Wafta v Australian Traineeship System

[2005] HCATrans 241

[2005] HCATrans 241

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S275 of 2004

B e t w e e n -

MICHAEL WAFTA

Applicant

and

AUSTRALIAN TRAINEESHIP SYSTEM & COLCHESTER G R PTY LTD T/AS SHELL SERVICE STATION WAVERLY

Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 22 APRIL 2005, AT 2.04 PM

Copyright in the High Court of Australia

MR D.E. BARAN:   May it please your Honours, I appear for the applicant.  (instructed by Buttar Caldwell & Co.)

MR I.G. HARRISON, SC:   If your Honours please, I appear with MR P.N. KHANDHAR, for the respondent.  (instructed by Turks Legal)

GLEESON CJ:   Yes, Mr Baran.

MR BARAN:   Thank you, your Honours.  Your Honour, this is an application for special leave involving what we say is an important principle, that is whether or not common doctrines which are coming into the common law at the moment of common sense, common experience, civil liability and personal responsibility have any role to play at all in the employment relationship between a worker and an employer when it comes to a common law claim for damages for negligence.  In the Court of Appeal in this case the significant finding made by his Honour Mr Justice Handley was that the risk involved, which was the risk of lifting a heavy object being a refrigerator, which was accepted weighed at least 65 kilos, was an obvious risk and based on it being an obvious risk, involved an element which was not readily foreseeable in terms of law of negligence as concerned in this particular case.

GLEESON CJ:   Well, he tried to lift the refrigerator instead of rolling it on its castors, is that what went wrong?

MR BARAN:   That is right, that is quite correct.  Now, that was the situation involving a similar set of circumstances to such cases as we have referred to in the summary of argument, such as Castro, Turner, Braistina and the like.  This is a worker who had been working at a place for no longer than three weeks.  On the evidence given by the plaintiff at trial which was wholly accepted, there was no significant training or any training at all, except of the most rudimentary kind.  There was no proper instruction.  The defendant called no evidence at trial and the plaintiff was accepted entirely by the trial judge, both on the evidence he gave about how the accident happened and also on the question of causation, namely that if he had been given a proper instruction, he would have adhered to it.

In those circumstances, in my respectful submission, the Court of Appeal was simply left with this doctrine of obvious risk.  Now, obvious risk in this particular set of circumstances does not apply because the High Court has said it does not apply.  These types of matters involving ordinary, everyday tasks, simple industrial accidents, involve a duty of care, of course, regarding the taking of steps to avoid unnecessary risk, but more importantly, the employer must take into the account the possibility of thoughtlessness, inadvertence, carelessness and the like in these types of industrial accident and this was the case, obviously, when one looks at it objectively, was one which involved that type of error or inadvertence.

GLEESON CJ:   Well, as I understand it, the Court of Appeal held that there was no negligence in the employer’s failing to tell the employee that when he wanted to move this refrigerator he should roll it on its castors rather than lift it up.

MR BARAN:   Yes, your Honour, but the fact was that there was no such instruction to that effect.  There was no evidence given by the defendant to that effect.  In fact, there was no evidence called regarding the training at all.  The reason why it was unsuccessful in the Court of Appeal, so far as the plaintiff was concerned, is because it was held that this act of lifting the refrigerator as opposed to rolling it on its castors was not reasonably foreseeable.  It is connected with the fact that the Court of Appeal held that the lift itself was an obvious risk of injury.

Now, that cannot be correct in the context of the employer/employee duty of care relationship.  That type of obvious risk scenario does not apply as it would, for example, to occupier liability cases and novel duty of care cases.  In an employment situation involving an inexperienced worker, and a worker in this particular factual scenario, these types of doctrines of obvious risk and personal responsibility have no application, in our respectful submission, because the High Court has said, as I stand here at the moment there is no authority that says that where the risk to the worker is obvious, or the risk is objectively obvious, there can be no breach by the employer.  The contrary is the position.  Where it is a thoughtless or careless act and a simple industrial accident situation like this, the employer does owe a duty of care, the employer must take reasonably precautious steps to ensure that the worker is not injured.

Now, to say that this type of lift was not reasonably foreseeable is like saying that in Castro’s Case and Turner’s Case and cases of the like which involve oxy bottles, lifting drums when there were systems of work that could have been adopted in the circumstances, it puts them in the same category as those cases where this Court has said again and again that it is reasonably foreseeable that workers will, either by inattentive acts on their behalf or by misjudgement or error, undertake acts which are objectively dangerous or pose an obvious risk or, as a matter of common sense, would not be undertaken by ordinary people – persons who were far more skilled.

GUMMOW J:   What do you say about the other side’s submission at page 56 of the application book, paragraph 2, line 38?

MR BARAN:   Two things.  Firstly, Jones v Bartlett and Phillis v Daly and those types of cases are purely occupiers cases.  They are not dealing with the precise duty of care that is owed by an employer to an employee which is very different.  Also, in those particular cases now there is legislation which deals with it.  New South Wales is still governed by the common law in terms of liability by an employer to an employee.  There has been no statutory intervention in terms of what is the test.  It is still the pure common law test.  But Jones v Bartlett and Phillis v Daly are occupiers cases.  They are not employer/employee cases.

GLEESON CJ:   But that cannot mean, can it, that an employer has to work out every kind of act that an employee might engage in that could possibly injure the employee and then warn the employee not to do it.

MR BARAN:   Not at all, your Honour.  I accept that, with respect, wholeheartedly, but one of the tasks that this worker had to do, and it is a specific finding and it has never been challenged, was to clean the area where he worked.  That was his task.  That required him to take the mat away, empty it outside and bring it back in.  What was reasonably foreseeable, and it is accepted by the defendant that it was and also in the Court of Appeal, is that he would put the mat back where he found it.  What was held to be not reasonably foreseeable is that he would, instead of using the castors, attempt a lift.

Now, because the cleaning activity was a specific part of his job, that made the fact that acts of carelessness or acts of thoughtlessness involved in undertaking that were reasonably foreseeable, one of them being that he would put the mat back where he found it and adopt an unsafe method for so doing.  Now, what the Court of Appeal is effectively saying is well, as a matter of common sense, you would not do that and it poses an obvious risk.

Now, that defies, we say in our summary of argument, we have set out all the cases where the High Court has said to the contrary because it is surely a thoughtless act or an act of inadvertence but it is an act where this Court has said again and again the employer has to take steps and is reasonably foreseeable, especially having regard to the fact that it is so close in terms of the facts with cases like Castro, Turner, Braistina, Hamilton v Nurroof and the like and for all those reasons, in my respectful submission, it was an impermissible intervention by the Court of Appeal in this particular case.

A man suffered a serious back injury.  The employer giving him the specific task to do had to take reasonable steps to ensure that he was shown how to do it.  It was reasonable, cheap and inexpensive to do it.  For all those reasons, your Honour, there is now a clash in New South Wales in judicial minds at the intermediate Court of Appeal level as to what is the correct law.  On the one hand we have judges advocating for the Van der

Sluice line of authority that basically says that where it is obvious to an ordinary and reasonable man, then there can be no breach.

On the other hand you have – and we have referred your Honour to a case of Canuto from New South Wales where there is this clash between Justice Beazley on the one hand in a similar case and the other members of the court in the other, where Justice Beazley applies the classic common law test from this Court as opposed to what happens with the majority who apply Van der Sluice and the cases that have come down from this Court being the occupiers cases as to obvious risk.

We say obvious risk does not apply to an employment situation and this Court has never held that it applies to this particular situation and until it does so, this decision from the Court of Appeal deciding it in this way is wrong and the Court ought to intervene and declare what the common law ought to be in terms of obvious risks so far as industrial accidents are concerned, that this type of accident which is a simple, industrial accident involving an ordinary working man, inexperienced and only having worked here for three weeks with a specific job to do and no training ever given to him to do it.

So for those reasons, your Honour, we have a situation in New South Wales which is impermissible because it is going against High Court authority in terms of principle and secondly, on its own facts, if the Court of Appeal would have applied the correct authorities, as we have set out in the summary of argument, the plaintiff would have kept his verdict which the trial judge obviously was applying when his Honour determined the case in favour of the plaintiff at first instance.  Unless there is anything further, your Honours, those are my submissions.

GLEESON CJ:   Thank you.  We do not need to hear you, Mr Harrison.

The decision of the Court of Appeal in this case involved the application of established principles to the particular facts and circumstances of the case, which does not raise an issue suitable to a grant of special leave to appeal.  In addition, we are not persuaded the interests of justice require such a grant.  The application is dismissed with costs.

AT 2.15 PM THE MATTER WAS CONCLUDED