Stevens v Brodribb Sawmilling, Koehler v Cerebos Ltd - Case Study Example

1. Stevens v Brodribb Sawmilling (1986) 160 CLR 16 In Stevens v Brodribb Sawmilling (1986) 160 CLR 16, Brodribb employed sniggers to fell trees and truck drivers to carry the trees to the sawmill. They used their own trucks, set their own hours of work and were paid in accordance with the volume of timber that they delivered to sawmill. Stevens, a truck driver, was injured due to negligence of a snigger and claimed that the snigger was an employee of Brodribb and hence Brodribb was vicariously liable for the snigger’s negligence. He also claimed that he was an employee of Brodribb and hence Brodribb was personally liable to him for breach of duty of care owed by an employer to an employee. Five justices of the High Court of Australia, applied Humberstone v NTM [(1949) 79 CLR 389] and AMP v Chaplin, and decided that neither the truck driver nor the snigger were Brodribb’s employees. The idea in essence therefore was that Stevens and the snigger were not employees but were independent contractors which essentially rid them Brodribb of the responsibility of having to pay them for personal damages during work or even from being liable for their actions. Both Humberstone v NTM and AMP v Chaplin are close cases, but for the [purpose of the discussion one would refer to the former. Humberstone v. Northern Timber Mills was a decision given in 1949 by three justices of the High Court of Australia. The case was that of Humberstone, who carried goods for NTM. As a contractor, he owned the truck, and paid for petrol and repair expenses and was paid weekly on a weight-mileage basis. On the way back from a job, he had a puncture. He went home to change the wheel, but exerted himself so strenuously in trying to remove the tyre from the wheel that he became ill and later lapsed into a coma, from which he did not recover. Section 3 of the Worker's Compensation Act 1928 (Vic) had been amended about a year before Humberstone’s death so as to include independent contractors in its definition of a "worker" covered by the Act. However, the High Court held that the amendment applied only to contracts entered into after it came into operation. Further, the Court decided that Humberstone was not an employee of NTM. Hence, he was not a "worker" under the Act, and his widow was not entitled to compensation under the Act. One could find some marked similarities in this case with the Brodribb v Stevens judgment. First, the court found that a contractor is not an employee of an organization and would therefore not be entitled to the compensation claims that would be the right of the employee. The test of deciding whether or not one is an employee was found in cases, the use of self owned equipment, and self decision of working hours, the contractor being paid a stipend or a fee in terms of work delivered or mileage clocked. Also, the employer in both cases was not responsible for dictating method by which work was to be done. The worker was not obliged to work only for the employer; the money that the employer paid to the worker was not stated to be a “fee”. [Transcrip Link: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/1986/1.html?stem=0&synonyms=0&query=title(Stevens%20%20and%20%20Brodribb%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20)] Hatzimanolis v ANI Corp Ltd (1992) 173 CLR 473 In the case Hatzimanolis v ANI Corp Ltd, an employee sustained injuries at the time of visiting a beautiful spot in the Pilbara region of Western Australia in the company of his supervisor and in vehicles provided by the employer. In the judgment it was found that the idea behind the statement ‘arising out of or in the course of the employment’ would be understood as being inclusive of gaps or interludes which take place in the route of service, where the employer had encouraged or stimulated the one being injured to spend that interval or interlude at a given position or place in any given particular manner. It was also found that those employees that sustain injuries when they would be returning to their place of residence post after meals or injured whilst participating in employer organized social events in between work have been held to be in the course of employment. When one applies this principle to a scenario of workers participating in work on oil rigs or platforms one would find is possible to declare that workers in these circumstances will be in the course of their service for the entire period in which they are living on the rig or platform notwithstanding that they may not actively be working. Based on Hatzimanolis v ANI Corp Ltd workers would be in the course of their employment during periods of leisure, ablutions and in fact whilst asleep. After conducting an extensive survey of the authorities Mason CJ, Deane, Dawson and McHugh JJ noted that since Commonwealth v Oliver24 and in the cases which followed, an interval or interlude in an overall period or episode of work will ordinarily be seen as part of the course of the employment. Toohey J at 491 commented: But when regard is had to the terms of the appellant’s employment, what was said at the time of the engagement, the location where he was working, the hours and days worked, the use made of the respondent’s vehicles for the convenience of its employees and the role of the respondent’s supervisor in organizing the trip to Wittenoom Gorge for the appellant and his fellow employees, the conclusion is inevitable that the appellant was, at the time of the accident, doing something which was ‘reasonably … authorised to do in order to carry out his duties’, that is, an activity which the respondent saw as making the working conditions more attractive than they otherwise would be. Koehler v Cerebos (Australia) Ltd (2005) 79 ALJR 845 In Koehler v Cerebos (Australia) Ltd (2005) 79 ALJR 845, the court arrived at the decision that employee did not have an entitlement to damages that arose from them injury that occurred due to stress and corresponding psychological injury, even if this was the result of an increased pressure from work, given the fact that the injury could not be not foreseeable. Koehler had accepted a part-time position with Cerebos as a merchandising representative after a restructure had made her full-time sales position redundant. In the capacity of her new position, she was expected to work for three days every week, so that she would be responsible for setting up supermarket displays in a big geographic area. She later made complaints that her area of coverage was huge and could not be covered in three days. She asked Cerebos for a reduction in the number of stores she needed to visit or for an increase in the number of hours that she could work for. He complaints continued with no reply from or effect on her employer, because of which she started to fall sick. The problem however was that in her written entreaties, she did not indicate that her health was suffering as a result of work. Koehler was subsequently diagnosed as having the psycho-physical disorder fibromyalgia and a depressive illness. The High Court upheld the ruling by the Full Bench of the Western Australian Supreme Court that Cerebos could not have reasonably foreseen that Koehler’s duties would result in a psychiatric injury. It held that Koehler’s “agreement to undertake the work runs contrary to the contention that the employer ought reasonably to have appreciated that the performance of those tasks posed a risk to (her) psychiatric health.” In effect, the court said it was not prepared to take the step of saying “that all employers must now recognise that all employees are at a risk of psychiatric injury from stress at work.” A case similar, if not in judgment but in spirit could be the State of NSW v Coffey wherein, there was a direct violation by the employer of a duty of care when he failed to provide a safe system of work, and the employee was awarded damages for his psychological injury because the employer The employee - the caretaker of Housing Commission flats - witnessed several murders and suicides and was subjected to abuse and threats from tenants. His requests for security screens were denied and, when he left his job, he was suffering post traumatic stress disorder and chronic dysthysmia. Here the idea therefore was that it was the duty of the employee to come up with a safe working environment, given the fact that the caretaker was threatened and was a witness to crime, would automatically mean that there was a foreseeable cause for worry, which was not the case in Koehler. [Transcrip Link: http://www.austlii.edu.au/cgi-bin/sinodisp/au/other/HCATrans/2004/411.html?stem=0&synonyms=0&query=Koehler%20v%20Cerebos] O'Callaghan v Loder (1984) EOC 92-023 In O'Callaghan v Loder (1984) EOC 92-023 the then NSW Opportunity Tribunal hel,d that discrimination on the ground of sex if a person is subjected to unsolicited or unwelcome sexual conduct by a person who stand in position of power in relation to her or him creating a hostile work environment. The case was the first Australian adjudicative recognition of sexual harassment in an anti-discrimination context. These critiques can be reduced to four specific elements of the definition: 'unwelcome conduct of a sexual nature'; 'in relation to'; 'reasonable person'; and 'offended, humiliated, or intimidated’. The complaint’s principle claim was that the sexual harassment amounted to discrimination on the ground of sex in terms or conditions of employment in contravention of s25(2)(a) of the Act. The chairperson of the NSW Tribunal stated that this provision is contravened when an employer indulges in sexual conduct in such as way as to create an unwelcome feature of the employment. In such circumstances, either the unwelcome sexual conduct itself or the hostile or demeaning atmosphere created by it could become such a feature of the employment that it could end up constituting a term or condition of it (Rees, Lindsay and Rice, 2008). The case however, also proved that there is a small but important difference in the various statutory definitions of harassment. It usually becomes necessary that the offending conduct be unwelcome or unsolicited and causing offence. Although the judgment was landmark, the tribunal decision was that Ms O’Callaghan was unable to prove that the Loder was aware that his advances were unwelcome which meant that she lost her claim. In this case, the claim of the plaintiffs was that they had been harassed sexually in the period when they were working in the capacity of receptionists, along with the time that they were interviewed for the jobs. The court upheld the claim of the plaintiffs in the capacity that In upholding their claims, the court held the following, among other things: 1) sexual harassment under the Australian Sex Discrimination Act 1984 can occur in pre-employment interviews; 2) section 28(3) of the Act does not exhaustively define sexual harassment, and a single action may constitute sexual harassment; 3) sexual harassment can extend to acts that constitute criminal offenses or civil wrongs and is compensable, whether criminal punishment is inflicted or not; 4) the test for sexual harassment is objective; it is sufficient that a person have reasonable grounds for believing that rejection of the harassment would disadvantage the person, whether the conduct is rejected or not; and 5) damages are to be assessed having regard to the actual reaction of the applicant to sexual harassment. [Link: http://www.hreoc.gov.au/sex_discrimination/workplace/code_practice/data/1_what.html] Kondis v State Transport Authority (1984) 154 CLR 67 The judgment in Kondis v State Transport Authority (1984) 154 CLR 67 was the rationalization of positive rationalization. The Court was confronted with a question concerning the non-delegable duty of an employer toward an employee, in circumstances where an independent contractor had been negligent, Mason J’s analysis was aimed at providing reasons which might support the established proposition that the employer is under a non-delegtable duty to provide a safe system of work to employees. The position in essence turned on the employer’s position of control and the employee’s special position of vulnerability caused by dependence. One could understand this particular case as being one in a long line of cases wherein the underlying proposition has been that a duty to take responsible care to avoid foreseeable risk of injury to another will not be discharged merely by the employment of a qualified and ostensibly competent independent contractor. in these cases, the nature of the relationship of proximity gives rise to a duty of care of a special and more stringent kind namely a duty to ensure that reasonable care is taken. The case therefore in essence, tries to convey the fact that the requirement of reasonable care in could be found to be extended to ensuring that the care is actually taken in operations. If such a duty was cast upon the defendant he could get rid of responsibility by delegating the performance of these responsibilities. These were Dorset Yacht Co. Ltd. v Home Office (1970) AC 1004 and Anns v Merton London Borough Council (1978) AC 728, where the judgments were given by Lord Reid and Lord Wilberforce respectively. Whether or not there was reasonable foreseeability of harm to the plaintiff The relationship of neighborhood or proximity between the parties and; An assessment of whether the situation is one which in all the circumstances of the court considers fair and legal for the imposition of legal duty. There can also be an application of the principle of Assumption of responsibility to the question of whether or not a duty of care in negligence is owed by one part to another. Although the relationship between the two has yet to be fully explored by the courts, in this case it would be best to view the assumption of the responsibility approach as a parallel test or as representing a refinement of the general three stage analysis, stated by Sir Ben Neil LJ in Bank of Credit and Commerce International (Overseas) Ltd v Price Waterhouse (no.2) [1998] PNLR 564. A case similar to the proposition was the judgment in Cook v Cook [(1988) 162 CLR at p362)]. The judgment gave a detailed definition of the objective standard of care [under the ordinary law of negligence) for the purpose of a particular category of case must necessarily depend upon the identification of the relationship of proximity which is the touchstone and control of the relevant category”. The judgment drew from the decision in Hughes v Percival [1883) 8 App. Cas. 443, at p446), where Lord Blackburn stated that the duty of care where employers are concerned duty of care would go so far as to require that employer see that reasonable skill usage for deployed saving employees from harm. [Link: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/1984/61.html?stem=0&synonyms=0&query=title(%20Kondis%20%20and%20%20State%20Transport%20Authority%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20)] References: Martin, 1990, Personal Injury Damages: Law and Practice, New York, NY: Wiley Honore T, 1995, ‘The Morality of Tort Law, Questions and Answers’ in ‘Philosophical Foundations of Tort Law, ed. Owen D, pub. Oxford Clarendon Press, p79. Cranor F C, Toxic torts: science, law, and the possibility of justice, Published by Cambridge University Press, p3-6 Rees, N., Lindsay, K., and Rice, S., (2008). Australian Anti-Discrimination Law: Text, Cases and Materials. Federation Press. p511 Guthrie R., and Goldacre, L., (2009). Workers Compensation Issues in the Oil and Gas Industry. Retrieved August 25, 2010, http://www.austlii.edu.au/au/journals/LegIssBus/2006/2.pdf Speaight and Stone, 2004, Architect's legal handbook: the law for architects, Edition: 8, illustrated., Published by Architectural Press, p22-28 Read More