Eurobodalla Shire Council v Dufty

LOWER COURT District Court JURISDICTION : LOWER COURT DC 153/01 FILE NUMBER(S) : LOWER COURT Latham DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40068/04 DC 153/01

SANTOW JA TOBIAS JA BRYSON JA

6 DECEMBER 2004 EUROBODALLA SHIRE COUNCIL v Shane DUFTY Judgment 1 SANTOW JA: INTRODUCTION and OVERVIEW There is an often indistinct line between employer and employee on the one hand and entrepreneur and independent contractor on the other; so too in this case. But that does not mean that the heightened legal duty of care of employer to employee can be simply transposed to the entrepreneurial relationship that here obtained. What is true is that the greater the degree of entrepreneurial control or practical involvement called for in co-ordinating the tasks of independent contractors, the closer becomes the employment analogy, as the cases illustrate. 2 Thus in Stevens v Brodribb Sawmilling Co Pty Ltd (1985-6) 160 CLR 16 at 37 Wilson and Dawson JJ emphasised that control was no longer the exclusive test, though the proper starting point of enquiry. Ultimately the matter was to be judged by the degree of discretion left to the manner in which the person concerned did his or her work. But this still left the head contractor engaged in a site co-ordinating or general supervisory role "a duty to exercise care in the co-ordination of the activities of the various contractors" (at 45). The Brodribb judgments, as I explain, saw that duty delineated at various levels of stringency; as requiring an employer-like duty at the co-ordinating point (Mason J), or as one merely calling for reasonable care (Brennan J), or as one calling for a duty of care taking account of the independent functions of contractors and thus lower than for an employer (Wilson and Dawson JJ). The result in the present case, as I explain, is the same so far as the Council's liability is concerned. 3 The respondent Mr Dufty was a director of his family company. It held the contract to manage the Council's swimming pool. However, it was the Council which required the interposition of a company between it and Mr Duffy, whatever its advantage for Mr Dufty and his wife. In practice Council looked primarily to Mr Dufty but also to his wife, in managing its pool. The company shared in its takings. 4 Mr Dufty was injured when lifting a heavy pool pump with an independent contractor whom Council had arranged to overhaul the pump, asking Mr Dufty to render general assistance. One of the matters in dispute is whether the Council was or should have been aware that the pump, which it knew was in a relatively inaccessible area, would have to be moved. 5 Thus this appeal poses the question of the extent of the duty of care owed by the Council in such circumstances, taking into account a degree of involvement, if not control, exercised by Council in relation to the pool site and the management of the pool, including occupation, health and safety concerns. Council was not only the authority with ultimate control of the pool but also controlled the lessor entity, the Narooma Reserve Trust.

SALIENT FACTS 6 The starting point is the matters bearing upon the precise status of the respondent, Mr Dufty, vis a vis the appellant, Eurobodalla Shire Council. The trial judge in her judgment at [1] (Red, 125) notes that the plaintiff was a director of Dufty Aquatic Management Pty Limited. This was, as I have said, the company which held a contract with the Council to manage Narooma swimming pool, a swimming pool within the Council's area. As Judge Latham the trial judge found, Council exercised all the powers of the Trust for the purposes of the lease between Narooma Reserve Trust and the Dufty family company. Moreover, when Mr Dufty entered into the arrangement with the Council to manage the swimming pool at Narooma, he was following his father who had run the pool for the previous 25 years, Mr Dufty's own arrangement with the Council required him to contract with the Council through an incorporated company. That was the origin of Dufty Aquatic Management Pty Limited being utilised in the way it was. 7 Relevant to the degree of control capable of being exercised by the Council are the terms of the lease as follows: (i) under clause 3, the Council exercised all the powers of the lessor; (ii) under clause 9.2, the lessor was permitted to enter the premises to view its state of repair and could by notice call upon the lessee to carry out any maintenance required and the lessee was required to permit the lessor and any persons authorised by it, or the Council, "to carry out any renovation, maintenance, repair … to the Premises" with entry being permitted for that purpose; (iii) under clause 9.9 provision is made for winter maintenance (the case here), with that maintenance being only "of a major nature … limited to the painting of the pools, major structural repairs to the pools and surrounding area, buildings … and the repair of the filtration plant, with the lessor retaining primary responsibility 'for building infrastructure, plant and equipment maintenance'". 8 The lease return for caretaking services provided by the lessee permitted the Manager's residence to be used rent-free. Apart from that benefit, the Duftys via their company received a share of the kiosk income and each received $250 per week, in Mrs Dufty's case for accounting, bookkeeping and other services. The evidence does not reveal the quantification of those various benefits, though they can be taken as real. 9 Mr Bates was employed by the Council from 1997 as a Public Recreation Co-ordinator and was the relevant liaison officer between the Council on the one hand and Mr Dufty and his company on the other. 10 The respondent's prior back injuries were explored in cross-examination. It was not in dispute that he had injured his back in 1992, whilst working at Cooma. He was then off work for a period of 22 weeks. The respondent agreed that a CT scan had shown a disc protrusion at L4/5 and possible lumbar sacral nerve impingement. That is to be contrasted with the result of the CT scan performed on 18 September 1997, some two months after the accident in July 1997, showing definite impingement on the lumbar sacral nerve. In the end, nothing was made of his prior condition. 11 The immediate antecedents to the accident start with a note from Mr Bates dated 27 June 1997 to all members of the Council. He advised them of the closure of Narooma pool for maintenance purposes from 6 pm on Sunday 13 July 1997 to re-open Monday 4 August 1997. The stated reason for this closure was "for maintenance purposes, specifically to overhaul the pumps and compressor in the plant room and some painting works" (Blue, 214). 12 Mr Dufty gave evidence that in July 1997 he took four weeks annual leave when the pool was closed for maintenance (Black, 5P). 13 Mr Dufty gave the following evidence in chief. He confirmed that Mr Bates was employed as the Council liaison officer at the time and that he dealt with him on all matters concerning the pool on a regular basis; Black, 5Q-S. Mr Bates, according to Mr Dufty, came to see him at the pool during July of 1997 and "he told me that Paul White the Council electrician was going to be at the pool doing some maintenance work and he had told Paul White that I would be available to help him"; Black, 5W. He described Mr White as being the Council electrician because he had the electrical contract to do all the servicing and had done work around the pool before; he was in that sense an independent contractor (Black, 6D). Specifically Mr Dufty quoted Mr Bates as saying to him "that Paul White was coming to do a service on the plant and do some maintenance work in regards to the electrical stuff at the pool and [Mr Bates] told Mr White that I would be available to help him."; Black, 6K. 14 In cross-examination Mr Dufty frankly acknowledged that no Council officer had ever given him a direction to lift or remove the pool pump but rather "I was just instructed [by Mr Bates] to give Paul a hand" and "I was just instructed [by Mr Bates] to give Mr White any assistance he required"; Black, 36C and J. 15 Earlier in that passage of cross-examination Mr Dufty made clear that he did more than merely provide access as required by the literal terms of the lease: "Q. The only assistance your company was required to give under the lease to the lessor or any contractors was to give them access - to give the contractors access when the pool was closed for winter maintenance, wasn't it? A. We actually did a little bit more than that.

Q. The only assistance you were required to give under the lease was that you provide access for maintenance to be undertaken in the winter closure, wasn't it? A. Well, I suppose if you stick strictly to the terms of the lease as if it's written, but that wasn't the way it actually was." 16 Thereafter followed these questions and answers: "Q. The evidence you gave to Her Honour this morning was that Mr White said to you, 'I've inspected the pump and it has to come out'; so the issue of the pump being removed was something that only came up on the day, wasn't it? A. No. No, that had been spoken about before . Mr White was going to check the pump as part of his service I believe.

Her Honour Q. When you said it had been spoken about before, when and in what context? A. At the meeting with David Bates. He outlined general stuff so I was unsure whether - as to what I would be needed to do on that day." (Black, 36S) [emphasis added] 17 The meeting there referred to was that which Mr Dufty described in examination in chief, namely when Mr Bates "actually came to the pool and we had a meeting" during July 1997 (Black, 5V). 18 Mr Dufty's wife gave evidence that around July 1997 she had a phone call from Mr Bates at the Council where the following questions and answers ensued. They are of some significance in light of what follows: "Q. What did he say to you? A. I was just making sure that everything was right for Monday for Shane to help Paul White the electrician.

Q. Do what? A. He had to help with the pump .

Q. Right A. He also had to help - he also had to shut down the pool because otherwise they couldn't get the pump out .

Q. Was this the first you knew about this? A. No, no, we had a maintenance meeting; we do every year." (Black, 104D) [emphasis added] 19 Having given this evidence in examination-in-chief she was pressed heavily on it in cross-examination, when it was put that it was "just a fiction" that "Shane has to help with the pump". This she denied (Black, 104T). 20 Again she was pressed in the following exchange: "Q. The only direction or instruction in relation to the pump work that was taking place in July 1997 to you or Shane or Dufty Aquatic Management so far as you are aware was that the pool had to be opened at the relevant time for Mr White to perform his work, wasn't it? A. No, that's not correct. Shane - David said Shane had to help Paul because he had to shut down the pool. You couldn't get the pump out to fix the pump without Shane shutting down the pool because otherwise the water would run out of the filter beds. So Shane had to be there to help the electrician fix the pump.

Q. Well, I suggest to you, Mrs Dufty, that was just a complete nonsense, that's a fiction, isn't it? A. No, that's not true. It's the truth." (Black, 105P) 21 In addition to that evidence, there is a note by Mrs Dufty which is in her handwriting as follows: "Paul White 10 am on Monday 14/7/Shane to help" (Blue, 129). There is a further note "spoke to David about Shane's back re: helping Paul White: fill out forms GIO. GSC accident form from Depto" (Blue, 130). The former note can be taken to pre-date the accident while the latter can be taken to post-date it. 22 When it came to assessing the credibility of Mr Dufty, the trial judge described his evidence as constituting "an otherwise clear cogent and frank account". The qualifying "otherwise" was to recognise that his evidence as to the date the ambulance called upon him (discussed below) did involve error on his part, though the trial judge referred to the error as genuine and that his concession of it was "made candidly"; Judgment Red, 130 and see also Red, 135-6. Elsewhere, the trial judge described Mr Dufty as having impressed her "as an honest, forthright witness who did not exaggerate or seek to embroider his account of the events of that day, or the nature and extent of his subsequent disabilities. Rather he impressed me as a somewhat stoic person in the circumstances."; Judgment Red, 139. 23 As to Mrs Dufty, though the trial judge made no specific credibility finding concerning her evidence, there is nothing to indicate that she doubted it. 24 The trial judge noted that Mr Bates' evidence was that he "had no recollection" of "directing the plaintiff to assist with removal of the pool pump in July 1997" and that "such a direction was not Council's practice"; Judgment Red, 137. There are other examples of his lack of recollection which will become apparent in my account of the critical parts of his evidence. 25 In answer to the question "what was Dufty Aquatic Management's role, if any, when winter maintenance works were being undertaken" Mr Bates replied: "they were to provide access to contractors if Counsel [sic] had organised contractors to undertake works to the plant or the buildings. They were to allow access to the premises. Also to allow access to the particular area where the work was required to be done, in the case of the plant-room access to the plant-room and also to observe whether the contractors were actually on site and if there was a problem with the contractors or not turning up on site to contact Council"; Black, 81V to 82D. 26 Then came the following somewhat tentative responses: "Q. Was it your practice in 1997 to give Dufty Aquatic Management instructions to do anything apart from those things you have just mentioned? A. I don't believe so." (Black, 82E) 27 And again: "Q. Did you ever give him - did you ever request him in July 1997 to assist with the removal by an electrician of a pool pump? A. I have no recollection of making that direction.

Q. Was it your practice in 1997 to request or instruct Mr Dufty to undertake manual work assisting a contractor performing winter maintenance works? A. No, it wasn't - it was not Council's practice." (Black, 82J) 28 These rather tentative denials can be compared to the credibility based evidence from Mr Dufty which the trial judge did accept, confirmed as it was by Mrs Dufty in the respect mentioned. 29 Mr Bates then gave the following evidence concerning what was entailed in overhauling the pumps: "Q. And you understood as at the date of that note, 27 June, that the pool was to be closed for maintenance purposes including the overhauling of the pumps? A. Correct.

Q. And you understood that overhauling the pumps involved removing the pumps and taking them away to be worked on, didn't you? A. My recollection is that at that stage we hadn't determined exactly what the nature of work had to be done to the pumps.

Q. Had you ever been into the pump room? A. Certainly.

Q. And you knew that the pump was located in a position in which access was very awkward, didn't you? A. Correct.

Q. And you knew, didn't you, that to overhaul the pump you would have to remove it from the pump room and take it to some more convenient place, didn't you? A. Well, I would be relying on our contractors to give us that advice, whether the pump actually had to be removed from site or could be repaired on site.

Q. You don't deny giving a direction or a request to the effect that Mr Dufty should help Mr White in removing the pump, do you? You just say you don't remember? A. No, I don't recall making that request.

Q. If the electrician, Mr White, had said to you, 'I'm going to need to take the pump out', it's likely, isn't it, that you would have said, 'How're you going to do that' or 'do you need any help'? A. That's probably likely.

Q. And it's likely, isn't it, that you would have said, 'Well, Shane Dufty's there, get him to give you a hand', isn't that right? A. No, not necessarily. I would have relied on the contractor for instance to supply necessary resources to remove the pump or we have also got council staff who have got staff capable of doing that work that could be relied upon as well." (Black, 84L to 85F) 30 There really can be no dispute that Mr Bates and therefore Council was aware that, if the pump needed to be overhauled, the probability was that, given the confined space, it would probably need to be removed from the pump room. While Mr Bates said "he would be relying on our contractors to give us that advice", such reliance seems hardly credible given the confined space and the probability that a winter overhaul would foreseeably involve more than minor adjustments. 31 Moreover, this evidence is reinforced by Mr White's evidence in cross-examination. There he conceded that he had had to lift the pump before on another occasion: "Q. And you said it was an awkward position to get out of, you mean you and Mr Dufty had to get yourselves into a pretty awkward position to lift it up, didn't you? A. Well, yeah, well, the pump was in the corner of the rear when you sought of had - and there was other pipes there and you had access on basically - just one side and then we could have lifted it out. Could have quite easily lifted it out that way, yes, that's the way I have done before. " (Black, 101C) [emphasis added] 32 Mr Dufty in re-examination stated that "not during my period at Narooma had the pool pump been removed prior to July 1997 (Black, 79V). 33 On Mr White's evidence generally, he fairly acknowledged that he had a poor recollection of the event; Black,98D, 98H, 98N, 98V-Y, 99D, 100W, 102P-103H. That is understandable. Mr White would have made hundreds of such service visits. There was no particular incident that marked this one out for Mr White, unlike for Mr Dufty who would associate it with injuring his back. 34 The questions and answers quoted below should therefore be judged in that light: "Q. How did Mr Dufty come to be helping you with the pump? A. He was the - he was the manager or lessee of the pool - I'm not sure at the time - but he was there and I asked him to give me assistance.

Q. Did anyone tell you that you should ask Mr Dufty to help you remove the pump. A. No.

Q. When you were removing the pump, do you recall anything happening while you were removing the pump? Do you recall anything out of the ordinary? A. No, not really, no.

Q. Do you recall having any difficulty yourself with holding your end of the pump? A. No, not really, no. It's some time back, I - you know, it's - I - but I don't recollect anything happening sort of, you know, anything that I can think of anyhow." (Black 97U-98I) 35 Significantly, Mr White in cross-examination had no recollection of there being oil sprayed out on the floor making it a bit slippery (Black, 101L) though the photographs of the pump-room (Blue, 2G) do show oil stains on the wall. 36 Mr Bates made it clear in the following questions and answers that Council did have the equipment that would have enabled removal of the pump without the risk of injury (Black, 93M). He agreed that a block and tackle could have been installed (Black, 93V), He conceded that alternatively they could have got "some of the Council's experienced men with their sophisticated equipment to come in and lift the pump" (Black, 93Z-94C). Then follows this question and answer, significant because it removes any suggestion that Council would have insisted Mr Dufty use that equipment: "Q. And if Mr White had said to you, I'm going to need some help and Shane Dufty will be down there I will get him to give me a hand, you wouldn't have objected to that course, would you? A. If he was prepared to offer his services and I felt confident in his ability to perform that work, yes." (Black, 94D-G) 37 This passage of cross-examination is therefore significant for two reasons. First, there is no suggestion that Council would have, if asked, declined any request for Mr Dufty's services to assist, proffering its own equipment instead. Second, Mr Bates was adamant that he would not have directed Mr Dufty to help. On the evidence the trial judge was clearly satisfied that he would have at least asked Mr Dufty to help. I would readily conclude that such a request would in practice be understood by Mr Dufty as tantamount to a direction. Certainly Mr Dufty, though on holidays, did not hesitate in doing what he was requested when he helped Mr White by taking on the task of removing the pump. I am satisfied that Council must have realised there was more than a mere possibility of that being required, given Mr and Mrs Dufty's evidence of the July conversations with Mr Bates, contemplating work on the pump if not its removal, Council's knowledge of the pump being in a confined space making access to overhaul it difficult if not impossible, and where common sense indicates that its overhaul would therefore likely require removal, or at the least that possibility must have been foreseen or should have been.

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.

He advised that a newly reconditioned pump in the plant room was leaking after being installed today. He had tried to contact the reconditioner (A & L Rewinds) today with no success. I gave him the home phone number of A Wilkinson of A & L Rewinds to follow up.

He informed me during the conversation that he had injured his back on Monday of this week while pulling the pool vacuum cleaner from the pool. He said he had gone to the Doctor during the week and had anti-inflammatory drugs prescribed. He also advised he had aggravated this injury again today while assisting Paul White (electrician) in installing the pump in the plant room today.

He advised that there was no "block and tackle" in the plant room to assist in the task.

I advised him that a formal report is required and I will look into whether he should complete the Eurobodalla Shire Council Accident Report." 56 There is clearly a discrepancy between that purported phone call conversation and Mr Dufty's account. Mr Bates has Mr Dufty informing him that he had hurt his back lifting the pool cleaner as distinct from the pump and his further aggravating that injury when helping with the re-installation of the pool pump. 57 There are however some difficulties in Mr Bates' account. First, the pool cleaner seems to have been unlikely as a source of injury given that the pool at the time was being painted so that there would be no water in the pool requiring cleaning. Second, the evidence of Mr White was that he found the pump re-installed; there was no suggestion that Mr Dufty had helped in that regard. 58 Moreover, when the accident investigation form (Blue, 216) is examined, although it does not bear a date, the handwritten account of the accident on the form indicates that it was a contemporaneously filled out form. Thus I quote the section under the question "What happened?": "Removal of the pump proved very difficult due to the cramped space to manoeuvre in. In trying to lift the pump off its mountings I hurt my back while bearing the weight of the pump while bent over.

I immediately had to stop helping Paul in any heavy lifting - my back became increasingly sore until I then had to get the doctor to my house on Saturday ." [emphasis added] 59 I therefore do not place any particular weight upon either of the matters raised by the appellant in attempting to refute that any injury occurred at all on 14 July 1997. This is more especially so as that point was never put squarely to the appellant in conformity with Browne v Dunn (1893) 6 R 67. 60 The next matter relied upon by the appellant in its written submissions is in fact inaccurate: "(e) The respondent first requested a certificate from his General Practitioner, Dr Wray, in late August 1997, at which time he informed the doctor that his back pain was attributable to two separate incidents (see Certificates of Dr Wray Exhibit B)." 61 In fact, as is revealed (Blue, 7) the first certificate was dated 24 July 1997. Then (Blue, 29) Dr Wray reports on his injury, though inaccurately describing it as having occurred on 28 July 1997. He thereby appears to have confused the date of the consultation with the date of the injury. Again nothing appears to hang on that. Certainly there is no material in any of the matters raised above which warrants setting aside the credibility based findings of fact by the trial judge. In particular there were no such incontrovertible facts or uncontested testimony demonstrating that the trial judge's conclusions were erroneous or that it can be properly concluded that the decision of the trial judge was glaringly improbable or contrary to compelling inferences; Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.

Conclusion 62 No appellable error has been demonstrated which would justify any conclusion other than that reached by the trial judge as to liability, namely, that the Council was in breach of its duty of care to Mr Dufty. This is whether that duty be equated to that of an employer to employee, or be simply that which is reasonable, and such as to take account of the respondent's and Mr White's independent functions as contractors within the supervisory responsibility of the Council in co-ordinating the task of overhauling the pool and its pump.

Damages 63 There remains the question of damages. The appellant contended that there was no evidence that Mr Dufty suffered any loss of income or earning capacity. His income continued to be paid by the company, based on income generated by the pool. There was no evidence of any change in that income by reason of the accident. The appellant's submission is that there was no basis in the medical or other evidence for the trial judge's conclusion that he had suffered a permanent loss of earning capacity and could no longer carry on many of the functions which were part of his pre-injury work (Judgment, Red, 146). 64 The trial judge concluded that he had suffered a permanent loss of earning capacity being aged 45 and with no skills other than swimming, coaching and operating swimming pools. Average weekly earnings for full-time adult males were then $750 per week, net. The trial judge said that she accepted the plaintiff's submission that "his weekly income during the lease period was not reflective of the value of his services on the open labour market, and that the terms of the lease included provision of accommodation" (Red, 146). 65 The trial judge concluded that an appropriate sum for past economic loss was $300 per week from the termination of the lease in December 2000 and that an appropriate sum for future economic loss was $300 per week using the 3% multiplier of 787.6 less 15% for vicissitudes, producing a sum of $200,915 (Red, 147M). 66 I turn now to the appellant's challenge to those findings. They are essentially based on these propositions. First, that there is either no evidence or only evidence failing to support any claim for loss of earning capacity; in particular no evidence that the respondent's working life would be cut short or that he would be unable to continue doing the job that he was doing at the time of trial when he was earning $739 per week as against the compensation allowed for at $300 per week apparently based on average weekly earnings of $750 net per week. 67 The second proposition is that summarised in the appellant's supplementary written submissions of 13 October 2004, quoted below: "The Plaintiff's pre and post earnings are summarised at BL 178. In circumstances where the Plaintiff's pre and post earnings are known and the Plaintiff has remained in the same occupation the Trial Judge should not have calculated loss of earning capacity on the basis of average weekly earnings. An allowance based on average weekly earnings is not permissible when the actual earnings disclosed do not show any loss and the evidence does not establish that the Plaintiff would be earning any additional amounts in any other job if not for the injury." 68 The personal taxable income of Mr Dufty was as follows (Blue 178): " Plaintiff's personal taxable income 1993 $14,278 1994 $32,442 1995 $28,078 1996 $33,325 (of which $17,566 profit on sale of motor vehicle and equipment) 1997 $15,045 1998 $14,502 1999 $16,112 2000 $24,886 2001 $29,747" 69 The respondent responds to the first proposition, absence of sufficient evidence, by citing what was said in State of New South Wales v Moss (2000) 54 NSWLR 536. Whilst "in general it is desirable for precise evidence to be called as to what the plaintiff would have been likely to earn but for the injury and what the plaintiff is likely to earn after it … the failure to call such evidence does not necessary result in selection of only a nil or nominal figure as damages for impaired earning capacity" (at [66]). The various authorities are collected in Moss. These emphasise that in some circumstances over-elaborate evidence can be unhelpful and that the task of assessing damages in personal injury cases should be kept as simple as possible. Where the evidence is lacking on both sides but the plaintiff has suffered a significantly disabling injury which obviously affects the range and nature of the work he can perform, the tribunal of fact is still able to make a judgment, even with incomplete evidence. And finally, given that the field is an uncertain one, requiring a high degree of estimation, the trial judge simply has to do the best he or she can to assess the effect of the plaintiff's handicap by reference to what may happen in the future. Moreover, what is to be assessed is reduced earning capacity. Here courts are willing to compensate even where there was an increase in the post-injury but pre-trial earnings of the plaintiff which were prima facie contra-indicative of loss (Moss at [85]). 70 The trial judge concluded that "there can be no doubt on the evidence that the plaintiff's capacity to earn income has been affected by this accident. He can no longer carry out many of the functions, which were part of his pre-accident work, and has considerable difficulty finding employment within his present physical limitations"; Red, 146. 71 Thus, though there was not detailed expert evidence and though the respondent continued managing the Narooma pool till December 2000, perhaps the evidence was that after commencing employment at Bowral pool in December 2000, he did not stay long in that position. He thereafter applied for some 35 to 40 jobs over six months before finally commencing employment at Blacktown pool in October 2002 in a managerial capacity; Judgment, Red, 144. 72 Moreover, as the trial judge recounts, he did give evidence of his physical condition including, though unsupported by expert evidence, there being no expert evidence to the contrary either, that he was of the opinion that he could not work full-time for more than three to four years given his present physical condition (Judgment, Red, 145). The trial judge carefully summarises the evidence as to his physical condition in the following passages of her judgment (Red, 144-5). "The plaintiff is presently forty-five years of age. A CT scan of 18 September 1997 revealed posterior central disk protrusion at L4/5, with impingement on the origin of both root nerves. There was also a posterior disk protrusion at L5/S1.

The plaintiff cannot sit for more than half an hour without discomfort. He experiences leg spasms, cramps at night, sleeping problems, and takes a number of prescribed pain killers, including Tramal and Endone. He also takes Valium every night to allow him to sleep. He is always in pain, although there are good days and bad days. He became very depressed as a result of his diminished physical capacities, his inability to engage in sports with his children as much as he had in the past, his diminished sexual appetite, and his inability to secure a permanent job.

In 2002, the plaintiff estimated that he had applied for as many as thirty to forty jobs, without success. The plaintiff maintained but for the back injury, he would have continued working in a similar pool management position.

The plaintiff was of the opinion that he could not work full-time for more than three to four years, given his present physical condition, although I accept that was a view which is unsupported by expert evidence. He considered that his bad days were becoming more prevalent.

His permanent impairment was assessed by Dr Lawson as 35 per cent in relation to his back, 25 per cent permanent loss of efficient use of his left leg, at, and above, the knee, and 15 per cent permanent loss of efficient use of the right leg at and above the knee. His previous back injury in 1992 was thought to have caused negligible restrictions of his work capacity prior to the 1997 injury. See report of Dr Lawson of 2 July 2001 (exhibit A).

I accept this opinion. The plaintiff's evidence which I accept is that once his 1992 back injury resoled, he was able to continue his usual supporting and work activities, but for the occasional muscular strain.

The plaintiff's condition was described as static insofar as he is not fit, and will remain unfit to return to pre-injury duties. He remains unfit for activities that require repetitive bending, or twisting movements of his lumbar spine, sitting or standing in one position for prolonged periods, repetitive lifting above 5 kilograms, working in confined spaces, at heights, or on ladders, prolonged driving of a motor vehicle, or operation of machinery, or prolonged periods of walking or stair climbing. See Dr Wallace's report of 13 January 2003." 73 I can find no basis for interfering with those conclusions on the evidence. I turn now to the appellant's second proposition. It is that where the plaintiff's pre and post earnings are known and the plaintiff has remained in the same occupation, the trial judge should not have calculated loss of earning capacity on the basis of average weekly earnings when actual earnings disclosed do not show any loss. 74 However, the answer to that proposition is to be found in part in the evidence to which I have earlier made reference, going to the actual injuries that the respondent suffered and their physical effect on him. He gives evidence that he could not work full-time for more than three to four years with the physical symptoms he describes. While the trial judge did not expressly take into account a foreshortened working life, she clearly noted that evidence in her estimation of a $300 shortfall in earning capacity in relation to a man aged only 47 years. 75 Moreover, the proposition put by the appellant regarding pre and post earnings is put too high. As was said in Moss at [71] "strictly the issue does not turn on a comparison between what money the plaintiff would have earned apart from the injury and what money the plaintiff would earn after the injury. The compensable loss is not a loss of income but the loss of capacity to earn income in a manner productive of financial loss: Graham v Baker (1961) 106 CLR 340 at 347. The income earned before the injury is relevant, but only as an evidentiary aid in assessing damages for the loss of capacity to earn income …" 76 In what is essentially a matter of estimation in a discretionary determination, the appellant does not demonstrate appellable error by simply comparing pre and post earnings and demonstrating that actual earnings disclosed do not show any loss. 77 Moreover, a comparison of the plaintiff's personal taxable income before the injury is complicated by what was clearly an income splitting arrangement between Mr Dufty and his wife. Each earned money from the company, his wife performing bookkeeping services. Then there was the fluctuating nature of that income no doubt due to different levels of takings from the kiosk and users of the pool. 78 The medical evidence to which the appellant refers included a report by Dr Ashman in October 1997 where he expected recovery within three to nine months. While it has some evidentiary bearing, it could not be determinative of the position that has emerged over time of the physical symptoms to which I have earlier referred. There is no countermanding medical evidence of recent origin which would negate the respondent's description in evidence of the disabilities and physical discomfort from which he suffers and which the trial judge accepted as credible.

Conclusion 79 I therefore do not consider that the appellant has demonstrated appellable error in the trial judge's assessment of damages.

OVERALL CONCLUSION 80 I consider that the appeal should fail and propose orders as follows: (1) Appeal dismissed. (2) Appellant to pay respondent's costs of the appeal. 81 TOBIAS JA: I agree with Santow JA. 82 BRYSON JA: The appellant Eurobodalla Shire Council (hereinafter Eurobodalla), defendant in the District Court, appeals against the judgment for $407,473 personal injury damages with costs given in favour of the respondent Mr Shane Dufty, plaintiff in the District Court, by her Honour Judge Latham on 19 December 2003. Mr Dufty suffered injury to his back in an accident at the Narooma Swimming Pool on 14 July 1997 while he was assisting Mr Paul Roy White, an electrical contractor engaged by Eurobodalla to carry out maintenance work at the pool. Mr White decided that it was necessary to dismantle the pump and remove a component so as to carry out maintenance work on the pump; and Mr Dufty was injured when he was assisting Mr White in manhandling a heavy component of the pool pump. Eurobodalla challenged the Trial Judge's finding that Mr Dufty did in fact sustain injury while assisting Mr White move the pump on 14 July 1997. In my opinion Eurobodalla's arguments did not ever rise higher than showing that a different finding of fact was reasonably available, and the Trial Judge's findings established that Mr Dufty did suffer an injury, and the findings have not been shown to be erroneous.

83 Narooma Swimming Pool is situated on the land of the Narooma Reserve Trust (R63051), Crown land reserved for the public purpose of resting place and public recreation. Eurobodalla has been appointed Trustee of the Reserve and manages the affairs of the Reserve Trust under s.95 of the Crown Lands Act 1989, and for all purposes and times relevant to these proceedings Eurobodalla was the owner of the swimming pool. Mr Dufty was born in December 1957 and left school in 1975; after following several unskilled occupations he started to coach swimming at Narooma and Bega in 1984, and was employed by Eurobodalla as pool attendant in 1985 and 1986. After 1986 he worked as a pool manager, first at Nanango, Queensland, and later at Cooma, New South Wales for 8 years. From 1995 on he managed the Narooma Swimming Pool. Mr Dufty's father had been the manager of the swimming pool for some 25 years, and had lived with his wife in the manager's residence provided by Eurobodalla before moving to a house of their own. Mr Dufty and his wife Mrs Wendy Dufty then moved into the manager's residence. Mr Dufty was not however employed by Eurobodalla; his employer was Dufty Aquatic Management Pty Ltd, a family company. 84 The Reserve Trust in the person of Eurobodalla granted Dufty Aquatic Management a Lease of the swimming pool for two years commencing on 31 January 1997 with an option for renewal for a further two years (Exhibit 1 at Blue 131). Eurobodalla was not prepared to employ Mr Dufty as a member of its own staff, and it was Eurobodalla's requirement that if Mr Dufty was to be the manager of the pool, he was to be employed by a company which was to take a Lease. But for this requirement Mr Dufty would not have involved Dufty Aquatic Management in his affairs. The only persons interested in Dufty Aquatic Management at the relevant times were Mr and Mrs Dufty. The consent of the Minister for Land and Water Conservation was required for the Lease to be effective, and was given by the Minister's delegate. The covenant in the Lease to pay rent refers to Item 2 in the Schedule which is in these terms: (Blue 161) ITEM 2 Rental: [clause 4.1(b)] (a) In exchange for caretaking services provided by the Lessee at the Premises no rental will be payable for the Manager's Residence.

(b) The weekly rental payable for the Premises (excluding the Manager's Residence) will be the undermentioned percentages of all Admission Charges collected by the Lessee during the period from the Monday to the following Sunday of each week. (i) For the first and every subsequent year of the term 50%. (ii) For every year of the term 50% of the first $85,000.00 per annum of all such Admission Charges and then 25% of all such charges in excess of $85,000.00. (c) The minimum admission charge to the Lessee will be $42,500.00 per annum. 85 Provisions of the Lease relating to permitted use refer to Item 3 which is in these terms: ITEM 3 Permitted Use: [clause 7.2] The permitted uses of the Premises (excluding the Manager's Residence) is as a Public Swimming Pool and for the conduct of swimming coaching lessons (and other associated activities by the Lessee or others), and such coaching and other activities as are referred to in this Lease to which the Lessor has contended. The Manager's Residence is only to be occupied and used as a residence for a single family unit, by a Director or employee of the Lessee (and that person's spouse and children) who is acting in the capacity and carries out the duties of a manager or caretaker of the Premises on behalf of the Lessee. 86 Under cl.7.9 of the Lease Dufty Aquatic Management had what might appear to be extensive obligations relating to maintenance and repair, but except as to the manager's residence these obligations were heavily qualified so that the lessee was only responsible for repairs made necessary by negligence and was not responsible for patron negligence. 87 By cl.9.9 of the Lease the responsibility for major maintenance work was assigned to Eurobodalla in these terms: (Blue 155) 9.9 Maintenance by the Lessor (a) Maintenance required to be undertaken by the Lessor will be undertaken sometime during the winter period and may involve the premises being closed for up to 4 weeks, will only be of a major nature and will be limited to the painting of the pools, major structural repairs to the pools and surrounding area, buildings, fences, flood lighting and the repair of the filtration plant. The Lessor will be responsible for building infrastructure, plant and equipment maintenance, works apart from the Lessee's responsibilities specified in the covenants by the Lessee. The Lessee will not be entitled to make any claim whatsoever (for that 4 week period) against the Lessor or the Council for loss of rental or for any other loss sustained by the Lessee as a result of the closure of the Premises to enable maintenance to be carried out to them. (b) The Lessee will, as and when requested by the Council, furnish to it details of any major maintenance works required to be effected by the Lessor during the winter period. If the Lessor and Lessee fail to agree upon whether an item is or is not a major item of maintenance, then the question of the status of such maintenance item in dispute shall be referred to and decided by the President for the time being of the Institution of Engineers Australia (or such other person as that President appoints. The determination of the said President or his appointee (who will be acting in the capacity of an expert and not as an Arbitrator), will be final and absolutely binding upon the parties. Each party shall bear and pay its own costs in respect of such determination. 88 By cl.9.2 Eurobodalla had extensive rights to enter, view the state of repairs, take water samples and on notice carry out maintenance. By cl.9.8 the lessee was entitled to carry on a kiosk business. 89 The practical effect of the provisions of the Lease about maintenance and repairs was that, except for very minor matters which a caretaker might attend to, it was Eurobodalla's responsibility to carry out maintenance work, including maintenance on the filtration equipment and pumps. 90 The structure of the Lease document, and the legal relationship which its terms created are to the effect that the Lease permitted Dufty Aquatic Management to use the premises as a public swimming pool and for the conduct of swimming lessons, coaching and associated activities, but it was left to the economic motivation provided by the rent's being a proportion of admission charges to bring it about that Dufty Aquatic Management actually did conduct a public swimming pool. There was no express promise to do so. No provision of the Lease required Mr Dufty himself to have any part in conduct of the swimming pool. The contrast between the parties' legal relationship and what they obviously contemplated would happen (and the events happened as contemplated) shows that the legal relationship was artificial to a high degree. Mr Dufty had no direct contractual relationship with Eurobodalla, and Dufty Aquatic Management had no obligation to provide the services of Mr Dufty in particular. 91 In fact Mr and Mrs Dufty lived in the manager's residence and did (for practical purposes) everything that had to be done to look after the Naroomba Swimming Pool and the kiosk, including admission control, funds collection, general attendance to caretaking; and gave swimming lessons and coaching. The company also from time to time employed instructors or lifeguards, and Mr Dufty's father assisted at the pool but was not paid. Eurobodalla looked to Mr Dufty to manage the swimming pool, and its officers spoke to Mr Dufty or to Mrs Dufty whenever there was any need to communicate. Mr and Mrs Dufty each received wages of $250 per week net from Dufty Aquatic Management. In addition, Mr and Mrs Dufty had the benefit of the pool manager's residence, and if Dufty Aquatic Management made profits they were entitled to them as shareholders. The Trial Judge found (Red 127) that both Mr and Mrs Dufty worked extensive hours every week in the management of the swimming pool. The pool was closed for some weeks during winters for maintenance, and while it was closed Mr Dufty regarded himself as on holidays. 92 Mr David Bates, employed by Eurobodalla as Public Recreation Co-ordinator, was the Council officer who conducted all relevant liaison with Mr Dufty. The Trial Judge found to the effect that there was a telephone conversation between Mr Bates and Mrs Dufty at some time before 14 July 1997 in which the repair of the pump was discussed. After that there was a maintenance meeting: (Red 127) At some time after that maintenance meeting, Mr Bates contacted the plaintiff to inform him that a Mr Paul White, an electrician engaged by the defendant was to come to the pool to service a pump in the plant room of the swimming pool during the period when the pool was closed for maintenance. The closure of the swimming pool from Sunday 13 July to Monday 4 August 1997 coincided with the winter recess, and provided the defendant an opportunity to conduct routine maintenance including refurbishment of the pumps and compressors in the plant room. 93 A memorandum for the information of Councillors (Blue 214), part of Eurobodalla's records signed by Mr Bates and dated 27 June 1997, records that the pool was to be closed from 6pm Sunday 13 July 1997 to 6am Monday 4 August 1997 for "maintenance purposes, specifically to overhaul the pumps and compressor in the plant room and some painting works." 94 It was also found: (Red 127-128) The Plaintiff's evidence was that Mr. Bates informed him that Mr. White was coming to the pool and that Mr. Bates had told Mr. White that the Plaintiff would be available to assist in the work to be carried out. On 14th July 1997 Mr. White did attend the pool. The Plaintiff was on holidays, a practice which he adopted to co-inside with the closure of the pool. The Plaintiff said in his evidence that he was in fact sleeping when Mr. White arrived. He described Mr. White as a large muscular man who appeared to have been scarred by fire. The Plaintiff's evidence was that Mr. White asked him to come and assist in the pump room and the Plaintiff duly obliged. The pump was located in the corner of the plant room (see Exhibit A) in such a position that access to the pump was extremely difficult. When the Plaintiff arrived at the pump room, the pump was not connected to any pipe work. Mr. White stated that "I have inspected the pump and it has to come out, help me to take it out." The Plaintiff said that he moved to the wall and straddled the pump, while Mr. White passed a pinch bar to the Plaintiff through the eye of the pump. The Plaintiff described his position in the following terms, namely that he had bent his knees slightly and grabbed one end of the pinch bar while Mr. White had another end of the bar. The Plaintiff said they were both lifting at that time but the pump would not shift. At this time the Plaintiff was bent forward at about 30 degrees to the vertical with both hands stretched in front of him holding one end of the pinch bar. The pump commenced to move and it was at that stage that Mr. White either lost his footing or shifted his stance, such that the Plaintiff took most of the weight of the pump on his end of the pinch bar. This caused the Plaintiff to lunge forward and at that stage he felt a pop in his back and a tingling sensation. The estimate given by the Plaintiff in terms of the force that was necessary to lift the pump free of its mountings on the floor of the pump room was the equivalent of lifting approximately 300 to 400 pounds. The Plaintiff told Mr. White that he had hurt his back and immediately went home and laid down for the remainder of the day. He woke the next morning in severe pain and was unable to negotiate the stairs within his home (premises which were provided rent free by the Defendant in the grounds of the pool as part of his remuneration). 95 The findings of the Trial Judge dealing with the evidence of Mr White include the following: (Red 134U) Mr. White agreed that on an occasion in 1997, when he disconnected and removed the pump in the swimming pool pump room, the Plaintiff had assisted him following a request from Mr. White. Mr. White maintained that no one had asked him to request the Plaintiff's assistance. He said that he did not recall anything out of the ordinary occurring on that day. He said that the pump was moved from the plant room to the loading dock. He could not remember the Plaintiff leaving suddenly or complaining of back pain. The pump was reinstalled on 25th July 1997; Mr. White found the pump in its proper position and was required on that day merely to tighten bolts and reconnect it. Mr. White agreed that he was using a pinch bar in order to lift the pump on the relevant occasion and that the pump was in an awkward position in the corner of the pump room. He could not remember the presence of oil on the concrete floor of the pump room but said that there could have been water. He could not remember slipping and he could not remember the Plaintiff being required to suddenly take the load. Mr. White indicated that he did not realise what was involved in the job until he arrived at the pump room. Mr. White's evidence does not amount to a rebuttal of the Plaintiff's evidence of the incident whereby his back was injured on 14th July 1997. 96 The Trial Judge also found (Red 127): In cross-examination the Plaintiff agreed that he was familiar with Mr. White as at 14th July 1997 and was friendly towards him. He also agreed that no Council Officer directed him to lift the pump but that he was instructed to provide assistance to Mr. White. The Plaintiff maintained that he did more than merely provide access to contractors during the winter months. The Plaintiff disputed that the only assistance required of him towards Mr. White was to provide access to the premises. 97 Other matters to which the Trial Judge referred in her judgment include these. Mr Dufty and Mr Bates, in one or more conversations recorded in an interoffice memorandum of Eurobodalla, discussed whether there was a need for Eurobodalla to install a pulley system to facilitate moving the vacuum cleaner in and out of the pool; at one stage Eurobodalla obtained a quote to supply a pulley system, and decided to instruct Council workshop to fabricate a cheaper alternative. The Trial Judge regarded what the memorandum recorded as providing some support for Mr Dufty's contention that his duties of the pool were carried out under the general supervision of Eurobodalla. The Trial Judge said (Red 137): The Plaintiff clearly regarded (and Mr. Bates appeared to acknowledge) the Defendant as responsible for the provision of a safe system of work, including the movement of the vacuum cleaner in and out of the pool. 98 The Trial Judge also noted: (Red137) Mr. Bates' evidence was that he had no recollection of directing the Plaintiff to assist with the removal of the pool pump in July 1997 and that such a direction was not Council's practice. Mr. Bates agreed with the suggestion that it was the Defendant's responsibility to rectify any problems associated with the performance of duties by persons working in and around the pool. A number of Council documents (see Exhibit H) attest to audits by the Defendant of the Plaintiff's occupational health and safety procedures applying to the pool premises. The Defendant directed where, when and how chemicals were to be stored and routine maintenance and repairs were to be carried out. Mr. Bates acknowledged that it was possible for Council to have installed a hook in the ceiling of the pump room from which a block and tackle might have operated in order to remove the pump, or the Council could have supplied other equipment to effect the removal of the pump.

99 The Trial Judge regarded Mr Dufty as an honest forthright witness, and gave supporting reasons for regarding his evidence as reliable. Her Honour did not make corresponding observations about her view of Mrs Dufty's evidence, but it appears clearly overall that the Trial Judge also regarded Mrs Dufty as a reliable witness. By contrast it also appears overall, although there are no pejorative observations in the judgment about Mr Bates' reliability, that her Honour was not impressed with his evidence; indeed his own evidence shows that he did not have a clear recollection of significant aspects of the facts, and many of his expressions were far from definite. Notwithstanding Mr Bates' evidence, which was generally to the effect that he did not recollect having done so, the Trial Judge found that Mr Bates asked Mr Dufty to render Mr White any assistance he required. (Red 138) 100 The basis on which the Trial Judge decided that Mr Dufty was entitled to recover damages is that Eurobodalla owed him a duty of care on the basis of principles expounded in the majority judgment in Stevens v. Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16. Her Honour also referred, briefly, to principles relating to occupiers' liability, but did not act on that basis; in my view Mr Dufty's claim does not relate to occupiers' liability. The Trial Judge referred to the decision of the Court of Appeal in Rockdale Beef Pty Limited v. Carey [2003] NSWCA 132 relating to injuries sustained by an independent contractor engaged to herd cattle, and to the reference at para [77] to Stevens v. Brodribb and in particular to Deane J's observations at page 50 about the lack of decisive effect of categorisation as an independent contractor rather than as an employee. Her Honour further referred to paras [79] and [84] of Rockdale Beef Pty Limited v. Carey which illustrate that it is the substantive content of the relationship between the parties which is decisive for the existence of a duty of care, that it is not essential that the principal should actually give directions in detail about performance of the work, or embark on co-ordinating work activities, and that other considerations might produce the result that the principal owes a duty of care to a person participating in a work operation. In my understanding the passage in which the Trial Judge concluded that duty of care existed is the following: (Red 141) I am satisfied that the Defendant owed the Plaintiff a duty of care in all the circumstances of the relationship which existed between them. There can be no doubt that the safety of the work site, specifically the pump room, was within the responsibility of the Defendant and that the Council was aware of the need for safe systems of work, such as pulley systems for heavy equipment, to be installed. (A fall by the Plaintiff in the pump room in October 1997 elicited a flurry of memoranda about the need to rectify the floor of the pump room ; see Exhibits F and H.) The existence of the duty of care arose out of the fact that the Defendant stood in the position of the Trust, as the lessor of the pool premises, and effectively directed and supervised the Plaintiff in the management of the pool premises. 101 The trial Judge went on to deal with breach of duty, after noticing a contention by Eurobodalla that: (Red 142) … the method of the removal of the pump was devised by Mr. White and that both the Plaintiff and Mr. White were able to contact the Defendant at any time prior to the removal of the pump, in order to request any necessary assistance or directions concerning the safe removal of the pump. In particular, the Defendant relies on the fact that the Plaintiff subsequently spoke to Mr. Bates about the provision of a block and tackle in the pump room and that no request was made by the Plaintiff for such equipment prior to or on 14th July 1997

Her Honour's conclusion was (Red 142M-O): However, it seems to me that by failing to provide a proper means of lifting the pump, the defendant has, in any event, breached its duty of care. 102 Mr White gave evidence to the effect (Black 100-101) that the pump could have been lifted by putting a pinch bar through an eye at the top of the pump. However as the pump was in the corner of the room and there were other pipes in the room, access was available only from one side, and when lifting the pump Mr White and Mr Dufty would both have to be "sort of semi-side on to it" and bent over in a very awkward position. Mr White further said (Black 101E) that they "[c]ould have quite easily lifted it out that way, yes, that's the way I have done it before." Earlier evidence (Black 98-99) shows that Mr White was not able to recollect what lifting technique actually was used on 14 July 1997. 103 It is clear that the operation was not well conducted. I see no room to doubt that it was negligent to attempt to remove the pump by getting two men to join in lifting it, where access was awkward, where both would have to be side-on and bent over in the pump room, and where there could have been oil (according to evidence of Mr Dufty) or water (according to evidence of Mr White) on the floor. The pump was plainly a very heavy lift for two men, and force was not only required for the lift but also to free the pump from its housing. The possibility should have been obvious that most or all of the load might be thrown on one of them if anything disturbed the application of lift by the other. There were other feasible ways of lifting the pump, such as by bringing in a frame to support lifting gear, or by fixing a hook above the pump so as to hold a block and tackle. There was plainly room for the Trial Judge's finding that there was negligence in the conduct of the operation. The issue requiring attention on appeal is not whether the operation was conducted negligently, but whether Eurobodalla was responsible for the negligence. 104 In my view I should review the evidence relating to the involvement of Eurobodalla in the co-ordination and control of the operation of lifting the pump and Mr Dufty's part in it. It appears to me that the Trial Judge must have acted on the basis that the highest view of Eurobodalla's involvement available on the evidence of Mr and Mrs Dufty should be accepted. I should look further than aspects of the involvement of Eurobodalla on which there are explicit findings. 105 Eurobodalla engaged Mr White, an electrical contractor who was not an Eurobodalla employee, to undertake servicing of the pool pump. Mr White had an electrical contract with Eurobodalla to do all the servicing work at the pool. Mr White came to the pool on 14 July 1997, not by pre-arrangement with Mr Dufty who in fact was asleep when he arrived. Mr Dufty said: "… as far as I was aware he was to have a look at one of the pumps, the main pool pump" (Black 6V) and "… he asked me to come and help him." (Black 7D) Mr White and Mr Dufty went to the pump room where "Mr White had taken off the connecting piece of pipe work that connects straight to the pump." (Black 8I) Mr Dufty further said that "[Mr White] said 'I've inspected the pump and it has to come out.'" and "I moved over to the wall side and sort of straddled the pump from against the wall." Mr Dufty went on to describe the operation in which a pinch bar was passed through a metal eye attached to the pump, and he bent down and grabbed hold of the pinch bar while Mr White also took hold of it; they tried to lift the pump, which took a great deal of force, then Mr White either slipped on the oil on the floor or lost his grip, the pump came loose, and Mr Dufty had to take the weight of the pump as Mr White fell. 106 The evidence shows clearly that Mr White decided himself, on the basis of his own inspection and opinion, how much work it was necessary to do on the pool pump, and it was his decision, without any consultation with Eurobodalla officers, that the pool pump should be lifted from its position and taken away for servicing. There is no suggestion in the evidence that Mr Bates or any other Eurobodalla officer was present, or gave any direction about moving or lifting the pump or about how it was to be lifted, or knew that Mr White had decided that the pump was to be removed. On the other hand the Trial Judge regarded it as having been proved that Mr Bates or Eurobodalla knew or should have known that the work on the pump could well require it to be removed. Upon the whole of the evidence there is no basis from which it could be found that Eurobodalla knew or should have known that the pump was to be lifted, or had any occasion to consider how such an operation was to be carried out, or whether such an operation was to be carried out safely. 107 In the written submissions counsel for Mr Dufty contended that "…there is the additional factor of the direction by Bates that the Respondent assist White in the task, thereby rendering any argument to the contrary of the existence of a duty of care ludicrous. "The request by Mr Bates to Mr Dufty to assist Mr White did not receive the attention during the adduction of evidence which in retrospect appears to have been appropriate, in view of the central importance it came to have in the disposition of the claim by the Trial Judge and in the argument in support of that disposition on appeal. There is little if any reference to that request in pleadings or other preparatory documents. I turn to review the evidence which might show that Eurobodalla had some involvement in the operation. 108 In his oral evidence, (Black 6J) Mr Dufty said that [Mr Bates] "…told me that Paul White was coming to do a service on the plant and do some maintenance work in regards to the electrical stuff at the pool and that he told Mr White that I would be available to help him." Mr Dufty's evidence shows that Mr Bates told Mr Dufty that he had told Mr White that Mr Dufty would be available to help; Mr Bates plainly made a request to Mr Dufty to help Mr White, according as to Mr White requested. Although Mr Bates and Eurobodalla had no contractual or other legal right to direct or require Mr Dufty to help Mr White, Mr Dufty complied with it when the request was made. 109 During cross-examination of Mr Dufty the following passage appears (Black 36): Q. Did he say something to you over the telephone during July of 1997 about a particular job? A. Well, he actually came to the pool and we had a meeting. Q. All right. A. And he told me that Paul White the council electrician was going to be at the pool doing some maintenance work and he had told Paul White that I would be available to help him. … Her Honour: Q. Mr Dufty, you said Bates - what was it that Mr Bates said to you? A. He told me that Paul White was coming to do a service on the plant and do some maintenance work in regards to the electrical stuff at the pool and he told Mr White that I would be available to help him. …

Q. No council officer ever gave you a direction to lift or remove the pool pump, did they? A. No, I was just instructed to give Paul a hand.

It was further suggested that the assistance Dufty Aquatic Management was required to give under the Lease was limited to giving contractors access; Mr Dufty said to the effect that that was strictly the position of the lease as it was written, but more than that was actually done (Black 36). Q. The only assistance your company was required to give under the lease to the lessor or any contractors was to given them access - to give the contractors access when the pool was closed for winter maintenance, wasn't it? A. We actually did a little bit more than that. Q. The only assistance you were required to give under the lease was that you provide access for maintenance to be undertaken in the winter closure, wasn't it? A. Well, I suppose if you stick strictly to the terms of the leas as if it's written, but that wasn't the way it actually was. Q. No-one directed you to involve yourself in any laboring to be carried out by Mr. White, did they? A. I was just instructed to give Mr. White any assistance he required.

110 Mr Dufty's account in cross-examination was substantially identical to his earlier account of Mr Bates' request. Mr Dufty's evidence does not ever aver that Mr Bates requested Mr Dufty to lift the pump, or work on the pump, or otherwise to do any specific task; anything more specific than "…give Mr White any assistance he required." (Black 36J). That is to say, in Mr Dufty's evidence, nothing which was said to him by Mr Bates showed that Mr Bates knew that the pump was to be moved or lifted, or knew that Mr Dufty would have any part in such an operation, or asked Mr Dufty to have any part in such an operation. 111 Mr Dufty said, in a way which is not at all clear, that the issue of the pump being removed had been spoken about before: Q. The evidence you gave to her Honour this morning was that Mr White said to you, "I've inspected the pump and it has to come out"; so the issue of the pump being removed was something that only came up on the day, wasn't it? A. No. No, that had been spoken about before. Mr White was going to check the pump as part of his service I believe. Her Honour: Q. When you said it had been spoken about before, when and in what context? A. At the meeting with David Bates. He outlined general stuff so I was unsure whether - as to what I would be needed to do on that day.

At Black 73C, in the course of cross-examination directed to another topic, Mr Dufty said: A. The pump was off. When we had our previous meeting Mr Bates had told me that I had to turn the plant and pool circulating system off because Mr White was coming to service the main pool pump. 112 These passages of evidence do not support a finding that Mr Bates knew the pump was to be moved or lifted, or asked Mr Dufty to take part in any such work. 113 Mr Bates was cross-examined on the subject of foreknowledge that the pump was to be moved, but his evidence does not establish that he had any such foreknowledge. 114 In his evidence, Mr White indicated, altogether clearly, that he did not know in advance that the pump was to be moved. (BLACK 102M to V) Q. Because you knew it was a two-man job, is that right? A. Well, at the time later on I - yeah, when I went there to do the job, I didn't sort of realize that much what was involved until I got there to do it and then I realized I couldn't lift it out by myself so I just asked - I would have asked [Mr Dufty], yep. Q. And where was [Mr Dufty] when you asked him? A. Oh, I don't know, he might have been in his office or out in the pool, I could have been anywhere, he could have been there watching me, I don't know. Q. If he was there watching you, it's likely it was there because he had been asked by perhaps Mr Bates or someone from the council, wasn't it? A. I wouldn't think so. Q. Yeah? Why not? A. Well, I don't know. Q. Well, why would he be watching you--? A. Well, I just - I didn't say he was - I said I can't remember where he was, whether I had to go and find him or whether he was there just [talking] to me when I was doing the job.

115 It is altogether clear on the evidence of Mr Bates and Mr White, and indeed of Mr Dufty, that none of those persons knew, at the time when the request for assistance was made, that the pump would be moved so that it could be worked on. After the request for assistance was made, Eurobodalla and Mr Bates had no part of the events and received no information about what if anything was to happen to the pump, or about any project of moving it. In view of the time when the realization came to Mr White that it should be moved and Mr White decided to move it, there was no opportunity for Eurobodalla to know. Evidence of Mr Dufty shows that the pump had not been moved at earlier times while Mr Dufty was working at Narooma. 116 Counsel for Mr Dufty contended that "The plaintiff might have been unsure about what he was going to do but [Mr Bates] had certainly raised the possibility, so that Council knew that there was a likelihood of the pump being removed in this awkward position." 117 Evidence of Mr White shows that the pump had in fact been removed on at least one earlier occasion during servicing. Apart from evidence of Mr White there is no evidence of when or in what circumstances or to whose knowledge it had been moved in the past. 118 In examination-in-chief, Mrs Dufty said (Black 104-105): Q. … At some time around July 1997 did you have a phone call from Mr Bates at the council? A. Yes, I did. Q. What did he say to you? A. He was just making sure that everything was right for Monday for [Mr Dufty] to help Paul White the electrician. Q. Do what? A. He had to help with the pump.

Q. Right. A. He also had to help - he also had to shut down the pool because otherwise they couldn't get the pump out. Q. Was this the first you knew about this? A. No, no, we had a maintenance meeting; we do every year. Q. So before the phone call you had had a meeting with Mr Bates, had you? A. Yes, that's right. Q. And what if anything had he said to you in that meeting about what [Mr Dufty] should do? A. Just that he had to be there to help Paul White the electrician. 119 In cross-examination of Mrs Dufty the following passage appears: (104U-T): Q. The evidence you just gave about receiving a telephone call from Mr Bates in which you say he said, "[Mr Dufty] has to help with the pump", that's just a fiction, isn't it? A. No, that's not true. Q. The only responsibility that Dufty Aquatic Management had in relation to winter maintenance carried out by other contractors was to make sure that the pool was open to them so that they could have access to where the maintenance needed to be done and to point out to them where it was they - their work was located, wasn't it? A. No, that's not true. … Q. And there was no quote for doing this additional work of - in relation to the pump that you say occurred? A. No. Q. In July 1997, was there? A. No, that was with the electrician. We didn't have to put a quote in to fix the pump. The electrician was doing that. [Mr Bates] just said that [Mr Dufty] had to be there to help [Mr White]. Q. The only direction or instruction in relation to the pump work that was taking place in July 1997 to you or [Mr Dufty] or Dufty Aquatic Management so far as you're aware was that the pool had to be opened at the relevant time for Mr White to perform his work, wasn't it? A. No, that's not correct, [Mr Dufty] -[Mr Bates] said [Mr Dufty] had to help Paul because he had to shut down the pool. You couldn't get the pump out to fix the pump without [Mr Dufty] shutting down the pool because otherwise the water would run out of the filter beds. So [Mr Dufty] had to be there to help [Mr White] fix the pump. Q. Well, I suggest to you, Mrs Dufty, that's just a complete nonsense, that's fiction, isn't it? A. No, that's not true. It's the truth. 120 The evidence of Mrs Dufty taken at its highest is not evidence that Eurobodalla knew that the pump was to be moved, or requested Mr Dufty to take part in any operation of moving the pump. 121 There is no evidence that it was known to Eurobodalla that it was likely or possible that the pump might be moved. Mr White was an independent contractor. Neither Mr Bates nor Eurobodalla had any right of control over how Mr White went about his work, or exercised any control in detail over what Mr White did; it was left to Mr White's judgment to decide what work should be done on the pump, and the decision to remove the pump was made by Mr White without consultation with anybody else. Mr Bates and Eurobodalla gave no direction either to Mr White or to Mr Dufty about the removal of the pump, neither a direction in detail about how it was to be moved, or any direction in the most general terms that it should be removed for maintenance. It was not known, so far as any evidence shows, that the pump was in fact to be moved, and the highest view which is reasonably available of Eurobodalla's involvement is that Mr Bates requested Mr Dufty to give Mr White a hand, without any knowledge of what specifically Mr White might need assistance to do. In my opinion there is no basis for the contention that "Council knew that there was a likelihood of the pump being removed in this awkward position."

122 Counsel for Mr Dufty also contended to the effect that in a practical sense Mr Dufty was under the control of Eurobodalla in the operation in which he was injured. Mr Dufty was a person over whose activities Mr Bates and Eurobodalla had no legal right of control; Eurobodalla's legal relationship was with Dufty Aquatic Management, that relationship entitled Eurobodalla to do no more than to require access for its independent contractors to carry out maintenance; and Mr Dufty and Mrs Dufty as directors were the only persons to whom to speak if that right were to be exercised. 123 In his evidence, Mr White did not attribute participation of Mr Dufty to any earlier arrangement (BLACK 97U) Q. How did Mr Dufty come to be helping you with the pump? A. He was the - he was the manager or lessee of the pool- I'm not sure at the time - but he was there and I asked him to give me some assistance. Q. Did anyone tell you that you should ask Mr Dufty to help you remove the pump? A. No. 124 However that may be, it has been established that Mr Bates requested Mr Dufty to assist Mr White; and this is no less so whether or not Mr White knew of such a request or remembered it. The request to Mr Dufty was couched as a request, which was the highest at which Mr Bates was in a position to put it, and Mr Dufty was not asked to do anything in detail. Mr Dufty had complete control and the power of decision over whether he assisted Mr White in any particular way Mr White asked him to. There was a huge range of possibilities in what might be involved in lending Mr White a hand, from opening a door or turning the electric power off, to handing him tools and on to a very wide range of possibilities. The highly generalized nature of the request shows that what part Mr Dufty was to take was left to Mr Dufty's decision and judgment, and that Eurobodalla and Mr Bates did not attempt to exercise any control over it. Nothing in the circumstances put Mr Dufty under the control of Eurobodalla in any sense. 125 There is no finding by the Trial Judge, and the Court of Appeal was not referred to any evidence that Eurobodalla or Mr Bates made a practice of asking Mr Dufty to assist its contractors or to do anything at all as part of the function of managing the pool. There is no basis for thinking that there was a practice of controlling what Dufty Aquatic Management did in detail, or of controlling what Mr Dufty did, and there is no reason for thinking that although the words used were words of request Mr Bates' request had the practical force of a direction, or that there was any course of conduct which limited what Mr Dufty could do in response to the request. Although it is common enough in many relationships including employment relationships for a politely expressed request to have the force of a direction, the evidence does not show that there was any similar process in this case. 126 Consideration of the totality of the relationship between Mr Dufty and Eurobodalla does not produce any real analogy with an employment relationship, and does not place Mr Dufty in the position of operating in a system of work which Eurobodalla controlled or created. Mr Dufty was requested to give Mr White a hand in circumstances which left it entirely to Mr Dufty's judgment whether and to what extent he would participate in Mr White's operation. It cannot be said, in any sense which has reality, that Eurobodalla engaged Mr Dufty to do work which included lifting the pump. In my view only by resort to fiction can control of the operation be attributed to Eurobodalla. 127 Counsel for Mr Dufty contended that Eurobodalla was under a common law duty to Mr Dufty, and referred to Stevens v Brodribb. A formulation regarding work engaged in by independent contractors was expressed by Mason J in Stevens v Brodribb at 31 and it has often been referred to and applied: 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. 128 No part of this formulation can be used to support a conclusion that Eurobodalla was under a common law duty of care to Mr Dufty with respect to the operation of lifting the pump. "Independent contractor" is not an appropriate categorisation of Mr Dufty in his relationship with Eurobodalla. Mr Dufty was at two removes from Eurobodalla: Dufty Aquatic Management was the contracted lessee, Mr Dufty was a director and an employee of the company, and in assisting Mr White he acted without payment and without obligations. He was further removed from Eurobodalla than an independent contractor such as Mr White, who was not doing work which might readily be done by employees. . In law Mr Dufty's assistance to Mr White was voluntary, although the chain of economic relationships provided the setting in which he was willing to give assistance. There is no basis for thinking that Mr Dufty acted as agent for Eurobodalla, contracted with it or entered into its service, even in some limited or constructive way.

129 There was no need for Eurobodalla to give directions as to when and where the work was to be done, and there was no need for Eurobodalla to co-ordinate various activities; Eurobodalla had no part in the event, made no decision, had no opportunity for decision or direction, and was not under a need to take control of the operation away from Mr White who was in fact in control of it. There is no reasonable basis on which the activities of Mr White and of Mr Dufty should be interpreted as activities for which there was a need for Eurobodalla to give directions as to when and where the work was to be done and to provide co-ordination. The system of work for lifting the pump, indeed the existence of such an operation was not something in which Eurobodalla was involved in any more intense way than having grounds to foresee, if it had been thought about, that there might be such an operation. In practical terms Eurobodalla had no opportunity to prescribe a system for carrying it out. Eurobodalla had no opportunity to provide for or to think about providing lifting equipment, or to give or think about giving instructions about how to carry out the lift. 130 The following passage in the judgment of Brennan J in Stevens v. Brodribb at 47-48 has often been referred to: An entrepreneur who organizes an activity involving a risk of injury to those engaged in it is under a duty to use reasonable care in organizing the activity to avoid or minimize that risk, and that duty is imposed whether or not the entrepreneur is under a further duty of care to servants employed by him to carry out that activity. The entrepreneur's duty arises simply because he is creating the risk ( Sutherland Shire Council v Heyman (1985) 59 ALJR 564 at 587; 60 ALR 1 at 42) and his duty is more limited than the duty owed by an employer to an employee. 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. 131 The law as so stated by Brennan J would not impose a duty of care upon Eurobodalla, who cannot be said to have organised the activity or to have created the risk. There was no basis on which to conclude that Eurobodalla did not act reasonably in engaging the services of Mr White, an independent contractor, or that Mr White was not competent himself to control the system of work without supervision by Eurobodalla. There was no complex interaction of independent contractors or persons in positions in any way analogous to operations such as a timber logging, or to the frequently encountered situation in which subcontractors from several different trades work on a building site at the same time. The operation in which Mr Dufty was injured was distinguished for its simplicity, as well as for the incompetent manner in which it was performed. 132 In Rockdale Beef Pty Limited v Carey Mr Carey, who was an independent contractor, was performing work which was integrated to a high degree into the working system of the principal, and was doing work which Mr Carey himself had earlier done in the character of an employee. While making an extensive review of the case law in which Stevens v Brodribb had been considered or followed, Ipp JA said: 84 In my opinion, nothing said by Mason J or Brennan J in Stevens , or Heydon JA in Kolodziejczyk prevents the general law of negligence imposing on an entrepreneur a duty of care owed to an independent contractor. Such a duty may arise in circumstances where there is no need for the entrepreneur to give directions as to when and where the work is to be done and to co-ordinate the various activities, but where, for other reasons, reasonable care on the part of the entrepreneur affects the way in which the work is to be undertaken and the safety of the work site, and where other considerations (not applicable in Stevens and Kolodziejczyk ) such as vulnerability, inequality of bargaining power, control, and the other manifold factors that the law recognises as being relevant to the existence of a duty of care, are present. 133 After stating, particularly at paras [87] to [91], the manner and degree of Mr Carey's integration into Rockdale Beef's system of work Ipp JA concluded at [92] that the principal came under a duty of reasonable care to avoid or minimise the risk in the work which Mr Carey was directed to carry out. In my opinion, there are no significant factual analogies between Rockdale Beef Pty Limited v. Carey and the present case. There are no reasons why reasonable care on the part of Eurobodalla would affect the way in which the work was to be undertaken, or the safety of the worksite, and there are no considerations of vulnerability, inequality of bargaining power, control or the factors which show the existence of a duty of care.

134 The facts that Mr Dufty carried on his activities as director and employee of Dufty Aquatic Management, and that it was a requirement of Eurobodalla that a company be the lessee, are not a demonstration of vulnerability. There is on the evidence no reason to think that it would have been worse for Mr Dufty if he had said to Mr Bates "This is my holiday. I will open the doors for the electrical contractor and make sure he can go wherever he wants to, but if he needs any more help he would have to provide his own." When Mr White entered on the project of lifting the pump, and asked Mr Dufty to participate in it, the request earlier made by Mr Bates to Mr Dufty to lend Mr White a hand could have had only a very small part in the considerations bearing on Mr Dufty's decision whether or not to comply; if he saw himself as vulnerable or had some fear of adverse consequence if he did not comply, he gave no evidence of any such matter. 135 "Vulnerability" entered the lexicon of negligence law at about the same time as "proximity" left it: it suffers in a similar way from indeterminacy, although it can be readily deployed. To my mind it is unuseful to speak of "vulnerability" and related expressions so as to suggest that there is some element of oppression or overbearing in a relationship if there is no exposition of what that element is. I regard it as artificial to categorize Mr Dufty's taking up the position of manager through Dufty Aquatic Management as an instance of vulnerability; he never had that position as an employee of Eurobodalla and it was not ever available to him. His position is unlike Mr Carey, who had earlier been employed to herd cattle and whose job was turned into a corporate enterprise although what Mr Carey did day by day did not change. The perception that Mr and Mrs Dufty in some way exhibited vulnerability by going into business as pool lessee through a company ignores the reality that they obtained a business opportunity, control over their own affairs and income which the intensity of their own management activity could influence. Vulnerability is a characteristic to be proved, not badge to be pinned on without some substantiation; and operating through a family company is far from being proof of it. 136 A number of events in evidence show concern felt by officers of Eurobodalla with safety, including occupational health and safety at the pool. In particular there were signs of concern on the part of Mr Bates about this matter. Eurobodalla's concern with safety did nothing to impose a duty of care on it. For a public authority, concern about and attention to health and safety are no indication at all of whether or not a duty of care is owed to particular persons on premises it owns; the health and safety of persons on its premises is a subject with which a public authority could well concern itself whether or not the common law imposes any duty of care on it. There is no room for treating these facts, which were explored at length, as in any sense a constructive admission about the existence of a duty of care. 137 Counsel for Mr Dufty referred to TNT Australia Pty Ltd v. Christie [2003] NSWCA 47 and Multiplex Constructions (NSW) Pty Ltd v. Lopez [2004] NSWCA 319. In my opinion the observations of Mason P in TNT Australia Pty Ltd v. Christie, including [41] and [42], do not state a wider or different view to statements found in Stevens v. Bodribb. Nor do the observations of Santow JA in Multiplex Constructions (NSW) Pty Ltd v. Lopez; see para [52]. No case law supports imposition of a duty of care on a basis as slight as that the defendant knew that some such event as in course of time happened might well happen, or would have known if the defendant had thought about it, where the defendant requested the plaintiff to give a hand to the independent contractor who was conducting the operation. 138 My views about disposition of the appeal mean that I have not addressed the arguments put forward by Eurobodalla relating to the Trial Judge's assessment of damages, contributory negligence of Mr Dufty, and the cross-claim against Dufty Aquatic Management for indemnity under provisions of the Lease. For the reasons I have stated I respectfully dissent from the judgment of Santow JA with which Tobias JA has agreed. In my opinion the appeal should be allowed, the verdict and judgment for the respondent and costs order should be set aside, and in lieu thereof the Court of Appeal should direct that in the District Court action a verdict and judgment should be given for the defendant with costs.

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