Atkinson v Gameco (NSW) Pty Limited [2005] NSWCA 338

New South Wales Court of Appeal

CITATION: Atkinson v Gameco (NSW) Pty Limited [2005] NSWCA 338

HEARING DATE(S): 30/09/05

JUDGMENT DATE: 10 October 2005

JUDGMENT OF: Giles JA at 1; Ipp JA at 2; Hunt AJA at 36

DECISION: Appeal dismissed with costs.

CATCHWORDS: NEGLIGENCE - employee - non-delegable duty of care - injury occurring on premises of third party in Thailand - casual act of negligence - training in safety and risk assessment - causation. D

Andar Transport Pty Ltd v Brambles Ltd (2004) 317 CLR 424 Bourke v Victorian Work Cover Authority [1999] 1 VR 189 English v Wilsons and Clyde Coal Co Ltd (1936) SC 883 Kondis v State Transport Authority (1984) 154 CLR 672 CASES CITED: Sinclair v William Arnott Pty Ltd (No 2) (1963) 64 SR (NSW) 88 Smith v Austin Lifts Limited [1959] 1 WLR 100 Taylor v Sims & Sims [1942] 2 All ER 375 TNT Australia Pty Limited v Christie [2003] NSWCA 47 Wilson v Tyneside Window Cleaning Company [1958] 2 QB 110

Anthony Atkinson (Appellant) PARTIES: Gameco (NSW) Pty Limited (Respondent)

FILE NUMBER(S): CA 40942/04

M R Aldridge SC/E E Welsh (Appellant) COUNSEL: J McIntyre SC/A Capelin (Respondent)

Maxwell Berghouse & Ives (Appellant) SOLICITORS: Moray & Agnew (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 4297/02

LOWER COURT JUDICIAL OFFICER: Bishop DCJ

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40942/04 DC 4297/02

GILES JA IPP JA HUNT AJA

Monday 10 October 2005 ANTHONY ATKINSON v GAMECO (NSW) PTY LIMITED Judgment 1 GILES JA: I agree with Ipp JA. 2 IPP JA: Mr Atkinson, the appellant, was employed as the marketing manager of Gameco (NSW) Pty Ltd, the respondent. Gameco manufactured gas burners. Mr Atkinson had considerable experience in the design, assembly and sale of gas burners. 3 In August 1997 Mr Atkinson travelled to Thailand in an attempt to interest a Thai company in purchasing Gameco's gas burners. The Thai company was a potential customer as it manufactured bitumen tanker vehicles that utilised wood burners and Gameco hoped that it might be persuaded to install the Gameco product instead. The burners were used to heat the bitumen in the tankers and thereby to keep it in liquid form. 4 While at the premises of the Thai company, Mr Atkinson decided that he would be assisted by an inspection of the burner tubes in its tankers. The only way in which he could do this was to climb to the top of the cylindrical tank of a tanker and to open a hatch situated there. He would then be able to look down and observe the burner tubes. 5 At the time Mr Atkinson was being shown around by Mr Saunders, a senior employee (an Australian) of the Thai company. Mr Atkinson asked Mr Saunders if he could climb on to a tanker so that he could look at the burner tubes. Mr Saunders pointed to a tanker, one of several on the factory floor, and said, "You can have a look on that one". 6 A ladder was attached to the rear of the tanker. The apparent purpose of the ladder was to enable persons to climb to the top of the tanker. 7 Mr Atkinson climbed on to the bumper bar at the rear of the tanker. He put his foot on to the bottom rung of the ladder and the ladder held securely. He put his foot on the next rung and may have proceeded to the third rung. When he had reached the second or third rung the ladder began to fall backwards. There was nothing he could do to prevent the fall and he crashed into a 44-gallon drum behind him and then rolled onto the ground. He suffered serious injuries to his back. 8 After his fall, Mr Atkinson discovered that, although the bottom of the ladder had been securely fixed to the tanker, the bolt holes at the top of the ladder were empty; the bolts for these bolt holes had not been inserted. Hence, as Mr Atkinson's weight began to bear sufficiently on the ladder, it began to fall backwards. 9 Mr Atkinson brought an action against Gameco for the damages for the injuries he had incurred and brought an action against it. He alleged that he had been injured by Gameco's negligence. 10 Mr Atkinson put his case against Gameco, principally, on two bases. 11 Firstly, he contended that Gameco had breached its non-delegable duty to provide him with safe working conditions, a safe system of work and safe plant and equipment. This argument, at least on appeal, was advanced in a number of different ways. These included the propositions that the Thai company's premises were unsafe, that the tanker he climbed was unsafe because of the missing bolts to the ladder, and that Mr Saunders' action in telling Mr Atkinson that he should climb up the ladder in question constituted a breach by Gameco of its non-delegable duty to provide a safe system of work. 12 Secondly, Mr Atkinson submitted that Gameco breached the general duty of care that it owed him as an employee by failing to provide him with appropriate training in general assessment of risks and safety procedures, particularly when visiting new premises in "developing countries" such as Thailand. Mr Atkinson had been given no such training. 13 It is common ground that, as Mr Atkinson's employer, Gameco owed him a non-delegable duty of care. Some of the arguments advanced on behalf of Mr Atkinson seemed to assume that such a duty involved an absolute liability on the part of the employer. Of course, that is not the case. The employer's duty of care encompasses only an obligation to take reasonable steps for the safety of its workers: Andar Transport Pty Ltd v Brambles Ltd (2004) 317 CLR 424 at 439. 14 Although there have been statements in the authorities to the effect that a non-delegable duty of care involves "strict" liability, that liability is "strict" in a qualified sense only. The liability that arises out of a non-delegable duty of care is strict in the sense that "the employer's duty to take reasonable care to provide a safe system and conditions of work for the employee is not discharged by delegation unless the delegate, be he employee or independent contractor, in fact provides the reasonable care with which the employer was under an obligation to bring to bear" (per Deane J in Kondis v State Transport Authority (1984) 154 CLR 672 at 694 quoted in Andar Transport Pty Ltd v Brambles Ltd (at 440)). 15 The position is as explained by Mason P in TNT Australia Pty Limited v Christie [2003] NSWCA 47: "(a) A non-delegable duty of care will (like a duty based on vicarious liability) be imposed on categories of persons regardless of personal fault on their part in the circumstances giving rise to the plaintiff's injury; but (b) The plaintiff must prove that damage was caused by lack of reasonable care on the part of someone (not necessarily the defendant) within the scope of the relevant duty of care." 16 In the present case it may be accepted, for the purposes of argument, that Mr Saunders was negligent in identifying to Mr Atkinson the particular tanker with an unbolted ladder as one on which he could climb. The fundamental question, however, is whether that negligence fell within the scope of Gameco's duty of care. 17 In determining the content or scope of Gameco's non-delegable duty of care, due regard must be had to the fact that Mr Atkinson was injured in the premises of a stranger; that is, a company with which Gameco had no contractual or other relationship (apart from being a prospective customer). 18 The mere fact that injury occurred on premises occupied by a third party does not mean that Gameco, as employer, had no duty of care to Mr Atkinson. For example, the content of the duty of care owed by an employer that operates a labour hire business is not diminished by the fact that the employees are sent off to work for customers that hire them: TNT v Christie (at para 67). Nevertheless, the fact that the premises are in the control of a third party will be a relevant matter when considering whether the employer has taken reasonable care for the safety of the employee: Glass, McHugh and Douglas "The Liability of Employees in Damages for Personal Injury" (2nd Ed 1979) at 54. 19 In Bourke v Victorian Work Cover Authority [1999] 1 VR 189 Winneke P (with whom Brooking JA and Buchanan JA agreed) said: "True it is that, where an employer sends his employee to work at or in premises occupied or controlled by another, … occupation and control by another person may be a relevant fact in considering whether the employer had been in breach of his own independent duty to the employee. But the fact that the employee's work is required to be done on premises of another does not absolve the employer of his duty. Its impact upon whether he had breached his duty will depend upon all the circumstances. As Lord Denning said in Smith v Austin Lifts Limited [1959] 1 WLR 100: 'Notwithstanding what was said in Taylor v Sims & Sims [(1942) 167 LT 414; [1942] 2 All ER 375], it has since been held, I think rightly, that employers who send their workmen to work on the premises of others cannot renounce all responsibility for their safety. The employers still have an overriding duty to take reasonable care not to expose their men to unnecessary risk. They must, for instance, take reasonable care to devise a safe system of work … ; and, if they know or ought to know of a danger on the premises to which they send their men, they ought to take reasonable care to safeguard them from it. What is reasonable care depends, of course on the circumstances …' (See also Wilson v Tyneside Window Cleaning Company [1958] 2 QB 110 at 121-2 per Pearce LJ; Sinclair v William Arnott Pty Ltd (No 2) (1963) 64 SR (NSW) 88 at 91-2 per Walsh J). One can conceive of a multitude of circumstances where workmen are sent to work upon premises controlled by others in which the impact upon the discharge of the employer's duty will vary. It will depend no doubt upon such matters as the employer's opportunity to inspect the premises, the length of time the employer has put his employees to work on the premises, the awareness in the employer of the danger, his capacity to shield his employees from the danger and various other factors." 20 In the present case, Gameco had no opportunity to inspect the premises, Mr Atkinson was visiting the premises only for the purpose of attempting to sell Gameco's product and had been there for a relatively very short time. Gameco had no knowledge of the particular danger and it had virtually no capacity to shield Mr Atkinson from the danger that materialised. In reality, the only possibly arguable way in which Gameco, practically, might have been able to protect Mr Atkinson from the risk that materialised was by training him in general safety measures. This involves Mr Atkinson's second argument and I will discuss that later. 21 These matters, in my view, result in the scope or content of Gameco's duty of care not extending to the state of the premises of the Thai company or its plant or equipment or its systems of work. 22 There are other difficulties with Mr Atkinson's first argument. 23 The evidence at the trial did not directly address the question why bolts had not been inserted in the bolt holes at the top of the ladder. An explanation for this omission, however, is available from the evidence that was led. Mr Atkinson saw tankers being manufactured on the premises that he was visiting. He said that it was a finished tanker and he drew this inference from looking at it and observing that it was "painted, sign- written". The inference is open, however, that despite the tanker having been painted and sign-written it had not been properly completed (that is, it was still in the course of construction). 24 The fact that the bolts had not been inserted at the top of the ladder did not, alone, make the tanker dangerous to visitors to the premises. The danger was created by Mr Saunders identifying to Mr Atkinson this particular tanker as one on which he could climb. 25 The existence of the unbolted ladder in the premises did not mean that the working conditions at that premises were inherently unsafe. It was part of the Thai company's business to have tankers manufactured by it in various stages of completion on the factory floor. There is nothing inherently dangerous in this. 26 A further problem with this argument is that Mr Saunders' conduct in telling him to climb up the ladder was essentially a casual act of negligence and not part of any system of work, as is explained in English v Wilsons and Clyde Coal Co Ltd (1936) SC 883 at 904 by Lord Aitchison (in a passage approved in Andar Transport Pty Ltd v Brambles Ltd at 447). The distinction is between "what is permanent or continuous on the one hand and what is merely casual and emerges in the day's work on the other hand". Mr Saunders' conduct was not part of any permanent or continuous system and was merely casual and emerged in the day's work. 27 I turn now to Mr Atkinson's second argument. 28 Mr Aldridge SC who, together with Ms Welsh, appeared for Mr Atkinson rightly accepted that no form of safety training would have alerted Mr Atkinson to the specific risk involved arising out of the bolts not being inserted in the top of the ladder. He submitted however that, had Gameco given Mr Atkinson training in general safety procedures and in risk assessment, Mr Atkinson would have been more conscious of potential dangers in climbing up the ladder and would have been aware of the need to test the ladder before attempting to use it. 29 In the course of Mr Atkinson's work in Australia he occasionally was required to climb ladders on the rear of tankers to get access to the top of them. He was not a person to whom the operation was new. 30 When he commenced climbing the unbolted ladder, he could see nothing that suggested that there was any potential problem with its security or stability. He saw nothing untoward about it. After the accident he saw the empty bolt holes on the top end of the ladder; that is, on those parts that "curled over". He said that, prior to climbing the ladder, he could see part of the pieces of the ladder that curled over, but he could not see where the ladder finished and could not see the bolt holes. Thus, prior to climbing the ladder, he could not have seen whether there were any bolts in the bolt holes. 31 Thus, the only possible way in which Mr Atkinson might have been able to ascertain that there were no bolt holes in the top of the ladder before commencing his climb would have been, perhaps, by shaking or pulling the ladder while standing on the ground or bumper bar. Even then, the state of the evidence is such that it is not possible to say with any reliability whether, by carrying out these actions, the true state of the ladder would have been ascertained. After all, it is only after Mr Atkinson got to the second or third step that the ladder began to fall backwards and there is no evidence that casts any light on the degree of tightness and firmness with which the bottom of the ladder was affixed to the tanker. 32 In any event, I think it very unlikely that any general safety course or course of risk assessment would have led Mr Atkinson to test the ladder. He was not dealing with a ladder that was resting by its own weight against the object to be climbed or standing independently. He was faced with a ladder that appeared to be permanently bolted or otherwise joined to the metal tanker. Mr Saunders' advice and actions led Mr Atkinson to believe that he could safely climb up the ladder. The ladder appeared to be attached, properly, to a tanker that, in Mr Atkinson's mind, had very recently been manufactured and completed. He said that the factory "looked a fairly modern operation" with "quite a number of tankers in the yard". In these circumstances, I think it highly unlikely that it would have occurred to Mr Atkinson, by reason of some general safety or risk assessment course, that he should test whether the ladder was securely attached to the tanker. 33 The trial judge, Bishop DCJ, said: "There was no specific foreseeable risk of injury. To say that [Gameco] should have warned [Mr Atkinson] to be careful when going up ladders would be merely a statement of the obvious. [Mr Atkinson] had not himself observed the defect that was apparently in the tanker. It was hard to envisage what form of instruction by [Gameco] to [Mr Atkinson] could have possibly altered the likelihood of this unfortunate accident."

I agree. 34 His Honour said: "I am of the view that in the unfortunate factual background of this case there is no evidence which enables the Court to conclude that [Gameco] has breached its duty of care to take reasonable care of its employee."

I also agree with this observation. 35 I would dismiss the appeal with costs. 36 HUNT AJA: I agree with Ipp JA. **********

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