Dawmac Industries P/L v Anson [2001] NSWCA 42 (14 March 2001)

Last Updated: 16 March 2001

NEW SOUTH WALES COURT OF APPEAL

CITATION: Dawmac Industries P/L v Anson [2001] NSWCA 42

FILE NUMBER(S):

40749/99

HEARING DATE(S): 23/02/01

JUDGMENT DATE: 14/03/2001

PARTIES:

Dawmac Industries Pty Limited

v

Bernice Anson & Polkinghorne Russell Pty Limited

JUDGMENT OF: Meagher JA Ipp AJA Rolfe AJA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2789/98

LOWER COURT JUDICIAL OFFICER: Garling DCJ

COUNSEL:

Philip John Lederman (Appellant)

Andrew Grech (1st Respondent)

John Taylor (2nd Respondent

SOLICITORS:

Appellant: Henry Davis York Lawyers

1st Respondent: Slater & Gordon

2nd Respondent: Taylor & Whitty Solicitors

CATCHWORDS:

Negligence - injury to pedestrian on footpath outside construdtion site - independent contractor at fault - construction site owner and pedestrian - non-delegable duty of care.

LEGISLATION CITED:

DECISION:

1) Appeal by the appellant against the first respondent allowed.

2) Orders below set aside.

3) The first respondent pay the appellant's costs of the appeal, save for the costs payable by the appellant to the second respondent, and have a certificate under the Suitors Fund Act if otherwise entitled.

4) Appeal by the appellant against the second respondent dismissed.

5) Appellant pay the second respondent's costs of the appeal.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40749/99

Meagher JA

Ipp AJA

Rolfe AJA

14 March 2001

DAWMAC INDUSTRIES PTY LIMITED V Bernice ANSON & POLKINGHORNE & RUSSELL PTY LIMITED

The Plaintiff, a pedestrian, sued the Defendant, the owner of a shop being repaired, for damages arising out of her falling into a hole which his subcontractors had made. It was not alleged that the Defendant was personally at fault.

Held:

The Defendant could not be made liable for a breach of a non-delegable duty of care.

Orders:

1) Appeal by the appellant against the first respondent allowed.

2) Orders below set aside.

3) The first respondent pay the appellant's costs of the appeal, save for the costs payable by the appellant to the second respondent, and have a certificate under the Suitors Fund Act if otherwise entitled.

4) Appeal by the appellant against the second respondent dismissed.

5) Appellant pay the second respondent's costs of the appeal.

Catchwords

Tort - Personal injury - Liability - Independant contractor - Non-delegable duty of care

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA: 40749/99

MEAGHER JA

IPP AJA

ROLFE AJA

14 MARCH 2001

DAWMAC INDUSTRIES PTY LIMITED v Bernice ANSON & POLKINGHORNE & RUSSELL PTY LIMITED

JUDGMENT

1   MEAGHER JA: This is an appeal from a judgment and verdict which Garling DCJ gave in favour of an injured plaintiff, Mrs Bernice Anson, the first respondent to this appeal.

2   The evidence, about which there was no challenge, was that on 29 April 1995 she and a friend Mrs Nock walked along a footpath outside a construction site in Chantal Street, Berrigan, which is a township in the State of New South Wales. As she walked past the site her foot caught in a hole in the footpath and she was injured. The construction site adjoined the appellant's shop, which faced onto the street.

3   It was not disputed (1) that the appellant's shop was being renovated, and that was the "construction" referred to; (2) that there was a barrier on the footpath consisting of a series of cylindrical drums joined by orange plastic mesh, to make a barrier preventing members of the public straying onto areas where work had been done, or was being done; (3) that the barrier was effective for its purpose; (4) that a plumber, Mr Rennick, removed the barrier for the purpose of gaining access to the site; (5) that, within five minutes of the barrier being removed, Mrs Anson's accident occurred.

4   The plaintiff, obviously being in a quandry about whom to sue, sued four defendants: Polkinghorne & Russell Pty Limited, the first defendant, who was the builder; RE and RM Rennick Plumbing Pty Limited, the second defendant, who was the plumber; Dawmac Industries Pty Limited, the present appellant, who was the third defendant and the owner of the "construction site", and Berrigan Shire, which was the fourth Defendant.

5   The plaintiff lost as against the builder, on what seems to me the curious ground that the builder was not in control of the "construction site". She lost as against the Shire; she did not proceed against the plumber; and she won against the owners.

6   It is necessary to explore a little further the reason's for her victory. The way in which his Honour put it was as follows:

"In my opinion the third defendant was negligent. They were in control of the site. They were responsible for the safety of people on the site and walking in the vicinity of the site. They instructed the first defendant to engage the plumber as subcontractor and they had a responsibility and they, in my view, are vicariously liable for the casual acts of Mr Rennick and I am satisfied they are negligent." (Italics supplied).

7   Put simply, the appellant was made vicariously liable for the plumber's negligence. That, and nothing but that.

8   A judgment based on this reasoning cannot be allowed to stand. On no view can the appellant have vicarious liability. The plumber was not its servant. The plumber was an independent contractor.

9   Although at trial there was a dispute whether the plumber was hired by the owner or by the builder, and that dispute was resolved in favour of the former view, it does not stop the plumber being an independent contractor. On the appeal, learned counsel for the plaintiff did not seek to defend his Honour's assessment of vicarious liability.

10   There are a number of problems with his Honour's analysis. One cannot see that a licence to erect a temporary barrier on a footpath confers a right of control of that footpath on the appellant; it certainly does not make him an occupier of any portion of the footpath; and even if he had control, even if he were an occupier, he still has no vicarious liability for anything except the torts of his servants.

11   Mrs Anson's counsel, on the appeal, propounded another justification for his Honour's verdict. It was that the appellant had a non-delegable duty of care. In this regard, a number of authorities were relied upon. The fons et origo of these authorities is the famous statement of Cockburn CJ in Bowen v Peate (1876) 1 QBD 321 at 326:

"[A] man who orders a work to be executed, from which, in the natural course of things, injurious consequences to his neighbour must be expected to arise, unless means are adopted by which such consequences may be prevented, is bound to see to the doing of that which is necessary to prevent the mischief, and cannot relieve himself of his responsibility by employing some one else - whether it be the contractor employed to do the work from which the danger arises or some independent person - to do what is necessary to prevent the act he has ordered to be done from becoming wrongful"

12   Although Bowen v Peate was a case in nuisance, where there is strict liability, McHugh J in Northern Sandblasting Pty Limited v Harris [1997] HCA 39; (1996) 188 CLR 313 at 366ff discussed the possibility of extending this notion to the action of negligence so that wherever a defendant engages on a course of conduct which might result in harm to others he no longer has a mere duty to take care but the more stringent duty to ensure that reasonable care is taken. There are obstacles - and in my view - insuperable obstacles - to adopting any such view. In the first place, it would involve re-writing the whole law of torts. In the second place, it is quite contrary to the decision of the High Court in Stoneman v Lyons [1975] HCA 59; (1975) 133 CLR 550. In the third place, it is contrary to the more recent High Court case of Jones v Bartlett [2000] HCA 56; (2000) 75 ALJR 1.

13   But, apart from this, even adopting some theory of non-delegable duty, and even supposing it applies to the present case, it does not dispense with the plaintiff's duty to demonstrate a breach of that duty. In the present case, no breach of any duty, non-delegable or otherwise, was demonstrated. There was no evidence, as eventually even the plaintiff's counsel had to concede, that the appellant had failed to do something he should have done, or did something he should not have done.

14   His Honour found that the appellant was entitled to succeed against the plumber on its cross-claim for the full amount the appellant was liable to pay the plaintiff and made consequential costs orders. As the verdict and judgment in favour of the plaintiff is to be set aside, so also should the orders made on that cross-claim.

15   The appellant joined the builder as the second respondent to the appeal. There was no justification for doing so and, in the result, that appeal must be dismissed with costs.

16   In my view, the following orders should be made:-

1. Appeal by the appellant against the first respondent allowed.

2. Orders below set aside.

3. The first respondent pay the appellant's costs of the appeal, save for the costs payable by the appellant to the second respondent, and have a certificate under the Suitors Fund Act if otherwise entitled.

4. Appeal by the appellant against the second respondent dismissed.

5. Appellant pay the second respondent's costs of the appeal.

17   IPP AJA: I agree with Meagher JA.

18   ROLFE AJA: I agree with Meagher.JA

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LAST UPDATED: 14/03/2001