On 4 April 2008, Kevin Phelps was moving office furniture at the OneSteel site. Phelps and another worker were moving a steel cabinet up two flights of stairs and had loaded the cabinet onto a stair-climbing trolley. Phelps was injured when he lost his footing and struck his back on one of the stairs. The cabinet landed on top of him.

Phelps sued his labour hire employer, Workpac and his host employer, Transpacific for failing to provide a safe system of work. Phelps gave evidence that he had complained to Transpacific about undertaking the task. He submitted that Transpacific could have taken further precautions to make the task safer by providing an electrical stair-climbing device, or alternatively, engaging professional removalists to move the furniture.

Phelps was awarded substantial damages and liability was apportioned 75% against Transpacific and 25% against Workpac. Transpacific appealed the finding that it had breached its duty of care by failing to provide a safe system of work.

The NSW Court of Appeal found that Phelps did not like moving furniture and had made a general complaint about it, rather than about the particular task or piece of furniture. Phelps failed to provide evidence that professional removalists would have employed different methods when moving the cabinet. Furthermore, an expert gave evidence that an electrical stair-climber would not have been able to operate in the confined space, given the height of the roof.

Transpacific had led evidence that before moving the cabinet, Phelps discussed with two other workers the likely hazards they would encounter. All three men signed an assessment sheet and ticked ‘yes’ to a section of the form which asked ‘is the job safe to do?’ and ‘is work area safe for others?’.

The Court of Appeal held that Transpacific’s obligation to exercise reasonable care for Phelp’s safety required it to warn of unusual or unexpected risks and to provide instructions where required regarding how to avoid danger of injury. The Court suggested that virtually every able-bodied adult had at some time had the experience of co-operating with another person, while transporting a bulky item up stairs. It was considered a ‘commonplace activity’ and not one which required any specific warning or instruction. The appeal was allowed and the judgment for the plaintiff was set aside.

Transpacific Industrial Solutions Pty Limited v Phelps [2013] NSWCA 31

A task must be unusual or carry unexpected risks to give rise to an obligation on the employer to give specific warnings or instructions on how to perform it.