FOX v LEIGHTON CONTRACTORS PTY LTD & ORS [2008] NSWCA 23 (7 March 2008)

Last Updated: 10 March 2008

NEW SOUTH WALES COURT OF APPEAL

CITATION:
FOX v LEIGHTON CONTRACTORS PTY LTD & ORS [2008] NSWCA 23


FILE NUMBER(S):
40820/06

HEARING DATE(S):
7 December 2007

JUDGMENT DATE:
7 March 2008

PARTIES:
Brian Allan Fox - Appellant
Leighton Contractors Pty Ltd - First Respondent
Warren Stewart Pty Ltd - Second Respondent
Downview Pty Ltd - Third Respondent

JUDGMENT OF:
Giles JA McColl JA Basten JA

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 1466/05

LOWER COURT JUDICIAL OFFICER:
Gibb DCJ

LOWER COURT DATE OF DECISION:
14 December 2006


COUNSEL:
M J Cranitch SC/R C Tonner - Appellant
W S Reynolds/D Blackah - First Respondent
R G Gambi - Third Respondent

SOLICITORS:
Walkom Lawyers - Appellant
Moray & Agnew - First Respondent
Wotton & Kearney - Third Respondent

CATCHWORDS:
OCCUPATIONAL HEALTH AND SAFETY – obligation to provide safety induction training – [<i>Occupational Health and Safety Act</i>] 2000 (NSW) s 39A – Occupational Health and Safety Regulation 2001 (NSW) reg 213
TORTS – negligence – duty of care of principal contractor to subcontractors – building and construction work – duty of principal contractor to maintain safe workplace – duty to take reasonable care to ensure safety of subcontractor – whether non-delegable duty – failure to ensure subcontractor underwent safety induction training – extent of direct supervision of sub-contractors
TORTS – negligence – contributory negligence – obligation of plaintiff to take reasonable steps for own safety
TORTS – negligence – contribution between joint tortfeasors

LEGISLATION CITED:
[<i>Law Reform (Miscellaneous Provisions) Act</i>] 1946 (NSW), s 5
[<i>Occupational Health and Safety Act</i>] 2000 (NSW), ss 32, 39A, 46
Occupational Health and Safety Regulation 2001 (NSW), regs 213, 215, 217

CATEGORY:
Principal judgment

CASES CITED:
[<i>Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Cooperative Assurance Co of Australia Ltd</i>] [1931] HCA 53; (1931) 46 CLR 41
[<i>Ghunaim v Bart</i>] [2004] NSWCA 28 (at [44])[2004] NSWCA 28; ; (2004) Aust Torts Reports 81-731
[<i>Hollis v Vabu Pty Ltd</i>] [2001] HCA 44; 207 CLR 21
[<i>Jones v Mortgage Acceptance Nominees Ltd</i>] (1996) 63 FCR 418
[<i>Leichhardt Municipal Council v Montgomery</i>] [2007] HCA 6; (2007) 81 ALJR 686
[<i>Maricic v Dalma Formwork (Australia) Pty Ltd</i>] [2006] NSWCA 174
[<i>Northern Sandblasting Pty Ltd v Harris</i>] [1997] HCA 39; 188 CLR 313
[<i>Stevens v Brodribb Sawmilling Co Pty Ltd</i>] [1986] HCA 1; (1986) 160 CLR 16

TEXTS CITED:


DECISION:
(1) (a) Allow the appeal and set aside order 2 of the trial judge dated 14 December 2006 dismissing the claims made by the plaintiff, Brian Allan Fox, against the first defendant, Leighton Contractors Pty Ltd and the third defendant, Downview Pty Ltd;[<br>](b) in lieu thereof, give judgment for the plaintiff against the first and third defendants in the amount of $472,562.[<br>][<br>](2) (a) Set aside order 5 below in relation to the costs of the first and third defendants;[<br>](b) order that the first and third defendants pay the plaintiff’s costs of the trial.[<br>][<br>](3) Order that the first and third respondents pay the appellant’s costs of the appeal.[<br>][<br>](4) Dismiss the appeal with respect to the second respondent with no order as to costs.[<br>][<br>](5) On the cross-appeal: (a) set aside orders 4 and 6 below dismissing the cross-claim and awarding costs in respect thereof; [<br>](b) order that Downview Pty Ltd pay 80% of the judgment debt incurred by Leighton Contractors Pty Ltd to Brian Allan Fox, and[<br>](c) order that Downview Pty Ltd pay Leighton Contractors Pty Ltd’s costs of the cross-appeal.[<br>][<br>](6) Grant a Suitors’ Fund certificate to: (a) the first and third respondents in respect of the costs of the appeal;[<br>](b) Downview Pty Ltd in respect of the cross-appeal unless disqualified pursuant to s 6(7) of the Suitors’ Fund Act 1951 (NSW).



JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40820/06

DC 1466/05

GILES JA

McCOLL JA

BASTEN JA

7 March 2008

Brian Allan FOX v LEIGHTON CONTRACTORS PTY LIMITED & ORS

Headnote

On 7 March 2003, the appellant was injured on the site of major building works at the Hilton Hotel in Sydney. The principal contractor carrying out the works was Leighton Contractors Pty Ltd (“Leighton”). Leighton had contracted with Downview Pty Ltd (“Downview”) to carry out concreting work. Downview engaged a business known as Aggforce Concrete, which supplied a pump truck with a driver and an offsider to operate it. The driver was Mr Warren Stewart, and the offsider was the appellant, Mr Brian Fox. Neither Mr Stewart nor the appellant were employees of Aggforce Concrete; both were independent contractors.

Clause 32.1 of the contract between Leighton and Downview stated that all persons to be engaged in work at the site must attend an induction which was to be conducted by Leighton, and that Downview must provide Leighton with written details of secondary subcontractors who were to be engaged in work on the site. The clause also provided that the induction to be conducted by Leighton did not relieve Downview of its responsibility to properly induct persons engaged to perform the work as to particular procedures and requirements relevant to that work.

The appellant was injured during the cleaning of pipes which had been used to pump cement from level 4 to level 12. The cleaning operation required that a polyurethane ball be blown down the pipe using compressed air. The appellant was injured when the bottom end of the pipe, which was not properly secured, swung and struck him on the head. The appellant had not undergone any safety induction training at the site before commencing work.

The appellant brought proceedings in the District Court against Leighton, Downview and Warren Stewart Pty Ltd, the company which had supplied the services of Mr Stewart. The appellant was successful against Warren Stewart Pty Ltd, but unsuccessful against Leighton and Downview. The present appeal was brought against the judgment given by the trial judge in favour of Leighton and Downview. Leighton filed a cross-appeal seeking contribution from Downview.

The issues for determination were:

(i) whether Leighton was liable for the injury to the appellant;

(ii) whether Downview was liable for the injury to the appellant;

(iii) whether the appellant was contributorily negligent; and

(iv) whether Downview should be liable for contribution to Leighton.

The Court held, allowing the appeal and cross-appeal in part:

(per Basten JA, Giles and McColl JJA agreeing)

In relation to (i)

1. The obligation of a principal contractor to provide a reasonable level of safety for subcontractors is now well-recognised. The obligation to ensure that induction training is provided should properly be seen as part of Leighton’s general law duty of care to subcontractors and others coming onto a construction site within its control: [48].

Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16; Northern Sandblasting Pty Ltd v Harris [1997] HCA 39; (1997) 188 CLR 313; Leichhardt Municipal Council v Montgomery [2007] HCA 6; (2007) 81 ALJR 686; Maricic v Dalma Formwork (Australia) Pty Ltd [2006] NSWCA 174, referred to.

2. Neither the contractual provisions nor the Occupational Health and Safety Regulation provided support for Leighton’s contention that its obligations of training and supervision were delegated to Downview: [48].

3. The trial judge should have found that Leighton owed Mr Fox a duty of care and that, by allowing Mr Stewart and him to work on the site without either having undergone induction training, it was in breach of its duty: [49].

4. Leighton cannot be said to have a non-delegable duty to persons coming onto the site to take care for their safety. To hold otherwise would be to import an obligation akin to that of the employer to retain a degree of control which is inherently inconsistent with the relationship between a principal and an independent contractor: [52]-[53].

Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16; Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21; Leichhardt Municipal Council v Montgomery [2007] HCA 6; (2007) 81 ALJR 686, applied.

5. It should be accepted that induction training would have addressed cleaning out operations in relation to concrete pumping: [56]. The conclusion that the failure to provide induction training contributed to the accident was an inference properly available on the evidence and one which should have been drawn: [58], [60].

In relation to (ii)

6. Downview failed to comply with its obligation under cl 32.1 of its contract with Leighton to provide written details to Leighton of persons that it proposed to engage to work on the site and to induct persons engaged to work on the site “as to particular procedures and requirements relevant to that work”: [63].

7. Downview had a general law obligation to those participating in carrying out its contracted work to conduct operations safely and to do that it was obliged to contract with competent and properly trained operators. By leaving it to its own subcontractors to engage other labour and equipment, it effectively abandoned its responsibilities in that respect: [70].

8. It may be inferred that the haphazard manner in which Downview undertook its operations was directly responsible for the failure of the appellant and Mr Stewart to be given induction training: [68]. The conduct of Downview in breach of its general law duty materially contributed to the accident: [71].

In relation to (iii)

(per Giles and McColl JJA)

9. In the circumstances, reasonable care for his own safety did not require the appellant to raise the necessity for induction before he went onto the site, nor to decline to take on the work because he did not have a green card. Leighton and Downview did not establish that the appellant’s conduct constituted a departure from the standard of care of a reasonable worker in the circumstances: [6]-[7].

(per Basten JA)

10. Knowing that he should have had induction training on the site in relation to health and safety issues, the appellant’s omission to make any inquiries in that regard involved a degree of failure on his part to take reasonable steps for his own safety: [79]. A just and equitable attribution of responsibility to the appellant would be 15%: [81].

In relation to (iv)

(per Basten JA, Giles and McColl JJA agreeing)

11. In the circumstances, the proper course is to consider Leighton’s claim for contribution as a joint tortfeasor: [79]. Although Leighton owed a duty to the appellant to provide appropriate induction training before he commenced work on the site, its failure to do so was substantially a result of Downview’s failure to organise its subcontractors in a manner which was required by its contract with Leighton. Downview should be liable for a contribution in the proportion of 80% of the damages payable to the appellant by both respondents: [86].

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40820/06

DC 1466/05

GILES JA

McCOLL JA

BASTEN JA

7 March 2008

Brian Allan FOX v LEIGHTON CONTRACTORS PTY LIMITED & ORS

Judgment

1 GILES and McCOLL JJA: Save in relation to contributory negligence, we agree with Basten JA.

2 The primary judge’s reasons dealing with the issue of contributory negligence were expressed to be contingent on her Honour having found a breach of duty against either the first or third respondents. In that eventuality she stated:

“... It would have been necessary to consider the degree of the plaintiff’s contributory negligence, having regard to his experience in cleaning out concrete pipes and as linesman, and his knowledge that the pipe was not in fact attached to the waste bin. I would have found that the plaintiff was liable for contributory negligence in at least 25% and the evidence may have justified a greater percentage”.

3 This was very much the expression of a contingent view, without explanation of how her Honour arrived at the percentage. This Court should come to its own view, untrammelled by her Honour’s contingent finding.

4 Leighton and Downview bore the burden of proving, on the balance of probabilities, that the appellant had been guilty of contributory negligence. It was incumbent on them to establish that an act or omission on the appellant’s part constituted a departure from the standard of care of a reasonable worker in the circumstances and conditions in which he was required to work: Ghunaim v Bart [2004] NSWCA 28; (2004) Aust Torts Reports ¶81-731 (at [55], [79]).

5 We agree with Basten JA that contributory negligence was not established in respect of the appellant’s failure to move to a position of greater safety. He did not have the knowledge or experience whereby independent awareness of the danger of the swinging pipe meant that in taking reasonable care for his own safety he should have done more than Mr Stewart told him to do, to Mr Stewart’s apparent satisfaction.

6 Basten JA finds the failure to take reasonable care for his own safety in failing to inquire into the induction training which Mr Fox knew he should have had before working on a commercial building site. We have some doubt whether that was within the contributory negligence particularised by Leighton and Downview, but if it was we respectfully take a different view. The appellant was the offsider on the concrete pumping truck, which was brought in on the one occasion. His knowledge that those on the site should have been inducted and should have obtained green cards was not explored; it can be inferred that he understood induction would involve general safety matters, but not that it would be particularly directed to the concrete pumping and his part as the offsider. His role was that of a semi-skilled labourer acting on the instructions of Mr Stewart. We do not think that reasonable care for his own safety in the particular circumstances called for Mr Fox to raise the necessity for induction before he went onto the site, let alone decline to take on the work because he did not have a green card.

7 In our view Leighton and Downview did not establish that the appellant’s conduct constituted a departure from the standard of care of a reasonable worker in the circumstances to which he was exposed at the Hilton construction site on 7 March 2003.

8 The orders proposed by Basten JA, which accept that his Honour’s view in relation to contributory negligence is not a majority view, should be made.

9 BASTEN JA: On 7 March 2003 major building works were being carried out on the Hilton Hotel in Sydney. The site was in the occupation of Leighton Contractors Pty Ltd (“Leighton”) which was the principal contractor carrying out the works. Access to the site was from level 4 (which was below street level). On 7 March, concrete was being poured on level 12.

10 Leighton had contracted with Downview Pty Ltd (“Downview”) to carry out concreting, including the provision of reinforcing and formwork.

11 In order to undertake the concrete pour proposed for 7 March, it was necessary for Downview to obtain a “pump truck” in order to pump the concrete from level 4 to level 12. Those who had been responsible for undertaking this operation on previous days were apparently not available on 7 March. An alternative service was obtained through a business known as Aggforce Concrete, which supplied a pump truck, with a driver and offsider to operate it. The driver was a Mr Warren Stewart whose offsider was the plaintiff, Mr Brian Fox, who is the appellant in these proceedings. Neither Mr Fox nor Mr Stewart was employed by Aggforce Concrete, but were themselves independent contractors. (Parts of the evidence indicated that the truck was supplied by Aggforce Concrete, but the services of the men were supplied by a separate entity known as “Shark Shire Pumping”. Both business were commonly owned and run by a Mr John Martin and a partner. Nothing turned on the precise identity of the supplier of labour.)

12 On the afternoon of 7 March, two truckloads of cement were pumped from level 4 to level 12, following which it was necessary to clean out the pipes. This was properly undertaken by inserting a polyurethane ball, known as a “sponge”, at the upper level and blowing it down the pipe using compressed air. At the time of the cleaning operation, Mr Stewart and Mr Fox were at the bottom end on level 4. In circumstances which will be described further below, the bottom end of the pipe, not being properly secured, swung off the empty bin on which it had been placed, striking Mr Fox on the head. He received significant injuries in the accident.

13 Mr Fox brought proceedings in the District Court against Leighton, Downview and the company, Warren Stewart Pty Ltd, which supplied the services of Mr Stewart. At trial, he was successful against Warren Stewart Pty Ltd and recovered damages assessed at $472,561.95. He was unsuccessful, however, against Leighton and Downview. The present appeal was brought against the judgment given by the trial judge for Leighton and Downview. Each, it was contended on the appeal, should have been found liable to the appellant.

14 As will be noted below, the contractual relationships between the persons working on the building site were complex and to an extent haphazard. This appears to have affected both the identification of parties to the proceedings and the manner in which the proceedings were run. Similar factors affected the present appeal. Thus, the only defendant found liable at trial, Warren Stewart Pty Ltd, did not plead contributory negligence on the part of Mr Fox. The other two parties did plead contributory negligence, but unfortunately her Honour made no finding as to the appropriate assignment of responsibility between the appellant and the respondents, contenting herself with the comment that contributory negligence should be assessed at “at least 25%, and the evidence may have justified a greater percentage”: Judgment, p 43V. (The trial judge did not adopt the convenient practice of numbering paragraphs in her judgment.) When the appeal came on for hearing, it was not entirely clear what position the parties took in respect of contributory negligence, in the event that the appellant was successful on the question of liability. The parties were given an opportunity within seven days to advise the Court whether they would accept the assessment of 25% for contributory negligence and, in the event that they did not, each party was given an opportunity to make submissions in respect of that issue. Secondly, there was raised in the course of the appeal an issue as to contribution as between Leighton and Downview, should each be held liable. Leighton, which had filed a cross-claim for contribution in the Court below, was given leave in the course of the hearing to file a cross-appeal in relation to contribution against Downview. Each filed further written submissions after the hearing with respect to that issue.

Circumstances of accident

15 Her Honour found, and it was not in dispute on the appeal, that the accident had two immediate causes, each of which involved a failure to take reasonable care for the safety of the appellant. The first contributing cause was the placement of material in the pipe, at the upper end, which was to be forced through by compressed air, so as to remove any residual concrete. This exercise was usually undertaken by means of a sponge designed for the purpose. That course was attempted, but the sponge, possibly being too small for the five-inch pipe which had been used to pump the concrete, slid through without the desired effect. The worker operating on level 12 then took a cement bag, filled it with insulation material (Dacron) and sought to blow that down the pipe. It appears to have got stuck and required greater air pressure to force it through. Although there was no expert evidence called by any party, it was accepted that this action led to the lower end of the pipe being flung off the bin when the stuffed cement bag was finally forced through.

16 The second contributing cause was that the lower end of the pipe was not secured over the bin into which the residual concrete was intended to be forced. The failure to secure the lower end of the pipe was accepted by her Honour as the responsibility of those working in the vicinity of the pipe on level 4.

17 The key players in the cleaning process were Mr Quentin (Quincy) Still, who was operating with the compressed air on level 12 and, on level 4, the appellant and Mr Warren (Wazza) Stewart. All of them were independent contractors. In addition, there was a forklift driver employed by Leighton who was responsible for moving the bin under the end of the pipe on level 4. The appellant, though not Mr Stewart, asserted that there was a foreman employed by Leighton on level 4 at the time of the cleaning operation. Her Honour found that there was no foreman present at the relevant time, although her Honour appears to have accepted that there was a fourth person on level 4, probably a labourer employed by Leighton.

18 Determining at trial who was responsible for which operations on 7 March was by no means an easy task. Only three witnesses were called to give evidence, namely Messrs Still, Fox and Stewart. All of them, including Mr Stewart who was the principal of the second defendant, was examined by counsel for the appellant. None was in a supervisory position. Neither Leighton nor Downview called anyone to give evidence as to who was responsible for particular activities, although both Leighton and Downview tendered documents, which provided some indication of the legal responsibilities as between each other.

19 On 28 October 2002, Downview (through its representative Mr Michael Raines) wrote to Leighton (referred to as “LCPL”) in relation to the project, providing a tender at a specified price for work which included the following:

“Supply and construct all formwork, concrete pumps and all required labour to place and finish concrete to correct levels, keep our work area clean, strip, make good and remove all formwork upon completion of works, all work carried out as per plan and specification and or as directed by LCPL.

LCPL to provide all survey and levels including set out, bin for rubbish, place to wash out after concrete pours, all necessary permits for concrete pumping, concrete, reinforcement, any pre or post stressing by others, any permanent materials, scaffolding, place to store materials while work is in progress, parking, amenities, all safety requirements, traffic control, water and power, and all hoisting facilities. (BB 77-78)

20 The written contract between Leighton and Downview ran to some 70 pages (including annexures). Pursuant to the contract, Downview was not permitted to assign or novate the whole or any part of the contract, nor was it permitted to subcontract the whole or any part of the work under the contract, without Leighton’s written approval. In particular, cl 13.1 provided, in relation to subcontracting:

“13.1 ... Approval to subcontract shall:

(a) be at the discretion of Leighton and may be conditional;

(b) not be given where the result would be pyramid subcontracting; and

(c) not relieve the Contractor from any liability or obligation under the Works Contract.

...

13.2 Any Secondary subcontractor not approved in writing by Leighton shall not be permitted to enter upon the Site and the Contractor shall not be entitled to payment for any work under the Works Contract which has been performed by a Secondary subcontractor not approved in writing by Leighton.”

21 Clause 19 of the contract required that Downview insure against liability for injury to persons employed by it and further required Downview to ensure that secondary subcontractors were “similarly insured”.

22 Special condition 6 of the contract referred to Leighton’s health and safety plan and required Downview to establish its own health and safety plan which:

“(c) shall detail how the Contractor intends to comply with the requirements of Leighton’s Health and Safety Plan to the extent that it relates to the work under the Works Contract;

(d) shall include Safe Work Method Statements ... detailing the work methods and/or processes to be employed by the Contractor, their related risks and hazards and how the Contractor intends to control such risks and hazards associated with the work methods and/or processes ... .”

23 A work method statement provided by Downview in relation to “concrete early works”, dated 19 December 2002, was rejected by Leighton as inadequate. In particular, the letter from the project manager to Mr Raines of Downview stated:

“You are directed to comply your WMS with requirements of OHS Act 2000 and OHS Regulation 2001.”

A statement of the same date, and given in evidence, identified (as part of the material to be complied with) the “Code of Practice Concrete and Concrete Pumping” (BB 82). In relation to concrete pumping, the statement noted as a control measure, “provide safe operation for pumps ensuring that the work is done safely” (BB 87).

24 The importance of compliance with safety and health obligations was expressed in cl 6.4 which said that any “serious failure” of the contractor to meet such obligations will be treated as “a serious breach” of the contract. On the day following the injury to the appellant, based on serious safety breaches, Leighton terminated the contract, requiring Downview to remove all of its employees and plant and equipment by 3pm the following afternoon.

25 Part of the process of maintaining safety on site was by way of a site induction, carried out pursuant to cl 32.1 of the contract, which relevantly provided:

“32.1 All persons to be engaged on Site on the work under the Works Contract must attend a Site Induction prior to commencing work on the Site. The Contractor shall provide Leighton with written details of persons that the Contractor or its Secondary subcontractors propose to engage on Site on the work under the Works Contract. A person’s details shall be provided to Leighton in the form required by Leighton not less than 5 Business Days prior to the date that the Contractor or its Secondary subcontractor proposes that the person will commence work on Site.

The Site Induction to be conducted by Leighton will outline general industry and site specific procedures, occupational health and safety issues and environmental, industrial relations and quality system requirements. Each person will receive safety guidelines and will be required to sign an undertaking to follow the safety guidelines at all times. ...

The Site Induction to be conducted by Leighton is intended to outline procedures and requirements that will generally apply to all persons working on the Site and does not relieve the Contractor of its responsibility to properly induct persons engaged to perform the work under the Works Contract as to particular procedures and requirements relevant to that work.”

26 It is clear that Downview subcontracted concreting and concrete pumping work. Mr Raines, the Downview representative, wrote to Leighton on 13 March, following the accident, stating:

“Further to our telephone conversation today, I am not responsible for notifying workcover, because I am not the employer of the injured workcover [sic].

For the record, I would like to clarify the details regarding the accident:

On March 6, 2003, I rang Toro Construction, my pumping subcontractor informing him about the pour on Friday, 7-3-03. They have been doing all previous concrete pumping with us without any problems. They have been inducted by LCPL.

On, March 7, the day the accident happened, I arrived from my lunchbreak, pumping had already started. Quincy from Toro Construction was there. I left them, and went to the other parts of the job. On my way home, I had a phone call notifying me about the accident. It’s only then that I found out that Toro Construction used another Pumping Contractor because his pump was held up on another job. I did not know anything about this Pumping Company who employs the injured worker.”

27 The reference to “Toro Constructions” was an error. It appears that three of the workers who had been involved with the concreting, including Mr Still, had been inducted by Leighton and had provided on their “induction record forms” that their employer was Toro Constructions, giving the employer’s contact as “Jason”. One of the three men was Jason Cook, but Mr Still denied that he was the person intended as the employer’s contact at Toro Constructions: Tcpt, 30/10/06, p 50B. (Nevertheless, he appears to have signed the forms as such.) Toro Constructions Pty Ltd was originally joined as the fourth defendant in the proceedings in the District Court, but was dismissed from the proceedings by agreement when the appellant was satisfied that it had no involvement in the provision of services to Downview. Mr Still said he was an associate of Jason Cook and believed that they were both subcontracted to Downview: Tcpt, p 80P-W. How Downview accounted for the work and whether it made any payments to those contracted to do the work was unclear.

28 Mr Still gave evidence that the usual pump truck operator was a person called Jamie. It was he who was not available on 7 March. He gave the following evidence in relation to what occurred in that respect (Tcpt, p 68):

“Q. Do you know who organised the concrete or did somebody else tell you?

A. Well, somebody from Downview would let Leightons know how much they want.

...

Q. So someone from Downview asks you if you’re ready and then you say to the person at Downview that you’re ready for the concrete?

A. Yes.

Q. Who was that person who would speak to you from Downview?

A. A lot of the times it was Michael [Raines] or one of his workers if he wasn’t there.

Q. Separate to the truck that brought the concrete was the pump truck, correct?

A. Yes.

Q. Do you know who organised the pump truck?

A. Myself or Jason but Jason was the only one I’ll – that I can’t say I organised it. I made a few phone calls and he made a few phone calls and that’s– the pump just showed up.

...

Q. Apart from the day of Mr Fox’s accident, had you used the same pump on previous days?

A. Yes.

Q. But on this particular day that pump was not available?

A. That’s right.

Q. You phoned Mr Martin, didn’t you, John Martin?

A. Yeah.

Q. You asked him to organise a pump?

A. Yeah.

Q. You know that he did organise a pump?

A. Well, yeah, at the end of – his pump showed up.

Q. He also provided Mr Stewart to drive the pump truck, isn’t that correct?

...

A. Wazza, yes.”

29 Mr Martin was apparently one of two principals of a business known as “Shark Shire Pumping”: as noted above, there was some uncertainty as to whether that business provided the services of Messrs Stewart and Fox, or merely the truck. Mr Fox thought that his services were provided by Aggforce Concrete, a different business operated by the same individuals. Nothing turns on that, except that Toro Constructions Pty Ltd apparently had nothing to do with the circumstances that gave rise to the accident. At no stage were Mr Martin’s companies joined in the proceedings.

30 The activities of the cleaning-out were dealt with by each of the three witnesses, but where their evidence differed the trial judge accepted the evidence of Mr Stewart in critical respects. Her Honour accepted that the three men, Messrs Still, Stewart and Fox, were all on level 4 when the pump was disconnected and the end of the line placed on the waste bin prior to the cleanout operation. Mr Still then went up to level 12 and proceeded to force first a polyurethane sponge and secondly the cement bag filled with insulation material down the pipe, using compressed air which was available via a pipe from level 8. Messrs Still and Stewart communicated by telephone. Her Honour accepted that Mr Stewart was primarily responsible for the cleanout operation at level 4. Prior to the accident, he told Mr Fox to “step aside” and said that the appellant had walked some 30 feet away from the bin. Her Honour stated (Judgment, p 17M):

“I find that the plaintiff was standing on his own, having moved away at Mr Stewart’s direction, when he (the plaintiff) was struck by the pipe as it whiplashed. In the course of that whiplash, the Dacron that had been stuffed in the concrete bag was propelled high on the wall, where it remained and was photographed.”

31 There was, perhaps, some irony in the fact that Mr Stewart, who remained standing near the bin, escaped injury.

Liability of Leighton

32 The circumstances in which one party will be responsible for the negligent acts of a third party is determined by the law in accordance with principles which are neither precise nor clearly defined in terms of underlying policy. A commercial enterprise may owe a duty of care to a third party directly, or it may be vicariously liable for the acts of persons by whom it undertakes its operations. Thus, a building contractor in control of a construction site may owe a duty of care to all those coming onto the site to take reasonable steps to ensure their safety. Where an injury occurs through the negligent act of an employee, the employer will be held responsible; where the negligent act was that of an independent contractor, however, the principal will generally not be responsible for any damage suffered. It is necessary to qualify such statements because, for example, a construction site on which numerous tradespeople and others are working at the same time will require a degree of co-ordination, not merely for the efficient carrying out of the construction, but also to ensure that individuals are not unnecessarily put at risk, either through their own ignorance of other activities, or through the lack of reasonable care taken by others. Further, the absence of clear policy considerations renders the line between employment and other contractual relationships imprecise: see Hollis v Vabu Pty Ltd [2001] HCA 44; 207 CLR 21 at [35] ff (Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ). However, that matter need not be addressed further because there was no suggestion that Leighton employed any of the three men engaged in the cleaning-out operation.

33 The basis upon which Leighton may have been liable was variously formulated in the statement of claim as a failure to ensure (by training and supervision) that safe work practices were adopted. Pursuant to the Occupational Health and Safety Act 2000 (NSW) (“the OH&S Act”) and the Occupational Health and Safety Regulation 2001 (“the Regulation”), Leighton had statutory responsibilities in addition to any duty of care arising under the general law. Those duties extended beyond employment relationships. Thus reg 213 relevantly provided:

“213 Principal contractors to ensure OHS induction training is undertaken

(1) A principal contractor for a construction project must not direct or allow another person to carry out construction work on the construction project unless the principal contractor is satisfied that the person has undergone OHS induction training.”

34 A similar obligation was imposed on each “self-employed person”: reg 215. Further, such training was required to “cover the relevant health and safety topics set out in the Code of Practice”: reg 217(a). The relevant code of practice for present purposes was that for “pumping concrete” which included cl 3.18 which read:

“3.18 Line cleaning safety

Line cleaning should only be carried out by experienced and trained pumping personnel. Extreme care should be taken when using compressed air to clean the pipeline. Air pressure will cause anything inside the pipeline to act as a high-velocity projectile.

The following safety precautions should be followed:

a. There should always be a connection to atmosphere (air relief valve) as well as the air entry point to the pipeline. This connection is to allow the system to be depressurised before removing any pipeline.

b. Remove the rubber delivery hose at the end of the pipeline. If left on, the hose can whip around dangerously as the line is blown out.

c. A positive catchment device should be attached to the discharge end of the pipeline to safely catch the cleaning device but at the same time allow the concrete to flow.

d. Keep all workers away from the discharge end while the concrete is under pressure.

e. Never attempt to take a line apart to clean out a blockage or to dismantle it until after the pressure has been relieved.”

35 Examples of the specific danger which eventuated in the present case were identified in the code of practice. Further, as the trial judge noted, the obligation imposed on the principal contractor under reg 213(1) was breached because neither Mr Stewart nor Mr Fox underwent OHS induction training: Judgment, p 38M.

36 Her Honour appears to have treated this fact as of little or limited significance for two reasons. First, she referred to s 39A of the OH&S Act which, she stated, “precludes civil liability by reason of a breach of the regulations per se”. However, that is not in terms what s 39A provides; rather, s 39A reads:

“39A Civil liability under regulations

The regulations may provide that nothing in a specified provision or provisions of the Regulations is to be construed:

(a) as conferring a right of action in any civil proceedings in respect of any contravention, whether by act or omission, of the provision or provisions, or

(b) as conferring a defence to an action in any civil proceedings or as otherwise affecting a right of action in any civil proceedings,

but the failure of the regulations to so provide in respect of a provision is not to be construed as conferring such a right of action or defence.”

37 This language is consistent with provisions in relation to the OH&S Act itself (at least in relation to Part 2 – see s 32) and in respect of codes of practice (see s 46(2)) which are designed to preclude a separate cause of action for breach of statutory duty. However, it does not follow that such provisions are irrelevant when considering the scope of a common law duty. It is not necessary to consider the extent of their operation in that respect, as her Honour clearly did not treat such requirements as having no significance.

38 Indeed, the second matter which caused her to treat the breach of reg 213 as of limited significance was based upon the fact that Leighton did have a practice of induction training and that Mr Still, being the sub-contractor who directed and controlled the cleaning-out operation, had undergone that training. Mr Still had been responsible, not only for inserting the cement bag and applying the pressurised air to force it through the line, but had also at least participated in the placement of the unsecured pipe over the waste bin on level 4. Her Honour concluded (p 38X):

“He neither told Mr Stewart to secure the pipe, nor enquired whether he had. Induction, for all it is worth, was not effective to exclude this risk.”

39 The fact that Mr Still acted without reasonable care in the circumstances, may have indicated that his training was inadequate, or that he failed to attend to it, or that he disregarded safety requirements which were known to him. His negligent behaviour did not demonstrate that the provision of appropriate training to Messrs Stewart and Fox might not have led to the adoption of safer work practices on level 4. In truth, no attention was paid in the evidence to the nature of the training which Mr Still had received, nor to its adequacy. Her Honour separately concluded that there was “no evidence that any induction would have addressed the industry specific Codes of Practice”: p 39D. However, that was not so. Not only did reg 217 require that induction training cover health and safety topics set out in the code of practice relating to construction work, but the relevant obligations were reflected in cl 32 of the contract between Leighton and Downview, set out at [25]. In the absence of any evidence to the contrary from either Leighton or Downview, it should properly be inferred that induction training for pumping subcontractors would have covered safety practices with respect to pumping concrete generally and cleaning out pipes in particular.

40 Nor was it put to Mr Fox or Mr Stewart that had they received induction of that kind, it would not have led them to change their practices on the day in question. Rather, the line of cross-examination adopted in relation to each was designed to show that each was experienced in pumping concrete and knew the risks involved in the cleaning-out operation. That material was no doubt relevant in relation to contributory negligence, but failed to establish an absence of duty to give induction training or the absence of any breach of that duty. Nor did it demonstrate that any breach which had occurred did not contribute in a relevant sense to the injury. Indeed, having referred to this evidence, and despite the negative conclusions set out above in relation to induction training, her Honour concluded that it was “on any view, highly unfortunate” that neither Mr Stewart nor Mr Fox were informed of either the industry code of practice or good practice by “their employer” before being despatched to the site. The precise import of that remark is unclear, but it is inconsistent with any implicit finding that induction training was unnecessary in respect of Mr Stewart and the appellant, or that such training would have been entirely ineffective.

41 A number of particulars of negligence were pleaded in relation to Leighton, but so far as the case presented at trial (and on appeal) was concerned they may be encapsulated in the following terms:

(i) failure to ensure that Messrs Stewart and Fox underwent induction training at the site before commencing work;

(ii) failing to provide a safe place of work.

42 So far as the first particular is concerned, it is clear that Leighton did provide induction training at the site and that it required its principal subcontractor to carry out similar responsibilities in relation to its particular work. Although there was little evidence as to the nature and size of the operation, it appears from the contractual arrangements that Leighton depended on Downview to inform it of the individuals who were coming onto the site to undertake specific works. As will be discussed further below in relation to Downview, it failed to carry out its obligations in that respect. As a result, the first particular identified above, namely the failure to induct Messrs Stewart and Fox, comes down to a question as to whether Leighton took all reasonable care to ensure that persons coming onto the site did in fact undergo induction training. This in turn may be seen as an element of maintaining a safe workplace. It may also be seen as involving a question as to the extent to which Leighton was required to exercise direct supervision over subcontractors to ensure that the workplace was reasonably safe, for all persons on the site.

43 The manner in which the case was presented tended to emphasise this last aspect of relevant conduct. Thus Mr Fox’s evidence was that there was a Leighton supervisor on level 4 when the cleaning-out took place. The case against Leighton at trial was substantially based upon the failure of Leighton, through its supervisor, to ensure that safe work practices were adopted.

44 That complaint had two limbs. The first was that one of the men on level 4 at the time of the accident was a foreman employed by Leighton. Mr Fox gave evidence to that effect, but that evidence was not accepted by her Honour. The second limb relied upon Leighton having a general law duty to ensure safe work practices and to take reasonable steps to ensure that those working on the site were properly trained. The dispute as to the presence of a foreman on level 4 at the time of the cleaning-out operation was not relevant to that broader question. Perhaps because there was a focus in the course of the trial on conflicting evidence as to who was present on level 4, it appears that the trial judge did not understand the broader case to have been put: Judgment, p 25P.

45 Reliance was placed at the hearing of the appeal, on the evidence given by Mr Fox that when he arrived at the site with Mr Stewart he was told to put on his safety vest and hard hat by a foreman apparently employed by Leighton: Tcpt, 30/10/06, pp 31-32. If that evidence were accepted, it at least provided a basis for an inference that Leighton’s foreman knew that two men had come onto the site, perhaps for the first time, and failed to ensure that they undertook induction training.

46 In response to this aspect of the claim, senior counsel for Leighton asserted that it had neither been pleaded nor run at trial: however, it was expressly pleaded (first amended statement of claim par 7(b)), a matter which was adverted to in the course of argument at trial (Tcpt, 03/11/06, p 327) and in written submissions for the appellant of 2 November 2006, par 1.2. The failure to address that basis of liability was an error.

47 Although Leighton was not vicariously responsible for the negligence of its subcontractors or of persons subcontracted by them, it remained the principal contractor with overall responsibility for the safety of the site, on which, as the evidence showed, a significant number of tradespeople and other workers were present at any one time. The continuing obligations of a principal contractor, even where the work to be performed has been largely or totally subcontracted, are reflected in the Occupational Health and Safety Regulation and in the general law. Thus it has long been accepted that a principal may be liable for the negligence of an independent contractor where the principal has directly authorised the doing of the tortious act: see Northern Sandblasting Pty Ltd v Harris [1997] HCA 39; 188 CLR 313 at 366, McHugh J referring to Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Cooperative Assurance Co of Australia Ltd [1931] HCA 53; (1931) 46 CLR 41 at 48 (Dixon J). Similarly, the principal may be required to co-ordinate the activities of various subcontractors as part of its obligation to set a safe system of work: Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16 at 31 (Mason J). As an occupier having control over the premises, it may be necessary for the principal contractor to identify and provide warnings in relation to dangerous features of a partly constructed building: see Maricic v Dalma Formwork (Australia) Pty Ltd [2006] NSWCA 174 at [47]- [53]. Whether a principal contractor will be under such a duty (and, if so, what is necessary to fulfil the duty) will depend upon the particular circumstances of the case; operations of multiple subcontractors carried on within the relative confinement of a building site may well give rise to a different conclusion to that reached in the case of road works being undertaken by a subcontractor for a local council as discussed in Leichhardt Municipal Council v Montgomery [2007] HCA 6; (2007) 81 ALJR 686 at [23] (Gleeson CJ). In the present case, her Honour accepted that one subcontractor (Warren Stewart Pty Ltd) was liable to another (the appellant): Judgment, pp 28, 41-43. However, she reached that conclusion because the were “more akin to ... fellow employees”, reasoning which did not apply to those defendants “at some remove” in the “contractual pyramid”: Judgment, pp 6G and 29P.

48 The older case-law concerning accidents on construction sites does not indicate that a general law obligation to provide training in matters of safety to subcontractors working on a site was envisaged as falling within the requirements of the duty of care of a principal contractor. It is also clear that construction sites were relatively dangerous workplaces in the past. The obligation to ensure a reasonable level of safety is, however, now well-recognised. The need for induction training is now a recognised part of major construction works. So much was recognised by Leighton in its contract with Downview; cl 32, whilst imposing obligations on Downview, acknowledged continuing obligations on the part of Leighton. Those obligations should properly be seen as part of Leighton’s general law duty of care to subcontractors and others coming onto a construction site within its control. Although senior counsel for Leighton suggested that its obligations of training and supervision were delegated to Downview, the contractual provisions did not support that conclusion, nor did the Regulation provide support for Leighton to delegate responsibility in that manner.

49 Leighton clearly took upon itself a supervisory role in checking work method statements prepared by Downview and rejecting them where it thought them inadequate. It appears to have employed a gatekeeper whose job it was to allow workers onto the site, whilst excluding others. It employed a foreman who directed workers in relation to use of safety vests and hard hats. It issued “green cards” to those workers who had undertaken its induction training program. The fact that it took these steps does not, of course, mean that failure to take any such step would have involved a breach of a general law obligation of care. Rather, those steps are significant because they indicate the level of control Leighton maintained over the site. Such controls were no doubt desirable for the efficient conduct of the construction works, as well as for the safety of those on site. However, the relevant omission was to take steps to ensure that Messrs Stewart and Fox undertook the relevant induction training. Pursuant to their contractual arrangements, that was a joint responsibility of Leighton and Downview. Whilst Downview may be seen as having primary responsibility in relation to safety aspects of the concreting work that is not to exonerate Leighton from all responsibility, although such considerations will clearly be relevant in relation to questions of contribution. On that basis, the trial judge should have found that Leighton owed Mr Fox a duty of care and that, by allowing Mr Stewart and him to work on the site without either having undergone induction training, it was in breach of its duty.

50 On one view, it is not necessary to consider other bases upon which Leighton was said to owe a duty to Mr Fox. However, because the precise nature of the duty and any possible breach may have a bearing on the contribution which should be met by Leighton, it is necessary to refer to the other arguments relied upon by Mr Fox.

51 The appellant also put his case upon a generic basis, namely that Leighton had a non-delegable duty to persons coming onto the site to take care for their safety. In the course of argument, senior counsel for the appellant conceded that there were difficulties with this approach. The difficulties are both conceptual and linguistic. First, to describe a duty as “non-delegable” may mean no more than that the circumstances fall within a category in which the law has insisted that liability continues despite the engagement of independent contractors to carry out the work or provide the relevant services. However, at such a level of abstraction, that approach cannot apply in the present circumstances. Its application would import a similar obligation of control in relation to an independent contractor as in the case of an employee. As explained by Brennan J in Stevens at 47 (above at [47]):

“The entrepreneur’s duty arises simply because he is creating the risk ... 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.”

52 There being no reason presented in this case to suppose that subcontracting concrete pumping services was in any sense unreasonable, there is no basis for importing what is, in effect, an obligation akin to that of the employer to retain a degree of control which is inherently inconsistent with the relationship between a principal and an independent contractor: see Hollis at [43]-[44] (above at [26*]). Whether, as suggested in the course of argument, there is any specific category of cases in which duties are held to be non-delegable because of the extra-hazardous nature of the activity may be doubted: see Montgomery at [18] (Gleeson CJ) at [116]-[118] (Kirby J) and [145] and [153] (Hayne J). In any event, there is no authority to support the proposition that pouring concrete on a construction site, at least in the circumstances of the present case, could be described as an extra-hazardous activity. Accordingly, Leighton cannot be said to be liable on this basis.

53 Finally, there was a claim of liability based on a duty to supervise the activities of the concrete pouring, or at least the cleaning-out operation at the end of the pour. This is, however, little more than a recasting in more specific terms of the generic complaint referred to above by reference to non-delegable duties. Instead of contending for a legal category into which the case fits, this approach appears to concede the absence of any such category, but to rely upon a more flexible approach in relation to identification of parts of a process which may be said to involve special risks. Neither authority nor principle supports such an approach: such an approach would tend to break down the distinction between employees and independent contractors by permitting the law to impose a level of control over independent contractors which would, in a specific respect import an aspect of the employment relationship. As Hollis demonstrates, there may be uncertainty in a particular case as to which category an individual relationship falls into, until the Court has determined the matter, particularly in circumstances where the answer is not controlled by the label given to the relationship by the parties: see at [58]. But in accordance with authority, this Court must approach the case on the basis that the dichotomy between employees and subcontractors is well-established: in any event, no good reason was provided in argument to depart from that approach.

54 Accordingly, the existence of a duty on the part of Leighton should be upheld on the sole basis articulated above. If a duty existed, it was clearly breached in the circumstances in that Leighton did not provide any induction training to the appellant or Mr Stewart. Such training should, and on the probabilities would, have included training in relation to safety issues in respect of cleaning-out operations and, properly conducted, would at least have required reference to the matters set out in cl 3.18 of the code of practice. Tying down the end of the pipe was a simple requirement which should have been high on the list of matters to which the contractor’s attention was directed.

55 In terms of causation, two questions arise: the first is whether it was more probable than not that had Mr Stewart (or the appellant) undergone induction training, this matter would have been addressed. Secondly, there is a question as to whether, had it been addressed, Mr Stewart (or the appellant) would, on the balance of probabilities, have behaved differently.

56 The likelihood that cleaning out operations would have been addressed should be accepted. One cannot be sure that the training would have referred expressly to the requirement in the Code of Practice to attach the discharge end of the pipeline to catch the cleaning device (see par (c) in reg 3.18 at [34] above) but the concrete pumping exercise was a relatively simple one, with a limited number of dangers. Induction training which did not cover that aspect of the work would not have been proper induction training. The only witness who went through induction training and who might have been able to give evidence in respect of the content of the training was Mr Still. He was asked no questions in this regard and, in one sense, his answers would not have mattered. The plaintiff was entitled to rely upon the proposition that proper induction training would have covered this topic and the defendants would not have been assisted by demonstrating that in fact it did or did not. As already noted, neither defendant called any evidence in that regard.

57 The second question is whether, had they been inducted, either Mr Stewart or the appellant would have had regard to such direction as they should have been given. As sometimes happens in trials where there is confusion as to the primary facts, questions which might with hindsight appear critical were not asked. So far as the questioning of Mr Stewart by the appellant is concerned, although he called Mr Stewart, and could have put such questions, he did not. (Whether Mr Stewart, who was also a defendant through his company, was in the appellant’s camp is not apparent from the material before this Court.) Certainly neither counsel for Leighton nor Downview, each of whom had an interest in satisfying the Court that Mr Stewart, even if properly inducted, would have done just what he did, asked no questions on this topic. On the other hand, there was evidence that Mr Stewart asked the appellant to stand clear when the operation was about to commence and there is no reason to suppose that he would not have taken an additional and relatively simple step of tying down the pipe, had he been advised that this was necessary for safety reasons. Relevantly for present purposes, it is Mr Stewart’s response which would have been important. Although Mr Still assisted in placing the end of the pipe over the waste container, he then left to go to level 12 to commence the cleaning out process. That left the appellant and Mr Stewart on level 4, of whom Mr Stewart was the senior person, the appellant being his offsider.

58 Although the evidential basis is sparse, the conclusion that the breach identified above contributed to the accident suffered by the appellant was an inference properly available on the evidence and one which should have been drawn.

59 Because her Honour found no breach of duty, she did not expressly address questions of causation. She did state that induction “was not effective to exclude this risk”, referring to the failure to tie down the pipe: Judgment, p 38. She also stated that there was “no evidence that any induction would have addressed the industry specific Codes of Practice”: Judgment, p 39. The first statement appears to have followed from the failure of Mr Still (who was inducted) to direct that the pipe be secured, a point dealt with above, and the second as to lack of evidence is partly true but does not mean that a relevant inference could not and should not properly have been drawn from what evidence there was.

60 Failure to give instructions in this regard should be seen as a cause contributing to the accident, for which Leighton was liable.

Liability of Downview

61 The liability of Downview is more readily established than that of Leighton. It was responsible for the concreting work on site, pursuant to its contract with Leighton. Part of that work involved pumping concrete from level 4 to level 12. It had, sometime earlier, obtained the services of Mr Still, who gave evidence that he had attended the site either three times or on four to six previous occasions over a period of two or three weeks prior to the date of Mr Fox’s injury: Tcpt, 30/10/06, pp 47 and 58. He had been inducted some five weeks before the accident by someone from Leighton and held a green card. He was asked if he could recall what was involved in the site induction and replied (p 48):

“Just your average general site induction – tell you all the safety procedures and stuff like that.”

62 Mr Still worked on the site with another man, Jason Cook. It appears that Mr Cook was responsible for him attending the site and being involved in the concrete pouring. Mr Still took instructions from Mr Raines of Downview. Although he described himself as self-employed (Tcpt, p 60) he did not appear to believe that he was contracting with Downview, but with a company known as Toro Constructions Pty Ltd, because he believed that that was the company which had engaged Mr Cook. The legal niceties of the relationship appear not to have preoccupied Mr Still at the time, although he stated his “employer” on the induction form as “Toro Constructions”. He said he thought it was Toro Constructions because he thought Mr Cook worked for Toro Constructions and he was working with Mr Cook. Not surprisingly, this led to some questioning as to how he expected to be paid and by whom. He gave evidence that he had not been paid a cent for his work on the site and had not troubled to send an invoice to Mr Cook (Tcpt, p 62). He was asked (p 63) why he had not done so and replied:

“A. Because I was only there like for five days.

Q. You didn’t send him an invoice for any of those five days work?

A. No, because the last day I was going to send him an invoice I was going to send him an invoice for the last four which was on that day, and got kicked off, and I sent him an invoice and apparently he’s told me that he didn’t get paid for it, the whole job, so.

Q. Then you did send him an invoice?

A. Yeah, this is like a month later.

Q. So you did send him an invoice?

A. Yeah.

Q. He didn’t pay it?

A. No, because he said he didn’t get paid by Downview and Downview said they didn’t get paid.”

63 Mr Cook did not give evidence, nor did anybody from Downview. In a letter written on 13 March 2003, the contents of which are set out at [26] above, Mr Raines claimed that he had rung Toro Constructions Pty Ltd his “pumping subcontractor”, to inform Toro that a pour was to take place on 7 March. To whom Mr Raines spoke is not known, but it seems unlikely that it was anybody at the company Toro Constructions Pty Ltd. At least by the time of the trial, it was accepted that Toro Constructions had nothing to do with the work. It is possible that Mr Raines spoke to Mr Cook who, like Mr Still, was probably self-employed. Any contractual relationship between Downview and its pumping subcontractor, must have been based on telephone calls or Mr Raines could not have made the same mistake as Mr Still. The arrangements were extraordinarily haphazard. If, as Mr Raines asserted in the letter, he had no knowledge of who was pumping the concrete until after the pumping had already started on March 7, that can only have been the result of the disorganised manner in which Downview contracted with others to carry out its contractual responsibilities to Leighton. It clearly failed to comply with its obligation under cl 32.1 of the contract to provide written details to Leighton of persons that it proposed to engage to work on the site. In addition Downview undoubtedly failed to carry out its contractual responsibility to induct persons engaged to work on the site “as to particular procedures and requirements relevant to that work”, as required by cl 32.1.

64 The broad principles concerning the liability of a contractor for negligent acts undertaken by its subcontractors, discussed above in relation to Leighton, apply with respect to Downview. Downview’s case, apparently at trial and certainly on appeal, was largely limited to the proposition that it was not liable for any negligence of Mr Still or Mr Stewart. (It also asserted contributory negligence on the part of Mr Fox.)

65 The case for Downview was, in effect, that it had subcontracted the concrete pouring, including the pumping of the concrete, to a third party. With whom Downview had contracted apparently remained a matter of uncertainty for its counsel even as late as the hearing of the appeal, where he continued to assert that Downview had “a contract with Toro Constructions to do the work”: Tcpt, 07/12/07, p 85. As indicated above, the evidence in support of that conclusion was a letter from Mr Raines to Leighton when the company was being excluded from the site, which arguably did no more than express an opinion held by Mr Raines as to the party with whom Downview had contracted. The only other evidence was the name Toro Constructions as the employer of Mr Cook, Mr Still and a third man, Chris Gelle, who were apparently inducted together on 3 February 2003, each induction form having been signed by one of their own number, namely Jason Cook, as the “employer/employers representative”. There was no evidence as to the terms of any contract between Downview and a third party and it must be inferred, as a matter of probability, that the relationship was entirely casual and presumably required the third party to be present or to supply labour and equipment as required to undertake the concreting work required by Downview.

66 The manner in which the work was undertaken on 7 March 2003 was described by Mr Still in evidence set out at [28] above. As already noted, the pump truck and operators who had been used on prior occasions were not available on 7 March. It appears that the decision to pour on 7 March was either made belatedly or that Messrs Cook and Still were informed belatedly of the intention to pour on that day. Whether Downview knew of the difficulties caused by that arrangement is not known. However, it appears from Mr Still’s evidence that he and Jason were treated by Downview as responsible for obtaining a truck and ensuring that the concrete which had been ordered by Downview, through Leighton, would be applied as required on level 12. Although he was the representative of Downview at the site, it is apparent from Mr Raines’ letter that he took little direct interest in how the work was to be performed by Downview’s subcontractor.

67 One difficulty for Downview in these circumstances was that, whilst they had quite precise and constraining obligations under their contract with Leighton, their failure to obtain similar conditions in a contract with the entity to which Downview subcontracted rendered Downview at risk of any departure from the obligations it had undertaken with Leighton. In the absence of any evidence from Mr Raines (or any other person holding a position with Downview) it must be accepted that Downview did not tell Mr Cook or Mr Still that:

(a) only persons who had been subject to induction training by Leighton and had received instructions from Downview as to their responsibilities could work on the site;

(b) Downview required five days notice of the identity of any person contracted to work on the site, so that the name could be forwarded to Leighton, and

(c) Downview was obliged to ensure that such persons completed induction training prior to working on the site.

68 It may therefore be inferred that the haphazard manner in which Downview undertook its operations was directly responsible for the failure of Messrs Stewart and Fox to be given induction training. Because Mr Stewart (being the person in charge of the pumping operation) appeared to be unaware of the safety requirements in relation to securing the end of the pumping line prior to cleaning it out, an opportunity to ensure that safe practices were adopted on the site was lost as a direct result of Downview’s ineffective administration of its contractual obligations. Her Honour’s conclusion that Mr Stewart had acted negligently was reflected in the judgment against Warren Stewart Pty Ltd.

69 Counsel for Downview at the trial cross-examined Mr Stewart to establish his experience in concrete pumping operations in situations similar to that which existed at the Hilton Hotel. That experience seemed to be reasonably limited, although he had worked with concrete pumping operations for some 11 or 12 years. He gave evidence that he had worked on a six storey building, but that was with a different kind of pump, namely a “boom pump”: Tcpt, 01/11/06, p 253. With a line pump, he had not done buildings higher than two storeys. He also gave evidence that he had never done a “blow-back cleaning-out before”: Tcpt, p 258. He gave evidence that in 11 years of operating a concrete pump he had never come across the code of practice for concrete pumping: Tcpt, p 259. This cross-examination tended to emphasise the importance of the induction training and the likelihood that, had it been undertaken by Mr Stewart, different practices might have been adopted in relation to securing the end of the concrete line prior to the cleaning-out operation.

70 Downview either subcontracted with Aggforce Concrete or permitted its subcontractors, Messrs Cook and Still, to contract with Aggforce Concrete. It failed to take any steps to ensure that persons coming onto the site on 7 March 2004 underwent induction training. As a result, Mr Stewart and Mr Fox did not undergo such training. Mr Still gave evidence that he took instructions from Mr Raines and that Mr Raines was on site on the day of the accident: Tcpt, pp 55, 59 and 66. Apart from any contractual obligation to Leighton, Downview had a general law obligation to those participating in carrying out its contracting work to conduct operations safely and to do that it was obliged to contract with competent and properly trained operators. By leaving it to its own subcontractors to engage other labour and equipment, it effectively abandoned its responsibilities in that respect.

71 Questions of causation have been dealt with in relation to Leighton at [55]-[56] above. The nature of the duty imposed on Leighton was similar to that imposed on Downview and the analysis with respect to causation has equal application in relation to the liability of Downview for the accident. Its conduct in breach of the general law duty materially contributed to the accident which occurred on 7 March 2003. Mr Fox was entitled to a judgment against Downview and the appeal should accordingly be upheld in respect of Downview as well as in respect of Leighton.

Contributory negligence

72 Although her Honour dismissed the appellant’s claim, she assessed damages in an amount in excess of $470,000, as noted above. The judgment given against Warren Stewart Pty Ltd was for the full amount, as that defendant had not pleaded contributory negligence by way of a defence. On the basis of the reasoning above, judgment should also have been entered against Leighton and Downview. Each of those parties pleaded contributory negligence which her Honour assessed at “not less than” 25%. In submissions filed after the appeal had been heard, with leave of the Court, the appellant contended that there should be no diminution of the award on account of contributory negligence. Leighton submitted that the evidence supported an assessment greater than 25% (without specifying a proportion) but stated in the alternative that her Honour’s assessment of 25% should be accepted. Downview’s submissions were similar to those of Leighton. All parties made submissions on the basis that it would be appropriate for this Court to make an assessment of contributory negligence, rather than have the matter remitted for a new trial on that issue.

73 Her Honour’s assessment was based on the proposition that Mr Fox had “experience in cleaning-out concrete pipes and as a linesman” and his knowledge that the end of the pipe was not in fact attached to the waste bin or otherwise secured: Judgment, p 43U.

74 Her Honour’s remarks in this regard were amplified in an earlier passage at p 28U-Z to the following effect:

“The reality is that the plaintiff was told by Mr Stewart to step aside, and he complied with that instruction. Unfortunately, the location the plaintiff chose was not effective. The plaintiff chose an unsheltered position within the range of the pipe; a static object of fixed length with the capacity to swing. It was that which struck him – not a projectile. Mr Stewart had seen the location to which the plaintiff moved at Mr Stewart’s direction. Like the plaintiff, Mr Stewart failed to recognize that the location was unsafe. But unlike the plaintiff, Mr Stewart was conscious that the pipe might move.”

75 Her Honour noted that the forklift driver, a labourer and Mr Stewart also escaped harm. However, it does not follow that they were in “safe” positions in the sense of locations which were not at risk, as opposed to locations subject to a risk which did not eventuate in the circumstances. In any event, these comments suggest that if Mr Fox was himself negligent, he was not conscious of the risk, but should have been.

76 Mr Fox’s evidence was that he had worked as an offsider on the pump truck on prior occasions and had observed and participated in cleaning-out operations. However, his experience was limited to residential buildings in which the line was blown out from the end connected to the truck. In his experience the pipe was left lying on the ground during the process, or was held by an individual: Tcpt, 31/10/06, pp 150-157. He did not have experience on multi-storey buildings with a fixed line.

77 The fact that Mr Fox had moved away from the end of the bin either (according to Mr Stewart), at Mr Stewart’s direction, or (according to him) on his own initiative, indicated that he was conscious of the need to keep clear of the end of the pipe. However, the cross-examination did not establish that he had any appreciation of the risk which in fact eventuated. As the submissions for Leighton stated, “it is open to find he moved because he perceived a danger”: Tcpt, p 155W-156C. However, the cross-examiner did not seek to identify the apprehended danger, which might have included being hit by a sponge or other material placed into the pipe and forced through under pressure, or being sprayed with water or wet concrete. Assuming, as her Honour accepted, that Mr Stewart instructed him to move, and that he acted in response to that direction, it is not possible to make a finding on the balance of probabilities that he had any awareness of the kind of risk which eventuated.

78 Downview noted in addition that, given Mr Fox’s experience, “one would have been entitled to assume the appellant was aware of the code”. However, that “assumption” would require the Court to disbelieve Mr Fox when, in answer to a question from counsel for Downview, he said he had not come across the code of practice for concrete pumping before the day of the accident: Tcpt, p 185I. He confirmed that neither Mr Martin nor Mr Stewart had ever mentioned it to him. Her Honour expressly accepted that the employer, Mr Martin, had not informed Mr Fox of the code of practice and appears to have implicitly accepted that he was not aware of it from any other source. Accordingly, it is not appropriate that this Court should make a finding that the appellant should be disbelieved in that respect.

79 The submissions of the respondents are to some extent inconsistent in their approach to the appellant’s position. On the one hand, they emphasise his experience in working with concrete pumping trucks, with the implicit inference that he should have known what he was doing, while at the same time saying that his inexperience of large multi-storey buildings and the kind of operation in which he was to be engaged should have led him to seek further instructions, either from Mr Martin’s organisation or on site. The correct position appears to be that Mr Fox did have a degree of experience, but not as the operator of a pump truck, nor on commercial building sites. His ignorance of the code of practice demonstrated a need for further instruction. The point at which responsibility for obtaining further instruction may have lain with him arose from his evidence that he was aware that one needed a “green card” which required induction training, to work on commercial sites: Tcpt, 31/10/06, p 174. Knowing that he should have had induction training on the site in relation to health and safety issues, his omission to make any inquiries in that regard involved a degree of failure on his part to take reasonable steps for his own safety.

80 There is a further factor, which militates against any significant degree of contributory negligence. It is apparent that two attempts were made to clean the pipe, one with a regulation polyurethane sponge and the other with the cement bag filled with Dacron insulating material which required an increase in the use of pressurised air to force it through. There was no evidence that Mr Fox knew about the arrangements for the second attempt, which may have given rise to an appreciation of greater risk of injury. That arrangement was made by Mr Still, who was in contact with Mr Stewart by telephone. The evidence does not establish that Mr Fox knew of the steps to be adopted which led to the accident.

81 In my view there was contributory negligence, but the figure suggested by her Honour was too high. The negligence of the respondents arose from a failure to ensure that Mr Stewart and Mr Fox had the relevant induction training. I am satisfied, on the balance of probabilities, and in the absence of any evidence from the respondents to the contrary, that such training would at least have included reference to the code of practice and the specific risks which it identified. Mr Fox himself had a responsibility under the regulation to obtain such training, but the primary responsibility must rest with Leighton and Downview. In my view a just and equitable attribution of responsibility to Mr Fox would be in the range of 10%-20%. The appropriate finding is to reduce the damages on account of contributory negligence by 15%.

Contribution between Respondents

82 Prior to the trial, Leighton filed a cross-claim against (relevantly) Downview. It relied upon an implied term of its contract with Downview that the latter “would exercise reasonable care and skill in performing the works under the subcontract”. The cross-claim was dismissed as a result of the claim against Leighton being dismissed. Pursuant to leave granted at the hearing of the appeal, on 12 December 2007 Leighton filed a cross-appeal seeking contribution and, indeed, that Downview indemnify it from any liability it might have to Mr Fox. In its written submissions, Downview complained that the original cross-claim sought only contribution pursuant to the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) and not an indemnity. It appears that the complaint related to reliance on a contractual right to indemnity, rather than the possibility that contribution under the 1946 Act may “amount to a complete indemnity” where the Court is satisfied that such a result is just and equitable: see s 5(2).

83 In its cross-claim, Leighton sought contribution as a joint tortfeasor and sought damages from Downview for breach of its contractual duty to exercise reasonable care and skill in performing the works under the subcontract. That duty was said to be a general law duty as well as a contractual duty. The damages were said to be the liability of Leighton to Mr Fox resulting from Downview’s breach of duty to him.

84 The claim under the contract (and indeed under the general law duty said to be owed by Downview to Leighton) required a somewhat strained analysis of circumstances where Leighton has been found to be a tortfeasor in its own right. No such analysis was developed at trial, nor was it fully articulated in the written submissions in this Court. Whether or not Downview owed a duty to Leighton is not an essential consideration: rights of contribution will arise under the 1946 Act so long as each has a liability in tort: see Jones v Mortgage Acceptance Nominees Ltd (1996) 63 FCR 418. To the extent that Leighton seeks to be indemnified by Downview, not on the basis that such a result would be just and equitable in terms of their tortious liability, but on the basis of a contractual entitlement, Downview complains that no such contractual entitlement was pleaded at trial.

85 The cross-claim filed in the Court below by Leighton did not plead a contractual indemnity nor did the notice of cross-appeal filed belatedly on behalf of Leighton expressly identify such a basis of indemnification. These reasons would be sufficient to refuse that contractual claim. Nor did the specific contractual provisions relied upon by Leighton in its supplementary written submissions identify a contractual provision giving a specific right of indemnity. In the circumstances, the proper course is to consider Leighton’s claim for contribution as a joint tortfeasor.

86 Although, as explained above, Leighton owed a duty to Mr Fox to provide appropriate induction training before he commenced work on the site, its failure to do so was substantially a result of Downview’s failure to organise its subcontractors in a manner which was required by its contract with Leighton. In effect, the negligence of Leighton was to be identified in the failure of its foreman, who saw Messrs Stewart and Fox arrive at the site, to check that they had been given induction training, before permitting them to commence their concrete pumping operations. That omission was to an extent understandable: Mr Still gave evidence that his induction took place some time (possibly a week or more) before he attended the site to provide his services. A far higher level of responsibility, in the circumstances outlined above, should be sheeted home to Downview. In all the circumstances, it is just and equitable that Downview should be liable for a contribution in the proportion of 80% of the damages payable to the appellant by both respondents.

Conclusions

87 The orders made by the trial judge in respect of the liabilities of Leighton and Downview, and consequential costs orders, should be set aside and judgment should be given for the appellant (Mr Fox) against both companies in accordance with the foregoing reasons. Leighton should have judgment on its cross-appeal against Downview.

88 As the appellant has been substantially successful in his claim and in his appeal to this Court, he should have an order that the companies pay his costs both of the trial and of the appeal. To the extent that they are not disentitled under s 6(2), the respondents should have certificates under the Suitors’ Fund Act 1951 (NSW).

89 Leighton has been substantially successful in its cross-claim and cross-appeal for contribution against Downview. It should have its costs attributable to those proceedings.

90 The relevant order in the notice of appeal merely sought that “her Honour’s verdict and judgment be set aside and a new trial ordered”. As noted, the requirement of a new trial has since been abandoned by agreement between the parties, but no party has sought to formulate appropriate orders, except in respect of Leighton’s cross-appeal.

91 This Court must make orders which adequately dispose of the appeal and cross-appeal without inappropriately interfering with the judgment below. Accepting that my view in relation to contributory negligence is not a majority view, I would propose the following orders:

(1) (a) Allow the appeal and set aside order 2 of the trial judge dated 14 December 2006 dismissing the claims made by the plaintiff, Brian Allan Fox, against the first defendant, Leighton Contractors Pty Ltd and the third defendant, Downview Pty Ltd;

(b) in lieu thereof, give judgment for the plaintiff against the first and third defendants in the amount of $472,562.

(2) (a) Set aside order 5 below in relation to the costs of the first and third defendants;

(b) order that the first and third defendants pay the plaintiff’s costs of the trial.

(3) Order that the first and third respondents pay the appellant’s costs of the appeal.

(4) Dismiss the appeal with respect to the second respondent with no order as to costs.

(5) On the cross-appeal:

(a) set aside orders 4 and 6 below dismissing the cross-claim and awarding costs in respect thereof;

(b) order that Downview Pty Ltd pay 80% of the judgment debt incurred by Leighton Contractors Pty Ltd to Brian Allan Fox, and

(c) order that Downview Pty Ltd pay Leighton Contractors Pty Ltd’s costs of the cross-appeal.

(6) Grant a Suitors’ Fund certificate to:

(a) the first and third respondents in respect of the costs of the appeal;

(b) Downview Pty Ltd in respect of the cross-appeal

unless disqualified pursuant to s 6(7) of the Suitors’ Fund Act 1951 (NSW).

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LAST UPDATED:
7 March 2008