|
|
Home
| Databases
| WorldLII
| Search
| Feedback
County Court of Victoria |
Last Updated: 18 March 2013
|
Revised
Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
GENERAL
DIVISION
|
|
|
|
|
|
|
|
|
---
|
JUDGE:
|
||
|
WHERE HELD:
|
||
|
DATE OF HEARING:
|
||
|
CASE MAY BE CITED AS:
|
||
|
|
||
Subject: ACCIDENT COMPENSATION – Common-Law damages –
Application to strike out paragraph of Statement of
Claim.
Catchwords: Negligence – non-delegable duty of care –
liability of employer for negligent acts or omissions of a joint
venturer or,
alternatively, for an independent contractor.
Legislation
Cited: Occupational Health and Safety Act 1985
Cases
Cited: Colonial Mutual Life Assurance Society Ltd v Producers & Citizens
Co-operative Assurance Co of Australia Ltd [1931] HCA 53; (1931) 46 CLR 41; Sweeney v
Boylan Nominees Pty Ltd [2006] HCA 19; [2006] 226 CLR 161; Smith v Amaca Pty Ltd &
Anor [2009] VSC 318; The Koursk [1924] P 140; Thompson v
Australian Capital Television Pty Ltd [1996] HCA 38; (1996) 186 CLR 574; Adsteam
Building Industries Pty Ltd v Queensland Cement and Lime Co Ltd (No 4)
[1985] 1 Qd R 127.
Ruling: Application dismissed.
---
|
APPEARANCES:
|
Counsel
|
Solicitors
|
|
For the Plaintiff
|
Slater & Gordon Ltd
|
|
|
|
|
|
|
For the Defendant
|
Minter Ellison
|
1 In this matter, the plaintiff seeks an award of common-law damages in respect
of injuries suffered by her in the course of her
employment with the defendant,
the trustees responsible for the administration of De La Salle College in
Malvern (“DLS”).
2 At all material times, the plaintiff was
employed by DLS as a teacher. She alleges that, in the course of that
employment, she
was invited to take part in a course or program entitled
“Rock and Water”. This was a program in which school teachers
and
other persons were taught how to conduct anti-bullying courses with young
schoolboys. She alleged that she suffered injuries
whilst participating in that
program.
3 On the first day of the trial, Counsel for the plaintiff sought
leave to file an Amended Statement of Claim. The Statement of Claim
had
previously alleged as follows:
“4 On or about the 9th day of April 2008 while working in the course of her employment by the Defendants at the said premises, the Plaintiff was participating in an organised anti-bullying course when suddenly and without warning she was vigorously pushed from behind by another participant as a result of which her neck and shoulders were jerked and she thereby suffered severe injury.
4 Particulars of negligence were supplied. In essence, these particularised the
negligence of the defendant as failing to properly
instruct her, failing to
provide her with adequate supervision or assistance, failing to carry out any
adequate risk assessment and
failing to warn her of the danger of her being
pushed.
5 A separate cause of action pleaded a breach by DLS of statutory
duty pursuant to the provisions of the Occupational Health and Safety Act 1985
and the Regulations made thereunder. This was withdrawn during the course of the
trial.
6 The amendments to the Statement of Claim sought to be made on the
opening day of the trial consisted of the addition of new paragraphs
4A and 4B,
together with an amendment of paragraph 5.
7 The new paragraphs were as
follows:
“4A At all material times the anti-bullying course was controlled and/or managed and/or supervised by one Freerk Ykema as the servant and agent of the Defendant; or alternatively by way of a joint enterprise between the said Freerk Ykema and the Defendant.
4B At all material times the Defendant was liable for the acts and omissions of Freerk Ykema.
(sic)
8 Although the words “its partner” in paragraph 5 were not defined,
the term was clearly understood as being a reference
to Mr
Ykema.[1]
9 Additional Particulars of
negligence (n) and (o) were included, as follows:
“(n) Failing to specifically instruct the participants not to engage in physical confrontation with other participants from the rear.
(o) Failing to instruct participants to only approach other participants from a front-on position.”
10 Senior Counsel for the plaintiff stated that the amendments set out
allegations that DLS was liable for Mr Ykema’s negligent
conduct. This
was in the context of the non-delegable duty of care owed by DLS to the
plaintiff and in the context of it being vicariously
liable for Mr Ykema’s
negligent acts or omissions.[2]
11 Senior
Counsel for DLS did not object to the amendments being
made.[3] He indicated that paragraphs 4A and 4B,
as amended, would be denied. More specifically, he stated that DLS would
contend that it
was not vicariously liable for any negligence of Mr Ykema. He
stated that Mr Ykema was an independent contractor. In due course,
a further
Defence was filed in which DLS denied each of the allegations contained in
paragraphs 4A, 4B and 5.
12 Senior Counsel for the plaintiff sought from the
Court a preliminary ruling, as to whether, on the facts pleaded, DLS was liable
for the negligent acts or omissions of Mr Ykema. I indicated at that time that
such a ruling would depend on the established facts
and that it would not be
appropriate to make such a ruling prior to the close of evidence. I indicated
that I would consider that
matter further when evidence had been
completed.
13 The trial proceeded on 25 February 2013. Evidence concluded
with the close of the defendant’s case on 28 February 2013.
On that date,
I heard submissions from the parties in relation to the issue as to whether DLS
could be liable for negligent acts
or omissions of Mr Ykema. I ruled that there
was evidence upon which the jury could find that DLS was so liable. I indicated
that
I would provide reasons for that ruling at the conclusion of the
trial.
14 Effectively, this is an application by DLS for paragraph 4B of the
plaintiff’s Amended Statement of Claim to be struck out
as disclosing no
cause of action.
15 Senior Counsel for DLS submitted that on the evidence
before the Court, DLS could not be held liable for any negligent acts or
omissions of Mr Ykema.
16 There was evidence that the program in question was
conducted by Freerk Ykema, apparently a resident of Holland.
17 Mr Ykema had
conducted anti-bullying programs in Australia over a number of years, apparently
in conjunction with or through some
relationship with the University of
Newcastle. The programs, referred to as Rock and Water programs, had been
conducted at various
locations in Victoria other than DLS. One or more teachers
from DLS had participated in such programs and had gone on to teach or
conduct
such programs with Year 8 students at DLS.
18 In 2006, DLS entered into a
contract with Mr Ykema, who, it would appear, operated under the name “The
Gadaku Institute”
(“the
contract”).[4] In each year since 2006, a
Rock and Water program had been conducted at DLS pursuant to the
contract.
19 The contract provided that:
(a) The school was one that aimed
to enhance the educational, social, emotional and spiritual development of their
students and that
in doing so, it had drawn on the expertise of Mr Ykema for
part of this work;
(b) Mr Ykema was an internationally-recognised
educationalist with particular expertise in the development of programs for boys
and
was the owner of the intellectual property in the Rock and Water program
which he had run for different bodies in Australia and other
countries;
(c) The parties (that is, DLS and Mr Ykema) wished to develop
their relationship so as to enable Australian educators to incorporate
the Rock
and Water program’s philosophy, lessons and activities into their work
with young people and to enable young people
to benefit from experiencing the
program as part of their school and youth programs;
(d) Pursuant to the
contract, DLS agreed to host the Rock and Water seminars in 2006 and 2007 (and,
by inference, also in 2008);
(e) DLS’s obligations under the contract
were:
(i) to organise a three-day seminar in the relevant years;
(ii) to
advertise and promote the seminars, which would be supported by the University
of Newcastle and the Gadaku Institute;
(iii) to organise registration of
participants in the program;
(iv) to arrange all payment details of
participants, the maximum number of which was to be forty-six;
(iv) to
organise catering, the cost of which would be shared on a 50/50 basis between it
and the Gadaku Institute;
(v) to organise equipment such as a whiteboard,
gym mats and other equipment nominated in the contract;
(vi) to prepare
certificates on which the logo of DLS could be put;
(vii) to have all
participants fill in a disclaimer that would be sent;
(f) DLS would be
entitled to two teachers participating for free in the seminar;
(g) DLS would
receive 20 per cent of the seminar fee for each paying participant above the
number of twenty;
(h) DLS would receive a 30 per cent discount on purchases
of the Rock and Water Perspective booklet up to a maximum of forty
copies;
(i) The Gadaku Institute represented by Freerk Ykema, in co-operation
with the University of Newcastle, would:
(i) present the
seminars;
(ii) present a one-day introduction staff seminar in
2007;
(iii) support DLS with advice if needed;
(iv) supply DLS with
brochures;
(v) supply DLS with all Rock and Water resources that are
needed;
(vi) supply DLS with a sample of registration forms and a
disclaimer.
20 The disclaimer referred to, which was to be signed by each
participant, contained, in part, the following:
“● I accept that participation in the activities conducted by The Rock and Water Institute, activities that I have freely chosen to participate in, may include certain risks, damages or hazards for which I am in acceptance.
● I acknowledge that such risks may give rise to the developmental learning enjoyment and excitement I am seeking, having freely chosen to participate: that as such the risk is inherent in my choice.
● I am aware that the location of such activities may result in my being considerable time and/or distance from medical aid.
● Having freely chosen to participate and/or paid for such, I hereby accept all risk associated with participation in the activities, inclusive of transport to, from and during the activities included in the program.
● In consideration of (and in addition to any other payments made) my participation in the activities of the The Rock and Water Institute, I hereby release The Rock and Water Institute, including it’s (sic) employees, associates, contractors and agents, of all liability of whatsoever nature arising from my participation in the chosen activities, and hereby agree to indemnify such against liability, actions, debts, claims and demands of any kind which may arise as a consequence of my death, injury, disablement or loss of property.
● Further, I give my consent to The Rock and Water Institute, it’s (sic) employees, associates, contractors and agents to, at my cost, arrange medical aid as required if I suffer any illness or injury as a result of my participation in such activities ... .”[5]
21 Prior to 2008, a DLS teacher, Mr Hale, had taken part in a Rock and Water
program and then conducted his own programs with year
8 students at DLS. The
plaintiff had been present at one or more of Mr Hale’s programs as a
spectator.
22 In April 2008, a leadership group at the school recommended to
the plaintiff that she take part in such a program. She did so
on 9 April 2008.
The program was to be of three days’ duration. Twenty-seven people were
registered to partake in the program.
23 On the first day of the program, the
plaintiff alleges that she was pushed heavily from behind by another participant
during one
of the exercises forming part of the program. She suffered injuries
to her neck and shoulder. It is those injuries for which she
claims
damages.
24 In its Defence, DLS conceded that:
(a) it was responsible for
and in control of the school;
(b) it was the occupier of the school’s
premises where the plaintiff’s injuries occurred;
(c) it employed the
plaintiff;
(d) in the course of her employment, the plaintiff was
participating in a Rock and Water program at the school premises;
(e) that as
a result of an incident occurring during the course of the program, the
plaintiff suffered an injury to her neck and left
shoulder and a psychological
condition.
25 The nature of the exercise in which the plaintiff was
participating at the time of her injury, and the nature and forseeability
of any
risk of injury to participants in the exercise were matters in dispute at
trial.
26 Neither Mr Ykema nor Mr Hale were called to give evidence at the
trial, without explanation. It was open to the jury to infer that
their evidence
would not have assisted DLS’s case.
27 Regardless of my personal views,
I consider that it was open to the jury, on the evidence before it, to find
that:
(a) Mr Ykema was conducting the Rock and Water program at the school
premises in April 2008 pursuant to the contract.
(b) At the relevant time,
the plaintiff and other members of the group were participating in an exercise
called “Stop it I don’t
like it” (“the
exercise”).
(c) The exercise involved the group moving around in an
informal manner mimicking schoolboy bullying.
(d) The exercise involved
verbal mimicking and also a degree of physical mimicking of bullying, in that
some body contact was involved.
(e) Mr Ykema’s instructions, insofar as
they dealt with how the participants were to mimic bullying, were imprecise and
inadequate.
(f) Schoolboys of Year 8 age at DLS were known to be involved in
the bullying of other boys from time to time and such bullying typically
included pushing or a degree of unwanted physical contact.
(g) It was
reasonably foreseeable that in the course of the exercise, participants might
push each other.
(h) It was reasonably foreseeable that, if a participant was
pushed, especially if pushed unexpectedly from behind, that person might
suffer
injury.
(i) The wording of the disclaimer indicated that Mr Ykema and DLS
were aware that participants might be injured during the course
of the program.
(j) During the exercise, the plaintiff was pushed unexpectedly from behind
and, as a consequence, suffered injuries.
(k) There was negligence on the
part of both DLS and Mr Ykema that was a cause of the plaintiff’s
injuries.
(l) Such negligence included failure to properly supervise the
exercise, failure to provide adequate instructions as to how to perform
the
exercise, and permitting participants to physically push each other from behind.
28 That DLS owed the plaintiff a non-delegable duty of care to take
reasonable care not to expose her to unnecessary risk of injury
was not
contested. DLS submitted that risk of injury to participants was not reasonably
foreseeable. It pointed to the absence
of evidence of other injuries in
previous and later programs and to the evidence of Mr Murrell and Ms Phibbs (two
other DLS teachers
who had been participants in the exercise at the time the
plaintiff was injured) who had given evidence that the program had been
conducted in an orderly manner with clear and adequate instructions.
29 The
relationship between DLS and the plaintiff as employer/employee gave rise to a
special responsibility or duty on the part of
DLS to see that care was taken of
her.[6] It was unable to discharge that duty by
delegating it to someone else – whether to an independent contractor or to
a person
with whom it was in a joint venture in presenting the program. Either
way, it could not discharge its duty by delegating it to Mr
Ykema.
30 In the
event that the jury was satisfied that negligent acts or omissions of Mr Ykema
had been a cause of injury to the plaintiff,
I consider that DLS would be liable
for that injury.
31 Further, in brief reasons given following submissions on
day 4 of the trial, I found that it was open for the plaintiff to allege
that
DLS was vicariously liable for the negligent acts or omissions of Mr Ykema in
the circumstances.
32 Vicarious liability is a term typically applied to
describe the liability of an employer for negligent acts or omissions of
employees
occurring in the course of employment or the liability of a principal
for negligent acts or omissions of an agent occurring within
the scope of his
authority. Vicarious liability involves the attribution of liability to one
party for vicarious acts of another.
Strictly speaking, it is not the liability
which is vicarious, it is the liability of an employer or principal for
vicarious acts.[7] It is to be distinguished
from the personal liability of an employer or principal.
33 On the evidence
before the Court, I do not consider that it was open for the Court to find that
Mr Ykema was an employee of the
school – nor was employment alleged.
Further, the evidence did not establish that Mr Ykema was, at any relevant time,
acting
as an agent of the school.
34 In general, there is no vicarious
liability for the tort of an independent contractor who carries out work to be
performed, not
as a representative of the principal, but as a principal
himself.[8] Nor would it be sufficient that the
contractor was acting for or representing the principal in the sense of acting
for his benefit
or advantage.[9]
35 In Smith v
Amaca Pty Ltd & Anor,[10] Forrest J, in the
context of an application to amend a pleading, referred to the decision of the
English Court of Appeal in “The
Koursk”[11] in which Scrutton LJ had
said:
“Certain classes of persons seem clearly to be ‘joint tort feasors’: The agent who commits a tort within the scope of his employment for his principal, and the principal; the servant who commits a tort in the course of his employment, and his master; two persons who agree on common action, in the course of, and to further which, one of them commits a tort. These seem clearly joint tort feasors; there is one tort committed by one of them on behalf of, or in concert with another.”[12]
36 Forrest J quoted Clerk and Lindsel on Torts:[13]
“Persons are said to be joint tortfeasors when their respective shares in the commission of the tort are done in furtherance of a common design ... but mere similarity of design on the part of independent actors, causing independent damage, is not enough; there must be a concerted action to a common end.”
37 His Honour considered that these principles still represented the law in this country. He referred to the decision of the High Court in Thompson v Australian Capital Television Pty Ltd,[14] where Brennan CJ, Dawson and Toohey JJ said:
“Principal and agent may be joint tortfeasors where the agent commits a tort on behalf of the principal, as master and servant may be where the servant commits a tort in the course of employment. Persons who breach a joint duty may also be joint tortfeasors. Otherwise to constitute joint tortfeasors two or more persons must act in concert in committing the tort.
38 Likewise, his Honour referred to the decision of McPherson J in Adsteam Building Industries Pty Ltd v Queensland Cement and Lime Co Ltd (No 4):[15]
“Much the same conclusion is true of the allegation of ‘acting in concert’ in the same paragraph of the pleading and particulars. As at present advised I cannot see that it is possible for persons to ‘act in concert’ towards an end or object, or even simply to act in concert, unless there is at least an understanding between them as to their common purpose or object. The expression in question evokes the notion of joint actors, or perhaps even joint tortfeasors, as to which it is settled that there must be ‘concerted action to a common end’ ... A mere coincidence of separate acts is insufficient. ... .
39 Fleming, in The Law of Torts, states:
“A tort is imputed to several persons as joint tortfeasors in three instances: agency, vicarious liability, and concerted action. ... The critical element of the third is that those participating in the commission of the tort must have acted in furtherance of a common design. There must be ‘concerted action to a common end’, not mere parallel activity for ‘a coincidence of separate acts which by their conjoined effect cause damage’. Broadly speaking, this means a conspiracy with all participants acting in furtherance of the wrong, though it is probably not necessary that they should realise they are committing a tort. All persons acting in pursuance of a common end, thus being identified with each other are accordingly responsible for the entire result; and so it was laid down in 1612 that ‘all come in to do an unlawful act, and of one party, the act is the act of all of the same party being present.”[16]
40 The recitals to the contract[17] refer to
the joint wishes of the parties, namely, DLS and Mr Ykema. The contract
provided that the programs/seminars in question
would effectively be conducted
jointly by Mr Ykema and DLS. Both had specific, nominated tasks to perform. In
the case of DLS,
it was effectively the marketing and advertising of the
program, registration of all participants, signing of disclaimers and provision
of premises and all equipment. Mr Ykema was required to present the seminars
and to support DLS with advice and all resources that
were needed.
41 I find
that on the evidence before the Court, it was open to the jury to find that the
Rock and Water program was a joint enterprise
between DLS and Mr Ykema and that
they were engaged in a concerted action towards a common end in staging that
program. If the jury
were to reach such a conclusion, the negligence of Mr
Ykema, in presenting the program, would properly be imputed to the school.
The
end result would be that the school would be liable in respect of any negligence
found on his part.
42 Although it may not, strictly speaking, be that the
school is vicariously liable for Mr Ykema’s negligence, I consider that,
if the jury found that negligent acts or omissions of Mr Ykema were a cause of
injury to the plaintiff, one way or the other DLS
would be liable to her in
respect of that injury. The liability of DLS could either be on the basis that
it owed a non-delegable
duty to her and did not discharge that duty by
delegating it to Mr Ykema. Alternatively, DLS’s liability arises from its
joint
enterprise with Mr Ykema and their concerted action towards a common end
in conducting the program. Either way, it would remain
for the plaintiff to
satisfy the jury that there was negligence on the part of Mr Ykema that was a
cause of injury to her.
43 Accordingly, I instructed the jury that, if it was
satisfied that negligent acts of Mr Ykema were a cause of the plaintiff’s
injuries, it should answer Question 1 – “Yes”.
44 Accordingly, I dismissed the defendant’s application.
- -
-
[1] Transcript (“T”) 300
[2] T4-5
[3] T5
[4] Exhibit A
[5] Exhibit E
[6] Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672 per Mason J at paragraphs [29] to [37]
[7] Torts - The Laws of Australia (2nd ed) Vout, paragraph 33.6.5.80
[8] Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Co of Australia Ltd [1931] HCA 53; (1931) 46 CLR 41, at [48]
[9] Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19; [2006] 226 CLR 161, at paragraph [29]
[12] (supra) at page 155
[13] (7th ed), Sweet & Maxwell page 59
[14] [1996] HCA 38; (1996) 186 CLR 574 at 580
[15] [1985] 1 Qd R 127 at 132
[16] Law of Torts (9th ed) at page 288
[17] Exhibit A
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/vic/VCC/2013/199.html