D'Arcy v Caltex Australia Petroleum Pty Ltd [2019] ACTCA 27

[2019] ACTCA 27

Court of Appeal (ACT)|2019-10-23|Before: Murrell CJ, Mossop and Charlesworth JJ

View on the ACT Courts

At a glance

Source facts

Court

Court of Appeal (ACT)

Decision date

2019-10-23

Before

Murrell CJ, Mossop and Charlesworth JJ

Catchwords

APPEAL – NEGLIGENCE – Duty of care – workplace
accident fibreglassing an underground petroleum storage tank – appellant
severely burnt – claim against occupier of premises which had lease from
Crown lessee – appellant an employee of a contractor

Source

Original judgment source is linked above.

Catchwords

APPEAL – NEGLIGENCE – Duty of care – workplaceaccident fibreglassing an underground petroleum storage tank – appellantseverely burnt – claim against occupier of premises which had lease fromCrown lessee – appellant an employee of a contractorengaged by Crownlessee – scope of duty of care – whether obligations under WorkHealth and Safety Regulation 2011 (ACT) affect content of duty of care– whether occupier obliged to take steps to check capacity of contractorof Crown lesseeto comply with proposed method of work – whether primaryjudge erred in finding that occupier of premises did not breach dutyof care– he did not

Judgment

Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL

Case Title: D’Arcy v Caltex Australia Petroleum Pty Ltd

Citation: [2019] ACTCA 27

Hearing Date: 15 August 2019

Decision Date: 23 October 2019

Before: Murrell CJ, Mossop and Charlesworth JJ

Decision: Appeal dismissed with costs

The service station in question was on Maribyrnong Avenue in Kaleen. Evangelista Pty Ltd (Evangelista) held the Crown lease of the property. The premises were subleased to Caltex under a sublease commencing on 1 January 2009 and expiring on 31 December 2013. The sublease permitted the use of the premises for a “Service station/convenience store, mechanical car service and repairs, restaurant and/or takeaway food facility”.
In September 2011 Caltex entered into a “Star Franchise Agreement” with another company, Olmos Investments Pty Ltd (Olmos), as the trustee of a trust. Under that agreement Olmos was to conduct the retail activities at the service station on a day-to-day basis.
The sublease from Evangelista to Caltex gave occupancy of the premises to Caltex, subject to a reasonable right of re-entry for inspection. Clauses 2 to 4 of the sublease allocated certain responsibilities between the parties in relation to tanks, pipes, services and fittings on or beneath the driveway of the premises. Those clauses were in the following terms:
(i) The Lessee acknowledges that at the Date of Commencement hereof the Lessor has all property and Title to the underground tanks, pipes, services and fittings installed in or beneath (but not upon) the driveway, hereafter referred to as ‘the Lessor’s Fixtures’. (ii) The Lessee shall maintain, repair and be responsible for the proper operation of the Lessor’s Fixtures pursuant to clause 5.02 during its occupation of the Premises pursuant to the terms hereof. 3. The Lessee may subject to the Lessor’s consent which shall not be unreasonably withheld, permit the Lessee at the Lessee’s cost to upgrade and/or renovate, replace and/or repair any of the Lessor’s improvements on the site, and/or to fix, install or bring upon the site new equipment, trade fixtures or improvements of its own, PROVIDED ALWAYS: (i) That the responsibility for repairs and maintenance of the existing and/or upgraded or renovated system of underground tanks, pipe works, services and electronic communications to the tanks and pumps and any other Lessee fixtures and fittings installed in or beneath the driveway shall at all times be repaired and maintained by and continue to be the sole responsibility of the Lessee; and (ii) At the expiration of this Lease or any further Lease granted pursuant to the Option contained herein, or sooner determination of this Lease, all underground tanks, underground pipes, services and electronic communications to the tanks and pumps and any other Tenant fixtures and fittings installed in or beneath (but not upon) the driveway after the date hereof, shall revert to the Lessor for a consideration of one dollar, the receipt of which is hereby acknowledged.” 4. The Lessor and Lessee agree that if circumstances arise whether during, or, after the Lessee’s occupation of the site (provided always that there has been no intervening use of the premises as a Service Station after the Lessee vacates the site), requiring the carrying out of remediation work on the site resulting from leakage of petroleum products from any underground tank, pump, pipe or fitting, then the cost of that remediation work shall be borne equally by the Lessor and Lessee. [Emphasis added.]
The trial judge correctly identified that the chapeau to clause 3 is a riddle, as on its face it permits Caltex to give itself consent to update, renovate, replace or repair any of the lessor’s improvements. He correctly identified that it was unnecessary to resolve the confusion in the chapeau because under clause 3(i) the repairs and maintenance of the underground tanks was the sole responsibility of Caltex. That contrasts with the obligation under clause 4 which relates to remediation work on the site, the cost of which was to be borne equally by the parties.
The distinction between the obligation in clause 3(i) and 4 is significant because, as will be seen, Caltex persuaded Evangelista to contribute to the cost of tank relining as if clause 4 governed that work, whereas clause 3(i) applied. This in turn led Evangelista to be the party that contracted with Fuel-Sys to undertake the tank relining work, rather than Caltex.

On 13 August 2012, Mr Evangelista wrote an email to a person called ‘Terry’, enclosing a report provided by Caltex which advised that tanks 2 and 6 had failed. Mr Evangelista observed that early indications were that tank abandonment and replacement with a new tank farm would be too expensive, and the option of tank relining might be a better option. He noted that this option would result in less downtime on the site, which would lead to less compensation being claimed by Caltex. Mr Evangelista advised Terry that ‘Gino’ had been in contact with Mr Hale from Fuel-Sys and asked that Mr Hale liaise with Terry. On 17 August 2012, Fuel-Sys provided Evangelista with a quote for tank relining.
On 22 August 2012 at 12:42am, Mr Rynsaardt (Caltex) wrote an email to Mr Evangelista noting a conversation from the day before that relining of the tank could occur almost immediately, but that Evangelista’s preferred option was to replace the tanks. Mr Rynsaardt invited Evangelista to “advise what Caltex might consider for you to proceed on your preferred tank rectification programme. I presume you would require tenure certainty etc”. Mr Evangelista replied by email later that day. The copy of the reply email tendered as part of Exhibit AS appears to have a number of questions directed by Evangelista to Mr Rynsaardt followed by, in slightly different font, replies by Mr Rynsaardt. Evangelista referred to the likely cost of tank replacement, and asked whether there was any possibility of some assistance from Caltex by way of a loan or other means. Mr Rynsaardt replied that Caltex would not lend assistance, taking the view that its core business was fuel, and suggested that “banks would easily rely upon the Caltex covenant”. Evangelista observed that the project was not something that it had a great deal of expertise in, and that it had obtained only one quote for the purpose of trying to resolve the issue as quickly as possible. Evangelista noted that to obtain further quotes would delay the process of rectifying the problem with the tanks. Evangelista acknowledged that Caltex did not want to appear to be giving advice. However, Evangelista asked whether Caltex could have their experts “look at what has been provided to date by Dantec (sic)” and advise on whether it met with Caltex’s approval and that the quoted amounts were acceptable. The response from Mr Rynsaardt was “As a prudent landowner, I’m sure you would expect further quotes”.
In the wake of this correspondence, Evangelista abandoned any proposal to replace the tanks and decided to proceed with tank relining. On 23 August 2012 Mr Evangelista wrote to Nathan Phillips at Fuel-Sys attaching a work order for the tank relining work at the Kaleen site. He went on to advise that Caltex would be adding some pipework, at its expense, while the tanks were uncovered. He went on to say that Caltex would have one of their project engineers liaise with Fuel-Sys for coordinating “the works”. Mr Phillips replied confirming receipt of the written work order, and advising that they expected to arrive on site on 4 September 2012. The same day, Evangelista paid Fuel- Sys a deposit in the sum of $29,188.50 by bank transfer.
On 30 August 2012, John Merritt, Project Manager for Caltex, sent the following email to Mr Phillips at Fuel-Sys:

On 3 September 2012, a Fuel-Sys team that included the appellant started a job at the Kaleen service station. In addition to the appellant, the members of the team were Brad Endecott, Christian French, Nathan Phillips and David Jones. Mr Phillips performed the role of supervisor and went to collect the tools and materials needed by the team. The team brought all of their equipment to the site, except for a compressor, which Mr Phillips had hired. To undertake the job, a compressor was needed to provide ventilation within the tank. A compressor with a manifold comprising about four outlets was usually used for the job, allowing a fan blowing air into the tank, a fan sucking air out of the tank and the team’s breathing apparatus to be connected to the compressor. At least three outlets were therefore required.
A compressor with only two outlets was provided for the relining job in Kaleen. During the job one of these outlets was always utilised for the fan taking air out of the tank. Because the workers required their breathing apparatus to be connected to the compressor, the fan blowing air into the tank was only connected to the compressor once team members had exited the tank and disconnected their breathing apparatus.
Prior to the work commencing, a manhole was cut in the top of the tank and the tank was cleaned out using a sucker truck.
The process of applying fibreglass to the inside of the tank involved mending any obvious holes in the tank and then applying resin fibreglass and a material called “3D” to the inside of the tank.
There were a number of access holes or “plugs” in the top of the tank. These holes were kept open throughout the process of fibreglassing the inside of the tank. This allowed them to be used for electrical cables to power the lights inside the tanks. On the inside of the tank fibreglass was only placed up to the edges of the holes so that they were not blocked. The exception was the monitoring hole, which was covered over to permit testing of the adequacy of the lining in a manner which is not necessary to describe.
A few days after commencing the job, the plaintiff went to work early on a Sunday morning and found an amount of cured fibreglass on the floor of the tank that should not have been there. This had occurred due to the operation of the blow in fan, which was attached to one of the plugs. That plug had erroneously been fibreglassed over on the inside of the tank.
Due to this, the team had to spend five or six hours cleaning up the fallen fibreglass before recommencing the fibreglassing process. On the Monday and Tuesday over which this occurred the compressor was being used to suck the fumes from the tank and provide the breathing air supply for the workers in tank, in the manner described above.
On Tuesday at about lunchtime, the appellant and Mr Endecott exited the tank. The appellant checked whether the fan blowing air into the tank had been placed over the monitoring hole that had been glassed over from inside the tank. He tried to check the monitoring hole by looking through it from above using a torch, but he could not see anything. He therefore put on his breathing apparatus, disconnected the blow-in fan from the compressor and connected the air supply to his breathing apparatus. When he re-entered the tank he saw wet fibreglass lying on the floor near the monitoring hole. He gathered up the wet fibreglass and passed it out of the tank. He noticed that there were some parts of fibreglass still attached to the roof, but hanging down from the area from which fibreglass had fallen. He tried to push these parts back up so that the extra weight of these pieces of fibreglass would not pull the remainder of the fibreglass down with it.
The appellant noticed that one of the hanging pieces of fibreglass was leaning against a light globe within the tank. He tried to remove the fibreglass from the lightbulb. The glass bulb separated from the metal portion of the bulb. After the glass had separated from the bulb, the elements in the globe started burning like a candle. The appellant tried to put out the flame but it kept coming alight again. The fibreglass in his hand caught fire and fibreglass on the side of the tank started to ignite. He made his way to the manhole where Mr Endecott passed down a fire extinguisher. He attempted to extinguish the flames but was not successful. When this became apparent he made his way back up the ladder as quickly as he could. At the top of the ladder he realised that his hood and overalls had been burnt off his body.
The burns suffered by the appellant were severe. The primary judge’s reasons
The primary judge recited evidence consistent with the statement of facts outlined above. Relevant to the present appeal, he then addressed the cause of the fire and the liability of the two defendants.

In order to explain the third of these propositions, his Honour outlined the correspondence referred to above between Caltex and Evangelista, which illustrates how Fuel-Sys came to be engaged in carrying out the relining works.
So far as Caltex’s duty of care was concerned, his Honour approached the matter on the basis that the appropriate approach for establishing whether a duty of care existed was the “salient features” approach outlined in Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649.
His Honour was satisfied that the appellant was not an employee of Caltex, but an employee of Fuel-Sys. He was also satisfied that Fuel-Sys was engaged to undertake the relevant works by Evangelista, not Caltex. His Honour did not accept the appellant’s submission that Evangelista was acting as an agent of Caltex when it engaged Fuel-Sys.
His Honour found that “It may well be that” on a proper construction of the sublease, it was Caltex’s responsibility to undertake the repairs, but that did not convert Evangelista into Caltex’s agent for the purposes of Evangelista’s dealings with Fuel- Sys: D’Arcy at [121].
Caltex was an occupier of the Kaleen service station site. However, the primary judge described the appellant’s case against Caltex as “not based upon an allegation that he suffered injury due to the condition of the land in question, or any premises found on the land”. Because of that, the primary judge found that “it is not helpful to look to the principles which have grown up around the law of occupiers’ liability”: see D’Arcy at [122]. Rather, he found that: “The appropriate approach is to consider the rights and obligations of Caltex regarding the land, as revealed by the sublease and franchise agreement, as salient features in an analysis of the type contemplated by Allsop P in Staver”.
His Honour proceeded to make findings as to the salient features as follows:
The salient features of the relationship between the plaintiff and Caltex therefore appear to be: (i) Caltex was the lessee of the site under a sublease from Evangelista; (ii) it permitted Olmos to conduct a service station business on the site, badged as a Caltex service station, under a franchise agreement; (iii) Caltex assumed responsibility to Fuel-Sys for overseeing the attaining of permits and safety for the job of relining the tanks; (iv) Caltex undertook its own work on site around 5 September 2012 and had its own project engineers on-site at about that time; (v) Caltex knew the nature of the work to be undertaken by Fuel-Sys; (vi) Caltex knew that the work was to be carried out by an appropriately skilled contractor, using a safe system of work; and (vii) it was not reasonably foreseeable that the plaintiff would suffer harm by undertaking the works in accordance with the system of work proposed by Fuel-Sys. 129. In my opinion, it was not reasonably foreseeable on the part of Caltex that Fuel-Sys would deviate from its proposed safe system of work. 130. The fact that Caltex had significant rights of entry onto the land in question, and could direct its franchisee in the conduct of its business, is insufficient to found a general duty of care to the plaintiff by Caltex. The strongest circumstance in favour of finding a duty of care on the part of Caltex of the type alleged is the assumption by Caltex of an obligation to oversee the safety of the relining work, as communicated to Fuel-Sys on 30 August 2012: see [117] above. There is nothing to suggest, however, that Fuel-Sys relied upon this communication in formulating its system of work, including its system of supervising the works as they were performed. There is no suggestion that Fuel- Sys either did something, or refrained from doing something, based upon that communication. There is no evidence that the plaintiff was made aware of this communication, or that he acted or refrained from acting in any particular way because of the communication. 131. The presence of Caltex’s project engineers on site around 5 September 2012 also does not provide a basis for finding that Caltex had a duty of care of the type alleged with regard to the plaintiff. 132. I am not satisfied that Caltex owed the plaintiff a duty of care to supervise the works undertaken by Fuel-Sys at the request of Evangelista.
His Honour then went on to say that even if he was wrong in his finding that Caltex did not owe the appellant a duty of care, he would have found that in any event, Caltex had not breached its duty of care to him.
The primary judge outlined that the duty of care owed by Caltex was delegable. He referred to the decision in Leighton Contractors Pty Ltd v Fox [2009] HCA 35; 240 CLR 1 (Leighton) at [20] where the court set out an extract from the decision of Brennan J in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 (Stevens).
His Honour found that there was nothing unreasonable on the part of Evangelista in engaging Fuel-Sys to devise a system of work for the tank repairs and for supervising the work. The content of any duty on the part of Caltex was to be determined by the knowledge that his Honour found Caltex to have possessed. That knowledge was that the contractor engaged by Evangelista was a reputable contractor with experience in the work to be undertaken and who had devised a safe system for carrying out the work. His Honour found that satisfaction of the duty to supervise the works did not require Caltex to carry out inspections of the works to ensure that the system of work was being implemented.
His Honour rejected the submission that there was no evidence that could have led Caltex to believe that Fuel-Sys was an experienced and safe contractor. That was because, while not recommending Fuel-Sys to Evangelista, Caltex had nominated Fuel-Sys as a contractor that had been used by Caltex in the past. His Honour drew the inference that Caltex would not have provided Evangelista with the name of Fuel- Sys unless it had been satisfied that it was an experienced and safe contractor. He also made the somewhat tentative finding that: “Subsequently, as I understand it, Caltex was provided with Safe Work Method Statements by Fuel-Sys”.
Finally, his Honour addressed various statutory provisions relied upon by the appellant which were said to inform the content of the duty of care. Those were provisions of the Work Health and Safety Regulation 2011 (ACT) (WHS Regulation) and the Dangerous Substances (General) Regulation 2004 (ACT) (DSG Regulation). His Honour found that none of the statutory provisions was applicable in the circumstances and hence none informed the content of any duty of care that might have existed.

A substantial portion of the appellant’s argument was directed to the existence of a duty of care. However, the respondent conceded that, contrary to the approach adopted by his Honour, Caltex was an occupier of the premises, and hence it owed a duty of care as an occupier.
The position articulated by his Honour was to distinguish between the duty that would be owed by Caltex as an occupier and a separate duty that it might owe to a person in the position of the appellant. It was this part of his Honour’s reasons which the respondent conceded was erroneous. The respondent conceded there was a duty because occupier and entrant is a well accepted category of duty, but then went on to ask whether, in the particular circumstances of this case, the duty extended as far as the appellant contended. It contended that the duty did not extend so far. That was the same conclusion reached by the primary judge if a duty did exist.
The ultimate issue is whether there was a duty of care which extended as far as the appellant contended. The method adopted by the primary judge was to say that there was no duty of care in the sphere of operation for which the appellant contended. The method adopted by the respondent was to accept that there was a duty which covered the relationship between the parties, but that the content of the duty did not extend as far as the plaintiff contended.
In our view, his Honour erred in dealing with the matter on the basis that there was no duty of care. Rather, the relationship was one which gave rise to a duty. The content of that duty needed to accommodate itself to the particular circumstances of this case, which involved a relationship more complicated than simple occupier and entrant. The issue for determination is whether, having regard to all of the features of the relationship, the duty extended as far as contended for by the appellant.
So far as the content of that duty is concerned, s 168 of the CLW Act neither defines the scope of the duty nor affects its content: Meyers v Commissioner for Social Housing [2019] ACTCA 19 at [221]-[222]. It is therefore possible to analyse the circumstances by reference to the general principles in ss 42-44 of the CLW Act and it is not necessary to separately refer to s 168.
That means that the substantial questions for determination are those issues arising from issues (c), (d) and (e) above.

The highlighted portions of this extract are those emphasised by the appellant. The point made by the appellant is that in a context such as Stevens, there will be no breach of duty by an entrepreneur who organises an activity to those engaged in carrying it out, if it is reasonable to engage the services of independent contractors who are competent themselves to control their system of work without supervision by the entrepreneur. The appellant submitted that, like the entrepreneur referred to in Stevens, an occupier in the position of Caltex must have reasonable grounds to be satisfied that the subcontractor engaged is competent to control its own systems of work before its duty to a person carrying out the work is met. As a consequence, the appellant submitted that Caltex had a minimum obligation to satisfy itself prior to the commencement of work that:
the maintenance and repair of the underground fuel tanks was carried out by a contractor with appropriate SWMSs; and
the contractor had adequate personnel, training, systems and equipment in place which would, on the balance of probability, enable the SWMSs to be complied with.
The appellant submitted that if an initial check did not establish both of these matters then it would have been the responsibility of Fuel-Sys to rectify any problems identified before the work proceeded. If Fuel-Sys was unable to rectify the problems then that would have indicated that it was not a competent contractor and any agreement with Fuel-Sys should have been terminated by Evangelista at the request of Caltex. Thus, Caltex had to show that it had satisfied itself of the competence of Fuel-Sys to actually carry out the work in the manner set out in the SWMS.
The appellant submitted that the primary judge’s finding that Caltex knew that Fuel-Sys was a “reputable contractor, experienced in the work to be undertaken” was not supported by the evidence. He submitted that the burden was on Caltex to prove the competence of its contractor in order to avoid liability for the conduct of Fuel-Sys on its premises.
The appellant submitted that the evidence was insufficient to establish that the respondent had any prior experience contracting with Fuel-Sys “in its incarnation current at the time of the Kaleen job” and that the primary judge’s inference that Caltex “would not have provided Evangelista with the name of Fuel-Sys unless it had been satisfied from its previous experience with Fuel-Sys that Fuel-Sys was an experienced and safe contractor” had no foundation in the evidence. He submitted that the most rudimentary examination by Caltex of the system of work proposed by Fuel-Sys on the first day of the tank relining job would have shown the presence of inadequate and dangerous equipment, the absence of adequate protective clothing and insufficient training, supervision and instruction. These signs were, in the submissions of the accused, “the clearest demonstration possible that Fuel-Sys was not competent to control its own systems of work from the outset of the job”.
So far as the statutory counts are concerned, the appellant submitted that although he did not rely upon the obligations under the WHS Regulation to establish independent civil causes of action, he did submit that the obligations in the regulations demonstrated reasonable steps that could have been taken by Caltex and they therefore informed the content of the duty of care. So far as the provisions of the DSG Regulation were concerned, they were relied upon as breaches of statutory duty.

As the decisions are of central significance to the appellant’s arguments on the appeal, it is necessary to say something more about Stevens and Leighton. In Stevens the issue was whether or not a sawmiller was liable to a contractor for the negligence of another contractor who caused him injury when a log was being moved onto a truck. There were a number of ways in which the plaintiff put his case. The High Court concluded that neither the negligent person nor the injured person were employees of the sawmiller. As a consequence, the sawmiller was not vicariously liable for the negligent person’s conduct. Nor was the sawmiller in breach of a non-delegable duty to the injured person. The court then needed to consider whether or not the sawmiller was in breach of its duty of care. That duty was a duty that arises if an entrepreneur engages independent contractors to do work in circumstances where there is a risk of injury arising from the nature of the work and a need for direction and coordination of the various activities being undertaken. In those circumstances, the duty on the entrepreneur is to prescribe a safe system of work. It is that duty which was articulated in the judgment of Brennan J set out earlier. It was also recognised in the other judgments of the court: see Mason J at 31, Wilson and Dawson JJ at 45 and Deane J at 53. However, it should be noted that the judgment of Brennan J placed emphasis on the significance of the entrepreneur having employed contractors who themselves are competent to control the system of work without supervision.
The significance of Stevens is that it emphasises that even outside the relationship of employer and employee, a duty of care may exist between entrepreneur and independent contractor where the nature of the activity undertaken is such that there remains a role for the entrepreneur to determine a safe system of work. As the result in Stevens indicates, what is reasonably required to be done in the circumstances to organise the activity and specify the manner in which the activity is to be conducted will be assessed having regard to the fact that those performing the work are independent contractors, rather than employees and have responsibility for their specialised tasks.
In Leighton there was a head contractor (Leighton) who subcontracted the performance of concreting works to a company, Downview. That task was further subcontracted to two other people (Quentin Still and Jason Cook) who then engaged Mr Fox and another man (Warren Stewart) to carry out the concrete pumping for a particular pour. The High Court found that the head contractor did not owe to Mr Fox a duty to provide induction training in the safe method of cleaning the concrete line. To impose such a duty would have created a duty to provide training in the safe method of carrying on every trade and conducting every specialised activity carried out on the site to every worker on the site: see Leighton at [52]. The court held that such a duty to provide training in the safe method of carrying out the contractor’s specialised task would be inconsistent with the maintenance of the distinction the common law draws between the obligations of employers to their employees and of principals to independent contractors: see Leighton at [52]. So far as the concreting subcontractor was concerned, although Stevens might impose an obligation to provide direction and coordination of various activities being undertaken on a site, the court declined to interfere with the judgment of the Court of Appeal which had found that there was nothing unreasonable about subcontracting the concrete pumping work. The court also did not interfere with the trial judge’s finding that line cleaning was a self-contained operation that did not require coordination with other activities on the site. However, the court at [59] appeared to endorse the proposition emphasised in the judgment of Brennan J, that if the contractor engaged by Downview was not competent then Downview may not have avoided liability for the negligent failure of its subcontractor to take reasonable care to adopt a safe system of work.

The circumstances of the present case are distinct from those in Stevens or Leighton. In the present case, Caltex was not part of a contractual chain linking Caltex to the injured employee. In Stevens there was a contractual relationship between the sawmill and both the negligent contractor and the injured contractor. In Leighton there was a chain of subcontracting which linked both the head contractor (Leighton) and the concreting contractor (Downview) to the injured contractor and the person responsible for his injury. In contrast, Caltex was a lessee of Evangelista. It was Evangelista who contracted with Fuel-Sys, who in turn employed the appellant. Thus there is no direct contractual hierarchy through which control might be exercised by Caltex.
Having said that, Caltex was the occupier of the premises. It had the capacity to control the works that were undertaken in the premises. It had procured an arrangement in which, notwithstanding the obligations in its lease from Evangelista, Evangelista was the contracting party with Fuel-Sys. Therefore, although Caltex clearly had obligations as an occupier to control activities on the site, the contractual arrangements were between Evangelista and Fuel-Sys.
Although some emphasis was placed upon this by the appellant, the fact that Caltex may have shifted financial and contractual responsibility for the works to Evangelista in a manner not consistent with the lease is not of great significance. The duty of care owed by Caltex must be assessed in light of the actual contractual arrangements with Fuel-Sys. That two commercial parties, Caltex and Evangelista, may have arranged their affairs, for reasons that were not explored at trial, in a manner different to that contemplated by the lease between them does not mean that the actual contractual arrangements with Fuel-Sys can be ignored, or that some adverse inference relevant to the scope of its duty of care should be drawn against Caltex.
The question then is: In exercising its capacities as an occupier of the site, did Caltex’s duty to take reasonable care for persons entering upon the site extend to a duty to employees of a contractor of the landlord to ensure that the contractor was competent to carry out the work for which it was engaged, in a safe manner and with the training and systems put in place to ensure that it was in fact carried out in a safe manner?
The correct approach is to look at the question prospectively from Caltex’s standpoint. The standard of care required is that in s 42 of the CLW Act, namely, “that of a reasonable person in [Caltex’s] position who was in possession of all the information that [Caltex] either had, or ought reasonably to have had, at the time of the incident out of which the harm arose.”
So far as s 43 is concerned, the critical issue is whether a reasonable person in the position of Caltex would have taken the precautions identified by the appellant. The first is ensuring that the contractor had “appropriate SWMSs”. The point in relation to SWMSs is whether Caltex had a duty to examine the contents thereof to ensure the safety of the appellant in relation to possible injuries caused by the method of work adopted. That is distinct from any duty to examine the SWMSs so as to ensure the safety of the site as a whole or to address any coordination issues that might arise in relation to the carrying out of specialised work. It would obviously need to take into account the features of the present case in which Caltex’s role was more than a mere occupier by reason of its agreement with Evangelista in relation to the carrying out of the work and its limited role in identifying Fuel-Sys as a contractor which performed such work. However, it would be necessary to bear in mind that the issue about SWMSs would need to be determined in the context of Caltex having engaged Fuel- Sys previously and there being no evidence that its performance in the past had been other than competent.
On this issue the trial judge was prepared to draw an inference that in response to the email of 30 August 2012 requesting, inter alia, SWMSs, they were sent to and received by Caltex: see [49] above. There was evidence that the SWMS had been requested: see [21] above. However, there was no direct evidence that it was obtained and examined. The list of documents filed by Caltex did not include any SWMS or disclose that it was ever in the possession of Caltex. Given the significance of a verified list of documents, that would usually, in the absence of evidence to the contrary, make it inappropriate to draw an inference that any SWMS had in fact come into the possession of Caltex. However, in this case the position in relation to the scope of discovery was not without its complications, and the scope of discovery required may well have been limited in a way that would not have required disclosure of the SWMS: see D’Arcy v Caltex Australia Petroleum Pty Ltd [2016] ACTSC 270 at [42]-[47]. In those circumstances there is no reason to depart from the inference drawn by his Honour.
In any event, the SWMS disclosed a method of work which has not been shown to be other than safe and competent. His Honour so found: see D’Arcy at [126]. It identified appropriate responses to the potential hazards created by working in confined spaces, a hazardous work environment, the possibility of faulty equipment causing sparks and the possibility of a light inside the tank causing sparks or an explosion. It disclosed an apparently competent approach and was an apparently appropriate SWMS. Therefore, the failure by Caltex to receive it would have had no causal consequence. In those circumstances it is unnecessary to reach a conclusion as to whether the duty of Caltex extended to checking that the contractor had “appropriate SWMSs”.
It is only if the duty upon Caltex went further and required some further assurance of compliance with the SWMS that a causally relevant breach would be established. This is the next issue raised by the appellant’s submissions. In assessing this ground of appeal it must be remembered that the burden lay upon the appellant to establish the facts amounting to a breach of duty of care.
So far as this is concerned, the appellant did not identify precisely what should have been done by Caltex prior to the commencement of work. The contractor had previously done work for Caltex, and this was not shown by the appellant to have been done other than competently. The appellant did not, for example, show that any issue relating to the competence of Fuel-Sys was one of the reasons (referred to in the email at [14] above) why Caltex had put a stop on lining tanks in situ. When regard is had to the need to look at the duty prospectively, rather than with the benefit of hindsight, it is clear that the appellant has not established a causally relevant breach of duty. It is not at all clear what further steps should have been taken to ensure that the measures in the SWMS were each implemented when the Fuel-Sys team was on site. It would certainly not be reasonable for an occupier in the position of Caltex to anticipate each possible way in which an employee of the contracting company may be injured during the carrying out of specialised work. It would also not be reasonable for an occupier in Caltex’s position to then be required to test the robustness of each of the measures necessary to prevent any anticipated injury and the likelihood of their implementation prior to the commencement of work.
Once relining work had commenced, it would only be through inspection of the method of work by a person with knowledge of how such specialised tasks were undertaken and/or checking against the SWMS that would have possibly had a causal consequence for the appellant. One of the causes of the accident was failing to have a three outlet compressor. That meant that the blow-in fan was not used consistently and hence generated a risk it would be connected to a hole in the tank that was covered by fibreglass. It would have taken a relatively sophisticated understanding of the process being undertaken and the possible risks that might arise to have identified this as creating a hazard for the employees of Fuel-Sys. Another cause of the accident was the use of an incandescent lamp within the tank which was a reasonably clear departure from the SWMS. However, in order to detect such a departure it would have been necessary for a representative of Caltex to be supervising the work at a level of detail to know what equipment was being used inside the tank. It would involve an obligation to inspect the adequacy of the equipment used and make an assessment of its compliance with the statements in the SWMS.
In our view, considered without reference to the statutory provisions to which we will turn in a moment, a reasonable person in Caltex’s position was not obliged to take steps to assess or test compliance with the SWMS in order to protect the safety of employees of a specialist contractor engaged not by Caltex but by Evangelista.
In those circumstances, recognising that it has been unnecessary because of the absence of any causal consequence to finally determine whether the duty of care upon Caltex required it to obtain and examine the SWMS from Fuel-Sys, the appropriate conclusion is that no causally relevant breach of duty was established.

His Honour stated that “The section itself does not impose a duty on anyone”. His Honour said that the relevant duty was found in s 66 of the Regulation. That is a general provision requiring that risks associated with a confined space must be managed in accordance with Pt 3.1 of the Regulation, which imposes general obligations to identify and manage risks to health and safety: see [97] above. Section 66 is identified as a provision which “sets out the way in which a person’s duty or obligation [under s 19] of the Act is to be performed” in relation to confined spaces. His Honour reasoned that because s 66 of the Regulation did not apply to Caltex then s 73 of the regulation also did not apply.
The obligation in s 73 clearly imposes an obligation on “a person conducting a business or undertaking”. It is not expressly or impliedly tied to the obligation in s 66 or otherwise tied to the obligation in s 19 of the Act. It is a provision which sits within division 4.3.3 which in turn sits within Pt 4.3 “Confined spaces”. Section 62 confined the operation of Pt 4.3 to “a confined space that is under the person’s management or control”. Each of the provisions of div 4.3.3 except for s 66 is a provision that is independent of the general duty in s 19 of the Act. Each of the provisions imposes duties upon a person conducting a business or undertaking which may be enforced by criminal proceedings to recover identified maximum penalties. It was therefore not correct for his Honour to conclude that s 73 did not apply to Caltex. Caltex was within the scope of the expression a “person conducting a business or undertaking”. The expansions and qualifications of that concept in s 5 of the Act do not affect the application of the expression in its ordinary meaning to Caltex. As lessee of the land Caltex conducted a business or undertaking by licensing Olmos to conduct the retail business on the site while Caltex retained its entitlements and obligations under that franchise agreement and its lease from Evangelista. That it was neither the principal operator of the retail side of the business or the owner of the land did not avoid the applicability of the broadly worded expression. The word “ensure” is not given a qualified meaning in the Regulation or the Act (cf DSG Regulation s 6).
The introduction of an electric light with a hot filament into the confined space of tank 6 clearly carried with it “a possibility of the ignition source causing a fire … in the space”. The duty in s 73 is one which does not involve any fault element and hence the ignorance of Caltex that such a light (as opposed to an LED light) was to be introduced does not avoid a contravention of the statutory rule. Therefore, the conclusion reached by his Honour was incorrect.
However, that is of limited significance having regard to the use to which a statutory rule such as s 73 may be put in accordance with the authorities referred to above. They make it clear that the obligation upon Caltex remained one of reasonable care. That is to be informed by the existence of specific statutory obligations. A breach of any such obligation does not of itself demonstrate a failure to take reasonable care. Having regard to the particular scope of Caltex’s business and the very limited role that it played in relation to the carrying out of the works undertaken by Fuel-Sys, we do not consider that a breach of s 73 of itself or in combination with the other circumstances of the case indicate a failure on Caltex’s part to take reasonable care. That is essentially for the reasons which have been outlined at [76]-[84] above. The use of safe lighting in circumstances where there is a risk of fire and explosion would be required by an employer or person with direct responsibility for the activity in a confined space exercising reasonable care. However, the relationship between Caltex and the appellant was not such that reasonable care involved ensuring this precaution was taken. Thus, although the reasons given by the primary judge for rejecting this aspect of the appellant’s case were not correct, the conclusion that his Honour reached was.

The appellant also relied upon ss 280, 285, 286, 292 and 293 of the DSG Regulation. These provisions fall into a different category because there is no equivalent to s 267 of the WHS Act in the DSG Regulation. The provisions of the Dangerous Substances Act 2004 (ACT) (DS Act) and DSG Regulation are relied upon in order to establish that Caltex breached a statutory duty, rather than merely informing the content of a common law duty of care.
In the absence of a contrary legislative intention, a duty imposed by statute to take measures for the safety of others will be regarded as involving a correlative private right: O’Connor v SP Bray Ltd (1937) 56 CLR 464 (O’Connor) at 477-478; John Pfeiffer Pty Ltd v Canny (1981) 148 CLR 218 at 231. That is largely dependent upon the policy of the provision, rather than the meaning of the instruments: O’Connor at 478. Such a right is independent of negligence. The statute provides the right and the common law provides the remedy: Downs v Williams (1971) 126 CLR 61 at 74.
The correlative private right will arise where the legislature creates a duty intended to protect a specified class of persons and the rights of a person within that class are infringed. The fact that a provision incorporates a penalty for breach does not necessarily exclude a right to sue for breach of statutory duty: Darling Island Stevedoring & Lighterage Co Ltd v Long (1957) 97 CLR 36 at 53; Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 at 405-406.
Where the terms of the legislation creating the duty are both beneficial and penal, it is necessary to extract from the legislation the fair meaning of the words. In doing so it must be remembered that the legislation is a remedial measure passed for the protection of a particular class of persons. It must not be construed so strictly as to deprive the protected class of persons of the protection that the legislature intended they should have. Because of that, the rule that penal statutes should be strictly construed is clearly one of last resort. The process of construction must yield for all purposes a definitive statement of the incidence of an obligation imposed on the persons to whom it is directed: Waugh v Kippen (1986) 160 CLR 156 at 164-165. In other words, the measure of the duty does not change with the character of the proceedings taken to enforce it: Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 at 252.
It may be the case that a provision prescribes the end but not the means. If the provision does not identify any specific precaution or measure which an occupier should take for the safety of others, it should not be construed as conferring a private cause of action: McDonald v Girkaid Pty Ltd [2004] NSWCA 297 at [177].
The argument in the present case proceeded on the basis that the regulations made under the DS Act were capable of giving rise to a cause of action for breach of statutory duty. There is no provision in the Act or the regulations denying to them any effect upon civil rights or obligations. Their provisions control the keeping, handling and use of dangerous substances in order, amongst other things, to reduce the risk of damage by fire, explosion or through exposure of individuals to them. The provisions are therefore directed to the interests of the safety of members of the public or certain classes of them. They are of a character which may give rise to a private cause of action.
There are some preliminary matters which must be noted before turning to the specific provisions relied upon.
The catalysed resin used in the tank relining process was a “dangerous substance” within the meaning of the DS Act. The catalysed resin was classified as a dangerous good under the Australian Dangerous Goods Code (Class 3, Packing Group III) and hence within the definition of “dangerous substance” in s 10 of the DS Act.
The premises were not “registrable premises” for the purposes of the DSG Regulation. In those circumstances, the premises were “non-registrable premises”.
The relevant provisions of the DSG Regulation are as follows:

The remaining subsections elaborate upon matters that are required to be considered for the purposes of paragraphs (a), (b), (c).
In its terms, s 280 imposes no obligation on a particular person. It is a provision which prescribes a requirement for the purposes of the definition of ‘safety management system’ in s 19(1). The effect of s 280 is to add to the requirements for a safety management system the matters required by “this division”, namely div 2.9.1 which contains ss 280-281 of the Regulation. The added requirement is that in s 281, which applies if a person in control of non-registrable premises is preparing a safety management plan and for those purposes identifying the hazards associated with a dangerous substance at the premises. Section 281(2) requires the person to consider both the safety data sheet for the substance and other information known about the hazardous properties of the substance. Subsection (3) provides that a person in control of non-registrable premises must take all reasonable steps to find out about the hazardous properties of the substance.
When read in the context of s 281, it is clear that the obligation in s 280 is not an obligation to prepare a safety management system, but is rather an obligation on a person who is preparing a safety management system to do so “in accordance with this division” and hence include the matters referred to in s 281.
The substantive obligation to prepare a safety management system is that in s 31 of the DS Act. No breach of this provision was pleaded. In the appellant’s written submissions there is a reference to words drawn from s 31(2) which are wrongly described as coming from s 280(2) of the DSG Regulation. Having regard to the interpretation of s 280 set out above, and the absence of any pleading of a breach of s 31, it would be wrong to interfere with the result reached by the primary judge, even though his Honour proceeded on the basis that s 280 itself created some relevant obligation.

Section 285(1) provides the threshold for the application of the section. It is only if the section applies that the obligations in subss (2)-(4) apply. Section 285(1) identifies as the threshold for the application of the section that “there are reasonable grounds for a person in control of non-registrable premises to require personal protective or safety equipment to be used by a person”. If that threshold is met then the person in control of the premises is required to “ensure” that the exposed person is required to use such equipment. Subsection (3) identifies the characteristics of the equipment that must be used. The requirement to “ensure” is, under s 6 of the DSG Regulation, satisfied “if the person takes reasonable steps to eliminate the hazards, and eliminate or minimise the risks, that might result of the requirement were not met”. It therefore requires not the “ensuring” in the ordinary (and strict) sense but instead only the taking of “reasonable steps” to eliminate the hazards or eliminate or minimise the relevant risks.
The terms of s 285(1) indicate that it is directed to the “risk from a dangerous substance while the exposed person is (or may be) exposed to the substance at the premises”. The reference to being “exposed” to the substance is consistent with his Honour’s conclusion that the risk being protected against is one arising from physical exposure to the substance, rather than to some other hazard arising from its use. Adopting that as the interpretation of subs (1) then affects the scope of the obligations in subss (2) and (3). His Honour was therefore correct in reaching the conclusion that he did about the absence of evidence that the personal protective equipment was deficient.
Further, the section only applies if there are reasonable grounds to require personal protective or safety equipment to be used by a person. That raises for consideration the relationship between the person in control of non-registrable premises and the exposed person. In circumstances where the exposed person was an employee of a contractor undertaking specialised work in a discrete area of the premises, pursuant to a contract with the owner of the land, and Caltex having licensed the day-to-day operation of the premises to a third party (Olmos) and with no knowledge of any deficiency in the protective equipment, the threshold of reasonable grounds in s 285(1) would not be met.

Section 286 relates to the provision of adequate lighting. It too makes reference to the word “ensure”. It refers to “safe access within, to and from” areas and to lighting which is both “sufficient and suitable”. Lighting which was of a nature which would create a risk of fire or explosion would clearly not be “suitable” for the purposes of the section.
The primary judge dealt with this issue (along with ss 292 and 293) in the same manner as he had done in relation to s 285, namely that it was reasonable for Caltex to have taken no further action in the circumstances and hence the requirement to “ensure” was satisfied. For the reasons given at [129] above, the relationship between Caltex and the appellant was such that his Honour’s ultimate conclusion has not been shown to be wrong.
Section 292 relates to ignition sources in hazardous areas. As indicated above, his Honour dealt with the claim of breach of s 292 by reference to the qualified obligation involving in the word “ensure”. His Honour concluded that it was reasonable for Caltex to have taken no further action in relation to ignition sources. Section 292 only applies to ignition sources in “a hazardous area” at the premises. That term is defined in subs (3). It has not been demonstrated that the area in question was a hazardous area within the meaning of the standards referred to in that subsection. The written submissions of the appellant provide: “There is no precise evidence as to whether the three standards in question mean that the interior of Tank 6 was a ‘hazardous area’, as defined in s 292, although it may well have been.” As a consequence, even before coming to consider whether Caltex met the obligation to “ensure” particular things, it has not been demonstrated that the area where the appellant was working was covered by the provision. His Honour has not been shown to be wrong in the conclusion that he reached.
Section 293 relates to the elimination or minimisation of risks associated with flammable, explosive or asphyxiating atmospheric conditions. It was also dealt with by his Honour by reference to the qualified obligation involved in the word “ensure”. His Honour concluded that it was reasonable for Caltex to have taken no further action. The atmospheric conditions within the tank were flammable. That is indicated by the manner in which filaments of the broken lightbulb ignited. Having regard to the necessity to have some form of lighting within the tank that was being worked upon and hence the need for some electrical devices within the tank, it was not possible to eliminate any risk associated with flammable atmospheric conditions. However, the risk may well have been minimised by the use of an alternative form of lighting, most obviously the form of LED lighting contemplated by the SWMS. Yet, once again, the issue comes back to the expression “ensure” and its satisfaction if the person “takes reasonable steps” to eliminate or minimise the risk. For the reasons given at [129] above the conclusion reached by his Honour has not been demonstrated to be wrong.

D'Arcy v Caltex Australia Petroleum Pty Ltd [2019] ACTCA 27

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