Plaintiff v Defendant

Plaintiff v Defendant - [2010] VSC 381 - VSC 2010 case summary — Zoe

[168]

The duties to be performed may depend so much on special skill or knowledge or they may be so clearly identified or the necessity of the employee acting on his own responsibility may be so evident, that little room for direction or command in detail may exist. But that is not the point. What matters is lawful authority to command so far as there is scope for it. And there must always be some room for it, if only in incidental or collateral matters. Even if Mr. Phillip Wirth could not interfere in the actual technique of the acrobatics and in the character of the act, no reason appears why the appellant should not be subject to his directions in all other respects.

Assuming that the terms of the engagement fixed the character of the act and that from its very nature an acrobatic performance must be executed upon the unhampered responsibility of the performers, that does not remove the relationship from the category of master and servant. There are countless examples of highly specialized functions in modern life that must as a matter of practical necessity and sometimes even as a matter of law be performed on the responsibility of persons who possess particular knowledge and skill and who are accordingly qualified. But those engaged to perform the functions may nevertheless work under a contract of service. In the present case what has been proved in evidence all points to the conclusion that the relation between the parties was that of master and servant. If the power of selecting the person engaged must exist in the master in order that the contract may be one of service, that element was certainly present. If the fact that the remuneration takes the form of wages is a mark of the relationship, that was the case here. If a right in the master to suspend or dismiss for misconduct is something to be looked for, then again there could be little doubt that the appellant was subject to that discipline. If a right to superintend and control the manner in which the servant fulfils his obligation must exist in some degree, a little consideration will show that the daily relations of a performer playing a regular part in the work of such an organization as a travelling circus would demand a large measure of control and superintendence. With reference to the act itself there are many subsidiary matters. The place it took upon the programme, the measures of safety to be observed, the number, time and manner of the rehearsals, the costume of the performers, the place where they dressed and their conduct both before the audience and otherwise, these are all matters naturally calling for control. The grand parade doubtless involved no inherent difficulty but one may suppose that it was necessary to exercise control and direction as to the manner in which it was done. Apart from the two central duties of performing the act and taking part in the grand parade, the incidents of the relation between a regular performer and a touring circus must cover a wide field of conduct calling for superintendence and control.[104]

[203]

A risk of injury which is quite unlikely to occur, such as that which happened in Bolton v. Stone,[147] may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being "foreseeable" we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable.

In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.

The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.

[216]

There are several points which need to be made about this course of reasoning. Although running across the road was a means of doing the work which the appellant and other employees chose or preferred, it was nevertheless a system of work of which, as the primary judge found and the Full Court did not deny, Brambles was aware or ought to have been aware. And it was fraught with some degree of risk of injury to employees in some circumstances, especially when an employee was crossing Albany Creek Road when it was dark, as the appellant was doing on this occasion. The fact that the traffic was very light no doubt lessened the risk of injury, though it may have induced an employee to take less care for his own safety. However, there is simply no basis for saying that the risk of injury was fanciful (see Wyong Shire Council v. Shirt)[161] or for brushing it aside because it was insignificant. It was a foreseeable and significant risk inherent in the way in which the garbage was collected in Albany Creek Road arising from the possibility of negligence on the part of motorists and negligence or inadvertence on the part of an employee.

In such a situation it is not an acceptable answer to assert that an employer has no control over an employee's negligence or inadvertence. The standard of care expected of the reasonable man requires him to take account of the possibility of inadvertent and negligent conduct on the part of others. This was acknowledged even in the days when contributory negligence was a common law defence (Wheare v. Clarke;[162] Henwood v. Municipal Tramways Trust (S.A.))[163]. The employer is not exempt from the application of this standard vis-a-vis his employees, whether his obligation to provide a safe system of work is one which is expressed as a requirement of ensuring that the system is as safe as reasonable care can make it or is expressed as one which requires him to take reasonable care in providing such a system. The employer's obligation in this respect cannot be restricted to the provision of a system which safeguards the employee from all foreseeable risks of injury except those which arise from his own inadvertence or negligence. There are many employment situations in which the risk of injury to the employee is negligible so long as the employee executes his work without inadvertence and takes reasonable care for his own safety. In these situations the possibility that the employee will act inadvertently or without taking reasonable care may give rise to a foreseeable risk of injury. In accordance with well settled principle the employer is bound to take care to avoid such a risk.[164]

[248]

The issue of contributory negligence presents a little more difficulty, as the primary judge acknowledged. However, we are inclined to think that the difference between the approach adopted by the Full Court and that adopted by the primary judge largely reflected the difference in attitude to Brambles' responsibility in providing a safe system of work. The issue of contributory negligence has now to be approached on the footing that Brambles failed to discharge its obligation to provide a safe system, that is, to take appropriate precautions against the risk of injury arising from the motorist's negligence and the employee's failure to observe an oncoming vehicle as he carried out his allotted task. The question is whether that failure should be characterized as mere inattention or inadvertence or whether it amounts to negligence, there being a well recognized distinction between the two. It is accepted that in considering whether there was contributory negligence by an employee in a case in which the employer has failed to provide a safe system of work, the circumstances and conditions in which he had to do his work must be taken into account. And the issue of contributory negligence is essentially a question of fact.

As Windeyer J. observed in Sungravure (at p.37), when an employee in a factory sustains injury, the jury in considering contributory negligence may have regard to "inattention bred of familiarity and repetition, the urgency of the task, the man's preoccupation with the matter in hand, and other prevailing conditions". It is then for the tribunal of fact to determine whether any of these things caused some temporary inadvertence, some inattention or some taking of a risk, "excusable in the circumstances because not incompatible with the conduct of a prudent and reasonable man". His Honour went on to reject the suggestion that the approach applicable in the case of injury sustained in a factory was inapplicable to activities elsewhere, specifically referring to activities upon a highway.

In concluding that the appellant's conduct amounted to mere inadvertence, inattention or misjudgement, the following factors have impressed us as being significant: (a) the prevailing condition of poor light unquestionably diminished his ability to pick out the vehicle and locate its speed and position accurately; (b) performance of his task necessarily involved preoccupation with the matter in hand; (c) at the relevant time he was carrying on his right shoulder a humper whose capacity ranged between four and eight household garbage deposits; (d) the carrying of this humper on his right shoulder when running across the road would very considerably restrict his capacity to observe an oncoming vehicle and assess its speed accurately; and (e) in order to retain his employment as a garbage collector he was expected to run across the road and keep up with the truck as it moved forward. In these circumstances the primary judge was correct in concluding that the appellant was not guilty of contributory negligence.

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