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Date: Thu, 15 Feb 2007 10:18:36 +1100

From: Neil Foster

Subject: Resurfice Corp. v. Hanke, 2007 SCC 7


Dear Robert, Michael, et al;

I can't forbear from responding to Robert's provocative comments about employer's duties. (I will ignore his provocative suggestion that "negligence" doesn't exist!) As you of course will know, Robert, whatever the doctrinal attractions of saying that an employer's duty to take reasonable care as to safety arises solely from the contract of employment, the courts have often held that it is a concurrent duty arising both in contract and tort. Indeed, the more usual debate in recent years has been as to whether, given that there is a tort duty, there is also a contractual duty. As Mahoney JA said in Wright v TNT Management Pty Ltd (1989) 15 NSWLR 679 at 684B-C:

At common law, an employer is under a duty to take reasonable care for the safety of his employees in all of the circumstances of the case so as not to expose them to an unnecessary risk: Halsbury's Laws of England, 4th ed, vol 16, par 560 at 358. It is arguable that that duty arises under the law of tort, by virtue of a term implied by the law in the contract of employment, or both: see Matthews v Kuwait Bechtel Corporation [1959] 2 QB 57, referred to by Kitto J in ACI Metal Stamping and Spinning Pty Ltd v Boczulik (1964) 110 CLR 372 at 378.

McHugh JA (as he then was) at 688 noted that:

In Davie v New Merton Board Mills Ltd [1959] AC 604, Viscount Simonds said (at 619) that the same act or omission by an employer may support an action in tort or for breach of an implied term of the contract of employment.

In practice the question of the source of the duty has rarely mattered, but occasionally it has. In Australia following the decision of the High Court in Astley v Austrust Ltd (1999) 197 CLR 1, that the standard State legislation relating to contributory negligence did not apply to an action for breach of contract, it became for a short while worthwhile for employees to frame common law actions in contract rather than tort. (Two such cases snuck through in Queensland: Jones v Persal & Co [1999] QDC 189, Wylie v ANI Corporation Ltd [2000] QCA 314.) But fairly quickly all the State Parliaments amended their acts to specifically include breach of a contractual duty "that is concurrent and co-extensive with a duty of care in tort"- for NSW see the current definition of "wrong" in s 8, para (b), in the Law Reform (Miscellaneous Provisions) Act 1965, as amended in 2000.

One can readily imagine other circumstances where the delayed onset of disease, or rules as to remoteness, might give the plaintiff an incentive to choose one or the other ground for an action. But if a more doctrinal basis is sought for the availability of the two alternatives, this may reflect the fact that over the years the status of being an employee has had other grounds than mere contract. See, eg, J Howe & R Mitchell "The Evolution of the Contract of Employment in Australia: A Discussion" (1992) 12 Australian Journal of Labour Law 113, and an article by S Deakin "The Evolution of the Contract of Employment 1900-1950" in a 1998 book Governance, Industry and Labour Markets in Britain and France.


Neil Foster


Michael said:

Incidentally, I presume that you would move all the employers' liability cases into the contract textbooks (we could even move the occupiers' liability cases on the basis that they are "equivalent to contract"). There is much to be said for this - it would certainly cut down my work when I have to produce a new edition of Textbook on Torts.


Robert said:

Not necessarily. If my employer runs over my foot in his car, his status as employer with regard to me is neither here nor there. Where, however, the primary right I am saying has been infringed is born of the contract, it is a claim for breach of contract (or breach of statutory duty if the duty is imposed by the legislature and is not implied as a matter of fact into my contract). My employer is under positive duties to take steps to protect me from harm which you, and other third parties, are not under. My rights against my employer are observably different from, with a different source, my rights as against the rest of the world.

The reason we put claims against employers into torts books is, I suspect, because it is thought (wrongly) that because the claim is dependent upon fault it must be based upon a tort. That just does not follow. It is also part of the unhelpful lumping together of all claims where negligence must be shown into a general 'tort' of negligence.



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