Fairfield City Council v Coupe, a R Maher T/as a R Maher Services & M L Maher T/as a R Maher Services - [2001] NSWCA 195

NEW SOUTH WALES COURT OF APPEAL

CITATION: Fairfield City Council v Coupe, A R Maher T/as A R Maher Services & M L Maher T/as A R Maher Services [2001] NSWCA 195

FILE NUMBER(S):
40531/00

HEARING DATE(S): 26/06/01

JUDGMENT DATE: 04/07/2001

PARTIES:
Fairfield City Council v Paul Dallas Coupe, Allen Richard Maher T/as A R Maher Services & Martina Louise Maher T/as A R Maher Services

JUDGMENT OF: Heydon JA Ipp AJA Rolfe AJA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 562/99

LOWER COURT JUDICIAL OFFICER: Delaney DCJ

COUNSEL:
R S McIlwaine SC (Appellant)
B H K Donovan QC/R B McCloghry (1st Respondent)
D D Feller (2nd & 3rd Respondents)

SOLICITORS:
McCabe Terrill (Appellant)
Eugene Lepore & Associates (1st Respondent)
Vardanega Roberts (2nd & 3rd Respondents)

CATCHWORDS:
TORT - Negligence - Employer's non-delegable duty of care - Whether task leading to injury was within scope of worker's employment - Apportionment of damages between joint tortfeasors - Effect of contractual indemnity on tortious liability. ND

LEGISLATION CITED:
Law Reform (Miscellaneous Provisions) Act 1965
Law Reform (Miscellaneous Provisions) Act 1946

DECISION:
(1) Appeal upheld (2) Orders made by Delaney DCJ as to liability be set aside (3) Verdict in favour of the 1st respondent against both the appellant and the 2nd and 3rd respondents (4) Liability for the 1st respondent's damages be apportioned as between the appellant and the 2nd and 3rd respondents on a 75/25 basis, with the appellant bearing the greater degree of responsibility (5) The appellant and the 2nd and 3rd Respondents to pay the 1st respondent's costs of the trial (6) The 2nd and 3rd respondents pay the appellant's costs of the appeal and the 2nd and 3rd respondents be eligible for a Suitor's Fund Certificate (7) The appellant to pay the 1st respondent's costs of the appeal (8) Parties to bring in short minutes reflecting all orders to be made.

JUDGMENT:

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40531/00
DC 562/99

HEYDON JA
IPP AJA
ROLFE AJA
Wednesday 4 July 2001

FAIRFIELD CITY COUNCIL V PAUL DALLAS COUPE, ALLEN RICHARD MAHER t/as A R MAHER SERVICES & MARTINE LOUISE MAHER t/as A R MAHER SERVICES

Facts:
The first respondent (“the worker”) was injured when repairing a wet deck at an indoor swimming pool owned and operated by the appellant (“the Council”), at the time of the injury the worker was employed by the second and third respondents (“the employer”) as a pool lifeguard. The worker brought an action in negligence against the Council and his employer. The Council cross-claimed against the employer seeking, among other things, an indemnity against the worker’s claim or alternatively contribution to damages under the Law Reform (Miscellaneous Provisions) Act 1965.

The trial judge found that the Council had breached its duty of care to the worker and was liable for his injuries. He further held that the employer had not breached its non-delegable duty of care to the worker as the work done repairing the wet deck was outside the scope of the worker’s employment. The Council appealed these findings on the grounds that the trial judge erred in finding that the repair of the wet deck was outside the worker’s employment and that the contractual indemnity did not cover the worker’s claim.

HELD
(i) Per Ipp AJA, Heydon JA and Rolfe AJA agreeing
In relation to the scope of the workers employment the worker was employed as a pool lifeguard to carry out duties such as “pool monitoring and surveillance”, “first aid treatment”, “maintenance of premises”, “lane ropes” “pool covers”, “safety”, etc. These duties included minor cleaning duties. The worker was also under the specific instructions of Mr Shields, the Council’s operations manager for the pool where the injury occurred. It was Mr Shields who instructed the worker to carry out the repair work that resulted in his injury. Despite the fact that repair work was not part of his duties as a lifeguard it still feel within the scope of his employment. This was because he was working under the instruction of Mr Shields, who had an agreement with the employer that required the worker and other employees to carry out extra duties as instructed by Mr Shields. The trial judge thus erred in this regard by finding that the repair work was outside the scope of the worker’s employment.

(ii) Per Ipp AJA, Heydon JA and Rolfe AJA agreeing
As the repair work was within the scope of the worker’s employment the employer remained liable for his safety under a non-delegable duty of care in regards to tasks carried out by employees. In the circumstances of the case it was reasonably foreseeable to the employer that Mr Shields may instruct the worker to carry out the repair work in question and steps could have been taken to avoid the risk of injury. Thus the employer was in breach of its duty of care to the worker. As a result of the joint liability for the worker’s injury the employer is liable to contribute to the Council in the payment of the worker’s damages. The apportionment of damages should reflect the degree of fault between the Council and the employer, the Council being liable for the greater part it is to pay 75% of the damages and the employer 25%.
(Wyong Shire Council v Shirt (1980) 146 CLR 40 applied,
s 5(2) Law Reform (Miscellaneous Provisions) Act 1946 applied, Fennell v Supervision and Engineering Services Holdings Pty Limited (1988) 47 SASR 6 distinguished)

(iii) Per Ipp AJA
The contractual indemnity did not extend to protect the Council against claims arising out of the type of repair work done by the worker as the indemnity only covered tasks that were “reasonable necessary to obviate risk of injury”. Such tasks included those duties normally carried out as part of the worker’s employment as a lifeguard, however there was no evidence to support the view that it was reasonably necessary for the worker to carry out the repairs to the wet deck in order to obviate the risk of injury. Therefore the Council failed to establish the requisite elements to enable it to rely upon the contractual indemnity.

Per Heydon JA with Rolfe AJA agreeing

The Council sought to rely on the contractual indemnity on appeal but did not raise the issue at trial. The argument gave rise to factual issues on appeal which the respondents had not had the opportunity to call evidence in relation to at the trial. Therefore it was not open to the Council to rely on this new argument on appeal.
(Suttor v Gundowda Pty Limited (1950) 81 CLR 418 applied)

Legislation:
Law Reform (Miscellaneous Provisions) Act 1965
Law Reform (Miscellaneous Provisions) Act 1946

Cases Cited:
Suttor v Gundowda Pty Limited (1950) 81 CLR 418
Wyong Shire Council v Shirt (1980) 146 CLR 40
Fennell v Supervision and Engineering Services Holdings Pty Limited (1988) 47 SASR 6
Australian Paper Plantations Pty Limited v J & E M Venturoni [2000] VSCA 71

ORDERS

Appeal upheld.
Orders made by Delaney DCJ as to liability be set aside.
Verdict in favour of the 1st respondent against both the appellant and the 2nd and 3rd respondents.
Liability for the 1st respondent’s damages be apportioned as between the appellant and the 2nd and 3rd respondents on a 75/25 basis, with the appellant bearing the greater degree of responsibility.
The appellant and the 2nd and 3rd respondents to pay the 1st respondent’s costs of the trial.
The 2nd and 3rd respondents pay the appellant’s costs of the appeal and the 2nd and 3rd respondents be eligible for a Suitor’s Fund Certificate.
The appellant to pay the 1st respondent’s costs of the appeal.
Parties to bring in short minutes reflecting all orders to be made.

******

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40531/00
DC 562/99

HEYDON JA
IPP AJA
ROLFE AJA
Wednesday 4 July 2001

FAIRFIELD CITY COUNCIL v PAUL DALLAS COUPE , ALLEN RICHARD MAHER T/AS A R MAHER SERVICES & MARTINE LOUISE MAHER T/AS A R MAHER SERVICES

JUDGMENT

HEYDON JA:
I agree with the orders proposed by Ipp AJA and with [4]-[49] and [57]-[70] of his reasons.
The reliance on clause 15(2) by the Council on appeal but not at trial, discussed by Ipp AJA in [50]-[56], raised factual issues. There was a possibility that the employer could have called evidence at the trial to defeat the Council’s clause 15(2) argument. That means that it is not open to the Council to rely on that argument on appeal: Suttor v Gundowda Pty Ltd (1950) 81 CLR 418.

IPP AJA:
The worker’s claim against the employer and the Council: the findings of the trial judge
On 21 June 1997 the first respondent (“the worker”) sustained a severe injury to his right hand when he was repairing a “wet deck” at an indoor swimming pool in Fairfield. The swimming pool was part of a “leisure centre”, owned and operated by the appellant (“the Council”).
At the time of his injury, the worker was employed by the second and third respondents (to whom I shall collectively refer as “the employer”).
The worker brought an action in the District Court against the Council and the employer, alleging that each was liable in negligence for the damages he had suffered in consequence of the injury to his hand.
The Council cross claimed against the employer on various bases. Two are relevant to this appeal. Firstly, the Council asserted that, by a contract entered into on 3 February 1996 between it and the employer, the employer agreed to indemnify it against claims of the kind brought by the worker. Accordingly, the Council contended, the employer was obliged to indemnify it against the worker’s claim. Secondly, and in the alternative, the Council claimed under the Law Reform(Miscellaneous Provisions) Act 1965 such contribution from the employer, in respect of damage suffered by the worker, as might be found to be just and equitable.
Delaney DCJ found that the Council, as occupier of the Leisure Centre, owed the worker a duty of care which it had breached. His Honour held that the Council was liable to the worker for the damages which he had sustained. He assessed damages in a sum that is not apparent from the papers before this Court and delivered a verdict in favour of the worker against the Council.
Delaney DCJ accepted that the employer owed the worker a non-delegable duty of care. His Honour, however, found that the worker’s act in repairing the wet deck was outside the terms of his employment with the employer. Hence, although the employer was obliged to provide the worker with a safe system of work, that duty did not extend to the repairing of the wet deck. Accordingly, he held that the employer had not breached its duty of care and dismissed the worker’s claim against it.
Delaney DCJ found that, by its terms, the indemnity did not cover the claim against the Council. Accordingly, the cross claim for an indemnity was dismissed.
As his Honour found that the employer had not breached its duty of care to the worker, the claim for a contribution was also dismissed.
On appeal, the Council contended that his Honour had erred in deciding that the worker’s act in repairing the wet deck fell outside the scope of his employment with the employer. This question is of fundamental importance as, should it be answered in the negative, the basis of the finding that the employer was not negligent falls away. It is the first question to be determined in the appeal.
The scope of the worker’s employment
As mentioned, on 3 February 1996 the Council entered into a contract with the employer. By that contract, the employer undertook to perform certain specified functions described as “pool services” at various places including the leisure centre at Fairfield.
The functions to be performed by the employer under the contract were referred to in schedule 3 to the contract as “pool services” and were described in greater detail under various headings. These headings were “pool monitoring and surveillance”, “first aid treatment”, “maintenance of premises”, “lane ropes”, “pool covers”, “safety”, “evacuation of premises” and “safe handling of needles and syringes”.
Most of the stipulated functions to be performed by the employer were such as would ordinarily be provided by lifeguards. Indeed, cl 34 of schedule 2 to the contract provided that all staff retained by the employer for the purposes of the contract were required to hold, as minimum qualifications, a “bronze medallion”, a “first aid certificate” and “an advanced resuscitation certificate”.
By item 4 of schedule 1 to the contract, the employer was required to ensure that not less than two “trained staff” were on duty at each of the three centres (and in particular at the Fairfield Leisure Centre). The inference is that the staff members concerned were to be trained lifeguards. In addition, at least one member of staff to be provided for work at the Fairfield Leisure Centre was to be the holder of a “pool lifeguard’s certificate”.
Prior to the entering into of the contract of 3 February 1996, the worker had been employed by the Council as a lifeguard at the Fairfield Leisure Centre. After the contract was entered into, the worker was employed by the employer to carry out similar duties. The worker described his duties as “surveillance and rescue and minor cleaning duties at the end of the day”. He said that the cleaning duties involved “hosing down the concourse and emptying bins at the end of the shift”. The duties so described are consistent with the stipulated functions set out in schedule 3 to the contract.
In 1996, after the contract was entered into, Mr Allen Richard Maher, the second respondent, who, in partnership with the third respondent, operated the business of the employer, had a telephone conversation with Mr Peter Alan Shields, the Council’s operations manager for its leisure centres’ branch. Mr Shields asked Mr Maher whether he would agree to the employer’s employees, who were working at the three leisure centres to which the contract applied, performing “some additional duties within the pool complex”. Mr Maher agreed that those employees could carry out such additional duties under the direction of Mr Shields.
According to Mr Maher, his consent to the employees performing such additional duties were subject to Mr Shields obtaining his consent beforehand. In essence, this was confirmed by Mr Shields. He said that when he asked Mr Maher whether the employer’s lifeguards could perform duties outside those “that were detailed in the contract”, Mr Maher answered, “that’s all right, as long as you inform me on those duties”.
The worker testified that he understood that the work involved in repairing the wet deck (which led to his injury) was not part of his duties as a lifeguard under the contract between the Council and the employer. He said, however, that he carried out that work because he was instructed to do so by Mr Shields. The following exchange during the course of the worker’s cross-examination is pertinent in this respect:
“Q.      May we take from what you’ve told us that you didn’t contact Mr Maher and ask him what you should do?
A.        No.
Q,       You simply followed Mr Shields’ instructions; is that correct?
A.        Because that’s the understanding we were - as Mr Maher wasn’t in there. He was rarely ever at the pool. We were under the direct instructions of Mr Shields and Mr Shields instructed me to do the job and who was to say no?
Q.       But Mr Maher never told you that it was part of your functions to carry out repairs at the pool?
A.        No but he’d repeatedly told us that it was our duty to do whatever Peter asked us to do.”
Later, the worker said that it was made clear by Mr Maher to the lifeguards that they were to assist the Council “in anything they asked us to do”.
Delaney DCJ held that “notwithstanding the fact that the [worker] was employed as a lifeguard, ….he also was under the direction, whether it was in accordance with the contract or not, of Mr Shields”. He found that “Mr Shields would, from time to time, request [the worker] to do various things. Not always were these matters referred back to Mr Maher for approval”. In essence, the worker was instructed by the employer to do whatever work Mr Shields asked him to do.
I have pointed out that Mr Shields accepted that, if he required some additional duty to be carried out (that is, outside the terms of the contract), he needed to seek Mr Maher’s permission before he directed the employer’s employees to perform such duties. According to the worker, however, Mr Maher had made it clear to him that he was to comply with any instructions given to him by Mr Shields and he was not informed by Mr Maher or anyone else that he was only to carry out Mr Shields’ instructions to do work outside the contract if Mr Maher had first agreed that he do so. The worker was not cross-examined on this testimony and, for the purposes of the appeal, it must be accepted. Mr Feller, counsel for the employer, did not dispute that this must be the case.
In concluding that, when the worker was injured, he was carrying out work outside the terms of the contract of 3 February 1996, Delaney DCJ did not have regard to:

The employer’s agreement to the worker carrying out work at the direction of Mr Shields, even though such work might be outside the scope of the employer’s functions detailed in the contract.
The employer’s omission to inform the worker that his obligation to comply with Mr Shields’ directions was subject to Mr Maher’s prior consent.
The employer’s instruction to the worker to comply with Mr Shields’ directions, whatever they were.

The effect of the material so overlooked is that, in repairing the wet deck at the direction of Mr Shields, the worker was carrying out duties as an employee of the employer. With respect to Delaney DCJ, he erred in finding to the contrary.
The breach of the employer’s duty of care
The wet deck that the worker was repairing when he was injured was a cover for a channel constructed along the edge of the length of the indoor pool. The channel was in essence a gutter. The filter for the pool was at one end of the channel or gutter. The deck itself consisted of plastic slats and was at times referred to in the trial as a “grating”, presumably because it had the look of such an object. The deck rested on and was supported by a series of stainless steel bars which lay cross-wise across the channel. The edges of the steel bars were sharp and, hence, dangerous.
Clause 3(1)(f) of schedule 3 to the contract required the employer to “clean scum gutters and scum gutter filters daily …”. It is not clear from the evidence whether the channel, which was covered by the wet deck, was a “scum gutter”. Nevertheless, the wet deck was plainly part of the premises which, by the contract, the employer was required to clean. Whether, by the contract, the employer was required to repair the wet deck is an entirely different question with which I shall later deal.
At about 6.00 am on 21 June 1997, whilst the worker was patrolling the pool, he noticed large gaps in the plastic slats that made up the wet deck. Pieces of plastic were missing and large gaps had appeared. The worker kept his eye on the wet deck to make sure that nothing untoward happened in consequence of the gaps and, between 8.30 and 9.00 am that morning, showed them to Mr Shields and pointed out that they were dangerous.
Mr Shields instructed the worker to follow him into the plant room to get pieces of plastic to repair the pool, which the worker did. The two of them then went to the wet deck and Mr Shields pulled up a section of the plastic slats and started repairing it. The worker assisted Mr Shields in the repair but Mr Shields soon left, saying that he was going over to the other side of the channel to repair the plastic deck there. He left the worker to continue with the work that he, Mr Shields, had commenced.
After the worker had completed repairing that particular section of the wet deck, he moved to lift up the next section. As he reached under the lip of the plastic slats, he put his hand on the metal bars underneath and cut his hand, severely.

Mr Maher was aware that the wet deck rested on stainless steel cross bars. While he did not know that the steel bars were sharp, he knew that if they were not deburred they would be sharp. He did not know if they were deburred or not. As a partner of the employer, charged with taking reasonable care for the safety of its employees, he should have investigated the position. He also knew that from time to time there were problems with the plastic slats of the wet deck and it was necessary to lift them up to repair them.
In the circumstances, as far as Mr Maher was concerned, it was reasonably foreseeable in the sense of Wyong Shire Council v Shirt (1980) 146 CLR 40 that Mr Shields might ask the worker to lift up the plastic grating and thereby would incur the risk of injuring his hand. Mr Feller did not contend otherwise.
The employer in effect conceded that it had a non-delegable duty of care to provide a safe system of work as regards the tasks to be performed by the worker. There were several respects in which the employer could have complied with this duty. Gloves were available at the pool and the worker could have been instructed to wear them. The worker could have been warned of the danger constituted by the steel bars. Mr Shields could have been warned not to give the worker instructions to remove the wet deck without taking appropriate steps to guard against the risk of injury. The employer, however, failed to take any such action. In my opinion it thereby breached the duty of care it owed the worker.
Section 5(2) of the Law Reform (Miscellaneous Provisions) Act 1946
The employer sought to avoid the consequences that would ordinarily follow from its breach of the duty of care by relying on s 5(2) of the Law Reform (Miscellaneous Provisions) Act 1946. This section provides:
“5(2) In any proceedings for contribution under this section the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person’s responsibility for the damage; and the court shall have power to exempt any person from liability to make a contribution, or to direct that the contribution be recovered from any person shall amount to a complete indemnity”.
It was submitted on the employer’s behalf that it was “just and equitable” having regard to the extent of the Council’s responsibility for the worker’s damage that the employer should be exempted entirely from liability to contribute to the worker’s damages. The employer submitted that Fennell v Supervision and Engineering Services Holdings PtyLimited (1988) 47 SASR 6 supported its argument in this respect.
In Fennell, the first defendant had employed a storeman whose services it had hired to the second defendant. The storeman injured his back while working for the second defendant. He sued both defendants for damages for personal injury. On appeal, the Full Court of the Supreme Court of South Australia applied the South Australian equivalent of s 5(2) of the Law Reform (Miscellaneous Provisions) Act and held that it would not be just or equitable to attribute to the first defendant responsibility for the damage suffered by the storeman. On the evidence, the storeman had been hired to the second defendant and he was under its charge, “totally”. Jacobs J said at 14:
“No representative of [the first defendant] was present on site, and it is not shown to my satisfaction what [the first defendant] could, let alone should, have done that might have prevented the occurrence. If the [storeman] had seen fit to complain, he would have complained to [another worker] who would have complained to [his supervisors in the second defendant], and [the first defendant] is not shown to have had any coercive authority over [the second defendant]. The actual fault in my judgment was entirely the fault of [the second defendant]”.
In my opinion, the facts of the present case are to be distinguished from those in Fennell. The employer had not hired the services of the worker to the Council. The worker was at all times employed by the employer and not by the Council. The worker was not totally under the charge of the Council. Although no representative of the employer was present on site, Mr Maher usually visited the pool once a week, presumably to ensure that the employer’s employees were doing their work properly and also to monitor their safety. Unlike the position in Fennell, Mr Maher could have insisted that Mr Shields not require the worker to lift the plastic deck without taking appropriate precautions against the risk of injury from the sharp edges of the steel bars. There were other steps that the employer could have taken that might have prevented the occurrence. I have set these out above.
In the circumstances I do not regard it to be just and equitable to exempt the employer from liability to make a contribution to the worker’s damages.
The contractual indemnity
Clause 23 of the contract provided:
“The [employer] agrees to indemnify and keep indemnified, the Council against all claims for injury, loss or damage suffered to persons or property arising out of the performance by the [employer] of the Contract and against all liability for costs, charges and expenses incurred by the Council in respect of the claim of any person or body”.
Mr McIlwaine QC, senior counsel for the Council, submitted that by cl 23 the employer was obliged to indemnify the Council against the worker’s claim for damages.
Mr Feller, on the other hand, submitted that the worker’s claim did not arise out of the performance of the contract by the employer. He argued that the contract provided no more than the occasion for the claim brought by the worker: Australian Paper Plantations PtyLimited v J & E M Venturoni [2000] VSCA 71.
A difficulty with this aspect of the case is the cursory way in which it was treated by the parties in the pleadings. The indemnity was raised only in the Council’s cross claim that was filed shortly before the trial. Apparently, because of the lateness of the cross claim, no defence was filed. The cross claim merely recited the indemnity clause and claimed an indemnity. There was no assertion in the cross claim that the worker’s claim arose out of the performance by the employer of the contract and, as no defence was filed, the employer did not plead the contrary.
The Council’s reliance on the contractual indemnity raises the question whether the subsequent arrangement between Mr Maher and Mr Shields, whereby Mr Maher agreed that the employer’s workers could do work for the Council outside the duties specified by the contract, constituted a variation of the contract. This proposition, understandably, was not advanced with any enthusiasm by Mr McIlwaine.
There are high obstacles to its acceptance. Firstly, the arrangement between Mr Maher and Mr Shields was of a casual nature and seems to have lacked contractual intent. Secondly, cl 26 of the contract provided that the conditions of the contract “are not to be altered, waived or deleted without the written consent of the General Manager and the [employer]”. The “General Manager” was defined as the general manager of the Council or the person acting in that capacity for the time being. There was no evidence that any written consent as required by cl 26 had been obtained.
In the circumstances, there is no basis for holding that the contract was varied by the oral arrangement in question.
In any event, both Mr Maher and Mr Shields accepted that Mr Shields would only instruct the employer’s workers to perform additional duties with Mr Maher’s consent, and he did not consent to the wet deck being repaired.
Mr McIlwaine submitted further that it was implicit in the contract that the employer would supply services reasonably incidental to the stipulated pool services. He argued that the work done by the worker in repairing the wet deck was reasonably incidental to the provisions of the contract relating to the maintenance of the premises. These provisions were contained in cl 3 of schedule 3 to the contract which was in the following terms:
“3.       Maintenance of Premises
(1)       The [employer] will carry out the following cleaning and maintenance work at the premises:-
(a)Immediately remove any loose debris or refuse in on or around the swimming pools constructed at the premises so as to maintain a visually clean and publicly acceptable standard.
(b)Remove any loose debris or refuse in on or around the main entrance to the premises each morning the premises are open to the public and at any other time as deemed necessary by the Director.
(c)Remove on a regular basis all rubbish and refuse accumulated in bins at the premises and deposit it into the central disposal unit as designated by the Director.
(d)       Maintain the rubbish bins in a neat and tidy condition.
(e)Remove all grease and dirt from swimming pool tiles on a daily basis and at other times as instructed by the Director.
(f)Clean scum gutters and scum gutter filters daily and at any other times as instructed by the Director.
(g)Hose down and clean the pool concourse at the premises on a daily basis or as needed to ensure a clean and clear pool surround PROVIDED THAT this will be subject to review when restrictions are applied to water use.
(h)Maintain the windows of any pool hall erected at the premises including cleaning of those windows at least once per week or as needed to ensure a clear view an clarity and opening, closing and locking of those windows on a daily basis”.
It is clear from cl 3 that the maintenance services the employer was required to provide were confined to cleaning and maintaining the premises in a clean condition. Nothing in cl 3 related to repair. This is understandable as the substantial part of the services required to be rendered by the employer concerned lifeguard duties, hence the requirement that the workers to be allocated to the various leisure centres were to hold the lifeguard qualifications to which I have referred. The lifeguards would not ordinarily be qualified or trained to carry out repairs to the premises of the leisure centres.
The function of cleaning the premises and maintaining them in the limited sense mentioned, in essence, were adjuncts to the function of rendering lifeguard services. On the other hand, the function of carrying out repairs to the premises would be entirely independent and a significant remove from the lifeguard, cleaning and limited maintenance functions. In my view, repairing parts of the premises cannot be regarded as reasonably incidental to the stipulated functions. Accordingly, I am unable to accept the submissions advanced on behalf of the Council in this respect.
Mr McIlwaine then referred to cl 15(2) of schedule 2 to the contract which provided:
“Before doing any act or thing in carrying out the Contract and during the progress thereof the [employer] shall do everything reasonably necessary to obviate risk of injury and/or damage to persons and property being in, upon or in the vicinity of the premises or any adjoining land of the Council”.
Mr McIlwaine submitted that in repairing the wet deck the worker was performing an activity that was “reasonably necessary to obviate risk of injury and/or damage to persons … being in, upon or in the vicinity of the premises …” Hence, he argued, the injury suffered by the worker in repairing the wet deck arose out of the performance by the employer of the contract and the indemnity under cl 23 applied.
Clause 15(2) was part of schedule 2 to the contract, which was entitled “Terms, Conditions and Provisions of Contract”. Schedule 2 contained provisions of general application. On the other hand, the precise functions which, by the contract, the employer was required to perform were set out in schedule 3. Schedule 3 commenced:
“The [employer] will be responsible for the following functions: -
…”
Then followed the various functions stipulated under the different headings to which I have referred above such as “pool monitoring and surveillance”, “first aid treatment”, “maintenance of premises”, etc.
The inference to be drawn from the use of the two schedules and the wording to which I have referred is that the scope of the work to be performed by the employer was intended to be contained solely in schedule 3, whereas schedule 2 contained provisions that governed the performance of that work.
This inference is reinforced by the opening words of cl 15(2). The obligation of the employer to “do everything reasonably necessary to obviate risk of injury” was qualified by the words “before doing any act or thing in carrying out the contract and during the progress thereof”. In my view, the phrase “during the progress thereof” means “during the progress of the act or thing being done in carrying out the contract”. The other possible interpretation is that the phrase means “during the progress of the contract itself”. But if the phrase were to be given that meaning, the entire phrase “before doing any act or thing in carrying out the contract and during the progress thereof” would be otiose. In my view, therefore, the opening words of cl 15(2) limited the employer’s obligation to do everything reasonably necessary to obviate risk of injury to two situations. The first was “before doing any act or thing in carrying out the contract” (that is, preparatory to performing the functions stipulated in schedule 3). The second was “in carrying out the contract” (that is, in performing the stipulated functions).
If cl 15(2) is to be construed as I suggest, then the work done by the worker in repairing the wet deck was not work the employer was obliged by that clause to perform. The repair work did not fall within either of the two situations in question.
Even if cl 15(2) is to be construed as widening the scope of the work required to be performed by the employer, I do not think that, in the particular circumstances of this case, the Council established that the repair of the wet deck was work that came within cl 15(2). I say this for the following reasons:
(a)To make good its contention that the indemnity provided by cl 23 of schedule 2 applied, the Council had to establish that the worker suffered loss or damage arising out of the performance by the employer of the contract.
(b)In contending that the repair of the wet deck constituted performance by the employer of the contract, the Council argued that the repair in question was reasonably necessary to obviate risk of injury to persons in the vicinity.
(c)The evidence established that the gaps in the plastic strips were dangerous to persons in the vicinity and required repair.
(d)The worker warned Mr Shields about the gaps in the plastic strips (and I shall assume that, in so doing, he was acting pursuant to cl 15(2) by performing an act reasonably necessary to obviate risk of injury to persons in the vicinity).
(e)The question that then arises is whether it was reasonably necessary for the worker, himself, thereafter to repair the wet deck so as to obviate risk of injury to persons in the vicinity.
(f)This question has to be addressed on the assumption that, unless it was reasonably necessary to obviate risk of injury to persons in the vicinity for the worker himself to do the repair, the repair work by the worker did not fall within the contract.
(g)Ordinarily, it would be a pool technician’s job to repair the wet deck. The Council employed pool technicians at the Fairfield Leisure Centre, but there was no evidence as to whether, at the relevant time, the pool technicians were absent and, if they were not, whether it was reasonably necessary to use the services of the worker to repair the wet deck, rather than their services.
(h)The repair of the wet deck on the morning in question commenced with Mr Shields himself doing the repair work alone. It was only after a while that he instructed the worker to assist him. Later still, Mr Shields went to “the other side of the pool” to repair the wet deck there, having instructed the worker to carry on completing the repair at the point where they had commenced the work.
(i)There was no evidence to explain why it was reasonably necessary to obviate risk of injury to persons in the vicinity for the worker, himself, to do repair work rather than for Mr Shields, alone, to complete the repair at the one end and then to proceed to the other end.
In the circumstances, the Council simply did not establish the requisite elements to enable it to rely upon the cl 23 indemnity. I should say in this regard that it seems that the idea that cl 15(2) could provide a basis for the application of the indemnity emanated from Mr McIlwaine on appeal, he not having appeared for the Council at the trial. No reference whatever to cl 15(2) was made by Delaney DCJ and this issue does not seem to have been canvassed before him. This explains the absence of any necessary findings (and evidence) relating to the reasonable necessity of the work done by the worker.
In the circumstances, I would not uphold the Council’s claim for an indemnity.
Apportionment of damage
The Council did not challenge the finding by Delaney DCJ that it had breached the duty of care it owed the worker. In the light of the findings I have made it remains to determine the apportionment of damage between the Council and the employer.
In my opinion, the degree of fault on the part of the Council was far greater than that of the employer.
The worker was under the immediate control and direction of the Council, through Mr Shields. Mr Shields’ instruction to the worker to proceed with the repair of the wet deck was the precipitating factor in the worker’s injury. Immediately prior to giving the worker that instruction Mr Shields could have required the worker to obtain protective gloves from the store on the premises, and could have warned the worker specifically about the dangers of the steel bars. Mr Shields had the specific knowledge that the worker was about to undertake a dangerous operation but did nothing.
The negligent omission on the part of the employer was far more general and far less immediate. Mr Maher had no means of knowing that on the day in question the worker would be asked to repair and lift the wet deck. There was less reason for Mr Maher to apply his mind to the potential danger than there was for Mr Shields to do so.
In the circumstances I consider that the Council should be held to be 75% at fault and the employer 25% at fault and I would order that the damages be apportioned on this basis.
Conclusion
Although the Council initially appealed against the assessment of damages made by Delaney DCJ it did not proceed with that part of the appeal. The assessment made by his Honour therefore stands.
I propose that the appeal be upheld and the orders made by Delaney DCJ as to liability be set aside. I would grant a verdict in favour of the worker against both the Council and the employer. I would order that liability for the worker’s damages be apportioned as between the Council and the employer on a 75/25 basis, with the Council bearing the greater degree of responsibility.
No submissions were made to us as regards the orders that should be made were the Court to uphold the appeal to the extent that I propose it should. The parties suggested, in this regard, that they bring in short minutes in respect of the orders that would, in consequence follow, and such a course is appropriate. The minutes should reflect all the orders to be made.
As regards costs, I propose that the Council and the employer pay the worker’s costs of the trial. I would make no other order in respect of the costs of the trial.
I propose that the employer pay the Council’s costs of the appeal and that the employer be eligible for a Suitor’s Fund Certificate.

The Council filed substantial written submissions directed to upsetting the trial judge’s conclusion that it had breached its duty of care to the worker, and very brief written submissions attacking the quantum of damages awarded. Had the former category of submissions succeeded and had the employer succeeded in maintaining the trial judge's finding that it was not in breach of duty, the worker would have been wholly unsuccessful in the proceedings. Had the latter category succeeded, he would have been partly unsuccessful. He was justified in filing two sets of written submissions and a Notice of Motion seeking leave to file a Notice of Cross Appeal. It was only shortly before the hearing commenced that counsel for the worker was informed by counsel for the Council (who came into the appeal at a late stage) that the challenge to the verdict against the Council, and to the quantum of damages would not be pursued. Counsel for the worker was present when the hearing commenced to inform the court of that fact. Thereafter he participated only briefly in the argument, but appropriately.
In the circumstances the Council should be ordered to pay the worker’s costs of the appeal.
ROLFE AJA: I agree with Heydon JA.

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LAST UPDATED: 04/07/2001