(ii) failing to provide a safe place of work.
42 So far as the first particular is concerned, it is clear that Leighton did provide induction training at the site and that it required its principal subcontractor to carry out similar responsibilities in relation to its particular work. Although there was little evidence as to the nature and size of the operation, it appears from the contractual arrangements that Leighton depended on Downview to inform it of the individuals who were coming onto the site to undertake specific works. As will be discussed further below in relation to Downview, it failed to carry out its obligations in that respect. As a result, the first particular identified above, namely the failure to induct Messrs Stewart and Fox, comes down to a question as to whether Leighton took all reasonable care to ensure that persons coming onto the site did in fact undergo induction training. This in turn may be seen as an element of maintaining a safe workplace. It may also be seen as involving a question as to the extent to which Leighton was required to exercise direct supervision over subcontractors to ensure that the workplace was reasonably safe, for all persons on the site.
43 The manner in which the case was presented tended to emphasise this last aspect of relevant conduct. Thus Mr Fox's evidence was that there was a Leighton supervisor on level 4 when the cleaning-out took place. The case against Leighton at trial was substantially based upon the failure of Leighton, through its supervisor, to ensure that safe work practices were adopted.
44 That complaint had two limbs. The first was that one of the men on level 4 at the time of the accident was a foreman employed by Leighton. Mr Fox gave evidence to that effect, but that evidence was not accepted by her Honour. The second limb relied upon Leighton having a general law duty to ensure safe work practices and to take reasonable steps to ensure that those working on the site were properly trained. The dispute as to the presence of a foreman on level 4 at the time of the cleaning-out operation was not relevant to that broader question. Perhaps because there was a focus in the course of the trial on conflicting evidence as to who was present on level 4, it appears that the trial judge did not understand the broader case to have been put: Judgment, p 25P.
45 Reliance was placed at the hearing of the appeal, on the evidence given by Mr Fox that when he arrived at the site with Mr Stewart he was told to put on his safety vest and hard hat by a foreman apparently employed by Leighton: Tcpt, 30/10/06, pp 31-32. If that evidence were accepted, it at least provided a basis for an inference that Leighton's foreman knew that two men had come onto the site, perhaps for the first time, and failed to ensure that they undertook induction training.
46 In response to this aspect of the claim, senior counsel for Leighton asserted that it had neither been pleaded nor run at trial: however, it was expressly pleaded (first amended statement of claim par 7(b)), a matter which was adverted to in the course of argument at trial (Tcpt, 03/11/06, p 327) and in written submissions for the appellant of 2 November 2006, par 1.2. The failure to address that basis of liability was an error.
47 Although Leighton was not vicariously responsible for the negligence of its subcontractors or of persons subcontracted by them, it remained the principal contractor with overall responsibility for the safety of the site, on which, as the evidence showed, a significant number of tradespeople and other workers were present at any one time. The continuing obligations of a principal contractor, even where the work to be performed has been largely or totally subcontracted, are reflected in the Occupational Health and Safety Regulation and in the general law. Thus it has long been accepted that a principal may be liable for the negligence of an independent contractor where the principal has directly authorised the doing of the tortious act: see Northern Sandblasting Pty Ltd v Harris [1997] HCA 39; 188 CLR 313 at 366, McHugh J referring to Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Cooperative Assurance Co of Australia Ltd (1931) 46 CLR 41 at 48 (Dixon J). Similarly, the principal may be required to co-ordinate the activities of various subcontractors as part of its obligation to set a safe system of work: Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 31 (Mason J). As an occupier having control over the premises, it may be necessary for the principal contractor to identify and provide warnings in relation to dangerous features of a partly constructed building: see Maricic v Dalma Formwork (Australia) Pty Ltd [2006] NSWCA 174 at [47]-[53]. Whether a principal contractor will be under such a duty (and, if so, what is necessary to fulfil the duty) will depend upon the particular circumstances of the case; operations of multiple subcontractors carried on within the relative confinement of a building site may well give rise to a different conclusion to that reached in the case of road works being undertaken by a subcontractor for a local council as discussed in Leichhardt Municipal Council v Montgomery [2007] HCA 6; (2007) 81 ALJR 686 at [23] (Gleeson CJ). In the present case, her Honour accepted that one subcontractor (Warren Stewart Pty Ltd) was liable to another (the appellant): Judgment, pp 28, 41-43. However, she reached that conclusion because the were "more akin to … fellow employees", reasoning which did not apply to those defendants "at some remove" in the "contractual pyramid": Judgment, pp 6G and 29P.
48 The older case-law concerning accidents on construction sites does not indicate that a general law obligation to provide training in matters of safety to subcontractors working on a site was envisaged as falling within the requirements of the duty of care of a principal contractor. It is also clear that construction sites were relatively dangerous workplaces in the past. The obligation to ensure a reasonable level of safety is, however, now well-recognised. The need for induction training is now a recognised part of major construction works. So much was recognised by Leighton in its contract with Downview; cl 32, whilst imposing obligations on Downview, acknowledged continuing obligations on the part of Leighton. Those obligations should properly be seen as part of Leighton's general law duty of care to subcontractors and others coming onto a construction site within its control. Although senior counsel for Leighton suggested that its obligations of training and supervision were delegated to Downview, the contractual provisions did not support that conclusion, nor did the Regulation provide support for Leighton to delegate responsibility in that manner.
49 Leighton clearly took upon itself a supervisory role in checking work method statements prepared by Downview and rejecting them where it thought them inadequate. It appears to have employed a gatekeeper whose job it was to allow workers onto the site, whilst excluding others. It employed a foreman who directed workers in relation to use of safety vests and hard hats. It issued "green cards" to those workers who had undertaken its induction training program. The fact that it took these steps does not, of course, mean that failure to take any such step would have involved a breach of a general law obligation of care. Rather, those steps are significant because they indicate the level of control Leighton maintained over the site. Such controls were no doubt desirable for the efficient conduct of the construction works, as well as for the safety of those on site. However, the relevant omission was to take steps to ensure that Messrs Stewart and Fox undertook the relevant induction training. Pursuant to their contractual arrangements, that was a joint responsibility of Leighton and Downview. Whilst Downview may be seen as having primary responsibility in relation to safety aspects of the concreting work that is not to exonerate Leighton from all responsibility, although such considerations will clearly be relevant in relation to questions of contribution. On that basis, the trial judge should have found that Leighton owed Mr Fox a duty of care and that, by allowing Mr Stewart and him to work on the site without either having undergone induction training, it was in breach of its duty.
50 On one view, it is not necessary to consider other bases upon which Leighton was said to owe a duty to Mr Fox. However, because the precise nature of the duty and any possible breach may have a bearing on the contribution which should be met by Leighton, it is necessary to refer to the other arguments relied upon by Mr Fox.
51 The appellant also put his case upon a generic basis, namely that Leighton had a non-delegable duty to persons coming onto the site to take care for their safety. In the course of argument, senior counsel for the appellant conceded that there were difficulties with this approach. The difficulties are both conceptual and linguistic. First, to describe a duty as "non-delegable" may mean no more than that the circumstances fall within a category in which the law has insisted that liability continues despite the engagement of independent contractors to carry out the work or provide the relevant services. However, at such a level of abstraction, that approach cannot apply in the present circumstances. Its application would import a similar obligation of control in relation to an independent contractor as in the case of an employee. As explained by Brennan J in Stevens at 47 (above at [47]):
"The entrepreneur's duty arises simply because he is creating the risk … 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."
52 There being no reason presented in this case to suppose that subcontracting concrete pumping services was in any sense unreasonable, there is no basis for importing what is, in effect, an obligation akin to that of the employer to retain a degree of control which is inherently inconsistent with the relationship between a principal and an independent contractor: see Hollis at [43]-[44] (above at [26*]). Whether, as suggested in the course of argument, there is any specific category of cases in which duties are held to be non-delegable because of the extra-hazardous nature of the activity may be doubted: see Montgomery at [18] (Gleeson CJ) at [116]-[118] (Kirby J) and [145] and [153] (Hayne J). In any event, there is no authority to support the proposition that pouring concrete on a construction site, at least in the circumstances of the present case, could be described as an extra-hazardous activity. Accordingly, Leighton cannot be said to be liable on this basis.
53 Finally, there was a claim of liability based on a duty to supervise the activities of the concrete pouring, or at least the cleaning-out operation at the end of the pour. This is, however, little more than a recasting in more specific terms of the generic complaint referred to above by reference to non-delegable duties. Instead of contending for a legal category into which the case fits, this approach appears to concede the absence of any such category, but to rely upon a more flexible approach in relation to identification of parts of a process which may be said to involve special risks. Neither authority nor principle supports such an approach: such an approach would tend to break down the distinction between employees and independent contractors by permitting the law to impose a level of control over independent contractors which would, in a specific respect import an aspect of the employment relationship. As Hollis demonstrates, there may be uncertainty in a particular case as to which category an individual relationship falls into, until the Court has determined the matter, particularly in circumstances where the answer is not controlled by the label given to the relationship by the parties: see at [58]. But in accordance with authority, this Court must approach the case on the basis that the dichotomy between employees and subcontractors is well-established: in any event, no good reason was provided in argument to depart from that approach.
54 Accordingly, the existence of a duty on the part of Leighton should be upheld on the sole basis articulated above. If a duty existed, it was clearly breached in the circumstances in that Leighton did not provide any induction training to the appellant or Mr Stewart. Such training should, and on the probabilities would, have included training in relation to safety issues in respect of cleaning-out operations and, properly conducted, would at least have required reference to the matters set out in cl 3.18 of the code of practice. Tying down the end of the pipe was a simple requirement which should have been high on the list of matters to which the contractor's attention was directed.
55 In terms of causation, two questions arise: the first is whether it was more probable than not that had Mr Stewart (or the appellant) undergone induction training, this matter would have been addressed. Secondly, there is a question as to whether, had it been addressed, Mr Stewart (or the appellant) would, on the balance of probabilities, have behaved differently.
56 The likelihood that cleaning out operations would have been addressed should be accepted. One cannot be sure that the training would have referred expressly to the requirement in the Code of Practice to attach the discharge end of the pipeline to catch the cleaning device (see par (c) in reg 3.18 at [34] above) but the concrete pumping exercise was a relatively simple one, with a limited number of dangers. Induction training which did not cover that aspect of the work would not have been proper induction training. The only witness who went through induction training and who might have been able to give evidence in respect of the content of the training was Mr Still. He was asked no questions in this regard and, in one sense, his answers would not have mattered. The plaintiff was entitled to rely upon the proposition that proper induction training would have covered this topic and the defendants would not have been assisted by demonstrating that in fact it did or did not. As already noted, neither defendant called any evidence in that regard.
57 The second question is whether, had they been inducted, either Mr Stewart or the appellant would have had regard to such direction as they should have been given. As sometimes happens in trials where there is confusion as to the primary facts, questions which might with hindsight appear critical were not asked. So far as the questioning of Mr Stewart by the appellant is concerned, although he called Mr Stewart, and could have put such questions, he did not. (Whether Mr Stewart, who was also a defendant through his company, was in the appellant's camp is not apparent from the material before this Court.) Certainly neither counsel for Leighton nor Downview, each of whom had an interest in satisfying the Court that Mr Stewart, even if properly inducted, would have done just what he did, asked no questions on this topic. On the other hand, there was evidence that Mr Stewart asked the appellant to stand clear when the operation was about to commence and there is no reason to suppose that he would not have taken an additional and relatively simple step of tying down the pipe, had he been advised that this was necessary for safety reasons. Relevantly for present purposes, it is Mr Stewart's response which would have been important. Although Mr Still assisted in placing the end of the pipe over the waste container, he then left to go to level 12 to commence the cleaning out process. That left the appellant and Mr Stewart on level 4, of whom Mr Stewart was the senior person, the appellant being his offsider.
58 Although the evidential basis is sparse, the conclusion that the breach identified above contributed to the accident suffered by the appellant was an inference properly available on the evidence and one which should have been drawn.
59 Because her Honour found no breach of duty, she did not expressly address questions of causation. She did state that induction "was not effective to exclude this risk", referring to the failure to tie down the pipe: Judgment, p 38. She also stated that there was "no evidence that any induction would have addressed the industry specific Codes of Practice": Judgment, p 39. The first statement appears to have followed from the failure of Mr Still (who was inducted) to direct that the pipe be secured, a point dealt with above, and the second as to lack of evidence is partly true but does not mean that a relevant inference could not and should not properly have been drawn from what evidence there was.
60 Failure to give instructions in this regard should be seen as a cause contributing to the accident, for which Leighton was liable.
Liability of Downview
61 The liability of Downview is more readily established than that of Leighton. It was responsible for the concreting work on site, pursuant to its contract with Leighton. Part of that work involved pumping concrete from level 4 to level 12. It had, sometime earlier, obtained the services of Mr Still, who gave evidence that he had attended the site either three times or on four to six previous occasions over a period of two or three weeks prior to the date of Mr Fox's injury: Tcpt, 30/10/06, pp 47 and 58. He had been inducted some five weeks before the accident by someone from Leighton and held a green card. He was asked if he could recall what was involved in the site induction and replied (p 48):
"Just your average general site induction - tell you all the safety procedures and stuff like that."
62 Mr Still worked on the site with another man, Jason Cook. It appears that Mr Cook was responsible for him attending the site and being involved in the concrete pouring. Mr Still took instructions from Mr Raines of Downview. Although he described himself as self-employed (Tcpt, p 60) he did not appear to believe that he was contracting with Downview, but with a company known as Toro Constructions Pty Ltd, because he believed that that was the company which had engaged Mr Cook. The legal niceties of the relationship appear not to have preoccupied Mr Still at the time, although he stated his "employer" on the induction form as "Toro Constructions". He said he thought it was Toro Constructions because he thought Mr Cook worked for Toro Constructions and he was working with Mr Cook. Not surprisingly, this led to some questioning as to how he expected to be paid and by whom. He gave evidence that he had not been paid a cent for his work on the site and had not troubled to send an invoice to Mr Cook (Tcpt, p 62). He was asked (p 63) why he had not done so and replied:
"A. Because I was only there like for five days.
Q. You didn't send him an invoice for any of those five days work?
A. No, because the last day I was going to send him an invoice I was going to send him an invoice for the last four which was on that day, and got kicked off, and I sent him an invoice and apparently he's told me that he didn't get paid for it, the whole job, so.
Q. Then you did send him an invoice?
A. Yeah, this is like a month later.
Q. So you did send him an invoice?
A. Yeah.
Q. He didn't pay it?
A. No, because he said he didn't get paid by Downview and Downview said they didn't get paid."
63 Mr Cook did not give evidence, nor did anybody from Downview. In a letter written on 13 March 2003, the contents of which are set out at [26] above, Mr Raines claimed that he had rung Toro Constructions Pty Ltd his "pumping subcontractor", to inform Toro that a pour was to take place on 7 March. To whom Mr Raines spoke is not known, but it seems unlikely that it was anybody at the company Toro Constructions Pty Ltd. At least by the time of the trial, it was accepted that Toro Constructions had nothing to do with the work. It is possible that Mr Raines spoke to Mr Cook who, like Mr Still, was probably self-employed. Any contractual relationship between Downview and its pumping subcontractor, must have been based on telephone calls or Mr Raines could not have made the same mistake as Mr Still. The arrangements were extraordinarily haphazard. If, as Mr Raines asserted in the letter, he had no knowledge of who was pumping the concrete until after the pumping had already started on March 7, that can only have been the result of the disorganised manner in which Downview contracted with others to carry out its contractual responsibilities to Leighton. It clearly failed to comply with its obligation under cl 32.1 of the contract to provide written details to Leighton of persons that it proposed to engage to work on the site. In addition Downview undoubtedly failed to carry out its contractual responsibility to induct persons engaged to work on the site "as to particular procedures and requirements relevant to that work", as required by cl 32.1.
64 The broad principles concerning the liability of a contractor for negligent acts undertaken by its subcontractors, discussed above in relation to Leighton, apply with respect to Downview. Downview's case, apparently at trial and certainly on appeal, was largely limited to the proposition that it was not liable for any negligence of Mr Still or Mr Stewart. (It also asserted contributory negligence on the part of Mr Fox.)
65 The case for Downview was, in effect, that it had subcontracted the concrete pouring, including the pumping of the concrete, to a third party. With whom Downview had contracted apparently remained a matter of uncertainty for its counsel even as late as the hearing of the appeal, where he continued to assert that Downview had "a contract with Toro Constructions to do the work": Tcpt, 07/12/07, p 85. As indicated above, the evidence in support of that conclusion was a letter from Mr Raines to Leighton when the company was being excluded from the site, which arguably did no more than express an opinion held by Mr Raines as to the party with whom Downview had contracted. The only other evidence was the name Toro Constructions as the employer of Mr Cook, Mr Still and a third man, Chris Gelle, who were apparently inducted together on 3 February 2003, each induction form having been signed by one of their own number, namely Jason Cook, as the "employer/employers representative". There was no evidence as to the terms of any contract between Downview and a third party and it must be inferred, as a matter of probability, that the relationship was entirely casual and presumably required the third party to be present or to supply labour and equipment as required to undertake the concreting work required by Downview.
66 The manner in which the work was undertaken on 7 March 2003 was described by Mr Still in evidence set out at [28] above. As already noted, the pump truck and operators who had been used on prior occasions were not available on 7 March. It appears that the decision to pour on 7 March was either made belatedly or that Messrs Cook and Still were informed belatedly of the intention to pour on that day. Whether Downview knew of the difficulties caused by that arrangement is not known. However, it appears from Mr Still's evidence that he and Jason were treated by Downview as responsible for obtaining a truck and ensuring that the concrete which had been ordered by Downview, through Leighton, would be applied as required on level 12. Although he was the representative of Downview at the site, it is apparent from Mr Raines' letter that he took little direct interest in how the work was to be performed by Downview's subcontractor.
67 One difficulty for Downview in these circumstances was that, whilst they had quite precise and constraining obligations under their contract with Leighton, their failure to obtain similar conditions in a contract with the entity to which Downview subcontracted rendered Downview at risk of any departure from the obligations it had undertaken with Leighton. In the absence of any evidence from Mr Raines (or any other person holding a position with Downview) it must be accepted that Downview did not tell Mr Cook or Mr Still that: