Court is not entitled in a case such as this, to speculate upon what the evidence might have established. Nor was this a case where breach could be established without evidence. 30 As Mr Hrybynyuk failed to prove that there was a breach of duty by Mr. Mazur the appeal should be dismissed with costs. 31 IPP JA: I agree with Beazley JA. **********

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