Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947, s 7(1)(c), s 7(2)

Civil Liability Act 2002, s 3A

Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420

Atkinson v Gameco (NSW) Pty Ltd [2005] NSWCA 338

Barns v Parlin Pty Ltd & Ors [2010] WADC 39

Baxter v Obacelo Pty Ltd & Anor [2001] HCA 66; (2001) 184 ALR 616

Blair v Curran [1939] HCA 23; (1939) 62 CLR 464

Bourke v Hassett [1998] VSCA 24; [1999] 1 VR 189

BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266

Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13; (1994) 179 CLR 520

Chamberlain v Deputy Commissioner of Taxation (Cth) [1988] HCA 21; (1987-1988) 164 CLR 502

Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839

Dib Group Pty Ltd t/as Hill & Co v Cole [2009] NSWCA 210

Elliott v Bickerstaff [1999] NSWCA 453; (1999) 48 NSWLR 214

Esso Australia Pty Ltd v Victorian WorkCover Authority [2000] VSCA 74; (2000) 1 VR 246

Fennell v Supervision & Engineering Services Holdings Pty Ltd and Santos Ltd (1988) 47 SASR 6

Grimsey (an infant) by her next friend Henry Charles Grimsey v Southern Regional Health Board [1997] TASSC 77

Hill v Fermont Holdings Pty Ltd & Ors, unreported; DCt of WA; Library No D990079; 1 April 1999

Hodge v CSR Ltd & Anor [2010] NSWSC 27

Jackson v Goldsmith (1950) 81 CLR 466

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

March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506

Melvan & Anor v Signet Engineering Pty Ltd [2002] WADC 205

Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492

Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99

Signet Engineering Pty Ltd v Melvan & Anor [2003] WASCA 313

South American and Mexican Co; In re; Ex parte Bank of England [1895] 1 Ch 37

Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16

TNT Australia Pty Ltd v Christie & Ors [2003] NSWCA 47

Victorian WorkCover Authority v Carrier Air Conditioning Pty Ltd [2006] VSCA 63

Vitale v Bednell [2000] WASC 207

Wilsons & Clyde Coal Co v English [1937] UKHL 2; [1938] AC 57

Wyong Shire Council v Shirt [1980] HCA 12; (1979-1980) 146 CLR 40

1 YEATS DCJ: On 5 December 2003 Tyson Barns was engulfed by fire and suffered burns to 60 per cent of his body while working as a driller's offsider at Barrick Gold's Plutonic Gold Mine site, 200 kilometres north of Meekatharra. At the time Mr Barns was an employee of ChoiceOne (the third defendant) and his services were hired to Parlin Pty Ltd t/as Drill Power (the first defendant). Drill Power was engaged in drilling work at the Plutonic site for Barrick Gold (second defendant and third party).

2 Mr Barns sued Drill Power, Barrick Gold and ChoiceOne for damages arising from his injuries. On 27 February 2007 Drill Power settled Mr Barns' claim by paying him $1,013,498.50 plus agreed costs of $30,000. Drill Power then claimed contribution from Barrick and ChoiceOne. Drill Power's claim against Barrick was dismissed in 2010 shortly before this trial in consideration of a payment of $190,000 to Drill Power from Barrick. This proceeding is Drill Power's claim for contribution from ChoiceOne as a concurrent tortfeasor pursuant to s 7 of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA).

(1) Whether Drill Power is liable in respect of the damage suffered by Mr Barns (this issue is conceded).

(2) Whether ChoiceOne is a tortfeasor who is or would, if sued, have been liable in respect of the same damage.

(3) If so, what amount of contribution is just and equitable by ChoiceOne to Drill Power.

(4) Whether the payment of $190,000 by Barrick to Drill Power affects the "just and equitable" apportionment and, if so, how.

(5) Whether Drill Power's claim against ChoiceOne fails because of a breach of Drill Power's contractual obligations to ChoiceOne.

4 Mr Barns suffered injury when a large high pressure hose on the drilling rig carrying a mixture of inflammable hydraulic fluid and air failed resulting in hydraulic oil being sprayed in the vicinity of the hot engine and turbo, igniting the hydraulic fluid and causing the fireball which injured Mr Barns.

5 The large high pressure hose was tendered (Exhibit 5). The evidence established and it is not contested that:

• The drilling rig was on the back of a truck.
• The high pressure hose ran between the compressor and the air receiver of the rig.
• The hose was approximately 2.2 metres long and 67 millimetres in diameter consisting of an outer polymer sheath covering and protecting internal steel braiding from corrosion.
• The outer polymer sheath became gouged and lacerated during the operation of the rig exposing the steel braiding to corrosion.
• Drill Power modified the hose by wrapping half the length in fibreglass lagging held in place by chicken wire to protect the hose from the heat of the turbo (see Exhibit 1, photographs 177, 178).
• The lagging and chicken wire concealed but did not prevent further damage to the hose from corrosion and eventually the hose failed seriously injuring Mr Barns.

6 The pressure hose was tendered in evidence (Exhibit 5) but the burned portion had been cut out of the hose according to Mr Lorne. Photographs of the complete hose (Exhibit 1, pp 170 - 183) show that the burned part of the hose was under the lagging and chicken wire. The inference reasonably open from that evidence is that the pressure hose in the area encased by the lagging and chicken wire failed allowing the mixture of inflammable hydraulic fluid to be sprayed and to ignite causing the fireball which injured Mr Barns.

7 Drill Power pleaded in its statement of claim against ChoiceOne in the contribution proceedings filed 2 July 2007:

"12. The third defendant was negligent and breached its duty of care owed to the plaintiff in that before the plaintiff was required and permitted to work at the mine, and before 5 December 2003, it:

(a) failed to ensure that a proper safety inspection of the first defendant's drill rig was undertaken;

(b) failed to conduct a safety inspection of the first defendant's drill rig;

(c) failed to inspect the first defendant's drill rig;

(d) failed to detect the defects pleaded in sub-paragraphs 7(a) and (b);

(e) failed to provide the plaintiff with personal protective equipment;

(f) permitted the plaintiff to work with a dangerous drill rig."

8 It is conceded that 12(e) has not been established by the evidence during this trial. The "defects" pleaded in subpars 7(a) and (b) are:

"(a) an high pressure hose that ran between the compressor and the air receiver was surrounded by a coating of fibreglass fabric and chicken wire that obviously had not been placed by the manufacturer of the drill rig;

(b) the hose was heavily gouged and lacerated and internal steel braiding had corroded."

9 ChoiceOne in its amended defence filed 8 April 2010 pleaded in its defence to Drill Power's statement of claim:

"26. Further, and in the alternative, the third defendant says that the plaintiff's injuries were caused solely by, alternatively contributed to, by the negligence and breach of statutory duty of the first defendant.

Particulars of negligence

The first defendant was negligent in that:

26.1 it installed the hose without giving any or any adequate consideration to:

26.1.1 the proximity of the hose to the engine and turbo;

26.1.2 the need to take precautions to effect the installation of the hose in a way which minimised the risk of damage to the polymer coating of the hose as a result of the use and operation of the rig;

26.1.3 the environment on the rig and the desirability of installing a hose manufactured from stainless steel, rather than steel, braiding;

26.2 it changed the hydraulic fluid in the compressor from a synthetic oil to automatic transmission oil and, because of the lower flash point of automatic transmission fluid in comparison to synthetic oil, thereby increased the fire risk and increased the severity of any such fire caused by the escape of the hydraulic fluid;

26.3 despite becoming aware of the damaged condition of the hose in the circumstances pleaded in paragraph 10.2 of this defence it:

26.3.2 failed to re-route the hose away from the engine and turbo;

26.3.3 encased the hose with fibreglass and chicken wire heat wrap without giving any or any adequate consideration to the integrity of the hose and its vulnerability to corrosion and failure;

26.4 having encased the hose with fibreglass and chicken wire heat wrap it failed to:

26.4.1 implement any or any adequate inspection regime of the hose to detect for signs of further damage or deterioration;

26.4.2 inform or warn any third parties, including those undertaking inspections of the rig as pleaded in paragraph 10.4 of this defence, of the damaged condition of the hose and of the fibreglass and chicken wire heat wrap which it had applied to the hose;

26.5 it failed to properly inspect, service or maintain the rig;

26.6 it failed and neglected to provide drilling equipment that was in good order and condition and safe for use;

26.7 if, as pleaded in paragraph 9(d) of the statement of claim, the plaintiff was not wearing personal protective equipment that would protect him from heat or fire, then the first defendant:

26.7.1 failed to provide to the plaintiff with such equipment (sic);

26.7.2 permitted the plaintiff to work on the rig while wearing inappropriate clothing."

10 ChoiceOne led no evidence to support its allegations of negligence by Drill Power in pars 26.1, 26.1.1, 26.1.2, 26.1.3, 26.2, 26.3 or 26.7. Counsel for ChoiceOne purported to rely on Drill Power's consent judgment filed on 27 February 2007 and submitted that consent amounts to an admission by Drill Power of all the particulars of negligence pleaded by Mr Barns. Counsel referred to the Tasmanian Supreme Court decision Grimsey (an infant) by her next friend Henry Charles Grimsey v Southern Regional Health Board [1997] TASSC 77. That case and the authorities therein cited do not support the proposition counsel advanced. The law is clear that "The mere fact that a judgment is by consent does not detract from its conclusive effect upon the issues determined by it (South American and Mexican Co; In re; Ex parte Bank of England [1895] 1 Ch 37). But a judgment operates by way of estoppel only as to those matters which are necessarily decided by it (Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 at 532; Jackson v Goldsmith (1950) 81 CLR 466). The High Court has noted that: "The fact that a judgment is entered by consent may on occasion make it hard to say what was necessarily decided by the judgment" (Chamberlain v Deputy Commissioner of Taxation (Cth) [1988] HCA 21; (1987-1988) 164 CLR 502 at 508). In Grimsey Wright J summarised the legal position:

"... where there has been a judgment entered by the consent of the parties which necessarily involves a determination of some question of law or issue of fact, in the sense that the judgment could not have been legitimately or rationally entered without, at the same time, determining that question or issue in a particular way, such determination, even though not declared on the face of the recorded decision, is deemed to form an integral part of it as effectively as if it had been made so in express terms."

11 In Grimsey judgment had been entered by consent for damages to be assessed in a case where the plaintiff alleged medical negligence at the birth of the infant plaintiff causing cerebral palsy. Wright J applied the appropriate principles and held that the issue of causation had not been resolved by the consent judgment but must be proved by the plaintiff during the assessment of damages. The issue of whether the negligence of the plaintiff caused the cerebral palsy remained in issue.

12 In this case Drill Power's consent to judgment operates as an estoppel and necessarily decided that Drill Power owed Mr Barns a duty of care, that Drill Power breached its duty of care and as a result of the breach Mr Barns suffered damage in the amount of $1,013,498.50 with costs of $30,000. It was not "necessarily decided" or "necessarily involved" in the consent to judgment that any or all particulars of negligence pleaded by the plaintiff were admitted by Drill Power.

The cause of the accident and Drill Power's liability

13 In these contribution proceedings the liability of Drill Power has been determined by its consent to judgment. But the cause of the accident is an issue I must determine based on the evidence led at trial. Drill Power has led evidence in support of its pleading against ChoiceOne (except par 12(e)) to support its contention that no proper or adequate safety inspection was carried out, that the defects in the hose were not detected and that ChoiceOne permitted Mr Barns to work on a dangerous drill rig.

14 There was a considerable amount of evidence concerning the maintenance and inspection of the drill rig prior to the accident. Mark Lorne, the managing director of Parlin Pty Ltd t/as Drill Power took delivery of the drill rig in 1995 (Exhibit 6). The drill rig underwent many services and changes detailed in Exhibit 9, the log book for service on the vehicle. There were a number of inspections during 2003 prior to the accident:

• In May 2003 Mr Lorne arranged for the drill rig to be inspected by Air Receiver Inspection Services. Their report (Exhibit 4, Annexe A) does not mention any inspection of the pressure hoses.
• In mid-2003 after Mr Lorne had submitted a quotation for drilling work at the Plutonic mine site, Plutonic's head of development, Matt Fallon and two other employees came to Drill Power's workshop in Meekatharra and inspected the drill rig. No details of that inspection are available but Mr Lorne was not told of any defects in the hoses.
• Before commencing work on the Plutonic mine site the drill rig was taken to the BGC workshop to be inspected. Peter Peebles worked as a geologist for Barrick Gold at the Plutonic mine site from mid-2002 until early 2004. Mr Peebles gave evidence that whenever a new drilling contractor came to site the drilling rig and equipment had to undergo a safety check audit at the BGC on-site workshop. Mr Lorne said that he was not contacted by anyone to discuss the outcome of that inspection nor was he informed of any problem with the hoses.
• Mr Lorne tendered portions of Drill Power's safety and health manual (Exhibit 7) and gave evidence of monthly routine on-site safety inspections and safety audits carried out by the managing director of Drill Power at three monthly intervals (Exhibit 7, p 382).
• Drill Power's safety and health manual also required formal rig inspections when starting on a site and at three monthly intervals (Exhibit 7, p 382) with results of the formal rig inspections to be recorded on the Form 11.1 at Exhibit 7, p 384. Nothing on that form refers to inspection of the pressure hoses.
• The safety and health manual (Exhibit 7, p 418) includes a requirement that at the start of each shift before drilling commenced to "check all high pressure hoses for signs of damage and positioning of whipchecks". Mr Lorne said that was a visual check (T148). The "whipcheck" ensured the hoses were secured to the rig.
• A further safety check was advised (Exhibit 7, p 400) of components and tools which are prone to fatigue:

"It is good practice to inspect individual components that are in constant use each time the rig is set up. Other components may only require inspection every week, month or at each major service.

Inspect the condition of high-pressure lines, ie. hydraulic and air hoses. Pay particular attention to the couplings. On air lines ensure safety pins and/or adequate whipchecks are properly installed."

Again, Mr Lorne admitted these were just visual checks of the hoses.

• There was also evidence of toolbox meetings held weekly on-site attended by the driller, two offsiders, the geologist and his field assistant. The purpose of the toolbox meetings was to raise safety issues.

15 Under cross-examination Mr Lorne admitted the fibreglass lagging and the chicken wire were put on the hose in order to protect it from the heat of the turbo (T176) but he claimed initially that he could not recall who put the lagging on or when it was put on. Once shown his earlier statement made on 11 December 2003 (Exhibit 6) Mr Lorne admitted he had wrapped the hose and put the chicken wire on it. His statement indicated he had done it sometime during the last two years but he said he could not remember when. Mr Lorne also admitted that if anyone had asked him why the lagging and chicken wire were on the hose he would have told them it was to protect the hose from heat.

16 Mr Lorne gave evidence that if ever a problem were detected the drill rig was immediately shut down until the problem was corrected. He said he was aware of safety requirements and he believed he ran a very safe and efficient operation so that he had an excellent safety record apart from this accident.

17 Under re-examination Mr Lorne confirmed that the fibreglass lagging and the chicken wire were on the pressure hose when the drill rig came to the Plutonic Mine Site and that no-one took the coverings off to inspect the condition of the pressure hose underneath the lagging as part of any of the safety inspections he was aware of or had referred to.

18 ChoiceOne submits that because of Drill Power's failure to call any expert evidence to establish that a reasonable inspection under the lagging and chicken wire would have revealed the defects in the hose and to give expert evidence of what caused the hose to fail I am left in a vacuum and cannot make a finding as to the cause of the failure of the hose and the cause of the accident.

19 I accept ChoiceOne's submission that causation needs to be established by evidence but I do not accept that expert evidence is needed. In this case there is undisputed evidence that:

(1) The hose was heavily gouged and lacerated under the lagging and chicken wire. This is apparent in the photographs Exhibit 1.

(2) The area of the hose that showed signs of fire damage was under the lagging and chicken wire. This can also be seen in the photographs Exhibit 1.

(3) There was no evidence the lagging and chicken wire were ever removed during any inspection prior to the accident (evidence of Mr Lorne, 207).

20 Based on these facts I am prepared to draw the inference on the balance of probabilities that the most likely cause of the fire that engulfed Mr Barns was a failure of the high pressure hose in a location under the lagging and chicken wire and to draw the further inference that if the lagging and chicken wire had been removed prior to the accident for the purpose of properly inspecting the hose, the gouges and lacerations would have been able to be seen and the hose would have been replaced. Therefore the inference can be drawn and I am satisfied on the balance of probabilities that it was the failure to properly inspect the pressure hose and to remove the lagging and chicken wire in order to check the condition of the hose underneath the covering that caused the accident.

21 The evidence established that operations using this RAB drill rig were very dangerous and all participants were well aware of that. The risk to the workers when a high pressure hose containing flammable liquids was used on a hot drill rig was readily apparent. Safety checks were done but in the circumstances were not adequate because portions of the hose were covered by the lagging and chicken wire. There was also evidence that the large high pressure hose lay in an area covered by other smaller hoses. The smaller hoses could easily have been moved aside. The need to move those smaller hoses and to inspect under the lagging and chicken wire was a simple measure that should have been undertaken. I am satisfied Drill Power breached its duty of care owed to Mr Barns by failing to adequately inspect the hose (Wyong Shire Council v Shirt [1980] HCA 12; (1979-1980) 146 CLR 40 per Mason J at 47 - 48). This finding is consistent with Drill Power's consent to judgment.

Issue 2: Whether ChoiceOne is a tortfeasor who is or would, if sued, have been liable in respect of the same damage to the plaintiff

22 ChoiceOne denies it is a tortfeasor who is or would if sued have been liable in respect of the same damage. It contends that it had no control over Mr Barns' workplace or the rig, no opportunity to inspect the site, and could not have detected the defect in the hose if it had inspected the site. It submits that this was a case where it had delegated employment of Mr Barns to Drill Power and de facto control of Mr Barns had passed to Drill Power. It relies on Signet Engineering Pty Ltd v Melvan & Anor [2003] WASCA 313; Fennell v Supervision & Engineering Services Holdings Pty Ltd and Santos Ltd (1988) 47 SASR 6; Atkinson v Gameco (NSW) Pty Ltd [2005] NSWCA 338.

23 Drill Power relies on ChoiceOne's employer's non-delegable duty of care to its employees and contends that ChoiceOne did nothing at all to ensure the safety of Mr Barns despite knowing he was being placed in dangerous work on a drilling rig at the mine site. Drill Power contends ChoiceOne had a duty to ensure its employees' workplace (the rig) was safe and could have required a complete safety inspection of the rig before sending its employee to the site. Drill Power denies ChoiceOne can entirely delegate its obligations. It contends that ChoiceOne's duty when it sent its employee to work at a remote site was a duty to ensure care was taken and it had breached that duty by doing nothing. ChoiceOne relies on Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672; TNT Australia Pty Ltd v Christie & Ors [2003] NSWCA 47; Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99; Hill v Fermont Holdings Pty Ltd & Ors, unreported; DCt of WA; Library No D990079; 1 April 1999.

24 In determining contribution proceedings I must proceed on the evidence tendered before me. I dismiss the allegations in the paragraphs of ChoiceOne's pleading on which there is no evidence (pars 26.1, 26.1.1, 26.1.2, 26.1.3, 26.2, 26.3 and 26.7). The evidence I have received in this trial established failure to implement an adequate inspection regime of the hose (26.4.1), failure to properly inspect the rig (26.5) and failure to provide drilling equipment that was in good order and condition and safe for use (26.6). Those particulars have been established.

(a) to provide proper and adequate plant and equipment;

(b) to engage reasonably competent workers or contractors; and

(c) to provide a reasonably safe system of work. (Dib Group Pty Ltd t/as Hill & Co v Cole [2009] NSWCA 210 at [25]).

26 In Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839 at [12] - [16] where the Court set out the common law:

"[12] An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury.

...

[16] An employer has another obligation. It is to provide employees with suitable plant and equipment to enable them to carry out their work safely."

27 In this case I am satisfied Drill Power failed to provide suitable plant and equipment to enable Mr Barns to carry out his work safely because it failed to maintain and adequately inspect the large pressure hose on the drill rig.

28 ChoiceOne now admits it is the employer of Mr Barns. Surprisingly that admission was made in amendments to its pleading on 8 April 2010, four days before the commencement of the trial. I accept ChoiceOne's submission that there was uncontested evidence Mr Barns was an employee of ChoiceOne at the time of the accident, that he worked at the Plutonic Gold Mine site, a site owned and operated by Barrick using equipment owned, operated, maintained and controlled by Drill Power and that Mr Barns worked on-site under the direction, control and supervision of Drill Power.

29 Kim Michelle Howlett-Bussell was the contracts and quality assurance manager of ChoiceOne. She gave evidence that ChoiceOne is a recruitment agency and has been licensed as an employment agent since 8 July 1991. Although located in Western Australia, ChoiceOne's clients (employers) were located not only in Western Australia (50 per cent) but also on the eastern seaboard of Australia (30 per cent) and overseas (20 per cent). The majority of its staff were recruitment consultants who recruit candidates for clients, vet the candidates for suitability and make recommendations to the clients. Ms Howlett-Bussell gave evidence that during the 18 months from 1 July 2003 to the end of 2004 ChoiceOne placed 11,279 temporary candidates, 153 contract candidates and 321 permanent candidates. Of those, 74 temporary, 4 contract and 11 permanent candidates were placed in the "industry/mining/engineering" skill group.

30 It was standard procedure for client employers to contact ChoiceOne with their requirements. ChoiceOne identified candidates and then collected CVs, conducted face-to-face interviews and, if a candidate were considered suitable and the candidate's skills and qualifications had been verified, recommended the candidate to the client. If the client wanted that candidate then ChoiceOne engaged the candidate on its payroll as its employee and placed the candidate with the client for a fixed period of up to three months. After that time the candidate would become the employee of the client and become a permanent placement.

31 That was the procedure followed in ChoiceOne's employment of Mr Barns. On 28 July 2003 Mr Barns sent a letter and resumé to ChoiceOne and the documents were considered by one of ChoiceOne's recruitment consultants, Mr Peter John Elliot who specialised in the mining and industrial industries placements for ChoiceOne. Mr Barns was interviewed on 11 August 2003 by Mr Elliot when he filled out a ChoiceOne pre-placement form and a health questionnaire. Mr Elliot prepared a casual employment contract which was signed on 30 September 2003 by Mr Barns. By that time Mr Elliot had left ChoiceOne and the matter of Mr Barns' employment was being handled by Ms Denise Julie Butter, another recruitment consultant who looked after Mr Elliot's clients when he left. Mr Barns commenced employment at the Plutonic Gold Mine site on 2 October 2003. He was under a three month temporary placement employed by ChoiceOne on a contract providing for three weeks on and one week off.

32 ChoiceOne through Mr Peter Elliot had earlier placed another driller's offsider with Drill Power, Ben Foley who commenced on 22 August 2003 as a temporary (three month placement) with Drill Power while employed by ChoiceOne. Mr Foley commenced permanent placement with Drill Power on 22 November 2003.

33 Ms Howlett-Bussell admitted ChoiceOne does not visit client sites in remote locations prior to placing its employees with the client because "it is not practical to do so" (Exhibit 21, par 32). Under cross-examination Ms Howlett-Bussell said:

"The safety of a candidate going out to a client site was making sure we didn't do business with organisations that are known unforeseen track records in relation to safety and ensuring when we did place candidates out with client sites that it was the known requirement of what their safety standards were." (T323-324)

Ms Howlett-Bussell admitted however that ChoiceOne had no procedure or protocol in place in 2003 to satisfy itself about the safety of equipment that people in Mr Barns' position worked with.

34 Mr Elliot, ChoiceOne's recruitment consultant, had experience in underground mining prior to his employment with ChoiceOne. Mr Elliot spoke with Desley Lorne from Drill Power and in conversation with her learned about Drill Power's needs first for one driller's offsider then eventually for two such persons. Mr Elliot understood the nature of the job on a rotary air blast (RAB) drill rig. He also realised that Drill Power wanted persons who had worked in harsh environments and would stick around and not leave after a few weeks. Mr Elliot had seen RAB drill rigs in operation and he knew from prior experience that Barrick required all contractors to comply with their safety requirements. He also understood that mining operators placed heavy importance on safety because a mining company with a bad safety record did not get contracts.

35 Neither Mr Elliot nor Ms Butter the two recruitment consultants who had direct contact with Mr Barns had any safety role in ChoiceOne. Mr Elliot tendered the contract signed by Mr Barns with ChoiceOne (Exhibit 19, Annexure PJE 11). The "safety" section of the document placed obligations on Mr Barns but there were no obligations placed on ChoiceOne.

"Safety

You will comply with all relevant legislation, codes of practice and the Client's Safety Policies as amended from time to time and this includes complying with the Occupational Health and Safety Act 1984, the Mines Safety and Inspection Act 1994 and the Mines Safety and Inspection Regulations 1995 as appropriate."

36 Mr Barns signed that contract on 30 September 2003 shortly before he was flown to the Plutonic Gold Mine to commence his employment.

37 Mr Elliot admitted under cross-examination that he knew of no obligation placed on ChoiceOne to ensure the safety of Mr Barns at the worksite. Ms Butter admitted that she had nothing to do with any aspect of Mr Barns' safety at the worksite. Neither Mr Elliot nor Ms Butter had any contact with their employees Mr Barns or Mr Foley once each commenced working at the gold mine. ChoiceOne paid each employee weekly based on invoices supplied by Drill Power.

38 In Australia it has been the law since at least 1984 that an employer owes a non-delegable duty of care to its employee. In the case of Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672, Mason J at 680 - 681 discussed the difference between an employer's common law duty of care no higher than the general duty to take reasonable care and exercise reasonable skill for the safety of an employee with what had been discussed in the decision of the House of Lords in Wilsons & Clyde Coal Co v English [1937] UKHL 2; [1938] AC 57 where the House of Lords developed the concept of the non-delegable duty of an employer to an employee and spoke of it as a personal duty that could not be delegated to its own employees or to independent contractors. In Kondis Mason J went on to say at 681:

"The concept of the employer's personal duty as explained by Lord Wright amounts to a duty to see that care is taken, e.g., in the provision of safe premises and of a safe system of work. Although in this respect it imposes on the employer a more stringent obligation than that imposed by the general duty to exercise reasonable care and skill, Lord Wright characterized it as a particular exemplification of the general duty in its application to an employer with respect to the safety of his employees. So it is said that the employer in order to discharge his general duty of care for the safety of his employees must ensure that reasonable care and skill is exercised in relevant respects."

39 Mason J went on at 687 to note that the special duty arises because of the relationship between the parties and is not based on foreseeability of injury.

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

...

The foreseeability of injury is not in itself enough to generate the special duty. Before the special duty arises there must exist in the relationship between the parties an element of the kind already discussed.

That such an element exists in the relationship of employment is beyond serious challenge."

40 The issue of control and supervision as it affects the non-delegable duty of care was further considered on the facts in Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16 at 32 - 33 per Mason J.

"... In Kondis the crane driver assumed the control or supervision of the labourer who was injured, control or supervision which was ordinarily exercised by the employer. ... Here, Gray had not in any sense assumed control or supervision of Stevens during the loading operation. And, as I have found, Brodribb did not exercise control of, or retain a right to control or supervise, the loading operation. In these circumstances it can scarcely be suggested that Stevens could reasonably expect that Brodribb would see to it that due care was exercised in the loading operation by Gray. Indeed he probably would have been surprised at the suggestion that Brodribb should have done so."

41 The application of the principle of non-delegable duty of care to an employer has been discussed at some length in a number of labour hire cases. ChoiceOne has relied extensively on Fennell v Supervision & Engineering Services Holdings Pty Ltd v Santos Ltd (supra) and Signet Engineering Pty Ltd v Melvan & Anor [2003] WASCA 313. The principle in these two cases can be found in the judgment of King CJ in Fennell at 7 where he said:

"As to the contribution proceedings, I think that it may well have been proper to hold the appellant's employer, the first defendant, liable to the appellant for breach of a non-delegable duty to provide a safe system of work. It is unnecessary, however, to decide this point. De facto control of the appellant had passed to Santos Ltd and the fault which caused the appellant's injury was that of Santos Ltd. Whatever may have been the position between the appellant and his employer, as between the employer and Santos Ltd the responsibility for the safety of the appellant lay with Santos Ltd. If therefore the employer were held liable to the appellant it would have been entitled to recover contribution to the extent of full indemnity from Santos Ltd. It would therefore be proper to exempt the first defendant from liability for contribution. The claim for contribution was rightly dismissed."

42 McKechnie J reached a similar conclusion in the Signet Engineering case at [58].

"The Commissioner then analysed the relationship between GMA and Signet, and Signet and Abesque. He concluded that, in the light of the facts, even if Abesque had a non-delegable duty of care to provide a safe system of work and breached it, in light of the facts de facto control of Mr Melvan had passed to Signet it would be proper to exempt Abesque from liability for contribution."

43 Neither of these cases examined in detail the duty of care owed by the labour hire firm to its employees when the employees are sent to work on the premises of a third party. Both in Fennell and Signet the existence of the non-delegable duty of care was accepted but judicial reasoning centred on the concept of de facto control of the premises or the system of work or the equipment and moved directly to what is Issue 3 in these proceedings that is, the just and equitable apportionment of damages in the contribution proceedings.

44 There are numerous cases in New South Wales and Victoria where labour hire firms have been held liable in circumstances where their employee suffered injury in the course of employment at the premises of a third party or under the supervision of a third party. In the TNT case in 2003 the New South Wales Court of Appeal considered circumstances similar to those I am concerned with in this case. The plaintiff Christie injured his foot as the result of a faulty pallet jack. He was employed by Manpower and sent to work at the premises of TNT, a brewery site. TNT, its servants and agents directed him in his daily work and supervised him day-to-day and assigned him his work. Manpower employed him and paid his wages. A Manpower representative came to the brewery once a week, and was aware of the nature of the plaintiff's work but was primarily concerned with administrative matters. The faulty pallet jack was owned by Crown and serviced by them. Mason P referred to Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13; (1994) 179 CLR 520 where the High Court said at 550:

"It has long been recognized that there are certain categories of case in which a duty to take reasonable care to avoid a foreseeable risk of injury to another will not be discharged merely by the employment of a qualified and ostensibly competent independent contractor. In those categories of case, the nature of the relationship of proximity gives rise to a duty of care of a special and 'more stringent' kind, namely a 'duty to ensure that reasonable care is taken'. Put differently, the requirement of reasonable care in those categories of case extends to seeing that care is taken."

45 The person who owes the non-delegable duty of care may be liable without fault other than failing to ensure that care is taken (Elliott v Bickerstaff [1999] NSWCA 453; (1999) 48 NSWLR 214 at 238 per Giles JA).

"The person who owes the non-delegable duty of care may be liable without fault, whether personal or of a servant or agent. Although conceptually the breach of duty will be a breach of that person's duty of care, the so-called duty of care in truth is not a duty to take care but a mechanism for responsibility for someone else's failure to take care. The concept of a non-delegable duty of care has nonetheless been recognised for over a century."

(a) a non-delegable duty of care will (like a duty based on vicarious liability) be imposed on categories of persons regardless of personal fault on their part in the circumstances giving rise to the plaintiff's injury; but

(b) the plaintiff must prove that damage was caused by lack of reasonable care on the part of someone (not necessarily the defendant) within the scope of the relevant duty of care.

[48] The second requirement, namely that the plaintiff's injury occur within the scope of the special relationship, is frequently passed over because the requirement is clearly satisfied in the particular case. But the issue cannot be ignored and it has significance in cases such as the present."

An employer cannot "slough off" its duty by sending an employee to a workplace under the day to day control of others (TNT at [54]).

"In my view, it would be contrary to principle to enable or even to encourage an employer that operates a labour hire business to treat the normal incidents of the employment relationship as modified simply because its employees are sent off to work for a client. Indeed, the very fact that employees are dispatched to external venues and placed under the de facto management of outsiders will, in some cases, have the practical effect of requiring the employer to adopt additional measures by way of warning or training in order to discharge its continuing common law duty of care to its employees."

Mason P then concluded that if the findings of negligence in regard to maintenance and/or repair of the jack are determined against Crown then both TNT and Manpower would be liable in tort to the plaintiff.

48 The New South Wales Court of Appeal decision in Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 followed the reasoning in the TNT case. Pollard was a concrete agitator truck driver whose services were provided to Pioneer Constructions by his employer Dependable Personnel. Baulderstone was one of the head contractors on the project. Pollard was required to attend at various worksites in the course of his employment. McColl JA wrote the leading judgment of the New South Wales Court of Appeal. She upheld a finding of 20 per cent liability against the labour hire firm employing Pollard at [58]:

"Dependable must have known that Pioneer's system of work exposed the appellant to different site conditions throughout the day. In my view it was incumbent upon Dependable, in order to discharge its non-delegable duty of care to the appellant, to ensure that a reasonably safe system of work was devised which ensured that the appellant could carry out work of an ambulatory nature with safety. It was clearly foreseeable that there may be a risk of injury at any of the numerous sites the appellant could be expected to visit on any given day to deliver concrete. The fact that the appellant was required to visit so many construction sites and that Dependable could anticipate that there would be a variety of hazards at each site to which the appellant might be sent, underlined the necessity to give him adequate instructions and guidance about what to do if he encountered conditions which exposed him to a risk of injury. In my view to discharge its non-delegable duty of care, Dependable had to adopt measures by way of both warning and/or training to require persons such as the appellant to report dangerous conditions and to seek instruction as to what to do in the circumstances."

49 In the Victorian Court of Appeal in Victorian WorkCover Authority v Carrier Air Conditioning Pty Ltd [2006] VSCA 63 a labour hire firm sent its employee to work at Carrier as a temporary labourer without doing a site visit or enquiring as to safety procedures or safety inductions on site. The worker was injured when he fell from a makeshift platform and injured his ankle. Although the case was brought under Victoria's WorkCover legislation, the Victorian Court of Appeal held that the "nature of the exercise was akin to the determination of entitlement to contribution under Part IV of the (Victorian) Wrongs Act" (Carrier at [59], Esso Australia Pty Ltd v Victorian WorkCover Authority [2000] VSCA 74; (2000) 1 VR 246). The Victorian Court of Appeal held that the labour hire fire had breached its duty of care to the worker and fixed the labour hire contribution at 35 per cent (Carrier at [62]).

50 The remoteness of the location where a labour hire firm sends an employee to work was considered in the Esso Australia case. AFCO had sent its employee to work on Esso's oil platform in the Bass Strait where he was injured when he fell from his bunk. The court found AFCO had the right to visit the premises and make recommendations if it believed its employee was at risk. Damages were apportioned 80 per cent against Esso and 20 per cent against the employer AFCO.

51 One Choice relies on Atkinson v Gameco where the plaintiff was injured in Thailand. This was not a labour hire case. His employer Gameco had sent him to Thailand as a salesman and he was injured when an improperly secured ladder detached from a tank and he fell. The New South Wales Court of Appeal found that Gameco's duty of care did not extend to the premises in Thailand at [20]:

"In the present case, Gameco had no opportunity to inspect the premises, Mr Atkinson was visiting the premises only for the purpose of attempting to sell Gameco's product and had been there for relatively a very short time. Gameco had no knowledge of the particular danger and it had virtually no capacity to shield Mr Atkinson from the danger that materialised. In reality, the only possible arguable way in which Gameco, practically, might have been able to protect Mr Atkinson from the risk that materialised was by training him in general safety measures."

52 Gameco was a very different case from the one I am considering. It was not a case where a labour hire firm was placing its employee on a worksite for a three month period. It was not a case where Gameco had pre-knowledge that there were many dangers associated with their employee's work at the site. Thailand is much more remote than the Plutonic gold mine site. I accept ChoiceOne's argument that it would not be reasonable to have expected Gameco to inspect and ensure the safety of its salesman sent overseas to sell its products. But the facts in Gameco are quite distinct from what I am dealing with in this case.

53 In Bourke v Hassett [1998] VSCA 24; [1999] 1 VR 189 the Victorian Court of Appeal set out the principles which govern the determination of liability when an employee is sent to a worksite by a labour hire firm:

"[41] ... True it is that, where an employer sends his employee to work at or in premises occupied or controlled by another, that occupation and control by another person may be a relevant fact in considering whether the employer had been in breach of his own independent duty to the employee. But the fact that the employee's work is required to be done on premises of another does not absolve the employer of his duty. Its impact upon whether he has breached his duty will depend on all the circumstances. ...

[42] One can conceive a multitude of circumstances where workmen are sent to work upon premises controlled by others in which the impact upon the discharge of the employer's duty will vary. It will depend no doubt upon such matters as the employer's opportunity to inspect the premises, the length of time the employer has put his employees to work on the premises, the awareness in the employer of the danger, his capacity to shield his employees from the danger and various other factors. ..."

54 The circumstances in this case were that ChoiceOne was well aware through its employee Peter Elliot that Mr Barns would be involved in very dangerous work as a driller's offsider on an RAB drill rig. ChoiceOne was aware that it was sending an employee for a considerable length of time - three months - to work on a dangerous worksite. Earlier ChoiceOne had sent another employee to fill the same position on the drill-rig as a driller's offsider. Both Mr Foley and Mr Barns were sent to the worksite for three month's employment - a not inconsiderable period of time. The mine site was remote - a two hour flight from Perth in a location north of Meekatharra. There was no evidence that ChoiceOne would not have been allowed access to the worksite for a safety inspection but the evidence did establish that anyone who visited the site had to undergo a one half day safety induction before being allowed on site.

55 ChoiceOne submitted that because of the remoteness of the site and the number of people it employed and placed in the mining industry that it would not be reasonable to expect ChoiceOne to undertake a site safety assessment before it placed its employees. There is merit in that submission but it fails to take account of the particular duty of care that ChoiceOne owed to Mr Barns. It was a personal duty to see that care was taken for Mr Barns' safety. (Kondis at 681: Burnie Port Authority at 550 TNT at [47] and [67]). In this case ChoiceOne did nothing to ensure that care was taken for the safety of Mr Barns.

56 I accept it may not be reasonable to require an employer in the position of ChoiceOne to visit every remote location before it placed its employees on mine sites. But there is no evidence ChoiceOne did anything before placing its employees on site with Drill Power to ensure that care was taken for Mr Barns' safety (or that of Mr Foley). I have no evidence ChoiceOne did anything at all about Mr Barns' safety. ChoiceOne purported to delegate its entire duty of care to Drill Power and Barrick.

57 Drill Power suggests ChoiceOne's duty of care required it to ensure safety protocols and safety procedures were in place at the mine site and that there were adequate procedures for the maintenance and inspection of the drill rig before it sent its employees to work on the rig. Drill Power suggests ChoiceOne could have required a complete safety inspection of the rig before sending its employee to the site. ChoiceOne's only answer to that proposition is that even if it had such protocols and procedures in place or had required a complete safety inspection of the rig it would not have mattered. ChoiceOne submits that if it had verified the safety procedures and inspections on site it (like Drill Power and Barrick) would not have detected the gouged and abraided part of the pressure hose under the lagging and chicken wire.

58 That answer does not answer the ultimate question. I am satisfied ChoiceOne as the employer delegated its safety inspection duties to Drill Power and to Barrick. There was a failure to properly inspect the power hose by Drill Power. ChoiceOne cannot avoid its own liability for the failure of its delegate. That would be inconsistent with ChoiceOne's personal non-delegable duty of care owed to Mr Barns by his employer. I accept and apply the principle referred to by Mason P in TNT at [47].

59 Drill Power has established that damage was caused by a lack of reasonable care on its part so that Mr Barns was injured within the scope of his employment. Drill Power has established that ChoiceOne, as his employer, is a tortfeasor who is liable in respect of the same damage. The extent of ChoiceOne's liability arises under issue 3.

Issue 3 If so, what amount of contribution is just and equitable by ChoiceOne to Drill Power

60 ChoiceOne submits, even if it is found to be liable for the same damage as Drill Power, it would not be "just and equitable" for it to pay any portion of Mr Barns' damages because it had no control of Mr Barns' workplace and had delegated its employer's duties to Drill Power. ChoiceOne submits it should receive a 100 per cent indemnity.

61 Drill Power concedes it is the primary tortfeasor but contends that ChoiceOne's complete failure in its duty to ensure care was taken for the safety of Mr Barns in his employment on the facts of the case grounds its claim against ChoiceOne for contribution of 15 to 25 per cent of the damage suffered.

62 The issue of indemnity is dealt with in the legislation. Section 7(1)(c) of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 provides:

"(c) any tortfeasor liable in respect of that damage may recover contribution from any other tortfeasor who is or would if sued have been liable in respect of the same damage whether as a joint tortfeasor or otherwise but so that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by him in respect of the liability for which contribution is sought

A person shall be entitled to be indemnified within the meaning of this paragraph -

(i) if his complicity in the tort arose from fraud or misrepresentation practised on him by the person from whom the indemnity is sought so that he honestly believed and had no reasonable cause to suspect the truth of the matters represented to him and would not have been liable in tort if such matters had been true;

(ii) where the act was not clearly illegal or tortious in itself and the person seeking indemnity had no knowledge when the tort was committed of the true legal character of the act;

(iii) where he is responsible on grounds of vicarious liability as for example in the case of master and servant or as a member of a partnership where the act was done without his connivance, knowledge or express authority."

There is no evidence bringing ChoiceOne within s 7(1)(c)(i) or (ii).

63 Section 7(1)(c)(iii) raises the issue of vicarious liability and provides examples: - master/servant or member of a partnership. The evidence does not bring ChoiceOne within either of the two examples. But in the TNT case Mason P said the non-delegable duty of care was "like a duty based on vicarious liability" (TNT at [47]). Despite this comment I am not persuaded that ChoiceOne's liability can properly be characterised as vicarious liability. Its non-delegable duty of care does impose liability for the negligence of others to whom ChoiceOne has delegated responsibility. But ChoiceOne's duty of care is of a different nature - a duty to ensure that care is taken for the safety of its employee. ChoiceOne could fulfil its duty of care by taking appropriate steps to ensure care was taken for the safety of Mr Barns. There would then be no liability for the negligence of Drill Power. For these reasons I am satisfied this was not a case falling within s 7(1)(c)(iii) entitling ChoiceOne to be indemnified.

64 Section 7(2) provides:

"(2) In any proceedings for contribution under this section the amount of the contribution recoverable from any person shall be such as may be found by the Court to be just and equitable; and the Court shall have power to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity."

65 ChoiceOne relies on Fennell at 7 and 13 and on Signet Engineering at [56] - [60] for the proposition that where de facto control of Mr Barns passed from ChoiceOne to Drill Power and Barrick then ChoiceOne should be indemnified for any negligence on the part of Drill Power and Barrick.

66 In Fennell the injured storeman, an employee of Supervision and Engineering Services, was hired to Santos Ltd where, in the course of his employment he was injured. Santos was found liable in negligence and claimed contribution against the employer. King CJ did not find it necessary to determine the employer's liability to the injured worker. He dismissed Santos' claim for contribution noting that "If ... the employer were held liable, it would have been entitled to recover contribution to the extent of full indemnity from Santos ..." (Fennell at 7). That finding was made because "de facto control of the appellant [Fennell] had passed to Santos Ltd and the fault which caused the appellant's injury was that of Santos ..." (Fennell at 7). Jacobs J in his judgment at 13 and 14 found that:

"In the circumstances of this case, and for reasons already stated in the course of this judgment it would be neither just nor equitable to attribute to SES any responsibility for the damage suffered by the plaintiff ... and I would exercise the power to exempt SES from liability to make contribution. No representative of SES was present on site, and it is not shown to my satisfaction what SES could, let alone should, have done that might have prevented the occurrence. If the plaintiff had seen fit to complain, he would have complained to Mansbridge who would have complained to his Santos supervisors, and SES is not shown to have had any coercive authority over Santos. The actual fault in my judgment was entirely the fault of Santos. On any view of the law and the facts, the claim of Santos for contribution from SES should be dismissed."

67 ChoiceOne submits that de facto control of Mr Barns' employment passed entirely to Drill Power and Barrick, the fault was entirely that of Drill Power and Barrick and ChoiceOne submits it is entitled to a full indemnity.

68 The facts in Signet Engineering were somewhat different. The injured employee Melvan and the employer Abesque were the first and second plaintiffs in an action against Signet Engineering. Abesque brought its action against Signet claiming an indemnity in respect of the workers' compensation payments made by it to its employee Melvan. Abesque was successful in its action. Both at first instance (Melvan & Anor v Signet Engineering Pty Ltd [2002] WADC 205) and in the Court of Appeal (Signet Engineering Pty Ltd v Melvan & Anor [2003] WASCA 313) Abesque was successful because "de facto control of Mr Melvan had passed to Signet" and Abesque was exempt from liability ([2003] WASCA 313 at [58]). Both adopted the reasoning in Fennell. ChoiceOne urges me to adopt that same reasoning in my decision in this case.

69 There is a need to exercise caution before doing that because the statutory provision governing contribution in South Australia was found in s 26 of the Wrongs Act 1936 and is set out in Fennell at 13. The statute in South Australia specifically provides that:

"the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable, having regard to the extent of that person's responsibility for the damage; and the court shall have power to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity."

70 The provisions of the West Australian Law Reform (Contributory Negligence) Act are in different terms and do not make reference to "the extent of that person's responsibility for the damage". The terms "just and equitable" in s 7(2) are not governed by any limitation. Also, given the non-delegable nature of ChoiceOne's duty of care, I need to consider all the circumstances of the case (Bourke v Hassett at [41] and [42]).

71 The law governing apportionment among joint tortfeasors is founded on the same principles that govern apportionment of damages in cases involving contributory negligence. In order to determine what, if any, apportionment is just and equitable it is necessary to consider all the circumstances of the case and then make a comparison of both culpability and the relative acts of the parties in causing the damage:

"The making of an apportionment as between a plaintiff and the defendant of their respective shares and the responsibility for the damage involves the comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man ... and of the relative importance of the acts of the parties in causing the damage.

...

It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage would be of little, if any, importance."

Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 at 494.

72 In this case I have found that the accident was caused by the failure of Drill Power to properly inspect the high pressure hose. That finding takes into account the inspections carried out by Drill Power and Barrick in each case failing to remove the lagging and chicken wire from the hose. As a consequence, the condition of the hose under the lagging was never inspected and the gouge or split in the hose was never noticed.

73 Drill Power pleaded six particulars of negligence against ChoiceOne:

(a) failed to ensure that a proper safety inspection of the first defendant's drill rig was undertaken;

(b) failed to conduct a safety inspection of the first defendant's drill rig;

(c) failed to inspect the first defendant's drill rig;

(d) failed to detect the defects pleaded in sub-paragraphs 7(a) and (b);

(e) failed to provide the plaintiff with personal protective equipment;

(f) permitted the plaintiff to work with a dangerous drill rig.

74 It is conceded that (e) has not been established by evidence during the trial.

75 ChoiceOne submits that in the circumstances of this case it was not reasonable to expect it to personally conduct safety inspections or to personally inspect the drill rig. I accept that submission. The evidence showed that over an 18 month period from 1 July 2003 to 31 December 2004, ChoiceOne placed 89 candidates in industry/mining/engineering jobs. I take judicial notice of the fact that mines are often located in remote places. The mine site in this case was certainly remote. It would not have been reasonable in this case for ChoiceOne to inspect every remote work site before sending its employee to the site. I accept that it would be appropriate and reasonable for ChoiceOne to delegate safety inspection of equipment to those on site. That is particularly true of equipment such as the high pressure hose which required regular inspections over the time of its use. ChoiceOne could not reasonably be required to personally conduct regular inspections at the work site. That responsibility fell squarely on Drill Power who was in the position of an employer with direct control of the equipment and Barrick who was responsible for the site and the safety of equipment on site.

76 Having purported to delegate its duty, ChoiceOne as the employer and because of its non-delegable duty of care is itself liable for the breach of duty of its delegates (Kondis at 681, Burnie Port Authority at 550, TNT at [47]) unless it can establish that it did all it should have done to ensure the safety of Mr Barns or it can establish that its breach of its duty was not causally related to the damage suffered by Mr Barns. ChoiceOne's non-delegable duty of care required it to ensure that reasonable care was taken for Mr Barns safety including the provision of suitable plant and equipment to enable him to carry out his work safely. It is important to consider what ChoiceOne should have done. The evidence established that ChoiceOne through its employee Peter Elliot who understood the nature of the job on an RAB drill rig knew the work was dangerous. Mr Elliot knew something of the safety requirements on mine sites and something of Barrick's good safety record at its mine sites. But there is no evidence he had previous knowledge of Drill Power or knowledge of its safety procedures. In such circumstances where ChoiceOne was sending an employee to engage in dangerous work as an offsider on an RAB drill rig it should have required a complete safety inspection of the rig before sending its employee to work on the site. At the very least ChoiceOne should have had protocols in place to make specific enquiries of its client Drill Power as to the system of work and the provision and maintenance of plant and equipment at the mine site. Before sending its employee to a mine site, ChoiceOne should have satisfied itself that appropriate procedures were in place by Drill Power to ensure Mr Barns' safety. As it was sending its employee to a dangerous work site for a three month period, ChoiceOne should have taken steps to ensure that care was taken for Mr Barns' safety at the work site. It failed entirely to do that or to do anything to ensure the safety of Mr Barns.

Causation and the Civil Liability Act 2002

77 ChoiceOne argues that even if it had taken these steps it would not have prevented this accident. ChoiceOne submits that its failure to ensure that care was taken did not cause the accident - that even if it had required a complete safety inspection of the rig and had protocols requiring Drill Power to assure it of the safety of its work system and its equipment that Drill Power would have met those requirements and protocols but the accident would not have been prevented. Before considering that submission I need to look closely at the issue of causation as it applies to ChoiceOne's failure to do anything to ensure care was taken for the safety of Mr Barnes.

78 The High Court recently considered the meaning of causation in s 5D of the NSW Civil Liability Act. In Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420, in a unanimous judgment at [42], [43] and [44] the Court held:

"[42] Section 5D(1) of that Act divides the determination of whether negligence caused particular harm into two elements: factual causation and scope of liability.

[43] Dividing the issue of causation in this way expresses the relevant questions in a way that may differ from what was said by Mason CJ, in March v E and MH Stramare Pty Ltd, to be the common law's approach to causation. The references in March v Stramare to causation being 'ultimately a matter of common sense' were evidently intended to disapprove the proposition 'that value judgment has, or should have, no part to play in resolving causation as an issue of fact'. By contrast, s 5D(1) treats factual causation and scope of liability as separate and distinct issues.

[44] It is not necessary to examine whether or to what extent the approach to causation described in March v Stramare might lead to a conclusion about factual causation different from the conclusion that should be reached by applying s 5D(1). It is sufficient to observe that, in cases where the Civil Liability Act or equivalent statutes are engaged, it is the applicable statutory provision that must be applied."

79 ChoiceOne relied on the causation principles explained in Moubarak but that decision is of no assistance to me because the comparable s 5C of WA's Civil Liability Act 2002 has no application in this contribution proceeding arising from damages to which the Workers' Compensation and Injury Act 1981 Pt IV Div 2 applies and the class of damages referred to in s 93B(3)(a) of that Act (see s 3A Civil Liability Act 2002). In this case Mr Barns needed to obtain an assessment of disability greater than 30 per cent in order to sue for common law damages and that threshold was achieved by consent. The effect of s 3A Civil Liability Act is that Pts 1A, 1B, 1C, 1D, 1E and 2 (other than s 10A and Div 4) do not apply to this case. Section 5C is in Pt 1A of the Act.

80 The common law rule governing causation in March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 at 515 per Mason CJ applies:

"In the realm of negligence, causation is essentially a question of fact, to be resolved as a matter of common sense. In resolving that question, the 'but for' test, applied as a negative criterion of causation, has an important role to play but it is not a comprehensive and exclusive test of causation; value judgments and policy considerations necessarily intrude."

(Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408 at 412 - 413 per Mason CJ, Deane and Toohey JJ.)

81 The issue of causation seems to have troubled Mason P to a certain extent in the TNT case at 78:

"... there is weight in the attack upon this first arm of the findings of negligence against Manpower, especially as regards causation. That challenge gains further strength from acceptance of the finding that the cause of the accident was the recurrence of the intermittent fault, being something which general instruction on how to work the jack would not be expected to address. However, I need take the matter no further, because the finding of negligence against Manpower on the second arm (as to safe equipment) is sustainable."

82 ChoiceOne also relied on a very recent first instance decision in New South Wales - Hodge v CSR Ltd & Anor [2010] NSWSC 27. The plaintiff was employed by Adecco a labour hire firm and his services were hired to CSR. The plaintiff sustained spinal injuries as a result of using a full sized 25 kilogram jackhammer to remove concrete inside an agitator barrel. CSR's system of work required the plaintiff to use the full size jackhammer above arm level for a number of hours. The evidence established the plaintiff generally did this work with a small Kanga jackhammer but it had been stolen and the hired jackhammer was a full sized one.

83 Hislop J held that Adecco was liable to the plaintiff for breach of its non-delegable duty of care:

"[31] The non delegable duty rests on the employer whether or not the employer takes any share in the conduct of the operations - Pollard at [32].

[32] A person subject to a non-delegable duty cannot escape liability if the duty has being delegated and then not properly performed ... 'the party owing the duty was liable both for its own personal negligence and for any negligence on the part of its delegate' - Pollard at [33].

[33] The duty of care was delegated by the second defendant to the first defendant. The duty was not properly performed by the first defendant. Accordingly the second defendant is liable to the plaintiff for the breach of the non-delegable duty of care owed by it to the plaintiff."

84 Nonetheless Hislop J determined there should be no apportionment of CSR's liability so far as Adecco was concerned:

"[43] The second defendant is liable for breach of its non-delegable duty of care to the plaintiff by reason of the failure of the first defendant in the provision of a safe system of work and proper equipment. In my opinion there should be no apportionment of liability in respect of the negligence of the first defendant.

[44] The question is however whether there was a direct breach of duty ... by the second defendant which contributed to the plaintiff's injury. In my opinion there was not for the following reasons:

(a) The second defendant had no direct involvement in the first defendant's site. It had no control over the site. It did not have a supervisor on site. It was not involved in the plaintiff's day to day work and there was no evidence it was aware of the use of a full sized jackhammer to de-dag trucks;

(e) Accepting, as I do, the plaintiff's evidence that since the loss of the first defendant's Kanga jackhammer the first defendant had hired similar hammers from the equipment hire shop for use in de-dagging I conclude reasonable inspection or inquiry by the second defendant at any time prior to the day before the plaintiff's injury would not have revealed any breach of the duty of care.

[45] In my opinion no direct negligence by the second defendant has been established. Accordingly there will be no reduction in the verdict against the first defendant."

85 In Hodge's case despite Adecco's liability based on its non-delegable duty of care for CSR's negligence its lack of direct involvement on site and lack of control meant that despite its failure to inspect any inspection would have been futile and would not have prevented the plaintiff's injuries.

86 I am satisfied ChoiceOne has failed to ensure that care was taken for the safety of Mr Barns. However, given the remote location of the mine site, the specialised drilling equipment used by Drill Power and the need for regular maintenance and inspection of the high pressure hose it would not have been reasonable to require ChoiceOne to regularly inspect and maintain the drill rig. Necessarily any regular inspection and maintenance had to be carried out on site and Drill Power carried the primary responsibility for doing that. There was a considerable amount of evidence that I accept of the regular safety inspection and maintenance of the drill rig by Drill Power. In the circumstances of this case I accept that if ChoiceOne had required a complete safety inspection of the drill rig before sending Mr Barns to the site Drill Power would have met that requirement by providing details of the safety inspections conducted prior to Drill Power's commencement at the Plutonic site as well as details of the most recent routine monthly safety inspections, the three monthly safety audits (Exhibit 7, p 382), the safety inspection of the high pressure hoses for signs of damage at the start of every shift (Exhibit 7, p 418) as well as the safety check of components prone to fatigue (Exhibit 7, p 400) each time the drill was set up.

87 Drill Power submits that if ChoiceOne required a complete safety inspection before sending Mr Barns to the site I should infer any such inspection would have been adequate; that submission makes no sense to me. It does not follow as a matter of common sense. I was impressed by the evidence of Mr Lorne that Drill Power was very safety conscious. Mr Peebles gave evidence that he noticed a slight crack in the top part of the drill rig on one occasion and, once the crack was brought to his attention Mr Lorne stopped work immediately until that crack could be repaired. I am satisfied based on all of the evidence at trial that Drill Power was very safety conscious and would easily have met any requirement by ChoiceOne for a complete safety inspection. Drill Power believed it adequately and regularly inspected and maintained the drill rig. Mr Lorne well knew how dangerous the work was. He worked on the drill rig as a driller. Yet the large high pressure hose was never unwrapped and adequately inspected for gouges or abrasions that may have caused it to fail. In these circumstances, as a matter of common sense, ChoiceOne's failure to require a complete safety inspection could not be seen to be causally related to the damage suffered by Mr Barns. Nor is ChoiceOne's failure to ensure that safety protocols and safety procedures were in place causally related to the damage suffered by Mr Barns. Mr Barns' safety was completely in the hands of Drill Power and realistically ChoiceOne had no capacity to shield him from this particular danger (Bourke v Hassett at [42]).

88 Having considered all of these matters in the circumstances of this case it would not be just or equitable to attribute any responsibility for Mr Barns' damages to ChoiceOne. ChoiceOne had no control of the site and no ready access to the site. Regular safety checks and maintenance of the drill rig were entirely in the control of Drill Power. Drill Power through Mr Lorne wrapped the large high pressure hose in asbestos lagging and chicken wire to protect the hose from the heat of the drill rig. Drill Power failed to adequately inspect the hose and as a consequence failed in its duty to provide Mr Barns with suitable plant and equipment to enable him to carry out his work safely. Because of its non-delegable duty of care ChoiceOne is liable for Drill Power's failure to adequately inspect the high pressure hose but, in all of the circumstances, ChoiceOne is entitled to a complete indemnity from Drill Power. For these reasons it would not be just and equitable for ChoiceOne to make any contribution to the damages suffered by Mr Barns.

Issue 4 Whether the payment of $190,000 by Barrick to Drill Power affects the "just and equitable" apportionment and, if so, how

89 Given my finding on Issue 3 it is not necessary to determine this issue but, as it was fully argued, I make the following provisional ruling.

90 Both parties agree that the $190,000 payment to Drill Power by Barrick needs to be taken into account. ChoiceOne contends that the principles limiting the plaintiff's damages to ensure the plaintiff is not doubly compensated for the same damage have some application here. Drill Power contends that the normal principles governing the liability of joint tortfeasors apply in considering what is just and equitable taking account of the payment by Barrick.

91 ChoiceOne's written submissions on this issue in pars 44 - 50 relied on important legal principles in Baxter v Obacelo Pty Ltd & Anor [2001] HCA 66; (2001) 184 ALR 616 despite those principles having no direct application in this case. Baxter was a case where the plaintiff brought his claim against an employed solicitor and that solicitor's law firm. The plaintiff's claim against the law firm was settled by consent and fully paid. The plaintiff then proceeded against the solicitor. Those facts bear no similarity to this action by Drill Power against ChoiceOne. Drill Power and ChoiceOne are joint tortfeasors. The plaintiff has settled his claim for a finite amount and the issue is between the joint tortfeasors. This case has nothing to do with a plaintiff continuing its claim against another defendant after settling with a co-defendant.

92 This case does present some difficulties in that Barrick's payment of $190,000 to Drill Power was not a payment determined by a court as Barrick's just and equitable contribution for the purpose of these proceedings. The payment was a negotiated settlement between Drill Power and Barrick. On 24 March 2010, just a few weeks prior to this trial, Drill Power was refused leave to discontinue its proceedings against Barrick (Barns v Parlin Pty Ltd & Ors [2010] WADC 39). Staude DCJ at [18] held:

"If the third defendant is found to be negligent then it is entitled to argue that its liability to contribute to the settlement made by the first defendant should be reduced, not only to the extent of the first defendant's liability, but also by, and to the extent of, any liability which it can prove against the second defendant. That opportunity should not be denied to the third defendant by reason of any compromise reached between the other defendants."

93 Despite that decision, on 31 March 2010 a consent order was made in the District Court dismissing Drill Power's claim against Barrick. That consent order was in these terms:

1. The first defendant's contribution proceedings against the second defendant and the first defendant's third party proceedings against the third party be and are hereby dismissed, with no order as to costs.
2. The third defendant's contribution proceedings against the second defendant and the third party be and are hereby dismissed with the second defendant and the third party to pay the costs of those proceedings fixed at $2,000.
3. The second defendant and the third party's contribution proceedings against the third defendant be and are hereby dismissed, with no order as to costs.

94 I am told that this consent order was filed disposing of the matters involving Barrick upon payment by Barrick to Drill Power of $190,000 (T100). I am told $190,000 is a global sum including costs (T101).

95 The payment of $190,000 by Barrick to Drill Power needs to be taken into account in Drill Power's proceedings against ChoiceOne. I am unable to make a comparison between the extent of the liability of Barrick and the extent of the liability of ChoiceOne compared with the extent of the liability of Drill Power. As noted by Staude DCJ, having found ChoiceOne was negligent, I am left without any clear mathematical means of apportioning liability among the three joint tortfeasors. There was evidence that before commencing drilling Barrick conducted safety inspections of the drill rig at Drill Power's workshop in Meekatharra and again at the BGC on site workshop at the mine site. There is no evidence whether those inspections were adequate and involved removal of the lagging and chicken wire from the large high pressure hose. Drill Power suggested in its submissions that Barrick had failed in its duty to properly inspect the drill rig. But I have no direct evidence of that.

96 Without direct evidence I am unable to make findings apportioning Barrick's liability. I agree with ChoiceOne that Drill Power could not separately claim contribution among a number of joint tortfeasors and thereby gain contributions reducing its own contribution to an amount that is not just and equitable.

97 I believe the only fair resolution open to me is to reduce the amount $1,013,498.50 paid by Drill Power to Mr Barns in settlement of Mr Barns' claim by $190,000 = $823,498.50 and to award any contribution by ChoiceOne as a percentage of the lesser sum. That may lead to some unfairness to Drill Power because the $190,000 Barrick payment included costs but I have no evidence before me to make any further adjustment. Therefore, I am satisfied that Barrick's payment of $190,000 does affect the just and equitable apportionment against ChoiceOne. ChoiceOne's contribution would provisionally be calculated as a percentage of $823,498.50 and not as a percentage of the total amount paid to Mr Barns.

Issue 5: Whether Drill Power's claim against ChoiceOne fails because of a breach of Drill Power's contractual obligations to ChoiceOne

98 Given my finding on Issue 3 it is not necessary to determine this issue but, as it was fully argued, I make the following provisional ruling. ChoiceOne contends terms should be implied as a matter of law in its contract with Drill Power. ChoiceOne originally submitted two terms should be implied:

(1) that Drill Power would exercise reasonable care for the health and safety of Mr Barns; and

(2) that any plant and equipment provided to or with which Mr Barns was required to work would be fit for purpose.

99 ChoiceOne contended that both of these implied terms were breached by Drill Power and the breach constitutes a complete defence to the contribution claim or/alternatively, ChoiceOne is entitled to judgment on its counterclaim amounting to a complete indemnity against the contribution claim.

100 Drill Power submitted there is no support in any labour hire case that such terms should be implied in law and submitted the contract between ChoiceOne and Drill Power was not a contract for the supply of a chattel or premises. Drill Power further contends there is no basis as a matter of fact for implying the terms.

101 During its closing submissions ChoiceOne abandoned the first suggested implied term; ChoiceOne limited its case to implication of the second term. ChoiceOne submitted that in the circumstances of this case and a labour hire contract of this type where it was made expressly clear to the labour hire company the worker would be working on a RAB drill rig there is an implied term in the contract that the equipment supplied by Drill Power would be fit for purpose. On that basis ChoiceOne submitted that if it was liable to make contribution it could only be liable because the drill rig was not fit for purpose. ChoiceOne contended that the evidence established that the drill rig was not fit for purpose and relied on the same evidence that Drill Power relied on in establishing that ChoiceOne breached its duty of care.

102 ChoiceOne and Drill Power entered into a written contract executed by Desley L Lorne, the former wife of Mark Lorne for Drill Power on 22 July 2003 following verbal negotiations between Desley Lorne and Peter Elliot of ChoiceOne. This was not the first employee Drill Power had hired from ChoiceOne. Peter Elliot understood that a driller's offsider was needed on the RAB drill rig and, because of Mr Elliot's mining background, he understood what was involved in the job. I accept ChoiceOne's submission that it was made expressly clear that the offsider would work on the RAB drill rig.

103 The written contract between Drill Power and ChoiceOne appears as Annexure C to the statement of Desley Lorne (Exhibit 11). The contract sets out the terms and conditions of business, the fee structure and the terms of the client engagement agreement. Clause 11 covers liability.

"You bear the sole risk in relation to the introduction to you or Engagement by you of candidates pursuant to this Agreement, and ChoiceOne is not liable for any loss, damage or cost howsoever or wheresoever arising, including legal fees on a solicitor\own client basis, whether through negligence or otherwise, which you may suffer or for which you may become liable, arising out of or in connection with the introduction to you or engagement by you of Candidates pursuant to this Agreement."

104 The inclusion of that clause clearly indicates that the parties put their minds to the issue of liability in negligence.

105 Terms are implied in contracts to fill gaps in order to give business efficacy to the agreement of the parties.

"Almost every contract has some unstated content which must necessarily be implied if effect is to be given to its actual terms. Nonetheless, courts are slow to imply a term. In many cases, what the parties have agreed represents the totality of their willingness to agree. The more detailed and comprehensive the contract, the less ground there is for supposing that the parties failed to address their minds to the question at issue."

Vitale v Bednell [2000] WASC 207 at [63] per Hasluck J.

106 At common law a term is implied only if it meets all five conditions set by the High Court in BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 283:

"(1) it must be reasonable and equitable;

(2) it must be necessary to give business efficacy to the contract so that no term will be implied if the contract is effective without it;

(3) it must be so obvious that 'it goes without saying';

(4) it must be capable of clear expression;

(5) it must not contradict any express terms of the contract."

107 The problem with the term ChoiceOne suggests is implied in this contract is that it is simply not necessary to give business efficacy to the contract. The contract for the hire of Mr Barns' labour was effective without it. The parties put their minds to the issue of liability. Clause 11 was included in the contract. The suggested further clause is simply unnecessary.

108 A similar issue was raised in the case of Hawkins v Clayton (1987-1988) 164 CLR 539 where the issue of implying a term in a contract with a solicitor was considered. Deane J said at 583:

"To the extent that the content and incidents of the contractual duty of care correspond with those of the ordinary duty of care under the common law of negligence, the implication of a general contractual term is difficult to rationalize. If the implication of the term is based upon some perceived general principle of law, one is led to ask why the common law should imply a contractual term imposing a duty of care which the common law imposes in any event. If the implication of the term is based upon imputed intention of the parties, it is difficult to see how any of the ordinary tests for the implication of a term on that basis could properly be seen as satisfied. It could not be sensibly said that it is necessary for the business efficacy or the reasonable or effective operation of a contract to imply a contractual term imposing a general duty which corresponds with the general duty which already exists under the common law."

109 In this case because of the labour hire contract Drill Power became the de facto employer of Mr Barns and thereby owed him a duty under the common law of negligence to provide safe plant and equipment. It is an obligation in negligence already assumed by Drill Power and no such term need be implied.

110 I also accept Drill Power's submission that there were no such terms ever suggested to be implied in other labour hire cases where usually the circumstances would have been similar to those in this case.

111 For these reasons no such term is implied in this contract.

Issue 1: Drill Power is a tortfeasor liable in respect of damage suffered by Mr Barns.

Issue 2: Drill Power may recover contribution from ChoiceOne who would if sued have been liable in respect of the same damage as a joint tortfeasor.

Issue 3: It is neither just nor equitable that ChoiceOne make any contribution to Drill Power for ChoiceOne's failure to ensure that care was taken for Mr Barns' safety. ChoiceOne is entitled to a complete indemnity from Drill Power.

Issue 4: Provisionally, Barrick's payment of $190,000 does affect the just and equitable apportionment between Drill Power and ChoiceOne and any contribution by ChoiceOne would be calculated as a percentage of the remainder.

Issue 5: Provisionally, no term as suggested by ChoiceOne is implied in this contract.