District Court of WA|2004-07-26

Klein v Minister for Education [2004] WADC 153 (26 July 2004)

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

CITATION : KLEIN -v- MINISTER FOR EDUCATION [2004] WADC 153

Tort Negligence Occupier's liability Whether defendant a deemed employer Workers' Compensation and Rehabilitation Act 1981, s 175 - Occupiers' Liability Act 1985, s 5 Whether s 93B of Workers' Compensation and Rehabilitation Act 1981 applies to bar plaintiff's claim

Workers' Compensation and Rehabilitation Act 1981

Dickinson v Motor Vehicle Insurance Trust [1987] HCA 49; (1987) 163 CLR 500

Frauenfelder v Reid [1963] HCA 3; (1963) 109 CLR 42

Hewitt v Benale Pty Ltd; WMC Resources Ltd v Koljibabic [2002] WASCA 163; (2002) 27 WAR 91

Insurance Commission of Western Australia v Container Handlers Pty Ltd [2004] HCA 24

Jones v Wesfarmers Ltd [2003] WASCA 225

Marsden v Unimin Australia Ltd; Price v Resolute Resources Ltd [2004] WASCA 143

Moir v Schrader & Anor [1936] HCA 69; (1936) 56 CLR 310

State Government Insurance Commission v Sinfein Pty Ltd (1996) 15 WAR 434

Airoldi v Metropolitan Health Service Board [2000] WADC 334

Blondel v Wesfarmers CSBP Ltd [2004] WASCA 117

Corrections Corporation of Australia Pty Ltd v Commonwealth of Australia [2000] FCA 1280

Federal Commissioner of Taxation v Whitfords Beach Pty Ltd [1982] HCA 8; (1982) 150 CLR 355

Hamod v State of New South Wales [2001] FCA 157

Koljibabic v WMC Resources Ltd [2003] HCA Trans 427

Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254

NT Power Generation Pty Ltd v Power & Water Authority [2001] FCA 334; (2001) 184 ALR 481

NT Power Generation v Power and Water Authority & Anor [2002] FCAFC 302; (2002) 122 FCR 399

Reynolds v Katoomba RSL All Services Club Ltd [2001] NSWCA 234; (2001) 53 NSWLR 43

Waverley Municipal Council v Swain (2003) A Tort Rep 81694

1 NISBET DCJ: The plaintiff was born on 18 February 1970 and having left school halfway through his fourth year of high school he enjoyed a variety of jobs both in Western Australia and in South Australia before finally taking up employment in this State with Falcon Investigations and Security Pty Ltd ("Falcon"). He started work with Falcon in or about 1996 and was initially placed as a guard at the Fremantle Prison where his job was to open up the prison and lock it at the close of the day and monitor the alarms in the meantime. After about two years as a guard at the Fremantle Prison the plaintiff was transferred in his employment to a contract which Falcon had with the defendant as a security guard on mobile patrols looking after various of its schools. The plaintiff was provided with what was called a "run sheet" which was a list of schools which he in company with a fellow security officer were to visit in turn on a regular basis. I presume each school had to be visited every night but this was not made clear to me. If, however, during the course of this patrol an alarm was activated at any of the schools on their run sheet the plaintiff and his colleague were required to go straight to answer that alarm. This was achieved by way of two-way radio communication from a control room base which Falcon operated, if not owned, and which was located within the headquarter buildings of the Education Department in Royal Street in East Perth.

2 In order to enable him to perform his security work the plaintiff was provided with a uniform, which he had to pay for, and was provided with the use of a motor vehicle at the beginning of each shift. Upon his transfer to the Education Department contract the plaintiff was also provided with a torch and a set of handcuffs and was given some rudimentary instruction in the use of the handcuffs. He was not however provided with any detailed instruction as to how he was to go about the performance of his duties. He was given what he described as "on-the-job training". Specifically, he was not provided with a copy of the security operations manual which came into evidence as exhibit 6 and he specifically denied ever having been told that he was not to apprehend suspected offenders but rather was to keep them under observation until the police were called.

3 The object of the provision of security personnel to patrol government schools is obviously to deter vandalism and burglary and, if possible, to apprehend those responsible. The apprehension of offenders was encouraged, not discouraged otherwise it is difficult to see the point in issuing security officers with handcuffs. Further, the plaintiff explained that he was told that he had a discretion to exercise in the apprehension of suspected offenders and that he was entitled to use reasonable force in their apprehension and detention. When caught however offenders were to be handed over to the police.

4 During the course of his engagement on the Education Department contract the plaintiff did encounter a number of circumstances where he observed very bad damage to schools including a case of arson. He also knew that there were dangers associated with the work as there had been a tragic killing of a security guard of which he was aware. He himself however, had only been involved in two arrests of offenders, on one occasion apprehending a vandal spraying graffiti and another apprehending a burglar in the act of stealing equipment from a manual arts building at a high school.

5 During the course of his employment with Falcon and working on the Education Department contract on 1 November 1999, the plaintiff was on mobile patrol with Mr Andrew Woods. They received a call that there were youths on the premises of the Ocean Reef Primary School and they drove immediately to the school where they saw some youths on the road adjacent. They also observed that the police were in attendance speaking to a group of youths on the oval. The plaintiff thought that they parked at the front of the school, Mr Woods who also testified in the trial gave evidence that he thought that they entered the premises from the rear and parked on the oval. Nothing turns on this. In any event they both got out of their vehicle and went to inspect the school premises. At this stage the plaintiff says that he thought the police had departed and as he walked to the covered pick up and drop off area of the pre-primary centre at the rear of the school he heard the sound of windows being smashed and then looked to see a youth smashing windows at the side of the school. The offender took flight and the plaintiff and Mr Woods ran in hot pursuit. The plaintiff was chasing the offender across a grassed area and the general direction that each of he and the offender took are marked on the rough sketch of the scene which is exhibit 1. The plaintiff testified that the grass was about knee high and as he closed on the offender the offender stumbled and fell to the ground just as the plaintiff grabbed him and moments later the plaintiff stumbled and hit the ground as well. As the plaintiff testified, when he got up holding the offender both he and the offender were hobbling and it became apparent that they had both run into a mound of concrete which had been dumped on the grass and which was obscured by reason of the darkness and the height of the surrounding grass.

6 Shortly after the plaintiff had apprehended the offender the police arrived. They had in fact gone around the front of the school and down the side and were running to catch the offender as the plaintiff and Mr Woods were running to head him off and apprehend him. The police arrested the youth and took him away with them in their van. Mr Woods helped the plaintiff, taking him to the first aid centre in the school and dressing his knees and then returning him to Falcon's control room located within the head office of the Education Department, as previously mentioned. Mr Woods testified that he drove the plaintiff home because the plaintiff's knees were so swollen he couldn't drive. The plaintiff could not recall whether he was driven home or not but did say that by the time he got home his left leg had swelled so much that his former wife drove him to Joondalup Hospital where he was x-rayed and found to have a fractured patella. The plaintiff has been unable to return to that form of employment since. In the event that I find the defendant liable damages have been agreed in the total sum of $100,187.01.

7 The plaintiff pleaded three causes of action against the defendant, namely, a breach of the defendant's duty at common law to ensure that its premises were safe for the plaintiff whilst he was in the process of carrying out his duties, a duty pursuant to s 5 of the Occupiers' Liability Act to protect the plaintiff from any dangers related to the premises and a duty pursuant to the Occupational Safety and Health Act to provide and maintain a workplace in which persons such as the plaintiff were not exposed to hazards. The plaintiff said that he sustained injury in consequence of the negligence and, or in the alternative, the breaches of the statutory duties owed by the defendant to him which breaches he particularised as being the defendant's failure to remove the mound of concrete from its premises, its failure to barricade the concrete and permitting grass to grow around it thereby creating a concealed danger, failing to warn the plaintiff of the presence of the concrete and failing to provide sufficient light to the area around the concrete.

8 The defendant in its defence pleaded firstly, contributory negligence on the part of the plaintiff and then pleaded as follows:

"8. Further, at all material times, the defendant was carrying on the business of the provision of educational services including all tasks necessarily involved therein, including but not limited to, the security of the premises.

9. The defendant says that the security work on which the plaintiff was employed on 1 November 1999 is directly a part or process in the business referred to in paragraph 8 of this amended defence within the meaning of section 175(3) of the Workers' Compensation and Rehabilitation Act 1981 ('the Act').

10. Pursuant to the matters pleaded in paragraphs 6 and 7 of this amended defence, or alternatively the matters pleaded in paragraphs 6, 7, 8 and 9 of this amended defence, the defendant says that it was the deemed employer of the plaintiff pursuant to section 175(1) of the Act on 1 November 1999.

11. The defendant says that the plaintiff has no entitlement to an award of damages against the defendant as the defendant is a deemed employer of the plaintiff and the plaintiff has failed to comply with section 93E(3) of the Act."

9 Whilst, as noted, the plaintiff pleads a cause of action in both common law and for breach of statutory duty "pursuant to s 5 of the Occupiers' Liability Act" they are, in effect, the same, s 4(1) of the Occupiers' Liability Act 1985 providing that:

"(1) Sections 5 to 7 shall have effect, in place of the rules of the common law, for the purpose of determining the care which an occupier of premises is required, by reason of the occupation or control of the premises, to show towards a person entering on the premises in respect of dangers -

which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier of premises is by law responsible." (My emphasis.)

10 Section 5(1) of that Act provides that:

"[T]he care which an occupier of premises is required to show towards a person entering on the premises in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier is by law responsible shall ... be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger."

"Without restricting the generality of subsection (1), in determining whether an occupier of premises has discharged his duty of care, consideration shall be given to -

(a) the gravity and likelihood of the probable injury;

(b) the circumstances of the entry onto the premises;

(d) the knowledge which the occupier of premises has or ought to have of the likelihood of persons or property being on the premises;

(f) the ability of the person entering the premises to appreciate the danger; and

(g) the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person."

12 Bearing in mind that the defendant moved to protect its capital assets by contracting with Falcon for the provision of security services involving night patrols and a requirement that Falcon respond to intruder alarms, whilst such distinctions have no effect for the purpose of determining the standard of care owed to him, clearly the plaintiff was an invitee - someone who the defendant knew would regularly enter upon its premises at night.

13 Each of the plaintiff and his witness Mr Woods seem to me to be credible and reliable witnesses and I accept their testimony that this large lump of concrete was surrounded by relatively tall grass and would therefore have been very difficult to detect. In my opinion it would have constituted a danger to persons lawfully on the premises at night and that in the case of the plaintiff, running to apprehend an offender who had just vandalised the defendant's premises at night, there was bound to be an injury occasioned to anyone running into it. And, I think I can safely infer that such an injury could very well have been significant. Trips over obstacles such as this lump of concrete at night could have resulted in a broken leg, a broken arm and any number of other quite serious injuries were likely to be occasioned by anyone coming into contact with this obstacle in the way in which I have described. In my opinion the plaintiff would have had very little ability to appreciate the danger that awaited him having regard to the fact that the concrete was an obstacle which was obscured by reason of it being located in long grass and by reason of the fact that it was night time and in this regard it is no answer for the defendant to suggest as it did that the plaintiff was equipped by his employer with a torch which he failed to deploy. Neither the plaintiff nor Mr Wood could recall if they had used their torches on the night in question and it seems to me that this issue is one which is more properly dealt with when I come to consider the defendant's defence of contributory negligence.

14 Finally, in this regard whilst there was no evidence before me as to the cost to the defendant of removing the lump of concrete it would hardly have been excessive compared to the risk of the danger of persons such as the plaintiff tripping over it. All that would have been required was some handyman with a trailer to break up the concrete and transport it away on a trailer to an approved dumping site. I would be very surprised if this exercise would cost any more than a couple of hundred dollars.

15 In all of the circumstances therefore, having regard to the provisions of the Occupiers' Liability Act 1985 I have no difficulty at all in finding that the plaintiff has established on the evidence that the defendant breached its duty of care to him. In the circumstances there is no need for me to make a finding in relation to s 22 of the Occupational Safety and Health Act.

16 I turn then to consider whether or not there was any contributory negligence by the plaintiff. Whilst it was put as an absolute defence to the plaintiff's claim arising out the defendant's occupation of the premises in question, the question of the security contract between the defendant and Falcon more properly falls to be considered as part of the defendant's allegation that the plaintiff contributed to his own negligence in that the operation manual which was received into evidence as exhibit 6 provided in cl 10.4.7 that: "Field operatives shall independently investigate the cause of the alarm and maintain the necessary surveillance of the intruders from a safe location until police assistance arrives." Each of the plaintiff and Mr Woods denied that they had ever been provided with a copy of this operations manual nor had they ever been given any instruction to this effect. Each was provided with handcuffs, the only purpose of which is to restrain an offender or a suspected offender, and in the circumstances where the plaintiff, employed as a security guard to protect the defendant's capital assets comes across an offender in the course of his duties his task was to apprehend the offender using such force as was reasonably necessary to effect this purpose in conformity with the instructions he had been given in this regard from time to time. Accordingly, the instruction in the operations manual is of no assistance to the defendant.

17 Finally, the defendant maintained that the plaintiff was at fault for running "full steam" through the area to apprehend an offender without taking care to ensure that his torch was on so that he could see where he was running, and if there was long grass, to ensure that he proceeded without danger to himself. This strikes me as being completely and utterly unrealistic. The plaintiff was after all employed as a security guard to protect the defendant's capital assets. He can hardly be blamed for being conscientious and diligent enough to want to apprehend an offender in what would otherwise have been ordinary circumstances of running through a grassed area. It was only the concealment of the lump of concrete by the long grass that made it a danger, not obvious to anyone and certainly not the offender and the plaintiff on this occasion, but in my opinion it doesn't lie in the mouth of the defendant to complain that the plaintiff was doing his job properly.

18 Section 175 of the Workers' Compensation and Rehabilitation Act 1981 (hereinafter "the Act") has been in the Act and its predecessor for many years. It reads as follows:

"Division 2-Insurance by principals, contractors, and subcontractors

175. Principal contractor and sub-contractor deemed employers

(1) Where a person (in this section referred to as the principal) contracts with another person (in this section referred to as the contractor) for the execution of any work by or under the contractor and, in the execution of the work, a worker is employed by the contractor, both the principal and the contractor are, for the purposes of this Act, deemed to be employers of the worker so employed and are jointly and severally liable to pay any compensation which the contractor if he were the sole employer would be liable to pay under this Act.

(2) The principal is entitled to indemnity from the contractor for the principal's liability under this section.

(3) The principal is not liable under this section unless the work on which the worker is employed at the time of the occurrence of the disability is directly a part or process in the trade or business of the principal.

(4) Where the principal and the contractor are jointly and severally liable under this section, a judgment obtained against one is not a bar to proceedings against the other except to the extent that the judgment has been satisfied.

(5) Where compensation is claimed from or proceedings are taken against the principal, in the application of this Act a reference to the employer shall be read as a reference to the principal except where, for the purpose of calculating the amount of compensation, a reference is made to the earnings of a worker, the reference shall be read as a reference to the earnings of the worker under the contractor.

(6) For the purposes of this section, where sub-contracts are made ¾

(a) 'principal' includes the original principal for whom the work is being done and each contractor who constitutes himself a principal with respect to a sub-contractor by contracting with him for the execution by him of the whole or any part of the work;

(b) 'contractor' includes the original contractor and each sub-contractor; and

(7) Where the disability does not occur in respect of premises on which the principal has undertaken to execute the work or which are otherwise under his control or management, subsections (1) to (6) inclusive do not apply."

19 The defendant relies on this provision to have the defendant deemed to be the plaintiff's employer and, in that situation, the provisions of Division 2 - Constraints on awards of common law damages - of that Act apply to defeat the plaintiff's claim. This is because by reason of s 93B of the Act Division 2 of that Act applies to any claim for damages "... resulting from the negligence or other tort of the worker's employer [which] are sought to be recovered in an action for breach of contract or other action." Then, by reason of s 93C if Division 2 applies then a court is not to award damages to a person contrary to that the damages can only be awarded if it is agreed or determined that the degree of disability is not less than 30 per cent and that agreement or determination is recorded in accordance with the regulations or the worker has a significant disability and elects in the prescribed manner to retain the right to seek damages and that election is registered in accordance with the regulations. For this purpose a worker has a significant disability if it is agreed or determined that the degree of disability is not less than 16 per cent and that agreement or determination is recorded in accordance with the regulations (s 93E(4)).

20 The plaintiff maintained that these provisions did not apply to him because the defendant is not engaged in a "trade or business" within the meaning of that phrase in s 175(3) of that Act. The defendant's answer to this was to point to the provision of s 6 of that Act which provides:

"The exercise and performance of the powers and duties of a local government or other public, or statutory authority shall, for the purposes of this Act, be treated as the trade or business of such local government or other authority." (My emphasis.)

21 Both parties agreed that the Education Act 1928 before its repeal by the School Education Act 1999 was the Act applicable for determining the status of the defendant for the purpose of answering this question because the latter Act was not proclaimed to come into effect until 1 January 2001.

22 The plaintiff submitted that the defendant did not come within the phrase "... or other public, or statutory authority" within the meaning of s 6 of the Workers' Compensation and Rehabilitation Act 1981. The Education Act by s 5 constituted the Minister a body corporate with perpetual succession and a common seal "... and by that name shall be capable of suing and being sued, acquiring, holding, leasing, and alienating real and personal property, and of doing and suffering all such other acts and things as may be necessary or expedient for carrying out the purposes of this Act."

23 In my opinion it is tolerably clear that the defendant is a statutory authority within the meaning of s 6 of the Workers' Compensation and Rehabilitation Act 1981. On the face of it, this means that the mere exercise of any power conferred by the Education Act 1928 and the mere performance of any duty imposed by that Act are to be treated as the trade or business of the defendant.

24 The Education Act 1928 does not contain any provisions setting out the powers and the duties of the defendant. The long title of the Act is: "An Act to consolidate and amend the law relating to public education and for incidental and other purposes." The provision of the Act constituting the Minister as a body corporate (s 5) refers to the defendant "doing and suffering all such other acts and things as may be necessary or expedient for carrying out the purposes of this Act." But, again, the Act does not set out what its purposes are save for in the long title described above. Further, s 5 is to be found within Part II of the Act which deals with administration of the Act. The Act goes on to provide that the defendant can grant licences for the use of land and other school property by persons generally. Then, in Part III of the Act (s 9) the defendant is given power to "continue and maintain and carry on any Government schools in existence at the commencement of this Act, and may establish and maintain and carry on such other Government schools, and such other means of instruction, as he deems necessary or convenient for public education and the purposes of this Act." Again, the purposes of the Act are not defined, and this is a grant of a power not the imposition of a duty. Further powers are conferred: to lend money - s 9C; to borrow money - s 9D. But thereafter the Education Act 1928 makes provision for attendance at schools and their governance (Parts V and VA); Parents' and Citizens' Associations, Care Centres and Pre-School Centres and the like.

25 Hence, a close examination of the Education Act 1928 reveals that its purpose is to provide public education and, for the purpose of providing public education the defendant is empowered to establish and maintain public schools.

26 It seems to me therefore that the first question to be answered is whether or not the defendant had an incidental power to engage security services for the protection of its capital assets. In my opinion it is quite clear that it did by reason of the provisions of s 5 and s 9 of the Act.

27 The question which immediately follows is whether, being in possession of an incidental power to engage security services for the protection of its capital assets, the exercise of that power by the engagement of Falcon to provide security services immediately becomes the trade or business of the defendant by reason of s 6 of the Workers' Compensation and Rehabilitation Act 1981. Having regard to the breadth of s 6 it is difficult to see how it could be otherwise.

28 This then means there must be a determination of the question which arises by reason of s 175(3) of the Workers' Compensation and Rehabilitation Act 1981 which is whether the plaintiff, as part of his employment as a security guard on the defendant's premises, chasing and apprehending an offender was engaged in work which is "directly a part or process in the trade or business" of the defendant.

29 Hewitt v Benale Pty Ltd; WMC Resources Ltd v Koljibabic [2002] WASCA 163; (2002) 27 WAR 91, being two cases heard at the same time by the Full Court on precisely this point, determined that the provisions of Part IV of Division 2 of the Workers' Compensation and Rehabilitation Act 1981 apply to an action for common law damages against a person or corporation who is a deemed employer pursuant to the provisions of s 175 of that Act. It is, however, important to note that in both of those cases there was an agreed set of facts and each set of facts provided that each corporation was a deemed employer of each of the plaintiffs. And in Marsden v Unimin Australia Ltd; Price v Resolute Resources Ltd [2004] WASCA 143, the Full Court affirmed its decision in Hewitt v Benale Pty Ltd.

30 In Jones v Wesfarmers Ltd [2003] WASCA 225 the Full Court considered an appeal by the appellant from a finding of this Court that he was caught by the provisions of s 175 because the work upon which he was engaged whilst employed by a contractor to the respondent was performed on the premises of the respondent was work carried out and "... was directly a part or process in the trade or business of Wesfarmers by reason, among others, that it was necessary for the compressor on the tanker to be operational in order to pressurise the tanker and thereby release the flocculant from the tanker in order to complete the contract for the transport of the flocculant from the site where it was required to be used." [49]. And, between what were said to be the competing decisions of the High Court on different legislation in Moir v Schrader & Anor [1936] HCA 69; (1936) 56 CLR 310 and Frauenfelder v Reid [1963] HCA 3; (1963) 109 CLR 42 the Full Court in Jones v Wesfarmers (supra) expressly adopted what Dixon J said in Moir v Schrader at 323 namely that the legislation is not susceptible of exact definition or of completely certain application because:

"It is based upon the view that from the course of the principal's trade or business and the manner in which he conducts it, he will be found to have assumed responsibility for the performance of a class of work, the fulfilment of given functions or the pursuit of a system of activities. What he has thus adopted as his proper operations, he may accomplish by means of direct employees, or by means of contracts which remove him from the relation of employer with the workmen who do the work. Whichever be his method, he is to be responsible for the workers' compensation payable to those injured in the course of the work for the performance of which he has assumed responsibility, the work which he has 'undertaken.' But when, although the work performed by the injured workman is necessary to enable the principal to carry out the operations the execution of which he has adopted as his trade or business, yet that work does not form a component part of the operations and only contributes or conduces to their performance or is preliminary or ancillary or incidental to them, then the workman must look to his direct employer for compensation."

31 In my opinion, importantly for the resolution of this problem, the legislation under consideration in both Moir v Schrader and Frauenfelder v Reid did not have a provision quite like s 175(3) of the Workers' Compensation and Rehabilitation Act 1981.

32 Whilst in a different connection, both the Full Court of the Supreme Court of Western Australia and the High Court of Australia have each given consideration to the importance of the use of the word "directly" in legislation. See Dickinson v Motor Vehicle Insurance Trust [1987] HCA 49; (1987) 163 CLR 500; State Government Insurance Commission v Sinfein Pty Ltd (1996) 15 WAR 434 and Insurance Commission of Western Australia v Container Handlers Pty Ltd [2004] HCA 24.

33 For myself, I have difficulty in seeing how the engagement of a security patrolman to patrol the defendant's capital assets is in any way a part or process in the trade or business of the principal, namely the defendant, in providing public education. True it is that a serious enough break-in with theft of equipment or an arson would disrupt the defendant's operations, but it is no more part of the defendant's trade or business than the provision of security by way of night patrols by security patrolmen in a used car yard could be said to be a part or process in the trade or business of selling second-hand cars, and certainly, in my opinion, it cannot be said that a security patrolman is performing work which is directly a part or process in the trade or business of this defendant. Hence the defendant is not the plaintiff's deemed employer and the plaintiff is not caught by the provisions of Division 2 of the Workers' Compensation and Rehabilitation Act 1981.

34 For the foregoing reasons I find that the defendant is liable to the plaintiff in damages which have been agreed in the sum of $100,187.01.

Compensation and Rehabilitation Act 1981

Vehicle (Third Party Insurance) Act 1943

Workers' Compensation and Rehabilitation Act 1981

Klein v Minister for Education [2004] WADC 153

At a glance

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Judgment (62 paragraphs)

Klein v Minister for Education [2004] WADC 153 (26 July 2004)

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Legislation Cited (5)

Cases Cited (11)