Insurance insights: The pitfalls of lending a helping hand

Lending a helping hand is an ideal ingrained into the Australian psyche. Doing that little bit extra is something we often do without thinking twice about it. However, in light of the recent decision of the New South Wales Court of Appeal in South Sydney Junior Rugby League Club Ltd v Gazis1 workers may now think twice before doing so.

Following a robbery at its premises, the South Sydney Junior Rugby League Club (the “Club”) contracted with Sermacs Australia Pty Ltd (“Sermacs”) to provide security on its site. Sermacs subcontracted MPS Security Pty Ltd (“MPS”) and obtained the services of Mr Ross Gazis (the “plaintiff”) to work as a security guard licensed to carry a gun. His role was to be stationed on the first floor of the Club whilst money from poker machine takings was transported to the counting room.  On 19 May 2006, the plaintiff sought to move one of the trolleys used to transport money from the poker machines to the counting room when he lost his grip on the trolley, fell backwards and injured his back.

In May 2009 the plaintiff commenced proceedings in the District Court of New South Wales against Sermacs and the Club seeking damages in negligence, and later against MPS, his employer. Proceedings were later transferred to the Supreme Court of New South Wales.

At first instance Justice Rothman found for the plaintiff against the Club and MPS, apportioning 75% of liability to the Club and 25% to MPS. Sermacs was found not liable to contribute. Both the Club and MPS appealed the trial judge’s findings. The NSW Court of Appeal overturned the trial judge’s decision and found no liability on the part of the Club or the employer, MPS. The key issues were the scope of the duty owed to the plaintiff and whether the duty was breached.2 That issue required an analysis of four elements:

  1. The contractual relationship between the parties;
  2. The nature of the work required of the plaintiff;
  3. The manner in which the plaintiff was injured; and
  4. The knowledge of the parties as to the work that the plaintiff carried out.3

The contractual relationship between the parties

The Club entered into a contract with Sermacs, where “Sermacs contracted to provide security services to the Club. Part of that contract was the provision of an armed guard for certain hours on the first floor of the Club premises”.4 In the circumstances, there could be no doubt that both the Club and Sermacs owed the plaintiff a duty of care. The plaintiff was at all relevant times an employee of MPS. There was a labour hire arrangement between MPS and Sermacs, an arrangement that ultimately permitted Sermacs to fulfil its obligations under the contract it had with the Club.5

Nature of the plaintiff’s work

The director of MPS provided a statement setting out that the plaintiff’s work duties as including “static security work and escorts, no body guarding… Ross was definitely not required to man handle trolleys at the South Sydney Juniors Club at Kingsford or any other place. This is definitely not included in his job description”.6 Mr Muir, who was responsible for the gaming room and the collection and counting of money said that “The guard was not required to and did not, as far as I am aware, handle the money tins or push or pull the trolleys around the floor emptying the tins. This would have been contrary to the role of acting as the security guard”.7

Basten JA was satisfied on the evidence that the plaintiff had not been told to assist with moving the trolleys, but took it upon himself to give such assistance as he thought appropriate from time to time, “If the plaintiff set out to prove that his action in moving the trolley was part of his contractual duties as an armed guard, he failed to do so”.8  One of the key considerations for the Court was whether the plaintiff could prove that the Club knew, or ought to have known, of his regular activities. It seems clear from the judgment that if the Club had possessed the required knowledge, the outcome of the case would have been very different.

How the injury occurred

The system of work at the Club provided that once the laden trolleys were brought up to the first floor, the Club’s staff manoeuvred them into the counting room where the tins containing money were emptied. During the process, an empty trolley was taken out of the counting room and placed in the corridor before being returned to the counting room at the end of the process. The plaintiff would occasionally move the empty trolley in the corridor to a position close to the counting room door.9

The trial judge made the following statement: The risk associated with the moving of the trolley without first ensuring that the wheels were not locked into position is not a matter of which Mr Gazis would have been aware or ought to have been aware, in those circumstances”.10

Knowledge of the plaintiff’s activities

Whilst it could be inferred from the evidence that some of the Club’s employees were aware of the plaintiff’s actions, there was no evidence that any of these employees had supervisory or managerial functions within the Club.11 If it was established that those in more senior positions at the Club had actual knowledge of the plaintiff’s actions, the outcome of this case would have differed.

Liability of the Club

The plaintiff was, at all relevant times, employed by MPS and not by the Club. However, as the occupier of the premises, the Club was found to owe the plaintiff a duty of care.12 Neither MPS nor the Club instructed the plaintiff on how to operate the trolley, as it was never intended or expected that he would be required to move the trolley in his role as a security guard. The Court of Appeal referred to the decision of the High Court in Thompson v Woolworths (Qld) Pty Ltd (2005)13 where it was found that the occupier, Woolworths, owed a duty of care to delivery drivers in circumstances where it knew that delivery drivers would frequently move large industrial waste bins that were often in the way of their delivery trucks. It was held that not only was Woolworths aware that the drivers were moving the bins, it also knew that not all drivers were capable of moving the bins without risk of injury.14

In contrast, in the present case there was no finding of actual knowledge on the part of anyone in a supervisory role at the Club that the plaintiff was moving the trolleys. Further, there was no suggestion “of any practical necessity for the plaintiff to move trolleys. It appears to have been a course adopted by him voluntarily, because he wished to be of assistance. He agreed that no-one had ever asked him to do it”.15

In light of the evidence of Club management that the guards, particularly the armed guards, should not be moving trolleys, the plaintiff argued that the Club was still negligence for failing to instruct him not to move trolleys, rather than in failing to instruct him how to do so safely. However, the Court of Appeal found that “In the absence of knowledge that he was in the habit of moving trolleys, there should have been a finding that the duty of care owed by the plaintiff by the Club did not extend to giving such a direction. Accordingly, the finding of negligence on the part of the Club should be set aside on that basis also”.16

The employer’s liability

The Court of Appeal noted that it is an employer’s duty to take reasonable steps to ensure that its employees are not exposed to unnecessary risks of injury.17 However, it found that the evidence suggested that an inspection of the Club by the employer would not have identified the risk that materialised given that it was considered outside the scope of his duties. On that basis, it was held that the employer was not liable.18

This article was originally published in Australian Civil Liability Bulletin 13(1), LexisNexis Australia. Meridian Lawyers Principal Robert Crittenden is on the Editorial Panel of the Civil Liability Bulletin.

Footnotes:

1 [2016] NSWCA 8 (9 February 2016)

2 At [12]

3 Ibid

4 Ross Gazis v Gual Pty Ltd [2014] NSWSC 1617 at [2]

5 South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8 (9 February 2016) at [20]

6 Statement, 23 June 2006, at par 14

7 Statement, 22 June 2206, par 12

8 South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8 (9 February 2016) at [44]

9 At [45]

10 Ross Gazis v Gual Pty Ltd [2014] NSWSC 1617 at [114]

11 South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8 (9 February 2016) at [72]

12 At [73]

13 221 CLR 234; [2005] HCA 1

14 At [54]

15 South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8 (9 February 2016) at [82]

16 At [114]

17 Czatyrko v Edith Cowan University [2005] HCA 14; 79 ALJR 839 at [12]

18 South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8 (9 February 2016) at [123]

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