Bostik Australia Pty Ltd v Liddiard & Anor

Bostik Australia Pty Ltd v Liddiard & Anor - [2009] NSWCA 167 - NSWCA 2010 case summary — Zoe

[41]

Relationship of Bostik, Brolton and Mr Liddiard 6 Bostik carried on a business of packaging industrial sealants and similar products at the site. The site itself was large, with a street frontage of 300 m and a depth of 270 m. The sealant raw material for Bostik's packaging business arrived on-site in 44 gallon drums. When the drums were emptied, they were recycled. At any one time, there were a large number of these drums on site which would be moved around by means of forklift trucks that were either owned or hired by Bostik. Some of the recycled drums were used on site as rubbish bins. 7 Mr Liddiard was employed by Brolton as a labourer. Brolton occupied an area of about 20 m by 12 m of the main factory building on the site, where it carried on a maintenance engineering business. It also had access to the yard area and used Bostik's equipment, including Bostik's forklifts, as and when it needed to do so. There was no formal arrangement between Bostik and Brolton in respect of the use of the forklifts. 8 Behind the main factory building was a small open shed, generally referred to as the " smoko shed ". The shed contained tables and chairs and was used by employees of both Bostik and Brolton during meal and other work breaks. A couple of the drums were placed in the shed for use as rubbish bins. The rubbish bins were changed over twice a week, and the drums being used as rubbish bins were emptied into an industrial skip bin at the rear of the site. It was one of these drums that Mr Liddiard picked up at the time of his injury. 9 Prior to Bostik taking over ownership of the site, it had been solely occupied by Dow Corning Australia Pty Limited (Dow Corning), which manufactured and packaged industrial adhesives on the site. Dow Corning vacated the premises in about 1998, at which time Bostik commenced manufacturing activities on the site. Mr Lynch, the principal of Brolton, had worked for Dow Corning. When Dow Corning ceased its operations on the site, Mr Lynch stopped working for Dow Corning and commenced his own maintenance engineering business. Bostik became his most important customer, and as a result of that relationship, he entered into an arrangement with Bostik to occupy portion of the premises. Brolton was incorporated in about 2000. 10 In addition to carrying on its own manufacturing business on the site, Brolton also supplied labour to Bostik. Brolton classified this supply of labour into two categories: production and non-production. The difference in the two categories lay both in the type of work performed by its employees and the rate charged for the services so provided. Production labour did packing and factory work for Bostik. Non-production labour carried out general workshop cleaning, site cleaning and waste disposal. 11 There was no written agreement between Bostik and Brolton in respect of these arrangements. However, Brolton's invoicing for the supply of the service of its employees as non-production labour was not included in the invoicing of the supply of production labour, which was invoiced as an independent item at a specified rate. Non-production labour was invoiced as part of the supply of services to Bostik. 12 Mr Liddiard's services were provided to Bostik to undertake non-production labour. So far as Mr Liddiard was concerned, he was employed by Brolton and Mr Lynch was " his boss ". He was unaware of the terms of the arrangements between Brolton and Bostik. He was aware that there was a distinction between 'production' and 'non-production' labour, but he did not appear to have any knowledge or understanding of that insofar as that was relevant to the arrangements as between Brolton and Bostik. He simply knew that 'non-production' labour meant not working on the silicone lines, and could involve work inside or outside the factory. Mr Liddiard was aware that Mr Pearce was Bostik's manager on the site. He said he never spoke to Mr Pearce about the work he was doing. He knew that Mr Pearce had an office " at the front " and said that Mr Pearce would sometimes be seen walking through the factory. 13 Mr Lynch gave evidence that at some time after Mr Liddiard had commenced his employment with Brolton, Bostik had wanted someone to do the same tasks as he had been performing for Brolton on the site. Mr Lynch described the services that Bostik wanted as being those of a general hand. Mr Lynch said that he provided Mr Liddiard's services to Bostik about six months before his accident. 14 The smoko shed was built and used by employees when the site was occupied by Dow Corning. Mr Lynch said that when Dow Corning was on site, the drums were used as rubbish bins for the smoko shed and were collected by Dow Corning employees. When Bostik commenced its business on the site the arrangements for the use of the drums as rubbish bins and for their removal from the smoko shed remained unchanged. In about 2000, one of Brolton's employees commenced performing this task. The drums used for rubbish were collected from the smoko shed. The drums usually had to be moved manually out of the shed for collection, as most of the forklifts were too large to travel into the smoko shed to perform this task. 15 Mr Pearce became Bostik's site manager at the Blacktown premises in September 2002. He had been working at the site since 2001, originally in the capacity of an industrial chemist. In his examination-in-chief, Mr Pearce was asked what his understanding was of Brolton's connection with Bostik. He said: "They provided labour hire [and] various contracts for cleaning, site services shutdown from garden maintenance. Basically, general site outdoor cleaning as well." 16 Mr Pearce acknowledged that there was no formal written contract relating to the services Brolton provided, although he knew that Bostik paid a labour hire fee to Brolton. Mr Pearce said that although as site manager he did not look after the training of Brolton employees, there was a " buddy system " for training employees, including the training of Brolton employees who had been allocated to Bostik tasks. This evidence appeared to relate to the production staff that Bostik hired from Brolton. However, Mr Pearce also said that, as site manager, he had responsibility for systems of safety in the workplace, including matters of waste removal. This extended to the system of rubbish removal from the smoko shed. He knew that 44 gallon drums were used in the shed as waste receptacles. 17 Mr Pearce was familiar with the work Mr Liddiard performed on site. 18 In cross-examination by counsel for Mr Liddiard, Mr Pearce acknowledged that it was his view that he had a responsibility in general terms to look after employees who were hired by Bostik from Brolton, including, in appropriate circumstances, to provide training and instruction to those employees. He acknowledged that this was particularly so in relation to workers on the production line. 19 He accepted that he also had to consider the safety aspects of the employment in relation to non-production work that was performed by Brolton employees who performed duties for Bostik. He acknowledged that such safety aspects included training and instruction in relation to bending and lifting heavy items. He also acknowledged that if he saw an employee acting in an unsafe manner, then he, or one of Bostik's supervisors, would correct their mode of work or instruct them to work in a safe manner.

[53]

The trial judge's findings in respect of s 50D(1)(b) 29 Mr Liddiard had made a statement to Brolton's workers compensation insurer, dated 18 March 2004. Mr Lynch had also made a statement to Brolton's workers compensation insurer, dated 23 March 2004. There was no suggestion that Mr Liddiard was aware that Mr Lynch had made a statement to the insurer. 30 The trial judge observed that in Mr Liddiard's 18 March 2004 statement, no mention was made of Bostik, other than that Mr Liddiard had worked for Brolton at the Blacktown site, carrying out duties on machines making silicone for Bostik. It should be made clear that in his statement, Mr Liddiard recorded he worked " at the factory site in Powers Road Blacktown " and that at first his duties " were to work on machines making silicone for Bostik " and that " [t]hen they had me emptying 44-gallon drums of rubbish ". " They " was clearly a reference to Brolton. The statement did not mention that Bostik also occupied and carried on business at the premises, or that he was working on Bostik's machines. The reference to " making silicone for Bostik " could logically and reasonably have been understood by a person uninformed of the full facts that Bostik was merely a customer of Brolton. His Honour also noted that the statement recorded that when he was injured, he reported to his " boss ", that is, Mr Lynch. 31 In Mr Lynch's 23 March 2004 statement, there was specific reference to Bostik's business activities at the Blacktown site. Mr Lynch specified that Brolton leased factory space from Bostik. He described the work Mr Liddiard did as being " on a labour hire basis for Bostik ". The statement included a reference to the terms of the oral agreement between Brolton and Bostik in relation to the occupation of the site and the arrangements for work to be performed. There was also a reference to the use of forklift trucks and a system for emptying rubbish from the 44 gallon drums used as rubbish bins in the smoko shed. 32 Mr Liddiard provided a copy of his 18 March 2004 statement to his solicitor, whom he first retained on 13 December 2004. The solicitor prepared a statement in which reference is made to Mr Liddiard's 18 March 2004 statement. However, there was no specific reference to Bostik in the statement prepared by the solicitor. On 13 October 2006, Mr Liddiard made a further statement to his solicitor, in which he updated his medical condition. Again, there was no reference to Bostik. 33 On 3 November 2006, Mr Liddiard's solicitor received a letter, dated 31 October 2006, from Brolton's solicitors, enquiring whether Mr Liddiard had commenced, or was contemplating, common law proceedings against Bostik in relation to the injury of 30 January 2003 and attaching Mr Liddiard's 18 March 2004 statement and Mr Lynch's 23 March 2004 statement. That was the first occasion that Mr Lynch's statement came to the attention of Mr Liddiard's solicitors. 34 The trial judge found that it was a " persistent and continuing feature " of Mr Liddiard's evidence that his " boss " was Mr Lynch of Brolton, that he answered to Mr Lynch and that it was Mr Lynch who told him what jobs he had to do on the site. His Honour observed, at [54], that the absence of any mention in Mr Liddiard's evidence of: "… the nature of the relationship with and the role of Bostik, in relation to his work, other than that it occupied the site, was a noticeable and significant omission …" 35 His Honour was satisfied that, so far as Mr Liddiard was concerned, Bostik's occupation of the site had no relevance. Mr Liddiard simply understood that he performed work for Brolton, as his employer. His Honour found that Mr Liddiard had " no knowledge of the work arrangements as between Brolton and Bostik ". 36 After a consideration of the then-existing caselaw, his Honour found, at [64], that for the purposes of s 50D(1)(b): "… knowledge of the cause of an injury by the fault of another necessarily means awareness of a causal nexus between them and where the conduct of the other gives rise to legal obligations, that it, where the fault may reasonably be seen as so culpable as would justify further enquiry as a preliminary to legal proceedings." 37 His Honour said, at [65], that on the facts as he had found them and from Mr Liddiard's statements of 18 March 2004, 13 December 2004 and 13 October 2006, Mr Liddiard " had no sufficient awareness of the role of Bostik in the system of work he followed when injured ". His Honour found that the opportunity to know or have any awareness of Bostik's role did not occur until 3 November 2006, when Mr Trainor received the letter dated 31 October 2006 from Bostik's solicitor, which attached Mr Lynch's statement of 23 March 2004. His Honour concluded, that up until 3 November 2006, Mr Liddiard: "… understood his work was for and at the direction solely of Mr Lynch as his employer and he had no knowledge of the arrangements which were later shown to exist between Bostik and Brolton."

[54]

The limitations caselaw 38 At the time the trial judge gave judgment, there was no decision of this Court as to the proper construction of s 50D(1)(b). There were, however, at least two decisions of the County Court of Victoria: Dark v The Country Fire Authority (Stott CCJ, 21 June 2005, unreported); Ilardi v Forster [2006] VCC 793; and one decision of the Supreme Court of Victoria: Caven v The Women's and Children's Health [2007] VSC 7; as well as a decision of Neilson DCJ in the New South Wales District Court in Country Waste Systems Pty Ltd v Wright [2007] NSWDC 287. Since then, there has been a decision of the Victorian Supreme Court: Spandideas v Vellar [2008] VSC 198 and the decision of this Court: Baker-Morrison v State of New South Wales [2009] NSWCA 35. In Baker-Morrison , this Court declined to follow Spandideas v Vellar. 39 The essential difference in the approach taken in these cases was whether, upon its proper construction, " any element of legal knowledge " was a component of the matters of which a person was to have either actual or constructive knowledge for the purposes of determining when a cause of action was discoverable. 40 In Baker-Morrison Basten JA (Ipp and Macfarlan JJA agreeing) observed, at [25], that for the purposes of s 50C, a cause of action was discoverable if the person had knowledge or constructive knowledge of certain facts: s 50D. His Honour commented, at [26], that those matters (that is, the concept of knowledge and each of the identified " facts ") were interrelated. That was so, because, as his Honour pointed out: "… if the facts are properly within the understanding and evaluation of a non-professional, the nature of the person's knowledge will be different from that which incorporates information or opinion supplied by a professional, on the basis of the exercise of professional expertise". 41 In Baker-Morrison the relevant " fact " for the purposes of s 50D(1)(a) was a physical wound that was readily observable by the infant plaintiff's mother. Likewise, in the present case, the injury was readily apparent on the day of the accident, and hence there is no dispute that Mr Liddiard had knowledge of that fact on that day. 42 Basten JA then turned to a consideration of s 50D(1)(b) and s 50D(1)(c), first observing, at [27], that, in some circumstances, the relevant fact for the purposes of paras (b) and (c) was of a different quality to the relevant fact for the purposes of para (a). Insofar as s 50D(1)(b) is concerned, his Honour said, at [28]: "In par (b), the word 'fault' is no doubt capable of having a broad generic meaning, not necessarily confined to that which engages legal liability. The context, on the other hand, gives it a different connotation. That which is identified as 'discoverable' for the purposes of s 50C is "the cause of action". The 'fact' contemplated by par (b) is a relationship between two things, namely the injury or death on the one hand and the fault of the defendant on the other. The relevant connection is one of causation." 43 His Honour, at [39], rejected, however, that it was necessary for a person to be able to articulate a cause of action for the purposes of par (b). Rather, " it was the key factors necessary to establish legal liability that had to be known ". In Baker-Morrison , his Honour held that until the plaintiff's mother was aware, or ought to have been aware, that there was an available and reasonably practicable means of rendering safe the sliding door that had caused the plaintiff's injury, she could not be said to be aware that the plaintiff's injury was caused by a failure on the part of the State to take reasonable care for her safety. His Honour said that " these are the terms in which the relevant test under s 50D(1)(b) should be formulated ". 44 In this case, no argument was advanced on the basis of constructive knowledge. Rather, Bostik's argument was that it was sufficient for the purposes of s 50D(1)(b) that a person know the facts necessary to establish the fault of the defendant and not that the defendant is, as a matter of law, liable to pay damages. Bostik relied, inter alia, upon Spandideas v Vellar . As I have already said, that decision was not followed by this Court in Baker-Morrison. 45 Bostik relied upon the following matters to establish that for the purposes of s 50D(1)(b), Mr Liddiard knew or ought to have known that his injury was caused by Bostik prior to 1 June 2004: "… [he knew] the distinction between the appellant's premises and the second respondent's premises; he knew, notwithstanding that he did not know the terms of the arrangements between the second respondent and the appellant, that, although he was employed by the second respondent, his labour was being used partly for the benefit of the appellant's business; he knew that the 44 gallon drum in question [was] located on the appellant's part of the premises; he knew that the 44 gallon drums came from the appellant's discards; he know that the forklifts were owned by the appellant; he knew that the smoko shed was used by both the appellant's and the second respondent's employees and that the rubbish came from both." 46 The evidence on these matters was as follows. Mr Liddiard knew that Mr Pearce was Bostik's manager at the Blacktown site. He had never spoken to him about the work he was doing. He knew that the drums were brought on site containing Bostik product. He had never seen Mr Pearce have anything do to with the work of the forklifts and he thought that the forklifts were owned by Brolton. He knew that he was working on Bostik's premises when the accident occurred and that the smoko shed was used by both Bostik and Brolton employees. He said he would ask Mr Lynch if he thought he needed help with his work. 47 Mr Liddiard understood there was a distinction between production and non-production labour, in the sense that he presumed that " non production was not working on the silicone lines ". He was asked about moving from working on the production line to doing the work he was doing when he was injured on 30 January. Importantly, the following cross-examination occurred: "Q. You have told us that that included collecting 200 litre or 44 gallon drums with rubbish in them? A. While I was working for Brolton … or for Bostik?

[58]

Section 50D(1)(c) 50 Having concluded that Mr Liddiard did not have the relevant knowledge for the purposes of s 50D(1)(b) until at least 3 November 2006, it was not necessary for the trial judge to decide the relevant date for the purposes of para (c). Nonetheless, as the matter had been argued before him, his Honour went on to determine that question. Likewise, the matter has been fully argued before this Court and it is appropriate to make reference to it. The issue can, however, be dealt with briefly. In Baker-Morrison Basten JA explained, at [41], that for the purposes of s 50D(1)(c): "… the injury must not only be understood to be serious, but 'sufficiently serious to justify' a course of action. Further, that course is 'the bringing of an action on the cause of action', an objective which would appear to require the exercise of both legal and medical expertise." 51 In this case, Mr Liddiard was originally diagnosed as having strained his right biceps and he was certified fit for his pre-injury employment duties within three weeks of the date of the accident, having already returned to work on light duties. Mr Liddiard was seen by Dr Newcombe, neurosurgeon and spinal surgeon, for the purposes of a medicolegal opinion requested by Brolton's workers compensation insurer. Dr Newcombe raised the question whether there was some pathology in Mr Liddiard's neck. Following X-rays and an MRI, Dr Newcombe reported on 4 June 2003 that: "… the injury of 30 th January, 2003 should be described as aggravation of cervical spondylosis which was previously not causing significant symptoms and causing, after injury, cervical radiculopathy with sensory and motor changes." 52 Mr Liddiard was made redundant on 30 May 2003. In September 2003, he aggravated his injury when lifting a sandstone block on Mr Lynch's property. He came under the care of Dr Seex in February 2004. In a report dated 13 February 2004, Dr Seex considered that there was evidence of C6/C7 radiculopathy and recommended decompression surgery. Dr Seex was of the opinion that this surgery provided a good chance of alleviating Mr Liddiard's arm pain and would also " give the best chance of his arm recovering strength ". Dr Seex' opinion was supported by Dr Matheson, neurosurgeon, who provided a report dated 22 June 2004 to Brolton's workers compensation insurer. He stated that surgery would be likely to produce substantial improvement in Mr Liddiard's condition. He so advised Mr Liddiard. 53 The first operation was delayed from the time it was first recommended because he was required to lose weight before he could undergo surgery. In this regard, as at 1 June 2004, Mr Liddiard was 107 kg and he needed to reduce his weight to 95 kg before surgery could be undertaken. In the meantime, Mr Liddiard continued to have right arm pain and numbness in the C6 dermatone. When Dr Seex reviewed him on 5 November 2004, he considered that the operative procedure should be undertaken. Mr Liddiard underwent operative treatment on 17 November 2004. The first operation was not successful and Mr Liddiard required a second operation which was performed on 28 November 2005. The second operation was also unsuccessful. 54 Mr Liddiard was cross-examined to the effect that the incident involving the lifting of the sandstone block was a fresh injury and it was that injury which was the cause of his ongoing problems. Mr Liddiard denied that was so and said he did not know the full extent of his injury until a long time afterwards (that is, a long time after September 2003). Mr Liddiard also said it did not occur to him to obtain legal advice until after the first operation, when a friend suggested he do so. Mr Liddiard contended that he did not know the injury was sufficiently serious to justify the bringing of an action until after the first operation and therefore until after 1 June 2004, being the relevant date for the purposes of s 50D. Mr Liddiard relied upon the evidence to which I have just referred and in addition, to the advice that there was likely to be a good result from the operation. 55 The trial judge held that the relevant date for the purposes of s 50D(1)(c) was 17 November 2004, that is, the date of the first operation which proved unsuccessful. In my opinion, that finding was correct. Mr Liddiard's injury was first diagnosed as relatively minor, involving a tear to the right biceps. Such an injury was likely to resolve or substantially resolve. It would not, in the normal course, be sufficiently serious to justify the bringing of proceedings. Although the problem had become sufficiently serious by February 2004 for Dr Seex to recommend surgery, Mr Liddiard was advised by Dr Seex that the operation would provide significant relief. Had that significant relief occurred, it is likely that the injury would not have been sufficiently serious to justify proceedings. This conclusion is supported by Dr Matheson's medicolegal opinion that post-operatively the degree of permanent impairment would be likely to reduce from 15 to 18 per cent down to 5 to 8 per cent. 56 It follows that, even if his Honour was wrong in finding that the relevant date for the purposes of s 50D(1)(b) was 31 October 2006 (when Mr Liddiard's solicitor received correspondence from Brolton's solicitors in respect of Bostik), then the earliest the cause of action was otherwise discoverable was sometime after November 2004, when the operative treatment did not provide the relief that Dr Seex anticipated. Accordingly, the claim was brought within time.

[77]

(Mr Pearce's statement, which formed the basis of this question, was not tendered in evidence.) 63 Bostik submitted that the bolded questions and answers were not admissible against it because Mr Pearce's ostensible authority as site manager did not extend to making an admission as to Bostik's legal liability, at least once objection was taken to the evidence: see Bond Media Ltd v John Fairfax Group Pty Ltd; John Fairfax & Sons Ltd v Rothwells Ltd (1988) 16 NSWLR 82. 64 In Bond Media Giles J (as his Honour then was) held that a witness who is called to give evidence of events in which he participated, that is, as a witness as to material facts, does not, because of his status as managing director of a corporate party, necessarily qualify as a witness who may be asked to make admissions in respect of the corporate party's liability. Importantly, his Honour held that, in circumstances where a witness had either actual or implied authority to answer a question the effect of which was to constitute an admission against his employer, an objection to the evidence by the employer was sufficient to withdraw that authority. The principle extended to managing directors. However, the principle does not detract from the ability (and the requirement if called as a witness) for such a witness to give evidence of facts of which she/he has personal knowledge. 65 Senior counsel for Bostik acknowledged that if this and the other evidence to which objection was taken was evidence of fact, then it was admissible. If it were admissible, a further question would then arise as to how the evidence should be characterised. Senior counsel for Bostik submitted that the evidence, if admissible, was no more than Mr Pearce's perception of his own responsibility. He contended that that perception did not establish that Bostik, as a matter of law, had a duty of care to Mr Liddiard. 66 It is necessary to return to Mr Pearce's evidence and the matters to which it related. As I have already indicated, at the date of Mr Liddiard's accident, Mr Pearce was Bostik's site manager. He was called as a witness by Brolton. In evidence in chief he was asked by Brolton's counsel whether it was his responsibility to oversee safety. Senior counsel for Bostik objected on the basis that he could not make admissions on behalf of Bostik. He submitted that questions relating to 'responsibility' went beyond evidence of facts and entered the realm of legal conclusion. Senior counsel submitted that, in accordance with the principle stated in Bond Media , a person who was not authorised to do so could not make an admission of legal responsibility on behalf of a party. Separate consideration needs to be given to each of the questions to which objection was taken in order to determine whether that principle applies in respect of this aspect of Mr Pearce's evidence. 67 The first question to which objection was taken was: "Q. It was your view that Bostik had an obligation particularly in relation to workers who were on [the] production line, working on machinery to make sure as best as Bostik could that the operation of that machinery by those workers was done in safe circumstances? A. Yes." 68 This question sought Mr Pearce's opinion on Bostik's obligation in relation to safety matters. In my opinion, the question was inadmissible. First, it sought his opinion in respect of Bostik's obligations. Opinion evidence " is not admissible to prove the existence of a fact about the existence of which the opinion was expressed ": Evidence Act 1995, s 76. There are exceptions to the rule: see, for example, s 78 which provides that s 76 does not apply where the opinion is based upon what the person saw, heard, or otherwise perceived about a matter or event. 69 The opinion sought in this question was not about a matter of fact, nor was it a question that would elicit an answer within the s 78 exceptions. The evidence sought was about an obligation. The question whether Bostik owed a duty of care to Mr Liddiard was a question of law to be determined having regard to the facts and circumstances of the case: see Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 443, [62] per Gummow J. Mr Pearce could give evidence about systems of work, including such matters as what tasks were undertaken; who gave instructions to whom; and what safety measures were in place. However, he could not give evidence as to what an entity's 'legal obligation' was. That was the purport of the question and in my opinion was inadmissible. 70 The next series of questions were related and can be considered together: "Q. And would you agree that going from what you said in your statement aspects of safety in relation to employees of a non production type that Bostik hired from Brolton was something that Bostik had to consider as well? A. Yes.

[80]

Q. And training and instruction in relation to bending and lifting heavy items? A. Yes." 71 The essential thrust of this series of questions is in the first question. The other questions hang off the first. Mr Pearce was being asked whether Bostik had an obligation to consider the safety aspects of certain aspects of work that was carried out by Brolton's non production employees whose services it engaged. Whether it had such an obligation depended upon whether it owed them a duty of care. That was the legal question that the court was required to determine. Accordingly, for the reasons given above, I consider that these questions were inadmissible. 72 The final question was: "Q. And when you say in your statement at paragraph 11 and I'll read it to you so you don't have to rely on your recollection 'We would have shown him how to lift boxes and cartons manually as part of his induction to the site'. Is it fair to say that's what you would have expected him to have been shown by someone at Bostik before you started there? A. Yes." 73 This question was inadmissible. It was not based upon Mr Pearce's own knowledge, nor did the question establish that he had obtained such knowledge from Bostik's records, or, in an admissible way, via its corporate history. Indeed, the cross-examiner effectively shot himself in the foot when he asked, " Is it fair to say that's what you would have expected him to have been shown by someone at Bostik before you started there? " The question was not focussed on any actual knowledge that Mr Pearce might have had. 74 In summary, therefore, part of the above evidence that was admissible established that Mr Pearce's responsibilities included systems of safety in the workplace and those systems extended to the waste removal from the smoko shed. It also established that Mr Pearce had a responsibility to ensure that Mr Liddiard's time was fully engaged in circumstances where Mr Liddiard was performing the work of a general hand for Bostik. These questions are thus relevant to the question whether Bostik owed a duty of care and if so, whether it breached that duty.

[81]

Ground 1: did Bostik owe Mr Liddiard a relevant duty of care? 75 Bostik denied that it owed Mr Liddiard a relevant duty of care. Bostik contended that even though it used the services and employees of Brolton, there was a distinction between the services of those employees it engaged in the factory, " paid for " at an hourly rate and who were under Bostik's direct supervision and control, and persons such as Mr Liddiard, who performed work for Bostik, but also performed work for Brolton and who remained under the direct control of Brolton. Bostik further submitted that it was also relevant that the rubbish bin removal was carried out for the benefit of both Bostik and Brolton, as employees of both used the smoko shed. 76 The evidence established that the rubbish removal from the smoko shed was work that Mr Liddiard performed as part of his duties as a general hand for Bostik and for which Bostik paid Brolton. Indeed, senior counsel for Bostik conceded that there was no doubt that the work was done largely for the benefit of Bostik. Notwithstanding this concession, Bostik contended that he was instructed by Brolton and not by Bostik in relation to the performance of the work. Bostik also contended that when Dow Corning left the site, it was Brolton that had taken over, without modification, Dow Corning's rubbish removal system. 77 It is apparent from the evidence that Mr Liddiard did not receive any instruction as to how to perform this or any associated or allied task. Mr Liddiard said he knew what to do because he had seen the task done before. It is also apparent how this came about. As senior counsel for Bostik recognised, the rubbish removal job devolved, as if by an osmotic process, from a task that had been performed by Dow Corning's employees. When Bostik took over the premises, the arrangement for the collection of the rubbish and its removal remained essentially the same. A question arose on Bostik's case as to whether Brolton was responsible for continuing that system and, if so, whether Bostik was thereby absolved of owing any duty of care to Mr Liddiard. 78 The evidence that the system remained the same after Bostik took over the premises emerged in cross-examination of Mr Lynch. Bostik relied on Mr Lynch's evidence that at some point, in about 2000, one of Brolton's employees commenced to carry out the rubbish removal from the smoko shed. Mr Lynch said that the only difference in the way it was done after Bostik took the site over from Dow Corning was that it was one of Brolton's employees who did the job. It followed, according to Bostik, that it never had any responsibility for this particular job. The responsibility was Brolton's and, accordingly, Bostik did not owe a duty of care to any person who carried out the job. 79 Both parties resorted to the bank of authorities in this area relating to the respective duty of a non-employer (if any) and an employee whose services are used by the non-employer. Bostik contended that this case was similar to the circumstances considered in J Blackwood & Son Steel & Metals Pty Ltd v Nichols [2007] NSWCA 157 and thus no duty of care arose. Mr Liddiard and Brolton contended that this case was more akin to TNT Australia Pty Limited v Christie [2003] NSWCA 47; (2003) 65 NSWLR 1. These cases are well-known and can be reviewed briefly. As Christie was first in time, it is convenient to consider that case first. 80 Mr Christie, was employed by an employment agency, Manpower Services (Australia) Pty Limited (Manpower) and was assigned to work at a brewery operated by TNT Australia Pty Limited (TNT). Mr Christie was injured when a pallet jack used to pick up beer orders malfunctioned. Mason P found, at [41], that TNT's duty of care to Mr Christie in relation to a safe system of work was similar to that of an employer, in that TNT exercised day to day control over Mr Christie's work activities, treating him the same as TNT employees as regards work on the factory floor. In all respects relevant to the imposition of a duty of care, Mr Christie was in an identical position to that of the four TNT employees with whom he worked. Mason P noted, at [42], that employment was not the only circumstance in which a stringent duty of care arose in respect of a safe system of work. His Honour cited the well-known passage in Stevens v Brodribb Sawmilling Company Pty Ltd [1986] HCA 1; (1986) 160 CLR 16, relating to the engagement of independent contractors, where Mason J (Brennan and Deane JJ agreeing) said, at [26]: "The interdependence of the activities carried out in the forest, the need for co-ordination by Brodribb of those activities and the distinct risk of personal injury to those engaged in the operations, called for the prescription and provision of a safe system by Brodribb. Omission to prescribe and provide such a system would expose the workers to an obvious risk of injury …"

[82]

His Honour held that Brodribb, therefore, owed the contractors a duty of care. 81 The comments of Foster AJA, in Christie , at [178] are also relevant: "Although TNT was not the original employer of the plaintiff, I am satisfied that, as a matter of common sense, it should be regarded as having the same duty to the plaintiff as an employer. Although, there was no transfer of employment from Manpower to TNT, pro hac vice, TNT clearly assumed employer-like responsibilities consistent with its overall control and direction of the plaintiff in the workplace." 82 In Blackwood , the plaintiff was standing on a load of steel on his trailer in order to tighten a chain lashed across the trailer from one side of the load to the other. The load moved under him and he lost his balance and fell. He sustained serious injuries. The accident occurred at Blackwood's premises. The plaintiff was employed by the second respondent who had a contract with Blackwood to provide a prime mover, trailer and driver to transport and deliver Blackwood's products from Newcastle to Sydney. The plaintiff had undertaken this work for Blackwood for the whole of his six years of employment with the second respondent. 83 Tobias JA (Mason P and Handley AJA agreeing), after reviewing the authorities including Christie, National Transport Insurance Ltd v Chalker [2005] NSWCCA 62, especially at [62] and Rockdale Beef Pty Limited v Carey [2003] NSWCA 132, concluded that in circumstances where Blackwood did not, and did not purport to, exercise any degree of control over the performance of the task in which the plaintiff was engaged at the time of his injury, that is, securing the load on his trailer, that task of securing the load was akin to that of climbing a ladder: see Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204; or using a tomahawk: see Electric Power Transmission Pty Ltd v Cuiuli [1961] HCA 3; (1961) 104 CLR 177. 84 In Rockdale Beef Pty Limited v Carey the plaintiff was an independent contractor whose duties for Rockdale Beef included rounding up cattle that had managed to escape the feed pens, which was a common occurrence. The plaintiff was injured when he attempted to herd an escaped steer back to its pen. He galloped past the steer in order to get behind it, but the steer swung into the path of his horse. The horse fell and the plaintiff was severely injured. 85 Ipp JA stated, at [84], that a business enterprise (the entrepreneur) may owe a duty of care to an independent contractor: "… where there is no need for the entrepreneur to give directions as to when and where the work is to be done and to co-ordinate the various activities, but where, for other reasons, reasonable care on the part of the entrepreneur affects the way in which the work is to be undertaken and the safety of the work site, and where other considerations … such as vulnerability, inequality of bargaining power, control, and the other manifold factors that the law recognises as being relevant to the existence of a duty of care, are present."

[83]

As Rockdale had configured the races in such a way as to be a safety risk in the work Mr Carey was directed to carry out, Rockdale was under a duty to use reasonable care to avoid, or minimise, that risk. 86 Bostik, in its submissions, also referred to Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234 for the purposes of distinguishing it from the facts here. The facts in Thompson are conveniently stated in the headnote: "A contractor engaged to deliver bread to a supermarket injured her back while attempting to move heavy industrial waste bins which obstructed the access to the supermarket's delivery bay of a truck she was driving. It was a task of supermarket staff to move the bins but the supermarket operator was aware that many delivery drivers moved the binds themselves to save time and of a consequent risk of injury to those drivers. The injured contractor sued the supermarket operator in negligence." 87 The High Court held that notwithstanding the plaintiff's status as an independent contractor, the supermarket (Woolworths) owed her a duty of care in circumstances where she was required to conform to a delivery system established by Woolworths and was subject to its direction. A similar approach was taken in Tolhurst v Cleary Bros (Bombo) Pty Ltd [2008] NSWCA 181. 88 There comes a point where reference to the multitude of decided cases ceases to provide assistance in the determination of the question in issue and it is necessary to return to principle. As Gummow and Hayne JJ observed, at [145], in Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540, the " totality of the relationship between the parties … is the proper basis upon which a duty of care may be recognised ". 89 In my opinion, the following matters are relevant to the question whether Bostik owed Mr Liddiard a duty of care. First, Mr Liddiard, although employed by Brolton, was undertaking work as a general hand for Bostik. Bostik paid Brolton for those services. In that sense, the arrangement was akin to the labour hire cases exemplified in Christie , although this case was different in that his employer had a presence on the premises. Bostik was the principal occupier of the premises and had the overall control of the activities that were engaged in on the premises. It required the premises to be maintained and kept clean. That work included rubbish removal from the smoko shed. Bostik was aware of the method of rubbish removal from the smoko shed. It permitted its forklifts to be used for that purpose. It was also aware of, and permitted, its empty 44 gallon drums to be used as rubbish receptacles for the smoko shed. Mr Pearce accepted that it was part of his responsibilities as Bostik's site manager to ensure that proper safety measures were in place, including in relation to the removal of rubbish bins from the smoko shed. 90 Mr Liddiard, for his part, was not in a position to organise his own method of work. He was subject to direction, although it is reasonable to infer that he would have expected that direction to have come from Brolton. However, that is not determinative of the question whether Bostik had a duty of care. He did not provide his own equipment. He had no control over any aspect of the workplace. 91 In my opinion, Bostik owed Mr Liddiard a duty of care that was akin to the duty owed to an employee.

[89]

The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors." 95 Notwithstanding the absence of any reference either to the statutory specification in s 5B or to these principles, it was apparent from the argument advanced that there was no dispute that the risk was foreseeable and was not insignificant: s 5B(1)(a) and s 5B(1)(b). Indeed, the concession was made on the appeal that the system of work was unsafe. The question for determination therefore was whether a reasonable person would have taken precautions against the risk of harm. Bostik's sole argument was that it did not need to do so as it was reasonable to leave any precautionary steps, including instruction, to Brolton as the employer. 96 Before determining whether that was a reasonable response it is necessary to refer to the evidence as to what steps could have been taken to avoid the risk of harm. In that regard, the uncontested expert evidence of Dr Neil Adams was that there were a number of simple and inexpensive precautions that could have been taken. These included the provisions of bins fitted with wheels; the provision of significantly smaller bins that would be unlikely to ever weigh so much as to be excessively heavy for manual handling; the provision of a bin-tilting trolley which could have been used to extract large bins from locations at which it was not possible for Mr Liddiard to use the forklift; and locating the drums where it was possible for Mr Liddiard to use the forklift to remove them. I would add to this last possible precaution that it may have been sufficient for Mr Liddiard to have been given an instruction to that effect. 97 The responses postulated above were simple precautions that would have involved little or no expenditure so that the burden of implementing one or other of them would be minimal. In my opinion, in circumstances where: the premises were Bostik's premises; it was the major occupier of the premises, the smoko shed was an amenity provided by Bostik for use by those who worked on the premises, which included its staff as well as Brolton's; Bostik assumed general responsibility for the maintenance and clearing up of the premises including the smoko shed: it engaged Mr Liddiard's services as a general hand to undertake the maintenance and clearing up tasks; and it provided Mr Liddiard with the equipment to do so: it was not a sufficient response to its duty of care to leave any response to the admitted unsafe system of work to Brolton. That was not a reasonable response; rather, it was an abrogation of responsibility. 98 It may be that there were aspects of the response that could have been left to Brolton. For example, one possible response was that instructions could have been given as to the proper manner in which to lift a bin, including checking its contents before lifting it. It might have been reasonable for that to have been left to Brolton, although I would have thought that it would have been necessary for Bostik to have communicated with Brolton to ensure that lines of responsibility had been drawn between them in order for that to have been a reasonable response. However, to put the matter at its most trite, the fact that Brolton also had a duty of care that it breached does not mean that Bostik had not breached a duty of care that it owed to him. 99 It follows from the above that this ground of appeal also fails.

[92]

The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man ( Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] AC 663 at 682; Smith v McIntyre [1958] Tas SR 36 at 42-49 and Broadhurst v Millman [1976] VR 208 at 219 and cases there cited. 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 will be of little, if any, importance." 104 In Vinidex v Theiss [2000] NSWCA 67 Rolfe AJA (Sheller and Fitzgerald JJA agreeing) said at [29]: "… the Court must have regard to what is just and equitable and, in doing so, it must make a comparison of the culpability and of the acts of the parties causing damage and, thus, to the relative blameworthiness and the relevant causal potency of the negligence of each party, and to the whole conduct of each negligent party in relation to the circumstances of the accident by way of comparative examination: Podrebersek v Australian Iron and Steel Pty Limited (1985) 59 ALJR 492; Wynbergen v Hoyts Corporation Pty Limited (1977) 72 ALJR 65; Macquarie Pathology Services Pty Limited v Sullivan (Court of Appeal - 28 March 1995 - unreported) and James Hardie & Coy Pty Limited v Roberts & Anor (1999) 47 NSWLR 45." 105 In Liftronic Pty Limited v Unver [2001] HCA 24; (2001) 75 ALJR 867 Gleeson CJ at [2] cited with approval the passage in Podrebersek to which I have just referred. Kirby J pointed out, at [90], that the questions of contributory negligence and apportionment are always questions of fact. Although Liftronic involved an apportionment by a jury, the principles stated in Podrebersek were confirmed. 106 The principle has been consistently applied. As Hayne J observed in Joslyn v Berryman (2003) 214 CLR 552; [2003] HCA 34 at [157], " [f]indings about apportionment of responsibility are not lightly to be disturbed ". His Honour then set out the above passage from Podrebersek . 107 For my part, I do not see any appellable error in his Honour's assessment of the respective contributions for which Bostik and Brolton were liable as between themselves. There was sense in his Honour's initial assessment of matters that pointed to equal contribution, although I would not have labelled the relationship between the two as a joint venture. The question for his Honour's consideration was, having regard to the respective relationship of each of Bostik and Brolton to Mr Liddiard and the responsibilities that were inherent in those relationships, what proportion of liability should each bear. 108 There were factors that pointed to an assessment that their relative contributions to Mr Liddiard's injury were equal. In particular, although Brolton had provided Mr Liddiard's services to Bostik, Brolton was his employer and was on site at all times. Although it had provided Mr Liddiard's services to Bostik, it was fully aware of the tasks that Mr Liddiard was undertaking and the manner in which he undertook those tasks. In particular, he was fully aware of the system in place for the collection of the rubbish bins. Mr Liddiard looked to Mr Lynch for employment-related matters, as instanced by his evidence that if he needed help with any matter in the course of his employment, he would approach Mr Lynch. 109 For its part, Bostik was responsible for the premises as I have discussed above, and it had engaged Mr Liddiard's services, through Brolton, to keep those premises in a clean condition. In my opinion, for the reasons I have already given, the system of work involved in Mr Liddiard's tasks as a general hand was a system for which Bostik had ultimate responsibility. This is so, notwithstanding that it is likely that in an immediate sense it was Brolton that adopted Dow Corning's system of work. Mr Pearce's position was that he left such matters to Mr Lynch, " because he was looking after the outside of the gardens ". That did not mean, however, that Bostik was entitled to do nothing. There is a difficulty, in any event, with this evidence. Mr Pearce did not say that that was a communicated arrangement with Mr Lynch. Nor did Bostik cross-examine Mr Lynch on the basis that that was the arrangement between Brolton and Bostik. 110 Bostik did not establish that Brolton in fact was in charge of the outdoor area. Mr Pearce's evidence did not establish that was the case and the fact that Bostik required a general hand would make this unlikely. Whilst it is likely that Brolton merely adopted the system that was in place under Dow Corning, Bostik's overall responsibility for the premises and for safety systems for the work that was required to be carried out on the premises was such that I do not consider that there was any error in his Honour's assessment of contribution.

[93]

Conclusion 111 Bostik has failed to establish that his Honour's findings in respect of duty, breach and limitations were erroneous, and therefore, the appeal should be dismissed. So far as costs are concerned, whilst costs are in the discretion of the court: Civil Procedure Act 2002, s 98, the usual rule is that costs follow the event unless the court considers that some other order should be made as to the whole or any part of the costs: see Uniform Civil Procedure Rules 2005, r 42.1. In this case, Bostik had a limited measure of success in challenging his Honour's evidence rulings. However, that aspect of the case took very little time to argue and involved only partial success on one of five issues on the appeal. That issue, whilst important, was itself within a small compass. In my opinion, that small measure of success is not sufficient to displace the usual rule. 112 Accordingly, I would propose that the appeal be dismissed with costs. 113 IPP JA : I have had the benefit of reading the reasons to be published of Beazley JA and Basten JA. 114 I agree with what Beazley JA has written in regard to the limitations issue and the admissibility of the evidence of Mr Pearce. 115 As regards the issue whether Bostik owed Mr Liddiard a duty of care I consider that the following matters are of particular relevance. 116 Brolton contracted with Bostik to provide certain services that included emptying the rubbish bins in the smoko shed. Bostik paid Brolton for carrying out this work. In order to carry out its contractual obligations to Bostik, Brolton instructed its employee, Mr Liddiard, to empty the rubbish bins. 117 Bostik gave no instructions to Mr Liddiard (or any other employee of Brolton) as to when, where and how the work involved in emptying the rubbish bins was to be done. Furthermore, Bostik did not co-ordinate the activities of work done by Brolton on the site. These matters, in practice, were left to Brolton. 118 Mr Pearce, Bostik's site manager, admitted that the system of safety for which he was responsible included the waste removal from the smoko shed. He admitted that it was his role to ensure that workers in the position of Mr Liddiard had sufficient work to occupy themselves. He accepted that as site manager part of his duties was "to ensure a safe system of work for machinery". 119 Mr Pearce's concession that it was part of his responsibilities as Bostik site manager to ensure that proper safety measures in relation to the removal of rubbish bins were in place, indicated an acceptance by him that, to that extent, he, as Bostik's representative, was in control of the site. Nevertheless, for the reasons set out below, that control must be regarded as theoretical rather than actual, and insignificant. 120 Mr Pearce never actually exercised any measure of control over Brolton "non-production" employees. He was not involved in the training of Brolton employees and did not supervise or instruct them. He said that if a Brolton non-production employee was not cleaning up properly he would not speak to that employee but would draw the attention of Mr Lynch, Brolton's manager, to what was happening. He said that he "left it up to Ben Lynch" to deal with workers who were emptying the bins. Mr Liddiard gave no evidence that Mr Pearce had ever spoken to him about the rubbish bins or indeed to any Brolton employee involved in non-production work (as Mr Liddiard was). There was no evidence of any contractual arrangement between Bostik and Brolton whereby any right of control over the manner in which non-production work was to be done was conferred upon Bostik. Nothing that Mr Pearce did (or, on the evidence, anyone else on behalf of Bostik) amounted to any assumption of control by Bostik over the work being performed by Mr Liddiard or any other non-production worker. 121 In the light of the matters set out in the previous paragraph, little weight can be attached to Mr Pearce's concessions. Whatever may have been in Mr Pearce's mind concerning his responsibilities relating to non-production work in regard to the rubbish bins, there is nothing to suggest that anything he or anyone else did involved an assumption by Bostik of "employer-like responsibilities consistent with its control and direction of the [respondent] in the work place" (per Foster AJA in TNT Australia Pty Ltd v Christie [2003] NSWCA 47; (2003) 65 NSWLR 1 at [178]). 122 On these facts Brolton did not establish that Bostik owed Mr Liddiard a duty of care. I agree with Basten JA's conclusion in this respect. 123 I also agree with what Basten JA has written concerning the breach of any duty of care that may exist. I would add that, on the evidence, I do not accept that the exercise of due care by Bostik would require it to provide bins fitted with wheels or smaller bins, or change its rubbish bin system in any other way. 124 The task that Mr Liddiard was performing when he was injured was one which he had performed approximately twice a week for some six months before the injury (as Basten JA points out at [136]). It was not a task which, in the past, had given Mr Liddiard any particular difficulty. That is perfectly understandable. The task was relatively simple. The possibility that some person would put some heavy object in a bin, or that the bin might be heavier than ordinarily would be the case, was a possibility that was obvious and should have been foreseen. It does not follow, however, that a reasonable response to the risk would require a change in the kind of bins that were in use. 125 It is common sense that one way of guarding against the risk of harm, should some heavy material be placed in an existing bin, would be to inspect the bin before lifting it. Another way would be to test the weight of the bin by gently attempting to lift it before applying all one's strength to move it to the desired position. For my part, without appropriate evidence, I would not be prepared to accept that measures of this kind would not constitute a reasonable response to the risk (rather than changing the kind of bins in use). Appropriate evidence of the kind mentioned was not adduced. In my view, the measures I have mentioned would be obvious to any person required to undertake the task which Mr Liddiard was instructed to perform. 126 I agree with Basten JA that breach of duty was not established. 127 I agree with the orders proposed by Basten JA. 128 BASTEN JA : Mr Liddiard suffered an injury when attempting to lift a rubbish bin on premises owned and occupied by the appellant. Mr Liddiard was employed by Brolton Industries Pty Ltd ("Brolton"), which also operated its business from the same premises. Mr Liddiard gave evidence that he treated Mr Lynch, the manager of Brolton, as the person to whom he was answerable. He had no contact with Bostik's management, and particularly with its site manager, Mr Pearce. 129 Mr Liddiard ("the plaintiff") brought proceedings for damages against both his employer, Brolton and the appellant. He succeeded against each in the District Court, Hungerford DCJ apportioning liability as to 60% against the appellant and 40% against Brolton. 130 The proceedings against the appellant were commenced more than three years after the date of injury. A defence based on the Limitation Act 1969 (NSW), s 50C, was rejected at trial. I agree with Beazley JA that the challenge to this finding should be dismissed because the cause of action was not discoverable until the plaintiff knew or ought to have known of a reasonably arguable case involving a connection between his injury and fault on the part of the appellant. The relevant facts included the contractual and practical relationship between Brolton and the appellant. 131 The appellant also challenged the admission of evidence from Mr Pearce which, it contended, constituted admissions in relation to questions of law, namely the existence of a duty of care owed by the appellant to the plaintiff. As Beazley JA explains, to the extent that the questions elicited answers which may be so understood, they were inadmissible; questions seeking to establish the factual basis from which the existence of a duty (and its content) in respect of the plaintiff, might be inferred, were properly admitted. I agree with her Honour's reasons in that regard. 132 In my view, the grounds upon which the appellant is entitled to succeed are the findings that:

[95]

Duty of care 133 In finding that both the employer and the appellant owed the plaintiff a duty of care, the trial judge stated at [79]: "The relationship between each of the defendants … was in the nature of a joint venture in relation to the plaintiff's work in emptying the rubbish bins at the smoko shed." 134 His Honour approached the matter, in accordance with submissions made to him, by considering whether the facts of the case provided a closer analogy with the decision of this Court in J Blackwood & Son Steel & Metals Pty Ltd v Nichols [2007] NSWCA 157, or the decision of the High Court in Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19; 221 CLR 234. His Honour held that the circumstances of Thompson were "analogous to the present situation" and that, accordingly, both defendants owed the plaintiff a relevant duty of care to take reasonable steps for his safety: at [78]-[80]. 135 In determining a question of law, namely the existence of a duty of care, the content, which is often the critical component, must be identified by reference to the circumstances in which the injury occurred: see Sutherland Shire Council v Heyman [1985] HCA 41; 157 CLR 424 at 487 (Brennan J) and Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29; 217 CLR 469 at [1] (Gleeson CJ). Thus, the High Court once rejected, as without rational foundation, the contentions that a worker at a bush camp, required to cut timber for a stove, should have been provided with some implement other than a tomahawk or should have been given instruction as to how to use the tomahawk: Electric Power Transmission Pty Ltd v Cuiuli [1961] HCA 3; 104 CLR 177. A similar conclusion was reached by this Court in relation to the use of a ladder in Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 at [74] (Heydon JA, Meagher JA and Foster AJA agreeing) and the securing of a load on a truck in J Blackwood & Son at [61] and [64] (Tobias JA, Mason P and Handley AJA agreeing). 136 In the present case, the 44-gallon drums used as rubbish bins were required to be physically manhandled from the smoko shed and on to the tines of a forklift. The plaintiff had undertaken this task approximately twice each week for some six months before the injury. He gave evidence that the bins were usually not heavy. On this occasion, the bin was unusually heavy. 137 Because the employer did not appeal from the judgment against it, its responsibility to take steps to avoid the need for manual handling of an unexpectedly heavy bin is not in issue. On the other hand, findings made against it, or not contested by it, do not operate against the appellant. 138 The plaintiff was not employed by the appellant and, on the accepted evidence of the plaintiff himself, received no instruction or direction from the appellant's manager. 139 The fact that an employer may be obliged to take reasonable steps to provide a worker with a safe system of work, does not preclude the existence of a duty owed by others to take reasonable care in their dealings with the worker, whether they be other employees, independent contractors, the occupier of premises which the worker is required to attend in the course of employment or other road users encountered in the course of travel. Where work is undertaken on the premises of a third party, that party may have a duty, which commonly arises from:

[96]

(a) the degree of control or direction exercised or which the third party is entitled to exercise over the worker; (b) the condition of plant or premises under the control of the third party, or (c) the activities of others on the site, generally for the purposes of the third party's undertaking or business. 140 The third situation may be put to one side for present purposes. The facts fall within a combination of the first and second elements. Thus, the system for clearing rubbish involved the use of the 44-gallon drums, which were provided by the appellant and the use of a forklift which did not fit under the roof of the smoko shed, which was also provided by the appellant. On the other hand, it is clear that the appellant did not seek to control the activities the plaintiff, nor direct him as to how to perform those activities. 141 The circumstances in which an employer provides labour to a third party, commonly described as "labour hire" arrangements, are not new. McDonald v The Commonwealth (1946) 46 SR(NSW) 129, concerned whether vicarious liability for an accident caused by a negligent worker lay with his legal employer (referred to as the "general employer") or "the particular employer", being the party for whom the employee was working and which had control over the employee at the time of the accident. In such a case, the passing of control from one party to another may be treated as in practical terms complete, so as to render the latter the employer pro hac vice (for the occasion only), in the language of Lords Macmillan and Simonds in Mersey Docks and Harbour Board v Coggins & Griffith (Liverpool) Ltd [1947] AC 1 at 13 and 18. In Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd [1986] HCA 34; 160 CLR 626 at 668, Brennan J stated: "The rule to be derived from Mersey Docks and McDonald is not that two persons cannot be vicariously liable for the same damage or that an employee cannot be the servant of two masters, but that two employers of the same servant who negligently causes damage will not both be liable for the damage if one rather than the other has what Jordan C.J. called 'the relevant control': McDonald , [at 132]." 142 No doubt caution must be taken in applying principles stated in cases where the vicarious liability of a principal or employer is in question to a case where responsibility for an injury suffered by an employee is in issue. However, the duty of the principal to an employee of an independent contractor has been upheld in cases such as Stevens v Brodribb Sawmilling Company Pty Ltd [1986] HCA 1; 160 CLR 16, where Mason J stated at 31: "Although the obligation to provide a safe system of work has been regarded as one attaching to an employer, there is no reason why it should be so confined. If an entrepreneur engages independent contractors to do work which might as readily be done by employees in circumstances where there is a risk to them of injury arising from the nature of the work and where there is a need for him to give directions as to when and where the work is to be done and to co-ordinate the various activities, he has an obligation to prescribe a safe system of work. The fact that they are not employees, or that he does not retain a right to control them in the manner in which they carry out their work, should not affect the existence of an obligation to prescribe a safe system." 143 In TNT Australia Pty Ltd v Christie [2003] NSWCA 47; 65 NSWLR 1, in relation to the plaintiff, whose labour was provided to TNT by his employer, Mason P stated at [41]: "TNT exercised day-to-day control over the plaintiff's work activities, treating him to all intents the same as its employees as regards work on the factory floor. … It can be seen that the plaintiff and TNT placed themselves in a relationship, day in and day out, indistinguishable from that of employee and employer. … [H]ere the plaintiff had for months been under the daily control of TNT and its managerial staff at the brewery. He was a relatively unskilled labourer. He reported daily to the brewery and everything that he did there was done under the full control of TNT." 144 Thus, in labour hire cases involving unskilled workers, there may well be a transfer of control to the business in which they are working. It appears that this was the case in respect of employees of Brolton who were provided to work for the appellant on its production lines. However, different practices appear to have arisen with respect to non-production line labour. 145 As had occurred before the trial judge, the parties in this Court sought to rely upon or distinguish particular factual circumstances drawn from cases supportive of their claims. However, the relevant comparison is not to be made between J Blackwood & Son (which concerned the need for instruction, not the person responsible for giving it) and Christie (which concerned the person on whom lay the responsibility for providing safe equipment). Nevertheless, it is clear that the situation of the appellant, with respect to control of the plaintiff, was far removed from that described in Christie . 146 Whether or not the appellant owed a duty of care to the plaintiff must depend to a significant extent upon the relationship between the appellant and Brolton. That appears to have been largely informal at the relevant time. As Mr Lynch explained in evidence, he had originally worked for Dow Corning, the business of which was taken over by the appellant, at which time he ceased working for Dow Corning and set up his own maintenance engineering business. He did work for the appellant and obtained a lease or licence of part of the premises occupied by the appellant. He supplied maintenance services and also labour to the appellant. Brolton was paid for those services but not, it would appear, pursuant to any written agreement. Mr Lynch gave the following evidence at Tcpt, 16/04/08, p 181: "Q. The smoko shed was used not only by Bostik and direct employees, but also by Brolton employees, is that right? A. And others, yes. Q. And not only Brolton employees who were working for Bostik, but Brolton employees who were working directly for Brolton? A. Yes. Q. And I think you gave evidence this morning that Brolton Industries used the forklifts owned by Bostik on Brolton's own premises, is that right? A. Correct. Q. Including, if you needed to, to lift piece[s] of equipment that Brolton was working on for customers other than Bostik? A. Yes. Q. And to move other items around on Brolton's own premises, is that right? A. Yes. Q. And there was no formal arrangement where you [paid] some sort of fee to do that, was there? A. No. Q. And if you wanted a forklift to do something for Brolton's own business, you just went and got one if it was available, is that right? A. Correct. Q. And similarly, Brolton used drums which were surplus or left over from Bostik's production line as rubbish bins on its own premises -- A. Yes. Q. -- is that right, for its own rubbish? A. Yes. Q. And there was no charge for that, was there? A. No. Q. And the understanding or arrangement between Brolton and Bostik was both drums like that and forklifts like that could be used by Brolton for its own business activities if needed? A. Yes. Q. And that was the position from 2000 right through until you stopped providing services to Bostik 18 months or two years ago? A. Correct." 147 The other party to the arrangement was the appellant. As appears from the evidence of Mr Pearce, the site manager for the appellant, set out above by Beazley JA, an inference was available that the appellant had accepted responsibility for a safe system of work with respect to non-production employees provided by Brolton: Tcpt, pp 206-207. However, in his evidence in chief, Mr Pearce also stated that he did not look after the training of Brolton employees, nor did he personally provide any training, but relied upon a "buddy system" for training people: Tcpt, p 193. He was asked if Mr Liddiard was "given over to tasks at the request of Bostik", language which he denied applied to Mr Liddiard but agreed might apply to persons working in the production area: Tcpt, pp 196(15) and 199(40). The following exchange occurred (p 208(5): "Q. And to a lesser extent was it your observation that for non production employees there would from time to time be supervision or instruction given in relation to how those tasks were carried out? A. Not normally, no. Q. Sometimes? A. No. Q. Why not normally, if it's not sometimes? A. Okay. It wouldn't be - I didn't see evidence of that. Q. It would be consistent with your understanding of the arrangement between Bostick [sic] and Brolton that an employee was on Bostick's premises and not cleaning up properly or driving a forklift in a dangerous manner it would be consistent with your understanding of that arrangement that a supervisor or official from Bostick may well instruct or otherwise prohibit a Brolton employee from continuing in that behaviour? A. If it was somebody driving a forklift quickly, yes, but if it wasn't say of not cleaning a part properly or not cleaning up properly, no that wouldn't be the case. Q. Well why would there be a difference? A. If a part wasn't cleaning or if an area wasn't cleaned up properly someone would tell me and we'd go to Ben to say that - or Ben needs to say that this person isn't doing - they're not cleaning a part properly or they're not cleaning up properly, can you attend to that please." 148 The reference to "Ben" was a reference to Mr Lynch, Brolton's manager. Further, at p 211(15) the following exchange occurred: "Q. How did you go about addressing that perceived responsibility in your position as site manager for Bostik? A. For emptying of the bins around the smoko shed? Q. Yes. A. I just left it up to Ben Lynch to - because he was looking after the outside of the gardens I left it up to him to be able to - you know basically get the workers to empty them." 149 Taken as whole, Mr Pearce's explanation is consistent with that given by Mr Lynch and the understanding of the plaintiff, namely that Brolton had contracted with the appellant to provide services in the outside areas, which included emptying the rubbish bins in the smoko shed, and that Brolton was responsible for the manner in which such work was to be performed. Although the bins and the forklifts may have been the property of the appellant, part of the arrangement was that Brolton could make use of such equipment as it required to carry out the functions for which it was responsible. This was not a case in which any co-ordination of contractors was required, nor was there any other reason for the appellant to devise a safe system of work for the plaintiff. To the extent that the appellant controlled activities on the premises, there was no danger or risk to the plaintiff relevant to the injury suffered, arising from the state of the premises or the activities which took place on them. It was no doubt true that steps could have been taken which would have lessened or removed the risk associated with manual handling of the waste bins. Nevertheless, neither the legal arrangement nor the practical circumstances in which the work was undertaken imposed an obligation on the appellant with respect to such steps. In my view the appellant did not owe a duty of care to the plaintiff.

[97]

Breach of duty 150 On the basis that the appellant owed no duty, no question arises as to possible breach. However, against the possibility that the conclusion with respect to duty may be wrong, it is desirable to deal with the question of breach. 151 The injury appears to have occurred because, on the occasion in question, the bin was unexpectedly heavy. Why that was so was not the subject of any finding by the trial judge. There was evidence that it had rained on the previous night, but it was presumably not the case that there had been no rain in the previous six months during which the plaintiff had undertaken this work. Indeed, he referred to empty bins being stored outside filling with rainwater. Further, there was no clear evidence as to why, if the bin were under the roof of the smoko shed, and therefore inaccessible to the forklift, it would have filled with rain. 152 What was clear from the plaintiff's evidence was that he had not had any difficulty in lifting the bin on any prior occasion. His evidence was that he collected and emptied numerous drums in the course of his work. He was used to dealing with heavy drums which had filled up with rain water and which had been stacked outside, waiting for him to move them to the industrial waste skip: Tcpt, 14/04/08, p 51. Approximately twice a week he would swap four drums used as rubbish bins in the smoko shed with empty drums: p 51(20). Although the bin in question was apparently heavier than usual, he lifted it in the usual way and said that "I didn't even think of the weight until me bicep went in me arm and I felt the thing in me arm, so": p 53(20). 153 It was not suggested that his technique was at fault or that he needed instruction as to how lift bins. Rather, the case was run on the basis that he should have been provided with mechanical assistance so as to avoid the need to lift the bins. However, the plaintiff did not anticipate any difficulty in manual lifting; the accident occurred as a result of the bin being heavier than he had expected for reasons which were not explained in the evidence. 154 The trial judge dealt with the question of breach of duty in brief terms. After noting the particulars of negligence, he remarked that the "consequent risks to the plaintiff's safety … were established by the report of Mr Adams": at [81]. He noted that Brolton had conceded breach, but that the appellant had denied breach "for the same reasons … put against there being a duty": at [82]. His Honour then stated at [83]: "I find that both defendants breached their respective duties of care owed to the plaintiff. On the facts found, the particulars of negligence have been established and the count is therefore made out." 155 With respect, there was nothing in his Honour's findings in relation to duty which formed a basis for a conclusion that the appellant was in breach, accepting that a duty existed. On the evidence referred to above, it cannot be said that a finding of breach was self-evident. Indeed, no specific finding was made as to what was required with respect to a safe system of work. If it were established that some form of mechanical device should have been made available, it might have been appropriate to put to the plaintiff that he would have used such a device, had it been provided: cf Civil Liability Act , s 5D(3). He gave no such evidence. The plaintiff's evidence that he had no difficulty lifting the bins on any prior occasion, combined with the fact that it was necessary to move them only three or four paces to the forklift, leads to no necessary inference that he would have used a mechanical device it if had been available. His evidence was not that the weight of the bin immediately registered as too great to be lifted in comfort; rather, his evidence was that he only became aware of the weight when, having already lifted the bin off the ground, he felt something give in his bicep. 156 It is necessary to separate questions of breach and causation, but the lack of any finding as to the specific respect in which breach was said to be established is reflected in the absence of a finding as to causation. Similarly, the absence of any clear finding as to the cause of the risk which materialised left open questions of foreseeability. 157 Without a finding as to why the bin was so much heavier than usual on the occasion of the injury, it is not possible to say that the system of work was unsafe. Similarly, it is not possible to say that a proper "manual handling risk assessment" would have established the existence of the unknown risk: cf Judgment at [81]. Indeed, it is not clear that the risk in question was reasonably foreseeable. The plaintiff's evidence was that he did not even trouble to look in the bins before lifting them because all that could be seen was paper: Tcpt, 14/04/08, p 28(30). He himself clearly did not anticipate that a bin in the smoko shed, under cover, might be unusually heavy. Nor is this Court asked to make findings with respect to these issues, an exercise which might well have proved difficult on the evidence. 158 As noted by Beazley JA, the approach to be taken in such a case is that identified in the Civil Liability Act 2002 (NSW), s 5B, set out at [93] above. Whether or not that provision varies the general law principle, it provides a helpful structure against which to ensure that relevant findings of fact are made. In this case the trial judge made no express finding that the risk was foreseeable, that it was not insignificant, nor as to the precise steps which a reasonable person would have taken by way of precautions. Because the cause of the accident was unknown, the risk was not identified and it follows that the plaintiff did not establish breach of any duty which may have been owed by the appellant.

At a glance

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Before

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Judgment (105 paragraphs)

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Legislation Cited (3)

Cases Cited (43)