Case

Which case won?

casea
The case for the worker
  • In removing the full liner from the bin, I was complying with the system of work endorsed by the club as my employer.
  • This was not a safe system of work. It exposed me to the risk of injury associated with lifting a full and heavy bin liner out of the bin.
  • The risk of injury was increased by the fact that the grassy area sloped and was contaminated with food and drink spilled by racegoers.
  • I had previously complained about these safety risks, but the club did nothing about my complaints.
  • The club could have installed level concrete pads on which to stand bins, or provided some mechanical lifting device, or allocated other workers to help, but it did none of those things.
  • Under the duty imposed by work health and safety legislation, the club should have identified, assessed and minimised the risk of injury, but it did not.
caseb
The case for the club
  • The worker failed to carry out his work as instructed.
  • The worker supervised a number of staff, and could have required one of them to move the bins, or otherwise assist him to help him remove the liners.
  • It was open to the worker to avoid doing this work altogether, by directing staff under his supervision to do this.
  • The worker could have wheeled bins to the skip, rather than removing the liners and dragging them to the skip.
  • We instructed the worker to take the liners to the skip once they were more than half full, to avoid the risks associated with full liners, but he did not comply with this instruction.
  • Given the alternatives available to the worker, which would have prevented the injury and damage he suffered, he is the author of his own misfortune for failing to take care of his own safety. This means we are not liable and he is not entitled to compensation.

So, which case won?

Cast your judgment below to find out
Case A Case B

Case B won. You were right!

How people voted
case a64%
case b36%

Expert commentary on the court's decision

Geoff Baldwin
Geoff BaldwinConsultant Lawyer
“The Court of Appeal overturned the earlier decision and instead found in favour of the club, rejecting the arguments of the worker.”
Court of Appeal overturns decision of lower court

In the case Scone Race Club Ltd v Cottom [2019] NSWCA 260, the Court of Appeal overturned the earlier decision and instead found in favour of the club, Scone Race Club Ltd, rejecting the arguments of the worker, Gregory James Cottom.

The Court of Appeal first noted that no issue arose as to the existence of a duty of care owed by the club: that was common ground.

Second, noting the debate at trial as to whether the club did or did not have a clearly documented procedure on the emptying of bins, the court thought that this didn’t really matter.

Should the club have installed concrete pads for its wheelie bins?

The court described the “critical issue” as being whether the content of the duty of care required the club to have installed concrete pads on which to stand bins. Specifically, the appeal court found that:

  • the sloping grassy area where the accident occurred was not so steep as to present a hazard;
  • there had been no prior or subsequent report of workers slipping on the grass when removing garbage;
  • it was not industry practice at other country racecourses to install concrete pads;
  • concrete pads would introduce their own risks, including trip and slip hazards, and would be a harder surface than grass on which to fall;
  • there was infrequent heavy use of the racecourse; and
  • installation of concrete pads would have incurred some cost.

The worker had also sought, via a procedural channel called a “notice of contention”, to argue that the club was negligent in failing to supervise him to ensure that he carried out this work in conformity with the method or process approved by the club.

However, apart from the question as to whether there even was an approved process or similar, the Court of Appeal declined to consider this argument, saying this it was not directly raised in the pleadings, and could in any event have been addressed in evidence.

Did the worker take reasonable care of his own safety?

Another issue which arose indirectly derived from the NSW Civil Liability Act 2002. Following a small spate of cases in the late 20th century in which injured plaintiffs succeeded in negligence claims, even though their injuries resulted from their doing some seriously dumb things, legislation was passed with the intention that, in order to succeed, plaintiffs were required to show that they had taken reasonable care of their own safety.

Although it might be doubted that the man had in fact failed to take reasonable care, this argument was not available to the club, because he was a “worker” within the meaning of workers compensation legislation.

The workers compensation scheme is a form of no-fault insurance, and under workers compensation legislation, an employer cannot defend a common law action taken by an injured worker, by using the Civil Liability Act provision to argue that the worker failed to take reasonable care for his or her own safety.

Worker’s lucky reprieve on costs

Finally, in addition to the loss of the damages awarded in the court below, an order was made for the man to pay the club’s costs, in accordance with the maxim “costs follow the event”, meaning that the losing party in litigation generally has to pay the bulk of the winning party’s costs.

However, the Court of Appeal granted the man a certificate under the NSW Suitors’ Fund Act 1951, which enables a party in the man’s situation to apply to the Suitors’ Fund to, in effect, have the club’s costs met out of the fund, rather than out of the man’s own pocket.

The rules around this are not necessarily simple, but the man’s case had persuaded the judge at first instance, who had been overruled essentially on legal grounds, so presumably the Court of Appeal thought it would be unfair for the man to have to pay the club’s costs.

NOTICE: This article is accurate as at the time of publication and does not constitute legal advice. Please see our legal notices page for more information. Information related to coronavirus can be outdated very quickly.

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