By Lisa Quilty, Partner and Nyah Gray, Paralegal

This matter raised the question of how liability should be apportioned between the First Defendant, the Plaintiff’s employer and the Second Defendant, the occupier of the premises on which the Plaintiff was sent to work.

After several days of hearing, the First and Second Defendants reached a settlement with the Plaintiff, consenting to verdict in the Plaintiff’s favour in order of $1,271,287.73. In this matter before the ACT Supreme Court, the Court had to determine the contribution of the respective Defendants to the Plaintiff’s injury.

Factual Background

The Plaintiff suffered an injury to his leg after restrictions on how he could remove furniture imposed by the Second Defendant created an unsafe system of work. The Plaintiff was employed by the First Defendant as a removalist. On 25 October 2022, the Plaintiff was working at the Canberra Institute of Technology (CIT), being the Second Defendant. With a team of removalists, the Plaintiff’s task was to move old furniture into skip bins on the CIT site.

Despite the Plaintiff’s requests, the facilities manager at CIT would not allow the Plaintiff to open the end of the skip bin to walk the heavy furniture in, nor park the truck at a right angle to the skip bin. The facilities manager stated that doing so would block the road. This meant that the Plaintiff and his team had to park the truck parallel to the skip bin and twist around from the back of the truck to throw the furniture into the skip bin.

Before commencing the job, the Plaintiff called his supervisor to express his concerns about these restrictions imposed by the facilities manager. The Plaintiff was then told by his supervisor to “just get it done”. There was some factual dispute as to whether this call was made as the Plaintiff’s phone records did not reveal this call. In the end, as a matter of fact, the Court found that the Plaintiff did call his supervisor.

When performing this twist manoeuvre to throw a large desk into the skip bin, the Plaintiff felt an immediate sharp pain in his lower left leg. He fell of the back of the truck, could not stand and was taken to hospital. The Plaintiff suffered serious injury that left him with long term disability.

Duties of the Defendants

There was no dispute as to whether the First Defendant owed the Plaintiff a duty of care as his employer. The First Defendant accepted it had breached that duty.

The Court also found that the Second Defendant owed the Plaintiff a duty of care as occupier of the premises. Referring to Thompson v Woolworths (Q’Land) Pty Ltd [2005], the Court found that the occupier’s liability extended to the Plaintiff being required to confirm to systems and procedures established by the occupier. The Second Defendant argued that its role was limited to directing the Plaintiff. The Second Defendant further claimed it just sought to inform the Plaintiff what to remove and where to take it. The Court did not accept this and found that the Second Defendant forced on the Plaintiff an unsafe system of performing the work.

Contribution

As per s21(2) of the Civil Law Wrongs Act (ACT), the Court can apportion responsibility for damages.

As the First Defendant failed to provide sufficient direction to the Plaintiff was to how to approach the job following the Plaintiff’s phone call and failed to inquire further about the safety concerns raised, the Court agreed with the First Defendant’s argument that the First Defendant’s contribution should be 50%. It was argued that the First Defendant was not made fully aware of how the Plaintiff believed the system imposed was unsafe and therefore contribution could only be 50%.

The Second Defendant argued that they engaged the First Defendant’s employees as experts and did not set restrictions on the system of work that was to be performed. The Second Defendant argued that its contribution should be 10-15%.

The Court found that as the Second Defendant did impose conditions on the way the Plaintiff’s work was to be performed, meaning the Plaintiff could not perform the removal in the manner he preferred as an expert, the Second Defendant created a system of work that was unsafe.

Contribution was apportioned equally at 50% for both the First and Second Defendant by the Court.

Outcome and implications

In this judgement, the Court had to weigh the duties owed to the Plaintiff by both his employer and the occupier of premises where he was working. The Court found an expanded duty of care owed by the occupier should be applied. As in Thompson v Woolworths (Q’Land) Pty Ltd [2005], while there is a duty of the occupier to ensure the safety of people who come onto it premises, there is also a duty with regards to the safety of systems of work that people are exposed to with an occupier’s premises.

This Judgement raises interesting considerations for contracted work. While there is a principal duty for an employer to ensure safe systems of work for their employees, if this system is altered by the contracting party, the Court found an employer cannot be found to be wholly responsible for injury that occurred as a result of this unsafe system of work.

If experts are being contracted, it may be sage advice for the contracting party not to attempt to alter the systems of the work being performed by that expert.