DISPOSITION OF APPEAL
38 The respondent's written submissions equate the interaction of the two contractors, Mr Dufty and Mr White, as requiring the kind of co-ordination imposed on the entrepreneur in the terms Brennan J stated in Stevens v Brodribb Sawmilling Company Proprietary Limited (supra) at 47:
"The duty to use reasonable care in organizing an activity does not import a duty to avoid any risk of injury; it imports a duty to use reasonable care to avoid unnecessary risks of injury and to minimize other risks of injury. It does not import a duty to retain control of working systems if it is reasonable to engage the services of independent contractors who are competent themselves to control their system of work without supervision by the entrepreneur. 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."
39 The appellant contends that it did use "reasonable care" to avoid unnecessary risks of injury so satisfying the duty articulated in Brennan J's judgment. I shall refer later to the more onerous version of this duty by Mason J in Brodribb. It is expressed in terms of providing a safe system of work at the point where co-ordination is required, as if for an employee. It certainly could not be said that there was a safe system of work here at the point where co-ordination was required in terms of removing the pump from its confined location in the pump room.
40 Thus the respondent emphasises that there was at least a reasonable possibility if not likelihood of the pump requiring removal and that this called for:
"… some appropriate method [being] available - such as the use of block and tackle (Blue, 76W) or use of Council's specialised equipment and skilled men (Blue, 93M-94C). It is the interaction of the 2 contractors, by each of their employees, for the benefit of the Council that gives rise to the duty as discussed in Stevens v Brodribb ."
41 I agree that the circumstances did give rise even to the lesser duty articulated by Brennan J. Further, it was not reasonable to rely on Mr White to call for assistance from Council to use its equipment, when he had reason to expect assistance from Mr Dufty who was at the site. Mr Dufty was instead put on the spot by Mr White when he first disconnected the pump, so it could be moved with Mr Dufty's requested assistance then and there for overhaul. There was in the pump room no proper equipment to attend to the known possibility that the pump would need to be removed from its constrained space for overhaul. Council was fully aware of these matters. Yet Mr Bates was content to request Mr Dufty to render assistance in dealing with that known possibility, with no equipment capable of ensuring that the task could be achieved safely.
42 One may accept the appellant's submissions that the Council's position was not precisely that of the head contractor on a large building site where the co-ordination required is extensive. However, the degree of co-ordination here required, though not as extensive, was no less real for that. The interposition of a corporate entity in the present circumstances does not deny the practical reality that Council was in control of the site via the Narooma Trust. The Dufty's corporate vehicle made no difference. It had been required by Council and was simply a convenient entity obviating Council paying annual leave and other statutory emoluments with, I assume, some tax advantage for the Duftys. Mr Dufty's task of bringing onto the site other independent contractors such as Mr White necessarily called, in practice, for more than merely providing access on the part of Mr Dufty. It entailed actual co-operation and assistance such as occurred here.
43 In a recent decision, Emoleum (Aust) Pty Ltd v Cecil Henry Bond & Ors [2004] NSWCA 352 there was a similar example of a more limited need for co-ordination. It was held sufficient to invoke the Brodribb principles where what was entailed was the conduct by Emoleum of road re-sealing operations at a particular point of the highway. There a fatal injury occurred to an employee of a labour hire company. It in turn was an independent contractor providing personnel hired out to the entrepreneur Emoleum. The deceased was undertaking his duties on the road-works as a traffic control officer. He was killed when a truck owned by a third party on the site backed on to him.
44 Though lesser in degree, there is to my mind no difference in principle in the co-ordination required for a winter maintenance programme at Council's swimming pool, entailing independent contractors entering the site for painting and plant overhaul.
45 Emoleum (supra) drew a less emphatic distinction than that pressed by the appellant between the entrepreneurial role on the one hand, and the duty of what has been described as a "special employer" on the other; compare TNT Australia Pty Ltd v Christie & Ors [2003] NSWCA 47, Rockdale Beef Pty Ltd v Carey [2003] NSWCA 132. Both these cases were cited by the trial judge. Thus Mason P said in Emoleum at [53]:
"[53] Emoleum does not dispute that its entrepreneurial role at the site imposed upon it a duty of care similar to that discussed in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 31. This was a duty to prescribe and provide a safe system of work similar to that falling upon an employer (see per Mason J at 31). Arguably, a similar duty derived from Emoleum's relationship with the deceased, which was akin to that of a "special employer" (cf TNT Australia Pty Ltd v Christie & Ors [2003] NSWCA 47; Rockdale Beef Pty Ltd v Carey [2003] NSWCA 132). It is unnecessary to pursue this, given the proper concession as to the former duty."
46 The passage which Mason P cites from Mason J in Brodribb is indeed expressed in terms of providing a safe system of work in a situation where there is an interdependence of activities. Thus at 31 in Brodribb Mason J articulated the duty in these terms:
"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." [emphasis added]
47 However, for reasons I elaborate below, the same result would follow on the lesser "reasonable" standard or as put by Wilson and Dawson JJ in Brodribb. Thus Wilson and Dawson JJ (at 45) placed the duty at "something less than that owed by an employer to his employees" so that "the extent of the duty would have to take account of the independent functions of the contractors".
48 In circumstances where co-ordination necessarily called for the required assistance requested of Mr Dufty to an independent contractor who had been brought on site by Council to overhaul the pump, there was always the foreseeable possibility of the need to remove the pump from its known confined space. Hence there was a need to provide a safe system of work for those engaged in that task. This is so whether that person be the independent contractor or Mr Dufty, though as it happens Mr Dufty but not the independent contractor was injured by the extremely heavy lifting involved.
49 The evidence is clear enough that if Mr Dufty had contacted Council about his role, Council would in all probability not have volunteered to send round the appropriate lifting equipment. But its existence indicated that Council was at least aware of the need for it where heavy lifting was involved. Putting matters in terms either of a safe system of work or the duty to use reasonable care in organising an activity, the result is the same. Each necessarily required that the Council in its overall supervisory and co-ordinating role should have had on site in anticipation a safe means of moving the pump such as with pulleys or a block and tackle, or have issued a standing instruction that in such cases Council should be contacted to bring the necessary equipment on site. Neither occurred here and Council was in breach of its duty of care, in failing to provide appropriate equipment to enable the task of removing the pump to be achieved safely or issuing such standing instructions.
50 That the electrician, Mr White, did not know what the job involved in advance until he got to the pump house and inspected the machinery provides no answer. This is when it is appreciated that the possibility of the need for equipment would in all probability have been known to Council and certainly ought to have been foreseen.
51 The only other matter which remains to be considered regarding liability is really a belated Brown v Dunn allegation. It is a wholescale challenge to the finding that Mr Dufty sustained injury while assisting Mr White on 14 July 1997 as distinct from some other later time or occasion.
52 Much was made of two matters. First, was Mr Dufty's confusion about when the ambulance was called to Mr Dufty's premises. The trial judge dealt with the matter adequately when she explained his evidence that an ambulance was called on the day after the accident (namely the day after 14 July 1997). He was clearly in error as the records showed that the ambulance was called on 30 August 1997, some weeks later. The trial judge noted that "ultimately the plaintiff agreed in cross-examination that he must have been mistaken on this aspect of the matter. The concession was made candidly, and I am satisfied that the plaintiff made a genuine error in that regard."
53 Incidentally, the trial judge here does make an error in that it was not two weeks since the accident was on 14 July, but six weeks. However, I do not consider that error sufficiently material as to affect the overall conclusion that the trial judge reached.
54 The respondent did not visit his general practitioner until 21 July 1997. At that time he complained of back pain but did not refer to any incident involving the pool pump; T, 66.20, quoted in the appellant's written submissions, Orange, 5.
55 Then reference is made by the appellant to an inter-office memorandum made by Mr Bates of a telephone call from Mr Dufty (Blue, 224) which reads as follows:
"I received a call from Shane Dufty (Pool Lessee) at 4.10pm to-day.