Analysis and resolution
60There have been many cases, especially in recent times, where an employee injured in a workplace or industrial situation, has sought to include within the ambit of liability persons and corporations beyond his immediate employer. This is understandable in the light of contemporary legislation, part of the cycle of tort reform, which has sought to restrict significantly the damages payable by an employer to his worker. Moreover, especially in the building industry, the immediate employer may turn out to be a 'man of straw'. For that reason, also, the injured worker often looks to find and impose liability upon a more substantial defendant.
61Against this background, decided cases have shown at times an uncertainty of approach. This uncertainty has, in a number of respects, been resolved by recent decisions of the High Court of Australia. The primary judge referred to several of these in his reasons for decision. However, it may be convenient to summarise in very brief form the principles I see as being relevant to the resolution of the issues here. This is not intended to be an exhaustive summary, or, for that matter, a comprehensive analysis. The relevant principles in the present matter are, as I see them, as follows:
(a) The duty of care owed by Westfield to Mr Elphick was that of an occupier. This duty was succinctly stated in Australian Safeways Stores Pty Limited v Zaluzna (1987) 162 CLR 479 at 488:-
... the fact that [injured person] was a lawful entrant upon the land of the [occupier] establishes a relationship between them which of itself suffices to give rise to a duty on the part of the [occupier] to take reasonable care to avoid a foreseeable risk of injury to the [injured party].
(b) This duty, in circumstances where the occupier engages an independent contractor to carry out aspects of its enterprise, does not give rise to a duty of care towards an employee of the independent contractor akin to the duty of an employer to his employee (see Leighton Contractors v Fox at [48]:-
The relationship between principal and independent contractor is not one which, of itself, gives rise to a common law duty of care, much less to the special duty resting on employers to ensure that care is taken.)
(c) In certain circumstances, the duty to take reasonable care will, however, extend to responsibilities involved in the system of work utilised by the independent contractor. Whether this is so or not will depend on a fact-intensive investigation to determine whether there is the necessary interdependence of the activities carried out in the enterprise under consideration. As Mason J said in Brodribb at 31:-
The interdependence of the activities carried out in the forest, the need for co-ordination by Brodribb of those activities and the distinct risk of personal injury to those engaged in the operations, called for the prescription and provision of a safe system by Brodribb. Omission to prescribe and provide such a system would expose the workers to an obvious risk of injury. Although the obligation to provide a safe system of work has been regarded as one attaching to an employer, there is no reason why it should be so confined. If an entrepreneur engages independent contractors to do work which might as readily be done by employees in circumstances where there is a risk to them of injury arising from the nature of the work and where there is a need for him to give directions as to when and where the work is to be done and to co-ordinate the various activities, he has an obligation to prescribe a safe system of work. The fact that they are not employees, or that he does not retain a right to control them in the manner in which they carry out their work, should not affect the existence of an obligation to prescribe a safe system. Brodribb's ability to prescribe such a system was not affected by its inability to direct the contractors as to how they should operate their machines.
(d) Where, however, the occupier has engaged the services of an independent contractor whose task it is to control its employee's systems of work without supervision by the occupier, there may, depending once again on a fact-sensitive enquiry, be no liability imposed on the occupier for a failure by the independent contractor to control its own system of work. As Brennan J said in Brodribb at 47 - 48:-
The circumstances may make it necessary for the entrepreneur to retain and exercise a supervisory power or to prescribe the respective areas of responsibility of independent contractors if confusion about those areas involves a risk of injury. But once the activity has been organized and its operation is in the hands of independent contractors, liability for negligence by them within the area of their responsibility is not borne vicariously by the entrepreneur. If there is no failure to take reasonable care in the employment of independent contractors competent to control their own systems of work, or in not retaining a supervisory power or in leaving undefined the contractors' respective areas of responsibility, the entrepreneur is not liable for damage caused merely by a negligent failure of an independent contractor to adopt or follow a safe system of work either within his area of responsibility or in an area of shared responsibility.
62I turn now to apply these principles to the issues in this appeal. In the present case, the contractual arrangements between Westfield and ACS demonstrate clearly that ACS was responsible for maintaining the safety of its system of work and the safety of its employees. The primary judge examined the provisions of the cleaning agreement in considerable detail. There is no need for me to repeat the detail in its entirety, but I will highlight some of the more significant conditions. The cleaning agreement operated for a term of three years, commencing on 1 June 2006. It provided that ACS would provide cleaning contract services for the manager (Westfield) on behalf of the owner. These services were to relate to the whole of the shopping centre known as Westfield Tuggerah. The contractor was obliged "to furnish all labour, materials, supplies, equipment, services, machinery, tools and other facilities required for the prompt and efficient supply of the cleaning contract services" (clause 3.3). In addition, where the contractor was required to provide or utilise equipment, it was to be "maintained by the contractor in good and safe working conditions in accordance with the highest industry standards".
63In relation to its staff, the contractor warranted (in clause 3.5) that its employees "had received all necessary training required to provide the service to the highest industry standards".
64Clause 14.1 of the cleaning agreement provided that, in carrying out the contractor's activities, "the contractor must ensure that there is no risk to the environment or the health, safety and welfare of all persons employed in connection with the contractor's activities at the centre". In particular, without limiting this requirement, the contractor "must ensure that no person is exposed to a risk to his or her safety or health arising out of or in connection with the carrying out of the contractor's activity at the centre, and must comply with the schedule of environmental health and safety ("EH&S") requirements for shopping centre management in the Fifth Schedule of the cleaning agreement".
65Clause 14.2 of the cleaning agreement provided that "the contractor is responsible to provide all necessary supervision and coordination to ensure that the contractor's activities are carried out safely and in accordance with its EH&S management system".
66Clause 15.3 of the cleaning agreement states that "nothing contained herein shall constitute the relationship of partnership or employer and employee between the parties... and it is the intention of the parties that any such relationships are denied".
67The cleaning obligations in the Second Schedule of the cleaning agreement extended to duties in the loading dock areas, the service corridors and waste rooms. The tasks required included "emptying and removing rubbish from containers, from bins and any other refuse containers" (Second Schedule, Item 1.2(f)).
68Refuse removal obligations were set out in Item 1.54 of the Second Schedule - "All mall bins are to be emptied by the contractor only into the compacters". The cleaning contractor "will oversee the waste removal process and be responsible for keeping the loading docks and compacters clean and free from excess rubbish".
69The Westfield Shopping Centre Management EH&S Management Plan (attached to the cleaning agreement) placed specific obligations on the contractor in relation to the loading dock areas. For example:-
Ensure your personnel are made aware of the risks associated with loading dock areas and are instructed in your safe work practices (including all signage and instructions) regarding such practices.
The schedule of EH&S requirements placed onerous obligations on the contractor "to coordinate its own works and to ensure compliance with all relevant requirements". It required the contractor to ensure that any plant or equipment used complies with the relevant requirements "and is fit for the intended use in accordance with your EH&S procedures". The "Safe Work Practices" section states:-
You must ensure that your personnel do not, are not directed to, or expected to undertake work activities which might be detrimental to the environment or create a risk to the health, safety or welfare of themselves or others (4.1) and... Westfield relies at all times on your expertise to ensure your EH&S procedures provide systems that are safe and without risk (3.5).
70There is an obligation for the contractor to provide a suitably qualified supervisor who is competent in all EH&S matters pertaining to the services and who is responsible for recording and reporting to Westfield any EH&S information it requires (7.1). There is a reporting and recording requirement imposed upon the contractor to report immediately to the Centre Manager any "actual or potential Class 1 or Class 2 event" (8.1). The contractor is required to ensure that its personnel complete training in relation to "the safe and correct use, handling and operation of materials and equipment relevant to the tasks" they perform (10.1).
71Mr Gross referred to several provisions of the contract that he suggested might indicate that Westfield had some control over, or at least some interest in, preserving safety standards and that the subject was not left entirely to ACS. For example, he referred to clause 7.8 - "where any breach of this agreement by the contractor threatens the health or safety of any person... the manager may take all action reasonably necessary to rectify the breach at the contractor's cost".
72This clause, however, does no more than preserve to Westfield the right to take action to rectify ACS' breach, ie: it applies when ACS does not comply with its primary responsibilities. Similarly, the requirement that ACS will ensure that its employees attend Westfield's induction program (clause 11.5) does not detract from ACS' responsibilities. Finally, the "ad hoc checking" of loading dock areas by Westfield nominated staff (Schedule 2, clause 3(3)) did not impose any obligation on Westfield to be responsible for the systems operated in the loading docks by ACS. These are checks simply to ensure that the cleaning work is being done efficiently.
73As I have said, the contractual arrangements between Westfield and ACS make it perfectly clear that ACS was responsible for maintaining the safety of its systems and employees. It was responsible for devising those systems, implementing them and ensuring that they worked correctly. Any complaints were to be made to ACS. This was so both in contractual terms and, as other evidence indicated, in practical terms as well.
74Mr Gross argued that ACS' system of work in the centre was the product of collaboration and agreement between the two companies. The terms of the contract, however, make it clear that this is simply not correct. There is no other evidence to suggest that it was so. Moreover, the evidence of the day-to-day working of the cleaning arrangements fully supported the contractual position. ACS had its own OH&S staff and its own management structure. The refuse cage in question was taken by ACS staff to the dock area using its own transport equipment. Once there, it was attached to the bollard by ACS staff and subject to the observations of its own supervisor. The system that permitted a worker such as Mr Elphick to step into the cage to collect cardboard was a system of its own devising. Employees at ACS complained to their supervisor about the unsteadiness of the cage in connection with the manner in which it was attached to the bollard. ACS did nothing about this complaint, and did not bring it to the attention of Westfield. In any event, it was ACS' obligation to attend to it. Westfield carried no responsibility in that regard.
75Mr Gross, faced with these problems, centred his submissions on the physical features of the cage itself. He argued it was inherently unstable and, accordingly, could not constitute safe plant and equipment for ACS to provide to its employees such as Mr Elphick. Mr Gross argued that the cage was part-and-parcel of the equipment handed over by Westfield to ACS for the purposes of its work under the cleaning agreement.
76These submissions are not supported by the terms of the cleaning agreement, nor are they supported by the evidence of witnesses. It is true that the cage appeared to be the property of Westfield, but there was no evidence to suggest that Westfield required it to be used for the purpose of transferring rubbish into the compacters. It simply owned it. ACS obviously had an obligation to collect the cage and remove rubbish from it, but how it did so was a matter for its own determination. Indeed, the contractual provisions, as I have pointed out, obliged ACS to use its own equipment. It had no obligation to use any equipment or plant supplied by Westfield.
77Moreover, there was nothing inherently faulty in the cage. ACS employees, including Mr Chrul, described the cage as having a capacity to "rock and roll" - meaning that it moved vertically. In that regard, there was a clear potentiality for one corner of the cage to go down when weight was imposed on it, because there were only three wheels. It was perfectly safe to move around otherwise. The "rock and roll" problem only eventuated if ACS' system of work required its employees to step into the cage. In any event, that was not the cause of Mr Elphick's injury. The problem he encountered on the day of the accident was that the cage moved laterally, presumably because it had not been adequately tied to the bollard by ACS staff. It is clear that the potential for lateral movement did not arise out of any inherent instability or unsuitability in the cage. It arose simply out of the fact that the system devised by ACS of attaching it to the bollard could create a problem if the attachment were misapplied or not sufficient.
78In my opinion, viewing the evidence as a whole, it should be correctly concluded (as the primary judge did) that this was a case in which the responsibility for the system of work and its implementation, including concepts of safety towards its employees, fell squarely upon ACS. There was no residual obligation cast upon Westfield to exercise any supervisory power over matters of that kind.
79Mr Gross, in his written submissions, argued that the primary judge had erred in finding that there was "no evidence that connected Westfield to the work system followed in the dock area of unloading the boxes from the cage". Further, he maintained that the primary judge erred in saying that the "unloading process itself was where the vice was created". Mr Gross maintained that there was "an unreasonable elision" between the contractual responsibility as between Westfield and ACS, and the responsibility of Westfield to Mr Elphick.
80In my opinion, no error has been shown. His Honour was correct in the conclusions he reached in each of these matters. Moreover, the contractual position was highly relevant to an understanding of the organisation and structure of ACS' duties as cleaning contractor for the centre. It was also instructive as to the obligations cast upon ACS in relation to the safety of its employees as those persons undertook the tasks imposed by the cleaning agreement upon the contractor. The duty of care owed by Westfield to Mr Elphick remained at all times that of an occupier, namely to take reasonable care for his safety as an entrant upon the premises. There was nothing in the circumstances of the accident to suggest Westfield was in breach of that duty.
81Mr Gross' arguments based on the nature of the steps taken by Westfield after the accident do not alter the situation. In particular, they cannot lead to a conclusion that, prior to the accident, Westfield had assumed responsibility for the safety of ACS employees. Mr Gross' argument is a classic example of the application of "hindsight" reasoning. Westfield relied on the provisions of section 5C of the Civil Liability Act as it was entitled to do. The subsequent action did not, of itself, constitute an admission of liability in connection with the risk (section 5C(c)). It did not of itself give rise to or affect liability in respect of the risk. The fact that Westfield took the initiative in quickly improving the situation in the dock area, in the circumstances of this matter, could not alter the proper assessment of where responsibility for the safety of ACS' employees lay.
82As is often the case where there is an issue as to the correct allocation of responsibility in an industrial or workplace accident, this matter fell to be determined on its facts. The contractual arrangements and the day-to-day implementation of those arrangements powerfully supported the correctness of the primary judge's conclusions. There was, indeed, only one matter that might have altered that situation. This was the evidence of Mr Chrul. Before assessing his evidence and its place in the conduct of the trial, it is necessary to examine Mr Elphick's case as pleaded. There was only one particular pleaded which may have suggested that Mr Elphick had notified Westfield (as distinct from ACS) about a safety problem relating to the cage. This was particular (xvi) which was pleaded indiscriminately against the two defendants:-
Failed to take heed of the plaintiff's complaints of the system of work.
In fact, the plaintiff gave no evidence-in-chief that he had complained to ACS about the problems with the cage. He gave no evidence to suggest that he had made any complaint to Westfield. His evidence in cross-examination was that he had been directed to make any complaints to ACS and that he had never complained to Westfield. The fact is that ACS did know about the problem, as other evidence indicated, but they did nothing about it prior to the accident.
83Mr Gross, however, called during the trial two former employees of ACS. Each had worked at the Tuggerah shopping centre. Alison Bailey, it will be recalled, worked there for a little over three years, finishing in June 2006, about a month before Mr Elphick was injured. Mr Chrul was employed by ACS at the time of the accident, although he was not working there on the day when Mr Elphick was injured. Ms Bailey confirmed in cross-examination that the securing of the cage with a loop of baling twine to the bollard was exclusively the province of ACS, and that no one from Westfield had anything to do with it. She told Mr Parker that from time to time she saw maintenance people from Westfield in the dock area, fixing the drains or work of that nature, but that their business "had nothing to do with the tasks that ACS were undertaking in the dock" (transcript, 152). She did not recall anyone from Westfield, whether a maintenance person or not, watching ACS staff doing their work in relation to the baling machine. She said as far as she was concerned, it was not their business, "it was our job".
84In a portent, perhaps, of what was to come, Mr Catsanos (who, it will be recalled, appeared for ACS' workers compensation insurer) endeavoured in his cross-examination to entice Ms Bailey into agreeing that Westfield people such as the environmental health and safety officer, and the Centre Manager, were to be seen from time to time in the dock area. However, the witness maintained that she had never seen them down there, "like, looking at any of that when I was there". She had seen "Jason Knott and Heidi walk through there on the odd occasion". They would simply "greet her and keep going".
85Mr Gross next called Mr Chrul, who spoke of the problems he had experienced with the cage. I have earlier referred to the primary judge's treatment of this evidence. I will examine it, however, in a little more detail. Mr Chrul described the cage moving vertically - "she used to rock and roll a bit". He complained to Ms Snape, who was his supervisor, "quite a few times". He told Ms Snape it wasn't safe, "it was very dangerous". These complaints appeared to be based on the fact that, because there were only three wheels, the cage could move vertically - "that was why she was rock and rolling".
86At the end of the evidence-in-chief, the position was clear. There was no evidence from Mr Chrul to suggest that he had complained to Westfield. Of course, the pleading did not allege complaints by employees other than Mr Elphick. Mr Parker then cross-examined the witness. Mr Chrul agreed that his view that the cage was unsafe related to the fact that it moved vertically. It did not appear that he had made a complaint about the cage moving laterally, although he accepted that there was a potential for that to happen. He said, however, that the cage's capacity for lateral movement depended entirely upon the fixing of the baling twine to the bollard. He agreed that ACS personnel were responsible for putting the twine over the bollard, and holding the trailer cage in position before unloading commenced. ACS employees moved the cages around, he said, "never Westfield employees".
87Mr Catsanos then cross-examined Mr Chrul. Almost immediately, counsel endeavoured to draw Westfield staff into the picture. Mr Chrul readily agreed that there were maintenance employees of Westfield in the dock area from time to time. He could not remember if other people from Westfield walked through there, but he could remember the maintenance people. He said he spoke to the maintenance employees. He told them he had an issue with the wheels of the cage (see transcript 180 - 181). As soon as he realised there was something wrong, he told the Westfield maintenance people, "It's not safe". He knew they worked for Westfield, and he said, "It needs to be fixed". Specifically, he told them about "the rock and rolls" and they said, "We'll get it fixed". Despite the two conversations with the maintenance people, the cage kept "rock and rolling" until after Mr Elphick's accident. Mr Chrul did not demonstrate the movement to the maintenance employees (whose names, he said, were "Leo" and "Glen") but he told them, "that it rock and rolled each time you went inside it". The witness then described the changes that were made to the system after Mr Elphick had his accident.
88Mr Parker did not take any objection to the cross-examination conducted by Mr Catsanos, even though on this issue (whether Westfield had been warned) Mr Elphick and ACS clearly had a substantial common interest. Had objection been taken, this "friendly" cross-examination may have been curtailed, at least to the extent of prohibiting leading questions (section 42 of the Evidence Act 1995 ). Although complaints made by other ACS employees to Westfield did not form part of the pleaded case, Mr Parker did not object to the content of the cross-examination on the ground of relevance.
89In final submissions at trial, Mr Gross suggested to the primary judge (albeit briefly) that Mr Chrul's evidence supported a finding of breach of duty of care by Westfield (Black, 260, 266). Mr Parker responded in his oral submissions (Black, 303) that Mr Chrul's evidence should not be accepted or relied upon. He submitted that no prior allegation of this kind had been made by Mr Chrul in the statements he had provided to Mr Elphick's experts. He pointed out that the topic had not been opened by Mr Gross and that it was not led in chief by Mr Gross. It simply emerged "in the course of an extremely friendly cross-examination by Mr Catsanos". Mr Parker submitted that the very way in which the evidence had emerged would give the court pause before accepting either its credibility or reliability. The witness, he said, had been "notably vague on being able to remember anything". By contrast, he had been able to suddenly "remember back five years to these discussions, something he had apparently never told anyone else about until that point".
90More significantly, Mr Parker correctly identified that the complaint made by Mr Chrul, whether it was reliable or not, did not amount to a complaint about the lateral movement of the cage. Ultimately, he asked the primary judge to find that no complaint had been made, even to the Westfield maintenance employees.
91The primary judge referred to Mr Chrul's evidence, but made no finding either way. This may have been because his Honour perhaps accepted (sub silentio) that no case based on Mr Chrul's evidence had ever been pleaded, particularised or referred to in the plaintiff's opening.
92Leaving to one side the problems with the uncertain origins of Mr Chrul's evidence, there is nevertheless the difficulty for the appellant that his complaint related to the vertical movement of the cage - "rocking and rolling". He did not make any complaint to the maintenance employees about lateral movement of the cage, which was the cause of the accident. Mr Chrul agreed that this was "a completely different problem" from lateral movement (Black, 175).
93In my view, Chrul's evidence, even if accepted, does not take this case out of the Brodribb category described by Brennan J at [48]. First, the complaint made by Mr Chrul to the two maintenance men related to a different problem (vertical movement) than the one that caused the accident (lateral movement). Secondly, ACS, whose responsibility it was to devise and supervise its own system of work, was perfectly aware of complaints made about both aspects of the refuse removal problem. Yet it did nothing about either of them. Thirdly, there is no evidence to indicate that the maintenance men passed on the complaint to Westfield's EH&S officers or to the Centre Manager. (Although Ms De Haas and Mr Knott were not called by Westfield, Jones v Dunkel [1959] 101 CLR 298 should be given a limited application in a case where the evidence emerged in the manner it did here). Fourthly, even if there had been evidence that the message had been "passed up" the chain to senior management at Westfield (and there was not), the contractual arrangement between the parties would have entitled Westfield to require ACS to do something about the problem. It had no immediate obligation to act in its own right to address the risk the subject of the complaints, even if it had been made aware of them, whereas ACS had every obligation to do so.
94Quite apart from Mr Chrul's evidence, Mr Gross submitted that the "sheer visibility" of the nature of the operation in the dock area should have alerted Westfield to the risks involved for ACS employees. It was suggested that Westfield staff, even if simply passing through or past the dock area, would have appreciated that there was a risk involved for ACS employees. The evidence on this issue, however, was very scant indeed. No doubt, the Centre Manager and Ms De Haas may have been in the dock area on occasions, but their mere presence in that area would not have been sufficient to raise some type of extended duty beyond Westfield's general duty to take reasonable care. If, in passing through the dock area, a particular problem about the cage had been drawn to Ms De Haas' attention, she would no doubt have been perfectly entitled to point out to ACS that, under the cleaning contract, it was their job to do something about it. However, the evidence did not by any means reach this level. It fell well below it. Mr Elphick's evidence on this point suggested that he would see Mr Knott or Ms De Haas in the centre from time to time, and perhaps on occasions in the dock area, but it was otherwise quite non-specific.
95The final argument relied on by Mr Gross related to the alleged breach of the Regulation under the Occupational Health and Safety Act . Westfield's obligation as an occupier, however, was simply to take reasonable care to avoid harm to Mr Elphick. This did not require Westfield to comply with the requirements of the Act and the Regulation. The obligations under the legislation, it may be accepted, could be relevant in determining the scope of any duty (subject to a provision such as section 32 of the Occupational Health and Safety Act ). In that regard, Mr Gross sought to draw a distinction between a breach of the Act and a breach of the Regulation. However, the case as ultimately relied on at trial did not include a breach of either the statute or the Regulation. That part of the pleaded case was abandoned. Contrary to Mr Gross' submissions, it must be the situation that the statutory or regulatory duties (which apply regardless of fault) are not simply transposed into the duty to exercise reasonable care. As the High Court observed in Leighton Contractors Pty Ltd v Fox at [49]:-
While it is true that obligations under statutory or other enactments have relevance to determining the existence and scope of a duty, it is necessary to exercise caution in translating the obligations imposed on employers, principal contractors and others under the OHS Act and the Regulation into a duty of care at common law. This is because, as Gummow J explained in Roads and Traffic Authority (NSW) v Dederer , "whatever their scope, all duties of care are to be discharged by the exercise of reasonable care. They do not impose a more stringent or onerous burden."
96For these reasons, I am not satisfied that the primary judge erred in relation to his findings concerning the liability issue as between Westfield and ACS.