Boyded Industries Pty Ltd v Canuto

[2004] NSWCA 256

CITATION:	Boyded Industries P/L v Canuto [2004] NSWCA 256
HEARING DATE(S):	9 March 2004
JUDGMENT DATE:	30 July 2004
JUDGMENT OF:	Beazley JA at 1; Santow JA at 32; Stein AJA at 66
DECISION:	Appeal allowed with costs.
CATCHWORDS:	NEGLIGENCE - respondent/employee injured herself when glass shattered after she sat on glass table at used car premises occupied by appellant/quasi-employer - respondent employed by owner of the premises Auburn Services Trust - whether the appellant or Auburn Services Trust was liable in negligence either as, or with duties equivalent to, the employer of employee - at time of accident appellant accepted employee had worked at those premises under its direction, supervision and control - whether respondent was contributorily negligent - extent of duty of care to maintain safe system of work - distinction between maintaining safe system of work and simple uncomplicated operation within normal system of work involving obvious danger in ordinary commonsense. - CAUSATION - whether causation and breach of duty were before trial judge - whether warning sign or verbal warnings would have averted accident - Van der Sluice considered - whether unsafe practice had developed - provision of safe working environment.
CASES CITED:	Andar Transport Pty Limited v Brambles Ltd [2004] HCA 28 Bankstown Foundry Pty. Ltd. v. Braistina (1986) 160 CLR 301 Bourke v. Butterfield & Lewis Ltd (1927) 38 CLR 354 Bus v. Sydney City Council (1989) 167 CLR 78 Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 207 ALR 52 Davies v. Adelaide Chemical & Fertilizer Co. Ltd. (1946) 74 CLR 541 Ghantous v. Hawkesbury Shire Council (2001) 206 CLR 512 Ghunaim v Bart [2004] NSWCA 28 Hamilton v. Nuroof (W.A.) Pty. Ltd. (1956) 96 CLR 18 Liftronic Pty Ltd v Unver (2001) 179 ALR 321 McLean v. Tedman (1984) 155 CLR 306 Nicol v Allyacht Spars Pty. Limited (1987) 163 CLR 611 Parsons v Randwick Municipal Council [2003] NSWCA 171 Sungravure Pty. Ltd. v. Meani [1964] 110 CLR 24 TNT Australia Pty Limited v Christie & Ors (2003) NSWCA 47 Twynam Pastoral Co Pty Ltd v Bennett [2002] NSWCA 319 Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 Waverley Municipal Council v Swain [2003] NSWCA 61 Woods v Multi-Sport Holdings Pty Limited (2002) 208 CLR 460 Wyong Shire Council v Short (1980) 146 CLR 40
PARTIES :	BOYDED INDUSTRIES PTY LTD t/as Boyded Parramatta (Appellant) Grace CANUTO (Respondent)
FILE NUMBER(S):	CA 40077/03
COUNSEL:	C R R HOEBEN, SC (Appellant) G B HALL, QC/ C LOCKE (Respondent)
SOLICITORS:	Curwood & Partners (Appellant) Velleley & Associates (Respondent)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 5492/00
LOWER COURT JUDICIAL OFFICER :	Dodd DCJ

CA 40077/03
DC 5492/00

BEAZLEY JA
SANTOW JA
STEIN AJA

30 JULY 2004

BOYDED INDUSTRIES PTY LTD t/as Boyded Parramatta v Grace CANUTO

Judgment

1 BEAZLEY JA: The respondent sued the appellant for injuries she received whilst working as a customer relations manager for a new and used car dealer known as Boyded Holden. The respondent’s case was conducted on the basis that although the appellant was not, in law, her employer, it owed to her the same duty as that of employer to employee. That basis was accepted by the first appellant so that her claim was determined on the basis of the duty of care owed by an employer to an employee. The plaintiff was successful in her claim. The appellant appeals against the verdict thus found against it.

2 I have had the benefit of reading in draft the judgments of Santow JA and Stein AJA in which the facts are set out in detail. Accordingly, I will only refer to the facts to the extent necessary to highlight the differences in the approach I take to the determination of the issues on the appeal. Before turning to those facts, it is convenient to refer, briefly, to the principles which govern an employer’s duty of care to an employee. The principles are not new.

3 In Bankstown Foundry Pty. Ltd. v. Braistina (1986) 160 CLR 301, Mason, Wilson and Dawson JJ confirmed that the employer’s duty was, as had been stated by the Court in Hamilton v. Nuroof (W.A.) Pty. Ltd. (1956) 96 CLR 18 per Dixon CJ and Kitto J at 25,”… that of a reasonably prudent employer and it is a duty to take reasonable care to avoid exposing the employees to unnecessary risks of injury”. Their Honours added at 308-309:

“Furthermore, it has long been recognised that what is a reasonable standard of care for an employee’s safety is ‘not a low one’”

and that

“… what reasonable care requires will vary with the advent of new methods and machines and with changing ideas of justice and increasing concern with safety in the community.”

4 Recent case law in the area of negligence reveals a trend whereby greater emphasis is to be placed upon the personal responsibility of individuals for their own actions. That emphasis may be seen in Woods v Multi-Sport Holdings Pty Limited (2002) 208 CLR 460; Ghantous v. Hawkesbury Shire Council (2001) 206 CLR 512; Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29. In Cole Gleeson CJ observed at [13], that “… the civil law [holds] a person responsible for his or her acts”. Callinan J, in dealing directly with the facts in that case, also emphasised matters of personal responsibility at [131] when he said: “…in general… vendors of products containing alcohol will not be liable in tort for the consequence of the voluntary excessive consumption of those products…”

5 It is has been observed that this re-emphasis represents a “change in the law”: see Waverley Municipal Council v Swain [2003] NSWCA 61 per Spigelman CJ at [114]. The Chief Justice was not, in that comment, indicating that there has been a change in legal principle, but rather a re-focussing on the emphasis to be accorded to the personal responsibility of the individual. It is important to keep in mind that this emphasis does not automatically lead to a finding of no breach of duty in circumstances where a risk was obvious so that the plaintiff should have avoided it or where the employee was inadvertent to her/his own safety. In Woods v Multi-Sport Holdings, a case involving a question as to the obviousness of a risk, Gleeson CJ said at [112]:

“What reasonableness requires by way of warning from an occupier to an entrant is a question of fact, not law, and depends on all the circumstances, of which the obviousness of a risk may be only one. And, as a proposition of fact, it is not of universal validity. Furthermore, the description of a risk as obvious may require closer analysis in a given case.”

6 Kirby J, in the same case, said at [128] when discussing whether there had been a breach of duty by a failure to warn said:

“The duty to warn depends on the circumstances of the case not just a suggested lack of obviousness”.

See also my remarks in my dissenting judgment in Parsons v Randwick Municipal Council [2003] NSWCA 171 at [58].

7 The obviousness of a danger and personal carelessness are relevant in the determination of the question whether there has been a breach of duty by an employer. However, at all times, the duty to take reasonable care for the safety of employees remains. That does not change, “and even if the employee is entrusted with its performance it remains an independent obligation of the employer of a more comprehensive kind to ensure that reasonable care is taken” Nicol v. Allyacht Spars Pty. Limited (1987) 163 CLR 611, per Dawson J at 625. If, as a question of fact, an injury is caused solely by the employee’s fault, the employee cannot succeed in an action in negligence against the employer: Nicol per Mason CJ, Toohey and Gaudron JJ 619. However, the fact that the employee partly devised the system of work does not defeat the claim: see Nicol at p.617; Andar Transport Pty Limited v Brambles Ltd [2004] HCA 28 at [54].

8 The effect of inadvertent or careless conduct of an employee was considered by the High Court in McLean v. Tedman (1984) 155 CLR 306. In that case the appellant, a garbage collector, was injured in the course of his duties when he was hit by a vehicle travelling on the correct side of the road. The appellant had emerged from behind the garbage truck and had run about 5 metres across the road when he was struck. The trial judge found both the driver and the appellant’s employer to be negligent. In relation to the employer his Honour considered it was obvious that a workman, seeking to service houses on the opposite side of the street from where the truck was parked, would emerge from behind the parked truck. He considered that, if the workman was inadvertent or careless when he ran out, the danger of being hit by a vehicle travelling in the opposite direction was obvious and there was a duty to take suitable precautions to prevent such an accident. This finding was overturned on appeal on the basis that the method of carrying out the work (that is running from side to side of the street rather than up and down the street, one side at a time) was a matter of the workers’ choice and deliberately used by them to shorten their working time. It was held that to the extent there might be inadvertence or carelessness by the workmen, that was a matter over which the employer had no control.

9 The High Court reinstated the verdict in favour of the appellant. In doing so, Mason, Wilson, Brennan, Dawson JJ (Gibbs CJ agreeing on this aspect of the case) in referring to the employer’s duty of care, including the duty to take account of carelessness or inadvertence, said at p.312:

“Many statements are to be found in the cases which give emphasis that in discharging his duty to take reasonable care to avoid injury to his employee an employer is bound to have regard to any risk of injury that may occur by reason of an employee’s inadvertence, inattention or misjudgment in performing his allotted task. Thus, in Sungravure Pty. Ltd. v. Meani (1964) 110 C.L.R. 24 at p. 36, Windeyer J. said: ‘A safe system of work is one that is safe for an average workman taking reasonable care for his own safety.’ But his Honour immediately followed that comment with the observation: ‘It is not a system which is safe only for persons of superior skill whose attention never wanders.’ More recently, in Ferraloro v. Preston Timber Pty. Ltd. (1982) 56 A.L.J.R. 872, at p.873, the Court in its unanimous judgment said:
‘The employer’s duty, to whomsoever it falls to discharge it, is to take reasonable care to avoid exposing his employee to an unnecessary risk of injury and the employer is bound to have regard to a risk that injury may occur because of some inattention or misjudgment by the employee in performing his allotted tasks’”

Their Honours continued at 312-313:

“If there is a foreseeable risk of injury arising from the employee’s negligence in carrying out his duties then this is a factor which the employer must take into account. That this is so was implicitly acknowledged by Taylor J in Smith v. Broken Hill Pty. Co. Ltd. (1957) 97 C.L.R. 337, at p.343, when he referred to an employer contemplating ‘the possibility of thoughtlessness or inadvertence – or to use what is, perhaps, a strong word, carelessness’.”

10 Their Honours’ emphasised at p.313 that:

“… the employer’s obligation is not merely to provide a safe system of work: it is an obligation to establish, maintain and enforce such a system … in deciding whether an employer has discharged his common law obligation to his employees the Court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands.”

11 In Bourke v. Butterfield & Lewis Ltd (1927) 38 CLR 354, a case involving a statutory duty in circumstances where contributory negligence was alleged, Knox CJ, Gavan Duffy and Starke JJ said at p.360:

“… it would be unreasonable to attribute to Parliament an intention to impose upon the employer responsibility for an injury which the employee deliberately invites, whether by adopting the means of inflicting it, or by rejecting the means of avoiding it, or for an injury which has happened because the employee deliberately took an unnecessary risk not in the interests of the employer, but for his own purposes. It is not easy to frame an exact formula; but it may be said that the employer is responsible for the negligence, but not for the misconduct, of his employee. Whether the conduct of an employee goes beyond mere thoughtlessness or want of care and amounts to misconduct is in every case a question of fact.”

12 In Sungravure Pty. Ltd. v. Meani [1964] 110 CLR 24, Kitto, Menzies and Owen JJ emphasised that the question whether the act or conduct of an employee was negligent or inadvertent is a question of fact. Windeyer J observed at pp.36-37:

“A safe system of work is one that is safe for an average workman taking reasonable care for his own safety. It is not a system which is safe only for persons of superior skill whose attention never wanders … In the press of affairs anywhere a need to act promptly may sometimes lead to something being done, which has unfortunate results, but which is attributable to an error of judgment rather than a blameworthy want of due care.”

See also Bus v. Sydney City Council (1989) 167 CLR 78.

13 The focus in the cases to which I have referred was on a safe system of work. However, the duty of the employer is not confined to that circumstance. That is merely one manifestation of the circumstances in which the duty applies. Another uncontroversial aspect is the duty to provide a safe place of work.

14 The circumstance that requires particular consideration in this case is that the respondent engaged in an activity that placed her in a position of danger. That is, she sat on a glass table. The question that arises is whether the respondent was solely responsible for her own injury, so that the appellant did not breach its duty of care to her, or whether the respondent’s actions were momentarily inadvertent, in circumstances where the appellant had failed to take reasonable care for her safety.

15 The respondent sustained her injuries at the end of a long day of work when she had been standing for a period of ten hours, during the course of an unusually busy period (the appellant was conducting a “Marathon Sale”). At the time she was interviewing customers in a waiting room, who were negotiating to purchase a vehicle. The room was furnished with four chairs with a glass topped table in between each pair of chairs. The respondent sat on the table which broke, causing her injuries in the manner described in the judgment of Santow JA.

16 The respondent gave evidence, which was not challenged in cross-examination, that she had never been given any direction not to sit on the table and that it was a frequent occurrence for staff to lean and sit on the table: “It used to be done all the time”. The respondent’s supervisor, Mr. Hulls, used to do so (White Book 15). Mr. Hulls was present on occasions when staff sat on the glass tables. He was present on the occasion of the respondent’s injury, being engaged in the negotiations with the customer although it would seem on that occasion he was sitting on one of the chairs.

17 The respondent was not cross-examined on her evidence that people, including both staff and supervisors, frequently sat on the tables.

18 The appellant called evidence from a Mr. Wild who described himself as being “in charge” of the car yard, which comprised two separate yards on the opposite sides of Parramatta Road. His own office was on the other side of the road to where the respondent worked. He gave evidence that he had “once or twice” seen somebody sitting on the frame of the table. He did not specify whether this was an employee or a member of the public. Mr. Wild agreed he had the power to direct staff as to how they carried out their work; that if he knew people were sitting on a glass topped table he would be concerned about it from a safety perspective; and that had he known staff were sitting on the tables he would have given a direction to staff to cease doing so. He said that he had given no direction about the glass table because “commonsense would dictate that you don’t sit on a glass topped-table” (p.119).

19 Santow JA and Stein AJA have characterised the respondent’s conduct in sitting on the glass table as ”simple carelessness” on her part, and that she was careless in circumstances where she knew, before her injury, that to sit on the table was dangerous. Their Honours have characterised the circumstance as “an every day danger” in respect of which nothing by way of warning signs was necessary. Their Honours also considered a warning sign or notice “would do no more than bring to the respondent’s attention what she already knew”. Santow JA added ”it is by no means clear that she would have avoided the risk she took”. That comment was made in relation to the question of causation, to which I shall return shortly. First, however, it is necessary to deal with breach, there being no question that the appellant owed the respondent a duty to take reasonable care for her safety.

20 I have already referred to the factual context in which the question of breach falls to be determined. The matters relevant to the question whether there was a breach of duty may be summarised as follows: employees regularly sat on the glass tables during the course of their duties; this was known or ought to have been known to the appellant; in the first place, Mr. Hulls, the respondent’s direct supervisor frequently sat on the table; in addition, Mr. Wild, the boss, was aware that sometimes people sat on the tables although he did not specify that the persons he had seen do so were employees; Mr. Wild also considered that sitting on the tables was dangerous from a safety perspective.

21 In my opinion, two things emerge from this. First, the employees, including persons in supervisory positions, engaged in a practice during the course of their duties in respect of which there was a risk of injury. Secondly, given that practice, the furniture, in this case the glass tables, provided by the employer in the areas where the employees worked were unsuitable, because they were liable to break. In other words the appellant provided a work environment that was not safe. The appellant contends however, and this has been accepted by the other members of the Court, that the respondent’s conduct on this day was simply foolhardy. Put another way, it was said that the respondent did something she knew to be dangerous so that there was no breach by the appellant of its duty of care.

22 There are a number of answers to this. As I have already explained, there was a practice of the employees to sit on the tables. The respondent did not think it was folly or foolish for an adult to sit on a glass topped table. The respondent explained that she sat on the table on this occasion in circumstances where she was tired. When asked directly “Did you perceive any danger at all associated with the table” she responded “Well no I mean they’re not”. Whilst she agreed that as a matter of commonsense a person probably does not sit on a glass topped table, she said “unfortunately we don’t always use our commonsense”, “I can’t be responsible for my actions every time… Because I am human and we all make mistakes”.

23 Those answers were given in a context where the respondent was at the end of a ten hour shift in a period of work that involved a number of consecutive days working long hours. She also explained “I’d seen other people do it and at the time I actually did it I didn’t think about doing it, I just did it”. To the extent that she conceded that she had asked children to get off the table because “it’s dangerous” her concern did not relate to the fact that it was a glass topped table, rather it related to the fact that children could hurt themselves on the table, that “they might hit their head against the actual side … they might get their fingers stuck in the actual bracing .. they can hurt themselves, anything to do with the table”. It is perhaps interesting to note that no-one asked the respondent whether she appreciated the glass might break. There was no other evidence as to the respondent’s awareness or appreciation of the danger other than that to which I have referred. In particular, there was no evidence that she knew that sitting on the glass table was dangerous.

24 The evidence, in my opinion, demonstrates that the respondent was inadvertent in relation to her own safety in circumstances where the appellant had permitted the very conduct of its employees that the appellant’s manager described as dangerous. It does not, in my opinion, permit of any other interpretation. The appellant’s only response for not taking steps to protect the respondent against that danger was that Mr. Wild thought “one would assume that you don’t sit on a glass table”. He made that assumption, in circumstances where he was aware that people did just that.

25 In my opinion, the appellant was in breach of its duty of care to the respondent in not providing her with a safe place of work and in knowingly permitting the employees to engage in a practice that was considered by the appellant to be dangerous. In my opinion this is a case, where to adopt the words of Latham CJ in Davies v. Adelaide Chemical & Fertilizer Co. Ltd. (1946) 74 CLR 541 at 546:

“There is no evidence upon which it can be found that the accident was due to any deliberate act done in conscious or foolhardy defiance of this realised danger.”

26 Nor is it an answer to the charge that the appellant breached its duty of care to say that the respondent could and should have carried a chair from another office. That, in my opinion, goes to contributory negligence. But in any event, it fails to take account of the respondent’s inadvertence brought about by the conditions of her work on the day of and in the days leading up to the accident.

27 That then leads to the question of causation. There was considerable debate on the appeal as to whether the appellant should have put a warning sign on the tables. Santow JA has indicated first, on the question of breach, that there was no obligation on the employer to put warning signs to avert the respondent’s carelessness. In respect of causation, his Honour has added “such a notice would do no more than bring to the respondent’s attention what she already knew”. Likewise he considers that it was not incumbent upon senior staff to tell an employee sitting on the table to get off.

28 The evidence, on the view I have taken of it, does not unequivocally lead to a conclusion that the respondent knew or fully appreciated the danger of sitting on the table. But in any event, a warning sign may have served to bring back to the respondent’s attention that which she had inadvertently overlooked, namely, that as a matter of commonsense one does not sit on a glass topped table. It was also argued that the there was no evidence from the respondent that she would have obeyed a warning sign. However, the evidence did establish that the respondent was a careful employee who had, when occasion required, given directions to children when she saw them in a position of potential danger. She was not cross-examined to the effect that she did or had a tendency to disobey instructions. It is reasonable in my opinion, to infer that she would have had regard to a sign if placed in an appropriate place.

29 This case, however, is not only about signs, and, in any event, the warning sign may not have been sufficient discharge of the appellant’s duty of care in this case, given the conditions under which the appellant was required to work at this time, namely for long hours, standing for ten hours. The appellant had provided a work environment in which it knew an unsafe practice had developed and it should have taken some steps to avoid the risk of harm that thereby ensued. Those steps should have included instructing staff not to sit on the tables, or providing furniture that was not a potential source of harm. In my opinion, its failure in any of these respects, at least, was not only evidence of breach, but was causative of the respondent’s injury.

30 That leaves the question of contributory negligence. The appellant contends that if it did breach its duty of care, then the assessment of contributory negligence should have been significantly higher than 30% as found by the trial judge. For my part, I would not interfere with that assessment. As I have said, I consider the respondent’s action in sitting on the glass table to be inadvertent. Inadvertence does not bespeak a significant failure to take care for one’s own safety so as to call for an overwhelming apportionment of contributory negligence against a plaintiff. Indeed, it is arguable that in a case of inadvertence, there is no room for a finding of contributory negligence at all. However, as there is no cross-appeal, although I consider 30% is the outmost of the range of the proper exercise of a discretion, in circumstances where the appellant permitted an unsafe practice to operate in its workplace, I would not interfere with the trial judge’s assessment.

31 Accordingly, I would dismiss the appeal with costs.

32 SANTOW JA:

OVERVIEW
This is an appeal by a quasi employer, Boyded Industries Pty Limited. It had the direction, supervision and control of the respondent, who as an employee injured herself when glass shattered after she sat on the appellant’s glass table while conferring with clients in the course of her duties. The trial judge, Dodd DCJ, concluded that the appellant was liable in negligence to the respondent, having failed to place any warning sign as to the danger of sitting on the glass table. This was where according to the trial judge the accident would have been averted with such signs, or if senior employees had themselves repeatedly warned staff and others not to sit on the table.

33 The trial judge found contributory negligence, including causation. The appellant contends that insofar as contributory negligence remains in issue, 65% should be substituted for 30%.

SALIENT FACTS

34 The appellant had premises at Parramatta from which it sold cars (RB, 36). The respondent commenced performing work at those premises on 17 November 1997 as a customer relations manager, though she was employed not by the appellant but by Auburn Services Trust. Although the respondent was not a direct employee of the appellant the appellant accepted in its written submissions on appeal that she had worked at those premises under its direction, supervision and control and that it owed to her the same duty as if she had been its direct employee (TNT Australia Pty Limited v Christie & Ors (2003) NSWCA 47).

35 The respondent worked some 62 hours per week (CAB, 12U-X) and was working her 3rd day out of a 4-day marathon sale (CAB, 13X-14; RB, 38G) on the day that the accident occurred (5 July 1998 (CAB – 12L and 212V)). During these sales a lot more customers would visit the car yards than usual (CAB, 14F; RB 38H-I). The trial judge noted that on this occasion there had been 20-30 more customers than normal. (RB, 38H-I). The respondent had been working for some 10 hours (CAB, 66C), and was tired by 5pm (CAB, 16K).

36 The premises at Parramatta had a used car waiting lounge for customers, which contained two tables and four chairs. It was in this waiting room that the accident occurred. The chairs were arranged in pairs, with a glass-topped table in between each pair of chairs (CAB, 14N-15S). The tables had a metal frame holding the glass top in place (CAB, 14S; RB 38K). The tables supported pots with plants in them (CAB 15L; RB 38P). The respondent submitted that the tables were of solid appearance (CAB, 14X; RB, 38K). Importantly, it was not disputed that other chairs were available from adjacent offices. The respondent admitted that she could have got a chair from one of these offices (CAB, 83M).

37 Before the date of the accident persons including the staff had leaned on and sat on the edge of these tables including a Mr Kevin Hulls (CAB, 15K-16H; RB, 38P-R). Kevin Hulls was the assistant manager for used cars and the respondent reported to him when selling used cars (RB, 38D). Mr Hulls was heavier than the respondent, who weighed about 65kgs at the time of the accident (CAB, 16F). The respondent also gave evidence that she had observed other staff sitting on the tables in the presence of Mr Hulls (CAB, 16D; RB, 38R).

38 Before the accident no warning had been given to the respondent or to other persons performing work at the appellant’s premises not to sit on the glass-topped tables (CAB, 16G; RB, 38T). The respondent was not aware of any prior accidents involving a glass-topped table (CAB, 68S), nor was Mr Wild, the Dealer Principal in charge of the premises (CAB, 111Q (as amended)). The respondent did however concede in cross-examination that she had, before the accident, told children to get off the table or be careful around the table (CAB, 64P-Z). Importantly, she also agreed that she knew she should not sit on a glass-topped table (CAB, 65-67).

39 On the day of the accident at approximately 5.00pm the respondent was in the used car waiting lounge while a sale was being negotiated (CAB, 17F; RB, 38V). Mr Hulls was present in the room and was a participant in the negotiations (CAB, 88; RB, 39C). Robyn Maros, who had known the respondent for some years was the customer (CAB, 17; RB, 39C). The four chairs in the used car waiting lounge were occupied (RB, 38E-F). The respondent sat on the edge, or side bracing of one of the glass-topped tables (CAB, 17L; RB, 38F). The respondent gave evidence that she did not perceive any danger in sitting on the table. She stated that without thinking about it she simply sat on the table (CAB, 66K-L).

40 The respondent remained seated, talking to the customers, for about 2-5 minutes (CAB, 17N; RB 39G). It is not clear whether the respondent then moved backwards towards the centre of the table, as was asserted in evidence by Ms Maros (CAB, 86P-Y and 90-92), or whether as the respondent herself stated she remained seated on the edge of the table (CAB, 71L). The trial judge did not decide that issue. The glass fractured and the respondent fell through the table injuring herself (RB, 38G).

41 The respondent stated that she was pushed against the metal frame of the table, with her legs over the table. There was glass all over the floor, and the respondent was stuck in the table. The respondent was in pain, and called out to her uncle, who was present in the room to help her up.

The decision at first instance

42 Initially the plaintiff, described in the Notice of Appeal as first respondent but in fact the sole respondent on the appeal, sued the appellant/ defendant as occupier and, in the alternative, as employer (Red, 2E, and 2I), doing so pursuant to an Amended Statement of Claim (Red, 11E). In her Amended Statement of Claim as plaintiff, Ms Canuto pleaded that she was employed by Auburn Services Trust (Red, 11J). She subsequently further amended her Statement of Claim to allege that Boyded was estopped from denying that she was employed by Auburn Services Trust (Red, 19M).

43 Boyded as defendant admitted at trial that it owed the plaintiff a duty to take reasonable care to her safety (Further Amended Defence – Red, 28J) (admitting para 3 at 11H). The defendant had admitted a duty to take reasonable care for the safety of the plaintiff in its earlier defence (Red, 24H admitting para 3 of the original State of Claim). In its defence the defendant had admitted employment of the plaintiff (Red, 24H admitting para 4 of the original Statement of Claim). In its further Amended Defence, the defendant denied that Auburn Services Trust employed the plaintiff (Red, 28O-denying para 4 of the Statement of Claim).

44 When the trial began the workers compensation insurer of Boyded Industries Pty Limited announced its appearance as the “first defendant” and the public liability insurer of Boyded Industries Pty Limited sought to appear as “second defendant”. After hearing argument, the trial judge declined to allow them to appear as they sought to do.

45 Accordingly, the defendant filed an Amended Third Party Notice (Red, 33) seeking indemnity from the public liability insurer, which filed a defence which admitted insurance, but denied liability to indemnify (Red, 35).

46 These pleadings were filed on 17 April 2002 (White, 9N and R).

47 The issues at trial were essentially:

(i) whether or not the defendant was liable to the plaintiff as occupier, or whether the defendant or the Auburn Services Trust, was liable in negligence either as, or with duties equivalent to, the employer of the plaintiff (white, 9W);

(ii) (on the basis of the cross-examination of the plaintiff) the first respondent/plaintiff was contributorily negligent; and

(iii) the assessment of damages.

48 Only the issues in (i) and (ii) above are raised in this appeal. The focus of the appeal was principally on the (quasi) employer’s liability and on the reduction of 30% for contributory negligence found by the trial judge. The issue of whether the plaintiff was employed by the defendant, which occupied most of the trial, was not at issue on appeal. It focussed not on whether there was a duty of care – so much was conceded – but its extent in the circumstances and whether any breach was made out.

49 While the first respondent sought to argue on appeal that causation and breach of duty were not raised as issues or argued before the trial judge, I would reject that submission. I agree with the appellant that breach of duty and causation were before the trial judge (see, for example, Red, 5-6). They were in any event essential ingredients of the plaintiff’s cause of action at trial. Neither were admitted.

50 His Honour found (Judgment Red, 6-7) that:

(i) the appellant through its management was aware that persons did from time to time sit on the glass topped tables (Red, 6-7).

(ii) it would have cost the appellant little or nothing in money, time and effort to promulgate a warning about dangers of sitting on a glass topped table.

(iii) a general warning or sign placed on a table would have served to remind staff and others that sitting on a table was dangerous and that the respondent would most likely not have sat on the table if such a sign been there.

(iv) if each time someone including the respondent sat on the glass table in the presence of senior staff they had been told to get off the table and been reminded of the risk, the tendency to sit on it would have quickly ended including by the respondent (Red, 41F);

(v) if senior staff such as Mr Hulls had not sat on the table, staff such as the respondent would not because of that, have been lulled into disregarding what they knew was a risk, the trial judge having earlier found that the first respondent did know of the risk (Red, 41);

(vi) “of greatest importance for the [respondent’s] claim, if and when she sat on it on the day of her accident, Mr Hulls had told her to get off it and go and get another chair from down the corridor she would have obeyed that instruction” (Red, 42J).

51 The trial judge found that the appellant had breached the duty which it owed the respondent but that the respondent had contributed to her own misfortune to the extent of 30% (Red, 42T-43S). The trial judge concluded that:

“In view of the evidence, and in particular the plaintiff’s own concession that she knew she should not sit on a glass-topped table and that other chairs were readily available I find contributory negligence on the part of the plaintiff, which I assess at thirty per cent. It would have been higher and perhaps much higher had others including Mr Hulls not sat on it, or if some previous warning had been given to all.” (Red, 43O)

Disposition of the appeal

52 The appellant contests this appeal fundamentally on the basis that its duty to exercise reasonable care for the safety of the respondent was discharged as it had done all that reasonableness in that case required. In that context, I remind myself that excessive emphasis on the employer’s duty as “onerous” and as “non-delegable” should not be allowed to obscure the fundamental requirement that

“a trial judge should not approach the issue of negligence on the basis of some perceived principle that there was a heavy obligation on the part of the employer to protect the worker … the employer’s duty is to take reasonable care for the safety of its employees and that what is reasonable is a question of fact to be judged according to the standards of the time”;

Liftronic Pty Ltd v Unver (2001) 179 ALR 321 at [37-38] per McHugh J commenting on Bankstown Foundry Pty Limited v Braistina (1986) 160 CLR 301.

53 The trial judge concluded that the harm was foreseeable. That it was in the sense that it was foreseeable that if anyone carelessly sat on such a glass table there was a risk it would shatter. That someone would carelessly do so, though less obviously foreseeable is not inconceivable. It is in that sense reasonably foreseeable. But reasonable foreseeability is a necessary but not sufficient condition for liability in negligence. It should moreover have been obvious to the respondent that to sit on a glass table was to risk injury. Indeed the respondent frankly acknowledged that she knew that she should not sit on a glass-topped table. Moreover, she knew that before the accident. That knowledge was not altered by the fact that others, including Mr Hulls, heavier than she, had got away with sitting on the glass table without injury.

54 Nor was this a system of work that required her in practice to take a course she well knew was dangerous. She did know that other chairs were readily available nearby. Being tired after a long day she could have brought extra chairs in from nearby, when desiring to sit at the table with her customers.

55 In those circumstances, and when an everyday danger is so obvious, not just to defendant but also plaintiff, and more particularly where it does not carry with it horrendous, possibly fatal consequences, the need for a warning sign to avert liability does not arise. It is nothing to the point to say that such a sign would not be costly or inconvenient, invoking the Shirt calculus (Wyong Shire Council v Short (1980) 146 CLR 40 per Mason J). I would adopt as directly applicable what Heydon JA (as he then was) said in Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 at [74] and [83]. He essentially concluded that a reasonable person may choose not to take measures, even though they be simple and cheap, to warn of, or eliminate the possibility that a normal adult will fail to avoid, “unnecessary and blatantly obvious risks”. To quote:

“The fact that the higher up a ladder one moves the more care one must take for one’s own safety is one of those simple facts affecting human existence in the physical world which adults in industrialised societies have learned by the time, or indeed well before the time, they have become adults. It is a fact as fundamental, as elementary, as clear and as well known as, for example, the fact that it is dangerous to behave boisterously near pots cooking on stoves, the fact that broken glass needs to be carefully handled when picked up, the fact that rocks along the seashore can be slippery, the fact that shells in the sand of beaches can be sharp, and the fact that when moving about rubbish dumps one must bear in mind the possibility that rubbish may be lying there. These are matters which no adult need be told about and which any adult can be trusted to guard against the dangers of because it is part of the equipment of all normal adult human beings. All citizens can safely and reasonably assume that each normal adult human being acting autonomously and voluntarily will not incur unnecessary and blatantly obvious risks. The assessment of risk in those areas is for the judgment of each normal adult in the light of the particular adult’s capacity.” (at [74])
“The proposition that a mobile scaffolding platform would have been a cheap and practical response to the foreseeable risk begs the question of whether it was necessary for the defendant to embark on that response. It is a fallacious reading of Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48 to conclude that it holds that if the risk of injury is reasonably foreseeable and removal of that risk by simple and cheap measures is possible but not undertaken, there is a breach of duty. Mason J left open as the response of a reasonable person the course of doing nothing instead of adopting the simple and cheap measures: Council of the Municipality of Waverley v Lodge [2001] NSWCA 439 at [29].” (and at [83])

56 The respondent took issue with reliance on Van Der Sluice as it had not been, apparently, cited to the trial judge. That objection can have no validity. The case is not authority for any novel proposition. Nor does its citation represent a departure from the way the appellant conducted its case as to preclude reliance on it on appeal.

57 I do not consider it was necessary in the present circumstances to install signs to warn of such an everyday danger, in meeting the requirement for an employer to exercise reasonable care for the safety of employees. It is true attention can wander. It is possible to envisage circumstances where a sign may still be a necessary precaution, against the possibility that even a prudent and reasonable employee may be lulled into inattention by the practice of others. Though in the context of contributory negligence in Ghunaim v Bart [2004] NSWCA 28 McColl JA helpfully reviews a number of the authorities. In the context of contributory negligence McColl JA uses them to draw a distinction between departure from the standard of care of the reasonable worker, as compared to an occasion of momentary inadvertence not giving rise to contributory negligence since “excusable because not incompatible with the conduct of a prudent and reasonable man”: McLean v Tedman (1984) 155 CLR 306; Twynam Pastoral Co Pty Ltd v Bennett [2002] NSWCA 319,

58 Thus I consider that in exercising reasonable care for this employee’s safety, one who retained an awareness of the danger, there was no requirement to place warning signs to avert what I consider was simply carelessness on the part of the employee. In causation terms, such a notice would do no more than bring to the respondent’s attention what she already knew. It is by no means clear that she would have avoided the risk she took.

59 Nor do I consider that senior staff, when they happen to be present with any employee sitting on that glass table, were obliged to tell them to get off, reminding that employee of the risk. Everyday life simply does not proceed in that protective way in a busy work environment. The trial judge half acknowledged that:

“ While an organisation in the position of the defendant is not liable for every silly thing done by persons on its premises or employees it does breach its duty to people who take known risks when it does nothing to prevent that, knowing that people are taking those risks, and when action to prevent it is simple and inexpensive.” [emphasis added]

With respect I agree in the present case with the emphasised part but not what follows.

60 On causation, I agree with the appellant’s submission that the trial judge essentially speculated on the effect warnings might have had in deterring the respondent from sitting on the glass table. She was never properly tested on that matter. That provides an alternative basis for the appellant’s case. Given the conclusion I have reached I do not need to consider questions of contributory negligence.

61 Since formulating these reasons, I have had the advantage of reading the judgment of Beazley JA. It has led me to ask again what, if anything, distinguishes this case from cases where an employer has “failed to establish, maintain and enforce” a safe system of work (McLean v Tedman (1984) 155 CLR 306 at 313). Ultimately the question comes down to the distinction cited by Heydon JA at [63] in Van der Sluice where he quotes from Glass, McHugh and Douglas, “The Liability of Employees in Damages for Personal Injury” (2nd ed 1979) pp 45-6, with apparent approval:

“An area is marked out within which the employer’s duty to provide a safe system of work is inoperative. It would appear that the immunity of the employer will be limited to isolated operations of no complexity outside the normal system or simple uncomplicated operations within it … The only unifying principle available is the power of the court to hold that on the evidence in the particular case it would be beyond all reason to find an employer in breach of duty for failure to take certain specified steps.”

62 The present situation involved sitting down with customers on chairs provided or readily available. That was an example of a simple uncomplicated operation within the normal system of work. What was therefore involved was not the use of a piece of equipment provided by the employer for the task at hand. The employer never provided the table in order to sit on it – the employer provided chairs for that purpose, even if some of the executives set a bad example. Commonsense dictated that the employee not sit on a glass table in such circumstances.

63 What the respondent employee chose to do was instead to disregard the availability of chairs and elect to take an obvious risk in the simple, mundane task of sitting down.

64 In those circumstances it would be “beyond all reason” to find an employer in breach of duty for failure to warn that this simple act of sitting, should not be carried out on a glass table but upon the readily available chairs.

CONCLUSION AND ORDERS

65 I consider that the appellant succeeds in its appeal and propose the following orders:

(1) That the appeal be allowed and the verdict in favour of the respondent be set aside and verdict for the defendant substituted.

(2) Substitute a verdict for the appellant/defendant.

(3) That the respondent pay the costs of the appeal and in the Court below.

(4) Respondent to have a certificate under the Suitors Fund Act 1951 if so qualified.

66 STEIN AJA: I agree with Santow JA and with the orders which he proposes.

67 The facts recited by his Honour reveal an obvious everyday danger of a glass topped coffee table. Plain common sense tells us that you do not sit upon glass topped tables such as this. The Respondent must have known that it would be dangerous to sit upon the table. Indeed, her evidence goes very close to admitting such.

68 Although I do not accept that there was any requirement on the Appellant to place a warning sign on the table, it cannot be simply assumed, without evidence, that such a sign would have made any difference. Certainly, the evidence does not permit the drawing of such an inference.

69 However, what is plain is that there was no want of reasonable care by the Appellant for its employee. There was no unreasonably created risk and no unreasonable conduct on the part of the employer.

70 Accordingly, it is unnecessary to determine the issue of contributory negligence. However, should the appeal have been dismissed, I make it clear that the conclusion of his Honour on contributory negligence should be set aside as beyond any reasonable range. On a reassessment a percentage of around 66% would be appropriate.

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Last Modified: 08/09/2004