State of New South Wales v Williamson

Brodie v Singleton Shire Council (2001) 206 CLR 512 Commissioner of Police v Estate of Russell (2002) 55 NSWLR 232 Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 Jarratt v Commissioner of Police (NSW) (2002) 56 NSWLR 72 Jarratt v Commissioner of Police (NSW) [2005] HCA 50 CASES CITED: Kondis v State Transport Authority (1984) 154 CLR 672 Konrad v Victoria (1999) 91 FCR 95 McLean v Tedman (1984) 155 CLR 306 Police Service of New South Wales v Honeysett (2001) 53 NSWLR 592 Pyrenees Shire Council v Day (1998) 192 CLR 330 Wyong Shire Council v Shirt (1980) 146 CLR 40

State of New South Wales (Appellant) PARTIES: Daniel Jon Williamson (Respondent)

M. Neil QC/G. Giagios (Appellant) COUNSEL: M. Bozic SC/R. Ingram (Respondent)

I V Knight, Crown Solicitor (Appellant) SOLICITORS: Taylor and Scott (Respondent)

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41182/04

SANTOW JA BASTEN JA SIMPSON J

13 October 2005 STATE OF NEW SOUTH WALES v DANIEL JON WILLIAMSON The respondent, a police officer, tripped on a pothole in the driveway of the police station where he worked. The driveway was in an atrocious condition and there had been similar accidents in recent times.

The appellant, the State of New South Wales, argued that, when budgetary constraints and the fact that the State was in the process of addressing the problem of the driveway were taken into account, it did not breach its duty of care. Further, the State argued that the reasonableness of the expenditure of public moneys in the interests of safety was not a matter which could properly be determined by the Court.

The State also argued that the policeman was guilty of contributory negligence on the basis that the pothole was an obvious danger known to the policeman.

Held by Basten JA (Santow JA and Simpson J agreeing):

1. There was no statutory provision, or principle of the general law, which required the trial judge to apply the test identified in Wyong Shire Council v Shirt in any different manner because the defendant employer was the State of New South Wales: at [14]. Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 distinguished.

Brodie v Singleton Shire Council (2001) 206 CLR 512 referred to.

2. Reasonable steps could have been taken which would have obviated the risk of the injury which the plaintiff suffered. Budgetary constraints did not preclude these steps being taken and funds had actually been allocated for that task. The evidence established that the budgetary estimate would have covered temporary repairs and further funds would have been forthcoming if a safety issue had been identified as it should have been: at [31].

3. The combination of the rain and poor lighting and the fact that the police officer was responding to a call requiring him to leave the station constituted circumstances such that it was not established that the policeman failed to take reasonable care for his own safety: at [36] - [38]. McLean v Tedman (1984) 155 CLR 306 applied.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41182/04

SANTOW JA BASTEN JA SIMPSON J

13 October 2005 STATE OF NEW SOUTH WALES v DANIEL JON WILLIAMSON Judgment 1 SANTOW JA: I agree with Basten JA. 2 BASTEN JA: On 14 August 1999 Daniel Jon Williamson was a senior sergeant of police stationed at St Marys, in western Sydney. On the evening in question, Mr Williamson (referred to below as "the Plaintiff") left through the front door of the police station and approached a police vehicle, which he intended to take to an incident. The driveway outside the entrance to the station was poorly lit, it was raining and dark. Whilst walking around the back of the vehicle, which was parked with its nose to the wall, the Plaintiff stepped in a pothole and fell, twisting his ankle and knee. In 2001 he commenced proceedings in the District Court seeking damages for the injuries he had suffered in the fall. 3 The District Court upheld his claim in negligence against the State of New South Wales ("the State") and assessed damages in an amount exceeding $750,000, being the limit of the Court's jurisdiction. Judgment was entered for that amount. There has been no challenge to the assessment of damages. 4 The issues raised in this Court concern the finding of liability by the trial judge. Specific aspects of the challenges made by the State will be addressed below, but broadly speaking, the issues raised may be summarised as follows:

(1) the inability of the Plaintiff to establish with precision the place at which he fell should have precluded a finding by the trial judge that specific temporary repairs should have been undertaken by the State prior to the incident;

(2) the evidence that relevant officers of the State were aware of the poor condition of the car park and driveway at St Marys police station and had already put in train steps to undertake repairs, demonstrated that the State had taken reasonable steps required of it as an employer and it was not open to the trial judge to determine that greater expenditure or priority should have been allocated to the task, and (3) the fact that the pothole was an obvious danger should at least have resulted in a finding of contributory negligence on the part of the Plaintiff in the order of 25%. 5 The primary thrust of the State's argument was directed to the proposition that, whilst acknowledging its duty of care to employees, including police officers, the reasonableness of the expenditure of public moneys in the interests of safety was not a matter which could properly be determined by the Court. It is convenient to deal first with the matter of principle raised by this submission, which was encapsulated in ground 6 in the notice of appeal.

Duty of State as employer 6 The formulation of the principles sought to be relied on lacked precision. The trial judge noted an argument put in similar terms before his Honour: "The second and more difficult concept for defence is that the premises and their admittedly undesirable state involved the defendant … allocating scarce resources to its repair and further, that the defendant was actually in the process of doing something about it when the plaintiff unfortunately sustained his injury. So it is said that … the Court should not intrude into the area of the appropriate allocation of budgetary resources, nor should the Court, as it were, gainsay the speed with which the work was being done."

This proposition was repeated in written submissions for the State on appeal, with the addition of the following proposition: "Although the appellant is in a relationship with the respondent in the nature of employer and employee, the appellant is at the same time a public authority and as such, is entitled to rely on evidence of matters going to funding constraints, competing priorities and the procedures for approval of the expenditure of public funds; Brodie v Singleton Shire Council (2001) 206 CLR 512 at 560."

The State also sought to derive support from principles stated by the High Court in Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1. 7 A principled approach to this question requires identification of the cause of action relied on by the Plaintiff and the particular circumstances of the State. The cause of action was founded on negligence, under the general law of tort, in circumstances where the relationship between the parties, as conceded by the submissions set out above on the part of the State, were "in the nature of employer and employee". If it were necessary to deal with the qualified nature of that concession, attention would need to given to the terms of the Police Service Act 1990 (NSW), as in force at the date of the accident. As noted by Priestley JA in Police Service of New South Wales v Honeysett (2001) 53 NSWLR 592 at [22] and [30]: "The Police Service Act in my opinion shows a use of the idea of employment in its ordinary sense running in parallel with a recognition of the continuing office of constable as an office that can be exercised simultaneously with an employment relationship existing between the police service and a police officer. … The Police Service Act shows that in many ways the conditions of service of police officers have been substantially assimilated to those of ordinary employees… ."

These passages were referred to with approval by Spigelman CJ in Commissioner of Police v Estate of Russell (2002) 55 NSWLR 232 at [83]-[85], his Honour also referring to the similar conclusion reached by the Full Court of the Federal Court in Konrad v Victoria (1999) 91 FCR 95. This line of authority is consistent with the approach taken by Simpson J in Jarratt v Commissioner of Police (NSW) (2002) 56 NSWLR 72, the correctness of which was upheld by the High Court in Jarratt v Commissioner of Police (NSW) [2005] HCA 50. It was not, however, suggested in the present proceedings that anything turned on the precise nature of the employment relationship. 8 The State of New South Wales was sued pursuant to s 5(1) of the Crown Proceedings Act 1988 (NSW). According to s 5(2): 5(2) Civil proceedings against the Crown shall be commenced in the same way, and the proceedings and rights of the parties in the case shall as nearly as possible be the same, and judgment and costs shall follow or may be awarded on either side, and shall bear interest, as in an ordinary case between subject and subject.

In assessing what steps should reasonably have been taken to avoid risk of injury, where the employer is the State rather than a "subject", the State must demonstrate some characteristic or quality which would allow departure from the norm on the basis that exact equivalence in approach is not "possible". This would seem to be the statutory context in which reliance was placed upon Brodie and Crimmins . 9 The relevance of Crimmins in this context is limited. It is true that Mr Crimmins sued the defendant for damages due to the inhalation of asbestos fibres during his employment in stevedoring operations, which resulted in him contracting mesothelioma. However, the liability of the defendant was not that of an employer (because it did not employ Mr Crimmins) but that of a statutory authority which had power to control conditions on the waterfront where Mr Crimmins worked. The issues in that case were whether the defendant was in such a relationship as to establish that it owed Mr Crimmins a duty of care under the general law and, if that were established, whether the imposition of such a duty was inconsistent with the statutory scheme under which it operated. Neither of those questions arises in the present case. 10 As noted by the joint judgment of Gaudron, McHugh and Gummow JJ in Brodie, a line of authority (including Crimmins) had established that "the powers vested by statute in a public authority may give it such a significant and special measure of control over the safety of person or property of citizens as to impose upon the authority a duty of care": at [102]. The question for the Court in Brodie was whether the so-called "highway rule" excused the Shire Council from responsibility for injury suffered on a highway caused, not by any negligence in the construction of the highway, but by a failure adequately to maintain and repair the highway. At [104] the joint judgment stated: "To postulate that, without the 'highway rule' and with the principles of negligence, statutory authorities will be subjected to fresh, indeterminate financial hazards which the common law will ignore should not be accepted. … Secondly, financial considerations and budgetary imperatives may fall for consideration with other matters when determining what should have been done to discharge a duty of care."

The latter consideration was explained by reference to a passage in the judgment of Gummow J in Pyrenees Shire Council v Day (1998) 192 CLR 330 at [183]-[184] which was in turn sourced to the balancing approach identified by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48. The particular passage in Shirt stated: "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."

Shirt itself involved the liability of a shire council for injuries suffered by a water skier on Tuggerah Lakes, being an area to which the public had access. 11 A further argument rejected in Brodie may be noted in this context. Thus, at [106], the joint judgment stated: "Appeals also were made to preserve the 'political choice' in matters involving shifts in 'resource allocation'. However, citizens, corporations, governments and public authorities generally are obliged to order their affairs so as to meet the requirements of the rule of law in Australian civil society. Thus, it is no answer to a claim in tort against the Commonwealth … that its wrongful acts or omissions were the product of a 'policy decision' taken by the executive government … . Local authorities are in no preferred position." 12 In the present case it was not in doubt that evidence of financial considerations and budgetary imperatives could properly be adduced: as will be explained below, such evidence was available, tendered, admitted and relied upon by both parties. 13 The present case does not involve a statutory authority, acting under particular legislation. In the present case, no reliance was placed by the State on any legislative scheme which might affect the assessment of the duty of care under the general law. It was noted in the course of argument that the Occupational Health and Safety Act 1983 (NSW) (then in force) imposed a statutory duty on every employer to ensure the health, safety and welfare at work of all the employers employees (s 15(1)), a provision which bound the Crown as well as private employers: see s 6. 14 The proper conclusion is that there was no statutory provision, or principle of the general law, which required the trial judge to apply the test identified in Wyong Shire Council v Shirt in any different manner because the defendant employer was the State of New South Wales.

Reasonable steps to rectify danger 15 It is convenient to deal together with the various grounds of appeal directed to his Honour's conclusion that the State had failed to take reasonable steps to avoid exposing the Plaintiff to a foreseeable risk of harm. The passage said to reveal error in this respect was in the following terms: "Included in the plaintiff's evidence … is a quotation for what would have been temporary repairs to the driveway, and the figure which appears … is a figure of less than $3,000 to carry out some temporary work that would obviate the risk of injury to members of the public and the police service. In my opinion, having regard to the history of injury, including the injury to the plaintiff, it was unreasonable, indeed it was incumbent upon the defendant to expend such money, at least, in the rectification of what was a foreseeable risk of injury." 16 The complaint made of this passage was that it fixed on a figure for the cost of repairing some 25-30 square metres of the driveway. This figure, it was submitted, should not have been relied upon for two reasons. The first concerned the imprecision of the Plaintiff's evidence in establishing the pothole into which he stepped. The second complaint was that it was irrational to focus on one particular area of the driveway when both police officers and public had access to the whole of the driveway and indeed to an adjoining car parking area, all of which was severely potholed. These complaints will be addressed in turn. 17 The first complaint was based on an assessment of the Plaintiff's evidence. Broadly speaking, the entrance to the police station may be described as on the west side of a driveway between two public streets in St Marys. The entrance and reception area led off a courtyard. Near the entrance was a recessed area of the driveway. There were rubbish bins along the wall of that recessed area, but the recess was sufficient to allow police vehicles to park there, at least if parked at an angle, without blocking the driveway. It was in that area that the vehicle intended to be used by the Plaintiff was parked on the night in question. The nature of the area is no longer apparent, the surface of the driveway and the car park having been sealed since the accident to the Plaintiff. Accordingly, the evidence at trial depended significantly on a number of photographs of the area taken before the repair works were completed, together with a hand drawn plan. The plan, as tendered in the Plaintiff's case, contained handwritten numbers indicating the position shown on certain photographs, together with a cross marking the spot where the Plaintiff said he had fallen. 18 The cross appears to indicate a spot a metre or so beyond the edge of the walkway outside the police station entrance. The evidence of the Plaintiff was that, in order to get to the driver's side door of the car he had to step off the walkway onto the driveway and proceed around the rear of the car. According to that description, the pothole which caused the injury was near to the rear corner of the car, on the driver's side. Although on the night in question the parked car would have prevented the Plaintiff walking directly from the position marked by the cross to the position where he now located the pothole, it would appear to be a distance of some 3 or 4 metres, at a diagonal to the walkway. 19 The first ground of appeal referred to the Plaintiff's "inability to identify with precision the particular pothole" at which he fell. This factual premise was explained to the Court on the basis of counsel's cross-examination of the Plaintiff. That his evidence changed as to the position of the pothole identified may be accepted, but is not to the point. Towards the end of the relevant passage of cross-examination, the following exchange occurred: "Neil [Counsel for the State]: I have so far, your Honour, been painstakingly fair to the witness, could I ask in fairness that overnight that part of the transcript might be checked from the transcript service to see whether there could be any error? His Honour: I think it is correct. Cranitch [Counsel for the plaintiff]: I am not challenging it, your Honour. Neil: Thank you. Q: So you can't tell the Court what you meant there by saying you went around the offside, from behind the offside? A: No, I can't. I went to the offside from behind the rear of the car. His Honour: I don't have any difficulty with it, Mr Neil. Cranitch: Neither do I. His Honour: I think you are the only one."

If an awkwardness of expression in one passage gave rise to some potential for confusion, it was clarified. The course taken by the Plaintiff on the night in question, over a few metres, was tolerably clear. Where he fell was tolerably clear. There appeared to be a pothole identifiable in the photographs which coincided with the area where he fell. 20 In any event, the purpose of this factual excursus was to establish that one could not be sure that the quotation for work of a temporary nature, covering 25-30 square metres, would have covered the relevant pothole. There are three answers to this ground of appeal. First, the factual premise as to the failure to identify the particular pothole, is not made out. Secondly, the area of the proposed temporary repair work was not shown to be significantly smaller than the area which included that across which the Plaintiff walked to get to his car. Thirdly, the trial judge did not limit his finding to such work as could be done for less than $3,000: rather, he suggested that "at least" that work should have been done. No doubt it may be inferred that he thought this would have been sufficient to remove the relevant danger: that inference is not shown to be wrong. 21 The second proposition on which the State relied was that it was simply not sensible to require a small area to be resurfaced on a temporary basis. Joined with that proposition was the argument that, acting entirely reasonably, officers of the State had determined that the whole driveway and car park should be permanently sealed, a course which was being undertaken with reasonable expedition. 22 There are a number of tensions within the position pursued by the State, which need to be identified. Before doing that, it is convenient to note that the Plaintiff filed a notice of contention seeking to have the judgment below affirmed on a ground other than that relied upon by his Honour, namely that the State was negligent "in that it failed to expedite the repair of the whole driveway". The validity of that contention depends upon the manner in which the Plaintiff pleaded his claim and the evidence presented at trial. So far as the pleading was concerned, it included a particular that the defendant failed "properly or adequately [to] repair the potholed driveway". As will appear below, this pleading was supported by evidence, so that the contention is available, if the relevant findings of fact can be made. 23 A significant strength in the Plaintiff's case (albeit one which the State sought to turn to its advantage in a manner to be discussed) was the fact that there had been a history of injuries and accidents at St Marys police station. It appears that the Plaintiff's accident was the fifth significant incident in less than two years, each involving people slipping or falling in potholes. The more serious incidents were identified in the judgment below. However, in preparing a report for the manager, Occupational Health and Safety Section, in early July 1999, the local area manager stated: "Senior Constable Auld was injured whilst walking down the driveway of the St Marys police station. This injury is one of five minor injuries sustained by staff members under similar circumstances at the St Marys police station within the last six months. The condition of the driveway has been deteriorating for some time."

The incident involving Ms Auld occurred on 12 June 1999. 24 On 16 July 1999 Mr Sam Martino, from the Management Services Section of the Police Service, sent a facsimile to Mr Heinrich, an officer with the Department of Public Works and Services, referring to a discussion "on site" on 9 July 1999 and stating: "Project staging priorities have now changed due to OH&S issues in relation to the atrocious condition of the existing bitumen driveway, etc. The new priorities are as follows:- Stage 3 - new male/female locker room facilities and associated alterations. Stage 4 - bitumen roadwork. Stage 5 - customer service upgrade. The resurfacing of the bitumen driveway and sealing of exposed ground (stage 4) is to commence as soon as possible. To avoid any delays between the different stages and to enable construction to proceed continuously, tender documentation/ revision, calling of tenders, tender assessment/ recommendations and all necessary approvals need to be implemented as a matter of urgency."

This material, which was produced a month before the Plaintiff's accident, demonstrated, according to the State, that it had identified the extent, nature and seriousness of the situation and was acting with all reasonable expedition. The incidents, it was noted, were by no means limited to the driveway, let alone the area immediately outside the entrance to the police station. One significant incident, which resulted in a lengthy memorandum, involved a police officer, Mr Dickinson, on 25 May 1999. Constable Dickinson jarred an ankle when he stepped in a pothole in the car park. The report noted: "The incident happened after dark and I believe has two separate causes, the first is the state of the car park area at St Marys. The holes and loose surface have raised some concerns as to potential for injuries to members of the service or of the general public. The second is the lack of lighting." 25 The extent of the problem may readily be conceded, although it does not follow that immediate temporary repairs should not have been undertaken on a piecemeal basis. If the latter course had been undertaken, it would have been entirely reasonable, as the trial judge suggested, to start with the area in which the Plaintiff injured himself, which was immediately outside the entrance to the police station and was likely to be an area where vehicles needed for urgent calls were to be parked. It was also the area most likely to be used by members of the public. 26 Nevertheless, the difficulty with the State's position is not only its assertion that it was reasonable to undertake comprehensive and permanent repairs to the exclusion of temporary repairs, but the speed with which it had responded to a known problem. The first two incidents recounted by the trial judge occurred in October and November 1997 respectively. Each involved persons stepping in potholes on the driveway. The colour photographs before the trial judge, which demonstrate a serious state of disrepair in the driveway and other areas, were apparently taken on 26 May 1998. The Plaintiff gave evidence that the state of the driveway was worse at the time of his accident. In any event, it is not necessary merely to infer that relevant officers were aware of a serious risk of injury in May 1998: a report by Mr Martino dated 16 December 1998 recorded that there was an approved project "on the 1998/99 Minor Capital Works Program" in relation to accommodation at St Marys police station. Whilst the memorandum noted that funds had been reduced from $250,000 to $140,000 in the 1998/99 financial year, it was also noted that the balance would be available in the following financial year. Under the heading "Current Position" Mr Martino noted that stage 1, involving the conversion of part of an existing holding yard to provide parking for police vehicles was underway and would shortly be completed. Stage 2 involved the relocation of two demountable buildings to St Marys, with completion programmed for mid-March 1999. The remainder of the memorandum stated: "Stage 3: consists of alterations to the existing police station to rationalise existing accommodation, upgrade the Customer Service area, provision of additional lighting to car park/holding yard and the repair of the existing bitumen driveway. Construction is programmed to commence mid-March, 1999. Department of Public Works and Services have been engaged to administer the project works, which are programmed to be completed in July, 1999."

No action was required, the recommendation being that the Police Executive and the Minister be informed of the current status of the project. Notations at the foot of the memorandum suggested that this occurred. 27 Mr Martino was cross-examined in relation to his understanding of the project and the steps which might have been available to deal with the risks more expeditiously. The following questions were put to him and answers given: "Q. So I take it that at any stage, had anyone raised with you that there was an issue regarding occupational health and safety, for example, back in 1998, when you first looked at this project, you would have fast-tracked that in order to achieve a safer working environment; is that correct? A. Correct. … Q. … If there was a quick fix available which could have made the driveway safe in the short term, that's something you would have engaged upon had it been made known to you that there was an occupational health and safety issue? A: Yes, or it could have been, as I said before, at the local level. … Q. And you would anticipate that if there was such an issue concerning either public safety or occupational health and safety, that it would be likely you would be given the funds for that quick fix pending the final solution; is that not the case? A. Yes."

There was further evidence to similar effect; Mr Martino was not re-examined. 28 Ms Rickard, a senior administrative officer with the Police Service, who had prepared the memorandum in relation to the injury to Senior Constable Auld, also gave evidence. She confirmed that in August 1999 she had budgetary authority to authorise expenditure of up to $5,000 as occasion arose. She attended site meetings in 1999 with Mr Martino and Mr Heinrich, and was asked: "Q. In particular, after the injury to Senior Constable Auld, what, if anything, did you do at those site meetings? A. We tried to emphasise that there was a safety risk and that the work should be fast tracked to eliminate the possibility of further injuries." 29 The State sought to make some mileage from the fact that a budget estimate, which apparently accompanied Mr Martino's report December 1998 included an item to replace the bitumen driveway at a cost of $24,000. That was not done in March 1999, as Mr Martino had anticipated, nor had it commenced on 16 July 1999 when Mr Martino described the condition of the driveway as "atrocious". By the time tenders were provided to Mr Martino on 24 August 1999, the cost estimate was $48,240, but the lowest tender was $66,635. Further tenders were obtained on 2 September 1999 and a tender in the amount of $58,900 was accepted. 30 The inferences that can be drawn from this material are as follows: (a) that the state of the driveway gave rise to a foreseeable risk of injury was probably apparent in 1997 (when two incidents were registered) and certainly by May 1998, when the photographs were taken.

(b) if an occupational health and safety issue had been identified, funds would have been made available for temporary repairs;

(c) sealing the whole of the area was undertaken in late 1999 for a cost of $58,900;

(d) the contractor offered to commence that work within six weeks of the submission of its tender;

(e) a temporary "quick fix" solution would have been undertaken if an occupational health and safety issue had been identified; and

(f) the cost of temporary repairs of the whole driveway was not demonstrated in the evidence, but were probably of the order of the amount allowed in the 1998/99 allocation. 31 The inescapable inference from this material is that reasonable steps could have been taken which would have obviated the risk of the injury which the Plaintiff suffered. Budgetary constraints did not preclude these steps being taken and, as Mr Martino's report of December 1998 demonstrates, funds had actually been allocated for that task. To the suggestion that the budgetary estimate was inadequate there are two responses. First, it seems likely that the budgetary estimate would have covered temporary repairs. Secondly, Mr Martino's evidence demonstrates that further funds would have been forthcoming if a safety issue had been identified, as it clearly should have been no later than mid-1998. 32 It follows that the complaints made in grounds 1-5 of the notice of appeal should be rejected. In any event, the Plaintiff's contention should be accepted, which would sufficiently support the conclusion reached in the Court below, on an alternative basis to these grounds. 33 Ground 7 asserted that his Honour had erred in law in finding that the State "was under a duty to eliminate the risk of injury to users of the driveway". The passage in the judgment in which this language appeared commenced with the following statement: "I turn now to deal with the question of whether the plaintiff himself should bear responsibility for his injuries, because of the obvious risk created by the potholes in the driveway."

In answering that question, his Honour distinguished the cases involving local authorities, and referred to the remarks of Hayne J in Crimmins (supra) at [276] and [277] to the following effect: "[276] The common law imposes a duty on the employer because the employer is in a position to direct another to go in harm's way and to do so in circumstances over which that employer can exercise control. The duty is, of course, not absolute; it is the duty 'of a reasonably prudent employer and it is a duty to take reasonable care to avoid exposing the employees to unnecessary risks of injury'. [277] Both the power to direct and the power to control are important. As was said by Mason J in Kondis v State Transport Authority (1984) 154 CLR 672 at 687-688: 'The employer has the exclusive responsibility for the safety of the appliances, the premises and the system of work to which he subjects his employee and the employee has no choice but to accept and rely on the employer's provision and judgment in relation to these matters. The consequence is that in these relevant respects the employees safety is in the hands of the employer; it is his responsibility. The employee can reasonably expect therefore that reasonable care and skill will be taken.'" 34 The words of the trial judge complained of in the present case, taken out of context, may suggest an absolute obligation was being imposed. However, it is indisputably clear from other passages in the judgment that his Honour well understood and applied the principle that what was required of the employer was to take reasonable steps. The comparison being made in the passage complained of was a comparison between the respective positions of the employer and the employee in relation to an obvious risk, which it was within the power and control of the employer to remove. No error is demonstrated on the part of the trial judge in this regard. 35 Ground 8 in the notice of appeal asserted that his Honour erred in finding that the pothole was not an obvious danger: to the contrary, his Honour held that it was and the ground was abandoned in the written submissions.

Contributory negligence 36 The final ground concerned the absence of a finding of contributory negligence. The facts relied on in this respect were that the existence of such potholes was well known to the Plaintiff, who had been at the station for at least two years; the pothole itself should have been obvious to the Plaintiff had he been taking reasonable care for his own safety and, if observed was readily avoidable. 37 The trial judge rejected these submissions on two main bases. The first was that in the circumstances when the accident occurred, the existence of the pothole and its depth would not have been obvious. His Honour held: "The evidence was that it was raining, that the combination of the rain and the poor lighting was such as to cause reflection of the lights on the rainwater so as to, as it were, conceal the unevenness of the ground."

Secondly, his Honour noted that the Plaintiff, being a police officer responding to an call requiring him to leave the station to drive to the place of the incident, could not be expected to focus on the uneven ground which he had to cover to reach his vehicle. 38 His Honour referred to the principle enunciated in McLean v Tedman (1984) 155 CLR 306 at 315 in the joint judgment to the following effect: "The issue of contributory negligence has now to be approached on the footing that [the employer] 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 on-coming vehicle as he carried out his allotted task. The question is whether that failure should be characterised as mere inattention or inadvertence or whether it amounts to negligence, there being a well-recognised 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."

Their Honours continued noting that: "… 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'."

On the well-known facts of that case, the High Court found no error on the part of the primary judge in holding that a garbage collector running across the road in order to keep up with the truck, had not been guilty of contributory negligence. A similar conclusion reached by the trial judge on the facts of the present case, demonstrated no error.

Conclusions 39 The appeal by the State of New South Wales should be dismissed with costs. 40 SIMPSON J: I agree with Basten JA **********

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