Mr Scott Cole (the worker) sustained injury on 30 June 2005 in the course of his employment by Finemore Transport. DIB Group Pty Ltd t/as Hill & Co (DIB) was sued as the occupier of the premises where the accident occurred. Specifically, the worker stepped on an unstable cover which lay over an inspection pit, causing him to fall and fracture his ankle. At first instance, the NSW District Court found DIB negligent as occupier of the premises and awarded the worker damages.

The appeal to the Court of Appeal did not seek to challenge the finding of negligence or the assessment of damages, but rather it sought to challenge unsuccessful arguments made at first instance concerning:

  • whether the worker was contributorily negligent; and
  • whether the worker’s employer, if sued, would also have been liable in negligence and would have been liable to contribute to the damages payable.

The worker had attended upon DIB’s premises a number of times prior to the accident and had been given basic safe handling training with respect to the work he was undertaking. The pit into which the worker ultimately fell was supposed to be inspected or cleaned by employees of DIB on a weekly basis. At some unidentified time prior to the accident, the lid covering the pit had been chipped at the edges, making it unstable and unsafe. The worker gave evidence that he had never stepped on the pit cover prior to the incident and there was no suggestion that the pit cover was not visible due to inadequate lighting conditions.

At first instance, Goldring DCJ commented on Sections 5R, 5B and 5C of the Civil Liability Act 2002 (NSW) with respect to contributory negligence. His Honour determined that the risk of injury to which the worker was exposed was not one to which he was aware or ought reasonably to have been aware, adding that stepping on metal pit covers was an everyday occurrence without significant risk. The only material factor with regard to the pit cover was that it had a wooden surround. This, however, was not accompanied by any implicit or express warning of danger. Its probable purpose was to prevent pebbles surrounding the pit from falling into it. This was accepted by the Court of Appeal.

The Court of Appeal then turned its attention to the legal duties of an employer, holding that the general law would determine this issue, “unaffected by statute”. Their Honours criticised the generally accepted notions of “stringent” and “non-delegable” duties as “inaccurate” and “uncertain”, and particularly with respect to the latter the uncertainty stemmed from the concept and meaning of delegation. Their Honours, in discussing a number of authorities, articulated the following factors relevant to determining the scope of an employer’s duty to take reasonable care:

  • Did the circumstances giving rise to the injury require a positive action on part of the employer which was not taken?
  • If so, did the obligation relate to plant and equipment, competent workers/contractors or safe system of work?
  • If so, and the employer had control over the circumstances, did it take the necessary steps to ensure its employees were protected?
  • If the circumstances were not within the immediate control of the employer, did the employer take such steps reasonable in the circumstances, to provide reasonable protection to its employees?

The specific issue to be determined by the Court involved the “extent to which the personal duty of the employer extends to premises over which it has limited or no control.”

Issues such as the opportunity for the employer to inspect the premises, the expected duration of an employee’s visit, the level of knowledge of the employer regarding any dangers and its capacity to safe guard an employee against same were all relevant considerations in these instances. Goldring DCJ had determined that even upon inspection by the worker’s employer of DIB’s premises, it was unlikely that the defect in the concrete would have been discovered as a danger and it was unreasonable to expect such a result. Accordingly, Goldring DCJ had found that the employer had a duty to inspect the subject premises (which it did not do), but that any such inspection in any event would not have uncovered the danger. So, notwithstanding the employer’s breach of this duty, the fact that compliance with same would not have uncovered the danger enabled the employer to escape liability.

Interestingly, in the circumstances, the only duty said to have arisen for the employer was inspection of the property where the worker was injured. The Court of Appeal, in agreeing with the findings of the trial judge, added that it would have been necessary for the employer to question staff of DIB to ascertain any hidden or likely risks on the premises and whether such information would have been forthcoming in any event is only speculative.

DIB had the onus of establishing liability of the worker’s employer which it could not do in the subject circumstances. This aspect of the appeal also failed.

Of course, as specific factual circumstances in each case differ, so too will the intended outcome. Changes in the level of knowledge, degree of inspection, control and other factors will all influence where the liability will ultimately fall.

DIB Group Pty Ltd trading as Hill & Co v Cole [2009] NSWCA 210 (24 July 2009)