Radmilla Nikolic v Commonwealth Accommodation and Catering Services Limited; Commonwealth of Australia and Watts Construction Division Pty Limited [1992] ACTSC 26; (1992) 106 FLR 413 (25 March 1992)

SUPREME COURT OF THE ACT

RADMILLA NIKOLIC v. COMMONWEALTH ACCOMMODATION and CATERING SERVICES LIMITED;
COMMONWEALTH OF AUSTRALIA and WATTS CONSTRUCTION DIVISION PTY. LIMITED
S.C. No. 122 of 1983
Negligence - Contribution
[1992] ACTSC 26; (1992) 106 FLR 413

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Negligence - dangerous premises - invitees - liability of occupier.

Negligence - liability for others' negligence - independent building and cleaning contractors.

Negligence - apportionment of responsibility and damages - contribution between joint tort-feasors.

Contribution - between tort-feasors - different nature of standard of care owed to plaintiff by various tort-feasors - cleaning contractor (employer) building contractor and occupier.

Torette House Proprietary Limited v. Berkman [1940] HCA 1; (1939-1940) 62 CLR 637

Kondis v. State Transport Authority [1984] HCA 61; (1984) 154 CLR 672

Stevens v. Brodribb Sawmilling Company Proprietary Limited [1986] HCA 1; (1985-1986) 160 CLR 16

HEARING

CANBERRA
25:3:1992

Counsel for the Defendant: M. Inglis

Solicitors for the Defendant: Hunt and Hunt

Counsel for the Third Party: G. Stretton

Solicitors for the Third Party: Australian Government Solicitor

Counsel for the Fourth Party: S. Wilcox

Solicitors for the Fourth Party: Maddock Lonie and Chisholm

ORDER

1. In the proceedings by the defendant (the cleaning contractor) against the third party (the Commonwealth), there be judgment for the defendant for $62,410.49 and three-fifths of the plaintiff's costs.

2. In the proceedings by the third party (the Commonwealth) against the fourth party (the building contractor), there be judgment for the third party for $41,606.99 and two-fifths of the plaintiff's costs.

3. In the proceedings by the fourth party (the building contractor) against the defendant (the cleaning contractor), there be judgment for the defendant.
Claim by plaintiff against cleaning contractor

DECISION

On 2 April 1980 the plaintiff fell down some stairs at the Australian Police College at Barton. She was employed by the defendant to work there as a housemaid. She sued the defendant for damages for personal injuries and on 20 December 1985 recovered judgment for $104,017.48 together with costs.

2. The defendant, originally Commonwealth Hostels Limited, and subsequently Commonwealth Accommodation and Catering Services Limited, was responsible for the cleaning and maintenance of the Police College pursuant to a written contract dated 1 November 1979 in which the defendant and the Australian Federal Police were named as parties. There is no dispute that insofar as the contract was entered into by or on behalf of the Australian Federal Police, it was also entered into by or on behalf of the Commonwealth of Australia (the Commonwealth). I shall refer to this contract as the cleaning contract and to the defendant as the cleaning contractor.

3. At the time of the plaintiff's injuries, the premises of the Australian Police College were being renovated or refurbished pursuant to a written contract dated 21 August 1978 entered into by the fourth party and the National Capital Development Commission. There is no dispute that the National Capital Development Commission entered into the contract on behalf of the Commonwealth. I shall refer to this contract as the building contract and to the fourth party as the building contractor.

4. In the proceedings brought by the plaintiff against the cleaning contractor, I held (20 December 1985, unreported) that the refurbishing operations on the premises gave rise to a likelihood that rubbish and other items connected with the refurbishment work were likely to be deposited on the stairs by employees or sub-contractors of the building contractor during the course of the day after the cleaning by the janitor on behalf of the cleaning contractor in the morning. I further held that it was likely that the cleaning contractor knew or ought to have known of that danger and that it was foreseeable that employees using the stairs particularly when, like the plaintiff, they were carrying items which obscured their vision and prevented them from holding on to the bannister, were subject to the risk of slipping or otherwise being caused to lose balance and fall. I further held that it was reasonably practicable at the time of the plaintiff's injury for her to have been given an instruction by the cleaning contractor that she should not use the stairs upon which she fell but should use another set of stairs in the building which were available and which were not affected by the refurbishment operations. The cleaning contractor had previously placed an embargo on the use of those stairs by its employees because it was not appropriate to bring rubbish through that part of the premises. Those stairs were carpeted. I found that it was unreasonable of the cleaning contractor not to lift that embargo during the course of the building operations. I also held that the cleaning contractor was not in occupation of the premises and had no part in or control over the building operations.
Contribution proceedings

5. The parties in the present contribution proceedings now before the Court were content to accept the above findings.

6. The cleaning contractor now seeks contribution or indemnity from the Commonwealth in respect of the damages and costs for which the cleaning contractor is liable to the plaintiff. The Commonwealth seeks contribution or indemnity from the building contractor for any sum for which it may be found liable to the cleaning contractor. The building contractor seeks contribution or indemnity from the cleaning contractor for any amount for which it may be found liable to the Commonwealth.

7. Each claim is brought pursuant to Part IV of the Law Reform (Miscellaneous Provisions) Act 1955. The relevant provisions are as follows:
"11.(1) This section applies where damage is

suffered by a person as a result of a tort (whether
a crime or not).
.....
(4) A tort-feasor liable in respect of
the damage may recover contribution from any other
tort-feasor who is, or would if sued, have been,
liable in respect of the same damage, whether as a
joint tort-feasor or otherwise, but no person is
entitled to recover contribution under this section
from a person entitled to be indemnified by him in
respect of the liability in respect of which the
contribution is sought.
.....
12. In proceedings for contribution under
the last preceding section the amount of the
contribution recoverable from a person is such as is
found by the court to be just and equitable, having
regard to the extent of that person's responsibility
for the damage, and the court has power to exempt a
person from liability to make contribution, or to
direct that the contribution to be recovered from a
person shall amount to a complete indemnity."

8. The various claims for contribution are made in the pleadings which are summarised below. It might be noted that there is no claim for contribution by the cleaning contractor against the building contractor. If there had been, it might have made for greater simplicity in the apportionment of contribution in each particular claim for contribution.
Claim by cleaning contractor against the Commonwealth

9. In its third party notice dated 21 November 1985, the cleaning contractor alleges that the Commonwealth owed a duty of care to the plaintiff and was in breach of that duty of care. The duty is alleged to arise from the fact that the Commonwealth was the occupier of the Australian Police College, that the cleaning contractor was engaged by the Commonwealth to manage the catering services and accommodation at the College and that the plaintiff was employed by the cleaning contractor as a housemaid. The breach of care on the part of the Commonwealth is alleged to be the failure to ensure that the stairs were kept clean and free of debris at all times to enable the plaintiff to carry out her work in safety, and the further failure by the Commonwealth to warn the cleaning contractor and the plaintiff of that danger which was known to or ought to have been known to the Commonwealth. It is also alleged by the cleaning contractor that it was an implied term of the agreement with the Commonwealth that the Commonwealth would provide a place to enable the cleaning contractor and its employees to carry out the terms of the contract without risk of injury and that the plaintiff's injuries were caused by the breach by the Commonwealth of its duty of care.
Claim by Commonwealth against building contractor

10. The claim by the Commonwealth against the building contractor is made in the fourth party claim dated 13 December 1985. It relies on the agreement already referred to whereby the building contractor was engaged as project manager for a refurbishment programme for a period which included the date of the plaintiff's injury. The terms of the building contract were spelled out and they included the following:

"2. The Project Manager shall within the period -
......
(b) Co-ordinate and supervise at a high standard the
activities of all the Consultants and the Contractors
involved to ensure satisfactory completion of the
Works within the Period.
.....
3. The Project Manager from the commencement of the Period
shall in particular -
.....
(d) (i) Supervise the performance of and administer all Trade
Contracts ensuring that the Contractors have compiled with
the provisions thereof.
.....
(x) Furnish to the Principal at a high professional standard
the services required by the express and implied requirements
of the provisions of (the Project Management Brief for Stage
4 of the Refurbishment Programme) and with the oral written
directions given by the Principal from time to time.
.....
6. The Project Manager shall -
(i) employ a sufficient labour force to perform work that
will not be performed by the respective Contractors and to enable
the employees in that labour force to perform the aforesaid
work in an economical and efficient manner.
....."

11. The particulars of the breach of contract and of negligence on the part of the building contractor relied upon by the Commonwealth included the following:

(a) failed to adequately supervise the refurbishment work
carried out under its supervision and direction;
(b) failed to ensure that the stairs used by the Plaintiff
were kept clean and clear of objects at all times to
enable the Plaintiff to carry out her work in safety;
(c) failed to warn the Defendant, the Plaintiff or the Third
Party of a danger which it knew or ought to have known, namely
that the stairs referred to were covered with building debris
and were dirty;
(d) failed to instruct or adequately instruct the contractors
and/or the labourers working under its supervision to ensure
the stairs were kept clean and free of debris at all times."

Claim by building contractor against cleaning contractor

12. The claim by the building contractor for contribution from the cleaning contractor is set out in the notice dated 19 August 1991 and the grounds are set out simply as follows:

"(1) The defendant failed to instruct the plaintiff to use
the carpeted staircase for descending from or ascending to
the first floor of the building.
(2) The defendant failed to instruct the plaintiff that she
should not use the uncarpeted staircase if building or
refurbishing operations were being performed in the
vicinity of that staircase."

Findings of fact

13. I have little hesitation in finding that the cleaning contractor, the Commonwealth and the building contractor were all joint tort-feasors who were liable or who would, if sued, have been liable for damages in respect of the plaintiff's injury. However, the exact nature of the duty needs to be examined as does the standard of care required to discharge that duty in the case of each party.

14. The cleaning contractor, as the employer of the plaintiff, owed her a duty to take reasonable care for her safety as its employee, a duty which has been described as non-delegable (see below).

15. The Commonwealth, as the occupier of the premises, which I find it to be, owed a duty of care to take reasonable steps to secure the safety of any person who might reasonably be expected to enter on the premises. I have no hesitation in finding that the plaintiff, as an employee of the cleaning contractor, fell within the scope of that duty of care. Whether the duty of care was non-delegable in the sense that the duty of care owed by the plaintiff's employer was non-delegable, is another matter. Where it is not reasonable to expect a defendant to carry out personally the acts upon which the plaintiff relies as constituting negligence, for instance, when the defendant does not have the necessary expertise to carry out those acts, then it is sufficient for a defendant, applying reasonable care in the selection process, to engage someone with the qualifications and expertise which would ordinarily be expected to be sufficient for the purpose of carrying out those acts with reasonable skill and competence. Hence the ordinary householder is not liable for personal injury caused by an electrical fault if the householder has engaged a qualified electrician to rectify the fault and has no reason to believe that the fault was not effectively rectified. Where the acts are within the competence of the defendant and it is reasonable to expect the defendant to perform them, it is no defence for the defendant to plead that they were entrusted to an independent contractor who failed to perform them: see Torette House Proprietary Limited v. Berkman [1940] HCA 1; (1939-1940) 62 CLR 637.

16. The Commonwealth, and corporate bodies like the cleaning contractor and the building contractor, can act only through servants and agents. The Commonwealth is vicariously liable for the acts of its servants acting within the scope of their authority. When harm can be avoided by the exercise of reasonable skill on the part of persons who might be expected to be subject to supervision and control during the ordinary course of operations of the Commonwealth, or of corporate bodies like the cleaning contractor or the building contractor, and in the ordinary incidence of the employment relationship, it is no defence to an action for negligence to say that instead of using its own employees subject to such supervision and control, the Commonwealth or the corporate body engaged independent contractors, over whom it had no control and who, as it happened, failed to exercise reasonable care. In such circumstances the Commonwealth or the corporate body is liable whether the liability be regarded as one arising from breach of a personal duty of care or whether liability be regarded as vicarious arising from the failure of the contractor to take reasonable care. In Kondis v. State Transport Authority [1984] HCA 61; (1984) 154 CLR 672, Mason J., as he then was, (at 687) spoke of the "special responsibility or duty to see that care is taken" which may be found in one or more of several circumstances. His Honour gave as examples the hospital which undertakes the care, supervision and control of patients who are in special need of care, the school authority which undertakes special responsibilities in relation to the children whom it accepts into its care and the invitor who assumes a particular responsibility in relation to the safety of his premises and the safety of his invitee by inviting him to enter them. His Honour said at 687:

"In these situations the special duty arises
because the person on whom it is imposed has
undertaken the care, supervision or control of the
person or property of another or is so placed in
relation to that person or his property as to assume
a particular responsibility for his or its safety,
in circumstances where the person affected might
reasonably expect that due care will be exercised."

17. At 688, his Honour continued:

"In the case of the employer there is no
unfairness in imposing on him a non-delegable duty;
it is reasonable that he should bear liability for
the negligence of his independent contractors in
devising a safe system of work. If he requires his
employee to work according to an unsafe system he
should bear the consequences. Indeed, there is a
stronger case for concluding that the employer's
duty is non-delegable than there is for reaching the
same conclusion in the case of the invitor. It is
not immediately obvious that it is appropriate to
impose liability on the occupier of a house for
injury caused to an invitee by the negligence of an
independent contractor, e.g., in making or repairing
an electrical installation carelessly, when it is
reasonable for the occupier to rely on the reputed
competence of the contractor in a field in which the
occupier has no expert knowledge. But this is by
the way, for it is not an issue that needs to be
decided in the present case."

18. In Stevens v. Brodribb Sawmilling Company Proprietary Limited [1986] HCA 1; (1985-1986) 160 CLR 16, Mason J. said at 31:

"Although the obligation to provide a safe
system of work has been regarded as one attaching to
an employer, there is no reason why it should be so
confined. If an entrepreneur engages independent
contractors to do work which might as readily be
done by employees in circumstances where there is a
risk to them of injury arising from the nature of
the work and where there is a need for him to give
directions as to when and where the work is to be
done and to co-ordinate the various activities, he
has an obligation to prescribe a safe system of
work. The fact that they are not employees, or that
he does not retain a right to control them in the
manner in which they carry out their work, should
not affect the existence of an obligation to
prescribe a safe system."

19. Brennan J. said at 47:

"The duty to use reasonable care in
organizing an activity does not import a duty to
avoid any risk of injury; it imports a duty to use
reasonable care to avoid unnecessary risk of injury
and to minimize other risks of injury. It does not
import a duty to retain control of working systems
if it is reasonable to engage the services of
independent contractors who are competent themselves
to control their system of work without supervision
by the entrepreneur. The circumstances may make it
necessary for the entrepreneur to retain and
exercise a supervisory power or to prescribe the
respective areas of responsibility of independent
contractors if confusion about those areas involves
a risk of injury. But once the activity has been
organized and its operation is in the hands of
independent contractors, liability for negligence by
them within the area of their responsibility is not
borne vicariously by the entrepreneur. If there is
no failure to take reasonable care in the employment
of independent contractors competent to control
their own systems of work, or in not retaining a
supervisory power or in leaving undefined the
contractors' respective areas of responsibility, the
entrepreneur is not liable for damage caused merely
by a negligent failure of an independent contractor
to adopt or follow a safe system of work either
within his area of responsibility or in an area of
shared responsibility."

20. In the present case neither the cleaning and maintenance of the College nor the refurbishment to the premises were shown to be so unusual or of such magnitude or complexity as to be outside the normal sphere of operations of the Commonwealth to the extent that those tasks were not appropriate to be carried out by the Commonwealth itself, that is to say, by its own servants or employees. It has not been shown that there was any need for the Commonwealth to engage in such activities through the medium of independent contractors. The Commonwealth was therefore, in my view, under a duty to the plaintiff to see that reasonable care was taken by those it engaged to clean the premises and those it engaged to refurbish them. Reasonable care was not taken either by the cleaning contractor or by the building contractor. As I held in the plaintiff's action against the cleaning contractor, reasonable care on the part of the cleaning contractor required the simple expedient of those employed in the cleaning of the premises to be informed that the prohibition on the use of the inside stairs was suspended during the building operations and further informed that the cleaners should not during the building operations use the stairs on which the plaintiff was injured.

21. Reasonable care on the part of the building contractor, in my view, likewise required that persons such as the plaintiff likely to use the stairs during the building operations be warned of the possibility of danger arising from building debris being on the stairs. Such warning might have been appropriately given by displaying notices or by the placement of a barrier at the foot of the stairs and at the head of the stairs. According to the evidence of Mr Tony Agnello, a carpenter's stool was in fact placed at the head of the stairs at some stage in order to serve as such a warning or barrier. However, when the plaintiff gave evidence she was not asked either in chief or in cross-examination anything about the presence or absence of the carpenter's stool at the time of her injury. This is a matter which, even if it went unnoticed by the plaintiff, could be expected to lie within the peculiar knowledge of the building contractor. I conclude in the absence of any evidence from that party on the precise point that no carpenter's stool was in position at or immediately before the time of the plaintiff's injury.

22. I apply the above findings of fact to the claims for contribution.
The cleaning contractor succeeds against the Commonwealth

23. The Commonwealth failed in its duty to the plaintiff to ensure that reasonable care was taken by the cleaning contractor and by the building contractor. A party other than the Commonwealth held liable to the plaintiff and therefore a joint tort-feasor is on the face of it entitled to look to the Commonwealth for contribution arising out of the failure of the Commonwealth to discharge the duty owed by it to the plaintiff. But the duty owed by the Commonwealth to the plaintiff is not a duty owed to other tort-feasors who may be jointly liable to the plaintiff. The cleaning contractor cannot complain that the Commonwealth failed to ensure that it, the cleaning contractor, exercised reasonable care for the safety of the plaintiff. Whilst an employee may allege as a particular of negligence that an employer failed to exercise due care in supervision of the plaintiff employee, there is no evidence of any term to that effect in the contracts between the cleaning contractor and the Commonwealth and none is to be implied.

24. However, it is, in my view, just and equitable that the Commonwealth be required to contribute to any damage which the cleaning contractor is required to pay to the plaintiff. That requirement arises by reason of the Commonwealth's failure to ensure that the building contractor took reasonable care for the safety of the plaintiff. What then are to be the proportions of contribution? In my view, the standard of care required of the cleaning contractor in the discharge of its duty as the employer of the plaintiff was in practical terms no higher or lower than that required of the building contractor in the actual carrying out of the building operations which were the more proximate cause of the plaintiff's injury and over which the cleaning contractor had no control. But the cleaning contractor does not seek contribution from the building contractor, only from the Commonwealth. I conclude, bearing in mind the Commonwealth's failure to discharge its non-delegable duty to the plaintiff in respect of the conduct of the building contractor, that it is just and equitable that the Commonwealth contribute to the cleaning contractor three-fifths of the plaintiff's damages.
The Commonwealth succeeds against the building contractor

25. In terms of actual fault, however, the breach by the building contractor of the duty owed to the plaintiff is substantially greater than that on the part of the Commonwealth. The Commonwealth was entitled to expect that the building contractor, like the cleaning contractor, would carry out its operations taking reasonable care for the safety of the plaintiff and the building contractor failed in this regard. As between the Commonwealth and the building contractor, it is just and equitable that the building contractor contribute to the Commonwealth two-fifths of the plaintiff's damages, leaving the Commonwealth ultimately responsible for one-fifth of the plaintiff's damages.
The building contractor fails against the cleaning contractor

26. As the plaintiff's employer, the cleaning contractor had a more direct responsibility for the plaintiff's safety than did the building contractor; conversely the building contractor was more closely concerned in the actual occurrence which was the more proximate cause of the plaintiff's injury than was the cleaning contractor. As between the cleaning contractor and the building contractor, I think that each should bear an equal share of their shared responsibility for the plaintiff's damages. The contribution proposed to be ordered by the Commonwealth to the cleaning contractor and by the building contractor to the Commonwealth will have that effect. There will be no order for contribution by the cleaning contractor to the liability of the building contractor.

27. The net result of the above findings and expressions of apportionment is that the cleaning contractor should bear two-fifths of the plaintiff's total damages and costs, the Commonwealth one-fifth and the building contractor two-fifths. This is reflected by the following orders which I propose to make in the various contribution proceedings.

28. In the action by the plaintiff against the defendant I have already authorised entry of judgment for the plaintiff for $104,017.48 and costs.

29. In the proceedings by the defendant (the cleaning contractor) against the third party (the Commonwealth): judgment for the defendant for $62,410.49 and three-fifths of the plaintiff's costs.

30. In the proceedings by the third party (the Commonwealth) against the fourth party (the building contractor): judgment for the third party for $41,606.99 and two-fifths of the plaintiff's costs.

31. In the proceedings by the fourth party (the building contractor) against the defendant (the cleaning contractor): judgment for the defendant.

32. On the question of costs of the various contribution proceedings, unless the parties wish to be heard, I propose to order that each party pay its own costs.