YI v THE SERVICE ARENA PTY LTD

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40199/2001 DC 4597/97

MASON P HEYDON JA YOUNG CJ in EQ Tuesday 13 November 2001 WON BAE YI v THE SERVICE ARENA PTY LIMITED

JUDGMENT 1 MASON P : In 1994 the respondent was a training provider operating under an Agreement with the Commonwealth Department of Employment, Education and Training. Its core obligation was to conduct a training course according to departmental guidelines for people seeking to enter or re-enter the work force. The Agreement contemplated that trainees would be given "work experience/observation" arranged by the respondent. 2 The appellant was aged 31 at the time. He had lived in Australia since he was 17. He spent a short time at school before embarking upon a wide range of jobs, most of them involving manual work of one kind or another. Between 1981 and 1986 he had jobs as a machine-operator for a liquid paper manufacturer, at a printing company, as a kitchen hand, a grocery delivery man, a plumber's labourer and a cleaner. Between 1987 and 1989 he worked as a machine-operator doing occasional moderate to heavy lifting. In about 1990 he hurt his back while lifting a metal roll but was able to return to work after about two days off. He worked as a machine-operator between 1990 and 1992. He played soccer between 1982 and 1992. In 1993 he ran his own business repairing car radiators, but this business failed after about six months. He then went onto unemployment benefits. 3 In early 1994 he attended Bankstown TAFE College for about three months, doing an adult basic education course. On 30 June 1994 he entered into a Job Search/New Start Activity Agreement. This contract with the Commonwealth sought to make his entitlement to particular Commonwealth benefits conditional upon him making genuine attempts to obtain employment, including embarkation upon a "Return to Work Plan". 4 In this context he enrolled with the respondent to undertake a training program. The course started on 1 August 1994. For about a fortnight he participated in activities organised by the respondent with a view to developing personal and vocational skills and identifying a career option. 5 The respondent arranged for the appellant to attend a furniture factory at Bankstown that was operated by Marqual Enterprises Pty Limited. The letter of introduction from the course lecturer confirmed that the corporation had agreed to take the appellant as a work experience student between 15 and 26 August 1994. The work experience position was described as "general hand" and the letter stipulated that: The work experience is meant to provide the students with an insight into the position and industry.

6 One can infer that both the appellant and his lecturer considered the particular work experience to be suitable to the appellant's expressed preference, aptitude and general capacities. There is no evidence that the appellant had any pre-existing problem with his back or that he suggested to the lecturer that he did. 7 The same lecturer completed an assessment report (Blue 131). It was obviously created after the accident referred to below, but is nevertheless capable of providing some evidence as to the lecturer's contemplation at the time of the original placement. It states that the appellant was seeking a job as a cabinet-maker and that he had the experience to achieve this type of work. The duties were described as "assembling cabinets and deliver" . The report concludes by stating: Yi only completed 3½ days and hurt his back and was unable to complete his work experience and the course.

8 At the factory the appellant had been put under the immediate supervision of a man called "Dina" and in the first couple of days he assisted Dina in various tasks including the delivery of furniture. He experienced some back pain at this time, but it is not suggested that he reported any injury or problems due to lifting to his course lecturer before the incident of 18 August. His own response to the initial pain stemming from the deliveries was: I felt back pain but because I been out from work for a long time so I thought just normal simple back ache.

9 The particular accident occurred on 18 August 1994, his fourth day at work experience. He was assembling a desk which then had to be lifted and put on to the floor. The appellant said that he had lifted the desk from a bench that was 30-40cm above the floor. The desk weighed about 40 kilograms. He demonstrated in court the way in which he (following Dina's example) lifted the desk, by picking it up in both hands, lifting it out in front of him and raising it up and placing it on top of his head with arms elevated above the shoulder. It is scarcely surprising that he injured his back. He was not given any instructions by Dina as to the way to go about it. 10 Initially the appellant sued both the respondent and Marqual Enterprises Pty Limited, but when it was confirmed that Marqual had passed into insolvent liquidation, the appellant did not press his claim against it. 11 The learned trial judge found a verdict for the defendant, although he assessed damages provisionally against the possibility that an appeal might succeed. 12 It was common ground at trial that the respondent owed the appellant a duty of care. The case was fought on the issues of the scope of that duty of care and whether the respondent breached that duty having regard to the extent of its knowledge of the work experience situation entered into by the appellant and the reasonableness of the steps it took to prepare the appellant for the foreseeable eventualities. 13 Judge Price accepted the appellant's evidence that he had lifted the desk in the manner he had seen Dina lift a similar desk and that he thereby sustained injury to his back. The judge found that Dina's manner of lifting was unsafe and that it would have constituted a breach of the duty of care owed by Dina (and vicariously by Marqual Enterprises) to the appellant. His Honour further held that: There is no evidence that the method of lifting by Dina was that usually employed at Marqual. There is no evidence that Dina's employer knew that Dina was lifting desks in this manner.

14 His Honour then addressed the claim against the respondent, observing that his findings referrable to Dina and his employer did not determine the question whether the respondent breached its duty of care to the appellant. 15 The submissions discussed in the District Court judgment make it plain that the case at trial did not involve the suggestion that the respondent owed a non-delegable duty of care to the appellant. 16 The trial judge stated the test of breach of duty of care in the terms expressed by McHugh JA in Gorman v Williams (1985) 2 NSWLR 662 at 680-1. 17 Judge Price recorded that it was submitted that the respondent would have foreseen that there was a real risk of injury to the appellant, that submission being founded on the contention that the respondent knew the appellant's duties with Marqual "involved the assembling of cabinets and the delivery of those cabinets… and therefore this may involve heavy lifting" . In order to avoid the foreseeable risk of injury the respondent was said to have had a duty not to send the appellant to a place where it knew or ought to have known that he was likely to have had to do heavy lifting. 18 In this context, his Honour addressed the evidence as to what the respondent knew prior to the appellant's attendance at Marqual. He found that the appellant himself had not been told that the work would involve heavy lifting. There was therefore no direct evidence as to what the respondent knew, before the accident. 19 Addressing the submission as to circumstantial evidence of knowledge, his Honour referred to evidence (which he apparently accepted) that: (i) the appellant nominated the position of cabinet maker; (ii) Mr Sherwood did not have a conversation with the appellant as to the nature of the duties he would be doing at Marqual; (iii) the respondent's obligation was to provide work experience/observation; (iv) the letter of introduction referred to work experience providing the student with an "insight" into the position and industry; (v) that letter also referred to the position as being "general hand". 20 From these materials his Honour inferred that the provision of work experience did not obligate Marqual to train the appellant as a general hand or cabinet maker, but was intended to provide him with an insight into the industry. He concluded that: There is no evidence that Sherwood or anybody on the part of the defendant knew that work experience with Marqual would involve the plaintiff in the task of assembling cabinets. There is no evidence that the assembling of cabinets would be likely to involve him in lifting. (It will be seen below that I disagree with the trial judge on these specific matters. I would be prepared to draw these limited inferences from the primary facts, although nothing ultimately turns on this.) 21 Relevant to the issues which the appellant seeks to ventilate on appeal, the judge stated his dispositive findings in the following terms: The onus of proof is on the plaintiff on the balance of probabilities. Considering the evidence in combination I am not satisfied upon the probabilities that the only rational inference is that Sherwood or anybody else on the part of the defendant knew or ought to have known the plaintiff's duties involved the assembling of cabinets. I am not satisfied that the only rational inference is Sherwood or anybody else on the part of the defendant knew or ought to have known the plaintiff's duties may involve heavy lifting. I am not satisfied that Sherwood or anybody else on the part of the defendant knew or ought to have known the plaintiff's duties involved the assembling of cabinets or may have involved heavy lifting.

The defendant knew I find the plaintiff belonged to a class of persons who had probably not worked for in excess of twelve months, was especially disadvantaged, had a loss of confidence and was unsure of his job goals and paths. I do not conclude that the defendant with knowledge of those facts knew or ought to have known the defendant was not fit for physical work. I am not satisfied the taking of a resume would have assisted as the plaintiff did not know that he was unfit and might have a problem lifting until his accident.

It was not reasonably foreseeable the plaintiff would be involved in heavy lifting. Nothing had been brought to Sherwood's attention or to the attention of the defendant requiring or suggesting to him that he should call upon the plaintiff within the first three days of his work experience. The defendant, I conclude, did not breach its duty of care in not contacting the plaintiff sooner than later. I am not satisfied a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff.

I conclude the defendant did not breach the duty of care it owed to the plaintiff whereas Marqual did. The cause of the plaintiff's injury (other than considerations of contributory negligence) was the negligence of Dina.

22 The appellant's primary submission on appeal was that there was a foreseeable risk of injury (through lifting) and that the respondent was negligent in failing to take any action to prevent it happening to the appellant. As part of this submission the appellant challenged the trial judge's conclusion that there was nothing to make it foreseeable that the appellant would be involved in the task of assembling cabinets, particularly in circumstances that would involve heavy lifting. 23 Alternatively, the appellant submitted that the duty of care owed by the respondent was of a non-delegable nature, namely a duty to ensure that reasonable care was taken during the work experience.

Was the appellant in breach of its ordinary duty of care? 24 The respondent accepted that it owed a duty of care with regard to the placement of the appellant in a work experience situation. The dispute between the parties concerned the content or scope of that duty. 25 The extent of a duty falls for decision in relation to "concrete facts arising from real life activities" ( Perre v Apand Pty Ltd (1999) 198 CLR 180 at 211 per McHugh J). Accordingly, when one moves outside traditional categories like motorist and injured road user, it is useful to examine the extent of a defendant's duty of care in the context of the facts giving rise to the particular claim. Inevitably there will be overlap between the issues of (extent of) duty of care, breach and foreseeability of damage (see generally Marrickville Municipal Council v Moustafa [2001] NSWCA 372). 26 The appellant points to the fact that it was a condition of his continued receipt of Commonwealth unemployment benefits that he enter into a Job Search/New Start Activity Agreement and thereby submit to training that would involve appropriate work experience. So much may readily be accepted. It does not of course follow that the appellant was to be equated with a child required by law to attend school or an employee under the direct and continuing control of an employer. By definition, work experience was to take place away from the premises of the Bankstown Commonwealth Employment Service or the direct supervision of his lecturer Mr Sherwood. Furthermore, the appellant was an adult with considerable workplace experience including that derived from manual employment of various forms. 27 With some justification, the appellant challenged that portion of his Honour's reasoning set out above (par 21) which spoke in terms of being satisfied that "the only rational inference" was that the respondent knew or ought to have known something. This seems more appropriate to a criminal case. But this is not determinative of the appeal which is by way of rehearing and in a situation where the primary facts are not in dispute. 28 The appellant submitted that this Court should infer that the respondent through Mr Sherwood knew or ought to have known that the appellant's duties might involve heavy lifting. 29 I am not persuaded that the trial judge erred in refusing to draw such an inference. 30 Unlike Judge Price, I do think that it was on the cards that the work experience would involve more than mere observation. The very distinction between experience and observation is implicit in that portion of the Agreement referred to in par 1 above. And the very fact that this was a 31 year old man with a history of manual employment reinforces in my mind the distinct possibility, indeed probability, that the appellant might be given "hands on" experience in his temporary position as a general hand involved in cabinet making in a small suburban furniture making factory. I readily accept that such experience might involve aspects of cabinet making, including the lifting of materials. In his own words, the appellant went to Marqual "to learn cabinet making, not to see cabinet making" (Black 32). 31 But there is lifting and lifting. 32 Nothing in the facts had put the respondent on notice that the appellant was being sent to a dangerous factory or one with a poor history of workplace safety. 33 Obviously there was a risk of accidents occurring, as with every department of life, including accidents consequent upon the fault of third parties and/or the fault of the appellant himself. However, the respondent's duty remained one of reasonable care. There have been many reminders in recent decisions of the High Court and of this Court to the effect that more than foreseeability of the risk of injury must be established before a court may find breach of a duty of care. For example, in Derrick v Cheung [2001] HCA 48 at [13] the High Court recently observed that: Few occurrences in human affairs, in retrospect, can be said to have been, in absolute terms, inevitable. Different conduct on the part of those involved in them almost always would have produced a different result. But the possibility of a different result is not the issue and does not represent the proper test for negligence. That test remains whether the plaintiff has proved that the defendant, who owed a duty of care, has not acted in accordance with reasonable care.

34 It was relevant to the issue of breach that the appellant was an adult who was not labouring under any physical or mental disabilities disclosed to the respondent. He was being sent to a situation where supervision would be afforded and where the panoply of legal protection provided to those working in factories was in place. To an extent, this meant that the appellant was being sent to a situation where he would be primarily reliant upon those with whom he was working as well as his own capacities for self-protection to ensure that no harm befell him. But it was not incumbent upon the respondent to shroud him in a mantle of total protection against any misfortune that might befall him. Subject to the non-delegable duty issue discussed below, some level of fault had to be established against the respondent, in the sense of some failure on its part to take reasonable care having regard to the calculus of factors discussed by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-8 before liability could be found. 35 The principal difficulty facing the appellant is to identify a reason why the respondent was negligent in not addressing the particular risk that ultimately came to pass having regard to the range of matters that a person in its position might reasonably be expected to do faced with a class of students going out into a variety of work experiences. 36 In my opinion the risk of injury through lifting a 40 kilogram desk in an inappropriate manner was not so likely or so horrendous in its possible impact as to require something particular to have been done about it by the respondent. I repeat that there was nothing to put the respondent on notice that simple tasks like lifting a piece of household furniture from a bench would be done in a dangerous manner. Expert evidence disclosed that alternatives to Dina's machismo were reasonably available including (i) provision of a trolley; (ii) a monorail-mounted or jib-mounted joist over the work-station; (iii) instruction to call on the assistance of a fellow-worker to help with lifting; and (iv) training and supervised practice in safe lifting techniques before commencement of work. 37 The expert report from which this evidence is drawn is framed in terms of reasonably practicable options available to an employer. As indicated already, the appellant would have had a very viable claim against Dina and Marqual Enterprises. Judge Price correctly recognised that the claim that the respondent was in breach of its duty of care raised different issues. Among other things, the respondent was entitled to take account of its reasonable assessment of the likelihood that any heavy lifting would be done in an appropriate way. 38 The trial judge was correct to conclude that no breach of an ordinary duty of care was established against the respondent. 39 It is unfortunate that events came about that left the appellant without effective recourse against Marqual Enterprises or its employee. The reason why the appellant has not made any claim under the Government Voluntary Workers and Public Liability Insurance by which he was covered (according to the respondent's assurance) remain unexplored and are ultimately irrelevant. But these factors cannot be used to create a liability in the respondent where none would otherwise have existed.

Did the respondent owe a non-delegable duty of care? 40 I would reject the alternative claim based upon a non-delegable duty of care. It was not raised at trial. It is unsupported by authority. The facts are not analogous to any established category of non-delegable duty and do not support application of the principles underlying attribution of such a duty. 41 I elaborate upon the last sentence by pointing out that the degree of supervision and control assumed over the appellant was very different to that involving a school child, hospital patient, employee or even an entrant onto property (assuming that occupancy might entail such a duty). It is true that embarking upon work experience was effectively a condition of the appellant receiving the relevant Commonwealth benefit. But he was an adult with reasonable capacity to control what he did on the job. To subject a body such as the respondent with a duty to ensure that the appellant suffered no harm through the want of care by third parties over whom the respondent itself had no direct control is unduly onerous and beyond the reasonable expectations of the parties. They would have expected that the appellant (like his fellow students) would be given a relatively free hand to try out his chosen work experience. 42 It is quite fallacious to suggest that the nature or level of control by the respondent over the appellant was such as to generate the special duty discussed by Mason J (Deane and Dawson JJ agreeing) in his remarks in Kondis v State Transport Authority (1984) 154 CLR 672 at 687 where he said (emphasis added): The element in the relationship between the parties which generates a special responsibility or duty to see that care is taken may be found in one or more of several circumstances. The hospital undertakes the care, supervision and control of patients who are in special need of care. The school authority undertakes like special responsibilities in relation to the children whom it accepts into its care. If the invitor be subject to a special duty, it is because he assumes a particular responsibility in relation to the safety of his premises and the safety of his invitee by inviting him to enter them. And in Meyers v Easton the undertaking of the landlord to renew the roof of the house was seen as impliedly carrying with it an undertaking to exercise reasonable care to prevent damage to the tenant's property. In these situations the special duty arises because the person on whom it is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised. 43 In their supplementary written submissions of 25 October 2001 the appellant's counsel quote the final sentence in this passage (beginning "In these situations the special duty… ). However, counsel omit the first three words, thereby arguably skewing the thrust of Mason J's intent, which seems to be to draw some common thread out of the specific examples earlier stated, without suggesting that it is the touchstone of a special duty in different circumstances (see also Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 550-1 per Mason CJ, Deane J, Dawson J, Toohey J, Gaudron J. Cf Lepore v State of New South Wales (2001) AustTortsR ¶81-609 at [103] per Heydon JA). Be that as it may, the caution in extending the categories of non-delegable duty urged by Gummow J in Scott v Davis (2000) 74 ALJR 1410 at [248] is apposite. The remarks of Mason J in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 33, to which our attention was drawn by the respondent further confirm my conclusion that this situation did not attract the more stringent duty of care. 44 The appeal should be dismissed with costs. 45 HEYDON JA: I agree with the President. 46 YOUNG CJ in Eq: I also agree with Mason P. **********************

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