In a recent New South Wales Court of Appeal decision, Hall & Wilcox successfully overturned a finding of liability against the occupier of a Leagues Club. The decision demonstrates a common sense approach by the Court of Appeal to the interpretation of reasonable foreseeability of not insignificant risks and provides a distinguishable authority fromThompson v Woolworths (Qld) Pty Ltd1 on occupiers’ liability.

Facts

The plaintiff was a security guard working at South Sydney Juniors Rugby League Club (club). The plaintiff worked at the club during the early morning cash clearance procedures where the club would empty its poker machines and count the money. The security services for this were provided by the club’s security contractor, Sermacs. Sermacs provided three guards to the club for the cash clearance procedures. One of the guards was required to be an armed guard, which was the plaintiff’s role.

The plaintiff was supplied as labour hire to Sermacs by MPS, as Sermacs did not have any employees who were licenced to carry a gun.

In the course of the cash clearance procedure boxes of money from poker machines were placed in large trolleys and then wheeled to a room on the second floor of the club known as the ‘soft room’. Inside the soft room the money was counted. The plaintiff’s role as the armed guard was to stand guard outside of the soft room.

On 19 May 2006 at approximately 8.00 am the plaintiff attempted to pull a trolley by grabbing hold of its handle with one hand and pulling to move it away from the wall. In the course of doing so he lost his grip and fell backwards landing on a smaller trolley behind him.

As a result of the injuries sustained in the subject incident the plaintiff gave evidence that he had been able to work for a further two weeks in immense pain and thereafter was unable to work as a result of debilitating back pain.

The plaintiff commenced proceedings against the club, Sermacs and MPS.

First instance decision

His Honour found that whilst the club’s management did not have any knowledge that the plaintiff had been moving trolleys, the club has the knowledge of its employees including those working in the soft room and therefore the club was deemed to have knowledge that the plaintiff had been moving the trolleys.

Relying upon Thomson v Woolworths, his Honour found that the club placed the trolley in the plaintiff’s work location and ought to have known that as a result the plaintiff was likely to attempt to move it. The club in allowing the plaintiff to move the trolleys regularly was effectively implementing a system of work that imposed a risk for workers in the area.

His Honour had no difficulty in finding that MPS as the employer of the plaintiff had a non-delegable duty of care which extended to checking the system of work which the plaintiff was required to undertake and this was not done by MPS.

His Honour accordingly awarded the plaintiff the sum of $1,162,779.80 and apportioned liability 75% to the club liable and 25% to MPS. His Honour found that Sermacs had no liability.

Appeal

Both the club and MPS’s insurer appealed the decision. The appeal was heard by Basten, Macfarlan and Simpson JJA.

The club

The court found that the primary judge was incorrect to infer that the knowledge of every employee of the club, particularly on the actions of an independent contractor moving trolleys, becomes the knowledge of the club. It would only become the knowledge of the club where supervisors or managers were aware.2 There was no basis for a finding that any supervisors or managers at the club had the requisite knowledge.

The court found that there was no reasonable expectation that the plaintiff would attempt to move trolleys, despite them being present in his work area. Although the primary judge had relied upon Thompson v Woolworths, the court distinguished the present case as there was no finding of the club’s actual knowledge of the plaintiff moving trolleys, nor was there any practical necessity for the plaintiff to move the trolleys. It accordingly could not be said that the moving of the trolleys had become part of the plaintiff’s system of work.

It was also held that the risk of the plaintiff slipping with his grip and falling backwards was not a risk which was ‘not insignificant’. The plaintiff gave evidence that he had moved the trolley in this way many times before without issue. The club’s work method statement on the movement of trolleys identified push or pull strain injuries, but not losing grip and falling backwards.

Even if the club’s managers or supervisors had been aware that the plaintiff was moving the trolleys every day, the court held that there was no reason to suggest that the supervisor or manager would reasonably considered that this would have been a risk of injury which the plaintiff ought to have been directed not to do.

MPS

The court found that although MPS, as the plaintiff’s employer, had a duty to inspect the plaintiff’s work place and system of work to ensure it was safe and MPS had breached that duty, the breach was not causative of the plaintiff’s loss. Even if MPS had undertaken a reasonable inspection, it would not have identified the risk which resulted in the subject incident occurring.

The court accordingly upheld both appeals and set aside the judgments against both the club and MPS.