As this appeal demonstrates, the staged approach in the Civil Liability Act requires an identification of the “risk of harm” in the first instance.
McColl JA with Macfarlan JA and Tobias AJA concurring:
89. As I have said, the appellant was injured at the RAAF Base at Williamtown. The appellant’s counsel submitted at trial that notwithstanding that the Williamtown Base was, accordingly, a Commonwealth place, the CLA applied by virtue of s 4(1) of the Commonwealth Places (Application of Laws) Act 1970 (Cth). The respondent did not demur. The issue was not raised on appeal and, in any event, on the assumption the Williamtown Base is a Commonwealth place (if it is not, the question is academic), counsel’s submission at trial appears to me to be correct. The effect of the application of s 4(1) is “to enact a Commonwealth law in the same terms as each State law which falls within its terms”: R v Porter  NSWCCA 441; (2001) 53 NSWLR 354 (at ) per Spigelman CJ (Studdert J and Ireland AJ agreeing).
90. There is no doubt the Commonwealth owed the appellant a duty of care, albeit that he was a member of the RAAF, he having been injured while on duty in peace time: Groves v Commonwealth  HCA 21; (1982) 150 CLR 113. That did not exclude the fact that Serco, too, owed the appellant a duty of care: Stevens v Brodribb Sawmilling Co Pty Ltd  HCA 1; (1986) 160 CLR 16; see also Leighton Contractors Pty Ltd v Fox  HCA 35; (2009) 240 CLR 1 (at ) approving Brennan J’s reasons in Stevens (at 47 – 48).
91. The appellant’s case at trial and on appeal was that Serco controlled the circumstances in which Department of Defence employees conducted the cleaning operations in the kitchen of the Williamtown base. Serco did not seriously contest that proposition insofar as issuing instructions was concerned, and the primary judge appears to have accepted it. Thus his Honour set out the clause of Serco’s contract which provided that it assumed “responsibility for the cleaning of all messing facilities” and the “meticulous work instructions” it devised stipulating procedures to be followed for cleaning and sanitising kitchen equipment, including the area the appellant was attempting to clean when he was injured.
92. However, having apparently concluded that Serco owed the appellant a duty of care, the primary judge did not determine its scope. That step was important because, “duties of care are not owed in the abstract [but] … are obligations of a particular scope, and that scope may be more or less expansive depending on the relationship in question”: Roads and Traffic Authority of NSW v Dederer  HCA 42; (2007) 234 CLR 330 (at ) per Gummow J.
93. Serco essentially argued that its duty of care was confined to the preparation of the work instructions. Assuming for present purposes that that is correct (a sufficient limitation as further argument on this issue may take place at any new trial), it would have been open to his Honour, in my view, to find that Serco owed a duty to exercise reasonable care to the class of persons (of which the appellant was a member) obliged to clean parts of the mess in compliance with Serco’s work instructions, to issue work instructions which established a safe system of work. That duty would extend to devising a safe alternative system when the method prescribed by WI 56 could not be followed.
94. Once the duty of care and its scope was identified, it was necessary for the primary judge to consider the questions of breach and causation the case posed by having regard to s 5B, s 5C and s 5D of the CLA (and, should they arise, the provisions Serco pleaded in its defence) as, absent such reference, “there is serious risk that [those] inquiries … will miscarry: Adeels Palace Pty Ltd v Moubarak  HCA 48; (2009) 239 CLR 420 (at , , , ) (“Adeels Palace“). As Serco conceded, the primary judge made no clear findings on the issues posed by s 5B of the CLA and did not get to the issue of causation at all.
95. Thus, although the primary judge addressed (at  ff) the appellant’s submissions concerning breach of duty, he did not, with respect, engage with the first issue posed by that issue, namely whether there was, in the proven circumstances, a risk of harm: s 5B(1). It was only through the correct identification of the risk of harm that his Honour could determine what a reasonable response to that risk would be: Roads and Traffic Authority of NSW v Dederer (at , ) per Gummow J; Graham Barclay Oysters Pty Ltd v Ryan  HCA 54; (2002) 211 CLR 540 (at ) per Gummow and Hayne JJ. Absence of consideration at trial of the matters prescribed by s 5B of the CLA “may [be] reason enough to conclude that the question of breach of duty was not determined properly”: Adeels Palace (at ).
96. It is possible to read the primary judge’s reasons as amounting to a conclusion that the appellant was injured because he deliberately devised his own system of cleaning the bench which entailed boiling the water to a temperature sufficient both to release the saturated fat and to sanitise the area, rather than first scouring, then rinsing the bench. However, this was not the case Serco advanced at trial nor, with respect, did Serco or his Honour put to the appellant questions warranting that conclusion. However it is clear that that conclusion was the basis upon which he decided the case adversely to the appellant.
97. There are several difficulties with the primary judge’s conclusions. The first is that because his Honour failed to identify the risk of harm at the outset of his factual inquiry, in my view he failed to appreciate, or engage with, the appellant’s case on the risk of harm. That was that, absent a source of controlled hot water, heating water on a stove might lead to it being over-heated to the extent that it could burn a person in the appellant’s position required to pour it over the benches – for whatever part of the cleaning task the appellant was seeking to accomplish.
David Cormack – Brisbane Barrister & Mediator