Hossain v Unity Grammar College Ltd and Ors [2019] NSWSC 1313 (1 October 2019)

Background

The worker sustained injuries in a gas explosion at Unity Grammar College (the College), where he was employed as a caretaker and night watchman. The explosion was caused by the defective installation of a gas system several years earlier.

A ‘second stage regulator’ had been placed in a location that was unsafe, and contrary to the instructions of the manufacturer. It was also contrary to the provisions of the relevant Australian Standard and the provisions of the (DGR) Dangerous Goods (Gas Installations) Regulation 1998 (NSW) (which has since been repealed) .

The circumstances that gave rise to the risk of injury were essentially that the ‘breather vent’ was located internally, causing a build-up of gas to form above the ceiling.

The experts (of which there were four) were unanimous in their opinion that if the regulator had been affixed externally, this would have prevented the build-up of gas and the explosion would have been entirely avoided.

An important finding of fact made by Mr Justice Campbell was that there was no compliance plate attached to the gas installation, as required by various provisions of the DGR.

At the time of judgment, the active defendants in the proceedings were as follows:

1. The College, as the worker’s employer.
2. Insurance Australia Limited, who insured the deregistered Binah Projects Pty Ltd. Binah were the principal contractors responsible for the construction of the College.
3. Five State Universal Plumbing Pty Ltd, the plumbing and gasfitting contractor which performed secondary gasfitting work (not the original defective work).
4. Elgas Ltd, who supplied and installed the LPG gas tank.
5. Bernie Cohen and Associates Pty Ltd, who the College engaged as the private building certifier for the construction work. Cohen was originally sued by the worker as a defendant. That claim was discontinued but Cohen remained a party to the proceedings by way of a cross claim filed by the College.

The company responsible for the defective installation, Enma Plumbing Pty Ltd (Enma) was not joined to the proceedings. Enma was not insured and had been deregistered.

Decision

Justice Campbell noted the non-delegable nature of the duty of care owed by the College to the worker. In defining the scope of the employer’s duty of care, Judge Campbell referred to the comments of Mason P in TNT v Christie [2003] NSWCA 47. Mason P found that an employer’s duty of care will be imposed regardless of personal fault on the employer’s part, if the worker can prove that the damage was caused by a lack of reasonable care on the part of someone (not necessarily the employer) within the scope of the relevant duty of care.

His Honour also referred to Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520, where the High Court established a further category of a non-delegable duty of care. Justice Campbell quoted from the unanimous High Court decision as follows:

It has long been recognized that there are certain categories of case in which a duty to take reasonable care to avoid a foreseeable risk of injury to another will not be discharged merely by the employment of a qualified and ostensibly competent independent contractor. In those categories of care, 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”. Put differently, the requirement of reasonable care in those categories of cases extends “to seeing that care is taken”.

Justice Campbell was of the view that the negligence of Enma provided a sufficient basis for a finding of negligence on the part of the College. This is because the damage was caused by the lack of reasonable care, on the part of someone (Enma) within the scope of the employer’s duty of care.

The College submitted that it was not a qualified gasfitter, and the knowledge of such an expert should not be imputed to it. Justice Campbell stated:

But I think this is no answer to an employer’s obligation. The employer’s obligation is to maintain the safety of the premises not just to provide premises which are at the outset apparently safe. 

It was found that the defect, which made the workplace unsafe, would have been discovered upon reasonable inspection. The absence of the compliance plate, and the position of the second stage regulator, would have been obvious on inspection by anyone who had familiarity with gas installation.

Justice Campbell also found the remaining defendants (and cross defendant) liable. His Honour apportioned liability equally between each defendant (and Cohen as cross-defendant). The worker was awarded over $3,000,000 in damages.

Implications

This case emphasises the scope of the employer’s non-delegable duty of care. The special relationship between an employer and employee requires a more rigorous standard of care to be applied. This standard of care extends to a duty “to seeing that care is taken”, and cannot simply be discharged (or delegated) by engaging an independent contractor.