The plaintiff, Tricia Pahi, sustained a repetitive strain injury to her left wrist whilst engaged in the work of repackaging ice cream products for Unilever Australia Limited t/as Streets Ice Cream (Streets). The plaintiff was employed as a process worker by ESP Techforce Pty Limited (ESP), a labour hire company.

Streets stored its ice cream and ice cream confectionary products at a cold storage facility operated by Swire Cold Storage Pty Limited (Swire). Swire's cold storage facility was adjacent to Streets' manufacturing premises where it warehoused and dispatched Streets' ice cream products.Swire entered into an arrangement with Streets to repackage some of Streets' products into smaller boxes so that they would be suitable for sale in supermarkets. Swire engaged ESP to provide process staff, including the plaintiff, to undertake this task. ESP invoiced its labour charges to Swire. In turn Swire separately invoiced Streets for the amount invoiced to ESP plus 15%.

The plaintiff commenced proceedings against Swire and Streets on the basis that her carpal tunnel injury was caused by their failure to take due care in overseeing and directing her work for ESP. She did not commence proceedings against her former employer, ESP, as she did not satisfy the necessary 15% whole person impairment threshold to bring a claim against her employer as required by s 151H of the Workers Compensation Act 1987.

The trial judge, Curtis DCJ, found that both Streets and Swire owed the plaintiff a duty which required them to "take such measures as were within [their] power to obviate the dangers posed to the ESP workers in an activity which had been commissioned" by them.

Streets and Swire both appealed against the trial judge's findings in respect of liability. The Court of Appeal held that the contents of the duties found to be owed by Streets and Swire were outside of that which is imposed by the law of negligence. In this regard the Court of Appeal held that the duty owed is one to take reasonable care and not one which requires a person to use measures within their power to obviate dangers in question.

The duty of care imposed by the common law is one to take reasonable care and nothing more. As Fitzgerald JA held in Rasic v Cruz¹¹:

"An infinite variety of circumstances produce a foreseeable risk of injury which could often be eliminated or reduced. The current tendency to consider only individual circumstances which produce injury and the means by which those circumstances could have been changed and the injury avoided is redefining the foundation of the law of negligence by impermissibly expanding the content of the duty of care from a duty to take reasonable care to a duty to avoid any risk by all reasonably affordable means."

11. [2000] NSWCA 66

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