Principles on Liability
64Mr Gazis was, on 19 May 2006, an employee of MPS. As a consequence, MPS owed a duty of care to Mr Gazis of a kind owed by an employer to its employees.
65Further, as an employee, Mr Gazis was under the direction of MPS. MPS directed Mr Gazis to work for Sermacs, the first defendant in these proceedings.
66In turn, and by direction of MPS, Mr Gazis was directed to work at the Club and fulfil the duties assigned to him. Those duties included, as earlier recited, to work in accordance with a daily security clearance standard operating procedures and the directions of the Club House Manager.
67In other words, the direction of his employer, together with the directions of the sub-contractor to the Club on behalf of whom Mr Gazis was providing services to the Club, was to obey the directions (presumably lawful and reasonable) and be subject to the directions of the Club House Manager and the Club.
68As an employee, Mr Gazis had no capacity not to follow the reasonable and lawful directions of his employer and, by virtue of the directions given by his employer, of the reasonable and lawful directions of the Club.
69Nevertheless, Mr Gazis was not an employee of either the first defendant or the second defendant.
70I have accepted the evidence of Mr Gazis. That evidence includes the proposition that Mr Gazis moved the trolleys from time to time. Such an occurrence would have been known (and I infer was known) to employees of the Club. It was not known to Mr Muir, the manager called to give evidence. Yet it would have been known (and I infer was known) to employees who worked in the soft room. No such employee was called. The Club has the knowledge of its employees.
71I do not draw an inference under the rubric of Jones v Dunkel (1959) 101 CLR 298. Such an inference is unnecessary. I accept the evidence of Mr Gazis that he moved the trolleys on a regular basis.
72Moreover, I accept that, for all intents and purposes, Mr Gazis formed part of the workforce at the Club and was bound to obey the lawful and reasonable directions of the Club's management hierarchy. He was so bound by the terms of the contract between the Club and the first defendant, the terms of the contract (such as it was) between the first defendant and MPS, and the directions given to Mr Gazis by his employer and those authorised by his employer to give him directions.
73On Mr Gazis' evidence, and as must be expected given the nature of his work, Mr Gazis was required to use his own initiative regarding the scope of his duties. If Mr Gazis were to have been directed not to move any trolley, I accept, as has been submitted, that he would have obeyed that direction. Such is the necessary conclusion given the evidence of Mr Kalls as to Mr Gazis' disposition to comply with directions.
74Mr Gazis understood that his duties were to guard the first floor and assist the employees of the second defendant in moving the trolleys.
75The Club, for its part, had a specific safe work procedure to be adopted when moving trolleys. That document, on the evidence before the Court, was never provided to Mr Gazis. Nor was it provided to MPS or Sermacs. The evidence was, from Mr Gazis, that he moved trolleys on a daily basis.
76Given the evidence that Mr Gazis moved trolleys on a daily basis and that this was seen by employees of the Club, the issues necessarily arise relating to what, if any, risk factors are associated with the movement of a trolley.
77Most of those risk factors are self-evident. Nevertheless, they are identified by Mr Dubos in his report and include the size of the trolley; the potential for its wheels to lock; the fact that it was used on carpet and debris could build up in the wheels; and it required more than one person to move it in order to prevent the risk of injury.
78The duty owed by MPS is that of an employer. This is a well-recognised relationship importing a duty of care to employees. That duty is non-delegable and is a duty to take reasonable care to ensure the safety of the employee.
79An employer is liable for damages arising from an injury occurring in the course of the employee's employment. The proceedings currently before the Court involve an allegation of negligence and, as a consequence, involve an assessment of the duty of care and causation as those terms are determined under the common law.
80This occurs as part of the "hodge-podge" that is the statutory regime that governs the determination of damages to workers for industrial accidents, as described by the Court of Appeal in State of New South Wales v Ball [2007] NSWCA 71; (2007) 69 NSWLR 463 (per Ipp JA, with whom McColl JA and Young CJ in Eq agreed), citing, with approval, the comments of Ipp JA (with whom Hodgson and Santow JJA agreed) in Landon v Ferguson [2005] NSWCA 395; (2005) 64 NSWLR 131.
81The application of common law principles arises because of the exclusion from the application of the Civil Liability Act 2002 of liability relating to an award to which Division 3 of Part 5 of the Workers Compensation Act 1987 applies: see s 3B(1)(f) of the Civil Liability Act. The liability of the employer, MPS, is uncontroversial in these proceedings.
82The more controversial aspect of liability in these proceedings is the determination of the liability of the Club in negligence. The liability of an employer, at common law, requires no more than that the employer take reasonable care for the safety of the employee.
83It is unnecessary to restate established principle, but that which amounts to reasonable care for the safety of the employee involves the consideration of a matrix involving the magnitude of the risk, the degree of the probability of the occurrence of that risk and the expense, difficulty and inconvenience of ameliorating the risk against other inconsistent responsibilities or conflicting responsibilities which the employer may be obliged to accept: Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48, per Mason J. The Court is required to determine whether, in the circumstances of this particular situation, the employer failed to take precautions which an employer, acting reasonably, ought be expected to take.
84More controversial, in the context of these proceedings, is the duty of care, if any, relevant to the Club. As earlier stated, the Club was the owner and occupier of the premises in which the accident occurred. It was the Club which placed the trolley in the area patrolled by Mr Gazis. Further, it was the Club's system of work that involved the placement of these trolleys in the area on a regular (i.e. more than once a day) basis. The Club's employees, I infer, were aware that Mr Gazis assisted them in moving the trolley on a daily basis. That is the evidence of Mr Gazis.
85The liability of the Club is governed by the provisions of the Civil Liability Act. It is, therefore, necessary to assess liability on the basis of the general principles prescribed by ss 5B, 5C and 5D of the Civil Liability Act.
86Before determining those issues, it is necessary to determine whether the relationship between the plaintiff and the second defendant is one in which a duty of care arises. As earlier stated, the plaintiff was on the premises of the second defendant, the Club, for the benefit of the Club and was providing services on its behalf or for its benefit. The duty of care owed by the Club was part of the well-known and accepted duties of care, being a duty of care arising from the relationship of occupier, in circumstances where Mr Gazis was lawfully present on the premises and carrying out duties which, at least in part if not wholly, were under the control, organisation and direction of the Club.
87The submissions of Mr Gazis have referred the Court to Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16, amongst others and in particular to the statement by Brennan J in Stevens v Brodribb at 47, in which his Honour said:
"The duty to use reasonable care in organizing an activity does not import a duty to avoid any risk of injury; it imports a duty to use reasonable care to avoid unnecessary risks of injury and to minimize other risks of injury."
88While the circumstances at the Club were different in detail to that described by Mason J (as his Honour then was) in Stevens v Brodribb, the principle expressed by Brennan J remains the same.
89However, there is a difficulty in the application of the principles in Stevens v Brodribb in the manner suggested by the plaintiff. The High Court in Stevens v Brodribb was dealing with a submission that the principal owed a duty of care to an independent contractor of the kind ordinarily associated with the duty of care owed by an employer.
90Leaving aside for present proposes that part of the judgment of the High Court that dealt with the appropriate test for the existence of a contract of employment, the High Court determined that, in certain circumstances, an entrepreneur (here referred to as the principal in the position of the Club) may owe a duty of care, being the duty to use reasonable care to ensure that a system of work for one or more independent contractors is safe. The duty, or the standard of care involved in the duty, is different.
91The passage in the judgment of Mason J in Stevens v Brodribb, upon which the plaintiff relies in its submissions, does not take the standard of care in this case to the level suggested by the plaintiff. The submission ignores the quintessential nature of the proposition that the individual workers, with whom the High Court was concerned in Stevens v Brodribb, were required to work together in teams in an "intricate process of extracting timber" in which "they had little choice but to rely on the care and skill of [the principal] in the arrangements which it made for the disposition of the work and the care and skill of the persons engaged by [the principal] in the execution of the work".
92The passage, at 30-31 in the judgment of Mason J, depends on the "interdependence of the activities" and the need for coordination. In Stevens v Brodribb the duty and standard of care to which Mason J referred can best be summarised in the following statement of his Honour, at 31:
"If an entrepreneur engages independent contractors to do work which might as readily be done by employees in circumstances where there is a risk to them of injury arising from the nature of the work and where there is a need for him to give directions as to when and where the work is to be done and to co-ordinate the various activities, he has an obligation to prescribe a safe system of work. The fact that they are not employees, or that he does not retain a right to control them in the manner in which they carry out their work, should not affect the existence of an obligation to prescribe a safe system."
93The duty of care to which Mason J was referring was the duty of care associated with the requirement to carry out work in the coordinated and intricate manner described by the High Court.
94In the reasons for judgment of Brennan J in Stevens v Brodribb, his Honour said, at 47:
"An entrepreneur who organizes an activity involving a risk of injury to those engaged in it is under a duty to use reasonable care in organizing the activity to avoid or minimize that risk, and that duty is imposed whether or not the entrepreneur is under a further duty of care to servants employed by him to carry out that activity. The entrepreneur's duty arises simply because he is creating the risk (Sutherland Shire Council v Heyman (1985) 59 ALJR 564 at 587) and his duty is more limited than the duty owed by an employer to an employee. The duty to use reasonable care in organizing an activity does not import a duty to avoid any risk of injury; it imports a duty to use reasonable care to avoid unnecessary risks of injury and to minimize other risks of injury. It does not import a duty to retain control of working systems if it is reasonable to engage the services of independent contractors who are competent themselves to control their system of work without supervision by the entrepreneur."
95The passage from the reasons for judgment of Brennan J in Stevens v Brodribb was cited with approval by the Full Court in Leighton Contractors v Fox Pty Ltd at [20]. The significant aspect reconciling the passage in the reasons for judgment of Mason J and the passage in the reasons for judgment of Brennan J is that each refers to the distinction between an ordinary contractor (or employee thereof) and a worker engaged intricately in the organisation of work of the principal in a similar way to which an employee would be, where the work "might as readily be done by employees". In the latter class, there may arise a duty and a standard of care in like fashion to that applying to employees. That is not the situation in the proceedings currently before the Court.
96The law (Security Industry Act 1997) requires that armed guards performing security work be licensed and be employed by an entity licensed with a master security licence (either itself or through one of its management personnel). Unless the Club were prepared to obtain a master security licence, it could never legally employ an armed security guard. In the current situation, the Club could not engage Mr Gazis "as an employee" nor was Mr Gazis' work that "which might as readily be done by employees".
97The duty of care to which Mason J refers, and the standard of care to which he alludes, is not the basis for any liability reposed in the Club. There is nothing unreasonable about sub-contracting the work of a security guard: Leighton Contractors Pty Ltd v Fox at [62].
98Rather, the basis of liability and the duty of care is, as earlier stated, dependent upon the relationship of occupier and invitee. This is a well-known and generally accepted relationship imposing a duty of care. Indeed, the relationship of occupier and invitee was one of the relationships to which Mason J referred in Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672, at 686, as a non-delegable duty. However, the issue in these proceedings is not whether there is a duty, but the standard of care and whether it has been breached.
99In Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234, the High Court (Gleeson CJ, McHugh, Kirby, Hayne and Heydon JJ) described a situation not dissimilar to the one currently before the Court in these proceedings. The High Court said:
"[24] The status of the respondent as occupier of the land on which the appellant was injured was one aspect of the relationship that gave rise to a duty of care. It gave the respondent a measure of control that is regarded by the law as important in identifying the existence and nature of a duty of care. There was, however, more to the relationship than that, and, as was agreed on both sides, the problem was not one that concerned only the physical condition of the respondent's premises. There was a time when the common law sought to define with precision the duty of care owed by an occupier of land, and treated the content of the duty as variable according to categories fixed by reference to the status of entrants. The common law has since rejected the approach of seeking to construct a series of special duties by reference to different categories of entrant. The problems involved in the former approach included the rigidity of the classification of entrants, and the artificiality of distinguishing between the static condition of premises and activities conducted on the premises. That is not to say, however, that the law now disregards any aspect of the relationship between the parties other than that of occupier and entrant. On the contrary, other aspects of the relationship may be important, as considerations relevant to a judgment about what reasonableness requires of a defendant, a judgment usually made in the context of deciding breach of duty (negligence).
[25] Even in the days when the content of an occupier's duty of care was defined by reference to fixed categories, within those categories the requirements of reasonableness were affected by a variety of considerations. Mason J, in Papatonakis v Australian Telecommunications Commission, said:
The content of the occupier's duty to exercise reasonable care for the safety of an invitee must, of course, vary with the circumstances including the degree of knowledge or skill which may reasonably be expected of the invitee and the purpose for which the invitee enters upon the premises.
[26] The purpose for which, and the circumstances in which, the appellant was on the respondent's land, constituted a significant aspect of the relationship between them...
[27] Even so, the respondent established and maintained a system, and its obligation to exercise reasonable care for the safety of people who came onto its premises extended to exercising reasonable care that its system did not expose people who made deliveries to unreasonable risk of physical injury. A number of aspects of the facilities and procedures for the delivery of goods into the respondent's store might have involved issues of health and safety. Many, perhaps most, of the people who made the actual deliveries were outside the respondent's organisation, and were not subject to the direct control it exerted over its employees. Even so, they were regular visitors to the premises, for a mutual commercial purpose, and it was reasonable to require the respondent to have them in contemplation as people who might be put at risk by the respondent's choice of facilities and procedures for delivery.
...
[38] There was no sufficient reason for the Court of Appeal to set aside the primary judge's finding of negligence. The question was whether the respondent had a proper delivery system in place. Such a system should have included arrangements for moving the waste bins left in the laneway by the Council workers in order to clear access to the loading dock. The appellant, and the other delivery drivers, had no responsibility to design, and no power to implement, the delivery system operating on the respondent's premises. That power and responsibility belonged to the respondent alone. The respondent, in truth, had no system for that particular purpose. In practice, the respondent's employees either moved the bins themselves or left it to the delivery drivers to move the bins for them, according to the convenience of the respondent's employees and any other demands upon their time and attention. In the circumstances that prevailed, the respondent knew that, frequently, delivery drivers would move the bins. The respondent knew that not all drivers were capable of doing that without risk of injury. The reasoning of McMurdo J set out above is persuasive. The primary judge's finding of negligence should have been upheld."
100In this instance similar circumstances arise. Mr Gazis was not simply an invitee (to the extent such a category is still relevant) on the land occupied by the Club. He was there for the mutual commercial benefit of the Club and his employer. He was there for the express requirement to work in accordance with the directions of the Club (or its Club House Manager). It was the Club, as earlier stated, that placed this trolley in Mr Gazis' work location. The Club failed to provide a direction to Mr Gazis not to move, or assist with the moving, of the trolleys, despite being aware that the trolleys were moved from the lift across the first floor when being transported to the soft room and that, by virtue of Mr Gazis's location and his duty to assist employees to gain access to the first floor via the lift, he was likely to assist employees transporting the trolleys. The Club knew that Mr Gazis assisted other employees and moved trolleys on a regular (daily) basis. The Club knew the risk to persons moving the trolleys where there was no training in the manner in which they should be moved, because of the weight of the trolley and the capacity of the wheels of the trolley to lock. The Club, in allowing Mr Gazis to move trolleys regularly, was effectively implementing a system of work that imposed a risk on workers in that area.
101While the Club does not have a duty to take all necessary steps to ensure the safety of Mr Gazis, it does have a duty to take reasonable steps to prevent a person in Mr Gazis' position not being,, because of the Club's work practices and the person's role while working at the Club, subject to a foreseeable risk of harm.
102The work practices of the Club, bearing in mind the Club's knowledge that Mr Gazis moved the trolleys on occasion or could have moved the trolleys on occasion by virtue of his location in the Club premises, presented Mr Gasiz with a foreseeable risk of harm that the Club was required to ameliorate. That is, the risk that a person unfamiliar with the proper manner in which to move a trolley would be injured by attempting to move the trolley was foreseeable. Such a risk was known or ought to have been known and, in relation to employees, was dealt with by the Club. The risk was not insignificant. Consequently, the incident that occurred on 19 May 2006 was reasonably foreseeable, if not expected.
103It was therefore necessary for the Club to provide a system by which the trolleys could be moved safely. That system should have included a direction to those persons, whether employees or contractors, or the employees of a contractor, who are involved in working where the trolleys are situated and who, it may be expected or foreseen, would move the trolleys or may need to move the trolleys. That direction to any such contractor, or employee of any such contractor, should have been that only other employees should move a trolley. Such a course of conduct involved no additional expenditure and, at least on one view of the evidence of Mr Muir, accorded with the desires of the Club.
104Further, the precautions were inexpensive (or without cost), easy to effect and a reasonable person in the position of the Club would have taken the precautions of either directing Mr Gazis not to move or attempt to move a trolley or informing him of the proper manner in which such trolleys could be moved. It is clear that the Club took steps in relation to the moving of such trolleys in relation to its employees and it considered that, without appropriate training or directions, harm was a probable result of a person attempting to move a trolley. Such harm is likely to be serious.
105I therefore find, in accordance with s 5B of the Civil Liability Act, that the Club was negligent in failing to take precautions against the foreseeable risk of harm that was likely to arise from placing the trolley in an area where a person was working, whom it knew, or ought to have known, would move the trolley, without providing such person with the requisite training or safety induction, or failing to provide a direction not to handle the trolleys where the person had not undergone such training or induction.
106Having dealt with the provisions of s 5B of the Civil Liability Act, it is necessary to deal with the principles embodied in s 5D of the Civil Liability Act, which concern causation. Causation requires factual causation, namely, that the negligence was a necessary condition of the occurrence of the damage and an assessment that it is appropriate for the Club to have the liability in relation to such damage.
107I have already commented that Mr Gazis would have obeyed a direction, if one were given, not to handle the trolleys and would, on the basis of his employment history, handled a trolley in accordance with directions given, were such steps to have been taken.
108As to the scope of liability, earlier I noted the liability of an occupier in negligence. This is a further example of such liability. Moreover, it was the Club, and only the Club, that had control over both the conduct of Mr Gazis and the location of the trolley, as well as the method by which the movement of such trolleys could be the subject of training and/or direction.
109Even though the first defendant had the capacity to supervise in that it had the ability to provide a supervisor, at least from time to time, to supervise the work being done at the Club, such supervision would have been wholly ineffective to allow the first defendant to foresee or ameliorate the risk in relation to trolleys, unless, coincidentally, the supervision were to occur at a time when the trolley was located in the area supervised by Mr Gazis. As I have already noted, the circumstances with which the Club was required to deal were not dissimilar to the circumstances with which the High Court was dealing in Thompson v Woolworths (Qld) Pty Ltd.
110Further, the Club, being the only person capable of implementing reasonable care for the movement of the trolleys safely in the area, owed a duty to Mr Gazis to exercise reasonable care by ensuring that the system of work adopted by it was safe for the security guard and, in particular, either to provide training to the security guard in the proper moving of trolleys or to direct that the security guard not move the trolley and allow only personnel that had been trained by the Club so to do: Stevens v Brodribb; Leighton Contractors Pty Ltd v Fox; Calliden Insurance Ltd v Fox [2009] HCA 35; (2009) 240 CLR 1. Such training and/or directions were given to employees, but not to this employee of a contractor or subcontractor.
111Moreover, documents existed directing contractors not to perform work that was not assigned to them, but such documents were never, on the evidence before the Court, given to the first defendant or to MPS or to Mr Gazis.
112In this instance, it matters not whether, on the one hand, the location of the trolley, in the expectation that an employee such as Mr Gazis would move it or attempt to move it, was a risk of harm that was foreseeable, not insignificant and against which a reasonable person would have taken those precautions, or, on the other hand, whether the conduct of the Club was a breach of the duty of care in not warning (or directing) Mr Gazis not to move the trolley. The risk of injury, to a person in the category of Mr Gazis, was not so obvious that it would obviate a duty in the Club to warn Mr Gazis of the risk of moving the trolley, either by directing him not to move it or training him as to the proper method of moving it: see s 5H of the Civil Liability Act; Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9; (2002) 208 CLR 460 at [45]; Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422.
113In this instance, Mr Gazis had moved the trolleys daily on previous occasions. Whether by luck or otherwise, on the other occasions, the wheels were not locked. On this occasion the wheels were locked.
114Mr Gazis was unaware of the risk involved in moving the trolley as it had been moved by him on previous occasions. The risk associated with the moving of the trolley without first ensuring that the wheels were not locked into position is not a matter of which Mr Gazis would have been aware or ought to have been aware, in those circumstances.