Nicol v Allyacht Spars Pty Ltd

At the time of the appellant's accident which gave rise to this litigation, it had three directors, each of whom was employed by the respondent. The appellant, Glenn Anthony Nicol, was one of the directors; Mr. Berg and Mr. Gray were the others. There was a division of labour among the directors. Mr. Gray was largely concerned with administration; in his own words, he "ran most of the office operations". Mr. Berg was in charge of fabrication in the workshop. The appellant described himself as "just an employee of the company".

However, about a month before the accident the respondent undertook the construction of a catamaran for sale. Business was then slack and the work was seen as a form of diversification. This work became the appellant's immediate concern and he was in charge of construction.

Some time before the accident the respondent had supplied a flag-pole to one of its customers to be used for advertising purposes in front of a house which was a "Mater Prize Home". The respondent had nothing to do with the installation of the flag-pole. The organizers of the lottery realized that the advertising banner fixed to the horizontal arm of the flag-pole was not hanging correctly so one of its representatives approached the respondent with a request to check the banner and if necessary remove it and replace it with another.

The evidence did not enable the learned trial judge to conclude who, on the part of the respondent, agreed to do the work but he thought it likely that it was the representative who had sold the flag-pole. In any event the job was of some urgency because the official opening of the home was to take place the coming weekend. From the respondent's point of view, Friday afternoon was the convenient time. It so happened that the appellant and Mr. Berg were the only persons available that afternoon and they agreed they would do the work on their way home at the end of the day.

That Friday, 5 November 1982, the appellant left work driving a Datsun utility which belonged to the respondent but which he used for his own purposes as well. Mr. Berg rode his motor cycle. The two men stopped at a place that hired trestles and, pursuant to a hiring arrangement made earlier, they took delivery of a trestle. The appellant had not made the arrangement to hire the trestle. The appellant and Mr. Berg placed the trestle in the back of the utility and the appellant drove to the Mater Prize Home, with Mr. Berg following on his motor cycle. There was already in the back of the utility an extension ladder belonging to the respondent.

When the appellant and Mr. Berg arrived at the home, they realized that the banner would have to be removed and replaced with another banner they had brought with them. The flag-pole, as described by the trial judge, was 30 ft. high, having a horizontal arm 6 ft. 6 in. in length, fixed to the pole at a point 26 ft. 9 in. from the ground. The banner was 5 ft. wide and hung down about 8 ft. (All dimensions were given in imperial measure.) To replace the banner it was necessary to unscrew a section at the end of the horizontal arm, remove the section and the banner, replace the banner and screw back the section. This operation was straightforward and required only a screwdriver. The problem was to provide means by which someone could do the work at the necessary height above ground.

Before the appellant and Mr. Berg arrived at the scene there had been discussions at the respondent's workshop as to how the job would be done. It will be necessary to look more closely at those discussions and to consider the extent of participation by the appellant, Mr. Berg and Mr. Gray in them. But first it is convenient to recount what happened at the scene.

The ground around the flag-pole was sloping. A decision had earlier been made to fix the extension ladder to a trestle, thus providing access to the banner and support for the ladder. However the trestle which it was hoped to use was unavailable and a trestle which was about 2 ft. shorter was used. The result was that the extension ladder fixed to the trestle would not provide sufficient height in the sense that the person changing the banner would have something to lean against. It had earlier been decided to place the trestle on the tray of the utility, thereby obtaining additional elevation together with a footing to be provided by the utility itself. This the appellant and Mr. Berg did. The appellant then climbed the ladder and, at a convenient height, lent forward to begin work at the end of the horizontal arm. As he did so the trestle and ladder moved away from the arm, dislodging the appellant who fell to the ground suffering severe injuries. Mr. Berg described what happened in these terms: "The foot of the trestle furthest from me closed and then the one closest to me skidded out along - across the aluminium." The "aluminium" referred to was the tray of the utility.

The system employed to replace the banner was clearly unsafe. The finding of the trial judge was in these terms:

By the time Berg and the plaintiff left the premises to undertake the work the system to be used was known to and had been devised, adopted and agreed to by both Berg and the plaintiff. In making this finding I should add two things: first, I am uncertain if, or to what extent the plaintiff took part in all of the relevant informal discussions on the subject at the premises on that day but I am satisfied that before leaving the premises to do the work the plaintiff knew of and had either expressly or impliedly agreed with the use the system of work proposed and that he had accepted and/or adopted the proposed method or system as a proper one for use in the circumstances; secondly, I am satisfied that the use of a "cherry-picker" was not suggested by the plaintiff or, if it was, it was not advanced as a serious suggestion but was merely a casual statement made in the course of any discussion to which he was, or to which he may have become a party.

His Honour made further findings that, at the scene of the accident, the appellant and Mr. Berg "agreed to and adopted the method or system in fact used as a proper one" and that in so doing neither was subordinate to the other.

The appellant sued the respondent. The writ was endorsed as a claim "for damages for negligence and/or breach of statutory duty". However the statement of claim was framed only in negligence. No submissions were addressed to the trial judge or to the Full Court on the aspect of breach of statutory duty and the question for this Court must be whether the appellant should have succeeded in his claim for negligence. The statement of claim alleged negligence through failure to install or maintain a safe system of work. Negligence was particularized to some extent by reference to failure to secure the ladder adequately, failure to provide safe means of access, failure to provide proper plant and equipment, failure to give the appellant appropriate instructions or warnings and failure on the part of Mr. Berg to hold the ladder and trestle adequately.

The trial judge dismissed the appellant's claim and he did so for these reasons. In his Honour's view, the performance of the respondent's business was carried out on a day to day basis by the appellant, Mr. Berg and Mr. Gray; on the occasion of the accident the performance of that business was directly in the hands of the appellant and Mr. Berg; the system of work which they adopted was their chosen system and in turn the respondent's system; and in those circumstances the appellant could not recover from the respondent damages in respect of his injuries on the ground that the respondent was in breach of its duty to him to provide a safe system of work.

The Full Court by a majority (Matthews and Shepherdson JJ., Kelly S.P.J. dissenting) dismissed the appellant's appeal. The basis of Matthews J.'s judgment may be found in the following passage:

In the instant case the obligation of the respondent was to be met in accord with the division [presumably "decision"] of the appellant jointly with others. The unsafe system of work, which was adopted, was the appellant's system and it has been sufficiently established that in respect of the provision of an unsafe system, a servant is not to be heard to complain if he is solely responsible for it. Shepherdson J. took much the same approach, concluding in respect of the conduct of the appellant and Mr. Berg: These two men (wearing their directors' hats) owed themselves (wearing their employees' hats) the non-delegable duty to which I have referred. In the discharge of that duty they were undoubtedly negligent; however their very negligence was inherent in and flowed from their own jointly agreed plan. In short the jointly agreed plan when executed was the sole cause of the appellant's injury.

Those passages must be considered in the light of the evidence. Before the appellant and Mr. Berg left the respondent's premises on Friday afternoon, the system by which the banner would be rehung or replaced had been worked out. There was no clear evidence that Mr. Gray played any part in the working-out. It is apparent that Mr. Berg played a significant part and it is probable that he initiated a discussion with employees of the respondent as to the system that might be used. The appellant joined in that discussion but the totality of the evidence suggests that, at least in broad terms, the use of a ladder and trestle had already been canvassed before he did so. Mr. Berg agreed that the suggestion to use a trestle may have been his. In cross-examination he said: " I am fairly sure that I suggested the idea." He also agreed that it was his idea to mount the trestle in the back of the vehicle.

The trial judge did not say why he rejected the appellant's claim to have suggested a cherry-picker. Mr. Berg thought it "possible" that the machine had been mentioned though he had no recollection of the matter.

With respect, it is not right to describe the system employed as "the appellant's system" or to say that it was his "chosen system". Rather the inference to be drawn from the evidence is that the appellant, along with Mr. Berg, implemented a system which had been devised substantially by employees of the respondent other than the appellant.

That the respondent was under a duty to provide a safe system of work for its employees is not in doubt. The fact that the appellant was, at the time of his accident, a director of the respondent did not affect his status as an employee: Lee v. Lee's Air Farming Ltd. [1] . Nor did it alter the duty of care owed by the respondent to him along with its other employees. Counsel for the appellant placed some stress on the fact that an employer's duty to provide a safe system of work may not be delegated. The non-delegability of the duty is well settled: Kondis v. State Transport Authority [2] ; Stevens v. Brodribb Sawmilling Co. Pty. Ltd. [3] . But the notion of non-delegability has very little to do with the case in hand. There was no independent contractor involved; all those who participated in the circumstances surrounding the appellant's accident were employees of the respondent, notwithstanding the position of some as directors. The questions now before the Court are not to be resolved by reference to the non-delegable nature of an employer's duty of care.

1. [1961] A.C. 12. 2. (1984) 154 C.L.R. 672. 3. (1986) 160 C.L.R. 16.

The respondent's obligations were those enunciated by this Court in O'Connor v. Commissioner for Government Transport [4] :

The defendant as employer was of course under a duty, by his servants and agents, to take reasonable care for the safety of the deceased by providing proper and adequate means of carrying out his work without unnecessary risk, by warning him of unusual or unexpected risks, and by instructing him in the performance of his work where instructions might reasonably be thought to be required to secure him from danger of injury. 1. (1954) 100 C.L.R. 225, at p. 229.

In the present case there was a failure to provide proper and adequate means of carrying out the work of replacing the banner. There is a finding of the trial judge, with which there can be no quarrel, that in the actual erection of the ladder and trestle the appellant's role was no less than that of Mr. Berg. But that is no answer to the appellant's claim, though it may go to the issue of contributory negligence. Nor is it a sufficient answer to his claim that he took part in a discussion as to the system to be employed, when it is apparent that the idea of using a ladder and trestle in the back of a vehicle was not his idea but that of another employee, almost certainly Mr. Berg. It must also be remembered that at the time of the accident the appellant was engaged in building a catamaran. It was only his availability and the non-availability of other employees at the time that led to him joining Mr. Berg in going to the home site. And when they got to the site, said Mr. Berg: "I was on one side of the ladder and Glenn was on the other and I guess, that's fate, he walked up before I did."

In those circumstances it cannot be said that any fault on the part of the appellant was "co-extensive" with that of the respondent through its other employees, to use the language of Pearson J. in Ginty v. Belmont Building Supplies Ltd. [5] .

If the appellant's injuries were caused solely by his own fault, he cannot succeed. However if they were caused partly by his own fault and partly by the fault of other employees, the appellant's claim is not defeated but is subject to apportionment: The Law Reform (Tortfeasors Contribution, Contributory Negligence, and Division of Chattels) Act 1952 Q..

In Stapley v. Gypsum Mines Ltd. [6] Lord Reid commented:

To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation it is quite irrelevant in this connection. In a court of law this question must be decided as a properly instructed and reasonable jury would decide it The question must be determined by applying common sense to the facts of each particular case. 1. [1953] A.C. 663, at p. 681.

The cause of the appellant's injuries was the provision of a means of access to the banner which was simply unsafe. That was not solely the fault of the appellant. It was in part his fault in acquiescing in the use of the system and helping to put it into operation. But it was also very much the fault of those who devised the system. The respondent must be held vicariously responsible for the appellant's injuries.

From what has just been said, it is inevitable that there must be an apportionment of responsibility. In determining the degree of apportionment, the prescribed criterion is the appellant's "share in the responsibility for the damage": see s. 10 of the Queensland statute. The question here is one of the degree to which the appellant departed from the standard of conduct expected of someone in his position. He was certainly careless of his own safety but what he did posed no risk to the respondent or to anyone else: see Pennington v. Norris [7] ; Karamalis v. Commissioner of South Australian Railways [8] .

1. (1956) 96 C.L.R. 10, at p. 16. 2. (1977) 15 A.L.R. 629, at p. 635.

The dissenting judge in the Full Court, Kelly S.P.J., said of the appellant's own negligence:

Whilst it would not appear that the appellant was experienced in the climbing of ladders to the height which was required in this case, nevertheless it must be assumed that he possessed ordinary common sense and it should have been apparent to him that it was dangerous to do what he did since, as the learned judge found, the collapse of the trestle/ladder combination was likely once his weight was positioned at a certain height. Kelly S.P.J. considered that a proper apportionment would be to attribute 40 per cent of the responsibility to the appellant and 60 per cent to the respondent. This is an apportionment we would adopt, reflecting as it does the failure of the appellant to take reasonable care for his own safety in a situation which cried out for care, while recognizing that the appellant's own negligence was not a source of danger to the respondent.

The appeal should be allowed, the order of the Full Court set aside and the judgment of the Supreme Court of Queensland dated 3 April 1986 also set aside. The primary judge assessed the appellant's damages in the sum of $279,349.29. The appellant did not seek a retrial on the question of damages nor did the respondent wish to be heard on this aspect of the matter. It follows that there should be judgment for the appellant against the respondent in the sum of $167,609.57, being 60 per cent of the damages assessed. The appellant should have his costs of the proceedings in the Supreme Court, of the appeal to the Full Court and of this appeal.

The facts of this case are recounted by Mason C.J., Toohey and Gaudron JJ. The facts show that the appellant's (plaintiff's) injury was caused by the use of a manifestly dangerous means of reaching the horizontal arm of a flag-pole. A duty to provide a safe system of work is part of an employer's duty of care to his employees, and the appellant was an employee as well as an executive director of the respondent (the company). An employer's duty of care was stated by this Court in Ferraloro v. Preston Timber Pty. Ltd. [9] , in these terms:

The employer's duty, to whomsoever it falls to discharge it, is to take reasonable care to avoid exposing his employee to an unnecessary risk of injury and the employer is bound to have regard to a risk that injury may occur because of some inattention or misjudgment by the employee in performing his allotted task. This formulation followed and expanded the well-known formulation of the duty by Dixon C.J. and Kitto J. in Hamilton v. Nuroof (W.A.) Pty. Ltd. [10] . In this case, the company's duty of care to its employees fell to be discharged by its executive directors of whom the plaintiff was one. Can he recover for breach of the employer's duty? There have been cases in which an injured employee has failed to recover for breach of an employer's statutory duty where the employee was himself responsible for performing the duty. These are cases where the employee was solely responsible for the failure to perform the duty and was therefore "the sole author of his own wrong" as Pearson J. said in Ginty v. Belmont Building Supplies Ltd. [11] . In Ross v. Associated Portland Cement Manufacturers Ltd. [12] , Lord Reid approved the test which Pearson J. stated in these terms in Ginty [13] : In my view, the important and fundamental question in a case like this is not whether there was a delegation, but simply the usual question: Whose fault was it? The question, said Lord Reid, really is: whose conduct caused the accident? That approach avoided the difficulty of [14] : explaining why an employer, put in breach of a statute by the disobedience of his servant, can escape liability to that servant for injuries caused by the breach he can say to the disobedient servant that his [the employer's] conduct in no way caused or contributed to that servant's injuries. But if the employer has failed in some respect to do everything which the employer could reasonably be expected to do to prevent the breach which caused a plaintiff's injury, the employer does not escape liability: Boyle v. Kodak Ltd. [15] . As Herron C.J. said in Shedlezki v. Bronte Bakery Pty. Ltd. [16] , in order that the person under the statutory duty might escape liability, "[i]t must be established that the breach by the plaintiff is the sole Cause and not merely a cause of the accident". The principle was stated by Pearson J. in Ginty [11] : it is not necessarily conclusive for the employer to show that it was a wrongful act of the employee plaintiff which caused the accident. It might also appear from the evidence that something was done or omitted by the employer which caused or contributed to the accident; there may have been a lack of proper supervision or lack of proper instructions; the employer may have employed for this purpose some insufficiently experienced men, or he may in the past have acquiesced in some wrong behaviour on the part of the men. Therefore, if one finds that the immediate and direct cause of the accident was some wrongful act of the man, that is not decisive. One has to inquire whether the fault of the employer under the statutory regulations consists of, and is co-extensive with, the wrongful act of the employee. If there is some fault on the part of the employer which goes beyond or is independent of the wrongful act of the employee, and was a cause of the accident, the employer has some liability. Subject to a qualification presently to be mentioned, the approach to the question of an employer's escape from liability for breach of statutory duty may be applied with equal validity to the question of an employer's escape from liability for breach of a common law duty. The approach accords with principle. When a plaintiff's injury is caused in part by his own careless act or omission and in part by the negligence of another, the plaintiff is entitled to recover against the other, the damages being reduced according to the plaintiff's share in the responsibility for the damage. If the plaintiff's employer is vicariously liable for the damage caused by the other's negligence or has, by reason of an act or omission of the other, failed to discharge the employer's own duty to the plaintiff - and it is unnecessary in this case to examine the difference between the two bases of liability - the plaintiff is entitled to recover against the employer, the damages being reduced according to the plaintiff's share in responsibility for the damage. Thus, in Stapley v. Gypsum Mines Ltd. [18] , the widow of a workman recovered against his employer where the workman's death was caused by the disobedience by the workman and a co-workman of an instruction not to work under the "drummy" roof of a stope before fetching the roof down. Having failed fully to fetch the roof down, the deceased went to work under it. Part of the roof fell and killed him. The employer was held liable because, both miners being at fault, the causative negligence was joint and the employer was liable for the negligence of the deceased's co-workman. 1. (1982) 56 A.L.J.R. 872, at p. 873; 42 A.L.R. 627, at p. 629. 2. (1956) 96 C.L.R. 18, at p. 25. 3. [1959] 1 All E.R. 414, at p. 424. 4. [1964] 1 W.L.R. 768, at p. 777; [1964] 2 All E.R. 452, at p. 455. 5. [1959] 1 All E.R., at pp. 423-424. 6. [1964] 1 W.L.R., at p. 777; [1964] 2 All E.R., at pp. 455-456. 7. [1969] 1 W.L.R. 661, at p. 667; [1969] 2 All E.R. 439, at p. 442. 8. (1967) 69 S.R. (N.S.W.) 202, at p. 209. 9. [1959] 1 All E.R. 414, at p. 424. 10. [1953] A.C. 663.

This is an analogous case. Here the failure of the company to prescribe and enforce a safe system for reaching the horizontal arm of the flag-pole was not solely due to the plaintiff's fault. His injury was caused by his failure and by the failure of other executive directors to prescribe a safe system for reaching the horizontal arm. The function of prescribing the system fell to all the executive directors who were involved in the discussion, and the failure of the executive directors other than the plaintiff to prescribe a safe system is a failure for which the company is responsible. It is immaterial whether the company's liability rests on its vicarious liability for their negligence or on its failure by its agents to discharge the duty of care which it owed to the plaintiff. The failure of the plaintiff and the failure of the other executive directors to prescribe a safe system for reaching the horizontal arm of the flag-pole together caused the plaintiff's injuries. The plaintiff was entitled to damages reduced according to his share in the responsibility for the injury. I would not depart from the apportionment made by Kelly S.P.J. that the plaintiff's damages should be reduced by 40 per cent.

The qualification which may be material to the application of the statutory duty cases to cases of breach of a common law duty of care relates to the defence of volenti: see Imperial Chemical Industries Ltd. v. Shatwell [19] . It is not appropriate to consider that defence in the present case, however, for it was not raised in the courts below and an attempt to raise it on appeal to this Court came too late.

I would therefore allow the appeal, set aside the judgment of the Full Court and in lieu thereof allow the appeal to that Court and give judgment for the plaintiff in an amount being 60 per cent of the damages assessed by the learned trial judge. It may be appropriate to allow interest on that amount up to the date of judgment in this Court: see s. 72 of the Common Law Practice Act 1867 Q. and L. Shaddock & Associates Pty. Ltd. v. Parramatta City Council [No. 2] [20] but that question can await further submissions.

The proposition is to be found in the cases that an employee cannot succeed in an action against his employer for breach of statutory duty where the conduct which is at fault and upon which the action is based is that of the employee notwithstanding that the same conduct puts the employer in breach of his statutory duty. It is said to offend ordinary sensibilities that an employer should be liable to an employee for his own wrongdoing. The application of such a principle is, however, limited to those occasions when the wrongful conduct is that of the employee alone and no fault can otherwise be attributed to the employer. The application of the principle may be seen in cases such as Manwaring v. Billington [21] and Ginty v. Belmont Building Supplies Ltd. [22] where specified working conditions were laid down and the statutory duty to comply with them was imposed upon employer and employee alike. In the former case there was a regulation requiring ladders to be securely fixed and in the latter there was a regulation requiring the use of supporting equipment where work was being done on roofs or ceilings covered with fragile materials. In each case the employee failed to observe the relevant regulation and in each case he failed to recover damages from his employer for his consequent injuries. The conduct of the employee in each case, being in breach of a duty cast upon him - although also in breach of a duty in the same terms cast upon the employer - gave rise to no cause of action against the employer. Had the duty cast upon the employer extended beyond that of the employee or been of an independent kind so that there was fault upon the part of the employer which was not also that of the employee, liability could have been apportioned in accordance with the English statutory scheme providing for apportionment. But the duty of the employee being co-extensive, or co-terminous, with that of the employer there was, it was held, no room for apportionment: see also Shedlezki v. Bronte Bakery Pty. Ltd. [23] .

1. [1952] 2 All E.R. 747. 2. [1959] 1 All E.R. 414. 3. (1970) 72 S.R. (N.S.W.) 378.

The true basis upon which these cases were decided, if it is something more than the unacceptability of any other result, is not easy to discern. In Ginty v. Belmont Building Supplies Ltd. [24] Pearson J. suggested various explanations - that a man should not profit from his own wrong was one and the need to avoid circuity of action was another - but in the end appeared to favour the view that it was a question of causation, i.e., it was a question of whose fault it was.

That was a view which was later adopted in Ross v. Associated Portland Cement Manufacturers Ltd. [25] (see also Boyle v. Kodak Ltd. [26] ) where Lord Reid said [27] that such an approach explained why it was that an employer might escape liability to an injured employee whose injuries were caused by his own conduct in breach of a statutory duty imposed upon him (notwithstanding that the same conduct was also in breach of a duty in the same terms on the part of the employer) and yet be liable to another employee for injuries received by him as a consequence of the same conduct. In the first instance, so it was said, there was no room for vicarious liability because the employee's own conduct was the sole cause of his injuries whereas in the second instance the injuries to the other employee would have been caused by the wrongdoing of the first employee for which the employer was vicariously responsible. There are, it seems to me, certain difficulties in that explanation, for surely in the second instance any action by the other employee would be based, not upon the vicarious liability of the employer for the first employee's breach of statutory duty, but upon the employer's own breach of statutory duty, at all events where the breach was by way of omission.

1. [1964] 1 W.L.R. 768; [1964] 2 All E.R. 452. 2. [1969] 1 W.L.R. 661; [1969] 2 All E.R. 439. 3. [1964] 1 W.L.R., at p. 777; [1964] 2 All E.R., at pp. 455-456.

Rather, it seems to me, the limitation which is imposed upon the liability of the employer in this regard is something which, if not actually a matter of statutory construction, amounts to a restriction of the civil liability for breach of statutory duty which the courts have engrafted upon the statutory obligation. The courts, having created the liability, are able to confine it. It was, I think, a notion such as this which Mason J. had in mind when he said in Buckman (H. C.) & Son Pty. Ltd. v. Flanagan [28] :

The language in which the principle has been expressed, notably that of Lord Reid in Boyle's Case [29] , tends perhaps to suggest that it is a rule invented by the courts as a proposition of the general law superimposed upon statutory provisions which impose a duty and create a cause of action in favour of private individuals. I would not wish to quarrel with these observations so long as it is understood that the formulation of the principle is not unconnected with the construction of the relevant statutory provisions. Were it otherwise I should feel some difficulty in its application in New South Wales in face of s. 2(1) of the Statutory Duties (Contributory Negligence) Act which provides that contributory negligence shall not be a defence to an action for damages for personal injury founded on a breach of a statutory duty imposed on the defendant for the benefit of a class of persons of which the plaintiff was a member (cf. Sherman v. Nymboida Collieries Pty. Ltd. [30] ). Of course, as the latter case cited by Mason J. shows, where an employee's injuries are caused entirely by his own conduct and that conduct does not put the employer in breach of some duty, the problem does not arise. In such a case, ex hypothesi there can be no question of liability on the part of the employer. 1. (1974) 133 C.L.R. 422, at p. 442. 2. [1969] 1 W.L.R., at pp. 665-666; [1969] 2 All E.R., at p. 440. 3. (1963) 109 C.L.R. 580, at p. 591.

All of this only goes to show the inapplicability in this case of the principle applied in Manwaring v. Billington and Ginty v. Belmont Building Supplies Ltd. Here there was no relevant statutory duty. The plaintiff (the appellant) relied upon the breach by his employer, the company, of the common law duty which it owed to him to take reasonable care for his safety by providing adequate equipment and a safe system of work. Even if the above principle can be applied in the absence of any statutory duty which, as can be seen from what I have already said, I doubt, it does not seem to me that the duty of an employer and an employee in such regard can ever be co-extensive or co-terminous. The duty is that of the employer and even if the employee is entrusted with its performance it remains an independent obligation of the employer of a more comprehensive kind to ensure that reasonable care is taken. The personal or non-delegable nature of the duty was recently discussed by Mason J. in Kondis v. State Transport Authority [31] and there is no call for a repetition of the discussion here. It is sufficient to say that in my view it precludes the imposition upon an employee of the same burden as is shouldered by the employer and even if in the failure to take steps to avoid the unnecessary risk of injury the employee is at fault, that fault will arise from the breach of a lesser duty than that of the employer or, perhaps more accurately, a duty of a different kind. Of course, there can be no recovery by an employee who has failed to take reasonable care for his own safety where the employer has discharged his obligation to provide proper equipment and a safe system of work and has taken reasonable steps to ensure that they are used: O'Connor v. Commissioner for Government Transport [32] . That, however, is a different situation.

1. (1984) 154 C.L.R. 672. 2. (1954) 100 C.L.R. 225.

That is sufficient to dispose of any contention based upon the proposition that the plaintiff was the sole cause of his own injuries. The defendant company (the respondent) could not equate its obligation to the plaintiff as its employee with any duty imposed upon him as an employee to take reasonable care for his own safety.

That was not, of course, how the case against the plaintiff was put. It was accepted that the decision to employ the equipment and system used by the plaintiff was made before he embarked upon the work which resulted in his injuries. It was said that it was a decision of the company but one for which the company was not liable because it was made by the plaintiff as a director or employee and the fault, if any, was the fault of the plaintiff himself. In this way it was said that the plaintiff was the cause of his own injuries and so could not recover against the company. One answer to that argument is that the decision to use inadequate equipment and a faulty system of work was, as the majority demonstrate in their reasons, a decision in which the plaintiff played only a minor part. But major or minor, it was a part played, either as a director or an employee, in the control of the activities of the company and the acts or omissions which resulted from the implementation of the decision taken were the acts or omissions of the company. The failure to take reasonable steps to provide adequate equipment and a safe system of work was the failure of the company and it matters not that the plaintiff was instrumental in the making of the decision which led to that failure, for the company was a legal entity distinct from its directors and employees. Any duty owed by the directors or employees of the company to see that the company went about its affairs in accordance with its legal obligations was not a duty owed to themselves or other employees of the company but a duty owed to the company itself. It was a duty of a managerial kind which arose out of their position or employment and was different from the duty owed by the company to its employees. It is for these reasons that it was the fault of the company and not of the plaintiff which was the cause of the plaintiff's injuries, notwithstanding that the plaintiff may have played some part in the decision which gave rise to that fault.

Nor in the circumstances am I able to say that the plaintiff was guilty of contributory negligence. The risk of injury to the plaintiff arose from the nature of the equipment provided by the company and the system devised by it. Once it is accepted, as it must be, that it was the company's duty to take reasonable steps to avoid unnecessary risk of injury to the plaintiff, then it must also be accepted that the steps which it took to that end were inadequate and it was that inadequacy which resulted in injury to the plaintiff. That fault was the fault of the company and not of the plaintiff. To reach any other conclusion would be to disregard the existence of the company as a distinct legal entity. What the plaintiff did was to use the equipment provided by the company and to carry out its system. That cannot amount to contributory negligence even if the manner in which the plaintiff was to carry out his task was manifestly dangerous: Davies v. Adelaide Chemical and Fertilizer Co. Ltd. [33] ; General Cleaning Contractors Ltd. v. Christmas [34] .

I would allow the appeal and award to the plaintiff the damages assessed without reduction for contributory negligence.