O'Connor v Commissioner for Government Transport

The manner in which the question of liability was left to the jury will be gathered sufficiently from the following passages from the summing up of Brereton J., who presided: "The first question I said you have to ask yourselves was this - Was the defendant employed on the roof? You see, if he was not required by his employer to go on the roof that is an end of the matter and there would be a verdict for the defendant. If a reasonably prudent employer had foreseen that an employee acting in a normal manner would go on the roof then he would be in the same position as if he were actually required to go there, because the employer's duty of care extends not only to the places in which it is vitally necessary for the man to go, but to places into which a reasonably prudent employer would expect a normal acting employee to go. The second question, if you come to the conclusion that he would be expected to be likely to go on to the roof, is this - did the employer fail to exercise towards him, in allowing him to go on the roof, and in relation to this particular defect in the roof only, such care as a reasonably prudent employer would show to a man of his skill and experience?" The jury found a verdict for the plaintiff for £4,000, but the Full Court (Street C.J., Owen and Herron JJ.) set it aside on the ground that there was no evidence that the defendant by his servants or agent had been guilty of negligence.

But the party was provided with trestles and plank and nothing was wanting in tools or equipment. The deceased was experienced in his work. It was obvious that a question must exist whether the awning would bear his weight. The party sent down was as "expert" or competent to judge of that simple subject as anybody that could reasonably be sent. Doubtless Blyton, who told the deceased to go, thought that he would work on the roof, but it was left to the deceased and the rest of the party to do the job as they thought fit. Blyton was only the leading plumber and when he sent the deceased as the next man he was not directing him how he must perform the work. It simply meant that it was what he himself would do, and without further thought he spoke accordingly. In such a simple matter who else should be left to judge? Does the reasonable care demanded of the employer require him to cause a scientific or other elaborate examination to be made of the strength of the structure lest the working plumber may decide to trust himself to it rather than work from a plank or trestles? If, as the jury may be taken to have found, the dry rot was the cause of the awning failing under the deceased's weight, the presence of the dry rot was as easily ascertained by the deceased as by anybody however skilled. The standard of care for an employee's safety is not a low one, but in a case such as this the question must be whether any suggested course that was omitted could really be regarded as reasonable. The case is not one of a defect in premises provided by the employer as the place where the employee is to do his work. The awning was the very thing to be worked at. There were the means at hand of doing the work required without mounting the structure. It was an ordinary question for a plumber to decide for himself how he would do the work. Obviously any experienced plumber would see that there must be a question whether a structure like the awning supported not by posts but by brackets was strong enough to bear his weight as he dismantled it. It was not made for that purpose and neither the deceased nor any of his companions can be supposed to have thought that it had been specially tested to see if it was strong enough. It seems fanciful to treat the question as one to be gone into and decided by some superior officer, as distinguished from the workmen on the spot, and still more fanciful to suppose that a warning or special instruction was demanded about so simple and obvious a matter requiring neither special skill or knowledge to decide and ordinarily treated as a matter for the man doing the job.

At a glance

Court

Decision date

Before

Source

Judgment (8 paragraphs)

Parties

Cited By (15)