Duty of Care and Breach
23 The duty of care owed by an employer to an employee was described by the High Court in Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 838 in the following terms:
"An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in the workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work" (at [12], citations omitted).
24 Whether there was, in the words of this passage, a "real risk of an injury" needs to be considered in the present case in light of the provisions of s 5B(1) of the Civil Liability Act 2002 which is in the following terms:
"(1) A person is not negligent in failing to take precautions against a risk of harm unless:
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b) the risk was not insignificant , and
(c) in the circumstances, a reasonable person in the person's position would have taken those precautions." (emphasis added)
25 The decision of this Court in State of New South Wales v Ball [2007] NSWCA 71; 69 NSWLR 463 dealt with the applicability of the Civil Liability Act in a negligence action brought by a detective chief inspector of police against his employer. In that case the Court noted the concession of the police officer that the application of the Civil Liability Act to the proceedings was not excluded by s 3B(1)(f) of that Act. That sub-section provides that the Act does not apply to "civil liability relating to an award to which Division 3 of Part 5 of the Workers Compensation Act 1987 applies …". It was conceded that the police officer in that case did not fall within the definition of a worker under the Workers' Compensation Act, as it is only police officers who joined the New South Wales Police Service after 1 April 1988 who fall within that definition and he joined the Service before that date. The position is the same in relation to the present proceedings as the appellant joined the New South Wales Police Service prior to 1 April 1988.
26 In accordance with Wyong Shire Council v Shirt [1980] HCA 12; (1979-80) 146 CLR 40, it is necessary in deciding whether there has been a breach of a duty of care to first ask "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" (at 48).
27 In the context of the liability of employers to their employees, it is necessary to bear in mind that the standard of care is "not a low one" (308) (Bankstown Foundry Pty Limited v Braistina [1986] HCA 20; (1986) 160 CLR 301 at 308) and that 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" (Bus v Sydney County Council [1989] HCA 29; (1989) 167 CLR 78 at 90 quoting McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306 at 311-12).
28 Leaving aside for the present the particular circumstances that gave rise to the injury in question in these proceedings, my view is that the risk of the appellant (or one of the other senior members of the police force at the Wollongong Police Station) undertaking by himself the removal from one place to another of a heavy desk and thereby injuring himself was not one which met "the not insignificant" risk test.
29 Important in this context is the fact that the appellant was in a senior supervisory position having some 27 detectives under his control. It was not part of ordinary policing duties for desks or other furniture to be moved around the work premises although no doubt there was always, as there would in any workplace, be the possibility that that would occur. It could not in my view be concluded that the appellant's employer should have reasonably foreseen a not insignificant risk of the appellant (or other member of the police force of his seniority) taking upon himself, particularly without assistance from any others, the performance of the relatively menial task of moving an obviously heavy desk. The presence at the police station of a large number of detectives (quite apart from other ranks) would have emphasised the unlikelihood of the appellant doing this. It seems only to have been a fit of anger which led the appellant to do what he did.
30 Even if (contrary to my view) a reasonable person in the employer's position would have assessed the risk as a "not insignificant" one, the reasonable person would not in my view have taken any steps to attempt to reduce or eliminate that risk. That is, the reasonable person would at least have assessed the probability of occurrence as "very low" (see RTA (NSW) v Dederer [2007] HCA 42; (2007) 81 ALJR 1773 at [61)] and would not have taken any action "by way of response to the risk" (Wyong Shire Council Ibid at 47; New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486 at [57-8, 125]).
31 As pointed out earlier, the conduct in question was not of a type peculiarly related to policing duties. On the contrary, being the moving of furniture, it was a commonplace activity likely to be encountered, just as frequently, if not more frequently, in the course of ordinary domestic life than in the workplace.
32 It would be a large step to take to find as a general proposition that employers have an obligation to warn or take other precautions in relation to everyday activities in which employees might incidentally engage in the course of their employment, being activities which if not performed with care might lead to injury. Should employers reasonably be expected to warn employees not to cut themselves when using knives in the staff kitchen? Or not to scald themselves when pouring water which they have boiled for their tea or coffee? Or to be careful when ascending or descending steps? Or not to bump into furniture? Cf Phillis v Daly (1988) 15 NSWLR 65 at 74B-C; Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 at 177 [24].
33 A reasonable employer would ordinarily regard it as quite unnecessary to give warnings or take other steps in relation to these commonplace activities. The movement of furniture, when it forms no part of the employee's regular duties or activities to perform it, in my view falls into the same category.
34 This approach derives support from the decision, relied upon by the primary judge, in Smith v Broken Hill Proprietary Co Ltd [1957] HCA 34; (1957) 97 CLR 337.
35 In affirming the dismissal of the worker's claim in that case against his employer, Taylor J (whose approach to the case was concurred in by three other members of the Court) said that the task there assigned to the plaintiff and his co-worker:
"… did not involve any real risk of injury even if carried out with some reasonably foreseeable degree of inadvertence or thoughtlessness; the accident occurred because of the quite extraordinary and unnecessary method in which the two employees proceeded to carry out a perfectly simple task" (at 344).
36 To similar effect is the statement of the Court in O'Connor v Commissioner for Government Transport (1958) 100 CLR 225 that:
"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 230).
37 In Electric Power Transmission Pty Limited v Cuilui [1961] HCA 3; (1961) 104 CLR 177, the plaintiff was required to cut up pieces of timber for use in a fuel stove. He suffered injury when using a tomahawk to perform the task. Kitto J (with whom three other members of the Court agreed) said that:
"When I am asked to hold that a jury may reasonably think it negligent of an employer not to give a grown man instructions in looking after himself while cutting pieces of bush timber with a tomahawk, I feel obliged to decline on the ground of common sense to do so" (at 180-1); see also Glass, McHugh and Douglas, Liability of Employers , 2nd ed (1979) Law Book Co at 44-5.
38 It was said by three members of the Court in the Bankstown Foundry Case ibid at 309 that "what is considered to be reasonable in the circumstances of the case must be influenced by current community standards. In so far as legislative requirements touching industrial safety have become more demanding upon employers, this must have its impact on community expectations of the reasonably prudent employer".
39 Whilst it is possible to discern a trend since cases such as Smith, O'Connor and Electric Power were decided towards a more stringent standard applicable to employers and whilst statutory changes such as the enactment of the Occupational Health and Safety Act 2000 have occurred, the applicable tests continue to require a focus on how a reasonable person would assess the risk of injury to the plaintiff (or a class to which the plaintiff belongs) and would respond to any risk so identified. Notwithstanding these changes, I consider that the reasonable employer's position in 2003, when the accident occurred, would have been as I have described earlier. In particular, I do not consider that Regulations 80 and 81 of the Occupational Health and Safety Regulation 2001 assist the appellant in the manner for which he contended. The appellant submitted that they here required a risk assessment to be undertaken and that that did not occur. Although there was no claim for breach of statutory duty, breach of the Regulations was contended to be evidence of negligence on the part of the employer. I do not agree that a risk assessment was required, as the source of such a requirement would have had to be found, if at all, in Regulations 9 and 10. These Regulations however only come into play if an employer, taking reasonable care, identifies a "foreseeable hazard". For reasons already given, I do not consider that such a hazard existed in the present case.
40 It is necessary then to turn to the particular circumstances of this case to see whether the events which occurred would have affected the reasonable employer's assessment or response.
41 It is important in this regard that the effect of her Honour's findings was that the appellant's superior Mr Trott had had no reason to expect, or indeed suspect, that the appellant would himself be engaged in moving furniture and in particular be so engaged without the assistance of any of the 27 subordinate detectives who were to use the room. The conversation which the appellant says that he had with Mr Trott pointed in the opposite direction. The appellant led Mr Trott to believe (no doubt consistently with the appellant's own belief) that the work would be done whilst the appellant was on annual leave. The appellant said nothing to suggest that, acting alone or at all, he would move furniture such as the desk out of the room in question if that had not occurred whilst he was on leave, and such could not have reasonably been anticipated by Mr Trott. In these circumstances, I do not consider that there is anything in the particular circumstances of this case to necessitate a warning being given or other precautions being taken.
42 For the reasons above, I consider that her Honour was correct to give judgment for the defendant.
43 In light of this conclusion, various other issues the subject of the appellant's appeal do not arise. I however set out my views on those issues as follows: