“Occupiers duty of care to independant contractor”: Rabay & Anor -v- Bristow  NSWCA 199
on Jun 13, 2005
Author: Nicholas Gordon
Judgement Date: 15th June, 2005
Citation: Rabay & Anor -v- Bristow
Jurisdiction: NSW Court of Appeal
This case involved the duty of care owed by an occupier to an independent contractor who suffered injury whilst operating a pallet jack at the appellants’ premises.
The Court of Appeal affirmed the primary judge’s findings that the appellants had been negligent by failing to remove a metal bracket.
The respondent’s job was to deliver pallets on which were stacked cartons of groceries and similar items. The appellants operated the Welcome Mart store at Brownsville. At the rear of the store there was a doorway to which was affixed a roller shutter door. Attached to the concrete floor in the centre of the doorway was a metal bracket 8mm thick and 85mm wide which protruded above the floor level by 25mm.
On 17 February 2000, the respondent was delivering goods to the appellants. The goods were stacked inside the respondent’s semi-trailer on pallets which were approximately four feet square. The respondent positioned the tailgate on the semi-trailer so that it was level with the floor of the interior of the trailer, placed a pallet jack underneath a pallet, lifted it off the floor and then pulled the laden pallet by means of the pallet jack to the tailgate. He lowered the tailgate until it was level with the footpath, turned 90 degrees and pulled the pallet onto the footpath lining it up as he did so with the doorway.
The respondent then had to manoeuvre the pallet on the pallet jack up the rise of the footpath and through the doorway. In order to move the pallet inside the store it was necessary for the respondent to pull the laden pallet jack while walking backwards through the doorway with sufficient speed and momentum to get up the rise and, at the same time, check that the goods on the pallet did not collide with the doorjambs. The appellants’ son assisted him in this procedure by pushing the goods on the pallet jack while the respondent pulled.
While carrying out this task, the rear of the respondent’s right boot came into contact with the metal bracket protruding from the floor. One of the wheels of the pallet jack then ran up on top of the steel cap of his boot causing the respondent to fall backwards, hitting the ground hard with his buttocks, causing the injuries the subject of these proceedings.
The respondent had delivered goods to the appellants’ premises twice before. The primary judge found that on one of these occasions the respondent’s foot had come into contact with the metal bracket while he was walking backwards into the store and as a result he had spoken to the appellants and asked them to remove the piece of metal. He said that the appellants had not answered but had “just smiled and signed the paperwork”. Another driver gave evidence that he had also complained about the protruding metal bracket.
District Court Decision
The primary judge concluded that the appellants had been informed prior to the subject accident that the metal bracket “represented a real and present risk to people pulling a pallet jack loaded with a pallet through the doorway”. The primary judge also rejected the appellants’ evidence that the roller door could not be secured without the metal bracket.
The primary judge concluded that the metal bracket presented a reasonably foreseeable risk of injury to persons walking through the doorway and rejected the appellants’ submission that they had discharged their duty of care because the respondent was aware of the metal bracket. He also rejected the submission that the metal bracket was likely to cause injury only if the person using the premises did not take reasonable care to avoid it.
In light of the above factors, the primary judge concluded that in order to discharge their duty of care the appellants were required to remove the metal bracket. They were therefore negligent for failing to do so. The primary judge found that there was no contributory negligence on behalf of the respondent and assessed his non-economic loss at 31% of “a most extreme case”. The respondent was also awarded economic loss.
Court of Appeal Decision
The appellants submitted that the duty of care owed to the respondent was that of reasonable care on the assumption that he, as an entrant to the premises, would take care to avoid and deal with obvious hazards which were known to him and which the existence of reasonable care on his part enabled him to avoid. In essence the appellants’ argument was that the mode of delivery was a matter for the respondent and that the injuries were not caused by the condition of the premises but by the respondent’s failure to exercise reasonable care in entering the premises in circumstances where he was “entirely in control of the events”.
The appellants also argued that the primary judge had failed to correctly assess that the magnitude of the risk was insignificant, the potential for harm slight, and also that the judge’s conclusion attached insufficient importance to the “proven utility of the bracket as a means of securing the premises”. For the above reasons, the appellants argued that the application of the Shirt Calculus (Wyong Shire Council v Shirt  HCA12) led to the conclusion that they were not required to take action in relation to the metal bracket or the door.
The respondent submitted that the appellants’ premises were unsafe to the appellants’ knowledge and that there was always a risk in the way that deliveries were made as the margin for error was so small. The respondent described his behaviour as simply a “miscalculation which did not, in the circumstances, amount to such imprudence as to constitute carelessness or negligence at all”.
The respondent also relied on the recent decision of Thompson v Woolworths (Queensland) Pty Limited  HCA19, where the plaintiff successfully sued as an independent contractor who had injured her back while delivering goods to the respondent’s store. The Plaintiff’s case against Woolworths was based upon an allegation that there was a “systematic failure to exercise reasonable care for [her] safety”. The High Court concluded that the appellant had established that Woolworths had breached its duty of care to her in failing to have a proper delivery system in place, that delivery system being the power and responsibility of Woolworths alone.
The appellants also relied upon Thompson v Woolworths to argue that the respondent’s damages should be reduced by one third for contributory negligence.
The Court of Appeal found that the risk of tripping over the metal bracket was obvious and that the appellants were aware of the risk the metal bracket posed to entrants to their premises, particularly delivery drivers such as the respondent. The Court of Appeal dismissed the appellants’ submission that the mode of delivery was a matter for the respondent.
The Court confirmed the test in Thompson that the weight to be given to the expectation that the appellants need do nothing and simply rely upon the respondent to exercise reasonable care for his own safety, was “a matter for factual judgment”. In this case, the appellants had to take into account the possibility that the respondent’s preoccupation with the task at hand would lead him to forget about the protruding metal bracket and that it was plain that this is what happened on 17 February 2000.
In relation to contributory negligence, the Court of Appeal agreed with the primary judge that the respondent’s inadvertence did not amount to blameworthy negligence on his part. Accordingly, no contributory negligence was found.
Whilst accepting that the assessment of 31% of a most extreme case was high, the Court of Appeal found that there was nothing which would indicate that it was outside the range of a sound exercise of the judge’s discretion.
In relation to economic loss, the Court of Appeal again found that the primary judge did not err in awarding the respondent damages for his past economic loss and noted that the primary judge’s assessment that he had a 50% residual earning capacity was “almost favourable to the appellants” as the respondent had not been able to return to work since his accident.
The Appeal therefore failed on all grounds.
This case demonstrates that defendants cannot simply rely on the argument that if there is an obvious risk of danger they need do nothing and can rely on the plaintiff to take care for his or her own safety. In particular, an occupier owes a duty of care to people coming onto their premises not to expose them to the unreasonable risk of injury.
In all cases the weight to be given to that expectation is “a matter for factual judgment” and defendants must bear in mind that plaintiffs will not always exercise due care for their own safety. In this case, the respondent’s actions were deemed to be “inadvertence” and not blameworthy negligence on his part so as to justify any reduction for contributory negligence.
The case is further demonstration that appellate courts are reluctant to interfere with trial judge’s findings of facts and assessment of damages which involve an exercise of discretion and are not arrived at by way of a scientific formula.