Jones v Persal & Company

TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - STANDARD OF CARE - GENERALLY.

EMPLOYMENT LAW - THE CONTRACT OF SERVICE AND RIGHTS, DUTIES AND LIABILITIES AS BETWEEN EMPLOYER AND EMPLOYEE - LIABILITY OF EMPLOYER FOR INJURY TO EMPLOYEE AT COMMON LAW - SAFE SYSTEM OF WORK - GENERALLY - whether employer failed to provide safe system of work.

EMPLOYMENT LAW - THE CONTRACT OF SERVICE AND RIGHTS, DUTIES AND LIABILITIES AS BETWEEN EMPLOYER AND EMPLOYEE - MISCELLANEOUS MATTERS - NEGLIGENCE OR MISCONDUCT OF EMPLOYEE IN PERFORMANCE OF DUTIES - whether employee's negligence was the "contractual cause" of the damage.

EMPLOYMENT LAW - THE CONTRACT OF SERVICE AND RIGHTS, DUTIES AND LIABILITIES AS BETWEEN EMPLOYER AND EMPLOYEE - THE CONTRACT OF SERVICE GENERALLY - FORMATION AND CONSTRUCTION - whether implied term in employment contract for employee to carry out employment with due care and skill.

Workplace Health and Safety Act 1995 (Qld), s22(1), s27, s28

Alexander v Cambridge Credit Corporation Ltd (1987) 9 NSWLR 310, referred to

AR Griffiths & Sons Pty Ltd v Richards (1996) 24 MVR 296, referred to

AS James Pty Ltd v Duncan [1970] VicRp 90; [1970] VR 705, referred to

Astley v Austrust Ltd (1999) 73 ALJR 403, considered

BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1978) 52 ALJR 20, considered

Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337, considered

Davis v Swan Motor Co (Swansea) Ltd [1949] 2 KB 291, referred to

Galoo Ltd v Bright Grahame Murnay [1993] EWCA Civ 3; [1994] 1 WLR 1360, considered

Heskell v Continental Express Ltd [1950] 1 All ER 1033, referred to

Legland Shipping Company Ltd v Norwich Union Fire Insurance Society Limited [1987] AC 350, referred to

Lister v Romford Ice and Cold Storage Co Ltd [1956] UKHL 6; [1957] AC 555, considered

Liverpool City Council v Irwin [1976] UKHL 1; [1977] AC 239, referred to

March v E & MH Stramare Pty Ltd [1991] HCA 12; (1990-1991) 171 CLR 506, considered

McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306, distinguished

McLeans Roylen Cruises Pty Ltd v McEwan (1984) 58 ALJR 423, considered

Monarch Steamship v Ka-Ishamms Oljefabrike (A/B) [1949] AC 196, referred to

Quinn v Burch Bros (Builders) Ltd [1966] QB 370, considered

Reardon Smith Line Ltd v Australian Wheat Board [1956] AC 266, referred to

Schiliro v Peppercorn Child Care Centres Pty Ltd [2000] QCA 18; Appeal No 9640 of 1998, 11 February 2000, referred to

Simoneous Vischer v Holt (1979) 2 NSWLR 322, referred to

Smith Hegg & Co v Black Sea and Baltic General Insurance Co [1940] AC 997, referred to

Wegrzyn v Carlton & United Breweries (Queensland) Limited Appeal No 8596 of 1997, 24 November 1998, referred to

Wylie v ANI Corporation Ltd [2000] QCA 314; Appeal No 409 of 1999, 4 August 2000, referred to

[1] McMURDO P: I have read the reasons for judgment of White J in which the facts are clearly set out so that I need only refer to them briefly.

[2] The primary judge found the appellant employer was liable for damages in negligence for breach of its implied contractual term to take reasonable care to avoid exposing the respondent employee to unnecessary risks and for breach of duty under s 28 Workplace Health and Safety Act 1995. His Honour refused the appellant leave to amend its defence to rely on the respondent's breach of the implied contractual term to carry out the employment with due care and skill. Although he found the respondent 30 per cent contributorily negligent, his Honour did not reduce the respondent's damages in contract to reflect that finding, relying on Astley v Austrust.[1]

[3] The appellant first claims it did not breach any duty of care, implied contractual term or statutory duty.

[4] The respondent was injured when he fell from the bullbar of a truck onto which he climbed to assist another worker, Mr Probyn, to manually fit a pin into a turret whilst Mr Probyn and his co-worker Mr Westbrook were fixing an hydraulic boom to a truck; the respondent assisted so as to minimise the risk of damage to the pin and turret. His Honour found the respondent "took a foolish risk"[2] in attempting to position himself to assist by jumping onto the bullbar of the truck rather than by using a safety platform or approaching the truck from the rear. His Honour noted the respondent slipped "because he climbed into a dangerous place".[3]

[5] The evidence established that, at least in retrospect, the respondent recognised that he should have used the safety platform but he expected that his assistance would only be required for a few seconds. Mr Probyn's evidence was that the safety platform was at least 15-20 metres away at the time the respondent attempted to assist. The respondent was busy with his own work. Had he not acted quickly there would have been no point in lending assistance as Mr Probyn would have forced the pin into the turret, perhaps damaging it. The appellant's foreman, Mr Geck, hardly surprisingly, conceded that workers could use their discretion without reference to him in deciding to assist co-workers for short periods.

[6] There was no evidence that the respondent had been instructed by the appellant not to climb onto the truck by the bullbar but his Honour, in discussing contributory negligence, found that the respondent "did not need to be warned about the dangers involved".[4]

[7] The appellant's duty as employer was to take reasonable care to avoid exposing the respondent to unnecessary risk of injury.

[8] His Honour found that the respondent's co-workers, Mr Probyn and Mr Westbrook, in fixing the hydraulic boom to the truck, were operating within the system of work set up by their employer, the appellant. In following that system of work, Mr Probyn and Mr Westbrook performed no specific act or omission which in itself was negligent as far as the respondent was concerned. But the system of work was flawed in that it was not "best practice" as it risked damage to the equipment if, as Mr Probyn was doing, the pin was forced into the turret rather than manually fitted; there was a foreseeable risk that such a system invited an enthusiastic employee like the respondent, who identified the flaw in the system, to assist his co-worker in order to avoid damage to the equipment. The standard of care of the reasonable employer in establishing and maintaining a safe system of work must take into consideration foreseeable risks of injury including those arising from the employee's own negligence (McLean v Tedman[5]). There was therefore a foreseeable risk that the assisting employee could be injured by his own negligence.

[9] His Honour also found that risk could have been simply and inexpensively eliminated by establishing a system of work using an additional employee to assist Mr Probyn for the few minutes it would take to manually manipulate the pin into the turret; this would remove the risk that an enthusiastic employee, hoping to prevent damage to the equipment, would assist, perhaps in a careless manner, and suffer consequential serious injury.

[10] His Honour was entitled to conclude on the evidence that the appellant adopted an unsuitable system of work which was not "best practice" and which therefore invited assistance from an enthusiastic employee; such assistance would be outside any established safe system of work and there was a risk that the employee might assist negligently and suffer injury.

[11] It is significant that the system of work for placing the pin in the turret was not "best practice"; the respondent did not merely interfere because he felt like it; he interfered, albeit in a negligent way, to assist his employer by reducing the risk of damage to the machinery.[6]

[12] The appellant's alternative argument, although not contesting his Honour's finding that the respondent was 30 per cent contributorily negligent, is that his Honour should have permitted the appellant to amend its defence to rely on the respondent's breach of the implied term to carry out his employment with due care and skill.

[13] The appellant submits that although it was an implied term of the contract of employment that it owed the respondent a duty to take reasonable care for his safety as an employee, the respondent as employee also owed a duty to the appellant to carry out the employment with due care and skill. This proposition was recently considered and accepted in Wylie v ANI Corporation Limited.[7]

[14] The primary judge was entitled to conclude that the appellant breached its implied term of the contract of employment with the respondent by failing to provide a safe system of work. His Honour's factual findings when discussing contributory negligence also demonstrate that the respondent breached his implied term of the contract of employment to carry out the employment with due care and skill.

[15] But his Honour's finding of contributory negligence on the part of the respondent in tort and an apportionment of that negligence under the relevant legislation does not definitively decide causation where there has been a breach of contract; contract and tort are different causes of action with different elements (see Wylie[8]). There must be a fresh assessment of the causation issue in contract independent of his Honour's finding that the respondent was 30 per cent contributorily negligent.

[16] On the one hand his Honour found that had the appellant organised the work being done by Mr Probyn and Mr Westbrook so as not to invite assistance the accident would not have happened as the respondent's assistance would not have been necessary. On the other hand, his Honour found the respondent was injured because "out of an excess of enthusiasm and without sufficiently considering the consequences, [the respondent] took a foolish risk"[9] and "climbed into a dangerous place".[10]

[17] If a breach of contract is one of two causes, both cooperating and both of equal efficacy in causing loss to the plaintiff the party responsible for the breach is liable to the plaintiff for that loss (Wylie[11]).

[18] As in Wylie, the appellant's breach of contract here in failing to maintain a safe system of work was "a" cause of the respondent's injuries; the respondent's breach of contract was another cooperating cause of no more than equal efficacy in causing loss to the respondent. The appellant is therefore liable in contract to the respondent for that loss.

[19] The learned primary judge correctly concluded that the appellant's breach of the contract of employment legally caused the respondent's injuries and that the appellant was liable in damages for breach of the contract of employment; the respondent's contributory negligence could not lead to an apportionment of damages for the breach of contract (Astley). The appellant was therefore not prejudiced by the primary judge's refusal to grant leave to amend the defence to rely on the respondent's breach of contract.

[20] I would reiterate the comments I made in Wylie[12] that the commendable spirit of modern workplace health and safety legislation[13] requires that employer and employee cooperatively work together to develop and maintain a safe workplace. It is not inconsistent with that spirit to require workers to be accountable for their own negligence consistent with their tortious obligations and the apportionment legislation.

[21] In these circumstances it is unnecessary to consider his Honour's findings as to the appellant's breach of duty under s 28 Workplace Health and Safety Act 1995.

[22] I would refuse the appeal with costs to be assessed.

[23] PINCUS JA: I have had the advantage of reading the reasons of White J. I agree with paras [28] to [45] of those reasons. As to the submissions of Mr Keane QC, who led Mr M T O'Sullivan for the appellant, on the question of the respondent worker's breach of contract, I prefer to express my own reasons. Mr Keane's argument on this point amounted to this: that if an injury is partly the fault of the worker, his claim for damages in contract may fail either because the employer is not obliged to guard against breach of contract by the worker, or because the worker's breach makes his conduct the cause of the injury.

[24] The idea that the worker's breach is if it is causative necessarily and always a complete answer to his claim for damages in contract would, if correct, oblige the court to hold that, however minor the worker's breach, it is "the" cause of the injury. One can imagine circumstances in which the employer's breach is, from the commonsense point of view, so much more causative than that of the worker, that the former must be held to be "the" cause of the injury - even if the injury could not have occurred without the worker's breach.

[25] The argument would, if accepted, amount to our holding that it makes a difference, in such a case, if the court finds that the worker's carelessness is not only causative but also a breach of contract. Suppose that for some reason, perhaps because of a statutory bar, the employer has no right of action against the worker for careless performance. Still the problem for the court is the same: is the employer's breach of contract or the worker's carelessness "the" cause? I say "the" rather than the because the conclusion that one cause or another is "the" cause has in this context rather a special meaning; sometimes "real" or "effective" is added, perhaps for emphasis. Suppose the employer, inexcusably, leaves an open vat of acid in a position where a worker moving about in the course of his duties might well, if a little careless, fall in. Even if the court holds that the injured worker would not have fallen in if he had taken proper care, no-one would doubt that the employer's breach of contract would be deemed "the" cause, despite there being in truth two causes.

[26] I do not accept Mr Keane's argument that if the respondent's conduct constituted a breach of his contract with the appellant, that necessarily defeats his claim; in ascertaining "the" cause of the injury the Court has to consider the extent to which carelessness on the part of the plaintiff contributed to the occurrence, whether or not that carelessness constituted a breach of contract.

[27] But because I accept Mr Keane's other contentions, I agree with the orders proposed by White J.

[28] WHITE J: The respondent sustained an injury to his left wrist and back in a fall at his place of work on 22 August 1996. He brought his claim for damages in negligence, breach of his contract of employment and breach of statutory duty. The learned trial judge concluded that the appellant employer was liable on all three bases. Although he concluded that the respondent had failed to take reasonable care for his own safety he held that he was precluded from reducing the award of damages by the decision of the High Court in Astley v Austrust Ltd (1999) 73 ALJR 403.

[29] The appellant appeals against the finding of negligence or, alternatively, the failure to make a reduction in the award of damages contending that Astley does not preclude a finding that the cause of the plaintiff's injury and loss on a contractual analysis of the relationship between the parties was his own failure to take care and therefore the reduction of his damages on the tort claim could stand. The notice of appeal includes an appeal from the award of damages for past and future economic loss which was abandoned on the hearing of the appeal.

[30] The appellant had sought leave at the trial to amend its entry of appearance and defence and to bring a counterclaim. The proposed amendment alleged that a term to be implied into the contract of employment provided that the respondent would carry out his duties

* with due care and skill; * in such a fashion as not to cause injury to any person including himself; and/or * in such a fashion as to take reasonable care for his own safety. The respondent allegedly breached that term and as a consequence the appellant suffered loss and damage in such amount of the respondent's damages as the court found was caused by the respondent's breach. The appellant sought to set off those damages against any order for damages made in favour of the respondent. In other words, this was an attempt to bring about a reduction in damages equivalent to the quantum of any finding of contributory negligence in tort. His Honour refused leave to amend because he concluded that the decision in Astley precluded a finding consistent with the proposed amendment.

[31] The appellant operated an engineering works a small aspect of which included reconditioning trucks and fitting them with hydraulic booms and buckets to convert them into what are commonly known as cherry-pickers. The respondent was employed by the appellant as a fitter and turner.

[32] On 22 August 1996 the respondent was in the office located within one of the large sheds where the various aspects of the appellant's business were carried out. He had been to check on some parts or similar relating to the job he was then doing. As he was returning to his work he noticed that two fellow workmen were refitting a boom and bucket to a truck in a bay near the office. The cabin of the truck was facing the office. The elbow of the boom extended over the roof of the cabin of the truck and was suspended from a mobile crane situated at a right angle to the truck and operated by one Westbrook. Another fitter, Probyn, was on the back of the truck near the turret housing where the foot of the boom was to be fixed by a steel pin. The pin was about 2 feet long, 4 inches in diameter and weighed about 50 pounds. The object was to pass the pin through a flange on one side of the turret, then through a pipe welded onto the end of the boom which was fitted with bushes to allow a close fit and finally through the other flange before being locked in place. Probyn was engaged in attempting to line up the holes in the flanges with the pipe on the end of the boom so that the pin could be inserted. The evidence suggested that there was a very fine tolerance making the successful performance of the task quite difficult. Probyn used a block of wood from time to time to drive the pin through. The evidence of Westbrook and Probyn, accepted below, was that the pin was about three-quarters of the way through when the respondent intervened. Probyn was attempting to get the boom into position by using pieces of wood as wedges and a pinch bar as well as directing Westbrook to make small adjustments to the position of the crane arm which would alter the position of the boom.

[33] To the respondent, Probyn was having difficulty holding the pin with one hand against his body and guiding the boom suspended from the crane with the other and directing Westbrook in his adjustment of the boom. In his opinion this was not the proper way to carry out this task and he thought that forcing the pin in by "hammering" could cause some damage. The respondent had carried out a similar task some time previously. He thought when he had done this he had been in the position of Probyn and had had someone to assist him by steadying and directing the boom manually whilst it was suspended from the crane.

[34] There was some conflict of evidence about what happened initially to get the respondent involved in this operation. The learned trial judge preferred the evidence of the respondent to that of Probyn whilst Westbrook's evidence was somewhat ambivalent. The respondent thought that the task would be assisted if he could stabilise and manoeuvre the end of the boom which was over the cabin of the truck and in this way assist Probyn in lining up the boom so that he could complete the insertion of the pin. His Honour found that "in principle" this was a sensible thing to do but recognised that the difficulty was for the respondent to get into a position where he could assist in that way. The respondent said that he called out to Probyn and asked whether he wanted a hand and that Probyn indicated by some brief words and nodding his head that he did. Probyn said that he heard something called out but could not recall what was said and denied that he had accepted an offer of help from the respondent or encouraged the respondent to become involved in the job. He said that he kept working and the next thing he recalled was Westbrook turning off the engine of the crane and going to the assistance of the respondent after he had fallen. Probyn said that there was a great deal of noise coming from the crane's engine which, in effect, precluded him from hearing what the respondent said. Westbrook tended to support the evidence of the respondent in as much as he saw the respondent stop at the front of the truck and appear to say something but could not hear because of the noise in the cabin. From where he sat he was of the opinion that eye contact had been made between Probyn and the respondent. His Honour accepted the evidence of the respondent that he had made an offer of assistance to Probyn and had received some indication of encouragement from Probyn before he embarked on his attempt to assist.

[35] The respondent said that he then started towards the truck but stopped and looked around for the platform which was a mobile trolley with a safety fence around it used for working in high places in the workshop. The respondent had utilised this trolley for the person who had assisted him when he had done this job previously. He said he noticed that there were numerous leads on the ground over which the platform would have to travel and since it would take time to roll up the leads he decided against bothering to get the platform. He said that he had been in trouble previously for wasting time rolling up leads. He concluded that Probyn and Westbrook would not stop to wait while he got the platform but would continue with the job and, if he were to help them, he decided that he would have to climb up on the bull bar on the front of the truck. He said

"So I had the option of getting up on the bull bar or going and getting a safety platform but I had my own rush job working on a pro line to get done so I couldn't ... so I just didn't use the safety platform where I - like I should have, I just went up the bull bar. I thought it'd only take a few seconds and I'd be back on my own job" R 16.

His Honour noted that the respondent could more safely have climbed on the back of the truck behind the cabin where he could have made some fine adjustments to the position of the boom fairly easily but not as easily as from the front of the cabin because of the greater leverage. His Honour rejected the respondent's evidence that to utilise the platform he would have had to roll up a number of electrical leads before the platform could travel over the ground and be put in position. He accepted the evidence from Probyn and Westbrook that they had cleared the area around the truck before commencing work and there was nothing which would have prevented the mobile platform from being brought in close to the truck and that, in any event, there were no leads usually in that area.

[36] His Honour said that the respondent said that "before he climbed on the bull bar he held up his hand to Mr Probyn to wait until he assisted him, and looked around for a mobile work platform which he could stand on near the front of the truck" R206. His Honour referred to p 16 of the transcript of evidence but there is nothing in the respondent's evidence at p 16 or elsewhere which suggests that he held up his hand to indicate that Probyn (and Westbrook) should wait. The tenor of the respondent's evidence was that he reflected that if he had taken the time to get a platform the two men would simply have continued doing the job without his assistance and he wanted to help them and therefore he made the choice to climb on the bull bar. This factual error does not seem to have influenced the approach which his Honour took. The bull bar was made of round pipes as its horizontal members. The respondent was wearing heeled workboots and said that he intended to stand with the top rung in the heel notch bracing his knees against the windscreen of the cabin. When he climbed up his left foot slipped and he began to fall. He flung himself to the right to avoid some items on a pallet on the ground near the front of truck and landed on his hands, forcing his right elbow into his ribs and bending back his left wrist.

[37] There was some conflicting evidence between the respondent and Westbrook on the one hand, and Probyn on the other, about the exact position of the boom when the respondent started to assist. Immediately behind the cabin of the truck was a metal cradle positioned so that once the boom had been installed it would rest on the cradle when fully lowered and the truck was being used as a vehicle. Probyn said that when the respondent fell the boom had been lowered to a point where it was resting in the cradle so that its weight was being supported partly by the cradle and partly by the crane and slings and partly by the wood and other items being used to adjust the end of the boom at the housing end. Probyn said that he was directing Westbrook to move the crane very slightly and, at the same time making adjustments with the pinch bar. Westbrook's evidence was that the boom, although suspended within the sides of the cradle, was not resting in it but suspended just above it. In this position he was making adjustments to the precise alignment of the boom within the limits afforded by the cradle. The respondent's evidence was to similar effect.

[38] His Honour concluded that if the boom were resting in the cradle it would not have been possible for the respondent to do anything useful from the front of the cabin of the truck because the weight of the boom would have made it difficult to move at all unless it was suspended from the crane. If it was in the position described by Westbrook his Honour concluded that "the sort of fine movement required could have been more easily achieved by moving the end of the boom near the cab of the truck slightly by hand, rather than trying to make very small adjustments of the crane, bearing in mind that the movements were of a few centimetres at most, since that was all that was permitted by the width of the cradle" R 207. His Honour did not accept Probyn's evidence as to how the boom was positioned when the respondent came in to assist preferring that of the respondent and Westbrook. That finding meant that the respondent was not embarking on a fruitless exercise when attempting to assist.

[39] His Honour specifically found that Probyn did not in any sense encourage the respondent to climb on the bull bar. He found that there was no negligence on the part of Probyn or Westbrook which caused the respondent either to climb onto the bull bar or to fall, nor did the respondent climb on the bull bar as part of any system of work organised by the employer. Further, his Honour did not think that this could be seen as the sort of situation where one employee would routinely help out another employee in a particular task so that an employer should expect that from time to time assistance would be provided. His Honour found that the respondent was trying to be helpful but that that was not, in itself, sufficient to make the appellant responsible for his injuries. He concluded that the respondent slipped "because he had climbed into a dangerous place" and that it would "have been safer for the plaintiff to have climbed on the back of the truck behind the cabin" R 208. He said that he "did not need to be warned about the dangers involved" R 225. What then was the negligence identified by his Honour? He characterised it as follows:

"For the reasons given earlier, in my opinion manual manipulation of the boom was the logical procedure to follow as a means of providing assistance in getting the job done effectively. Because the job was being done without that, it could be characterised as a process which invited assistance. I accept the plaintiff's evidence about this: pp 78, 81. I think on the whole that it was foreseeable that someone might offer assistance in the process of getting the boom properly aligned to enable the pin to be inserted, in circumstances where that process was being done as it was being done here. But that assistance was necessarily not part of the system of work, and there was therefore a risk that a person providing that assistance would not fit in with the system of work and would suffer injury as a result. I do not think it is necessary to go so far as to foresee the possibility that a person such as the plaintiff might attempt to offer assistance by climbing on the bull bar and thus expose himself to the risk of injury through falling off. I think it is enough to say that there was a risk of injury of some kind to any other employee who offered assistance" R 209-210.

[40] Later his Honour returned to the issue of liability.

"In my opinion, when work is being done in a way which invites assistance, and it is foreseeable that assistance would be provided in a way which would expose the person assisting to a risk of injury, there is a duty to take reasonable care to minimise or remove that risk. That may involve not doing the work in that way if the work can be carried out as effectively in some other way which will not invite assistance. That was the situation here; not only could the work have been done differently by providing assistance in manoeuvring the other end of the boom manually, but, if doing it in that way would have made it unnecessary to force the pin into position by hammering it with a piece of wood, I think it probably would have been done in a better fashion.

I think that in order to appreciate what went wrong in the present case, it is necessary to stand back from the details as to how the operation was being performed, and look at the overall organisation of the work. The problem here was that the work was not being done properly, so that an employee who appreciated that and was trying to be helpful by providing the sort of assistance that was required and came to be injured because, out of an excessive enthusiasm and without sufficiently considering the consequences, he took a foolish risk. The possibility that employees may take risks in order to carry out their work must be allowed for: McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306" R 213-212.

[41] Finally, his Honour observed when discussing contributory negligence by the respondent,

"The defendant is liable only because it failed to organise the work differently so as to remove the temptation for someone like the plaintiff to get involved in an unplanned way. On the other hand, it is recognised that the duty imposed on an employer is a heavy one, the plaintiff was trying to further the defendant's interests, and the plaintiff's actions did not endanger anyone except himself." R225

[42] But as McLeans Roylen Cruises Pty Ltd v McEwan (1984) 58 ALJR 423 shows, not every act of carelessness by an employee must be guarded against by the employer and in McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306 there was a specific finding that it was the way the garbage was collected on that particular route which exposed the employee to a risk of harm and the employer either knew of it or ought to have known.

[43] Even if it be accepted that carrying out the work of inserting the pin without the assistance of another employee to stabilise the boom manually was likely to attract such assistance, it by no means follows that the employer should be found liable to that employee if he attempted to give assistance in a dangerous way. As his Honour found, a safety platform was available for use by the respondent and the respondent recognised that it was the appropriate way to elevate himself. He reflected upon this but rejected getting the platform because, he concluded, Probyn and Westbrook would continue to carry out their work without his assistance if he delayed. His Honour specifically rejected the respondent's evidence that he was deterred from getting the mobile platform because of the presence of leads and that he would be likely to be reprimanded for wasting time by clearing the leads. Further, his Honour appeared to accept the evidence that there was no practice of standing on the bull bar of the trucks to carry out work at the appellant's premises contrary to an assertion by the respondent. His Honour further found that the respondent could still have assisted by standing on the back of the truck near the cabin. In my view his Honour fell into error when he concluded, in a speculative way, that there was some prospect that in some unforeseeable way such an assisting person might be injured when giving assistance even though there were safe ways of doing so.

[44] His Honour also found that the appellant was in breach of its duty pursuant to s 28 of the Workplace Health and Safety Act 1995 because it had failed to ensure the respondent's safety at work. Workplace health and safety is ensured when persons are free from injury caused by workplace activities, s 22(1). An employer discharges its workplace health and safety obligation "for exposure to the risk only if the person takes reasonable precautions" s 27.

[45] The difficulty here, accepting the finding that the way in which Probyn and Westbrook were permitted to do their work was likely to tempt another employee to assist, is in determining what precautions could have been taken. In effect, what the appellant would have had to foresee was a casual act of folly on the part of an employee not engaged in the task in hand. That would impose an unreasonable obligation on the appellant and be inconsistent with its duty under the Workplace Health and Safety Act, high though that standard of safety is.

[46] I would allow the appeal. However because of the detailed submissions by Mr Keane QC for the appellant I will add something about the other grounds of appeal concerning the issue of causation and the term to be implied into the contract of employment. Before doing so I will mention his Honour's findings on contributory negligence.

[47] His Honour concluded that a person taking reasonable care for his own safety would not climb on the bull bar in the way in which the respondent did. He found that the respondent did not need to be warned about the dangers involved in doing this and that the action was "obviously risky". His Honour concluded

"In my opinion the plaintiff was guilty of contributory negligence. With regard to apportionment, it was the plaintiff who chose to act as he did, and he was the person immediately responsible for the adoption of this dangerous position. There was no reason for the defendant to anticipate this specific conduct. The defendant is liable only because it failed to organise the work differently so as to remove the temptation for someone like the plaintiff to get involved in an unplanned way. On the other hand, it is recognised that the duty imposed on an employer is a heavy one, the plaintiff was trying to further the defendant's interests, and the plaintiff's actions did not endanger anyone except himself. On the whole I would apportion 1/3 responsibility to the plaintiff and 2/3 to the defendant." R225

With respect to his Honour, and it is not a ground of appeal, this seems a very favourable apportionment to the respondent in light of the findings which his Honour made.

[48] His Honour concluded that the reasons for decision of the majority of the High Court in Astley (handed down two days after he had reserved this decision) required that there be no reduction in the respondent's damages due to his contributory negligence.

[49] In analysing the relationship between the appellant and respondent in contractual terms his Honour thought that if the respondent's breach of the contract of employment was a cause, in the legal sense, of the appellant's loss, in incurring liability in damages to the respondent, the loss caused by the breach was either the whole amount of those damages, or it was not. Further, his Honour concluded that there was "no reason why the test of causation (as distinct from the test of remoteness) should be different in tort and contract" R 223. The argument advanced before his Honour and implicit in the amendments sought to be made to the defence was a claim for damages for breach of contract by the respondent which would, in quantum terms, be the equivalent of the quantum of the respondent's contributory negligence. I agree with his Honour that there can be no "apportionment" of that kind and on appeal Mr Keane presented the submission as one of causation which was a complete answer to the respondent's claim in contract leaving the claim in tort to stand with its finding of contributory negligence.

[50] Astley made clear that concurrent duties in contract and tort remain distinct and separate causes of action and a claimant may choose to sue in either or both, p 170. Where a claimant elects to bring an action in both, the relevant apportionment legislation may not be applied to the claim based on breach of contract to reduce the quantum of a claimant's damages attributable to the claimant's own failure to take reasonable care for his safety. The issue for consideration on this appeal was not argued in Astley but it was not, in my view, precluded as his Honour seems to have thought. The court in Astley was principally concerned to construe the relevant apportionment legislation but when discussing the nature of the contractual relationship the majority observed at paragraphs 85 and 86

"The terms of the contract allocate responsibility for the risks of the parties' enterprise including the risk that the damage suffered by one party may arise partly from the failure of that party to take reasonable care for the safety of that person's property or person. Ordinarily, that risk is borne by the party whose breach of contract is causally connected to the damage. Rarely do contracts apportion responsibility for damage on the basis of the respective fault of the party. Commercial people in particular prefer the certainty of fixed rules to the vagueness of concepts such as `just and equitable'. That is why it is commonplace for contracts to contain provisions regulating liability for breach of a duty to take reasonable care, whether by excluding liability altogether or limiting it in some other way.

Absent some contractual stipulation to the contrary, there is no reason of justice or sound legal policy which should prevent the plaintiff in a case such as the present recovering for all the damage that is causally connected to the defendant's breach even if the plaintiff's conduct has contributed to the damage which he or she has suffered. By its own voluntary act, the defendant has accepted an obligation to take reasonable care and, subject to remoteness rules, to pay damages for any loss flowing from a breach of that obligation."

[51] The majority had earlier made a detailed analysis of the case law concerning the apportionment legislation concluding that it was unsatisfactory and in a state of confusion. Nonetheless at paragraph 55 their Honours referred, with implicit approval, to AS James Pty Ltd v Duncan [1970] VicRp 90; [1970] VR 705. McInerney J in that case, in refusing to allow contributory negligence as a defence to an action for breach of a contractual duty to take care observed at p 723

"In cases where courts have treated the plaintiff's contributory negligence, whether consisting of a breach by the plaintiff of a contractual duty to take care, or of a mere failure by the plaintiff (not in breach of any duty to the defendant) to take reasonable care for his own safety as barring the right to recover damages for the defendant's breach of contract, the basis has been that the plaintiff's contributory negligence was the `sole', or the effective `cause', of the damage complained of by the plaintiff. In other words, the defendant has been exonerated on the ground that his breach of contract was not the cause of the damage: ..."

[52] Contributory negligence at common law was a complete defence to an action in negligence and the so-called "last opportunity" rule was developed to ameliorate a sometimes harsh result. This led to a view of causation which assigned occurrences to a single cause, March v E & M H Stramare Pty Limited [1991] HCA 12; (1990-1991) 171 CLR 506 at 511 per Mason CJ, but with the advent of the apportionment legislation courts have had regard to all the causes which brought about the loss and apportion the responsibility accordingly, Davis v Swan Motor Co (Swansea) Ltd [1949] 2 KB 291 per Denning LJ at 322.

[53] Different and well-known considerations apply when the relationship is governed by contract. In that circumstance courts will find the "real" or "effective" cause of the damage complained of, Leyland Shipping Company Ltd v Norwich Union Fire Insurance Society Limited [1918] AC 350 per Lord Shaw at 370; and Smith Hogg & Co v Black Sea and Baltic General Insurance Co [1940] AC 997. To assist in that search the common law applies a commonsense notion of causation, Monarch Steamship Co Ltd v Karlshamms Oljefabriker (A/B) [1949] AC 196; Quinn v Burch Bros (Builders) Ltd [1966] QB 370 (CA); and Alexander v Cambridge Credit Corporation Ltd (1987) 9 NSWLR 310. If an employer's breach of contract was the cause of the damage complained of the employer will carry the liability. But the employee will be left to bear his own loss if his own want of care has been the effective cause of the damage or if he is unable to prove what damage flowed from the employer's breach of contract as distinct from his own breach of contract, AS James v Duncan at 725.

[54] Quinn v Burch Bros (Builders), supra, has some similarity to the present facts in terms of causation, although its other findings on the applicability of the apportionment legislation to a contract have been overtaken by Astley. It was not an employer/employee case but involved an independent contractor who sustained injury on a building site. By an express term of the contract the head contractor was to supply all equipment to the plaintiff who was a plasterer. The plaintiff required a ladder to carry out some part of his work but one was not readily available. The trial judge held that there was to be implied into the contract a term to supply necessary equipment within a reasonable time of any request which was breached by the defendant head contractor. The plaintiff, wishing to continue with his work, used a trestle as a ladder without securing the foot which slipped and he sustained injury. Paull J (the trial judge) noted at p 376

"In contract it has long been held that it is a good defence to an action founded on a breach of contract that the party suing has chosen himself to act in a way in which a reasonable man would not act and so brought about the damage claim. Such an act breaks the train of causation leading to the damage."

[55] His Honour's conclusion that the breach by the defendant did not cause the plaintiff's loss was upheld by the Court of Appeal. Sellars LJ said at 390 that no doubt the breach by the defendant "was the occasion which brought about this conduct of the plaintiff but in no way caused it". Danckwerts LJ agreed at 391. Salmon LJ said at 394-5

"... if there were a breach of contract on their part to supply the step-ladder, that breach would afford the plaintiff the opportunity of acting negligently, and that he might take it and thereby suffer injury. But it seems to me quite impossible to say that in reality the plaintiff's injury was caused by the breach of contract. The breach of contract merely gave the plaintiff the opportunity to injure himself and was the occasion of the injury. There is always a temptation to fall into the fallacy of post hoc ergo propter hoc; and that is no less a fallacy even if what happens afterwards could have been foreseen before it occurred."

This analysis was approved by a later Court of Appeal in Galoo Ltd v Bright Grahame Murray [1993] EWCA Civ 3; [1994] 1 WLR 1360 which adopted the approach to causation expressed in Alexander and March v E & MH Stramare Pty Ltd (1991) 171 CLR.

[56] If it be accepted that the term to be implied into the contract of employment was an obligation on the part of the employer to provide a safe place of work and that that term was in some fashion breached, the question is did the breach do anything more than provide an occasion for the plaintiff's loss? On the facts as found by his Honour I have no difficulty in concluding that the respondent's injury would not have occurred but for his own conduct. There was no finding of negligence against the two fellow employees. The only negligence was in the employer not requiring those employees to manoeuvre the boom manually so that a passing employee would not be tempted to help and, in some unspecified way, injure himself. His Honour found that the respondent put himself in a dangerous position and did a dangerous thing and that there was a safer place available from which to assist. On any view the respondent's injury was due to his failure to carry out his work with skill and due regard for his own safety. He was the cause of his own injuries.

[57] Finally, the appellant submitted that his Honour was in error in not implying the term sought to be added to the pleading. In discussing the appellant's submissions below his Honour concluded that there were insuperable obstacles in the way of implying a term into the contract of employment of the kind contended for by the appellant. He thought that the term implied in Lister v Romford Ice and Cold Storage Co Ltd [1956] UKHL 6; [1957] AC 555 should not be extended to a promise by the employee to take care not to harm himself. The respondent had argued below, successfully, that such a term could not pass the tests enunciated in BP Refinery (Westernport) Pty Ltd v Hastings Shire Council ((1978) 52 ALJR 20) and Codelfa Construction Proprietary Limited v State Rail Authority of New South Wales ((1982) 149 CLR 337). This mistakes the nature of the term said to be implied. Those terms to which the Codelfa rules apply are those which seek to reflect the intentions of the contracting parties had they applied their minds to the contingency which has arisen and which is necessary to give efficacy to the specific contract to make it workable. That is not the case argued for here. It is the very nature of the contract itself which gives rise, by "operation of law" and long usage, to the term to be implied.

[58] On this their Lordships in Lister were unanimous and the many criticisms of the decision do not seem to be directed to this issue, see AR Griffiths & Sons Pty Ltd v Richards (1996) 24 MVR 296 per Fitzgerald P at 307. Viscount Simons in Lister said at p 572

"It is, in my opinion, clear that it was an implied term of the contract that the appellant would perform his duties with proper care. The proposition of law stated by Willes J in Harmer v Cornelius [1858] EngR 939; (1858) 5 CBNS 236, 246 has never been questioned: `When a skilled labourer,' he said, `artisan, or artist is employed, there is on his part an implied warranty that he is of skill reasonably competent to the task he undertakes, ... thus, if an apothecry, a watch-maker, or an attorney be employed for reward, they each impliedly undertake to possess and exercise reasonable skill in their several arts, ... An express promise or express representation in a particular case is not necessary' ... I think it right to say that I concur in what I understand to be the unanimous opinion of your Lordships that the servant owes a contractual duty of care to his master, and that the breach of that duty founds in action for damages for breach of contract, and that this (apart from any defence) is such a case."

[59] Lord Radcliffe (who dissented but not on this point) said at p 586

"If the contract of employment is viewed as a general legal relationship in which the law imputes certain rights and responsibilities to each side, it would assign a very undignified position to the employee to suppose that the employer takes `with all faults' and that the employee does not by virtue of his engagement impliedly undertake to use all reasonable care in the conduct of his employer's affairs. To say this is to say nothing new in the law. I am satisfied that from early times the law has consistently recognised the existence of this duty."

[60] Lord Tucker, without attempting an exhaustive enumeration of the duties imposed upon an employee by law included "the duty to take reasonable care of his master's property entrusted to him and generally in the performance of his duties".

[61] Finally, Lord Somervell (dissenting) said at p 598

"I think it is right to imply a duty on the part of the servant to take reasonable care in the carrying out of his duties. There would be a breach although there were no damage, and happily most acts of negligence do not cause damage."

See also the observations of Lord Wilberforce in Liverpool City Council v Irwin [1976] UKHL 1; [1977] AC 239 agreeing with the approach in Lister as set out above. His Lordship (considering a contract between a landlord and a tenant) held that there were some obligations which of necessity will be read into particular classes of contracts.

[62] The contract of employment between the appellant and the respondent was not before the court. However it may be assumed that not all of its terms would have been reduced to writing. There was no suggestion that the term sought to be pleaded was in conflict with some written term of the contract. Indeed it would be a most unusual contract of employment if it did. The employer is entitled to rely on the employee carrying out his side of the bargain, Reardon Smith Line Ltd v Australian Wheat Board [1956] AC 266 at 282.

[63] It is important to keep firmly in mind the difference between a claim in tort based on negligence and one in contract. An employer is required to take into account inadvertence, carelessness and disregard of instructions in certain circumstances in a claim based on tortious negligence. In contract an employer is entitled to rely on an employee carrying out his work with appropriate care and skill. If he does not then there may be a breach of the contract such as to entitle the employer to dismiss him and/or to claim damages for breach even if only nominal damages. Mr Keane offered an example of a tradesman employed on a high rise building construction site who does a handstand on a girder high above the ground but without injury to himself or others. That is conduct which would, Mr Keane submitted, entitle the employer to terminate for breach of the contract of employment because of the employee's failure to take care for his own safety although no actual damage has flowed to the employer from this act.

[64] The appellant suffered no loss as a consequence of the respondent's breach of contract and therefore would be entitled only to nominal damages. The manner in which the amendment to the pleading was expressed was incorrect insofar as it related to damages and tended to confuse the issues of causation in contract and the existence of the implied term. Since it is unnecessary to do so for the disposal of this appeal I would prefer not to come to any final conclusion on this matter.

[65] I would allow the appeal, set aside the judgment and in lieu thereof give judgment for the appellant with costs.

[5] [1984] HCA 60; (1984) 155 CLR 306, 311-312.

[6] cf Wegrzyn v Carlton & United Breweries (Queensland) Limited Appeal No 8596 of 1997, 24 November 1998, [10].

[7] [2000] QCA 314; Appeal No. 4092 of 1999, 4 August 2000, [11]-[13], [50].

[11] At [27], [50], [92]. See also Simoneous Vischer v Holt (1979) 2 NSWLR 322, 346; Heskell v Continental Express Ltd [1950] 1 All ER 1033; Alexander v Cambridge Credit Corporation Limited (1987) 9 NSWLR 310, 315, 357.

[13] See, e.g., Workplace Health and Safety Act 1995 (Qld), the Second Reading Speech Queensland Parliamentary Debates vol 332, 22 March 1995, 11231-11232, Schiliro v Peppercorn Chid Care Centres Pty Ltd [2000] QCA 18, paras [24], [25] and [31]; WorkCover Queensland Act 1996 (Qld) s 6 and 312-314 and 1996 Queensland Acts Explanatory Notes, 720 at 727, 840.