Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Wooby v Australian Postal Corporation [2013] NSWCA 183
• Hearing dates: 24 April 2013
• Decision date: 19 June 2013
• Before: McColl JA at [1]; Basten JA at [2]; Ward JA at [60]

Decision

(1) Allow the appeal and set aside the judgment of the District Court delivered on 14 March 2012.

(2) Enter judgment for the plaintiff in the District Court for damages to be assessed and remit the matter to the District Court for determination of:

(a) the degree, if any, of contributory negligence;

(b) determination of the injuries suffered by the appellant and quantification of damages, and

(c) costs of the trial.

(3) Order that the respondent pay the appellant's costs of the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: NEGLIGENCE - duty of care - scope of duty - whether respondent owed appellant duty to ensure safe work conditions - where appellant worked as independent contractor - relevance of cases concerning principal's liability for negligence of one independent contractor harming another; NEGLIGENCE - duty of care - scope of duty - whether respondent owed duty to independent contractor to ensure safe work conditions - where respondent occupied premises - appellant injured whilst unloading parcels on respondent's premises - appellant contracted to work solely for contractor to respondent -appellant not exercising specialist skills - appellant injured during course of work which was part of system devised and controlled by respondent - where respondent knew of the risks which materialised - whether duty affected by terms of contract; NEGLIGENCE - breach of duty - adequacy of precautions against risk which materialised - appellant injured whilst lifting parcels pursuant to contract with respondent - respondent placed stickers on parcels indicating that they were heavy - respondent required principal contractor to accept responsibility for safe handling of parcels - additional precautions within primary control of respondent - additional precautions not unreasonably burdensome
• Legislation Cited: Civil Liability Act 2002 (NSW), ss 5A, 5B, 5H, 5I, 5L, 5M, 5O; Interpretation Act 1987 (NSW), s 35
• Cases Cited: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420; Bostik Australia Pty Ltd v Liddiard [2009] NSWCA 167; Elphick v Westfield Shopping Centre Management Co Pty Ltd [2011] NSWCA 356; Leighton Contractors Pty Ltd v Fox [2009] HCA 35; 240 CLR 1; Rockdale Beef Pty Ltd v Carey [2003] NSWCA 132; Stevens v Brodribb Sawmilling co Pty Ltd [1986] HCA 1; 160 CLR 16; Sydney Water Corporation v Abramovic [2007] NSWCA 248; The Wagon Mound (No 2) [1967] 1 AC 617; Thompson v Woolworths (Q'land) Pty Ltd [2005] HCA 19; 221 CLR 234; Tolhurst v Cleary Bros (Bombo) Pty Ltd [2008] NSWCA 181; Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40
• Category: Principal judgment
• Parties: Jacqueline Wooby (Appellant); Australian Postal Corporation (Respondent)
• Representation: Counsel: S Norton SC/M Daley (Appellant); P S Jones (Respondent); Solicitors: Brydens Law Office (Appellant); Graham Jones Lawyers (Respondent)
• File Number(s): CA 2012/113526

Decision under appeal

• Jurisdiction: 9101
• Date of Decision: 2012-03-14 00:00:00
• Before: Balla DCJ
• File Number(s): DC 2010/397664

Judgment

1 McCOLL JA: I agree with Basten JA.

2 BASTEN JA: The appellant, Jacqueline Wooby, subcontracted a mail delivery run from a contractor for the respondent, Australia Post. On 5 June 2008 the appellant suffered an injury to her back whilst lifting a parcel on Australia Post premises, in order to place it in her van. She sued Australia Post in negligence.

3 The appellant did not work for Australia Post, nor was she directly contracted by Australia Post to deliver parcels. Rather, Australia Post had a contract with V & E Transport Pty Ltd for parcel delivery from its Kingsgrove delivery centre. V & E Transport entered into an oral subcontract with the appellant for delivery of parcels on a specified run. The appellant contended that Australia Post owed her a duty of care "akin to" or "analogous to" that owed by an employer to an employee.

4 The District Court rejected that submission: Wooby v Australian Postal Corporation (unrep, 14 March 2012, Balla DCJ). The findings were expressed in the following terms:

"Accordingly I am satisfied that Mrs Wooby has failed to show that Australia Post had a duty of care to her in relation to the sorting of parcels before delivery" (p 8);

"If I am wrong and if Australia Post did owe a duty of care to the plaintiff I am not persuaded that any such duty would be analogous to the duty owed by an employer to an employee" (p 9), and

"If there is a duty of care I am satisfied that it would be confined to the duty of care of an occupier to take reasonable care for the safety of Mrs Wooby as an entrant upon the premises" (p 11).

5 The trial judge also held that if Australia Post had a duty of care, it was not required to take any precautions against a risk of harm of the kind which materialised in this case, beyond steps which it did in fact take. It would therefore not have been in breach of any duty it did owe the appellant: p 12.

6 The appellant challenged a number of factual findings made by the trial judge (grounds 1-3), and also the ultimate conclusion that Australia Post owed her no duty of care. She also challenged the finding that there had been no breach of duty, although that should be seen as dependent upon the nature of the duty which the trial judge was prepared to accept, namely a duty as occupier of the premises.

7 The challenged factual findings were not critical to the issues of duty and breach and will be dealt with later. The appellant's primary submissions should be accepted, the appeal allowed and the matter remitted to the District Court. The trial judge did not deal with the question of contributory negligence raised in the defence, nor did she assess damages. Neither party addressed this Court on either issue and accordingly, both must be remitted to the trial court.

Legal principles

8 In order to identify the relevant factual considerations, it is necessary to address the legal issues identified by the parties as being in dispute.

9 Although the submissions focused on the similarities and difference derived from a comparison of the present case with binding authorities, that is not the appropriate exercise. The first step is to identify any appropriate statutory provision. The second step is to identify the legal principles derived from relevant authority. The way that the principles have been applied to particular facts may elucidate the scope and operation of the principles, but will not provide authority to be followed.

10 The key statutory provision, identified by the trial judge, is s 5B of the Civil Liability Act 2002 (NSW), which relevantly provides:

5B General principles

(1) A person is not negligent in failing to take precautions against a risk of harm unless:

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b) the risk was not insignificant, and

(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

(a) the probability that the harm would occur if care were not taken,

(b) the likely seriousness of the harm,

(c) the burden of taking precautions to avoid the risk of harm,

(d) the social utility of the activity that creates the risk of harm.

11 These provisions appear in Pt 1A, Div 2, which is entitled "Duty of care". The heading to the division is part of the Act: Interpretation Act 1987 (NSW), s 35(1). However, in Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420, the High Court stated that the heading was "apt to mislead" and that ss 5B and 5C, which appear in that Division, "are evidently directed to questions of breach of duty": at [13].

12 In Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40, after discussing the principle outlined by Lord Reid in The Wagon Mound (No 2) [1967] 1 AC 617 at 643, Mason J stated at 47:

"In essence its correctness depends upon a recognition of the general proposition that foreseeability of the risk of injury and the likelihood of that risk occurring are two different things. I am of course referring to foreseeability in the context of breach of duty, the concept of foreseeability in connexion with the existence of the duty of care involving a more generalized enquiry."

13 The factors that Mason J stated (at 48) bear a close relationship to the statement of "general principles" in s 5B, a matter which supports the view that s 5B is dealing with breach of duty.

14 However, two difficulties remain. First, where all questions of fact or law are to be determined by a judge alone (not the situation which arose in Shirt's case) applying the concept of foreseeability in two different contexts is more likely to confuse to than to illuminate. Further, it is clear that the Civil Liability Act does deal with questions of duty in Pt 1A, (although not in the division headed "duty of care") identifying those circumstances in which there is no liability because there is no duty: see s 5H (no duty to warn of obvious risk) and s 5M (no duty with respect to recreational activity where 'risk warning' given). In other provisions, the Act merely states that a person is "not liable in negligence for harm suffered": s 5I (materialisation of inherent risk), s 5L (dangerous recreational activities and obvious risks), s 5O (competent professional practice). The failure of the Civil Liability Act to resolve this confusion is compounded by the statement that Pt 1A applies to "any claim for damages for harm resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise": s 5A. Yet most of the provisions referred to have been drafted with an eye firmly fixed on the law of tort. An underlying intention to make them more broadly applicable may have deflected the drafter from clarity of expression with respect to claims in tort.

15 The issue of present importance is that the legislative scheme has been assumed to leave untouched the general law principles which control the scope of liability of an employer, the occupier of premises, or an independent contractor.

16 Where the relationship between plaintiff and defendant is not that of employee and employer, it is unhelpful to identify the scope of duty or the standard of care as "akin" to a relationship which does not exist. The exercise sought to be invoked would begin with a strong standard and depart from it only to the extent that material differences from the posited relationship can be established. However, if, for example, a key element of the employment relationship is that of control, the better approach is to acknowledge that control is a significant element and identify the extent of control exercised by the defendant in a particular situation: see Stevens v Brodribb Sawmilling co Pty Ltd [1986] HCA 1; 160 CLR 16 at 24 (Mason J).

17 Brennan J spoke of the need for a principal to "retain and exercise a supervisory power or to prescribe the respective areas of responsibility of independent contractors if confusion about those areas involves a risk of injury": at 47. There was no elaboration on the scope of the "supervisory power", although it was expressed to be independent of the choice of competent contractors and coordination of areas of responsibility: at 48.

18 The appellant sought to rely on principles derived from Stevens: however, except at a high level of generality, that exercise was misplaced. The defendant, Brodribb Sawmilling, conducted logging operations which involved felling trees, using a snigger to push or pull the logs up a loading ramp and a driver to transport the logs on a truck to the sawmill. The plaintiff, and another man, Gray, were independent contractors engaged by Brodribb. The plaintiff was a truck driver. Mr Gray was a snigger. When attempting to load the plaintiff's truck, he negligently allowed a log to roll onto the plaintiff, causing him significant injury. The question was whether Brodribb was liable to the plaintiff for Gray's negligence. However, the present case is not concerned with the negligence of one independent contractor causing harm to another: it is concerned with a contractor injuring herself in the course of her work.

19 In Leighton Contractors Pty Ltd v Fox [2009] HCA 35; 240 CLR 1, the High Court stated at [20]:

"The common law does not impose a duty of care on principals for the benefit of independent contractors engaged by them of the kind which they owe to their employees. However, it is recognised that in some circumstances a principal will come under a duty to use reasonable care to ensure that a system of work for one or more independent contractors is safe. The principles were explained by Brennan J in Stevens [at 47-48] ...."

20 The circumstances in Leighton v Fox were similar to those in Stevens: the plaintiff, an independent contractor on a building site, was injured by the negligence of another independent contractor, but sued the principal responsible for engaging the various contractors. The fact that an employer (but not a contractor) "owes a personal, non-delegable, duty of care to its employees requiring that reasonable care is taken" rather than simply "a duty to take reasonable care to avoid foreseeable risk of injury to a person to whom a duty is owed" recognises, without quantifying, the difference between the two relationships: Leighton at [21]. Otherwise, the circumstances of Leighton, being similar to those in Stevens, are of no direct relevance, in the sense that they involved the application of general principles to rather different facts.

21 There is a line of cases of more direct relevance, of which the most important is Thompson v Woolworths (Q'land) Pty Ltd [2005] HCA 19; 221 CLR 234. The appellant, Thelma Thompson, delivered bread to a Woolworths store at Stanthorpe in Queensland. On occasion, access to the loading dock would be blocked by waste bins. It was the responsibility of Woolworths staff to return the bins to a fenced off area once they had been emptied. However, as the store manager (and hence the respondent) knew, contractors carrying out deliveries often moved the bins themselves. In moving the bins on one occasion, Ms Thompson suffered an injury to her back.

22 In upholding her entitlement in negligence against Woolworths, the Court noted that one aspect of the relationship between the parties was the status of Woolworths as an occupier of the land, which gave it a measure of control, not only over the physical condition of the premises, but also with respect to the business operations carried out on the premises: at [24]. Other factors were also relevant.

"26 The purpose for which, and the circumstances in which, the appellant was on the respondent's land, constituted a significant aspect of the relationship between them. The appellant, in the pursuit of her own business, was delivering goods to the respondent for the purpose of sale in the course of the respondent's business. To do that, she was required to conform to a delivery system established by the respondent. She was directed by the respondent when, where, and by what method she was to deliver. ... Since the respondent established the system to which the appellant was required to conform, the respondent's duty covered not only the static condition of the premises but also the system of delivery. Some aspects of what went on were within the independent discretion of the appellant. She was not the respondent's employee. Within a fairly narrow time frame, she could choose when she made her deliveries. She could choose what kind of delivery vehicle suited her purpose. Decisions about the management of the vehicle, and the method of unloading, were largely left to her.

27 Even so, the respondent established and maintained a system, and its obligation to exercise reasonable care for the safety of people who came onto its premises extended to exercising reasonable care that its system did not expose people who made deliveries to unreasonable risk of physical injury. ...

28 The essential issue in the case concerns, not the existence or general nature of the duty owed by the respondent to the appellant, but whether there was a breach of duty."

23 Rockdale Beef Pty Ltd v Carey [2003] NSWCA 132 pre-dated Thompson. In it, this Court considered the liability of a feedlot owner to a stockman, working as an independent contractor, who was injured when trying to herd a steer back into its pen. In upholding liability, Ipp JA (with whom Mason P and McColl JA agreed) stated:

"88 Mr Carey had no control over the configuration of his workplace. That was in the sole control of Rockdale. He had no control over where he had to work and what work he had to carry out. He was instructed by Rockdale as to these matters including the system of work that he needed to follow.

...

90 Although he was an independent contractor, Mr Carey worked for no one apart from Rockdale and had done so for many years. The bargaining power of the parties was not equal. Mr Carey was as vulnerable to potential misuse as any employee. ...

91 A defendant's control over the conduct that gives rise to the risk, a defendant's knowledge of the risk, and the relative inability of plaintiffs to protect themselves are also important factors in determining whether a duty of care arises ...."

24 What was described as "the configuration of the work site" was said to have given rise to a safety risk, and a duty on Rockdale to use reasonable care to avoid or minimise that risk, namely by prescribing a safe system of work: at [92].

25 Another case in this Court is Sydney Water Corporation v Abramovic [2007] NSWCA 248. Mr Abramovic worked as an employee of an independent contractor to Sydney Water Corporation. He suffered silicosis as a result of inhaling silica dust in the course of his work. The Dust Diseases Tribunal upheld the liability of Sydney Water in negligence. The appeal being limited to a question of law, the issue was limited to the existence of a duty of care. In considering the important question as to the level of control vested in the principal as opposed to the independent contractor or worker, I noted that a principal will often reserve to itself the right to exercise a degree of control over the nature and manner of carrying out works by independent contractors, a fact which cannot alone determine the existence or scope of a duty to require a safe system of work: at [90]. Significant in the particular case was the degree of control in fact exercised by the principal: at [91].

26 At [98], I suggested a number of potentially relevant factors, namely:

"(a) the principal directs the manner of performance of the work;

(b) the work requires the coordination of the activities of different contractors;

(c) the principal has or ought to have knowledge of the risk and the employer does not and cannot reasonably be expected to have such knowledge;

(d) the principal has the means to alleviate the risk and the employer cannot reasonably be expected to do so;

(e) although the employer has or should have the relevant knowledge and can be expected reasonably to take steps to alleviate the risk, it does not, to the knowledge of the principal, do so."

27 Those considerations were not intended to provide an exhaustive list (like most lists they were context-specific) nor, despite the wording which introduced them, was satisfaction of any one necessarily sufficient to give rise to a duty. Further, they were expressed in terms of the distribution of responsibility between the principal and an employer of the worker, although they could obviously apply where the independent contractor was the worker, rather than the employer of the worker. Finally, the somewhat restrictive formulation, albeit non-exhaustive, reflected an attempt to identify considerations relevant to the question of law involved in the existence of a duty, whereas, in most cases, as in Thompson, the focus of the dispute will rely upon the factual issues relevant to breach.

28 Tolhurst v Cleary Bros (Bombo) Pty Ltd [2008] NSWCA 181 involved a worker who was employed by a contractor (Cleary) to stockpile coal at a mine site. When the stockpile was some 30 metres high, it collapsed onto the loader which Mr Tolhurst was driving, causing injury to him. The relevant issue for present purposes was the liability of the owner and operator of the colliery, Endeavour Coal Pty Ltd. The Court (the principal judgment being delivered by Giles JA, Beazley and Tobias JJA relevantly agreeing) upheld a duty on the part of Endeavour Coal to the worker, based on it having retained a degree of control over the performance by Cleary of its activities as contractor and having created the conditions in which there was a risk to the drivers of coal loaders, absent establishment of a safe system of work: at [73].

29 Next, it is convenient to refer to the decision in Bostik Australia Pty Ltd v Liddiard [2009] NSWCA 167. Mr Liddiard was a worker injured when attempting to move an empty 200 litre drum, used as a rubbish bin, without mechanical or other assistance: at [1]. Although the premises were occupied by Bostik, part of the area was used by a separate business, Brolton Industries Pty Ltd, which employed Mr Liddiard. The evidence demonstrated that about six months before the accident, Brolton had supplied Mr Liddiard's services to Bostik for various cleaning and maintenance purposes, including that in which Mr Liddiard was engaged at the time of his injury. Ipp JA and I concluded that Bostik did not owe a duty of care to Mr Liddiard (Beazley JA being of a contrary view). On the evidence, the proper inference was that Brolton had contracted with Bostik to provide the services, but remained responsible for the manner in which such work was to be performed: at [149]. The reasons continued:

"Although the bins and the forklifts may have been the property of the appellant, part of the arrangement was that Brolton could make use of such equipment as it required to carry out the functions for which it was responsible. This was not a case in which any co-ordination of contractors was required, nor was there any other reason for the appellant to devise a safe system of work for the plaintiff. To the extent that the appellant controlled activities on the premises, there was no danger or risk to the plaintiff relevant to the injury suffered, arising from the state of the premises or the activities which took place on them. It was no doubt true that steps could have been taken which would have lessened or removed the risk associated with manual handling of the waste bins. Nevertheless, neither the legal arrangement nor the practical circumstances in which the work was undertaken imposed an obligation on the appellant with respect to such steps. In my view the appellant did not owe a duty of care to the plaintiff."

30 Finally, there is Elphick v Westfield Shopping Centre Management Co Pty Ltd [2011] NSWCA 356. The plaintiff, Mr Elphick, was employed by a cleaning company, known as ACS, which had a contract to clean a shopping centre managed by Westfield. One of his responsibilities was to empty cardboard set aside for recycling from a large metal cage into a compactor. To undertake that task, he stepped inside the cage which, being mounted on three wheels, was inclined to move. The cage had to be secured before the plaintiff sought to climb into it, but on the occasion in question it moved causing his right hip to twist away from his legs. He suffered an injury but did not recover from Westfield. The facts were found to illustrate a regime of responsibility which conformed to the contractual scheme, which effectively exonerated Westfield.

Application of principles - Duty of care

31 In her role as a subcontractor to V & E Transport, the appellant carried out work "for" Australia Post, or provided services to Australia Post. She was required to wear a uniform and drive a van emblazoned with Australia Post logos. However, it was not her relationship with Australia Post as displayed to the public, or its customers, which was in issue.

32 Two general factors of relevance in considering the relationship were, first, that she was contracted to work solely for Australia Post and, secondly, she was not exercising any particular skill or specialist expertise or training in carrying out her functions at the delivery centre: in that respect, her role might be contrasted with that of a qualified tradesperson.

33 The particular aspect of her work in the course of which the injury occurred was part of the system devised by Australia Post. It placed the parcels to be delivered in large cages with partly collapsible sides, from which they were collected by the contractors to be sorted and delivered. Before they were placed in the cages, the parcels were weighed. Thus, Australia Post knew of the precise risk which materialised, namely the risk that a contractor could suffer an injury through lifting a parcel unassisted.

34 Australia Post placed a limit on the weight of parcels which contractors were required to handle, namely 30kgs. A parcel weighing 30kgs or more was to be dealt with by Australia Post staff.

35 In those circumstances, and absent any other consideration, Australia Post should have been held to owe a duty of care to the contractors. However, the existence of such a duty was resisted on the basis that the agreement between Australia Post and its contractors placed on the contractor sole responsibility for occupational health and safety.

36 The contractual arrangements involving the appellant operated at two levels. First, there was a written Mail Contract Agreement ("mail contract") between Australia Post and V & E Transport. Secondly, there was an oral agreement between V & E Transport and the appellant, which involved the delivery of parcels for a specified run and required her to attend at the Kingsgrove delivery centre each weekday morning. She was paid per parcel. Beyond those facts, the trial judge made no explicit findings as to the terms of the oral agreement. However, at least implicitly, the trial judge accepted that the obligations which bound V & E Transport pursuant to the mail contract were, in effect, incorporated into the agreement between the appellant and V & E Transport, at least to the extent that, as a subcontractor she was within the defined meaning of "personnel" in the mail contract: cl 1.1.

37 Subcontracting was provided for in the mail contract by way of a negative obligation on the contractor not to subcontract without the prior written consent of Australia Post. The contractor further agreed that it would "remain responsible for the complete and timely performance of all obligations under" the mail contract: cl 13.1. The mail contract appeared to assume that any subcontract would be in writing and that particulars of the arrangement and documentation would be provided to Australia Post: cl 13.2. The contractor was required to agree that in its dealings with the subcontractor it would impose on the subcontractor "the obligations which are under this Agreement imposed upon the contractor, including but not limited to those obligations contained in" certain specified clauses: cl 13.4. Clauses which were not included in those expressed to be binding on the subcontractor included cl 17 which required the contractor, if it employed personnel, to provide training (cl 17.1(d)); cl 20, which required the contractor to provide "all materials, parts, labour, transport, tools, instruments and equipment necessary and suitable for the provision of the Services" (cl 20.1), and cl 28, imposing on the contractor the obligation to ensure that personnel complied with occupational health and safety laws.

38 Clauses which were expressly identified in the mail contract, as required to be binding on the appellant, included those relating to security checks (cl 21), protecting Australia Post's reputation (cl 22), requiring that the contractor maintain public liability insurance and worker's compensation insurance (cl 23) and obligations under the Privacy Act 1988 (Cth).

39 Two provisions require closer attention. First, cl 23.2, which was headed "Workers' Compensation and Employers' Liability Insurance", in addition to requiring that the contractor obtain and maintain relevant compensation insurance, stated in cl 23.2(b):

"In respect of any claim for personal injury or death by any of the Contractor's Personnel ... including a claim at common law, the Contractor indemnifies and must keep indemnified Australia Post in respect of any such liability provided that the Contractor's liability to indemnify Australia Post shall be reduced proportionally to the extent that the negligent act, omission or default of Australia Post or its servants or agents contributed to the relevant injury, loss or damage."

40 Clause 24 dealt with "Contractor's Liability and Indemnities" and provided in cl 24.3:

"Australia Post shall not be liable to the Contractor or third parties for any loss or damage whatsoever suffered, or that may be suffered (including consequential loss) as a result of any act or omission by Australia Post, whether negligent or otherwise, in the performance or non-performance of any duty, obligation or function under this Agreement or in any way arising out of this Agreement except for:

...

(b) loss or damage arising from personal injury or death suffered by the Contractor or any Personnel involved in the provision of the Services, caused by, and solely to the extent of, the negligence of Australia Post."

41 These provisions recognised at least the possibility that Australia Post would owe a duty of care to "personnel", including subcontractors, coming onto its premises for the purposes of providing mail delivery services, as defined in Schedule 2 to the mail contract.

42 In these circumstances, it was erroneous to conclude that Australia Post did not owe a duty of care to the appellant. The real issue involved the identification of the precautions which a reasonable person in the position of Australia Post would have taken: Civil Liability Act, s 5B(1)(c) and (2). This issue required attention to two particular matters, namely the nature of the harm and possible precautions and, secondly, the role of V & E Transport.

Breach of duty

43 So far as the risk of harm was concerned, there was no doubt that Australia Post foresaw the risk of injury if individual contractors lifted parcels weighing more than about 14kgs or 15kgs. Its recognition of the risk was amply demonstrated by the precaution it took, namely placing on such a parcel a sticker warning that it was heavy and that a two person lift was required. In the first stage of the analysis, the question is whether such a warning constituted an adequate precaution in all the circumstances. Those circumstances included the following matters of which Australia Post was aware, namely that:

(a) parcels were placed in cages from which they could not readily be removed without manual lifting;

(b) no system was available to provide for lifting of heavy parcels;

(c) some, if not most, of the subcontractors were individuals, and

(d) there was significant time pressure to sort parcels, load the vans and leave the delivery centre.

44 Given that Australia Post knew each of the matters set out above, the second level of inquiry is as to the adequacy of the only other step in fact taken by Australia Post, which was to require that the principal contractor accepted responsibility for safe handling in the sorting, loading and delivery of parcels.

45 In order to address the adequacy of the precautions, and the responsibility of V & E Transport, it is necessary to identify the nature of the additional precautions which the appellant argued should have been taken. They are conveniently summarised in a report from Neil Adams & Associates, dated 25 February 2010 and admitted as Exhibit B at trial. The report argued that safe practices would have required, first, a formal risk analysis of the various manual handling tasks that contractors could be expected to undertake: cl 4.6(i). The report continued at (ii):

"The modifications to the work systems should have focused on minimising the requirement for employees and contractors to engage in manually lifting and carrying any heavy loads, as well as on optimising both the heights at which had to be performed any lifting that was necessary, and all other postural aspects of the tasks. Such modifications could have included:

(a) the locations and heights at which heavy packages in particular were stored could have been more carefully controlled (eg by placing cages on platforms of a suitable height) to ensure that no lifting from awkward heights was necessary;

(b) in addition, trolleys with height-adjustable load platforms could have been provided, to eliminate, or at least minimise, any requirement to lift and carry the heavier packages;

(c) as an alternative to systems of work involving manual transfer, the site controller could have implemented engineering solutions, again most particularly for the heavier objects, such as providing suitable mechanical lifting devices with which packages could be lifted and transferred from one location to another;

...

(g) ensuring that no workers (employees or contractors) were permitted/required to manually lift any package that had been identified as too heavy to be lifted safely by an individual."

46 Australia Post did not require Mr Adams for cross-examination, nor did it proffer any evidence to contradict or diminish the force of his opinions. That is not to say that the opinions were necessarily to be accepted: however, they were rationally based and conformed to the kind of evidence which is well known in such cases. They should have been accepted. Nor was it suggested that Australia Post had taken any of the steps recommended by Mr Adams. Further, the evidence suggests that, had a formal risk analysis been undertaken, it would probably have confirmed that risks of the kind which materialised were significant and that steps of the kind proposed should have been taken to minimise the risks.

47 Placing the parcels in a different form of cage, or placing the cages at different heights, or separating the parcels into those which required assistance with lifting and those which did not were all steps which fell within the primary, if not sole, control of Australia Post. There was no evidence to suggest that taking any or all of those steps would have involved a commercial burden rendering them unreasonable in the circumstances: see s 5B(2)(c). Accordingly, Australia Post was in breach of its duty in failing to take such steps.

48 As explained above, the mail contract between Australia Post and V & E Transport did not require the latter to indemnify Australia Post in respect of the negligence of Australia Post. The fact that V & E Transport may also have been in breach of its obligations under the mail contract is irrelevant: it was not sued by the appellant, nor was it joined by Australia Post. Australia Post did not suggest that any separate liability on the part of V & E Transport would affect its liability to the appellant.

49 In its submissions to this Court, Australia Post did rely upon the fact that the appellant was aware of the heavy item sticker on the package, knew from previous deliveries that this particular package was likely to be heavy and had in fact asked the recipient to have the supplier divide the parcels in the future and also knew that, at least informally, she could have asked others to assist with lifting the package. These factors are all relevant to the defence of contributory negligence: they do not, however, demonstrate absence of liability on the part of Australia Post.

Challenge to factual findings

50 In addition to the questions addressed above, the appellant challenged three factual findings made by the trial judge, alleging error in:

(a) finding that those working with the appellant regularly helped each other with heavy parcels;

(b) declining to find that it was reasonable for the appellant to believe that there was no point in asking anyone for help because no one would have helped her, and

(c) finding that there was no legal impediment, and by necessary implication no practical impediment, to the appellant bringing in an assistant to help her with her sorting duties.

51 The appellant submitted, correctly, that these matters were not directly relevant to the question of duty of care and breach, but would be relevant to a question of contributory negligence, which will now arise, the appellant being otherwise successful. It was further submitted by the appellant that no question of credit arose and that Australia Post had called no evidence to rebut the appellant's evidence.

52 The three factual findings were interrelated. The underlying proposition to which they were directed was that although the appellant recognised that the parcel was heavy (both from its sticker and from prior experience with parcels to that addressee) and knew that the parcel was meant to be lifted by two people, she took no step to obtain assistance either from her daughter, who was in the car, her fellow subcontractors, Mr and Mrs Panov (who were the principals of V & E Transport) or from Australia Post. The challenged findings were in terms sufficiently broad to suggest that it was unreasonable not to seek assistance from someone.

53 There are a number of reasons not to accept the submissions with respect to these grounds. First, to the extent that the findings relied upon the appellant's evidence, several matters were raised in the course of cross-examination involving direct challenges to her credibility. Secondly, the primary facts relevant to the first finding were correctly stated, namely that "on occasions" she had asked Australia Post employees to help her; "occasionally" she had obtained help from another subcontractor; her daughter Amy said that "on occasions" they would ask for help but would not get it, but there was evidence from an independent party who said that if he saw another contractor struggling "he would give them a hand and generally so would the other contractors". This evidence was assessed in the context of the infrequency with which such occasions would arise, thus, the appellant gave the following evidence at Tcpt, 05/03/12, p 18(30)-(35):

"Q. What about one that had a sticker on, but you thought you could get it off the ground. Did you ever ask any Australia Post people for assistance?

A. Well, there wasn't a lot of stickers on the parcels. You'd get one every now and then, but no."

54 Given the infrequency of the need, and the available evidence that assistance was available on occasion, it is by no means apparent that the trial judge was wrong in finding that help was "regularly" given.

55 If, contrary to the appellant's submission, help was provided on occasion, it was open to the trial judge to "decline to find that it was reasonable for Mrs Wooby to believe that there was no point in asking anyone for help because no one would have helped her." The second finding was clearly supportable if the first finding were held to be correct.

56 The third challenged finding is a misstatement of the reasons in the judgment. The full passage was as follows (Judgment, p 3):

"Mrs Wooby agreed that the contract with V & E Transport Pty Ltd permitted her to bring in other personnel to help her provided she obtained a security clearance from Australia Post. She had in the past obtained such a clearance for a number of members of her family. Mr Burrows said that when he was there a couple of contractors worked alone and others worked in pairs.

Mrs Wooby agreed she could have retained a person to come with her to Kingsgrove depot each morning to help load the van. She said she had not done so because she was the sole income earner and could not afford to put anybody else on. She was paid per parcel. She earned $1,035.77 per week after expenses and tax.

I am satisfied that there was no legal impediment to Mrs Wooby brining in an assistant to help her with the sorting but that she chose not to do so because it would reduce her income."

57 In its terms, the findings closely reflect the evidence and the challenge should be dismissed.

Conclusions

58 It is unfortunate that, the trial judge having heard evidence from the appellant as to her injuries, and been addressed with respect to the questions of contributory negligence and damages, did not make further findings. The matter will have to go back to the District Court. Unless some agreement can be reached between the parties, it may be necessary for some of the evidence to be repeated. However the future management of the case is a matter which should be left to the trial court to determine in the event of disagreement between the parties: see, generally on conditioning a remittal, Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178; 168 LGERA 1 at [39]-[40].

59 The Court should make the following orders:

(1) Allow the appeal and set aside the judgment of the District Court delivered on 14 March 2012.

(2) Enter judgment for the plaintiff in the District Court for damages to be assessed and remit the matter to the District Court for determination of:

(a) the degree, if any, of contributory negligence;

(b) determination of the injuries suffered by the appellant and quantification of damages, and

(c) costs of the trial.

(3) Order that the respondent pay the appellant's costs of the appeal.

60 WARD JA: I agree with the reasons of Basten JA and the orders his Honour proposes.

**********

Decision last updated: 19 June 2013