Pack-Tainers Pty Ltd v Moore [2005] NSWCA 43 (8 March 2005)

CITATION: Pack-Tainers Pty Ltd v Moore [2005] NSWCA 43

FILE NUMBER(S):

40951/03

HEARING DATE(S): 19/11/04

JUDGMENT DATE: 08/03/2005

PARTIES:

Pack-Tainers Pty Limited (Appellant)

Stephen Moore (Respondent)

JUDGMENT OF: Santow JA Bryson JA Young CJ in Eq

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 3896/02

LOWER COURT JUDICIAL OFFICER: Murray DCJ

COUNSEL:

I G Harrison SC and P Khandhar (Appellant)

A Lidden and E Welsh (Respondent)

SOLICITORS:

Minter Ellison (Appellant)

Brydens Law Office (Respondent)

CATCHWORDS:

TORT- Employee/Independent contractor- Whether it could be said that the person who hired worker was an entrepreneur using so called independent contractors as virtual employees- Held "no".

LEGISLATION CITED:

DECISION:

Appeal allowed with costs and consequential orders as para 126.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40951/03

DC 3896/02

SANTOW JA

BRYSON JA

YOUNG CJ in EQ

Tuesday 8 March 2005

PACK-TAINERS PTY LIMITED v STEPHEN MOORE

Judgment

1 SANTOW JA:

INTRODUCTION

I have had the advantage of reading the judgment of Young CJ in Eq in draft. I adopt with gratitude his statement of the facts and issues. While I agree in the result and generally with the reasons, I wish to add some observations of my own. They principally concern the varying circumstances, as potentially applicable here, in which a duty of care properly falls upon an entrepreneur with respect to an independent contractor engaged on site. Related to this is the question of the extent to which the entrepreneur’s duty of care should be equated to the heightened duty of an employer to provide a safe system of work.

2 The judgments in the leading case on liability to independent contractors, Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1985) 160 CLR 16 differ in their articulation of when such an employer-like duty is to be found and in its degree of stringency. These differences, though not major, are nonetheless potentially significant.

3 Thus Wilson and Dawson JJ (at [37]) emphasised that control was no longer the exclusive test, though the proper starting point of enquiry. Ultimately the matter was to be judged by the degree of discretion left to the manner in which the person concerned did his or her work. But this still imposed on the head contractor engaged in a site co-ordinating or general supervisory role “a duty to exercise care in the co-ordination of the activities of the various contractors” (at 45). The Brodribb judgments, as I explain, saw that duty delineated at various levels of stringency; as requiring at its highest an employer-like duty at the co-ordinating point (Mason J), or as one calling for no more than reasonable care (Brennan J), or as one calling for a duty of care taking account of the independent functions of contractors and thus lower than for an employer (Wilson and Dawson JJ).

4 That there are these differences reflects the changing reality of the workplace. Thus work that was once done predominantly by employees is increasingly being taken over by independent contractors. Not infrequently they were themselves earlier employed to do the same task. Employers often find it cheaper to have the work done instead by independent contractors. This is not only because of freedom from employee on-costs but also, no doubt, with an eye to shedding potential strict liability qua employer. The former employee, reciprocally, may enjoy tax advantage and greater independence as an independent contractor.

5 Yet the courts have in a series of cases resisted the notion that liability on the (former) employer’s part may be so simply shed, though this will depend on factors such as the nature of the work-site, working conditions and other relevant factors. The work-site may be a complex one calling for considerable co-ordination of the trades or relatively straightforward where the need for co-ordination is minimal. A work-site danger may be so commonplace and obvious, in ascending a ladder for example, that the independent contractor must take responsibility for injury suffered, especially where the means of avoiding it is obvious; Van der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 at [74]. The so-called “independent” contractor may have little independence at all, particularly as to how the site, or his particular task, is conducted. The entrepreneur may choose to exercise an active control over the work. The employer on the other hand may be a remote body hire operation. The entrepreneur may simply play no active role, unsympathetic to demands for a safer work-site, particularly if they involve significant cost. Realities on the ground may on the other hand reveal a situation where the entrepreneur relies entirely or substantially on the subcontractor’s expertise, even as to the safety equipment required. Any co-ordination required may be very limited, coming in practice from the independent contractor. The independent contractor may still be vulnerable if lacking any leverage to insist on a safe workplace or lacking expertise to identify the safety measures needed. Equally the independent contractor may, knowing what is required, simply fail to ask for some necessary safety measure when there is no evidence that this would not have been forthcoming if requested. That is essentially what happened here and is a matter of some significance as I later explain.

ANALYSIS

6 That provides the setting for Brodribb (supra). Subsequent cases, at appellate level, illustrate that increasing ascendance of entrepreneur’s liability towards independent contractors; thus Wilke v Astra Pharmaceuticals Pty Ltd [2001] NSWCA 135 (liability of contractor to independent contractor engaged by it to work on a narrow beam 12 feet above a concrete floor in conditions of urgency over extended hours); TNT Australia Pty Ltd v Christie & 2 Ors [2003] NSWCA 47 (body hire employer did not escape liability when it sent its employee to a client’s site and the client did not escape liability as occupier of the work-site given its day-to-day control over the work activities as if an employer); Rockdale Beef Pty Ltd v Carey [2003] NSWCA 132 (entrepreneur held to owe and to have breached a duty of care to an independent contractor, though co-ordination not required, where for other reasons such duty would be found according to the general law of negligence by reason of considerations of vulnerability, inequality of bargaining power and control); Multiplex Constructions (NSW) Pty Ltd v Lopez [2004] NSWCA 319 (head contractor on building site had assumed responsibility to inspect site after rain to see it was safe to re-enter for the various sub-contractors); Eurobodalla Shire Council v Dufty [2004] NSWCA 450 (Council liable to independent contractor for failure in carrying out the lesser degree of co-ordination involved in moving machinery as part of a winter maintenance programme for a swimming pool).

7 These cases illustrate the trend towards holding the entrepreneur to a quasi-employer liability in cases which warrant this. I shall, however, start with the judgment of Mason J, comparing it to the other important judgments in Brodribb, in order to elaborate on the underlying principles in their context.

8 Mason J began with the work-site conditions of interdependence which required the entrepreneur in Brodribb to exercise a co-ordinating function for the safety of those independent contractors engaged at the site.

“The final questions are whether Brodribb was under a general common law duty of care and, if so, whether it was a personal (non-delegable) duty. In this case the first question is to be determined by reference to the elements of reasonable foreseeability and proximity discussed in the judgment of Deane J in Jaensch v Coffey. It is plain that Brodribb could reasonably foresee that there was a real risk that a worker carrying out Stevens' duties would sustain an injury of the kind that occurred. It is equally plain that a relationship of proximity existed between Brodribb and the individual worker sufficient to ground a common law duty of care. Subject to the ultimate control of the Commission, Brodribb had an exclusive licence to cut and take away logs from the logging areas. It allocated fellers, sniggers and truck drivers to specified parts in those logging areas; it required them to work together in teams in an intricate process of extracting timber from the forest and delivering it to the sawmill; and it monitored and co-ordinated the operations through its bush boss. While individual fellers, sniggers and truck drivers may have been responsible for their own safety with regard to carrying out their own functions, they had little choice but to rely on the care and skill of Brodribb in the arrangements which it made for the disposition of the work, and on the care and skill of the persons engaged by Brodribb in the execution of the work. (at 30-1)

9 Mason J then concluded:

“The interdependence of the activities carried out in the forest, the need for co-ordination by Brodribb of those activities and the distinct risk of personal injury to those engaged in the operations, called for the prescription and provision of a safe system by Brodribb. Omission to prescribe and provide such a system would expose the workers to an obvious risk of injury. 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. Brodribb's ability to prescribe such a system was not affected by its inability to direct the contractors as to how they should operate their machines. (at 31)

10 The duty in an employer/employee relationship to provide a safe system of work can be conceptualised as the counterpart to the employee’s duty to follow all lawful directions of the employer. That duty is implied by law into the master-servant relationship. Failure to comply with lawful orders justifies summary dismissal. Indeed it is this “right to control”, which justifies imposing on the employer almost strict liability for failure to provide a safe system of work, recognising the employee’s vulnerability in such circumstances.

11 But Mason J recognised that independent contractors on a site can be similarly vulnerable, where the following conditions are made out, though these are not to be thought of as exhaustive:

(a) the “interdependence of activities” carried on by the entrepreneur’s workers,

(b) the “need for co-ordination” of those activities; that is, the “need for [the entrepreneur] to give directions as to when and where the work is to be done”,

(c) the existence of a “distinct risk of personal injury to those engaged in the operations” arising from the nature of the work, absent proper co-ordination and prescription of a safe system of work.

12 It can be taken that the third of these indicia is satisfied in the present case. There was an obvious danger in working some 3 metres above ground level without any safety apparatus whatsoever.

13 The first two indicia are fundamentally interrelated and best considered concurrently. It was the interdependence of activities that gave rise to the need for co-ordination.

14 In the present case, the only conceivable “interdependence of activities” appears to have been that of the respondent contractor, Mr Moore with the employee, Mr Araya, employed by Pack-Tainers. The evidence disclosed that Mr Araya was a jack-of-all-trades who would “on the odd occasion” (T, 16P) assist Mr Moore with repairing the pins on the forklift. According to Mr Moore, Mr Araya would either offer to help Mr Moore of his own volition or would be sent to give Mr Moore a hand (T, 16), presumably to increase the efficiency with which this urgent task was performed. It appears that Mr Araya functioned as a “gofer” for Mr Moore, fetching his tools. He generally acted upon Mr Moore’s direction (T, 17M, 18L) not that of Pack-Tainers. Mr Moore agreed in cross-examination that when he needed assistance he would either “borrow an employee or ask for a hand” or employ a sub-contractor (T, 31B-H).

15 There can be no difference in principle between interdependence of activities of various independent contractors and interdependence of activities of both independent contractors and employees. But here there does not appear to be any particular co-ordinating role undertaken by Pack-Tainers in this case, as that term is commonly understood. Any co-ordination in the particular task which led to the injury was performed by Mr Moore himself. It was he who told Mr Araya what to do. And it was Mr Moore who, having been told by Pack-Tainers what to fix, would go and do it in his own way, according to his own judgment (T,31P-X) save that the urgency of the task was dictated by Pack-Tainers.

16 The only way of finding an interdependence would be to hold that the location of the forklift needing repair was necessarily interdependent with the repair services provided by Mr Moore, in that he would either have to repair the forklift where it stood in the yard or cause it to be moved to a place where he could repair it. Whether this amounts to an “interdependence of activities” in the Brodribb sense is doubtful, since it is more an interdependence of one activity with a pre-existing feature of the site where the activity is to take place, though that probably does not matter.

17 But more significant is that there was no evidence that this very limited degree of interdependence called for any but the most rudimentary co-ordination. Moreover, it fell on Mr Moore to perform, not Pack-Tainers. It was up to Mr Moore to arrange for the forklift to be moved or equipment to be provided such that he could carry out the task safely. That is to say, he was in as a good a position as Pack-Tainers to assess the safety of the task and initiate steps to improve it. It is however true that co-ordination may well have been required if Pack-Tainers were to provide a gantry such that the work could be performed safely (i.e. between the activities of Mr Moore, Mr Araya and other employees in manoeuvring the gantry, etc). But Mr Moore never asked for one and was clearly expert enough to appreciate its need. In any event, the question is under whose sphere of responsibility would such an actual co-ordinating role fall if the forklift broke, in effecting the necessary repairs. The answer is clear; that role fell on Mr Moore, when on site.

18 There is little doubt that had Mr Araya fallen from the shipping container while performing other employment activities for Pack-Tainers (T, 99.H-W), then Pack-Tainers would have been liable for failure to provide a safe system of work. There is also no doubt that had Mr Araya been injured in the same way while he was being “lent” by Pack-Tainers to Mr Moore, then Pack-Tainers (and possibly also Mr Moore and his service company Elf) would have been liable for any negligence. Mr Araya was under a duty to obey Pack-Tainers. Had Pack-Tainers directed him to assist Mr Moore, it was clear that so far as Mr Araya was concerned, Pack-Tainers would come under a duty to ensure that the system of work adopted was a safe one. But the fact that a defendant is potentially liable to another person to whom a duty is owed does not address the question of whether it also owes a similar duty to the plaintiff, who stands in a quite different relationship to the defendant than that other person.

19 Turning to Wilson and Dawson JJ in Brodribb, their joint judgment emphasised that while “control” was no longer the exclusive test, it was still the proper starting point of the inquiry. They described this as an inquiry which was “one of degree for which there is no exclusive measure” (at 36). They listed a range of indicia which would be considered in that inquiry, but emphasised that making a list was apt to mislead as the indicia were “no more than a guide”:

“Those suggesting a contract of service rather than a contract for services include the right to have a particular person do the work, the right to suspend or dismiss the person engaged, the right to the exclusive services of the person engaged and the right to dictate the place of work, hours of work and the like. Those which indicate a contract for services include work involving a profession, trade or distinct calling on the part of the person engaged, the provision by him of his own place of work or of his own equipment, the creation by him of goodwill or saleable assets in the course of his work, the payment by him from his remuneration of business expenses of any significant proportion and the payment to him of remuneration without deduction for income tax. None of these leads to any necessary inference, however, and the actual terms and terminology of the contract will always be of considerable importance.” (at 36-7)

20 Wilson and Dawson JJ concluded on the submissions put in Brodribb that an entrepreneur may owe a duty of care to an independent contractor arising “from the general supervisory functions exercised by Brodribb in its licence area”. As Gummow J has recently commented (writing extra-judicially in the context of divergent opinions of the House of Lords and the High Court of Australia on the same question), “it is easy to overlook the significance, even for an ultimate appellate court, of the way cases are put by counsel.” W M C Gummow, ‘The High Court and the House of Lords’, in G Doecker-Mach & K A Ziegert (eds), Law Legal Culture and Politics in the Twenty First Century, Franz Steiner Verlag Stuttgart, 2004, p49.. That statement is borne out in the way the judges formulated the duty in Brodribb’s case.

21 Wilson and Dawson JJ then referred to the concepts of proximity and foreseeability, and concluded:

“There is no reason why those same concepts should not provide a basis upon which it might be found that Brodribb was under a duty of care towards Stevens and we are prepared to assume that it was under such a duty of care, although it seems to us that the extent of the duty would have to take account of the independent functions of the contractors and be something less than that owed by an employer to his employees. To equate the duty with that owed by an employer to his employees would be to give no weight to the very circumstance which differentiates the contractors from employees.” (45)

That limited scope to a duty of care so found can be important though, as I explain later, not in the circumstances of this case.

22 Wilson and Dawson JJ accepted, with Mason J, that “any such duty was, in effect, a duty to exercise care in the co-ordination of the activities of the various contractors.”

23 It was the judgment of Wilson and Dawson JJ in Brodribb that was relied upon by Ipp JA (Mason P and McColl JA agreeing) in Rockdale Beef v Carey [2003] NSWCA 132. Ipp JA referred to comments of Gummow and Hayne JJ in Graham Barclay Oysters P/L v Ryan [2002] HCA 54; (2002) 194 ALR 337 at 375 to support his conclusion that:

“an entrepreneur may owe a duty of care to an independent contractor when, according to the general law of negligence, the circumstances are such that a duty arises. The existence of the duty is not conditional on the existence of any particular factual element. It is the substantive content of the relationship between the parties that is decisive.” [79]

24 This test eschews reliance on the co-ordinating factor alone. Ipp JA concludes at [84], that:

“Nothing ... prevents the general law of negligence imposing on an entrepreneur a duty of care owed to an independent contractor. Such a duty may arise in circumstances where there is no need for the entrepreneur to give directions as to when and where the work is to be done and to co-ordinate the various activities, but where, for other reasons, reasonable care on the part of the entrepreneur affects the way in which the work is to be undertaken and the safety of the work site, and where other considerations ... such as vulnerability, inequality of bargaining power, and the other manifold factors that the law recognises as being relevant to the existence of a duty of care, are present.”

25 On the facts in Rockdale, the injured worker’s position as a contractor was said to be “not comparable” to that of an electrician, plumber or tiler who enters premises to carry out skilled work, and where care on the part of the occupier has no effect on how that work is carried out. Mr Carey, it must be recalled, was an unskilled labourer who was in a de facto subordinate relationship to Rockdale Beef and who followed the instructions issued to him by the managers at the feedlot where he was injured. It was this circumstance, combined with the configuration of the work site, that caused a safety risk in the work he was directed to carry out. Those were the factors which caused Rockdale Beef to fall under a duty to minimise the risk involved in the configuration of the worksite. A factor which was said to be particularly relevant was Mr Carey’s inability to protect himself from the risk of injury involved in the configuration of the worksite, that is to say his vulnerability. Whether such duty of care was the strict employer one, or as I would conceive, the more limited kind referred to by Wilson and Dawson JJ, it was not necessary to decide.

26 But if such a broad gauge approach were taken to the relationship in this case, counsel for Mr Moore suggested that he ought to be regarded as “vulnerable” in the Rockdale sense, as he was at the mercy of Pack-Tainers as to working conditions. Young CJ in Eq deals with this submission in his draft judgment. He concludes that there was simply no evidence that if Mr Moore had requested safety equipment it would not have been provided. I agree. To reach a contrary conclusion, it would be necessary to hold that the general configuration of the Yennora woolstores yard where the forklift broke down and the historic relationship between Mr Moore and Pack-Tainers led to the conclusion that the safety of the place of work was really solely in the control of Pack-Tainers; that Pack-Tainers in practice would have rejected any request for safety equipment such as a gantry. This is militated against by Mr Moore’s admission that it was he who decided how to perform the task for which he was contracted, based on his own judgment. The fact that his superior expertise did not lead him to request safety equipment, which only Pack-Tainers could in the circumstances effectively provide, does not support the inference pressed by the respondent. I would not be prepared to draw that inference.

27 Brennan J in Brodribb stated that he was in general agreement with Mason J, but added that in his view the duty of an entrepreneur who organises an activity arose because he creates the risk of injury:

“An entrepreneur who organizes an activity involving a risk of injury to those engaged in it is under a duty to use reasonable care in organizing the activity to avoid or minimize that risk, and that duty is imposed whether or not the entrepreneur is under a further duty of care to servants employed by him to carry out that activity. The entrepreneur’s duty arises simply because he is creating the risk (Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 59 ALJR 564 at 587[1985] HCA 41; ; 60 ALR 1 at 42) and his duty is more limited than the duty owed by an employer to an employee. 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 risks 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. (at 47)

28 Brennan J concluded:

“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.” (at 47-48)

29 Brennan J drew a qualitative distinction between the heightened duty conventionally owed to an employee, and that owed by reason of the organisation of activities which contractors are engaged to perform. The duty is more limited in the latter case. This is because it will in such cases be reasonable for the entrepreneur to rely on the contractor who is competent to control its own system of work without supervision. In Brodribb’s case of course, it was the complex interaction between fellers, sniggers and truckers that constituted the system of work. It could not be said that any one of those groups of independent contractors was competent to control that system without supervision.

30 Deane J in Brodribb agreed with Mason J, for the reasons given by him, that a duty of care existed, but he, dissenting, considered that it had been breached in that case. The basis for his dissent on this issue is to be found in this passage:

“In fact, the evidence leads to the conclusion that the Brodribb Company provided no system at all to deal with the problem of loading the shorter logs. It simply left the problem which they posed to be dealt with on an ad hoc basis. The consequence was that a truck driver was unnecessarily exposed to any danger involved in the unplanned and unexpected. It was this absence of any settled system for the loading of the shorter logs which led to the lack of co-ordination between Gray and Stevens in the present case. In failing to provide such a system, the Brodribb Company was in breach of the duty to take reasonable care which it owed to Stevens.” (at 54)

31 Mason J had held effectively that there were no reasonable steps that would have been taken by a reasonable entrepreneur to guard against the type of accident that ensued. The alleged breaches were threefold, namely:

(a) the use of an unsafe ramp and the failure to require the use of a forklift carrier or a tractor equipped with a grab to load logs;

(b) failure to give instructions that no log was to be moved on the ramp whilst anyone was on it, and

(c) failure to supervise the loading operation.

32 Both Mason J in his judgment and Wilson and Dawson JJ in theirs, considered that failure to give instructions warning against the obvious danger to a contractor skilled in the task he was performing was not necessary, and would not have averted the injury. The same could be said of the failure to supervise the operation. There was insufficient evidence of the feasibility of the proffered alternative systems of work to enable a breach to be proven.

33 Summing up, it was only Deane J in dissent who was prepared to find a breach in the failure to prescribe any system, let alone a safe system, thus leaving the contractors to do so themselves, ad hoc and unsupervised. That scenario in any event bears only the most superficial resemblance to this case as I explain, in elaborating on the factual elements below.

34 The key factual elements of the present case are these:

(a) any co-ordinating task was rudimentary and left to Mr Moore, in making any repair such as the present one,

(b) Pack-Tainers’ intervention went no further than to instil urgency and make employees available on request,

(c) Mr Moore was relied on for his expertise, which was considerable (T, 2, 28, 29, 97-8),

(d) Pack-Tainers was a very regular customer,

(e) it was left to Mr Moore (amongst others retained) to go there every morning and check that everything was alright for Pack-Tainers (T, 30), charging his time and for materials used (T, 32),

(f) Mr Boyd of Pack-Tainers directed that the repair area would be the “backyard” part of the Pack-Tainers’ site (which contained a lot of old machinery and other waste) and Mr Moore had to make room for himself in that area: (T, 11W-12O),

(g) The container carrier had to be fixed wherever it stopped (it was too large to be taken inside the warehouse): (T, 13V-W),

(h) Mr Moore said he was not happy at working in that environment as it was dirty with oil and grease, etc, but importantly he never complained to Mr Boyd or otherwise inform Pack-Tainers that he viewed it as a safety-issue (T, 31E-32),

(i) Pack-Tainers was a very small company and did not have a safety committee per se, although the supervisor Mr McKay and Mr Boyd organised things so that everyone knew what to do: (T, 100) and Mr McKay said it was at the discretion of the mechanic where to fix a forklift (T, 108U),

(j) Generally Mr Moore worked alone in his business, but when he needed assistance he would either “borrow an employee” of the customer or employ sub-contractors for big jobs (T, 30W-31K),

(k) Mr Moore was his “own boss” and did the work according to his own judgment, although he had to abide by the rules (safety and access) of each site: T, 31P-V),

(l) The customer would indicate which forklifts had a problem, and besides indicating urgency would not tell him how or when to fix it: (T, 31W),

(m) Mr Araya was an employee of Pack-Tainers (a maintenance man, and jack-of-all-trades) who was made available to Mr Moore to help him – sometimes he would offer to help, sometimes he would be sent, functioning as Mr Moore’s “gofer”, fetching tools and equipment for the job (T, 16N-17M).

35 In terms of safety:

(a) The procedure adopted by Mr Moore to get on top of the forklift was one that had been used by him for many years previously in his experience with forklifts but which he must have realised was unsafe,

(b) Mr Moore did not agree that he took no steps to ensure his own safety as he worked, saying he supplied himself with various safety equipment including glasses, ear muffs, fluorescent vests, safety boots and overalls: (T, 46H-K),

(c) The tenor of his answers were that he was not responsible for the safety of the general site, i.e. Pack-Tainers were responsible for cleaning up their mess and he shouldn’t have to ask them to do it (T, 39L-Q),

(d) However, Mr Moore never asked Pack-Tainers “do you have a gantry I could use”, because he could see they did not have one: (T, 39E-M),

(e) Mr Moore did not ask for a metal safety cage which was available at the premises for lifting personnel on a forklift (T, 82G-M), but it would have been made available if it had been asked for – likewise with a ladder (T, 83C),

(f) But a cage would probably not be feasible in terms of working on top of a container and a ladder would only get you to the top of the container and not stop you falling off (T.137-8)

SUMMING UP

36 That description of the relatively uncomplex site and its working conditions, though safety was clearly less than adequate, leaves no room for equating Pack-Tainers’ duty of care to that of an employer, vis a vis Mr Moore. This is so, on any of the tests in Brodribb or by analogy to the cases following, which expound on the Brodribb principles. If there had been evidence that, had the respondent sought from the owner in control of the site a safer system such as a gantry, he would likely have been rebuffed, the argument for liability would have been more plausible. In such circumstances, the respondent’s control of the site, coupled with the vulnerability of an independent contractor faced with its controller’s unwillingness to provide safe working conditions notwithstanding obvious risk of serious harm, would have been factors favouring a duty on Pack-Tainers to provide a safe system of work in the circumstances. But on the evidence advanced here, the respondent, with all his expertise, did not show that he took any steps to have Pack-Tainers as site-owner provide a gantry, or otherwise make the working conditions safer. The rudimentary co-ordination here involved was provided by the expert independent contractor. There was no other factor justifying either an employer-like duty or any lesser version.

CONCLUSION

37 I agree with the reasons given by Young CJ in Eq for concluding that the Notice of Contention fails and have nothing to add. I agree that this appeal should fail.

38 BRYSON JA: I agree with Young CJ in Eq.

39 YOUNG CJ in EQ: This is an appeal from the decision of his Honour Acting Judge Murray in the District Court pursuant to which he awarded the respondent $730,000 plus costs in respect of personal injury suffered in a factory accident on 26 July 1999.

40 The appeal is against his Honour’s finding of liability. There is no challenge to the quantum.

41 The appeal was heard on 19 November 2004. Mr Ian Harrison SC and Mr Khandhar appeared for the appellant, Mr Lidden and Ms Welsh of counsel appeared for the respondent. The Court was also assisted by the written submissions of Mr Hoeben, QC as his Honour then was and those of Mr Lidden.

42 The respondent was an independent contractor who operated his own business through a corporate vehicle of maintaining Container Carriers and associated equipment including forklift trucks. He was a qualified fitter and machinist who had had special training with the maintenance of container carriers and forklifts with his previous employer.

43 On the day in question, the respondent was doing work at the appellant’s premises being part of the Yennora Wool Store. The appellant had a problem with its Container Carrier. The problem was that one of its twist locks had not disengaged from the container. The container had evidently been in the yard outside and its top was wet.

44 The containers in question were very heavy and bulky articles which could only be moved by forklifts. The appellant only owned one forklift. It was this vehicle that was having problems.

45 To deal with the problem, the respondent needed to get on top of the container. There was a dispute as to how he did this, but the learned trial judge accepted the evidence of the respondent that he manoeuvred the forklift into an appropriate position, mounted its steps and got onto the mudguard of the forklift and in his words, he followed his usual procedure namely, “just hang on to the safety rail and just turn around and sort of put your bum on the container and you’re on.”

46 The evidence included photographs which have been reproduced in the Appeal Books Black 149 et seq which shows that the forklift had steps up from a little above ground level to the front offside mudguard.

47 Once on top of the container, the respondent, who would have been in excess of three metres above ground, walked across it to examine the pins which are at each corner of the container. He says that he was examining the fourth and last pin. He knelt down to test the sensor and “when I went to kneel down my foot slipped on the top of the container which threw me off balance and I fell off on to the concrete.” (Black 18D). He fell onto his back and was severely injured.

48 Part of the respondent’s case was that the appellant failed to provide clean premises and as a consequence the respondent’s shoes became engrained with grease which contributed to his fall. The judge rejected this part of the case.

49 The judge stated his conclusions at paragraphs 46 –56 of his reasons.

50 He said at [46] that the resolution of the case depended upon the consideration of whether there was a breach of duty of care owed to the respondent in expecting him to work on the Container Crane which necessarily had to be done at a height of approximately three metres.

51 His Honour noted that the respondent was an independent contractor, but said it was too simplistic an approach to the problem just to say that he was responsible for his own safety. He considered that the situation equated more closely to that of employer and employee than that of contractor and independent contractor.

52 His Honour then said that he considered he should be guided by what Mason J said in Stevens v Brodribb Sawmilling Company Pty Ltd [1986] HCA 1; (1986) 160 CLR 16 at 31 and distinguished on their facts decisions in this Court of Van der Sluice Craft Pty Ltd v Display Craft Pty Ltd [2002] NSWCA 204 and Dettmer v KC McCraken Pty Ltd [2002] NSWCA 199.

53 In the Brodribb case, Mason J said:

“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 the 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.”

54 The trial judge thus considered that the appellant was obliged to prescribe a safe system of work and had failed to do so.

55 The learned judge rejected the defence of contributory negligence on the facts.

56 The appellant says that the learned judge erred in two respects. First he wrongly stated the content of the duty owed to the respondent. Secondly, he did not carry out the correct analysis of contributory negligence.

57 The respondent has filed a notice of contention seeking to reverse the judge’s finding on the unclean premises issue.

58 Before dealing with the matters of principle that arise on this appeal, I should note that to a layman, the fact that a worker should have to work three metres or so from the ground without safety rail, harness or other safety equipment is appalling. There is some material to suggest that the appellant had a cavalier attitude to safety in the interest of cost cutting. This was not established as a fact. In any event what I have just said is irrelevant to the outcome of this appeal.

59 The appellant puts that the respondent was an expert independent contractor who was injured in the course of performing the very task for which he was retained to perform and over which he had full control and in no sense could he be equated with an employee.

60 It puts that the trial judge’s approach virtually removes any real distinction between employee and independent contractor. Furthermore, it fails to have regard to the requirement that the content of any duty must include the concept of reasonableness. How could it be considered reasonable for the appellant to be fixed with the duty of prescribing a system of work for this expert contractor? Surely it was reasonable for him to perform his work in his own way at least unless he brought any particular problem to the appellant’s attention.

61 Generally speaking, an independent contractor is considered to be in a position where he or she can make proper arrangements for safety and adjust the price for the job accordingly. It is only in rare cases that a court will consider that all the relevant circumstances operate to cast onto the person who retains the independent contractor a duty to care for his or her safety.

62 In the present case, there is no doubt at all that what the respondent was doing was inherently dangerous. There is no doubt that the respondent was seriously injured in the accident. The only question is whether there was a duty on the appellant which was breached so that the appellant is liable to the respondent in damages.

63 The respondent submits that the present is one of those rare cases for a number of reasons.

64 The respondent says that it is most significant that an employee of the appellant, Mr Araya was employed to do the exact same work as the respondent and it was unquestionable that the appellant owed Mr Araya a duty to have a safe system of work. It would be bizarre if the duty owed to the respondent was less.

65 Further, the respondent says that he was required to work within the appellant’s premises because of the size of the machine, he would only bring hand tools with him and would use whatever facilities the appellant had available to perform the required task.

66 The appellant rejects the idea that Mr Araya was employed to do the same work as the respondent.

67 The judge described Mr Araya (whom neither party called, but whom the judge described as being in the appellant’s camp) as a jack of all trades, available to assist the respondent. The respondent in his evidence in chief (Black 16) did say that Mr Araya did much the same sort of work as he himself. However, the whole of the evidence shows that Mr Araya was the appellant’s maintenance man who would do welding work, oxy cutting, the repair of damaged containers and on the odd occasion assist the respondent.

68 It is significant that when the respondent was injured, it was not Mr Araya who completed the job, but one of the respondent’s sub-contractors.

69 I do not see sufficient material to find that Mr Araya was doing the same work as the respondent in any real sense. However, it is certainly true that other persons, being the appellant’s employees, did work on the top of containers. Mr Araya indeed did work on top of containers with welding equipment.

70 Thus the basic question on this aspect of the appeal is whether the appellant owed a duty to the respondent to provide a safe system of work. This in turn raises the issue as to whether it is correct to say that, although the respondent was an independent contractor, the judge was correct in applying the passage from Mason J’s judgment in the Brodribb case which I have already cited.

71 Whilst it is Mason J’s judgment in the Brodribb case that is most frequently cited by judges and counsel, it must be borne in mind that the other judgments in that case stated the relevant duty in differing ways. At page 37 of the report, Wilson and Dawson, JJ emphasised that control was no longer the test, though the proper starting point of the enquiry. Ultimately the matter was to be judged by the degree of discretion left to the worker as to the manner in which the work was to be done.

72 At p 47, Brennan J said that he was generally in agreement with Mason J, though he did not state the duty as strongly. Deane J at p 50 said that questions of duty were to be dealt with as matters of substance and not by applying tags such as employee or independent contractor.

73 I should note at the beginning, that one starts with the proposition that the factory occupier or the like does not ordinarily owe the same duty to look after independent contractors as it does for its own employees. The law usually takes the view that the independent contractor will assess the situation and provide for his or her safety taking into account its cost when giving the quotation for the work. However, the law has made it clear that, in some situations, that duty does attach. The point of principle in the instant appeal is as to whether this is one of those exceptional cases.

74 The present case in no way involves an entrepreneur who hires a bevy of independent contractors whom he manages almost in the same way that he might manage employees. Here there was no integrated organized project involving the worker and other people under the entrepreneur’s control. This worker was a skilled person doing a solo task though he was working in the midst of regular employees in the appellant’s organization and with the appellant’s equipment. Much of the reason for this was the size of the machinery and that the machinery was physically located in the appellant’s premises.

75 Mr Harrison SC pointed to the significant evidence that was elicited from the respondent in cross-examination at Black 31W:

"Q. But once they pointed out a forklift to you that was broken they wouldn’t tell you how to fix it or when to fix it, unless they needed it urgently, they would tell you where to go and you would go and do it in your own way, is that correct?

A. Yes."

76 The general background suggests that this case is not in the same category as Brodribb.

77 However, the situations where the relevant duty may attach are not limited to cases which fit within the facts of Brodribb.

78 Thus, in TNT Australia Pty Ltd v Christie [2003] NSWCA 47 at [42], Mason P said, after quoting Brodribb, that employment is not the only circumstance that can generate a stringent duty of care in relation to a safe system of work.

79 There have been a number of cases on the present point in recent times; see eg Paddison v Ultimate Image Pty Ltd [2004] NSWCA 410, but most do not assist on the facts of the present case. I will thus only cite one more authority.

80 In Rockdale Beef Pty Ltd v Carey [2003] NSWCA 132, Ipp JA, with whom Mason P and McColl JA agreed did not confine the principle to cases akin to those described in Stevens, but said that one must judge the case in the context of the totality of the relationship between the parties.

81 At [84] of the Rockdale case, Ipp JA said that:

“such a duty may arise in circumstances where there is no need for the entrepreneur to give directions as to when and where the work is to be done and to co-ordinate the various activities, but where, for other reasons, reasonable care on the part of the entrepreneur affects the way in which the work is to be undertaken and the safety of the work site, and where other considerations... such as vulnerability, inequality of bargaining power, control, and the other manifold factors that the law recognizes as being relevant to the existence of a duty of care are present.”

82 At [88]–[92] of the Rockdale case, Ipp JA made it clear that he considered it a most relevant matter when assessing whether that case was one for the stringent duty that although he was an independent contractor, Mr Carey had worked for no-one apart from Rockdale for many years, Rockdale had control over the risk, Mr Carey was not really in a position to protect himself and was vulnerable in that sense. Mr Carey was as vulnerable as any employee in the circumstances of the case.

83 Rockdale was a case of a semi literate ex-employee who had been rehired on a cattle station as an independent contractor. It bears little relation to the position of the respondent. At first blush, it is difficult to see how the extended view of the applicable principle taken in Rockdale assists the respondent. Indeed, Ipp JA at [89] actually said that Mr Carey’s position was to be contrasted with that of an electrician, plumber or roof tiler who enters premises to carry out skilled work.

84 Mr Lidden submits that within the considerations examined in Rockdale, the respondent should be considered a vulnerable person. He was a former employee of the manufacturer of the forklift. The appellant found the manufacturer’s service too expensive and had cost-cut by taking on the respondent as an independent contractor. He says that the respondent was as much at the mercy of the appellant as to working conditions as any employee. He could not demand that a gantry or other safety equipment be provided as was provided in similar factories.

85 Mr Lidden says that a gantry would have provided a safe system. It was unreal to expect a single worker with hand tools to provide a gantry which would probably have to be an integral part of the premises.

86 However, the evidence shows that the respondent never had any discussion with anyone at the appellant’s premises suggesting that a gantry should be provided. Indeed, an officer of the appellant said that if a cage or the like had been asked for, it would have been provided. The trial judge did not accept this witness on other matters, but the fact remains that one could not find that had the respondent requested safety equipment, it would not have been provided.

87 Mr Harrison agrees that had the evidence been that the controller of the premises had put in position a phalanx of impediments in the way of the respondent so that the court could see that the physical state of the premises and the way the respondent would have to work was really solely in the control of the appellant, the case would be very different.

88 I agree with Mr Harrison’s submission. I cannot agree with Mr Lidden that this respondent should be regarded as vulnerable in the sense used in Rockdale.

89 A significant piece of evidence, however, is that in practice not only was the worker permitted to seek the help of the appellant’s employees, but that, he was expected to do so.

90 The inference might be drawn (it did not occur to the trial judge to draw it and he may not have been asked to do so) that employees were duty bound to respond favourably to such a request as if the worker was a superior officer.

91 Although this matter is of some significance, I do not see, even if the inference was drawn, that in the totality of the material as to the circumstances of this worker it is enough to put him in the protected category.

92 Finally, Mr Lidden put a series of propositions which can be summarized as follows:

(a) Employees of the appellant such as Mr Araya were like the respondent, expected to work on the top of containers three metres off the ground and were exposed to the same risks as the respondent;

(b) Those employees were entitled to a safe system of work;

(c) Those employees were entitled to a gantry or other safety equipment;

(d) The respondent was entitled to expect that there would be in place the same safety equipment;

(e) Thus the appellant had a duty to provide the equipment.

93 There are a number of answers to this conjoint submission. First, the respondent in fact could not have expected the equipment because he knew it was not there and never asked that it be provided.

94 Secondly, the matters raised do not go to the issue as to whether there was a duty at all.

95 Thirdly, the submission ignores the basal proposition that the respondent as an independent contractor was entitled as a matter of law (ignoring, of course, economic factors) to consider the workplace, assess its safety, provide his own equipment or demand that the owner provide it and refuse the job if the owner did not do so.

96 Accordingly, this first aspect of the appeal should succeed.

97 It is thus unnecessary to consider contributory negligence and the notice of contention. However, I will briefly do so.

98 The appellant says that the judge asked himself the wrong question on the issue of contributory negligence. The key question was, whether the respondent had exercised reasonable care for his own safety: see Joslyn v Berryman [2003] HCA 34; (2003) 77 ALJR 1233 [16].

99 The appellant says that the risk of a person falling off a container from a height of three metres was so obvious that it was incumbent on the respondent to do something about it.

100 The respondent in fact did nothing either to bring the problem to the attention of the appellant or to attempt to remedy the problem himself.

101 The appellant suggests that the finding should have been 50% contributory negligence.

102 The respondent rightly says that the onus was on the appellant to prove contributory negligence.

103 Further, it is correct as the respondent has submitted that there was no material on which a finding could have been made that some safety harness could have been attached which would have prevented the respondent’s fall or lessened the severity of his injuries.

104 However, it is extremely difficult to gainsay the submission of the appellant that what the respondent was doing was obviously extremely dangerous and he took no precautions at all for his safety.

105 The respondent complains that the appellant was at fault for not recognizing this and dealing with it. However, the same must be said of the respondent. He was doing something inherently dangerous and took no precautions for his own safety.

106 At Black 52, the respondent said that as he checked the four corners of the container in turn, he found that he was working in wet and slippery conditions.

107 He was asked why it was that he kept going if it was wet and slippery up there. His reply was that he had been told that he had to fix the forklift urgently "they said, ‘Get it going, we want it going right now!’ ".

108 He was then asked why he did not get down on his hands and knees, to which the respondent replied that that was exactly what he was doing when he fell.

109 Mr Lidden made great play on the urgency factor and asked us to consider that there were trains and trucks waiting outside, being held up whilst the forklift and container were disengaged. This was an overstatement: there was no evidence of any train or truck being inconvenienced on the day in question. However, there was the evidence I have set out that the respondent was told it was an urgent task.

110 However, even with an urgent task, where the work to be done is dangerous, unless lives are at stake, there is no good reason to sacrifice safety.

111 In written submissions the appellant put that there must be contributory negligence of 50%. Obviously Mr Harrison, with good reason, thought this moderate, but agreed that that was the extent of the submission.

112 If it were relevant, I would accept the appellant’s submission on this aspect of the case.

113 As to the notice of contention, the respondent says that the forklift machine was known to the workers as “Exxon Valdez” because of the oil and grease it exuded. Both the respondent and Mr Boyd, an officer of the appellant, labelled the forklift “a lemon”.

114 Mr Lidden submitted that although the judge was unable to find that there was any oil or grease on the respondent’s boots, there was really an inevitable inference to be drawn that the respondent’s boots were greasy.

115 He says that, although he has a finding against his client on this point, the finding is an inference to be drawn or not drawn from the primary facts and the judge’s finding has not the same significance as if it had been one of primary fact.

116 There was a fair amount of evidence tendered on this issue, though it is scattered throughout the transcript.

117 At [45] of his judgment, the learned trial judge said:

"I am not satisfied that the condition of the premises led to the Plaintiff sustaining his accident. The plaintiff himself was unable to say whether the cause of his slipping was due to any collection of grease on his boots. The evidence on the issue as to the general state of cleanliness of the premises is inconclusive.”

118 Before making that finding, his Honour had, at [42] and following, analysed a considerable part of the evidence on this issue. In particular he noted that Mr Burns who took over the work from the respondent had said that the container carrier itself was always covered with oil and one had to be careful working around it.

119 However, the respondent’s own evidence on the issue was not that strong. At Black 18 his counsel asked him:

"Q. You told me that the condition of the top of the container was wet, the condition of the soles of your shoes please.

A. Wet and probably slippery, dirty from the oil that’s around.”

120 The significance of the word "probably" was not explored at the trial, but it gives the flavour of supposition.

121 At Black 35, the respondent said that if the area in which he was working was too filthy, he tried to clean it up himself. There was no suggestion that he did any such cleaning on the day in question.

122 At Black 44, in cross-examination, the respondent said that the top of the container was wet, but did not look slippery. However, as I have already noted, at Black 52, he did say that as he checked the corners of the container he found that he was working in wet and slippery conditions.

123 The respondent also gave evidence at Black 32 that he had available some degreasing compound, but he only used that at the end of the day so as not to soil his truck as the solvent tended to eat into the rubber of his boots.

124 I do not consider that there is sufficient material to suggest that the trial judge was wrong on this aspect of the case or that I should draw the inference that Mr Lidden seeks me to draw.

125 Accordingly, the matters contained in the notice of contention fail.

126 Thus I would allow the appeal with costs, set aside the orders of the trial judge and substitute an order that there be a verdict for the defendant with costs below and on appeal. The respondent, if eligible, should have a certificate under the Suitors Fund Act, 1951.

127 I am not aware as to whether any part of the verdict was paid over to the respondent. If an application for restitution is to be made it should be made as soon as possible.

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LAST UPDATED: 08/03/2005