Master/Servant: failure to prove breach & causation

Wilkinson v Perisher Blue Pty Ltd [2012] NSWCA 250

Leaving to aside the practice and procedural arguments on appeal, I draw your attention to the consideration of liability and the discussion of the duty of care and causation in a master/servant relationship.

Background:

The appellant/plaintiff was injured in the course of his employment a mountain awareness officer (“MAO”) employed at the Perisher Valley Ski Resort. He was an extremely experienced and qualified skier. Part of duties included patrolling the front slope to police the speed and activities of skiers and snowboarders. It was used by beginner skiers in the main, but at the beginning and the end of the day there was more of a likelihood of experienced skiers coming down the slope as well. Part of the purpose of the MAO’s duties was to avoid the more experienced skiers and snowboarders coming into contact with the beginners.

The policing took place in the mid-section of the slope near the “slow” sign and the duties of the MAO included gesticulating, or blowing a whistle in order to attract their attention to ask or sign them to slow down. The MAO’s were equipped with a radio and whistle and wore a high visibility vest.

The accident happened as follows:

  1. The accident occurred on Sunday afternoon, 15 July 2007, shortly before 5pm. The appellant had come back from the Blue Cow part of the resort to Front Valley. He described what happened as follows:

“A. My normal knock-off time was 5 o’clock and I decided that I should spend the last 20 minutes doing speed control which is what I normally do at that time of the day.” (Black 67Q)

“A. I went up the lift and took up position on the mountain in the normal position that I would to start doing speed control.” (Black 68F)

“Q. Now, Mr Wilkinson, you’ve told us you took up position near the slow sign as you’ve marked off on the photograph, exhibit A?

A. Yes.

Q. Now when you took up position, how were you standing?

A. Sideways to the hill with my skis across the hill, 90 degrees to the fall line which is the line which goes straight down the hill towards the bottom.” (Black 71E-H)

“A. … I was looking up the hill and I detected a snowboarder above me … and he came under the rope that marks the side of the slopestyle course, which is a freestyle course on the skier’s right at Front Valley.

A. And that attracts some attention, the fact that he ran under the rope, which is an illegal thing to do. Then he proceeded to go fast down the mountain and when he got within cooee of me, you know, I called to him to slow down.

A. At this stage there was no risk of collision. He was just skiing down a line …

A. He then lost control and caught an edge or something. I’m not a hundred percent sure what caused it. But he lost control, and turned a sort of sharp left and headed towards me.

A. And before I could get out of the way he collided with me.

A. His body collided with my body, and his snowboard collected the tips of my skis and just knocked me completely sideways.” (Black 72F-U)

“A. He was falling over. He was in the state of falling over. He’s lost control, and he was sort of – he wasn’t perfectly upright anymore. His body was leaning to his left and he – at the same time as he struck me just below the – you know, in the chest area there with his shoulder and head or whatever it was that hit me, because I wasn’t a hundred percent sure at this stage of the game, I was trying to get out of the way;” (Black 73D-G)

  1. In      cross-examination the appellant provided a little more detail of what      happened:

“A. … He came down in a line equivalent to the orange vertical lines in the crosshatching. He came down at this angle here, underneath the chairlift, was headed down in that direction when he lost control. So he was coming straight down the hill, not on the angle that the lift is, but more in line with the vertical lines on the crosshatching.” (Black 80H-J)

“Q. How far had he progressed from the rope when you attracted his attention?

A. … He was probably 10 or 12 metres away from me and at the time I asked him to slow down, headed, you know, straight down the hill.” (Black 80U-W)

“Q. Are you saying that you attracted his attention when he was something in the order of 10 to 12 metres away from you. Is that what …

A. Yes. Off to the side, your Honour. At this stage of the game he wasn’t headed in my direction.

Q. No, no. but you had him under observation for some time?

A. Yeah, prior to that, for 40 or 50 metres and he accelerated to a speed way too fast.” (Black 81H-J)

“Q. When you spoke to this fellow, the snowboarder, did he seem to lose control straightaway? What happened?

A. I’m not sure whether he’d already lost control or whether he’d lost control after I spoke to him. He appeared to be still upright when I said, “Slow down”, which is the only two words I uttered and, you know, he was going too fast. At this stage, I’d recognised that he was being reckless so he could have already lost control but he certainly wasn’t headed in my direction at that stage. I still felt I was in a safe position.” (Black 93K-N)

The trial judge heard expert evidence as to an alternative system of work, which could involve CCTV cameras and loudspeakers or alternatively the MAO’s being placed at the top of the slope. The trial judge expressed reservations as to the alternative system achieving its desired purpose of making the slopes safer for a number of reasons. The trial judge was heavily persuaded that the MAO was visible and mobile:

  1. His      Honour accepted that visibility and mobility were part and parcel of the role of a mountain awareness officer. In that regard, it was better for      such an officer to deal with things sooner rather than later when dealing with speed. His Honour said:

“Positioning a mountain awareness officer in the location of the plaintiff, although not completely without some risk, I suppose, was in any event an essential part of his role as an officer. It is not the law that every single possibility of an injury to any employee should be completely eliminated. The law does not go that far. One cannot rule out that accidents sometimes can and do happen without the fault of anybody.” (Red 42R-V)

  1. His Honour noted that there was no evidence of any complaint by the appellant to anyone in authority concerning any element of his employment.
  1. In reaching his conclusion, his Honour had particular regard to the statement of principle by Windeyer J (with whom McTiernan, Kitto, Taylor and Owen JJ agreed) in Vozza v Tooth & Co Ltd [1964] HCA 29; 112 CLR 316 at 319:

“For a plaintiff to succeed it must appear, by direct evidence or by reasonable inference from the evidence, that the defendant unreasonably failed to take measures or adopt means reasonably open to him in all the circumstances, which would have protected the plaintiff from the dangers of his task without unduly impeding its accomplishment.”

  1. His Honour concluded:

“I am of the view that the defendant effectively did all that it could do given the circumstances of the nature of the employment of this particular employee.” (Red 48P)

Hoeben JA with whom Campbell JA and Barrett JA concurred held on appeal:

  1. One matter, however, which was clarified in the course of the appeal was what the appellant submitted should have been the response by the respondent to the foreseeable risk of injury. He submitted that a mountain awareness officer should not have been placed on a ski slope, but at the top of the slope where people exited from a chairlift and approached the slope. Another mountain awareness officer should have been placed at the bottom      (Appeal transcript 9.15-.32). This was because positioning a mountain awareness officer mid-slope was not only dangerous but it was ineffective. The alternative systems of work raised at trial were expressly eschewed.
  1. The thrust of the appellant’s oral submissions was that the only reliable evidence as to the effectiveness of the existing system of having a mountain awareness officer located midway down the slope near a slow sign came from the appellant. The appellant said that he found this to be ineffective because skiers could not hear him and because they did not pay attention to him. He found it more effective to speak to skiers and snowboarders at the top of the slope as they were getting off the chairlift and commencing their run. It was submitted that the appellant’s evidence on  this issue should have been preferred by his Honour because he was the only person with actual experience.
  1. There are a number of difficulties with that proposition. On a factual basis, there was contrary evidence. It came from Mr Johnston and from Mr      Fearnside. Mr Fearnside had practical experience as a mountain awareness officer. Both he and Mr Johnston produced cogent reasons why positioning a mountain awareness officer midway down a slope was more effective. An important consideration which they both stressed was the importance of having a mountain awareness officer clearly visible, near a slow sign, to act both as a deterrence to those who would break the rules and as a      visible reminder to other skiers and snowboarders that they should slow down.
  1. Accordingly, on a purely factual basis, it was open to his Honour to accept the evidence of Mr Fearnside and of Mr Johnston that positioning a mountain awareness officer on a slope was more effective than having him at the top or bottom of a slope with no one in between. This is particularly so when that evidence accorded with his Honour’s own appreciation of the circumstances surrounding the accident, having heard all the evidence.
  1. There is another more fundamental conceptual difficulty with the appellant’s submission. It moves immediately from the premise of the occurrence of an      accident to the concept of how the accident could have been avoided. There is no analysis of the nature of the foreseeable risk of injury and whether a response was required and if so, what kind, of response was required to that foreseeable risk.
  1. The error in such an approach has been pointed out in a number of decisions.   As early as Vozza, Windeyer J said at 318:

“It may seem that, because an accident has happened and a workman has been injured, his employer is liable for damages if it can be shown that by some means the accident might have been avoided. That is not so. The statement that the common law requires that an employer have a safe system of work for his employees means only that he must take reasonable care for their safety. It does not mean that he must safeguard them completely from all perils.”

  1. In Liftronic Pty Ltd v Unver [2001] HCA 24; 75 ALJR 867 at [25] McHugh J (with whom Gleeson CJ, Gummow and Callinan JJ agreed) said:

“25 His Honour and counsel seem to have proceeded on the erroneous assumption that, if there was a reasonably foreseeable risk of injury to the plaintiff that could have been avoided by using mechanical means, the defendant was necessarily negligent. But the issue in negligence is always whether reasonable care required the elimination of the risk having regard to the consequences of the risk, the probability of its occurrence and the cost, expense and inconvenience of eliminating it.”

  1. McHugh J made a similar observation in Tame v NSW [2002] HCA 35; 211 CLR 317 where his Honour said:

“97 But the test of reasonable foreseeability was not always so undemanding. Nor was the content of reasonable care anywhere near as high as it has become in recent years. Until comparatively recently, courts tended to ask whether the defendant had created an unreasonable risk of harm to others that he or she knew or ought to have recognised. A risk was regarded as unreasonable and one to be prevented only if reasonable members of the community would think it sufficiently great to require preventative action.

98 Many of the problems that now beset negligence law and extend the liability of defendants to unreal levels stem from weakening the test of reasonable foreseeability. But courts have exacerbated the impact of this weakening of the foreseeability standard by treating foreseeability and preventability as independent elements. Courts tend to ask whether the risk of damage was reasonably foreseeable and, if so, whether it was reasonably preventable. Breaking breach of duty into elements that are independent of each other has expanded the reach of negligence law.

99 Given the undemanding nature of the current foreseeability standard, an affirmative answer to the question whether damage was reasonably foreseeable is usually a near certainty. And a plaintiff usually has little trouble in showing that the risk was reasonably preventable and receiving an affirmative answer to the second question. This is especially so since Lord Reid said that a reasonable person would only neglect a very small risk of injury if there was “some valid reason” for disregarding it, a proposition that effectively puts the onus on the defendant to show why the risk could not have been avoided. Once these two questions are answered favourably to the plaintiff, there is a slide – virtually automatic – into a finding of negligence. Sometimes, courts do not even ask the decisive question in a negligence case: did the defendant’s failure to eliminate this risk show a want of reasonable care for the safety of the plaintiff? They overlook that it does not follow that the failure to eliminate a risk that was reasonably foreseeable and preventable is not necessarily negligence. As Mason J pointed out in Shirt in a passage that is too often overlooked:

“The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.””

  1. The failure by the appellant to carry out those fundamental steps as originally stated by Windeyer J and as elaborated by McHugh J led to      submissions being made as to the adequacy or otherwise of an alternative system without the essential anterior analysis of whether a response was      necessary.
  1. The obligation of an employer to an employee has been stated on many occasions. Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; 160      CLR 301 made it clear that a court should not approach the issue of negligence on the part of an employer on the basis of some principle that there was a heavy obligation on the part of the employer to protect the worker. It reiterated that the employer’s duty was to take reasonable care for the safety of its employee and that what is reasonable is a question of fact to be judged according to the standards of the time.
  1. There is nothing in the statement of principle in Czatyrko v Edith Cowan Univeristy [2005] HCA 14; 79 ALJR 839 at [12] upon which the appellant      placed such reliance, which is contrary to the statements of principle in Vozza and Braistina. There the court said:

“12 An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work.”

  1. That was a statement of principle applicable to an industrial accident involving repetitive work to be performed in a diminishing space. While the statement of principle is unexceptionable, it was expressed in the way in which it was, to illustrate the obligation of the employer on the particular facts of that case.
  1. In this case the employer had dual obligations. It had an obligation to its employees to exercise reasonable care for their safety. It also had an      obligation to the users of the ski fields to exercise reasonable care for their safety. As part of that latter obligation, it employed mountain awareness officers, such as the appellant, to work in a mobile and on occasions static capacity to reduce the likelihood of collisions. This was done by endeavouring to reduce the speed at which persons descended the slopes and where such persons were recalcitrant or repeat offenders, sanctions were imposed which included removing the right to ski at the resort.
  1. The system of work for mountain awareness officers was to employ highly skilled and experienced skiers in the task. Such persons were given a      broad discretion as to how and where they were to perform their task.  There was a constraint on their initiative in that for an hour or so at  the beginning and for approximately the last hour of the day, they were positioned in locations where experienced skiers and beginners, or less      experienced skiers, were likely to come together. In the case of the appellant, the location allocated for him was approximately halfway down Front Valley, shown on exhibit A, near a slow sign. He was not required to be immobile or stationary but had to be within the vicinity of the slow sign. Front Valley, as exhibit A makes clear, was a fairly gentle slope designed for use by beginners. The appellant was working with another mountain awareness officer at the bottom of the slope and was equipped with a whistle, a radio and a highly visible fluorescent green top.
  1. The      first question is whether it was reasonably foreseeable that if he were so positioned at Front Valley, there might be a collision between him and      another user of the slope? The answer is clearly yes. An affirmative answer to that question would be given if it were addressed with respect to anyone skiing on that slope. The foreseeable risk of injury to the      appellant was no greater than that to which any other user of the Front Valley slope for skiing purposes was exposed. The appellant, however, had advantages which a normal skier did not. He was highly visible, he was positioned near a slow sign, he was highly skilled and he was watching for potential sources of danger.
  1. The      next question is that posed in Wyong Shire Council v Shirt [1980]HCA 12; 146 CLR 40 at 47-48. It is the consideration of the magnitude of      the risk and the degree of probability of its occurrence. Given the appellant’s experience, the nature of his job, the fact that there had been no previous accidents and his high visibility near a slow sign on a comparatively gentle slope, the degree of probability of a collision was extremely low. The magnitude of the risk, given the nature of the slope, was also low.
  1. It is true that if the appellant had been positioned at the top of the slope or at the bottom of the slope, the risk would have been even lower, but as      the evidence accepted by his Honour made clear, his ability to perform his important job involving the safety of others, would have been      significantly reduced.
  1. Approaching  the matter prospectively and not in hindsight, what response to that foreseeable risk of injury was required of a reasonable employer? In my opinion, and clearly in the opinion of the trial judge, no response was required. By using the appellant with his special skills in the way in which it did, the employer was not unreasonably exposing him to a risk of harm. Breach of duty was not established.
  1. The facts of this case also raised a causation issue. Although his Honour did not direct his attention to that issue, he made factual findings which      enable it to be considered.
  1. The appellant was not struck by the snowboarder because he was positioned on the Front Valley slope as some kind of immovable target. He had the snowboarder under observation at all times. When he initially called to the snowboarder, there was no risk of a collision. It was only when the      snowboarder suddenly lost control and veered towards him that the collision occurred. The accident appears to have occurred as a result of  random chance and could have happened to anyone who was skiing on Front Valley at the time. Causation as a result of the system of work was not      established.

Brisbane Barrister – David Cormack

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