Case name & citation: Anastasios Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672
- Judgment date: 16 October 1984
- Court: High Court of Australia
- The bench of judges: Mason, Murphy, Brennan, Deane and Dawson JJ.
- Area of law: Negligence, Duty of care, Safe system of work, non-delegable duty
Facts of the case (Kondis v State Transport Authority)
The case is a personal injury claim made by a worker (the appellant) who got injured while working at the Jolimont Railway Yards. He was hurt on March 14, 1975, when a metal rod fell on him while he was bending down to pick something up under a crane. The crane was hired by the employer (the respondent) from a third party and was operated by Clissold, an employee of the third party.
The crane’s operator (Clissold) was extending the crane’s jib and needed to secure it with a pin. The appellant said he was asked by his team to help catch or pick up the pin that kept falling as a boilermaker (another worker) was trying to insert it.
Clissold claimed he was doing everything by himself and didn’t need help. So, there were different accounts of what happened.
Initial Hearing and Appeal
The trial judge believed the appellant’s version and found Clissold was negligent for not warning or keeping a proper lookout before performing the extension procedure. The judge held that the respondent was responsible for Clissold’s actions and awarded the appellant $228,848 in damages.
The employer appealed the decision. The majority of the Full Court of the Supreme Court of Victoria agreed that Clissold was not technically an employee of the respondent. They felt his actions were more like a casual act of negligence of an independent contractor. Thus, they allowed the appeal and ordered a new trial.
The case was then heard at the High Court of Australia.
High Court’s Judgment in Kondis v State Transport Authority
The Court agreed that Clissold was not a servant of the respondent at the time of the appellant’s injury, meaning the respondent was not vicariously liable. Clissold had full control over the crane operation and made the decision to extend the jib independently. But he was allegedly negligent in performing his work. The key question was whether the respondent could be held liable for the negligence of Clissold, despite Clissold being an independent contractor’s employee.
Reference was made to Wilsons and Clyde Coal v English [1938] where it was established that the duty of care owed by an employer to an employee is non-delegable. The employer is responsible for ensuring that care is taken, regardless of whether the task is delegated to an employee or contractor.
The employer was found liable for not ensuring a safe system of work, even though the direct negligence might have been on the part of an independent contractor. The duty was considered non-delegable because the employer retained overall responsibility for the safety of the workplace.
Hence, the appeal was allowed.
Quote from the case
The quotes below might give a fairer idea about the case:
“In the result the respondent’s duty to provide a safe system of work was non-delegable and the respondent was liable for any negligence on the part of its independent contractor in failing to adopt a safe system of work. The risk of injury from a falling rod or pin to an employee positioned under the crane during the extension procedure was slight, but nevertheless obvious. Avoidance of the risk called for the adoption of a procedure, even an instruction forbidding any employee assisting Clissold from taking up a position under the jib of the crane during the extension operation. If control of this operation was in the hands of Clissold, then it was for him to adopt a safe system of work. The respondent is liable for his neglect, not on a vicarious basis, but because Clissold’s omission to adopt a safe system is a breach of the respondent’s duty. Although Clissold was guilty of casual negligence, as it is often called, in failing to keep an adequate look-out and to give warning, his omissions in these respects do not inhibit the conclusion that there was a breach of the respondent’s duty to provide a safe system of work.”
(Mason J.)
“There was a risk of injury to him in standing there. The appellant, who was not accustomed to the procedure of extending the jib of the crane, could and should have been told to keep away from the area where objects might be dropped from above and to keep watch for the dropping of the rod. He was given no such warnings. He could have been given those warnings by Clissold. He could have been given them by his foreman if the foreman had found out what procedure was to be followed in extending the jib and what risk there was in standing beneath it. It is immaterial to identify who ought to have given him those warnings. The failure to give the warnings meant that the duty of care resting on the employer personally was not discharged.”
(Brennan J.)
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