THOMAS - v - SYDNEY TRAINING & EMPLOYMENT LIMITED & ANOR

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

18 October, 2002 020471/99 Scott Andrew THOMAS by his tutor Edward John THOMAS (Plaintiff) -v- Sydney Training & Employment Ltd (First defendant) Infocus Design Pty Ltd (Second defendant)

AMP Workers Compensation Services (NSW) Ltd (First Cross Defendant)

GIO Australia Limited (Second Cross Defendant)

Sydney Training & Employment Ltd (Third Cross Defendant)

Sydney Training & Employment Ltd (Second Cross Claimant)

Infocus Design Pty Ltd (Second Cross Defendant to Second Cross Claim)

The Parties 1 In this case, the plaintiff by his tutor seeks to recover damages from the two defendants to compensate him for the consequences of very serious injuries including brain damage sustained when a Datsun 1200 utility he was driving left Carlingford Road, mounted the footpath and collided with an electric power pole and then with a brick fence at about 5:15 to 5:25 on the morning of 16 October, 1997. 2 At the time, the plaintiff was a second year apprentice shop fitter indentured to Sydney Training and Employment Ltd (STE). His services were hired out on an hourly basis to Infocus Design Pty Ltd (Infocus). The precise nature of the relationships between the plaintiff and each of these two companies will be covered later. 3 The plaintiff alleges that he was required by the second defendant to work excessively long hours whereby he was so affected by fatigue that he fell asleep at the wheel and lost control of his vehicle. There are other particulars of negligence alleged which will be dealt with later.

The Plaintiff's Motor Accident 4 It is now necessary to look at the circumstances of the accident to determine its probable cause(s). 5 The evidence relating to this is primarily in exhibit B which is the Police brief of statements taken. 6 The plaintiff was driving his Datsun 1200 utility along Carlingford Road towards Pennant Hills Road, up a hill. At the same time, Mr Edmund Chan was travelling in the opposite direction. He saw the plaintiff's utility travelling up the hill towards Pennant Hills Road. There were no other vehicles in view other than these two. He described the plaintiff's vehicle as travelling in a straight line in the gutter lane, not swerving about. He could not estimate his speed but it did not appear to him to be travelling very quickly. He then goes on to say: "For no apparent reason I saw the white utility gently drive up into a driveway, travelling along the footpath. After travelling about 2 houses along, I saw the front of the utility, maybe more to the right hand side of the vehicle, that is, the driver's side, collide heavily with a telegraph pole. Immediately afterwards dust went into the air, the pole snapped. Next the utility swung once around in a clockwise spin, hitting a brick wall of a house, in the front yard of a house. It all happened in one velocity, that is, he never stopped, slowed down or sped up. He just remained travelling at the very same speed. 7 He said that, at the time of the accident, it was daylight. 8 A passenger in Mr Chan's car, Joseph Younan, made a statement in which he gave a somewhat different description. The main points of difference are underlined:- "From up on the hill in front of us, I could see a little utility, white in colour, travelling towards us in the left lane, that is, the lane closest to the gutter as well. There were no other cars around it, just me and Eddie in Ed's car and the other guy in the Ute. I cannot correctly estimate the speed of the oncoming Ute, but it appeared to me to be in excess of 70 kms per hour, perhaps even greater than 80 kms. When all of a sudden I saw the other car, that is, the Ute, swerve on to a driveway on my right hand side and travel along the footpath for about one and a half house blocks, maybe two. Just prior to swerving into the driveway, there was no sound of braking. Whilst on the footpath, I saw the Ute swerve from side to side . Next I saw the front of the Ute hit a telegraph pole on the footpath, immediately afterwards, the Ute spun around clockwise, staying on the actual grass footpath and I saw the front hit a front brick wall of a house." 9 Detective Senior Constable Gough of the Engineering Investigation Section of the NSW Police Service, examined the plaintiff's vehicle and saw considerable damage resulting from the accident but found no mechanical defect or failure which in his opinion may have contributed to the cause of the collision. 10 Senior Constable Sullivan of the Crash Investigation Unit examined the scene later and saw on the southern curb alignment of Carlingford Road, outside number 223, fresh tyre scuffing. The turf and earth had been freshly disturbed from that point up to where he saw the utility at rest. The power pole had been severely splintered in the centre requiring immediate replacement. The weather was fine. A sketch plan of the scene and the scuff marks show that once the plaintiff's vehicle climbed on to the nature strip, it continued with a gradual veering towards its left, although virtually in a straight line until it struck the power pole.

Why did the Plaintiff's Vehicle leave the Roadway? 11 The next question to determine is why did the plaintiff's vehicle leave the roadway? The answer to this question involves consideration of what happened over the preceding eight to ten days and especially of the events over the period of some two to three hours immediately beforehand. 12 The business of Infocus included setting up stands at exhibitions. This is work which has to be done to a deadline within the limited period between the time that access to the exhibition site is given to it and the commencement of the exhibition. The setting up of stands for the Motor Show started on about 10 October, 1997 (Ms Karam T 184). The exhibition was due to open to the press at about 8:30 on the morning of 16 October. A lot had to be done in a short time which resulted in long hours being worked by all persons engaged by Infocus each day during that period. 13 The plaintiff prepared weekly time sheets countersigned by his supervisor showing the starting and finishing times and the meal break times. The working week started on a Wednesday and ended the following Tuesday. 14 These time sheets show the following hours worked by the plaintiff. Tues - 7 October 7.00 am - 8.30 pm - Half hr lunch break Wed - 8 October 7.00 am - 5.00 pm - Half hr lunch break Thurs-9 October 7.00 am - 7.00 pm - Half hr meal break Fri -10 October 7.00 am - 11.00 pm - 1 hr meal break Sat - 11 October 8.30 am - 10 00 pm - 1 hr meal break Sun - 12 October 7.00 am - 11.00 pm - 1 hr meal break Mon - 13 October 8.00 am - 10.00 pm - 1 hr meal break Tues - 14 October 7.30 am - midnight - 1 hr meal break 15 The accident prevented the plaintiff from filling in the time sheets for the day of the accident. But the records show that on Wednesday, 15 October, 1997, he started at 7.30 am and finished at 3.00 am on 16 October with 1 hour for meal breaks. 16 The plaintiff's practice was to drive his vehicle from his home at Baulkham Hills to Infocus' factory at Lane Cove - a journey of about forty to forty- five minutes. Generally he would be driven from Lane Cove to the Exhibition Centre at Darling Harbour in the company's vehicle - a journey of about twenty minutes. 17 He finished work at midnight on 14 October and was back at the Lane Cove factory at 7:30 a.m. on 15 October. Thus, after allowing for the times of the journey and for a shower and breakfast, he could have had no more than about five hours sleep between these times. 18 These finishing and starting times were known to Infocus. 19 The plaintiff has little or no recollection of the events of 15/16 October. He did however take photographs with his camera of the finished stand which are date stamped 16 October. Assuming that the date program was set accurately, it is consistent with his being there after midnight on the night of 15/16 October. 20 As to what happened after work was finished, one must go to the statements in exhibit K. 21 Mr Hatcher was employed by Infocus with the title of workshop coordinator. His statement said that they had been at the motor show, setting up for about 4 days and finished the work at about 3.30 am on 16 October. - "Scott had started working that shift at about 8.00 am and worked right through until we knocked off." 22 The statement then goes on to say:- "On this occasion we all went to the Pyrmont Bridge Hotel and met up with some people from other design companies that had also been working at the Motor Show. The show was opening that morning and they had also finished their exhibitions.

"We finished at about 3.30 am and went to the Pub which is quite close by. I think we stayed there for about an hour and then Steve, Scott, Damon and I left and went home. At the Hotel Scott had been drinking beer and I know that he only had two because he turned down the third one that the rest of us had. Scott had the company truck and when we all left he headed off to the factory at Lane Cove where his car was parked. He owns a little white Ute. Later that morning, I went to the factory and the truck was there, parked outside where Scott would have left it." 23 The statement of Mr Glover says that they finished work somewhere between 3.00 am and 4.00 am on 16 October, 1997 and continues:- "Usually when we have completed a show, we all go to the Pyrmont Bridge Hotel at Pyrmont and have a drink. On this occasion the five guys that had been working on the exhibition and two of the girls that had done the painting turned up later on. The guys that were there were Scott Thomas, Troy Hatcher, Damon, Bill and myself. The girls that were there were Holly and Jia. The Hotel is only 5 minutes up the road and we went there straight after finishing work.

We all stayed there for about an hour and a half and then most of us left at the same time. I can't remember if Scott was drinking alcohol or not because he was sitting at the other end of the bar. Scott had the company truck and Damon, Troy and I all had our own cars. I think that Bill stayed behind at the Pub with one of the girls. When we left the hotel, we all went off in our own vehicles except Scott who headed off in the company truck. I assume that he took the truck back to the factory at Lane Cove and got his car from there. I am not sure what time we finished the exhibition but I think it was somewhere between 3.00 am and 4.00 am. I think we stayed at the Pub for about and hour and a half." 24 The next statement is from Sean Morrison who was employed by Infocus as a designer. He attended on the last day of the installation of the exhibition stands, which was 15 October, to help them finish the job. 25 His statement continues:- "My recollection is they finished that job between 3.00 am and 4.00 am on the morning of 16 October, 1997. There is a bit of a tradition with the installers to go to a bar in Ultimo somewhere and have a drink and something to eat on the last night of an install. On this occasion I didn't go to Ultimo." 26 There is evidence that the estimates of times given in these statements are inaccurate. 27 Ms Karam, the Managing Director of Infocus, testified that the time sheet kept by Holly (one of the painters) showed her as finishing at 2.15 am on 16 October; that kept by Darren Munce, showed a finishing time of 1.15 am; that kept by Paul Rizos, showed a finishing time of 12.30 am and that of Steven Glover showed a finishing time of 1.00 am. Holly's finishing time of 2.15 am, that is some one hour later than the others, is consistent with the statement of Mr Glover that - "The five guys that had been working on the exhibition and two of the girls that had done the painting turned up later on." 28 One can appreciate that the painter might have to do "touch up" work after the erection of the stands and that this would cause her to work later than the others. The pictures of the stand taken by the plaintiff show the stands completed, with motor cycles standing on the shelving. It may well be that he remained at the site afterwards to take those photographs. 29 However, on the probabilities, I consider it doubtful that he would have worked at the site for about three quarters of an hour after all the other work people had left it. I would regard it more probable that he finished his work at the site closer to 2:30 am and no later than 3:00 am. 30 At 6.45 am on the morning of 16 October, 1997 a sample of blood was taken from the plaintiff. It is worthy of note that this sample was taken between 1 hour and 20 minutes and 1 hour and 30 minutes after the collision. The analysis gave a reading of 0.052 grams of alcohol per 100 ml of blood. The evidence is that the plaintiff's blood alcohol content at about 5:15 a.m. would have been about 0.065 g% to 0.70 g% - the equivalent of three schooners of full strength beer. 31 It is now necessary to consider the extent to which, if at all, any one or more of the long hours of work, the delay at the hotel and the consumed alcohol materially contributed to the plaintiff's vehicle leaving the roadway. 32 Dr Helen Dauncey, in a report of 16 April, 1998 says - "While the level of alcohol in his blood is not disputed, it is only 0.002 % above the legal limit. Several recent research studies have summarised the effects of low concentrations of alcohol on driving and they show that some psychomotor skill impairment may be present at 0.05% in some drivers but the overall increase in crash risk at that BAC is slight. At least half of that increase in accident risk at 0.05% is because, after drinking alcohol, many drivers feel disinhibited and drive recklessly. There is no evidence that this was so in Scott Thomas's case. There is also no evidence that he made an error while driving that could be inferred to be related to an alcohol induced skill deficit - his crash was on a straight stretch of road and it was the opinion of the police officers investigating the case that Scott fell asleep at the wheel. "It is therefore my opinion that having had no sleep for almost 24 hours, the risk that fatigue posed to Mr Thomas' driving in the early hours of the morning would be extreme, relative to the risk of a BAC of 0.052%." 33 Her evidence under cross-examination considerably reduced the firmness of this conclusion. At pages 125/126:- "Alcohol caused somnolence, that is where I have familiarity with the topic, it doesn't cause it initially but as the blood alcohol is forming, it is hard to say exactly, but I think it is likely 55 minutes after initially drinking his blood alcohol level would have been at its peak by then. I felt it was a little early for the somnolence to be a major factor, but I haven't really discarded it as a consequent contributor. You have to consider alcohol was probably having some effect. In terms of somnolence, I would have thought had it been half an hour later, three-quarters of an hour later, you would be in a much stronger position to say it was in the somnolence phase associated with drinking." 34 It should be mentioned here that Dr Dauncey was assuming that the plaintiff's "initially drinking" was only fifty-five minutes before the accident (that is at about 4:15 am). There is no evidence as to when this occurred other than at some time between about 2:30 am and 4:30 am. 35 At page 128 she agreed that at the time of the accident the plaintiff's blood alcohol level would have been higher than 0.052, perhaps in excess of 0.065 and even as high as 0.07 and added that this represents about 3 schooners of full strength beer. She agreed that if he had 3 schooners of full strength beer he should not have been driving. 36 The following evidence of Dr Dauncey appears at pages 129/130:- "Q. When you go to the sleeping scene, you mentioned somnolence induced by alcohol. A. Only in addition to fatigue. Fatigue caused by alcohol is usually working on a base of fatigue. It happens at the time of day when someone would be normally sleeping and the body is working towards fatigue and at that time of morning it is quite common for going to sleep at the wheel accidents to occur for that reason." Q. Particularly if people have been drinking? A. And blood alcohol is falling rather than rising and the reason is stimuli can fall because of sleepiness. Q. This man's blood alcohol concentration may have been falling by the time of the accident? A. It was probably at its peak, it may have been just falling. It may have reached is peak. People are different in the rate of absorption. There is no format, no formula for that, people are different. Q. And that is precisely the point, you can't categorically say this accident wasn't due to alcohol, can you? A. I don't think I say that. Q. You can't say categorically it is due to fatigue? A. I don't think I said that. Q. What you do conclude from the facts you know is it is more likely due to the effects of alcohol? OBJECTION (BLACKET) A. I did think carefully about it. It seemed to me that the type of accident it was, from my experience it was compatible with a fatigue accident. It is really quite easy after a while to have an insight into road accidents and alcohol because there are half a dozen different scenarios that happen time and time again. Q. It is consistent with alcohol-induced impairment somnolence. You are not saying the behaviour of the vehicle was consistent with alcohol or sleep-induced impairment? HIS HONOUR: Do you mean alcohol-induced impairment somnolence? WILLIAMS: Q. You are not saying that the behaviour of the vehicle you have described is inconsistent with alcohol induced impairment, are you? A. I am saying it was inconsistent with a typical 20-year-old with the rising blood alcohol having an accident that was just slightly weaving off the road. Twenty-year-olds with rising blood alcohol levels have accidents because they are going too fast and driving beyond their capabilities, they are showing off and driving with bravado. Twenty-year-olds going to sleep at the wheel are different, they look different, have different elements to them. 37 And the following appears at pages 131/132:- "Q. You are not able to say with any certainty whether the somnolence effect of alcohol had cut in by that stage or not? A. I am not able to say that. Q. On the assumption that he did fall asleep at the wheel, on the assumption that he did, you are not able to say that would have happened solely because of fatigue without the element of alcohol playing any part, are you? A. I have no expertise in that science. Q. It may have, for all we know, been a combination of both? A. Yes. Q. It could have been alcohol alone if the somnolence stage had not cut in? A. He did have the underlying fatigue. This is the sort of case where alcohol is more likely to be an effect on somnolence, on the basis of fatigue." 38 If one ignores the statement of Mr. Younan one could agree with the view of Dr Dauncy that this motor vehicle accident was not the typical one of a twenty year old who is affected by alcohol where there are signs of erratic driving indicating an inability to maintain control over his vehicle. But even then one is left with her evidence that the plaintiff did have the underlying fatigue and that this is the sort of case where alcohol is more likely to be an effect on somnolence, on the basis of fatigue. 39 But if one does not ignore the statement of Mr Younan, there is evidence of excessive speed and a sudden swerving onto the driveway which are signs of alcohol caused erratic driving indicating an inability to maintain control over his vehicle. 40 Her evidence satisfies me on the balance of probabilities that the plaintiff's vehicle left the roadway because he fell asleep and his falling asleep was brought about by the effects of his elevated blood alcohol level. There was a pre-existing fatigue but it was the superimposition of alcohol upon that fatigue which was the effective cause of his falling asleep and leaving the roadway. This conclusion is reached whether or not the evidence of Mr Younan is accepted. 41 Dr Anne Williamson in a report of 2 September 1998 expressed the opinion that there is a considerable amount of evidence that fatigue has adverse affects on performance with monotonous tasks like driving being particularly affected. Recent evidence on the effects of sleep deprivation and fatigue on performance, including her own studies, suggest that sleep deprivation of periods of around 17 to 18 hours produces performance deficits equivalent to the effects of 0.05% alcohol in the blood. 42 Dr. Williamson's research particularly related to the effects on transport drivers who have driven for long hours and it was in this context that she refers to "monotonous tasks like driving". In this case the plaintiff had driven for about twenty minutes from Darling Harbour to Lane Cove, then changed vehicles and drove for a further twenty to twenty five minutes to the time of the accident. 43 She goes on to point out that an additional contributor to the effects of fatigue is likely to be the time of day at which the accident occurs and says - "It is well known that there is a circadian rhythm in performance capacity such that performance in the early morning hours, between around 2.00 am and 6.00 am is likely to be impaired relative to performance at other times." 44 She does however say in her report:- "It is likely that the effects of alcohol played some role in the accident in two ways. First, BAC's above 0.05% are expected to increase crash risk through affecting driving performance and Mr Thomas' blood alcohol, at 0.052% BAC, was above this threshold. It should be noted, however, that Mr Thomas' level of alcohol was in the low range, being only 0.002% BAC above the legal limit. Although the relationship between alcohol and crash risk is an increasing function, the increasing risk between 0.05 and 0.06% BAC is very small and likely to produce only a slight decrease in performance functions." 45 Her report then goes on to say that the second effect - ". . .is most likely that alcohol effects interacted with Mr Thomas' sleep deprivation to further increase his fatigue, rather than alcohol alone affecting performance." 46 In her report she concludes that the fatigue and the time of day were circumstances significantly outweighing the effects of alcohol in causing the accident and concludes - "The accident may have happened at this time of the day and with the amount of alcohol, even if Mr Thomas had been well rested, but with the high level of fatigue that must have resulted from his long working hours, the risk of the accident was increased significantly." 47 The firmness of her reported conclusions was considerably abated under cross-examination. At pages 222/223 her evidence was :- "Q. One of the questions you were asked in your instructions was, having regard to the .052 reading, whether it was possible - question 3 - to say the accident may well have occurred as a result of fatigue irrespective of the consumption of alcohol. Do I take it you answered that question in paragraphs 7 and 8, and that your answer is it is not possible to reach that conclusion? A. Clearly the two are interacting. My point was that the fatigue that he was experiencing, one would expect he'd be experiencing after such long periods of awake, would be enough to create a risk of having crashed such as he had. Q. What you conclude in paragraph 7 is that alcohol would have played some role in the accident? A. Probably, yes, yes. Q. Well, it is undeniable, isn't it? You agree with that proposition? A. I do agree with that, yes. Q. And alcohol would play two roles or have two effects I suggest: Firstly, even at the .052 level Scott's abilities would have been impaired? OBJECTION (BLACKET). OUTSIDE THE WITNESS' AREA OF EXPERTISE. QUESTION ALLOWED. A. Could you repeat the question? Q. What I am suggesting is one effect alcohol would have had, one role it would have played, is that at .052 Scott's performance would have been impaired, his reactions would have been slower, and so forth? A. Certainly the research shows that as alcohol body state increases, yes, you do get a decrease in a capacity to react quickly. The difference between, say, specifically a .052 I really couldn't comment and I doubt that anyone could be very specific about it. Q. But at .052 there would be some degree of impairment without being specific about that degree of impairment? A. I think I am saying I don't think we know. Q. And what about at .065, would you more confidently suggest there was an impairment of capacity? A. Certainly the risk would be increasing as I said before. Q. And the second effect I suggest would be that the blood alcohol level would add to or increase the level of fatigue, is that right? A. No, it does not necessarily increase the level of fatigue, but it increases the effect on particular functions that are also affected by fatigue. 48 And at page 223:- Q. If you took one of those people that had been awake for 17 or 18 hours with no accumulated sleep debt - and assume we are talking about someone that got up at say 5 or 6 o'clock in the morning so he's still awake at 11 o'clock at night - and he had enough alcohol to give him a reading of .05, do you just add .05 to the .05 for the sleep deprivation to get .1? A. No, probably not. Q. Something close to that? A. It probably would have, as I said earlier, a cumulative effect. Q. And if you added .07 you would certainly be in excess of .1, approaching .12? A. I don't know that it is a simple additive phenomenon. But certainly you would be adding risk, yes. 49 Her evidence at page 225:- "Q. And it is your view, as I read your report, that what contributed to this particular accident was his fatigue, the drivers fatigue as a result of being awake for long hours? A. Yes. Q. The alcohol which he'd consumed? A. Yes. Q. And also the time of day? A. Yes.

Q. Three factors? A. Yes. Q. And if you also assume that, contrary to what you were asked in the letter of instruction, that his blood alcohol reading that time of accident was .052, was rather in the order of .065 or perhaps even a little higher, that would simply confirm your view as to those three factors contributing to the accident? A. It certainly would make it more likely that alcohol played a role, yes. " 50 This evidence satisfies me on the balance of probabilities that alcohol consumed by the plaintiff between 3 am and 4:30 am added a substantial and new dimension to the risk that the plaintiff may fall asleep at the wheel. 51 If one assumes that the plaintiff finished work at Darling Harbour at 3 a.m. he still had to drive the truck to Lane Cove. Whether he did this at the express request of Infocus or whether the truck was provided to him as a means of transport is not clear. What is clear is that he was provided with the keys to the truck and it was located at Lane Cove later that morning. Had he left Darling Harbour shortly after 3 a.m. he could have been home at Baulkham Hills by about 4 to 4:15 a.m. 52 The evidence of Drs. Dauncey and Williamson reveals that there was a risk of falling asleep at the wheel even between 3 and 4:15 a.m. because of fatigue induced by long work hours and the time of day. 53 However, the plaintiff chose to delay the journey to Lane Cove by 1½ hours and, in addition, to consume the equivalent of about three schooners of full strength beer. As stated earlier I am satisfied on the balance of probabilities that alcohol consumed by the plaintiff between 3 am and 4:30 am added a substantial and new dimension to the risk that the plaintiff may fall asleep at the wheel. 54 The evidence is that he did not fall asleep at the wheel until about forty-five minutes after leaving the hotel. He had only about a further twenty minutes to go before completing his journey to his home at Baulkham Hills. I am satisfied on the balance of probabilities that had the plaintiff left Darling Harbour at 3 a.m. and not consumed alcohol and had he then travelled straight to Lane Cove and then from Lane Cove in his own car he would have reached his home without falling asleep. Or, to put it another way, I am satisfied on the balance of probabilities that the effective causes of his falling asleep were the delay of 1½ hours and the consumption of alcohol.

The Legal Relationship Between the Parties 55 It is now necessary to look at the legal relationship between the plaintiff on the one hand and each of the defendants on the other hand and also as between those defendants. 56 From about August, 1995, whilst the plaintiff was still at school, he and his father were seeking to organise the plaintiff to enter into an apprenticeship as a carpenter in the building industry. They were unsuccessful. Ultimately, they were introduced to an organisation called Furnishing Group Training (NSW) which is a subsidiary of Sydney Training and Employment Limited (STE). 57 Furnishing Group Training was at Bankstown and ultimately it introduced the plaintiff to Infocus, which company interviewed the plaintiff on some two or three occasions and agreed to become his Host Company. 58 The relevant documentation appears in exhibits B and 4. 59 On 6 November, 1995, Ms Karam, the Managing Director of Infocus, signed what is described as "Order form/Application for credit" addressed to STE. In its relevant parts it states - "Please supply to Infocus Design Pty Ltd one apprentice in the following occupation - Occupation - Exhibition Carpenter/Joiner" 60 Under special instructions Ms Karam wrote - "First year school leaver, prefer some work experience, very flexible hours, not a regular 9 to 5 job, keen and willing to take on a variety of work, flexible." 61 The document then sets out the rate per hour payable by Infocus to STE and further says :- "In accordance with the Occupational Health and Safety Act 1983 all due care must be taken to ensure the health safety and welfare of the apprentice(s) while they are being trained on your site." 62 The terms of payment from Infocus to STE are described as 14 days and states - "In the event that the suitable person is employed directly by your company (within apprenticeship/traineeship period) a fee of 5% of their annual salary is payable." 63 This clause provided a means whereby the employment could be transferred from STE to Infocus. 64 Exhibit 2 contains the application by the plaintiff to Furnishing Group Training (NSW) for the position of Shop Fitting Joiner Apprenticeship. 65 Exhibit B contains what is essentially the Agreement between FGT and the plaintiff. The copy in the exhibit is undated. It commences - "Welcome to FGT as a first year shopfitter/joiner apprentice, effective from ………………" 66 It states the Host Company is Infocus Design Pty Ltd. and requires him to ". . . follow all reasonable rules, policies and procedures adopted by your Host Company." 67 The normal hours of work are stated to be from 8.00 am to 4.00 pm Monday to Friday but that the plaintiff will be - ". . . required to work reasonable overtime requested by your host company. Overtime is at time and one half for the first 2 hours and double time thereafter in any one day. All time worked on a Sunday is at double time." 68 Under the heading - "Pay Day" is stated - "Your pay cycle is from Wednesday to Tuesday. You will be issued with a payroll time book which you or your host trainer will retain. It is your responsibility to ensure each time sheet is completed correctly, signed by your supervisor and faxed to FGT by Tuesday evening. The payroll is normally processed on Wednesday with your pay being deposited into your bank account on Wednesday. You should check your bank account on Thursday afternoon. A pay slip will be posted to you each week." 69 Under the heading - "Performance Monitoring" appears - "A representative from FGT will visit you on your work site on a regular basis to monitor your progress. An assessment form will be completed at this time by your host trainer. You will be shown this assessment." 70 An Indenture of Apprenticeship, dated 26 March, 1996 was executed between Sydney Training and Employment Ltd, Bankstown Group Training as Employer and the plaintiff as Apprentice. The term of the apprenticeship is said to be four years, deemed to have commenced on 15 January, 1996. 71 On 21 August, 1997 STE sent to Infocus a letter saying - "Please find attached documents pertaining to the employment of Scott Thomas by Sydney Training and Employment Limited. We are the Employer and pay all taxes, superannuation and workers' compensation premiums for Scott. Infocus is the host for his On the Job training and TAFE days as per the group training scheme under the NSW Department of Training and Education Coordination. We hold the Indenture, Scott for the full 4 years of his apprenticeship." 72 The apprenticeship was approved by the Commissioner for Vocational Training. 73 Application was made to the Superannuation Trust of Australia for Superannuation for the plaintiff by STE which is stated in the form to be his employer. The Employment Declaration for the Australian Tax Office describes the plaintiff as employee and STE as employer. 74 The formal training agreement is between STE trading as Furnishing Group Training (NSW) and the plaintiff. 75 When the plaintiff applied for annual leave in December, 1996 he made a formal application addressed to FGT (see exhibit 1). 76 From the above documents, the following is quite clear:- a. The formal agreement of apprenticeship was between the plaintiff and STE. b. The plaintiff's employer was STE. It was the only party who had the right to hire and fire him. c. STE was the party represented to the Superannuation Company and to the Australian Tax Office as the employer. d. Infocus was the "Host" of the plaintiff. Putting it another way, the arrangement between STE and Infocus was that of a labour hire agreement under which STE hired the services of the plaintiff to Infocus in return for payment on an hourly basis. 77 However, Infocus undertook under the agreement (and in fact) the day-to-day control and training of the plaintiff from the date of commencement of the apprenticeship (15 January, 1996) up to the date of the accident.

What Infocus ought to have done and what it did. 78 As is pointed out earlier, the plaintiff was required by Infocus to work very long hours and that he finished work between about 2:30 and 3:00 on the morning of his accident which occurred at about 5:15 to 5:20. 79 Ms Karam, the Managing Director of Infocus testified that in 1997 there was a system in place whereby employees could have arrangements made for them to get home after work, namely by allowing them to catch a taxi at her company's expense. Either they were given a cab-charge voucher, or she gave them the money, or they paid for the cab themselves and were reimbursed later. She said that it was pursuant to this system that on the night of 14 October, 1997 she paid for the plaintiff to catch a taxi. She was unaware of the point to which the taxi went. The plaintiff testified that he took it back to Lane Cove where he picked up his car. She also gave a cab-charge voucher to the two female painters so that they could get home on the same night. She said that on the night of the 14th she asked them if they wanted a lift and she gave the three of them a lift to a cab rank where Holly & Jaya got into one cab and the plaintiff got into another. 80 She was quite adamant that there was no tradition that the manual workers on the job of installing exhibitions normally went to the Pyrmont Bridge Hotel and had a drink at the conclusion of the setting up. She said she had no knowledge of such a practice nor was she aware that it ever occurred. Her first knowledge of the men going to the hotel in the early hours of 16 October came from statements she had seen subsequent to the accident. 81 She knew that the plaintiff had worked until about midnight at Darling Harbour the night before. She knew he had been working long hours although she said she did not know how many hours. She also knew that the plaintiff lived at Baulkham Hills. 82 She denied that Mr Hatcher was the supervisor of or superior in rank to the plaintiff and said (T. 214/215) - "With Scott being an apprentice I had to put him always with a tradesman, somebody that could guide him. And that was Godfrey Dawson, who was a cabinet maker. He had quite a few qualifications in installing glass and everything else and he worked with Scott. He was also with Barry Lazzarini who was a builder. I don't believe that Troy Hatcher had any qualifications to do anything that could have helped Scott, but Scott was a good guy and he worked as part of a team." 83 The evidence of Ms Karam was that she stayed at the location of the exhibition for as long as her workers were there for 99.9% of the time. She was present at the Darling Harbour site on 15 October. At about 10 pm, she considered that the setting up was almost finished and testified that she was told that there was another half hour or so of work left. She ordered some pizzas for the workmen and left at about 10.30 pm because she was not feeling well. 84 At P.189 she was asked - Q. Ms Karan, could you answer my question? Who was in charge of Scott at 3.30 am in the morning. A. There wasn't anyone in charge of Scott. It probably should have been me. And it wasn't -. 85 She added - "I believed, at 10.30 they were going to be finished shortly after. So therefore there wasn't anybody there in charge of Scott. His supervisor was Godfrey Dawson and that was at the Casino job and Godfrey had gone to the Motor Show with Scott. He had left, I think, at around 10.30 that night. I don't know why Scott was still there." 86 She agreed that she did not give Scott a cab voucher on the night of 15 October, nor did she instruct him to catch a taxi home on that night. 87 At page 196 she was asked - Q. "Had you been there yourself, you would have ensured that Scott was provided with a taxi voucher so that he could go directly home without having to go back to Lane Cove to get his car? A. Or they would use their own money and get a reimbursement." 88 She also told the plaintiff's solicitor in a telephone conversation that "we offered to pay their cabs home if they were tired." 89 In the light of this evidence I am satisfied on the balance of probabilities:- a. That Infocus had a system of providing taxis for workers to get home when they finished late at night or in the early hours of the morning. The provision of taxis could be done either by handing over a cab-charge voucher or by handing the worker money or by the worker paying for the taxi himself or herself and then claiming reimbursement from petty cash the next day. b. The plaintiff was aware of this system because he had been provided with a taxi the day beforehand. He took the taxi to Lane Cove in order to pick up his car, probably to provide him with the means of transport back to Lane Cove later on the same morning. c. Ms Karam failed to put this system in place prior to leaving the site at about 10:30 p.m. so that the workers could avail themselves of taxis. d. However, the statement of Mr Glover shows that of those who went to the hotel, he, Troy Hatcher and Damon all had their cars nearby. The plaintiff, who had his vehicle at Lane Cove, was provided with the means of getting to Lane Cove in the form of the company truck. There is no evidence as to what transport, if any, was available to the two girls and the man referred to as "Bill". 90 Ms Karam gave evidence that the plaintiff was not authorised to drive that truck because its insurance policy covered only drivers over the age of 25 and the plaintiff was then 20. Notwithstanding this, the evidence satisfies me that the keys to the truck came into the possession of the plaintiff without any impropriety on his part and that he drove it to the factory where it was seen later that morning.

The Plaintiff's Allegations of Negligence against Infocus 91 In his statement of claim, the plaintiff supplied the following particulars of negligence of Infocus:- a. requiring the plaintiff to work for excessive periods of time without adequate breaks. b. requiring the plaintiff to work excessive overtime. c. permitting and encouraging the plaintiff to accompany senior employees or contractors of the second defendant to a hotel at the conclusion of work at the Motor Show exhibition at approximately 3.30 am. d. thereafter, at approximately 4.15 am, requiring and/or permitting the plaintiff to drive the company truck back to the factory at Lane Cove, and further, thereafter not making any adequate provision for him to get himself back to his place of abode at approximately 5.00 am. e. failing to provide transport for its workers, including the plaintiff, home in the early hours of the morning of Thursday, 16 October, 1997. f. failing to properly monitor and supervise the activities of the plaintiff so that he was not affected by fatigue or alcohol that would impair his capacity to get himself home safely.

g. permitting the plaintiff to take the truck back to Lane Cove and thereafter expecting him to drive, knowing that he must have been awake for over 21 hours at the time that the plaintiff left the Pyrmont Bridge Hotel. h. failing to provide the plaintiff with a safe system of work. i. failing to provide the plaintiff with adequate training and instruction. j. failing to supervise and monitor the activities of its staff to insure that employees were not subject to excessive risks as a result of fatigue, alone or in combination with alcohol. k. significantly increasing the risk that the plaintiff would fall asleep at the wheel or alternatively was so affected by fatigue that he would lose control of his vehicle.

The Plaintiff's Submissions 92 The submissions of Senior Counsel for the plaintiff in the course of his final address are now summarised. 93 The long hours which Infocus required him to work created a substantial risk that he would become fatigued and thereby exposed to an increased risk of injury. 94 The evidence was that no cab-charge dockets were available on the night at the time that the plaintiff finished working at the exhibition centre. Whatever system was in force for the provision of taxis home was not in force after Ms Karam left the site at about 10:30 p.m. on 15 October. No inquiry was made of the plaintiff as to whether he had the means to get a cab home to Baulkham Hills. 95 The only way in which Infocus could discharge its duty of care to the plaintiff was to put him in a taxi at Darling Harbour and send him straight home to Baulkham Hills. 96 It was further submitted that his attending the hotel and consuming alcohol was a factor over which the employer had control. The plaintiff was then the junior member of the team and he went with senior members of that team. 97 He was then required to drive the truck to Lane Cove. There is no evidence to support the possibility that he drove the truck to Lane Cove on a folly of his own. Thus the defendant put the plaintiff in a position when he arrived at Lane Cove at about 4.50 am with no means of getting home other than by driving his own car. By this stage he had been awake for 23 hours and on the prior night he would not have got to bed until 1.00 am and would have had to be up at 6.00 am. 98 The submission continues that if the plaintiff misjudged whether or not he should drive, his judgment was impaired by the work induced tiredness. 99 In his address in reply, Mr Blacket submitted that the negligence of the defendant was in requiring the plaintiff to work excessive hours and then, in addition, failing to provide him with a taxi direct to his home. It is not enough for the defendant to say that it had a system. That system must be maintained and it was not maintained on that night. The plaintiff had accepted a taxi to Lane Cove the night before and there is no evidence to suggest that he would not have accepted a taxi to Baulkham Hills if offered on the night of the accident. 100 The plaintiff did not finish work at 3.00 am when he left the exhibition centre. He had to resume work later in order to drive the company's truck back to Lane Cove. That was part of his employment. 101 The break between approximately 3.00am and 4.30am was an incident of his employment because it was reasonable that he would accompany senior workers to the hotel. Whether those senior persons were acting in the capacity of a representative of Infocus, or purely in a social or personal capacity does not matter. This was a special occasion. 102 It was further submitted on behalf of the plaintiff that he was so grossly fatigued and had gone so far past the threshold of rational judgment, that the delay and the consumption of alcohol did not matter. In effect they were part and parcel of Infocus' breach of duty of care. 103 The submission continues that the duty of care owed by Infocus to the plaintiff was to enforce the provision of the means of the plaintiff's getting home by taxi. This would involve his being provided with a cab-charge docket or means of getting a taxi at Darling Harbour, so that he did not have to use his own resources to get home. Ms Karam should have delegated one of the other employees to provide the workers with instructions to get a cab home. If this had happened it would not matter how long the plaintiff delayed his journey or how much he drank. The breach of its duty was to provide him with a means of getting a cab to his home at Baulkham Hills which put the plaintiff in the position of having to drive home after the consumption of alcohol.

The Submissions of Infocus 104 In written submissions Senior Counsel for Infocus argued that the second defendant's duty of care would not extend, either as a hiree of apprentices or as an employer (which is denied), to risks of injury outside the course of the plaintiff's employment at Infocus' premises or on site at Darling Harbour. In support reliance was placed on the dicta of Kitto J in ACI Metal Stamping and Spinning Pty ltd v Boczulik (1964) 110 CLR 372 at 378: "The course of the employment is not a narrow conception. It extends beyond the period of work to every situation which the master sustains the character of master towards the servant. See also Drury v Commissioner for Railways (NSW) . Such a situation may exist even after the servant has left his place of work at the end of the day: Tunney v Midland Railway Co . It may exist (though what is required for its performance may be very little) even in a case where the servant is exercising his right as a member of the public to pass along a public highway, for he may be performing an errand for his master or travelling to or from his place of work in a manner provided for by an express or implied term of the contract of employment. - On the other hand it is clear that where the servant is using the highway simply as a means of getting to or from his place of work in such circumstances that the journey is either preliminary or subsequent to, and not in the course of, the employment, the master, as such, owes him no duty of care. The point to be observed is that the question upon which the existence of the duty depends is not in which character has servant the right of passage, but whether the master is master in relation to the journey." (emphasis added) 105 In the circumstances of the plaintiff's motor vehicle accident whilst returning home after finishing work, the second defendant submits that it was neither his master in relation to the journey nor could it have exercised control in relation to the manner in which the plaintiff went home. In these circumstances it is submitted the second defendant owed no duty of care to the plaintiff in respect of his motor vehicle accident. 106 The highest the plaintiff's case rises is to suggest that the defendants owed a duty to ensure the plaintiff did not drive home when tired and having consumed alcohol, which would at the least be a novel duty of care. It is submitted that such a novel duty ought not be imposed. 107 In considering the imposition of a duty it is not permissible to reason by analogy to similar factual circumstances. The imposition of a duty should only be by reference to principle: Crimins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at 32 (para 73). 108 First the starting point is foreseeability, and in this case it is submitted Infocus could not have foreseen that employees would after working long hours and consuming alcohol then proceed to drive home. Indeed it was never suggested to Ms Karam that she had actual knowledge that employees might drive home in these circumstances. 109 Even if it were foreseeable, when imposing such a duty, foreseeability is necessary but not sufficient to impose such a novel duty of care: Bryan v Maloney (1995) 182 CLR 609 at 617-8. 110 More importantly however, to impose the duty contended for by the plaintiff would be inconsistent with the scope of the "course of employment" doctrine as it would impose liability well beyond the control of employers, and as such the court should not impose the duty suggested by the plaintiff; see Sullivan v Moody (2001) 75 ALJR 1570 at 1579-1580. 111 To the extent the Court holds that the hours the plaintiff had worked constitute a breach of the second defendant's duty of care, it is submitted that there was no relevant remedial action available to the second defendant which could have prevented the plaintiff's accident above and beyond what it already did: Raimondo v South Australia (1979) 23 ALR 513 at 518. 112 The plaintiff voluntarily agreed to work the hours necessary to finish the motor show works. At no time did he indicate that he was tired or that he was unable to take a taxi home. 113 The plaintiff voluntarily, and independently of his employment, decided to attend a hotel after work and consume alcohol prior to driving home. He then drove home and had an accident in his own vehicle in circumstances entirely unconnected to his work at the motor show. 114 In these circumstances there was no reasonably appropriate measure open to the second defendant to stop the plaintiff from going to the hotel, drinking after work and proceeding to drive home. Indeed, even if, for example, a warning had been given by the second defendant, it does not follow that that step would have prevented the plaintiff's accident. To the contrary the evidence is that the second defendant had a practice where employees who worked long hours were either provided with cab-charge dockets or reimbursed. See transcript pages 166-7. 115 Alternatively, the second defendant says that the plaintiff's decision to continue working when he may have been tired, to then proceed to a hotel and consume alcohol and then drive home late at night were circumstances which break the chain of causation or at the least materially contributed to the accident.

Further Submissions on behalf of the Defendants 116 It was submitted on behalf of the defendants that the period of about one and a half hours, at least, at the hotel, and the consumption of alcohol constituted a break in the chain of causation from the alleged negligence of failing to provide cab-charge dockets or their equivalent and the later accident of the plaintiff. 117 It was pointed out that there was no evidence that the plaintiff had ever gone on such a drinking escapade after setting up earlier exhibitions. Hence it could not be said that this was a tradition or practice of the industry let alone amongst those working for Infocus. Furthermore there was nothing to stop the plaintiff going straight home after finishing as late as 3.00am or getting a cab home himself. 118 The plaintiff was the holder of a driver's licence. He knew his duties as a driver and he breached those duties. 119 It was further submitted that the defendants, and in particular Infocus, had no power or authority to compel the plaintiff to get a cab home. It had no control over the plaintiff once he left the site. 120 The duty owed by Infocus was merely to give the plaintiff the option either to stop work when he felt tired and/or to take a cab home instead of driving. The offer of that option was in the hands of the employer but its implementation depended upon the wish and judgment of the employee in accepting or rejecting the offer. In this case the wish and judgment of the employee was to drive the truck to Lane Cove and then drive his own vehicle home. This is quite consistent with the defendant meeting its obligation. 121 The submissions continue that from the moment the plaintiff ceased work, Infocus had no control over his movement or activities. 122 The real cause of the plaintiff's injuries in the motor accident was his driving of the car in circumstances when he was in breach of his duty as a driver. It was not the result of any breach of duty of Infocus. 123 There was no evidence that the plaintiff was exhibiting signs of fatigue and no evidence of others observing signs of fatigue between his ceasing work and leaving the hotel. Consequently there is no evidentiary basis to hold that the plaintiff was so fatigued that the defendant was in breach of its duty to him to allow him to go home in the manner he did. 124 The risk of injury against which Infocus had to safeguard was the risk of injury arising out of fatigue had the plaintiff gone straight home at 3.00 am and not consumed alcohol in the meantime. Consequently, if the plaintiff had ceased work at 3.00 am and then gone straight home and, on his way ran off the road because he fell asleep, then it would be open to the court to hold that the subject risk caused the injury. However, that was not the risk that eventuated. What eventuated was a combination of three risks which caused injury. Those three risks, included the extra one and a half hours of delay and the consumption of the equivalent of three schooners of full strength beer. It was that new risk which caused the plaintiff's injury.

Findings as to The Duty of Care Owed by Infocus to the Plaintiff 125 It is now necessary to make findings as to the duty of care which Infocus owed to the plaintiff. In Western Sydney Regional Organisation of Councils' Group Apprentices v Statrona Pty Ltd and ors BC 9505301, the plaintiff was the employer of an apprentice, Mr Hannaford, who suffered a serious injury while working at the premises of Statrona. Mahoney AP at P.12 of his judgment said - "We are no longer concerned with the vexed question of whether a person, working in the situation in which Mr Hannaford was working, was owed by Statrona the Common Law duty owed by an employer to an employee or some lesser duty such as that owed by an invitor to an invitee; Australian Safeway Stores Pty Ltd v Zaluzna ( 1987) 162 CLR 479 not following London Graving Dock Co v Horton [1951] AC 737. Statrona owed a duty of care under the ordinary principles of negligence to Mr Hannaford and in the circumstances was in breach of it. The duty of care depended in part on the arrangement under which at the time, Mr Hannaford was working at Statrona's premises and would be the same as that owed if Statrona had been Mr Hannaford's employer." 126 Accordingly, I regard the duty of care owed by Infocus to the plaintiff to be the same as if it were his employer. 127 In the case of Nair v Health Administration Corporation and Anor 1994 Australian Tort Reports 61832, Mahoney JA at 61836, after pointing out that there is an initial question as to the existence of the risk and whether the employer could have provided against the risk which produced the injury sued upon, went on to say - "It follows from this that, in the great majority of cases, the determination of the employer's liability depends on whether what he did constituted a reasonable provision against the risk in question. It is the determination of this question and the application of the principles relevant to it that, in my opinion difficulties arise. Difficulties arise in at least two respects: first, because there are cases in which an employer can be properly not liable in damages, notwithstanding that there is a foreseeable danger against which it could be reasonably have provided and that it did not do so; and second, because (that difficulty apart) the test of reasonableness is not a test which greatly assists in the determination in advance of what an employer should do." 128 In Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at 98: "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'." 129 The duty "extends to take reasonable steps in accident prevention and not waiting for accidents to happen before safeguarding the health and safety of employees" (Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18 at [101] per Kirby J)." 130 The facts in this case are complicated by the conduct of the plaintiff in delaying his departure from Darling Harbour and in consuming alcohol. What is the effect of these intervening matters? The questions of causation and remoteness were considered by the Court of Appeal in AMP & anor v RTA & Anor 2001 NSWCA 186. 131 At paragraphs 151 and following Heydon JA points out:- In March V E & M Stramare Pty Ltd (1991) 171 CLR 506 Mason CJ said, at 517 to 518 - "The fact that the intervening action is deliberate or voluntary does not necessarily mean that the plaintiff's injuries are not a consequence of the defendant's negligent conduct. In some situations a defendant may come under a duty of care not to expose the plaintiff to a risk of injury arising from deliberate or voluntary conduct or even to guard against that risk…. To deny recovery in these situations, because the intervening action is deliberate or voluntary would be to deprive the duty of any content." In Bennett v The Minister of Community Welfare (1992) 176 CLR 408 at 428, McHugh J said - "…the Common Law concept of common sense causation accepts that the chain of causation between breach and damage is broken for the purpose of attributing legal responsibility for that damage if there has been an intrusion of a new cause which disturbs the sequence of events something which can be described as either unreasonable or extraneous or extrinsic." 132 If the intervening conduct of the plaintiff was in the ordinary course of things the very kind of thing likely to happen as a result of the defendant's negligence then it does not matter whether that conduct was innocent or tortious or criminal. Dorset Yacht [1970] AC 1004 at 1030 and Caterson v Commissioner for Railways (1973) 128 CLR 99.

Were the Delay in starting the Homeward Journey and the Consumption of Alcohol incidental to the Plaintiff's engagement by Infocus or authorised by it? 133 On behalf of the plaintiff it is submitted that the visit to the hotel with the resulting delay in travelling home were reasonably foreseeable by Infocus. In support of this, the plaintiff relies upon the statement that it was a practice for the employees on finishing setting up the exhibition to go to the hotel. I accept the evidence of Ms Karam that she was not aware of this practice and that it was certainly not one which she would have foreseen. I do however accept that this may have been a practice amongst some of the employees but it was a practice which they took upon themselves as a personal social act divorced from their employment and not as part of their employment. If Mr Hatcher invited the plaintiff to accompany him to the hotel, he did so in his personal capacity and not in any capacity as a servant or agent of Infocus. 134 Support for this finding also arises from the fact that the plaintiff was to drive the company's truck to Lane Cove. It is highly improbable that with this knowledge Infocus would permit or encourage or countenance him to delay his journey and to consume alcohol before embarking upon that task. 135 The evidence satisfies me on the balance of probabilities that in going to the Hotel after finishing work some time between about 2:30 and 3 a.m., the plaintiff was acting on his own account. It may have been suggested to him by other employees of Infocus. If they did, then they were acting on their own account in a way totally divorced from their employment or engagement by Infocus. I reject the contention that the visit to the Hotel was permitted or encouraged as an incident of his working for Infocus. 136 The delay in commencing his journey home from somewhere between 2:30 a.m. and 3 a.m. to about 4:30 a.m. together with the consumption of the equivalent of three schooners of full strength beer in that period were not part of or incidental to his engagement with Infocus. They were totally the plaintiff's own venture. 137 The plaintiff's conduct in going to the hotel, consuming the alcohol and delaying his journey by one and a half to 2 hours was not reasonably foreseeable by Infocus.

Findings on the Claim against Infocus 138 Infocus was under a duty to offer the plaintiff a taxi either to Lane Cove to pick up own car or to his home at Baulkham Hills. This was to protect him only against the risk which was reasonably foreseeable by a reasonably responsible employer. That risk was the risk of injury occurring because of work induced fatigue had the plaintiff left the site at between 2:30 and 3 a.m. and then driven directly to Lane Cove and from there directly to his home. The risk against which Infocus had to guard did not extend to the substantially increased risk with the extra dimensions arising out of a delay in commencement of the journey of one and a half to two hours and the consumption of the equivalent of three schooners of full strength beer especially as these extra risks were unconnected with his engagement by Infocus and were not incidental to such engagement and were unknown to Ms Karam. 139 The risk which was foreseeable was the risk of injury to the plaintiff occurring as a result of work induced fatigue up to the time that he finished work between 2.30 and 3.00 am. Had the plaintiff finished work then and then driven the truck to Lane Cove and his car from Lane Cove and the accident occurred between Lane Cove and Baulkham Hills, then the accident would have occurred within the ambit of the risk against which Infocus was required to take steps to obviate. 140 However the plaintiff chose to go to the hotel and consume the equivalent of about three schooners of beer and to delay his departure until about 4.30 am. 141 Accordingly, in my view, the plaintiff's case against Infocus fails because: a. The conduct of the plaintiff in consuming the alcohol and delaying his journey home by about one and a half to two hours created a risk which was outside the reasonably foreseeable risk against which Infocus was obliged to protect the plaintiff. b. The plaintiff's conduct in going to the hotel, consuming the alcohol and delaying his journey by one and a half to two hours was not reasonably foreseeable by Infocus. c. The act of the plaintiff in going to the hotel, consuming the alcohol and delaying his journey by one and a half to two hours broke the chain of causation by a novus actus interveniens.

Findings on the Claim against STE 142 STE, as the employer of the plaintiff, owed him a duty of care which was not delegable. Or, as was stated in Elliott v Bickerstaff (1999) 48 NSWLR 214 at 236/7, the duty of care is not delegated. It is the performance which is delegated. Put briefly, the duty upon STE was to take reasonable care to ensure that the plaintiff was not exposed to a risk of danger which could be avoided with the exercise of reasonable care. In the circumstances of this case, that duty is no higher than the duty owed to the plaintiff by Infocus. 143 As I have found that the plaintiff's injuries, the subject of his claim, were not the consequence of a breach of duty of care by Infocus, it follows that STE is likewise not liable in damages. 144 Accordingly, on the action there will be judgment in favour of the two defendants.

The Cross-Claims brought by Infocus 145 Infocus asks that in the event that the Court finds for the defendants against the plaintiff the Court should still determine the question in indemnity on the cross claims. It refers to the dictum of Studdert J in Hughes and Another v Sydney Day Nursery (2000) NSWSC 462 at paragraph 201: "Whilst the plaintiffs have failed against the defendant, the cross claim still assumes relevance because of the issue of costs. The defendant seeks to be indemnified for its costs of defending this cause and for another liability for costs in this case." 146 Infocus seeks to be indemnified for its costs defending the current proceedings and hence seeks the declarations for indemnity.

The Cross Claim of Infocus Design Pty. Limited against The AMP Workers Compensation Services (NSW) Limited 147 It is common ground that AMP Workers Compensation Services (NSW) Limited (referred to as AMP) was the workers compensation insurer of Infocus pursuant to a policy of insurance which was current at all relevant times. In its Amended Cross Claim Infocus refers to the allegation in the plaintiff's statement of claim that it was the employer of the plaintiff and continues: "If, which is denied, the cross claimant is found to have been the employer of the plaintiff and is found to be liable for the injuries alleged to have been sustained by the plaintiff in that capacity, then the cross claimant claims indemnity from the first cross defendant pursuant to the Workers Compensation Policy referred to in paragraph 2(a) herein." 148 Paragraph 6 of the cross claim claims that if the Cross Claimant is found to be liable for the injuries alleged to have been sustained by the plaintiff in any capacity other than employer then AMP is still liable to indemnify it. 149 The form of Workers Compensation Policy is in exhibit 8. It recites the obligation of an employer under section 155 of the Workers' Compensation Act to obtain and maintain in force a policy of insurance complying with the Act and, in its relevant parts continues:- "If, … the Employer becomes liable to pay compensation under the Act to or in respect of any person who is or is deemed by the Act to be a worker of the Employer (including any person to whom the employer is liable by force of section 20 of the Act to pay compensation) or becomes liable to pay any other amount in respect of the Employers liability independently of the Act (being liability under a law of New South Wales) for any injury to any such person (not including liability for damages in respect of a motor accident as defined in the Motor Accidents Act 1988 or liability in respect of an injury, suffered by a person other than such a worker or deemed worker, arising out of any rescue or attempted rescue)." 150 It will readily be seen that this policy covers the liability upon an employer for benefits including damages at Common Law which he may become liable to pay in accordance with the terms of the Workers' Compensation Act. 151 It is also convenient to bear in mind the terms of Clause 1 of Schedule 1 to the Act which states: "If the services of a worker are temporarily are lent or let on hire to another person by the person with whom the worker has entered into a contract of service or apprenticeship, the latter is, for the purposes of this Act, taken to be the employer of the worker while the worker is working for that other person." 152 Applying this clause to the present case it means that the plaintiff is deemed under the Act to be employed by STE and not by Infocus. 153 It should be noted that this cross claim by Infocus is pursued only if there is a finding that the plaintiff was employed by it. I have already considered this question under the heading of "The Legal Relationship Between The Parties" and come to the conclusion that at all material times the plaintiff was in fact employed by STE and not by Infocus. 154 Nonetheless Infocus did undertake pursuant to the agreement with STE (and in fact) the day to day control and training of the plaintiff. In addition, whilst the plaintiff was working away from the Lane Cove factory and in particular at sites such as the Exhibition Centre he was given a special shirt to wear which bore on it the name and insignia of Infocus. 155 Because of this it could be argued that the relationship between Infocus and the plaintiff was one of pro hac vice employer and employee. However, as pointed out in the case of Western Sydney Regional Organisation of Councils Group Apprentices -v- Statrona Pty Limited (Butterworths unreported judgments BC9505301) by Sheller JA, this would be relevant if a third person would have been injured by the plaintiff's negligence whilst working at an operation controlled by Infocus. See London Graving Doc. Co. -V- Horton [1951] AC 737. It has, however, no relevance when interpreting the clauses in the policy of insurance sued upon. See also Hollis -v- Vabu Pty Limited 181 ALR 263. 156 In OP Industries Pty Limited v MMI Workers Compensation NSW Limited & ors 17 NSWCCR 193 the Court of Appeal considered a similar situation where an apprentice was let out on hire for practical training to another company. It was held that the company which did the letting out was the employer for the purposes of the workers compensation insurance policy. 157 Accordingly I hold that the plaintiff was not a "worker" within the meaning of the Workers Compensation Act in the employ of STE and that the policy sued upon did not cover the injury to the plaintiff. Consequently there will be judgment for AMP against Infocus on this cross claim.

The Cross Claim of Infocus against GIO Limited 158 In paragraph 2(b) of its Amended Cross Claim Infocus alleges that GIO Australia Limited (referred to as GIO) was its public liability insurer at all material times. This is not in issue. 159 In paragraph 6 Infocus alleges: "If, which is denied, the Cross Claimant is found to be liable for the injuries alleged to have been sustained by the plaintiff in any capacity other than as his employer, then the Cross Claimant claims indemnity from the Second Cross Defendant pursuant to the policy of insurance referred to in paragraph 2(b) herein." 160 By its amended defence, GIO in paragraph 5:- (a) says that if the plaintiff is found to have suffered injury in any capacity other than as the employee of the Cross Claimant then such liability was not caused by an occurrence in connection with the business of the Cross Claimant within the meaning of the "liability coverage" section of the policy of insurance. (b) says that such liability for personal injury to the plaintiff arose out of or occurred in the course of employment of the plaintiff by Cross Claimant within the meaning of exclusion clause 1(a) of the policy of insurance. 161 The further defence in paragraph 6 was abandoned at the hearing. 162 A copy of the policy of insurance is exhibit 9. In its relevant parts the liability coverage is described as:- "GIO General will pay to or on behalf of the insured all sums for which the insured shall become legally liable to pay by way of compensation (excluding punitive or exemplary damages) in respect of: (a) Public Liability (i) Personal injury happening during the period of insurance caused by an occurrence in connection with the business of the insured." 163 The exclusion clause relied upon by GIO is:- "GIO General shall not be liable for: 1. Claims (a) in respect of personal injury to or damage to property of any person arising out of or in the course of employment of such person" 164 On behalf of Infocus it is submitted that as there is a written contract of employment between the plaintiff and STE and no contract of employment between the plaintiff and Infocus this exclusion clause has no application. 165 The submission refers to similar clauses which have been held not to apply in the case of apprentices hired to persons such as Infocus who do not directly employ the injured person. See Western Sydney Regional Organisations of Council Group Apprentices -V- Statrona Pty Limited (2002) 12 ANZ Insurance cases 16/530, Monarch Insurance Co -V- Steel Mains Pty Limited [1986] VR831 and Trans State Pty Limited -V- Rauk (2002) NSW CA 222. 166 In the Monarch Insurance case Kaye J said at page 835:- "Furthermore, the words 'in the service of the insured' appearing in clause (a) qualify the nature of the employment of the injured person. The phrase 'in the service of' when used in conjunction with the word 'employment' has the connotation of a contractual bond existing between the employer and employee. The combination of the two expressions in juxtaposition to each other, therefore, describes a form of employment arising out of a contract of service existing between the insured and the injured person. The expression 'in the service of the insured' is synonymous with 'under a contract of service with the insured'. See Sydney Turf Club -V- Crowley (1972) 126 CLR 420 at pages 425, 426 per Barwick CJ. The exclusion clause, by reason of the combination of expressions found within it, is not directed to a factual as distinct from contractual relationship existing between the insured and the employee. If it were intended to exclude from the indemnity liability for an employee in the mere factual or temporary employment of the insured, the qualification of being in the service of the insured would have been tautological. I consider that when interpreting the provisions of a general liability insurance policy, there is need to be mindful that the indemnity provided arises out of contract and not for the purpose of fixing liability in tort." 167 Exclusion clause 1(a) which is relied upon by GIO is one of three sub-clauses headed "Employers Liability". Sub-clause (b) refers to payment under any workers' or workman's compensation legislation or any accident compensation legislation by any person in the service of any contractor or sub contractor to the insured or by any dependent of such person. 168 The submission on this point made on behalf of GIO is that the plaintiff was not merely part of a team of Infocus, he was also there to be taught and when working out of the factory he wore a distinguishing shirt and the tools he used were provided by Infocus. Consequently there was total control by Infocus. He was therefore employed by Infocus, and was under its control and tutelage. Consequently STE had surrendered control of the plaintiff to Infocus which accepted that control and exercised it completely whilst STE was merely the procurer of an apprentice to Infocus. 169 The submission continues that the phrase "arising out of or in the course of employment of such person by the insured" in the subject policy is much wider than the phrase "in the service of the insured" referred to in the Monarch Insurance case. 170 In my view this submission cannot be accepted. The words in the subject policy repeat the long standing phraseology expressed in the workers' compensation legislation in this State and elsewhere. I accept the judgment of Kaye J that the expression "in the service of the insured" is synonymous with "under a contract of service with the insured". 171 When one looks at the terms of clause 1 of the exclusions as a whole it is seen that the word "employment" in sub-clause (a) refers to employment in the contractual sense. Exclusion clause 1 is intended to exclude liability which arises under workers' compensation legislation including the extended liability at Common Law. 172 Accordingly I would hold that exclusion clause 1 does not apply. 173 The next defence of GIO to this cross claim is based upon the definition of "occurrence" in the policy where it is defined as:- "an event, including continuous or repeated exposure to substantially the same general conditions, which results in personal injury or damage to property neither expected nor intended from the standpoint of the insured." 174 The submission is that the event which caused the plaintiff's personal injury was the motor accident and that accident was not an event "in connection with the business of the insured". 175 In support of this submission GIO relies upon the decision of the Court of Appeal in GIO General Limited -v- Newcastle City Council (1996) 38 NSWLR 558. 176 In that case the Council sought indemnity under the professional liability cover contained in a public liability policy. The terms of the liability coverage and of the definition of "occurrence" were identical to those in exhibit 9. 177 In that case it was alleged that the Council had negligently approved of part of the construction work comprised in the erection of the Workers Club at Newcastle which led to its destruction in the earthquake of December 1989. 178 At page 567 Kirby P (with whom Powell JA concurred) found in favour of the GIO. In its relevant parts the judgment says:- "Therefore, the relevant "occurrence" must be limited to the earthquake itself. This characterisation conforms with common sense. The most direct and most obvious cause of damage to the club was the Newcastle earthquake. Moreover, as the appellant pointed out, this characterisation conforms with the information provided by both parties in the "Agreed Statement of Facts" supplied to Bainton J and the letters sent by the respondent to the appellant on 23 December 1991." 179 His Honour said that clause (a)(ii) required that the occurrence be "in connection with the business of the insured". He pointed out that the relevant tasks impugned in this case related to the inspection and approval of various building works within the City of Newcastle and went on to say:- "However, it cannot be said, on any reasonable construction of the phrase, that the "occurrence", in this case, the earthquake, occurred in connection with these activities." and added:- "Even if this conclusion were open to some doubt, and I do not feel that it is, the respondent conceded in its written submissions that 'the earthquake alone would not be an event in connection with the business of the Council'. For this reason, the Club's claim against the respondent does not fall within insuring Clause (a)(ii) of the policy." 180 On this point, Sheller JA, dissented. At page 572:- "But when the phrase speaks of 'caused by an occurrence', in my opinion, it speaks in the context of the insured's legal liability for injury or damage from an occurrence which is 'causally relevant', a phrase I have taken from Fleming on the Law of Torts 8th Edition (1992), Sydney Law Book Co. at 194. In that context the occurrence is not the earthquake but the insured's act which rendered it legally liable to pay. Thus if a structure is unsound because the insured designed it negligently the fact that its collapse was caused by an earthquake does not mean that it was not caused by an occurrence or event of negligence." 181 A better understanding of what this case decided is derived from a consideration of its history through various jurisdictions. 182 O'Keefe CJ in Comm D had dealt with a case between the parties in which the issue was whether the policy covered the Council for claims made by third parties for personal injuries suffered by them when the Workers' Club building collapsed in the earthquake. He found in favour of the Council and against GIO. 183 In the meantime Bainton J had dealt with a case between the parties in which indemnity was sought from the insurer in respect of a claim made by the owner of the Club against the Council. He, too, found in favour of the Council. 184 GIO appealed to the Court of Appeal in both cases. Its appeal was substantially against the decision of Bainton J as the matter which O'Keefe CJ in Comm D had considered had been settled. The appeal against his judgment was brought only to prevent his findings further operated as an issue estoppel. 185 In each of these cases there were two main issues. First whether the damage or injury was an occurrence "in connection with the business of the insured" and, secondly, whether appropriate notice of claim had been given by the Council and if not, the effect of section 40 of the Insurance Contracts Act 186 In his judgment on the appeal to the Court of Appeal, Kirby P stated that one of the questions for decision was "Is the respondent's claim for indemnity in respect of the Club's claim within clause (a)(i) of the Policy". The majority answered this question in the negative. That this put an end to the Council's chances of success in the two cases was recognised by the President at page 567 line F. However, he went on to consider the issues of notice and the effect of section 40 of the Insurance Contracts Act. 187 An application for Special Leave was made to the High Court which granted leave limited to the issue concerning the construction of section 40 of the Insurance Contracts Act even though this was in issue which did not need to be determined in the light of the findings of the Court of Appeal in favour of GIO on the other issue. The judgment of the High Court (unreported, 2 December, 1997) set aside the orders of the Court of Appeal and remitted the case which had been heard by Bainton J back to the Court of Appeal for further consideration. 188 In my view the facts in the case of GIO General Insurance -V- Newcastle City Council are distinguishable from the facts in the present case. 189 The passages from the judgment of Kirby P, which are set out above indicate that His Honour relied upon the statement of facts which were presented to the Court. 190 In the present case Infocus claims indemnity for costs which it is liable to pay arising out of the claim made by the plaintiff. The particulars of that claim are set out earlier in this judgment under the heading "The Plaintiff's Allegations Of Negligence against Infocus". 191 Those allegations claim that the injury to the plaintiff occurred because Infocus, in connection with its business of erecting stand at the Motor Show Exhibition, required the plaintiff to work excessive overtime without making any adequate provision for him to get himself back to his home in the early hours of the morning. They further allege that the subject motor accident occurred in connection with the business of Infocus because the plaintiff had been required by Infocus to work long hours and thereby to become excessively fatigued. 192 Accordingly, I would hold that the accident of the plaintiff and the resulting claim against Infocus in respect of which indemnity is claimed are each an occurrence in connection with the business of the insured. 193 Accordingly, on this claim I find in favour of Infocus against GIO.

The Cross Claim of Infocus against STE 194 The relevant part of this cross claim is that there was an agreement between these parties that STE would either indemnify Infocus or have insurance for the benefit of Infocus and to hold it harmless against claims such as that made by the plaintiff. 195 Infocus claims that in or about November 1995 Ms Karam (its Director) agreed with Mr Kinnaird on behalf of STE that STE would arrange workers' compensation and other insurance to cover the liability of Infocus, if any, to the plaintiff. 196 The evidence of Ms Karam at pages 164 and 165 is:- "As far as I can remember, he said that there would not be a risk. There will be no risk to Infocus Design as he will be indentured by Sydney Training and Employment, that 'we will be paying all of his annual leave and sick pay and also his workers compensation and at any time if you are not happy with him, with the apprentice, that you can let us know and we will find him another host'." She added:- "Yes, he did, he said that 'we would take care of workers compensation' and I can't remember exactly, but I believe he said that anything to do legally with Scott would be taken care of by Sydney Training - I made a mistake - I should have said anything as far as insurance goes, not legally." 197 After this conversation and on the basis of it, according to Ms Karam, she interviewed prospective apprentices including the plaintiff and took the plaintiff on. 198 In a statement dated 8 December 1999, Ms Karam said:- "I specifically remember that I had a discussion with Peter Kinnaird and he told me that Sydney Training was set up to take the responsibility off companies that are looking to have apprentices and that if we were to host an apprentice from them they would look after all the apprentice's entitlements, including sick leave, recreation leave, workers compensation and any other entitlement. He also said 'at any time you don't need the apprentice, then let us know and we will find another host. If you are not happy with the apprentice then let us know and we will supply another one. This also takes the onus off you under the unfair dismissal laws'. There was no written contract with Sydney Training and Employment Limited other than the Order Form /Application For Credit". 199 At page 201 Ms Karam was asked:- "Q. Can you just tell us again, as best you recollect, what was said to you about insurances by Mr Kinnaird?" A. I know I am supposed to be saying it in the first person, but it was a long time ago. I can say to you that I believe that he was insured. I understood clearly that he was insured for his Workcover, workers compensation through the Furnishing Group and I believe that I had adequate insurance for my other employees and sub contractors or they had their own insurances and I would not have let somebody work if I had, at any stage, thought that they were at risk or that they were uninsured." 200 On at least one occasion prior to the motor accident the plaintiff had a minor injury at work and had some days off for which he was paid workers compensation by STE's insurer. 201 Set out earlier is the letter from STE to Infocus of 21 August 1997 in which STE wrote:- "We are the employer and pay all taxes, superannuation and workers compensation premiums for Scott." 202 Infocus submitted that this agreement was indistinguishable from that considered by the Court of Appeal in WSROCG -v-Statrona Pty Limited referred to earlier. In that case the apprentice had suffered a serious injury whilst working at the premises of Statrona. He was then apprenticed to WSROCG. After considering the facts of that particular case it was held that WSROCG had agreed to obtain cover to extend to liability to workers compensation payable to the apprentices accepted by Statrona from WSROCG. Mahoney AP pointed out that such cover may not extend to all injuries suffered by such apprentices while working in Statrona's premises but it would at least extend to liability for Common Law damages for injuries which would give rise to workers compensation liability. The injury to the apprentice was assumed to be such. 203 In my view the facts upon which the Court of Appeal came to its decision in Statrona were quite different from those in the present case. 204 The promise of STE to Ms Karam was that it would take out and keep in force an insurance policy which would cover injuries sustained by the plaintiff in his course of employment both under the Workers Compensation Act and for the extended Common Law cover under that Act. In fact it complied with this term. 205 In short Infocus has failed to satisfy the Court on the balance of probabilities that STE agreed to either to indemnify Infocus or to have insurance for the benefit of Infocus and to hold it harmless against claims such as that made by the plaintiff. The agreement with STE was limited to having insurance which covered claims by the plaintiff under the Workers Compensation Act including the Common Law extension. It complied with this agreement. 206 Accordingly, the claim of Infocus against STE fails. Formal Orders

1. On the action by the plaintiff against STE and Infocus there will be judgments in favour of the defendants against the plaintiff.

2. On the cross claim of Infocus against AMP Workers Compensation Services (NSW) there will be judgment in favour of the Cross Defendant against the Cross Claimant.

3. On the cross claim of Infocus against GIO Australia Limited there will be judgment in favour of the Cross Claimant against the Cross Defendant. I invite submissions as to the appropriate form of order.

4. On the cross claim of Infocus against STE there will be judgment in favour of the Cross Defendant against the Cross Claimant.
5. I invite submissions as to costs.

Last Modified: 10/31/2002 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.