Hallmark Construction Pty Ltd v Brett Harford; Copeland Building Services Pty Ltd v Hallmark Construction Pty Ltd; Hallmark Construction Pty Ltd v Harford Transport Pty Ltd

Contributory negligence

1. In its defence, Hallmark pleaded particulars of contributory negligence as, in substance, (i) delivering the goods at 6am whilst it was still dark; (ii) failing to check what was under the pallet before removing it, and (iii) failing to use a torch or other appropriate equipment to illuminate the area, including by looking through the slats on the pallet.
2. There was also a particular alleging that Hallmark had directed that deliveries were to take place between the hours of 7am and 4pm. The trial judge rejected the proposition that Mr Harford, Harford Transport, or Austral Masonry, had been advised by Hallmark or Copeland of such a requirement. [6] Further, the judge accepted that it was an established practice that deliveries would occur before 7am and that Mr Isaia had provided Mr Harford with his telephone number so that he could contact him prior to making a delivery. Mr Harford gave evidence that he did not ring Mr Isaia on this occasion because he had mislaid his number. He therefore drove onto the site, parked his truck with the lights on in the area where he expected to have to unload, and walked from there to the site office where he spoke with Mr Isaia.
3. The judge described what happened in the following terms: "[26] It was dark when Mr Harford stopped at this location. Ahead of his vehicle he could see flat ground immediately to the left of the roadway, forming the verge. About 20 m from the front of his truck he could see low steel mesh fencing erected at right angles to the road. In oral evidence Mr Harper referred to this as 'pool fencing'. He stopped where he did because he thought the blocks would be required in approximately this area. [27] Mr Harford had not phoned ahead to Mr Isaia because he had mislaid the piece of paper with his number on it. After stopping the vehicle Mr Harford left the headlights on, stepped down from the cab and walked across to the site office. He found Mr Isaia outside the office and asked, 'Where do you want them?' Mr Isaia looked over to where the truck was parked and said, 'Just put them … in front of your truck where you are'. Mr Harford walked back to where he had parked and 'scanned the area surrounding my truck'. He did so in order to ensure that there was space to unload all of the pallets on ground that was clear, level and solid so that the pallets would not tip over."
4. The judge noted that Mr Harford had observed the single unladen wooden pallet on the left hand side of the roadway and approximately one metre from the pool fencing. The judge also noted, from photographs, that there were three large steel plates lying on the right hand side of the road. Two were aligned with the roadway and the building work, and approximately two metres from the front alignment of the townhouses and on the same side of the road as the townhouses. A third steel plate could be seen on the right of the roadway lying at an angle of 45º to the building alignment and with one corner close to or in contact with the front of the townhouses. [7]
5. Mr Harford noted the steel plates, which he assumed covered openings providing access to a retention pit. With respect to the occurrence of the accident, the judge recorded his findings in the following terms: "[35] Mr Harford knew from experience that if one of the loaded pallets he was delivering were to be placed on top of the CHEP pallet it would be unstable. He therefore walked over to the CHEP pallet to move it out of the way. He stood with his back to the townhouses and lifted the nearest edge of the pallet to flip it over away from the road. As he raised the edge of the pallet and stepped forward to flip it Mr Harford dropped through the riser of the retention tank, the opening of which at ground surface level was concealed by the pallet. This was the riser at the north-west end of the tank, in the corner of it furthest away from the townhouses. The steel plate that Hallmark had placed over this riser about 12 months earlier had been removed. The pallet had been placed over the 900 mm x 900 mm opening. There was no barrier, marking, sign or other form of protection or warning around the top of the riser."
6. The judge accepted that Mr Harford was a dependable witness and clearly accepted his account of events as recorded in the judgment. [8]
7. With respect to the defence of contributory negligence, the judge identified the presently relevant particulars in the following terms: "(2) that he lifted the pallet without having first looked under it and observed the penetration below; (3) that he walked about the construction site in the dark without a torch, and (4) that he failed to ask a Copeland representative whether he was permitted to move the pallet before doing so." The judge then addressed those issues in the following passages: "[87] As to (2), I find that Mr Harford did not manifest any lack of reasonable care for his own safety in lifting the pallet without first having looked under it. A pallet in this location, near to an active building site, would have the appearance of having been discarded after a previous delivery of other building materials. There was nothing to suggest that it was a cover for anything. There was, in the circumstances described by Mr Harford, no prompt that should have put him on enquiry as to a possible danger underneath the pallet. [88] As to (3), Mr Harford had the headlights of his truck shining directly onto the area where he intended to unload. He assessed the suitability of the area for placement of the load prior to walking over to the pallet to move it. He considered this source of light adequate to enable him to undertake safely the very limited task of surveying the unloading area and clearing the pallet from it. I accept that he had sufficient light. There was no want of reasonable care in this. [89] As to (4), upon the considerations already referred to in [87] above, there was no reason why Mr Harford should have felt the need to ask Copeland, that is, Mr Isaia, whether he could move the pallet. Mr Isaia had just directed him to unload in this location and the pallet appeared to be a piece of building site refuse that was in the way. It was not of a character to prompt Mr Harford to seek permission. [90] Applying the standard of care for contributory negligence prescribed by s 5R of the Civil Liability Act, I do not consider that Mr Harford failed to take reasonable care for his own safety in any respect or in any degree."

(a) contributory negligence

1. Hallmark submitted that the judge had not undertaken an assessment of the material particulars in accordance with the legal principles and standard set out in the Civil Liability Act 2002 (NSW). Had he done so, it must have been concluded, as this Court should conclude, that Mr Harford contributed to his own injury.
2. Section 5R of the Civil Liability Act, to which the judge referred, states: 5R Standard of contributory negligence (1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. (2) For that purpose: (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.
3. There are four broad issues to be considered in applying this provision. First, in order to identify "the risk of that harm", it is necessary to have regard to the harm in fact suffered in the accident. Because the relevant precautions will depend to a significant extent on the nature of the risk, it is not sufficient to identify the risk as the possibility of personal injury. However, that was the approach proposed by Hallmark, in submitting that there could have been broken bricks, broken glass or other debris concealed under the pallet, on which Mr Harford could have tripped and injured himself. That identified (i) a risk of a different quality of harm from that in fact suffered, and (ii) a different mechanism of injury. By falling into a 4 metre deep concrete pit, Mr Harford suffered a broken pelvis, broken ribs and spinal injuries. It is the risk of "that harm" which must be assessed.
4. Secondly, the application of the general principles relevant to establishing negligence, identified in ss 5B and 5C of the Civil Liability Act, are not easily transposed into a consideration of contributory "negligence", itself something of a misnomer. In some cases, such as driving a motor vehicle, the transposition may seem easy in a practical sense, because the standard of reasonable care will operate equally with respect to the driver's own safety and the safety of other road users. There is no ready transposition in the present case with respect to the pallet because, in relation to the person who placed it there, the question is whether, knowing of the opening underneath, it was a sufficient warning or obstacle to prevent others falling in. The question with respect to the injured person is whether he should have realised that it covered an opening in the ground, and had not simply been discarded, to be collected in due course and removed.
5. Thirdly, it is theoretically possible that questions could arise as to the principles of causal connection between the conduct of the injured person and the harm suffered. As noted by Leeming and Payne JJA in Coles Supermarkets Australia Pty Ltd v Bridge, [9] it is not entirely clear whether (i) s 5R engages the test of causation set out in s 5D of the Civil Liability Act, or (ii) the question is to be addressed by asking if the claimant has suffered damage "as the result partly of the claimant's failure to take reasonable care", in accordance with s 9 of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW), or (iii) there is some different common law test to be applied. That issue did not require determination in Bridge and it does not require determination in this case, for reasons noted below.
6. Fourthly, s 5R(2) requires that the court have regard to the care taken by "a reasonable person in the position of" the claimant, knowing what the claimant knew or ought to have known at the time: s 5R(2). This has been referred to as a qualified objective test, [10] although that terminology does not elucidate the statutory language, merely being a paraphrase. However, Hallmark's complaint in principle was that the trial judge adopted a subjective approach, placing too much weight on what was known or not known by Mr Harford, without sufficiently considering what he, as a reasonable person, ought to have known and done.
7. It may be said that, in considering the question of illumination in [88], the judge focused on Mr Harford's assessment of the situation. He did not expressly consider what Mr Harford ought to have done, nor, in particular, the submission on behalf of Hallmark that he ought to have used a torch to look down through the pallet to see what was underneath. However, reading the whole of the passage, it is clear that the judge did more than say that Mr Harford did not perceive any risk in lifting the pallet in order to remove it from the area; he found that there was no circumstance which would have alerted a reasonable person in Mr Harford's shoes to the need to take such a step.
8. Hallmark's submissions emphasised that, as Mr Harford knew, (i) it was a large, complex building site; (ii) the weather had been inclement and the ground was wet and muddy; (iii) it was dark and there was no artificial light source; (iv) the building site was dynamic and the work was at different stages from time to time and from when he had last attended; (v) building sites are always dangerous; (vi) there were dangerous holes in the vicinity, and (vii) the pallet was an unsuitable surface on which to place a load of bricks because it was, or might be, unstable, and he knew that because he was unaware of what was beneath the pallet.
9. Although all these statements, in isolation, were true, the only one which provided a potential reason for Mr Harford to be concerned was his accurate belief that there was a retention pit in the area. Knowing that, he also knew (i) that it was likely to have a penetration or opening to allow access during building works, (ii) that such openings were almost invariably covered with heavy steel plates and, at least commonly, with some other indication of danger such as the area being taped off and (iii) his belief that there was a retention pit depended in part on his observation of the heavy steel plates. His knowledge of building sites did not alert him to the possibility that such a danger might be concealed under a wooden pallet. No basis was provided to establish that a reasonable person knowing these circumstances would have taken one of the precautions posited by Hallmark. In my view the trial judge did not err in dismissing the defence of contributory negligence.

(b) liability of Harford Transport

1. In dealing with this question, the trial judge recognised that Harford Transport had "an obligation to take reasonable steps to provide safe plant and equipment and a safe system of work." [11] He further noted that: "The person within Harford Transport to whom it would fall to devise and implement safe working conditions generally was Mr Harford, in his capacity as the principal actor and decision maker of the business." He referred to the reasoning of the High Court in Andar Transport Pty Ltd v Brambles Ltd, [12] in a passage dealing with the consequences of a corporate structure involving a family company with a sole employee who is also a director.
2. The judge then noted that a reasonable employer would foresee that Mr Harford's work would involve visits to construction sites and a risk of injury from any danger that might be present on a site to which deliveries might be made. He stated that "[r]ecognition of that risk informs the scope of what was required in order to provide a safe system of work." [13]
3. He then set out, in a passage to which counsel for Copeland took particular objection, the elements of what would be involved: "[94] Reasonable care in discharge of the employer's duty required that on any site Mr Harford should follow a system of examining with reasonable care any area over which he would have to pass on foot or in which he would be required to work. A safe system would require that he should proceed with caution, recognising that any building site he attended would not be completely familiar to him, would potentially contain hazards arising from its unfinished state and may be subject to change from one delivery to the next. A safe system would also require that Mr Harford should seek direction from some person in apparent authority on the site as to where to place his load and that he should observe any cautions issued by such a person. If an early morning delivery should require Mr Harford to move about a site in darkness, a safe system would require that he exercise particular caution in unlit areas and that he should ensure that he had adequate lighting for any action he was required to take in connection with unloading." The objection to this statement was that it identified in terms what Mr Harford should do; it was not expressed as a statement of the obligations of the employer, Harford Transport.
4. Taken in isolation, that criticism lacks substance. The whole paragraph is expressed in terms of what a safe system would require; that is, what a system formulated by an employer would require of Mr Harford. That was the relevant exercise.
5. Hallmark took issue with the following passage in the judge's reasons: "[95] In my view Harford Transport's duty of care to provide a safe system was fully discharged. Mr Harford adopted and followed a system that satisfied all the requirements set out in the preceding paragraph. It is somewhat artificial to assess the actions of Mr Harford, in his capacity as principal actor in the business of Harford Transport, against the standard of reasonable care in providing a safe system of work for himself as the company's sole employee. Andar Transport Pty Ltd v Brambles Ltd requires that that analysis be undertaken. In the present case it is little, if at all, different in substance from the analysis of Mr Harford's care for his own safety, which I have already undertaken and upon which I have rejected Hallmark's case on contributory negligence. Hallmark's particulars of contributory negligence by Mr Harford overlap considerably with its particulars of negligence by his employer. I have addressed the area of overlap under the preceding heading."
6. This passage is more troubling because it equates what Mr Harford did in taking care for his own safety with the steps which should have been taken by his employer in devising a safe system of work. While it may be artificial to distinguish "the actions of Mr Harford" in each role, there are two problems with that approach. First, it is by no means clear on the facts that Mr Harford undertook such dual activities: the better view is that he simply went about his business as a truck driver, there being no evidence as to separate steps taken by him as a director of the company. Secondly, there is a danger of assessing the company's obligation through the lens of Mr Harford's conduct. The preferable course is to stand back from the known events and ask, in a prospective, objective way, what a reasonable employer would have done in the circumstances. That is the exercise required by s 5B of the Civil Liability Act and is the exercise generally undertaken in assessing the negligence of a defendant. The defendant's conduct cannot simply be identified as providing the standard against which the same conduct is to be assessed because the employer is the alter ego of the worker.
7. The exercise undertaken at [94] appears to comply with the correct approach; however, statements in [95] relying upon the reasoning with respect to contributory negligence undermine that appearance. The preferable course is to accept that there is substance in Hallmark's submission and for this Court to undertake the assessment of the case against Harford Transport. In undertaking that task, it is appropriate to ask whether there was error in the reasoning set out by the trial judge at [94]. If there were not, the claim against Harford Transport should be rejected, not because Mr Harford adopted and followed a system that satisfied the requirements, but because the requirements satisfied the duty imposed on the employer.
8. The statement of a safe system is expressed at a reasonably high level of generality. In some circumstances, that might be problematic. There are two reasons for thinking that it is satisfactory in the present case. First, this was not a case of regular and repetitious work which required a standard approach on each occasion. This point may be illustrated by the following passage from Andar Transport: "[54] Andar's submissions in particular focused upon whether or not it had breached its duty to provide a 'safe system of work' to Mr Wail. In English v Wilsons and Clyde Coal Co Ltd, [14] Lord Aitchison described a "system of work" in the following terms: '[B]roadly stated, the distinction is between the general and the particular, between the practice and method adopted in carrying on the master's business of which the master is presumed to be aware and the insufficiency of which he can guard against, and isolated or day to day acts of the servant of which the master is not presumed to be aware and which he cannot guard against; in short, it is the distinction between what is permanent or continuous on the one hand and what is merely casual and emerges in the day's work on the other hand.' Similarly, it has been said that '[a] system of working normally implies that the work consists of a series of similar or somewhat similar operations'. [15] The loading and unloading of linen trolleys from a delivery truck, pursuant to a contractual arrangement requiring regular repetition of that activity, clearly falls within these descriptions. As a result, Andar was obliged to take reasonable steps to ensure that the loading and unloading was carried out in a safe manner. That obligation in turn required Andar to develop, and maintain, a methodology or system which would achieve that result. As a sub-set of the general common law duty of care outlined earlier in these reasons, the obligation is non-delegable. This Court's decision in Nicol demonstrates that an employer may be liable for breach of the duty notwithstanding that the system of work was devised, in part, by an employee who was subsequently injured as a result of carrying out the system. [16] "
9. No doubt there were aspects of Mr Harford's work which were regular and repetitious, including the loading and unloading of the trailer. That element may have required a direction that Mr Harford ensure that the ground onto which pallets were unloaded was reasonably level and free from debris. However, identifying a prospective statement of the duty, there is no reason to identify specific questions about how that task should be undertaken, given the variety of sites and circumstances which might be encountered.
10. The last point leads to the second consideration, which is the difficulty of prescribing in advance a safe system of work for a truck driver who is making deliveries to or obtaining material from a variety of sites across a large area. Even conditions and activities being undertaken on a particular site will vary from time to time, as Hallmark noted. Where an employer does not control the site at which the work is to be undertaken, different standards will apply as between work undertaken at a single site and work undertaken at different sites every day, as with some kinds of delivery drivers.
11. Taking these factors into account, it is convenient to return to Hallmark's submissions in this Court to identify what precisely was said to be missing from the analysis of the trial judge.
12. The issue raised in the notice of appeal appeared to have two elements, first that there was no system of work devised by the company and, secondly, that such system as there was omitted two requirements identified in the following terms: "i. failing to consider, adequately or at all, Hallmark's submission that Harford Transport failed to provide to Mr Harford, and failed to require him to carefully use, a torch or other system of portable illumination when working on a darkened building site, or otherwise to keep a proper lookout for his safety; ii. failing to consider, adequately or at all, Hallmark's submission that Harford Transport Pty Ltd failed to instruct Mr Harford, and failed to see that any such instruction was executed, to take directions from Copeland with respect to activities carried on its building site."
13. As explained in oral submissions, the complaint was that Mr Harford did not use a torch to look through the pallet. (There was evidence that the slats on the pallet had a gap of 20mm between them.) However the phrase "a torch or other system of portable illumination" demonstrated the high level of generality at which any such work system had to be expressed. The proposal for using a torch to look through the slats of the pallet depended on the identification of a risk in moving a pallet on a building site. If there was no basis to say that Mr Harford ought to have anticipated a risk that the pallet was concealing a hole in the ground, this proposed direction lacked practical utility. Further, one might ask what kind of torch or illuminator? The truck had headlights which Mr Harford left on; it was known that Mr Harford had a mobile phone, which he used on occasion to call Mr Isaia; most mobile phones have torches and probably did in 2013. In any event, these issues were not explored at the trial and need not be taken further. It has not been shown that a direction of the kind proposed would have been of utility.
14. The second direction which it is said the employer should have given was that Mr Harford should take direction from Copeland with respect to activities carried out on the building site. That indeed would have been a sensible direction, but it appears to be entirely beside the point. Mr Harford approached Mr Isaia for directions before returning to unload his truck. He received directions. Again if the company failed to tell Mr Harford to do that, it was of no practical relevance to the case.
15. No other proposed directions were articulated in submissions. Accordingly, no breach of duty having a causal connection with the injury suffered has been shown on the part of Harford Transport. Hallmark's claim against Harford Transport must be dismissed.

(a) basis of liability

1. Copeland had no contractual relationship with Harford or Harford Transport. Mr Harford was delivering supplies ordered by Copeland from Austral Masonry. (There was no finding, and apparently no evidence, as to whether Austral Masonry contracted with Harford Transport or Mr Harford to make deliveries to its customers; it is likely, however, that the contract was with Harford Transport.)
2. The possible bases of liability of Copeland were expressed in different terms in the course of the appeal. First, and consistently with Hallmark's cross-claim, Copeland was described as "an occupier of an area of the Centenary Park site in the vicinity of the area in which Copeland was carrying out brick and block laying work". The area was said to include the retention pit and the opening through which Mr Harford fell. The concept of occupation was identified, in part, by reference to the contract with Hallmark, describing Copeland as exercising "dominion and control" over the identified area. [17]
3. Secondly, it was submitted that Mr Isaia was Copeland's "agent" on the site and Copeland was therefore directly liable for his acts or omissions in exercise of Copeland's duty of care to Mr Harford. This characterisation appears to have been adopted, at least in part, to avoid the possible consequence that, if Mr Isaia were an employee of ANM, ANM was vicariously liable for his negligent acts or omissions; as only one party can be vicariously liable for another's conduct, Copeland would not be vicariously liable. To that extent, Hallmark's case against Copeland was by way of an alternative to its claim against ANM.
4. Thirdly, it was submitted that Copeland was vicariously liable for the negligent acts of Mr Isaia. The negligence, on the findings of the trial judge, was Mr Isaia's direction that Mr Harford should unload his truck where he was parked, without warning him of the unprotected penetration into the underlying retention pit.
5. In principle, the appropriate course is to consider first whether there was negligence on the part of Mr Isaia, who was not a party to the proceedings and who did not give evidence, and then determine which party is liable for his negligence. At the same time, it is convenient to consider whether Copeland had some direct liability to Mr Harford, not dependent on the conduct of Mr Isaia. This approach is convenient because it allows the establishment of a factual basis of liability before considering the difficult questions as to the legal classification of Copeland's potential liability.
6. Before turning to that matter, it should be noted that at trial Hallmark's primary case in its cross-claim against Copeland was that Copeland's employees and agents had removed the steel plate which was over the opening into which Mr Harford fell and had failed to replace it or provide warnings or barriers around the opening. The inference available on the evidence was that the plate had been moved, probably mechanically, in order to allow access over the muddy ground to part of the building under construction. That inference could have been drawn from the position of a steel plate, which was not one of the two parallel to the roadway, which, the judge inferred, were over openings to the retention pit. Thus, the plate which had been removed may have been that which was diagonally across the ground between the roadway and the building. The inference Hallmark sought was that Copeland's workers would have taken that step and thereby created the risk which crystallised in Mr Harford's injuries.
7. The trial judge was satisfied that the plate was in fact moved between 3.30pm on Tuesday afternoon and 6am on Friday morning May 24. [18] In practical terms it was likely that it was moved on Thursday, being the day before the accident. However, beyond that temporal finding, the judge was not satisfied that any finding could be made as to who moved the plate and accordingly Copeland was not liable on that basis. That conclusion has not been challenged on the appeal.

(b) Mr Isaia's direction to Mr Harford

1. The exchange between Mr Harford and Mr Isaia is set out at [20] above. The direction to Mr Harford to unload his truck in the area where he had parked, without any warning as to the dangerous penetration into the retention tank involved a significant risk of serious injury. Mr Isaia did not give evidence and was not a party to the proceedings. Nevertheless, it was rightly inferred from his supervisory role and knowledge of the construction work that he knew of the retention pit and the potential risks of harm if the three penetrations were not properly identified and covered. He took no steps to check the area was safe before giving the direction to Mr Harford. The finding of negligence made by the trial judge was expressed in the following terms: "[124] … He worked on the site daily and was familiar with it whereas Mr Harford was a fleeting visitor. It was still dark when Mr Isaia gave his direction to unload on the verge. The designated area was made hazardous by the penetration of which Mr Isaia knew or ought to have known. Reasonable care in these circumstances required that Mr Isaia should have warned Mr Harford to stay away from the penetration, should have accompanied him to ensure that its location was apparent and, if it was not, should have pointed it out and directed Mr Harford to keep clear. By simply telling Mr Harford to unload his truck in front of where it was parked Mr Isaia negligently breached this duty. …"
2. With respect to knowledge of the pit and the penetration, the judge made the following findings: "[109] The inference that Mr Isaia knew this penetration was located in the verge of the road opposite the townhouses and the conclusion that his knowledge may be imputed to Copeland can be drawn with increased confidence because Mr Isaia was not called. [19] There is ample evidence in the case that Mr Isaia was available to give evidence. In the circumstances it would be expected that Copeland would have called him if his evidence would assist Copeland's case in these respects."
3. The second issue relevant to the risk of injury was the protection available through covering the penetration with a steel plate, a step which had been taken before the cover was moved. The judge's findings in this respect were as follows: "[111] For the reasons given at [57] above the risk of injury from this penetration was high and the extent of injury that could be sustained was significant. As Copeland either knew of the penetration or ought to have known, it came under a duty to take reasonable precautions for the protection of Mr Harford. From at latest the day before the delivery was due, Copeland should have placed star pickets and tape around the area that was, or had been, covered by the steel plate. In any event Copeland should have warned Mr Harford of the location at which it knew or ought to have known there was a penetration or cavity. It should have had someone accompany him to the unloading area to ensure that he did not approach the area of the penetration. [112] These precautions were required whether the steel plate had still been in place when the unloading area was last inspected by someone on behalf of Copeland or whether it had been replaced by the pallet. At the very least, if Mr Isaia did not know the condition of the verge in enough detail to be able to warn Mr Harford about the penetration, reasonable care on the part of Copeland required that Mr Isaia should go with Mr Harford from the site office to check the area where the load was to be placed."
4. The reference in the trial judgment at [111] to the "reasons given at [57]" drew in an assessment of the relevant elements of breach identified in s 5B of the Civil Liability Act. As noted above, in stating the relevant issues for consideration, Copeland's challenge to these findings was oblique. The challenge focused upon an assumption that "[t]he steel plate had been removed by an unknown third party", an act described as "wrongful." [20] However, the reasoning of the primary judge set out above, otherwise unchallenged, did not turn upon whether or not the plate had been moved. Indeed, Copeland accepted that a significant element of the finding of breach turned on the nature of the duty imposed on Copeland, which was described in submissions as the heightened duty imposed on an occupier of premises.

(c) breach of duty owed by Copeland

1. The trial judge found that Copeland was a joint tortfeasor with Hallmark and apportioned responsibility to Mr Harford equally between the co-tortfeasors. In its submissions on appeal, Copeland accepted that the trial judge had found it to be liable both directly for a breach of duty owed by it to Mr Harford and vicariously, on the basis of Mr Isaia's negligence. By contrast, the notice of appeal, even when amended, treated the finding as to vicarious liability as a particular of the error in finding that Copeland owed Mr Harford a duty of care. Otherwise the finding of vicarious liability was not identified and addressed. In its written submissions, Copeland relied upon the fact that it had no contractual relationship with Mr Harford, Mr Harford being the employee of the party responsible for delivering building materials to the site on which Copeland was carrying out building work. The submissions also stated that Copeland "had no one on site" and had subcontracted all the physical tasks to an independent contractor, ANM.
2. In oral argument, counsel for Copeland submitted that the trial judge had held that "one independent corporate entity, and that's Copeland, it may be ANM, but Copeland, owed a duty of care to the employee of another corporate entity. … [T]hat's not impossible, but it does require special circumstances." [21] This statement also contained the seeds of confusion; what appears to have been intended was the unlikelihood of one corporate entity being liable for the acts of an employee of another entity. But it is trite law that the occupier of premises will owe a duty of care to a class of persons who may come on to those premises, whoever they may be. There was also some uncertainty as to whether the manner in which the judge dealt with Mr Isaia's status as an agent or representative of Copeland resulted in a finding of vicarious or direct liability on the part of Copeland.
3. In these circumstances the safest course is to address the reasoning of the trial judge in order to determine whether the conclusion that Copeland shared liability with Hallmark was erroneous.

(d) reasoning of trial judge

1. The trial judge found that Copeland was a joint occupier (with Hallmark) of that part of the site upon which it was constructing townhouses and of adjacent land, including that on the other side of the unformed roadway which was being used in part for the storage of building materials. Adopting the reasoning of Jacobs P in Kevan v Commissioner for Railways, [22] he found that the very fact that Copeland had the power to invite suppliers onto the land and deposit loads of material and equipment on that part of the land, demonstrated a sufficient measure of control to render it an occupier. [23] It followed that Copeland owed a duty of care to persons that came onto the site at its request, to take reasonable steps for their safety.
2. The judge also inferred that Copeland, through Mr Isaia, had knowledge of the existence of the retention tank and of the penetrations, including the penetration on the verge opposite the townhouses, into which Mr Harford fell. [24]
3. None of these factual findings was challenged on the appeal. In those circumstances, there is no apparent basis for challenging the finding that Copeland owed Mr Harford a duty of care to take reasonable steps against the risk of harm from falling through an unprotected penetration.

(e) content of duty

1. Copeland's amended notice of appeal alleged error on the part of the trial judge in "formulating the content" of the duty of care, stating that the judge had effectively imposed the obligation on Copeland to provide Mr Harford with a safe place and system of work, a duty equivalent to that owed to one's own employee. It further stated that the content of the duty was expressed in terms "which were unrealistic or formulated purely to avoid the harm which befell Mr Harford". It was unrealistic because it required that Copeland place star pickets and tapes around the area in which the accident occurred and that it send someone to accompany Mr Harford to the area where the load was to be placed. There was then a third ground which alleged (without particulars) error in finding that a breach of the duty owed to Mr Harford caused his injury.
2. In submissions it became clear that the gravamen of Copeland's complaint was twofold, namely that it was wrong (i) to infer that Copeland knew that the penetration was uncovered and unprotected, and (ii) to hold, in effect, that Copeland was liable for the misconduct of whomever had removed the metal cover over the penetration, referred to by Copeland as "unknown third parties". Copeland contended that the requirement for star pickets and tape was unnecessary if the penetration was covered by the steel plate; if it were not so covered, such a precaution may have been appropriate, but there was no evidence that Copeland knew it was not covered.
3. As noted above with respect to Mr Isaia's conduct, Copeland mischaracterised the judge's findings. The trial judge was required to determine what precautions a reasonable person in Copeland's position would have taken against the relevant risk of harm, pursuant to the provisions of s 5B of the Civil Liability Act. That was a question of judgment which cannot be reviewed on appeal without careful consideration of the evidence and submissions at trial; this exercise was not undertaken. On one view it is difficult to comprehend that workers at the site removed such an obvious protection against injury. Yet someone clearly did so and, on the balance of probabilities, it must have been someone with access either to appropriate lifting machinery or a number of fellow workers. The sheet was not stolen; it was moved a number of metres, probably for improving access to part of the area where building was taking place. If the removal of such a plate was a relatively easy and attractive course, despite metal sheets being readily available on site, the inference that further protective steps should have been taken was readily open to the trial judge.
4. The same analysis applies to the alternative steps proposed by the trial judge, namely that Mr Isaia should have accompanied Mr Harford to the area where the load was to be placed, in circumstances where Mr Isaia knew, or ought to have known, of the existence of the penetration in the area he had indicated as appropriate for unloading. No error was shown in determining that such a step was reasonable and therefore an element of the content of Copeland's duty of care in the circumstances.

(f) direct liability through agency

1. There remains a question as to whether the foregoing analysis depends upon Copeland having contracted for its supervision of the building site to be undertaken by Mr Isaia, or perhaps more accurately Mr Isaia's employer. In finding direct liability, the trial judge rejected the proposition that he was imposing a vicarious liability on Copeland for the acts of Mr Isaia, whom he described as Copeland's "agent." [25]
2. The judge accepted that from 27 February 2013 (a date some three months before the accident occurred) Mr Isaia ceased to be an employee of Copeland and became an employee of ANM. [26] The judge's reasoning continued: "[116] Copeland could only act in the above essential respects through human agency. Mr Isaia fulfilled these tasks for Copeland every time Mr Harford made an Austral delivery. Up to 27 February 2013 while Mr Isaia was an employee of Copeland he had the company's authority to receive the deliveries by virtue of his employment. Mr Isaia's conduct with respect to receiving consignments of blocks continued unaltered after 27 February 2013 up to 24 May 2013. As he was not an employee from 27 February Copeland's manifest acceptance of Mr Isaia continuing to act in this way supports an inference, which I draw, that Copeland implicitly conferred upon him authority to represent it in the receipt of the blocks. It was not necessary to Copeland's purposes that Mr Isaia should have authority to bind it contractually. His authority did not extend so far. But he was authorised to give directions to the delivery driver and to provide an effective receipt for the goods."
3. In support of this reasoning, the judge relied upon the approach adopted by the High Court in Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Company of Australia Ltd, [27] a case in which an assurance company was found liable for slanders uttered by a canvasser appointed as an agent to solicit business for it. The agent was not an employee, but had authority to bind his principal, so that his acts in the course of undertaking his work as an agent were to be treated as the acts of the principal. [28]
4. It is undoubtedly true, as the judge noted, that a corporation such as Copeland can only act through human agency. It is therefore necessary, as explained by Lord Hoffmann in Meridian Global Funds Management Asia Ltd v Securities Commission, [29] to have a principle of attribution by which to determine whose acts (and knowledge) are the acts (and knowledge) of the corporation. However, an individual entrepreneur will often act through other human agents. In each case the question will be whether that person's acts or knowledge are to be attributed to the principal, with a particular legal consequence. To describe Mr Isaia as Copeland's "agent", or as acting with Copeland's authority, will not sufficiently answer the question. It is also necessary to identify the legal relationship under which authority is conferred and acts are done.
5. Generally speaking, liability in tort is confined to cases where the relationship is one of employment and the acts are done in the course of the employment. As explained in Sweeney v Boylan Nominees Pty Ltd, [30] CML did not overturn that general principle. Rather CML identified an exception where the independent contractor had authority to bind the principal contractually, which, as the trial judge noted, Mr Isaia did not have.
6. The trial judge was conscious of the discussion in Sweeney v Boylan where the joint reasons described CML as establishing that "if an independent contractor is engaged to solicit the bringing about of legal relationships between the principal who engages the contractor and the third parties, the principal will be held liable for slanders uttered to persuade the third party to make an agreement with the principal." The High Court described such a person as "the principal's agent (properly so called)". That language, however, casts a significant doubt over the application of CML in the present circumstances. That application cannot survive in light of the reasoning of this Court in Day v The Ocean Beach Hotel Shellharbour Pty Ltd, [31] where the Court rejected the proposition that a security guard at a hotel was the "agent" of the hotelier, so as to make the latter vicariously liable for the tortious conduct of the former. In discussing the powers conferred on an "authorised person" in respect of licensed premises, pursuant to s 77 of the Liquor Act 2007 (NSW), which term included "a licensee, an employee or agent of a licensee or a police officer", Leeming JA stated: "[17] Nor was Mr James acting as the agent of the Hotel or Ms Elliott-Cosmos in the requisite sense, so as to create vicarious liability. It is true that he was an 'agent' within the meaning of s 77, and thus authorised by s 77(2) to withdraw the otherwise general permission extended to the public and by s 77(5) to use reasonable force to turn her out. But it does not follow that he was an 'agent' in the sense used in CML. Dixon J made it clear in CML that Mr Ridley was liable, although he was an independent contractor, only because he was a 'true agent' for the purpose of soliciting insurance proposals and taking deposits: at 50. That was why Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ insisted in Sweeney at [22] that the conclusion in CML: 'depends directly upon the identification of the independent contractor as the principal's agent (properly so called) and the recognition that the conduct of which complaint is made was conduct undertaken in the course of, and for the purpose of, executing that agency.' (emphasis added) [18] Mr James undoubtedly exceeded the statutory power conferred upon him by s 77. But even if he were an 'agent' within the meaning of that section, it does not follow that he was a 'true agent', to use Dixon J's language in CML, or an agent 'properly so called', to use the language in Sweeney above - that is to say, a person with authority to bind his principal. It is always dangerous unthinkingly to translate words deployed in one context to another. It is particularly dangerous where the word used to describe the person in both contexts is 'agent', for, as Lord Herschell said, '[n]o word is more commonly and constantly abused than the word 'agent'': Kennedy v De Trafford [1897] AC 180 at 188. That is precisely the force of the High Court's criticism of loose language of agency in Sweeney at [13], [19] and [29]." The judge's reliance on "direct" liability cannot stand.

(g) vicarious liability for Mr Isaia's breach of duty - findings at trial

1. The trial judge separately held that Copeland was vicariously liable "for the tort of Mr Isaia." [32] This must be treated as an alternative to the finding of direct liability. Mr Isaia's duty of care was identified in the following terms: "[124] … The designated area was made hazardous by the penetration of which Mr Isaia knew or ought to have known. Reasonable care in these circumstances required that Mr Isaia should have warned Mr Harford to stay away from the penetration, should have accompanied him to ensure that its location was apparent and, if it was not, should have pointed it out and directed Mr Harford to keep clear. By simply telling Mr Harford to unload his truck in front of where it was parked Mr Isaia negligently breached this duty. In circumstances where Mr Isaia, although not employed by Copeland was 'authorised to speak, and did in fact speak' with the voice of the company, the CML case is also authority for holding Copeland vicariously liable for the personal tort of Mr Isaia, committed by him in the course of acting as the on-site representative of Copeland."
2. At trial, Hallmark had joined the insurers of ANM by way of cross-claim, claiming contribution on the basis of ANM's vicarious liability for the breach of duty by its employee, Mr Isaia. On appeal, Hallmark adopted the position that either Copeland or ANM was vicariously liable for Mr Isaia's negligence. Copeland submitted on the appeal that only ANM was vicariously liable for any negligence on the part of Mr Isaia.
3. The trial judge accepted that Mr Isaia was employed by ANM from 27 February 2013, and was not an employee of Copeland. [33] However, he did not accept Hallmark's submissions that ANM was a subcontractor, responsible for carrying out Copeland's block laying work. [34] That finding was not challenged. Rather, the trial judge had held that Copeland used ANM's employees under a labour hire arrangement, although the judge did not use that language. He also accepted that, as there was no legal basis for a finding of dual vicarious liability, because Copeland controlled Mr Isaia's acts and was vicariously liable for his negligence, ANM could not be vicariously liable. He followed the reasoning of Leeming JA in Day v Ocean Beach Hotel that Australian law did not recognise dual vicarious liability where two different persons had legal control over a tortfeasor. [35]
4. Copeland challenged the final conclusion as an erroneous inversion of the reasoning in Day. Once it was accepted, Copeland submitted, that Mr Isaia was an employee of ANM, ANM was vicariously liable for harm resulting from negligent conduct in the course of his employment and, there being no possibility of dual vicarious liability, Copeland could not be so liable.

(h) vicarious liability - Mr Isaia's employer

1. Although there is force in the criticism raised by Copeland of the reasoning of the trial judge in two respects, namely the reliance on the concept of agency and representation derived from CML and inverting the reasoning with respect to dual vicarious liability in Day, on the relevant findings of fact, the conclusion reached by the trial judge was, nevertheless, correct.
2. The key to this conclusion lies in a brief passage in the judge's reasoning stating that Mr Isaia was "not an independent contractor to Copeland" but rather was "a seconded employee of another company." [36] This legal distinction, available to determine liability in tort, turned on a factual analysis and was not governed by the finding that from 27 February 2013 Mr Isaia was "employed" by ANM, not Copeland. [37]
3. The need to consider the practical reality of the relationship between a negligent worker and his or her principal, which may not reflect the legal relationship identified for other purposes, has a significant history. As noted by Gibbs CJ in Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd: [38] "Where the services of the servant of one employer are temporarily used by another, both employers will not be liable; prima facie the liability will usually remain with the general employer who may, however, 'show, if he can, that he has for a particular purpose or on a particular occasion temporarily transferred the services of one of his general servants to another party so as to constitute him pro hac vice the servant of that other party with consequent liability for his negligent acts': Mersey Docks and Harbour Board v Coggins & Griffith (Liverpool), Ltd. [39] "
4. Mersey Docks let cranes on hire to stevedores for the purpose of loading and unloading vessels as part of the Board's business. A driver was provided with the crane. The contract of hire sought to make the stevedore liable for any damage caused in the use of the crane. The contract, however, was not treated as determinative. The "general employer" (the Board) was unable to prove that the driver had been transferred temporarily to the services of the stevedores because the stevedores had no practical control over how the driver operated the crane, only giving instructions as to what was to be unloaded and as to where it was to be put.
5. This case was very different from Mersey Docks, which predated the now common practice of "labour hire" businesses, the primary function of which is to employ staff to work for other businesses, which often have fluctuating needs for labour. There was no evidence of any relationship between ANM and Mr Isaia other than the existence of a contract of employment. Mr Isaia had worked for Copeland for a significant period of time before his employment was transferred to ANM. Nothing changed as to the role he played or the manner in which he undertook his work. So far as the evidence revealed, he remained subject to direction and control by Copeland and not ANM for all practical purposes. There was no relevant sense in which his position in Copeland's workforce was "temporary"; it was as permanent as was his status prior to employment by ANM. Although it may be accepted that ANM had the power to terminate his contract of employment, there was no evidence that if it had done so in circumstances where Copeland wished him to continue to carry out his role, Copeland would not have made other arrangements to ensure that he stayed as part of its workforce.
6. The importance of having regard to all the circumstances of the case is clear from the reasoning of the High Court in Hollis v Vabu Pty Ltd. [40] The question in that case was whether a courier business which engaged individuals to deliver articles by bicycle was vicariously liable for the negligent act of an individual bicycle courier. The majority held that the company was vicariously liable. The joint reasons stated: [41] "[46] The matters of policy which Callinan J mentions in his reasons might be significant in evidentiary circumstances which differed from those of this case, and which might disclose a different relationship between the parties in respect of whom vicarious liability is postulated. However, considerations respecting economic independence and freedom of contract are not, with respect, determinative of the legal character of the relationship between the bicycle courier and Vabu as disclosed by the evidence. [47] In classifying the bicycle couriers as independent contractors, the Court of Appeal fell into error in making too much of the circumstances that the bicycle couriers owned their own bicycles, bore the expenses of running them and supplied many of their own accessories. Viewed as a practical matter, the bicycle couriers were not running their own business or enterprise, nor did they have independence in the conduct of their operations. A different conclusion might, for example, be appropriate where the investment in capital equipment was more significant, and greater skill and training were required to operate it. The case does not deal with situations of that character. The concern here is with the bicycle couriers engaged on Vabu's business. A consideration of the nature of their engagement, as evidenced by the documents to which reference has been made and by the work practices imposed by Vabu, indicates that they were employees."
7. The judgment took account of seven considerations which pointed to an employment relationship. These included (i) that the couriers were not providing skilled labour; (ii) the couriers had little control of the manner of performing their work, or the times at which it was to be performed; (iii) they were presented to the public wearing uniforms bearing the company's logo; (iv) apparently as an element of capacity to control, the importance of deterrence of future harm; (v) the company's control by superintendence of the financial situation of each courier; (vi) the relatively small capital outlay required of individual couriers and the provision of part of the equipment by the company, and (vii) the practical exercise of control over the work of each individual. [42]
8. As explained by Leeming JA in Day v Ocean Beach Hotel, the principle of vicarious liability under the general law may be articulated by reference to a "general rule", namely that an employer is vicariously liable for the negligence of its employee undertaken in the course of the employment, but not for the negligent conduct of an independent contractor. The "general rule" is better identified as a legal principle which may be, and is, subject to exceptions and qualifications. That was explained by Leeming JA in Day in the following terms: "[15] The nature of that 'general rule' and 'central conception' is reflected in three qualifications to it. First, the labels 'employer' and 'employee' and 'principal' and 'independent contractor' are merely that. The classification does not of itself determine the legal conclusion that there is or is not vicarious liability, or, as the joint judgment in Hollis put it at [36], those terms 'do not necessarily display their legal content purely by virtue of their semantic meaning'. To do so would be, to use Windeyer J's words in Brooks v Burns Philp Trustee Co Ltd (1969) 121 CLR 432 at 458, 'to invert the order of inquiry' and to 'allow linguistics to determine legal rights'. The real question is whether the 'fundamental concerns underlying the doctrine of vicarious liability', one of which is control, are established: Hollis at [45]. The second, which is a corollary of the first, is that a conclusion that a person is an 'employee' or 'independent contractor' for a particular purpose (such as payroll tax, or superannuation, or employment law) cannot determine whether the relationship is such as to engage the rules of vicarious liability (the different outcome in Vabu Pty Ltd v Federal Commissioner of Taxation (1996) 33 ATR 537 illustrates as much). The third is that there are exceptions to the 'general rule', which reflect the fundamental concerns underlying the doctrine. One is where an independent contractor is expressly authorised to commit the tortious conduct. Another is exemplified by [CML] where it was held that a principal was liable for the slanders uttered by an independent contractor, Mr Ridley, with authority on behalf of his principal to solicit proposals for insurance and collect deposits, even where the principal had expressly forbidden disparaging statements of the very nature made by him. Relevantly for the purposes of resolving this appeal, it is clear that the decision in CML is to be understood as was explained in Sweeney at [14]-[19]."
9. Aspects of the current factual circumstances which were not in dispute have been identified above. Further, the judge made a number of findings which were supportive of the conclusion that Mr Isaia was indeed a part of Copeland's workforce and under its control. He stated: "[127] … The employees at the site were not working at ANM's direction. ANM was not in a position to require them to take any step towards making the site safe for a delivery truck driver. With respect to such a matter the employees were at the direction of Copeland." Further, in directing Mr Harford where to unload his truck, the judge found that Mr Isaia did so "as the agent and representative of Copeland, not of ANM." [43]
10. Although the trial judge used the language of agency and representation, the circumstances by which Mr Isaia operated as Copeland's supervisor on the site demonstrated both the capacity and actuality of Copeland's conferral of authority on Mr Isaia and its control over the manner in which his work was undertaken.
11. It is true that the judge stated that Mr Isaia "was not an employee of Copeland in May 2013 but that he was employed by ANM" and added: [44] "It follows that Copeland cannot be held vicariously liable on the basis of a master and servant relationship for any tort committed by Mr Isaia." However, in describing Mr Isaia as a "seconded employee" the judge correctly recognised the true relationship. For some purposes the contract of employment to which he referred in the preceding passage may have been decisive; for the purposes of determining vicarious liability, it was not. Accordingly his conclusion that Copeland was vicariously liable for the negligence of Mr Isaia in the course of his employment was correct. It followed that, there being no capacity in the law to recognise dual vicarious liability, ANM was not vicariously liable.

Apportionment of liability

1. Accepting, as the trial judge did, that liability was to be apportioned solely between Hallmark and Copeland, he adopted a 50/50 apportionment. Hallmark challenged that apportionment, asserting that Copeland was in de facto control of the area in which the delivery was to take place; its representative superintended the work carried out on that part of the site and gave instructions to Mr Harford as to where to place his load. If Hallmark were not to be indemnified by Copeland, it submitted that a greater proportion of responsibility should be attributed to Copeland.
2. While such calculations are very much a matter of impression, Hallmark's submissions should be accepted. In apportioning liability, the judge dealt in one paragraph with the degree of the shortfall of each from the standard of reasonable care, and in another gave a comparison of the relative causative effect of the negligence of each. The primary basis for treating Hallmark as having an equal liability with Copeland was that Hallmark had permitted the placement of an unfixed steel cover over the penetration, which had been in place for a year by the time of the accident. That was considered an inadequate form of protection over such a lengthy period.
3. It is not clear that the judge's overall appreciation of the evidence or the manner in which the trial was run significantly affected his judgment in this respect. The conclusion that Hallmark was required to bear a significant degree of responsibility should be accepted and its application for an indemnity rejected. However, in my view the immediate level of control available to Copeland and the responsibility of Copeland for the presence of Mr Harford on site and in the vicinity of the unguarded penetration required a greater allocation of responsibility to it.
4. Giving weight to the considerations accepted by the trial judge, I would nevertheless vary the apportionment so as to achieve an allocation of 25% against Hallmark and 75% against Copeland.

Costs

1. On 18 July 2019 the judge made separate orders for costs in respect of the cross-claims in each proceeding. Those orders were not sought to be varied in respect of the proceedings between Hallmark and Mr Harford. Copeland sought to set aside the requirement that it pay Hallmark the costs Hallmark was required to pay to the cross-defendants. However that order need not be varied in circumstances where the orders with respect to the cross-defendants have not been varied, except to the extent that Copeland's liability has increased.
2. As to the costs of its appeal, Hallmark has been unsuccessful in its claims for a finding of contributory negligence and for a contribution from Harford Transport. It should pay the costs of those parties of its appeal. As to the costs of ANM, both Hallmark and Copeland sought, unsuccessfully, to assert that ANM be found liable for the negligence of Mr Isaia. They should bear equally ANM's costs of the appeal.
3. As between Hallmark and Copeland, Hallmark has been successful in part in achieving a variation in the apportionment as between the companies found liable. However, that success, though not insignificant financially, concerned a minor part of the appeal in terms of preparation and conduct, and presumably a minor aspect of the trial. Otherwise, both parties were unsuccessful in their respective appeals. Given the complexity arising from the presence of five parties, and the different issues, it is desirable to avoid a complex dissection of costs. These circumstances may be dealt with by requiring that Copeland pay 15% of Hallmark's costs with respect to both parties' appeals. The judge's order as to the costs of the trial between the parties should stand.

Orders

1. Subject to the adjustment as to the apportionment referred to in the last paragraph, the orders of the trial judge must stand. However, to achieve that outcome regard must be had to the fact that there were two separate sets of proceedings in the court below and that there were four separate appeals before this Court.
2. The principal proceedings (no. 2015/234127) commenced as a proceeding by Mr Harford against Hallmark. Hallmark cross-claimed against Copeland, Harford Transport and the insurers of ANM. On 17 April 2019, the judge made the following orders: "(1) Judgment for the plaintiff in the sum of $1,600,000. (2) The defendant is to pay the plaintiff's costs. (3) Judgment for the cross-claimant (Hallmark Construction Pty Ltd) against the first cross-defendant (Copeland Building Services Pty Ltd) on the further amended first cross-claim in the sum of $800,000. (4) The first cross-defendant is to pay the cross-claimant's costs of the further amended first cross-claim. (5) The further amended first cross-claim is dismissed as against the second, third and fourth cross defendants, with costs."
3. Pursuant to a further judgment given on 18 July 2019, the trial judge made the following orders in the principal claim by Mr Harford: "(1) Copeland Building Services Pty Ltd is to pay to Hallmark Construction Pty Ltd the sum that Hallmark Construction Pty Ltd is required to pay to the third and fourth cross-defendants, under order (5) made on 17 April [2019], for those cross-defendants' costs of the further amended first cross-claim. (2) Hallmark Construction Pty Ltd's costs of applying for order (1) are to be assessed as part of its costs of the further amended first cross-claim. (3) The application by the third and fourth cross-defendants that their costs under order (5) made on 17 April [2019] be assessed on the indemnity basis is dismissed, with no order as to costs."
4. Each of Hallmark and Copeland appealed from the orders made in the principal proceeding below, being matters no. 2019/146962 and 2019/150040 respectively in this Court.
5. The appropriate course is to make orders with respect to those two appeals. The only change that is required to the orders noted above is a variation of order (3) made on 17 April 2019 to increase the liability of Copeland to $1,200,000. No variation is required of the orders made on 18 July 2019. Copeland was entirely unsuccessful with respect to its appeal, which, accordingly, should be dismissed. It should pay Hallmark's costs of that appeal.
6. The second matter in the court below was the proceeding brought by Harford Transport, as Mr Harford's employer, to recover amounts paid by it on account of workers compensation, being matter no. 2015/152742. Again, there was no issue as to the amount involved, except for the payment of interest on that amount. Again, the issues revolved around responsibility for the payment and upon whether the employer was itself a tortfeasor. The trial judge found it was not, a finding which has not been varied on appeal.
7. The orders made in that matter on 17 April 2019 were as follows: "(1) Judgment for the plaintiff in the sum of $749,063.60 by way of indemnity for workers compensation benefits, pursuant to s 151Z(1)(d) of the Workers Compensation Act 1987. (2) Order pursuant to s 100 of the Civil Procedure Act 2005 that the defendant pay the plaintiff interest up to judgment of $162,086.19. (3) The defendant is to pay the plaintiff's costs. (4) Judgment for the cross-claimant (Hallmark Construction Pty Ltd) against the first cross-defendant (Copeland Building Services Pty Ltd) in the sum of $81,043.10 on the second further amended first cross-claim. (5) The second further amended first cross-claim is dismissed as against the second, third and fourth cross-defendants, with costs."
8. As in the principal matter, the second cross-defendant was Harford Transport and the third and fourth cross-defendants were the insurers of ANM.
9. Further orders were made in this matter also on 18 July 2019. They were in similar terms to those made in the principal matter and read as follows: "(1) Copeland Building Services Pty Ltd is to pay to Hallmark Construction Pty Ltd the sum that Hallmark Construction Pty Ltd is required to pay to the third and fourth cross-defendants, under order (5) made on 17 April [2019], for those cross-defendants' costs of the second further amended first cross-claim. (2) Hallmark Construction Pty Ltd's costs of applying for order (1) are to be assessed as part of its costs of the second further amended first cross-claim."
10. There is one element of complexity involved in the orders made in this matter on 17 April 2019. It is that, applying the apportionment of 50% as between Hallmark and Copeland, order (4) provided for Copeland to pay Hallmark 50% of the pre-judgment interest identified in order (2). One might have expected, as the judge had foreshadowed in his reasons for judgment, that the apportionment would include both the statutory indemnity and interest. This approach followed from two propositions. First, Hallmark's claim for contribution was founded on s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW); because the contribution was claimed with respect to a statutory indemnity, not an award of damages, s 5(1)(c) was not engaged. [45] The judge further concluded that Hallmark was protected from greater exposure to the payments to be made by it to Mr Harford and Harford Transport by the apportionment of Mr Harford's damages in the principal proceedings. As neither party challenged this aspect of the judge's reasoning, order (4) should be varied to reflect the new apportionment of liability, but limited to the judgment for interest.
11. There is one consequential issue which remains. The calculation of interest was undertaken to the date on which judgment was given in the Common Law Division. This Court does not know whether payments have been made in satisfaction of that judgment, or if interest has continued to run. (No application has been made for restitution.) The better course in these circumstances would appear to be to vary the orders of the trial judge, with the variation to take effect from the date on which judgment was given below, namely 17 April 2019. If that course gives rise to difficulties, it is reasonable to expect that the parties will be able to resolve the problem by agreement. Against the possibility that this is not the case, there should be liberty to apply to both parties, to be exercised on three days' notice and within 28 days of the delivery of judgment.
12. On this basis, the Court makes the following orders: In matter no 2019/146962 (Hallmark Construction Pty Ltd v Brett Harford): 1. Allow the appeal in part and vary order (3) made on 17 April 2019 to substitute an amount of $1,200,000 as the amount payable by Copeland Building Services Pty Ltd to Hallmark Construction Pty Ltd. 2. Otherwise dismiss the appeal. In matter no 2019/151040 (Copeland v Hallmark): 1. Dismiss the appeal. In matter no 2019/146975 (Hallmark v Harford Transport): 1. Allow the appeal in part and vary order (4) made on 17 April 2019 to substitute the sum of $121,564.64 as the amount payable by Copeland to Hallmark. 2. Direct that the variation take effect from the date of the orders made in the Common Law Division, namely 17 April 2019. 3. Liberty to apply with respect to (1) and (2), to be exercised on three days' notice and within 28 days of the delivery of judgment. 4. Otherwise dismiss the appeal. In matter no 2019/151310 (Copeland v Hallmark): 1. Dismiss the appeal. With respect to the costs of the four proceedings in this Court: 1. Order the appellants (Hallmark and Copeland) pay the costs of the respondents, namely Brett Harford, Harford Transport Pty Ltd, Certain Underwriters at Lloyds subscribing to Policy No CV004/226CGL and Berkley Insurance Company. As between the appellants, liability should be apportioned equally. 2. Order that Copeland pay 15% of Hallmark's costs of the four appeals.
13. MEAGHER JA: I have had the benefit of reading the draft judgment of Basten JA. I agree with his Honour's reasons and proposed orders.
14. EMMETT AJA:

The Proceedings These four appeals arise out of an accident that occurred on 24 May 2013, when Mr Brett Harford (Mr Harford) fell into a stormwater retention pit on a building site in Homebush West (the Site) that was being developed by Hallmark Constructions Pty Ltd (Hallmark). Mr Harford was the principal of Harford Transport Pty Ltd (Harford Transport) and was employed by Harford Transport as its sole truck driver. At the time of the accident, Copeland Building Services Pty Ltd (Copeland) was carrying out brick-laying and block-laying work on the Site pursuant to a contract with Hallmark. Certain personnel who were performing work for Copeland on the Site were employed by ANM Building Services Pty Ltd (ANM). ANM has since been wound up. However, at the time of Mr Harford's accident, it had insurance policies in place with Certain Underwriters at Lloyds (the Underwriters) and with Berkley Insurance Company (Berkley). The Underwriters and Berkley (together the Insurers) can be sued under s 601AG of the Corporations Act 2001 (Cth).

1. Mr Harford sued Hallmark in the Common Law Division of the Supreme Court for personal injuries and Hallmark filed a cross-claim in the proceedings against Copeland, Harford Transport and the Insurers, seeking indemnity or contribution from them. On 17 April 2019, a judge of the Common Law Division (the primary judge) directed judgment for Mr Harford against Hallmark in the sum of $1,600,000 and judgment in favour of Hallmark's cross-claim against Copeland in the sum of $800,000. His Honour ordered that the cross-claim be dismissed as against Harford Transport and the Insurers.
2. Harford Transport was liable to Mr Harford for workers' compensation and brought proceedings in the Common Law Division of the Supreme Court against Hallmark, Copeland and the Insurers for reimbursement of the workers' compensation paid, pursuant to s 151Z(1)(d) of the Workers Compensation Act 1987 (NSW) (the Compensation Act). Hallmark also filed a cross-claim in those proceedings against Copeland, Harford Transport and the Insurers. The proceedings were heard at the same time as the proceedings brought by Mr Harford. The primary judge directed judgment for Harford Transport against Hallmark in the sum of $749,063.60 by way of indemnity for workers' compensation benefits and directed judgment for Hallmark's cross-claim against Copeland in the sum of $81,043.10. His Honour dismissed the cross-claim as against Harford Transport and the Insurers.
3. By notices of appeal filed on 16 July 2019, Hallmark appeals from the judgment against it in favour of Mr Harford and from the judgment against it in favour of Harford Transport. By amended notice of appeal filed on 18 September 2019, Copeland appeals from the orders in favour of Hallmark in the proceedings brought by Mr Harford. By amended notice of appeal filed on 17 September 2019, Copeland appeals from the order made against it in favour of Hallmark in the proceedings brought by Harford Transport.

The Accident

1. Hallmark was in the process of constructing high rise and townhouse residential buildings on the Site. Below the unsealed road surface in front of the townhouses was a stormwater retention tank that had been built approximately one year before Mr Harford's accident. There were six openings through the roof of the retention tank and above each opening a riser shaft was constructed of formed concrete, integral to the roof. The tops of the risers were designed to be flush with the finished road surface. On the day of the accident, a CHEP pallet made of hardwood was lying above one of the openings.
2. Mr Harford drove his truck to the Site with a load of concrete blocks and arrived at the Site a few minutes before 6am. He drove his truck through the gate which was open with no security officer or watchman in attendance and stopped at a point where he thought the blocks would be required. He stepped down from the cab of the truck and proceeded to the Site office, where he found Mr Giosofatto Isaia. Mr Isaia was employed by ANM but had been seconded to work for Copeland. Mr Harford asked Mr Isaia where he wanted the concrete blocks and was told to put them in front of the truck.
3. Mr Harford walked back to where he had parked the truck and scanned the area around it to ensure that there was space to unload all of the concrete blocks on ground that was clear, level and solid. The lights of the truck had been left on so that he could see the area in front of the truck. He observed a single empty wooden pallet on the ground that he thought could unbalance the blocks if they were unloaded onto it. Mr Harford walked to the pallet, lifted it intending to flip it over and move it, unaware that it was covering the opening into the tank. He stepped forward with his hands on the pallet and fell through the shaft into the retention tank. He suffered severe injury as a consequence.

Liability

1. The primary judge found that Hallmark was in breach of a duty to take care owed to Mr Harford. His Honour also found that Mr Isaia was in breach of a duty to take care owed to Mr Harford and that he was Copeland's agent and, accordingly, that Copeland was in breach of the duty to take care owed to Mr Harford and would have been liable if sued by Mr Harford. Those findings are not challenged in the appeals.
2. Hallmark was liable as occupier of the Site for leaving an obvious danger insufficiently covered, unfenced and without signposting and supervision. Similarly, Copeland exercised control over the part of the site on which Mr Harford was invited to unload and owed him the same duty. Mr Isaia was negligent and, in the discharge of his duties as an employee of ANM, was required to act in accordance with the directions of Copeland. Mr Isaia was therefore Copeland's agent. It follows that the actions of Mr Isaia were the actions of his principal, Copeland. It therefore follows that each of Hallmark and Copeland was liable in negligence for the injuries suffered by Mr Harford. However, since Mr Isaia had been seconded to the employment of Copeland, in the discharge of his duties as an employee of ANM, ANM was not for present purposes the employer of Mr Isaia such as to render ANM vicariously liable.
3. Mr Harford himself did not contribute to his injuries in that he himself did not fail to take appropriate precautions. There was no basis for concluding that the system of work provided by Harford Transport was deficient.
4. The remaining question concerns the apportionment of liability among Hallmark, Copeland and ANM. The primary judge apportioned liability equally between Copeland and Hallmark. Clearly enough, Hallmark should be required to bear a substantial degree of responsibility. However, the immediate control that Copeland had and Copeland's responsibility for the presence of Mr Harford in the vicinity of the retention tank indicates that a greater degree of responsibility should be borne by Copeland.
5. I have had the advantage of reading in draft form the proposed reasons of Basten JA. I agree with the orders proposed by Basten JA for the reasons proposed by his Honour.

Endnotes

1. Harford v Hallmark Construction Pty Ltd [2019] NSWSC 371.
2. Evidentiary statement, 28 November 2017, par 4.
3. Evidentiary statement, par 6.
4. Judgment at [18].
5. Judgment at [19].
6. Judgment at [75].
7. Judgment at [30] and [31].
8. Judgment at [20].
9. [2018] NSWCA 183 at [31].
10. Boral Bricks Pty Ltd v Cosmidis (No 2) (2014) 86 NSWLR 393; [2014] NSWCA 139 at [94].
11. Judgment at [92].
12. (2004) 217 CLR 424; [2004] HCA 28 at [45]-[52].
13. Judgment at [93].
14. [1936] SC 883 at 904. See also Speed v Thomas Swift & Co Ltd [1943] KB 557 at 563.
15. Winter v Cardiff Rural District Council [1950] 1 All ER 819 at 825, per Lord Reid. See also Glass, McHugh and Douglas, The Liability of Employers, (2nd ed, 1979), pp 20-21.
16. Nicol v Allyacht Spars Pty Ltd (1987) 163 CLR 611 at 618; [1987] HCA 68; see also Munkman on Employer's Liability (13th ed, 2001), p 140.
17. Cross-claim, 22 November 2018, par 2(b).
18. Judgment at [71].
19. Jones v Dunkel (1959) 101 CLR 298 at 320; [1959] HCA 8.
20. Copeland's written submissions, 16 October 2019, par 60.
21. Tcpt, CA, 10/12/19, p 27(30).
22. [1972] 2 NSWLR 710 at 714A (Hope and Reynolds JJA agreeing).
23. Judgment at [102]-[103].
24. Judgment at [108]-[109].
25. Judgment at [113].
26. Judgment at [114].
27. (1931) 46 CLR 41; [1931] HCA 53 ("CML").
28. Judgment at [117]-[120].
29. [1995] 2 AC 500; [1995] 3 WLR 413; [1995] 3 All ER 918.
30. (2006) 226 CLR 161; [2006] HCA 19 at [22].
31. (2013) 85 NSWLR 335; [2013] NSWCA 250.
32. Judgment at [124].
33. Judgment at [114].
34. Judgment at [125].
35. Day at [33].
36. Judgment at [122].
37. See [71] above.
38. (1986) 160 CLR 626 at 641; [1986] HCA 34.
39. [1947] AC 1, at 13.
40. (2001) 207 CLR 21; [2001] HCA 44.
41. Judgment of Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ.
42. Hollis at [48]-[57].
43. Judgment at [129].
44. Judgment at [114].
45. Judgment at [137].

Amendments 17 March 2020 - [109] and Coversheet: replacing $1,2000,000 with $1,200,000 in order (1) in matter 2019/146962. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 March 2020