Harford v Hallmark Construction Pty Ltd

Supreme Court of NSW|2019-02-22|Before: Fagan J

1; [2001] HCA 44 Howard Rotavator Pty Ltd v Wilson (1987) 8 NSWLR 498 James Hardie and Co v Seltsam Pty Ltd (1998) 196 CLR 53; [1998] HCA 78 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Kevan v Commissioner for Railways [1972] 2 NSWLR 710 Kwanchi Pty Ltd v Kocsis (1996) 40 NSWLR 270 Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; [2000] HCA 61 Parkview Constructions Pty Ltd v Abrahim [2013] NSWCA 460 Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34 Public Transport Commission of New South Wales v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336; [1975] HCA 28 Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 Smith v Leurs (1945) 70 CLR 256 South Eastern Sydney Area Health Service v Gadiry (2002) 54 NSWLR 495; [2002] NSWCA 161 South West Helicopters Pty Ltd v Stephenson [2017] NSWCA 312 Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161; [2006] HCA 19 The State of New South Wales (Government Cleaning Service) v Les Cooper (200) 49 NSWLR 221; [2000] NSWCA 148 Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62 Westpac Banking Corporation v Tomassian (1993) 32 NSWLR 207 Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12 Category: Principal judgment Parties: Brett Harford (plaintiff) Harford Transport Pty Ltd (plaintiff) Hallmark Construction Pty Ltd (first defendant) Copeland Building Services Pty Ltd (second defendant) ANM Building Supplies (Certain Underwriters at Lloyds) (third cross-defendant) Berkley Insurance Company (fourth cross-defendant) Representation: Counsel: P Deakin QC with B Loukas (plaintiff Brett Harford) P Rickard (plaintiff Harford Transport Pty Ltd) J Maconachie QC with B Jones (first defendant) N Polin SC - (second defendant) GJ Parker SC (third and fourth cross-defendants)

Judgment

HIS HONOUR: There are two proceedings before the Court. Both arise out of an accident in which Mr Brett Harford fell into a stormwater retention pit on a building site on 24 May 2013. In the first proceeding Mr Harford claims damages for personal injuries. The building site was located at Homebush West and was being developed by Hallmark Constructions Pty Ltd ("Hallmark"). Mr Harford drove a truck load of concrete blocks to the site, arriving before first light. He moved a wooden pallet that was obstructing the area in which he was directed to unload. An opening into an access riser for the retention pit lay concealed beneath the pallet. Mr Harford fell through this opening. The drop to the bottom of the pit was 4 m. Mr Harford was severely injured, particularly to his hip and spine. He suffered considerable pain and has undergone numerous surgical procedures. He remains significantly disabled, six years later. Damages are agreed. Only liability is to be decided.
At the time of this accident Mr Harford was the principal of a private company, Harford Transport Pty Ltd ("Harford Transport"). Through the company he carried on a business of transporting masonry products. He was employed by the company as its sole truck driver. The workers compensation insurer of Harford Transport has paid benefits to Mr Harford. The second proceeding has been brought by the insurer in the name of Harford Transport, pursuant to s 151Z(1)(d) of the Workers Compensation Act 1987 (NSW), to recover from Hallmark the benefits it has paid.

Hallmark's cross-claims

Hallmark denies that it owed any duty of care to Mr Harford and, if it did owe a duty, it denies that any breach occurred. In Mr Harford's action Hallmark has brought a cross-claim against four cross-defendants. At the time of the accident Copeland Building Services Pty Ltd ("Copeland") was carrying out bricklaying and block-laying work on the site pursuant to a subcontract with Hallmark. Hallmark cross-claims against Copeland alleging that it is liable for Mr Harford's damages as a joint occupier of the part of the site on which the accident occurred. Hallmark claims indemnity or contribution pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) ("the 1946 Law Reform Act"). When Mr Harford commenced the proceedings he joined Copeland as second defendant. In early 2017 Mr Harford consented to judgment in favour of Copeland. This agreement was noted by the Registrar on 8 March 2017 but judgment was not entered then and has not been entered since. The parties have apparently refrained from taking that step in order to preserve Hallmark's ability to prosecute its cross-claim against Copeland, thus avoiding the effect of the decision in James Hardie and Co v Seltsam Pty Ltd (1998) 196 CLR 53; [1998] HCA 78.
There is an issue in the case as to whether, at the time of the accident, all personnel who were performing Copeland's work on the site were employed by ANM Building Services Pty Ltd ("ANM"). That company has since been wound up. It was insured against liabilities arising from work on the site by Certain Underwriters at Lloyds subscribing to Policy No CV0004/226CGL and by Berkely Insurance Company ("the Insurers"). Hallmark alleges that ANM is liable for Mr Harford's damages both for a direct breach of a duty it is said to have owed to Mr Harford and vicariously for one or more torts of its employees. It has obtained leave under s 601AG of the Corporations Act 2001 (Cth) to join the Insurers as third and fourth cross-defendants to its cross-claim in Mr Harford's action, for contribution or indemnity under the 1946 Law Reform Act.
Hallmark has also joined Harford Transport as second cross-defendant. Hallmark alleges that Harford Transport failed to provide a safe system of work for Mr Harford and that it is liable to make contribution or provide indemnity in respect of his damages, again pursuant to the 1946 Law Reform Act.
In the s 151Z(1)(d) recovery proceedings brought by Harford Transport, Hallmark denies that the injuries to Mr Harford for which compensation became payable were "caused under circumstances creating a liability in" itself. It also alleges in its defence that the accident came about as a result of Harford Transport's negligent breach of duty to its own employee so that it has no right of recovery under s 151Z(1)(d): Public Transport Commission of New South Wales v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336; [1975] HCA 28; South West Helicopters Pty Ltd v Stephenson [2017] NSWCA 312 at [170[-[172] (Basten JA), [261] (Leeming JA) and [365] (Payne JA). Perhaps superfluously, Hallmark has also cross-claimed against Harford Transport in the s 151Z proceedings, repeating the allegation that the company breached its duty to its own employee.
Harford Transport was at one time claiming s 151Z indemnity against Copeland and the Insurers but has discontinued against those parties. However, Hallmark has cross-claimed against both of them, alleging that they are tortfeasors liable to Mr Harford and "must contribute towards any judgment entered against" Hallmark in favour of Harford Transport. The basis of this contribution claim is said to be s 5(1)(c) of the 1946 Law Reform Act.

The site

Evidence of the physical setting of the accident was given by Mr Harford, by Hallmark's site manager Mr Rigg and its construction manager Mr Frendo and through photographs and plans. Evidence of the history of relevant parts of the works was given by Mr Rigg. Mr Harford was the sole witness to the course of his dealings with Copeland and he gave evidence of his experience of attending the site on occasions prior to the day of the accident.
The building site at Homebush West occupied approximately 10 ha. In about May 2011 Hallmark commenced to develop the site by staged construction of high-rise and townhouse residential buildings, for a total of approximately 1300 home units. The southern boundary of the site abutted the main east-west railway corridor of the Sydney-Parramatta line. Parallel to the railway corridor and running along the southern boundary was a roadway which provided access to the site from the east. Approaching from that direction the road passed through a gate at the entry to the site. The gate was capable of being secured. Approximately 200 m beyond the gate the road turned to the north-west and proceeded at an angle of about 45° away from the railway alignment. The road continued from this turn for approximately 300 m straight ahead in a north-westerly direction towards a group of high-rise buildings. By 24 May 2013 these buildings had been substantially constructed as part of the project and finishing trades were engaged on them.
From the point at which the road turned to the right, away from the rail alignment, it proceeded up a slight incline over a rise that lay between the turn and the high-rise buildings. About 50 m north-west of the turn, on the right-hand side of the road, a row of townhouses was under construction as at 24 May 2013. No construction work was taking place to the left of the road. The surface of the verge immediately adjacent to the road on the left-hand side was reasonably level. Beyond that, further away from the road to the south and west, the ground was uneven and disturbed and in places had materials and machinery standing on it.
In May 2013 the road to which I have referred was formed but unsealed. The road surface consisted of road base or subgrade. The road was designed to have kerbing and guttering but this had not yet been constructed. The kerb on the right-hand side (when facing to the north-west, up the grade) was to be about 2 m out from the building alignment of the townhouses. There were to be two traffic lanes. No dimensioned drawings were tendered but I find that the designed position for the left kerb of the finished road would have been approximately 9 m out from the front alignment of the townhouses.
Construction of the townhouses had commenced several months before May 2013 and Copeland's block-work and bricklaying on these buildings had been underway since about February. At the date of the accident and immediately before it Hallmark was not undertaking any work on the townhouses or within about 50 m of them. Its personnel were engaged in connection with finishing work being done on the high-rise buildings. Under Copeland's subcontract it was required to erect its own scaffolding up to a height of 3 m. Scaffolding higher than that was erected by another subcontractor. External scaffolding exceeding 3 m in height on the exterior of the townhouses can be seen in photographs taken on the day the accident.

The retention tank

Below the road surface in front of the townhouses was a stormwater retention tank that had been built approximately one year before the accident. The base of this was approximately 4 m below the road surface. The evidence does not include dimensioned drawings of this. By scaling from the dimensions of other features depicted on a plan tendered by Mr Harford I find that the tank was approximately 6 m wide and 24 m long. It was situated longitudinally under the roadway with its south-eastern end near the beginning of the row of townhouses, about 50 m from where the road turned away from the railway corridor. Each long edge of the tank was approximately aligned with where the kerbing and guttering would in due course be constructed.
The bottom element of the tank was a concrete raft slab on piles sunk into the ground below. The walls were of hollow-core concrete block-work to a height of 3 m, filled with poured concrete. On top of this a lid or roof was constructed using concrete poured onto formwork. There were six openings through this roof, one in each corner at the north-west end, one in each corner at the south-east end and one more along each of the long sides (not evenly spaced). Above each opening a square riser shaft was constructed of formed concrete, integral to the roof. The openings and risers were 900 mm by 900 mm square. The tops of the risers were designed to be flush with the finished road surface. This entire structure was built whilst the surface of the ground around it was at the level of its base slab. Once the tank had been completed earthworks were undertaken to raise the ground level to bury it and to place the roadway subgrade over the top of it.
The riser shafts above the two openings at the north-western end of the retention tank were approximately 1.2 m high. By May 2012 backfilling had been completed around and over the tank and road base had been laid on top of the backfill. The unsealed road surface was then at the level of the tops of the two riser shafts at the north-western end of the tank, one on each side of the roadway. Hallmark caused steel plates to be laid over the tops of them. These plates were not bolted down to the concrete rims of the risers nor otherwise affixed against lifting or against lateral movement. No barrier or fencing was placed around the plates covering the penetrations through the road surface into the risers. Nor was there any form of warning or marker fixed above or near the steel covers to indicate what was below or to discourage persons in the vicinity from approaching or interfering with the covers.
The tops of each of the other four risers of the retention tank, at the south-east end and part way along the sides, were below the level of the unsealed road surface. A steel plate was placed as a cover for each of these and road base, of a depth undisclosed in the evidence, was laid over those plates. This work was also completed in about May 2012.
In 2012 and 2013 Hallmark employed approximately 20 personnel on the site. It was a licensed residential builder and was contracted to the owner to carry out the development. It did not take part directly in construction activity but engaged subcontractors to perform the work. The concrete work of the retention tank was carried out by a subcontractor to Hallmark. The block-work walls were laid by Copeland. Hallmark hired the steel plates to cover the risers and Hallmark personnel placed them.

Mr Harford's dealings with Copeland

For more than two years prior to the date of the accident Harford Transport was engaged to deliver concrete blocks from a yard at Prospect to building sites around metropolitan Sydney. The engagement was by Boral up to January 2012 and thereafter by the successor to Boral's business, Austral Masonry (NSW) Pty Ltd ("Austral"). During a period of approximately two years prior to the day of the accident Mr Harford had delivered loads of blocks from Prospect to Copeland at the Homebush West site. He had delivered about 20 such loads in that time.
Five months after the accident Mr Harford was asked by WorkCover investigators how many previous loads he had delivered. He answered, "I think it is a good half dozen, at least six". In cross-examination Mr Harford adhered to his estimate of 20 and said that his answers to questions from the investigators may have been affected by strong medication he was taking at the time and that his estimate of "at least six" may have been intended to refer only to deliveries made before first light in the morning. Whatever the explanation of what he said to the investigators, I accept Mr Harford's evidence given orally in the hearing before me that the number of previous deliveries was about 20 and the number that were made early, in darkness, was about eight.
I found Mr Harford a dependable witness. His answers in evidence were at all times responsive, prompt and to the point. There were no inherently improbable or exaggerated assertions. His oral evidence was internally consistent in all respects. He explained that he was not a proficient reader or writer and had not completed high school education. Nevertheless he presented as an alert, observant and capable person. He had worked as a truck driver for between 25 and 30 years before this accident, delivering to construction sites for much of that time. He evidently knew his own business thoroughly and had become familiar with common features of construction sites.
Mr Harford's work routine was to attend Austral's yard with his truck at about 5:00 am each day. He would receive a text message the night before to notify him of the destination of his first load for the day. On arrival at the yard he would receive a delivery docket for his first run and wait for a forklift driver to place the load on his truck. The blocks were on pallets. The distance from the yard to the Homebush West site was about 20 km and it took about 15-20 minutes to drive the truck there. During the 12 months prior to the accident, on the approximately eight occasions when Mr Harford had arrived at the site with a load of blocks for Copeland before 7:00 am and in darkness, he never found the gate at the entrance to the site locked. There is no evidence he was ever stopped at the gate by a security guard or watchman.
On the 20 previous deliveries Mr Harford had received instructions from Mr Giosofatto Isaia as to where on the site he should unload. At an early stage in their dealings Mr Isaia had given Mr Harford a piece of paper with his mobile phone number on it. On each delivery Mr Harford spoke to Mr Isaia either over the phone whilst driving to the site or face-to-face after arriving. If instructions were received over the phone Mr Harford would proceed to unload before meeting with Mr Isaia. On those occasions, after unloading he would find Mr Isaia to obtain his signature on the delivery docket. If Mr Harford omitted to phone ahead or if Mr Isaia did not answer, Mr Harford would stop his truck within the boundaries of the site and locate Mr Isaia to receive instructions as to where the blocks were to be set down. Mr Isaia would sometimes be in Copeland's site office near the site's southern boundary, about 135-180 m to the south-west of the townhouses.
Mr Harford carried a forklift on his truck. This could be demounted when the truck was parked and it would then be used to lift down the pallets of blocks. Mr Isaia was known as and answered to "Jez" and he is so referred to throughout the evidence. From Mr Harford's testimony I conclude that Mr Isaia was the only person who ever acted as the contact for Copeland at the site and whose phone number was provided to Mr Harford. He was the only person who ever met Mr Harford on site on behalf of Copeland, gave directions as to where Copeland's blocks were to be unloaded and signed the delivery dockets to acknowledge receipt by Copeland.

The accident

Mr Harford was the only witness to the events that led immediately to the accident. Copeland did not call Mr Isaia, who was on-site at the time, or any other witness. On 24 May 2013 Mr Harford arrived at Austral's yard at Prospect at about 5:00 am. He received a delivery docket for a load of blocks to go to Copeland at the Homebush West site. The time of commencement of loading is recorded on the docket as 5:25 am and the time at which the truck was full is shown as 5:45 am. Mr Harford gave evidence that he arrived at the site with this load at least a few minutes before 6:00 am. I accept that evidence, for reasons which will become apparent, and I therefore infer that loading and dispatch from the yard must have been completed a little earlier than 5:45 am. The precise time, within a few minutes, is not important. The docket appears to show that there were 19 pallets of blocks in the load. The truck was a rigid body flat tray vehicle with a three-axle flat tray trailer towed behind.
Upon arrival at the site the gate was open and no security officer or watchman was in attendance. Mr Harford drove along the entry road, around the right-hand turn away from the railway line and stopped his vehicle on the left-hand verge of the road opposite the south-eastern section of the row of townhouses under construction. He understood from prior deliveries to the site, the most recent of which had been within the previous two weeks, that block-laying had been completed on buildings further into the site, beyond the townhouses. He "could see all the brickworks equipment, all the scaffolding" in the location of the townhouses and made "an educated guess" that block-laying was now underway on these buildings.
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.
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.
He observed a single empty wooden pallet on the left hand verge approximately 1 m back from the pool fencing towards Mr Harford's truck. Photographs 5 and 6 in part 2.3 of Exhibit B were taken in the vicinity of where Mr Harford parked. These photographs provide a view up the roadway, looking to the north-west, with the townhouses under construction to the right. The photographs were taken on the day of the accident. It is not disputed that the features depicted were undisturbed from when Mr Harford had arrived on the site except that in photograph 5 the pallet visible to the left had been restored following the accident to the position in which it can be seen, over the penetration through which Mr Harford fell. The star pickets driven into the ground around the pallet had also been placed there after the accident. It is common ground that before the accident the pallet had been in that position but had not been marked out by star pickets or anything else.
Mr Harford gave evidence that this was a CHEP pallet made of hardwood, 1.2 m square. Largely on the basis of that dimension I draw conclusions about the dimensions and spatial relationships of other items that may be seen in the photographs. Three workmen standing to the right of the roadway in photograph 6 provide an additional scale reference. The pool fencing referred to earlier was about 1.2 m high. There had been rain on the site over previous days and the surface was muddy. The unsealed road, with no kerbing or guttering yet in place, was defined only by a single pair of wheel marks along the intended road alignment. I refer to the vehicle path indicated by these wheel marks as "the road".
In photograph 6 there can be seen to the right of the roadway a steel plate lying on the ground with its long axis at an angle of about 45° to the building alignment and one corner in contact with the front of the townhouses. The photograph shows this plate opposite the pool fencing but slightly back in the direction of Mr Harford's truck. Its dimensions appear in the photograph to be approximately 1.8 m by 1.5 m. Mr Harford did not give evidence of having seen this plate on the day of the accident or on any previous delivery.
Two further steel plates of similar dimensions were located on the right-hand edge of the road, about 2 m out from the front alignment of the townhouses. One of them was quite near to the first mentioned plate and the other approximately 4 m further up the road away from Mr Harford's truck. These two plates had their long axes perpendicular to the alignment of the roadway and of the buildings. Mr Harford saw these plates on the morning of the accident.
Mr Harford considered that between the pool fence and his truck there was sufficient level ground on the left-hand verge to place the entire load in two rows parallel to the road without any need to stack the loaded pallets on top of one another and leaving the road itself clear for use by other vehicles. The set-down area was illuminated by the headlights of Mr Harford's truck. He said that he had previously driven up this road a "few times, three [or four] times, maybe" in daylight hours, to deliver blocks to locations further into the site. He did not recall whether he had on those occasions noticed any steel plates on or near the road in this vicinity.
When Mr Harford saw the two steel plates at the right-hand edge of the road they did not appear to be secured to the ground in any manner. He said: I knew there would be a hole under there from after 20, 30 years in construction sites. Seeing these steel plates he presumed they were covering something in the nature of a retention pit, which would be deep. He was aware that such pits vary in size and might have more than one or two penetrations in the tops of them.
Mr Harford said that, from his experience, if he drove over unfixed steel plates the drive wheels of a vehicle would "spit them out the back". If such a steel plate is "too thin" a wheel running over it may bend it. In either of these ways a wheel may fall into the hole which is covered by the steel plate. He said, "When I saw them, I just knew not to go near them". In Mr Harford's experience it was not common for plates that were used to cover such penetrations to be placed without securing bolts. In his experience of building sites, including as a driver delivering construction materials over more than 10 years, penetrations into retention tanks with steel covers placed over them were always barricaded during the construction phase with star pickets around the penetration and tape stretched between the pickets.
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.
As mentioned at the commencement of these reasons, Mr Harford was severely injured in the fall and he was immobilised. As he lay on the slab floor of the tank he noted the time at 6:00 am. His watch had stopped when he struck the bottom. He called for help but he was not heard until about 6:30 am. At that time Mr Isaia looked down the riser shaft from the road above, saw what had occurred and summoned help. On first seeing Mr Harford, Mr Isaia said: I looked over and seen your lights on and could not see you and I thought he should've been gone by now. I could hear something but I thought it was people yelling on the other side of the train line.
Before falling down the shaft Mr Harford was unaware that there was a retention tank or any cavity below the verge in the location of the CHEP pallet or in the immediate vicinity. He had not previously been aware of a steel plate on the ground, at the location of the riser, which might have suggested that a cavity of some kind lay below that point. He had never previously experienced a pallet being used as a cover for a penetration in the ground surface of a construction site, into a deep cavity below. When he picked up the edge of the pallet he had not expected that there would be a hole in the ground beneath it. The slats on the top of the pallet were quite close together and, looking at the top of the pallet as he picked up the edge of it, the existence of a cavity below was not evident.
In cross-examination Mr Harford said that in checking the unloading area and attempting to move the CHEP pallet out of the way he was working at a normal pace towards completing the delivery and returning to Austral's yard for his next pickup. He was not under pressure of time. I accept that evidence. Mr Harford denied that he was bound to unload where directed, safe or not, so that he would have overlooked safety considerations. He said that if he had not been satisfied that this was a safe location at which to demount his forklift and set down the load, he would have phoned Austral. Based on experience Mr Harford said Austral would "stand behind you" and if the consignee of the blocks failed to remedy any unsafe features of the unloading place or failed to nominate a different location, he would have obtained instructions to return the load to the yard. This evidence was unchallenged and I accept it.

Sundry evidence of little or no weight

Hallmark tendered an accident report completed by one of its personnel, Mr Damien Ugov. I admitted this over objection, with the limitation under s 136 of the Evidence Act 1995 (NSW) that it could be used to prove that the assertions appearing in it were so recorded but not to establish the truth of those matters. It states that the activity that caused the accident was that Mr Harford "removed the pallet to see what was under it so when he was in his forklift he would not run over it". Even if this document had been received as evidence of the truth of that assertion I would attach no weight to it. Mr Ugov was not called. There is no suggestion that he was a witness to the incident. The only witness was Mr Harford himself. There is no indication in the document of the basis upon which Mr Ugov made the above-quoted assertion. It is inherently improbable. From Mr Harford's description of how he proposed to unload his truck, which was not challenged, he had no thought of driving his forklift over the pallet. To do so would be contrary to common sense. Nor was there any reason why he would wish to "see what was under" the pallet. I have no reason to doubt that his only interest in the pallet was to move it out of the way so that he could stack his load on clear ground.
Hallmark tendered a letter of 25 May 2013 written to it by Mr Isaia purporting to give his account of events on the morning of the accident. I admitted this as a business record. I give it very little weight because of the failure of Hallmark to call Mr Isaia to be cross-examined. Hallmark disavowed reliance upon Mr Isaia's statements in the letter but out of abundant caution I give the following reasons for discounting them: 1. "I approached [Mr Harford], who was in the car park, near the crane shed and advised him to move his truck near the start of the townhouses". This is contrary to Mr Harford's evidence that he positioned his truck near the townhouses of his own accord, before having spoken to Mr Isaia, whom he approached (rather than the other way around) for instructions where to unload. There is nothing inherently implausible about Mr Harford's recollection on this point and I found him generally a convincing witness. I see no reason to reject this part of his evidence in favour of an untested alternative. 2. "I advised [Mr Harford] to wait by his truck and I would come back to him and show him where to unload his truck". I do not accept this. There is no evidence of any other task which could have been preoccupying Mr Isaia such as would have prevented him from telling Mr Harford, straight away, where to unload and accompanying him there for the purpose of giving directions, if necessary. If Mr Harford had been told to wait there is no reason why he would not have done so. 3. "When I reached [Mr Harford, at the bottom of the tank] and checked he was okay he apologised and advised he had moved the CHEP pallet from the tank/drain by hand and had fallen in after he had turned around." Mr Harford was asked about this and denied that he had turned around. He said he looked straight ahead as he lifted the edge of the pallet and stepped forward. I have no reason to disbelieve Mr Harford on this. It would be difficult if not impossible to turn around whilst lifting the pallet and trying to flip it. There is nothing in the evidence to suggest that he would have had any cause to try to turn at such an awkward moment.
The plaintiff tendered a report of Mr J Kozianski, a building technical consultant. This consists almost entirely of Mr Kozianski's opinions about the application of legal standards, including that of reasonable care, to the circumstances as he has gathered them from assumptions he was asked to make and from documents provided to him. A report of Mr C Campion, an environment, health and safety consultant, was tendered by Harford Transport. It relates Mr Campion's experience of how temporary penetrations around building sites are commonly protected during the construction phase. In that respect the report does not add to the evidence of Mr Harford and Mr Rigg. Mr Campion's report also contains his opinions about the application of various legal standards, mostly taken from the Work Health and Safety Act 2011 (NSW) and regulations made thereunder.
The opinions of Messrs Kozianski and Campion about the application of legal tests to the facts are not admissible. The reports were not objected to but I am bound to apply the law according to my own judgment. Without intending any disrespect to these witnesses, I can say it is not relevant or helpful to receive opinions from building industry experts upon the law and regarding what result should follow from its application.
A report of Mr J O'Brien, a civil and structural engineer, tendered by Hallmark contains some useful information about practices in the building industry with respect to methods and materials commonly used for temporarily covering penetrations in roadways. His report also explains what is involved in moving steel plates weighing 180 kgs and upwards. Mr O'Brien expresses a view about a possible disadvantage of bolting a cover plate to the concrete top of a riser, namely, that the protruding bolt-heads or nuts may damage the tires of vehicles that may be driven over the plates. I have taken this information into account.

The steel plate

There is an issue between the parties as to the dimensions and description of the steel plate that had been placed over the subject penetration in May 2012 (as referred to at [15] above). Mr Rigg said in his statement that all of the plates placed over the risers above the retention tank were in the order of 1.5 m by 1.5 m and either 8 mm or 20 mm thick. In oral evidence in chief he said the plates would "probably have been … 2.4 by 1.2 metre by 20 mil thick". In cross-examination he was unsure whether the thickness of the plate over the subject penetration was 8 mm or 20 mm. He considered that 8 mm chequer plate would have been acceptable for the purpose. His evidence is inconclusive but leaves open that the plate originally placed by Hallmark's personnel over this penetration was of the thinner material.
Mr Frendo, Hallmark's construction manager, did not purport to have direct knowledge of the type of steel plate that had originally been placed over the penetration in May 2012. He said that after Mr Harford's accident he: spent about the next two or three days on-site investigating the circumstances of the accident and interviewing all Hallmark and Copeland staff who were present at the site on 24 May 2013. My purpose in doing so was to ascertain for myself the circumstances of the plaintiff's accident, to ascertain why, how and [in] what circumstances the road plate had been moved, and to obtain evidence about those matters.
At [30] above reference is made to a steel plate depicted in photograph 6, lying on the ground at an angle of 45° to the townhouse frontage, approximately opposite the pool fencing. Examination of this plate on the day of the accident revealed that it was 8 mm chequer plate. Its precise measurements were taken by Mr Selby, a WorkCover inspector. They were recorded in his report as 1.85 m by 1.6 m. Mr Frendo told Mr Selby that this was the cover plate that had originally been positioned over the penetration. He said in evidence that he had been told by "several staff on site", being personnel who were "actually out working, doing hands-on work in this particular area", that this was the cover plate. He had never actually seen it in position over the riser. The cover of the riser was "not something that I would physically look out for daily as part of my role description".
Mr Frendo's statement confirms that the plate of which Mr Selby recorded precise dimensions was located as seen in photograph 6 during the late morning of 24 May 2013. Despite his two days of enquiries Mr Frendo did not suggest in evidence that he identified any other plate around the site that could have been the one removed from over the subject penetration. I am satisfied on the balance of probabilities that this is the plate that had been so placed by Hallmark in May 2012 and had been replaced with the CHEP pallet within about two days before the accident.
I infer that whoever removed the plate did so in order to apply it to another use, rather than merely wantonly. This is supported by consideration of the effort required to move it. An 8 mm thick checker plate measuring 1.5 m by 1.2 m and weighing approximately 180 kg would require at least four men to lift and carry it, or otherwise would require mechanical assistance such as from a telehandler. That is a mobile machine with hydraulic powered lifting capability. Hallmark had two of these machines on site and Copeland had one. I consider it improbable that any of the workers engaged on the site would have gone to the trouble of removing the plate from over the penetration unless they did so in order to make some practical use of it.
Evidence was given by Mr Rigg that steel plates of this description were used around the site "to wheel pallets of bricks or materials inside the building over a rebate in the concrete". He said these sheets were also used for access to balconies and to cover penetrations through the floors of buildings during construction. No evidence was adduced of any other plate located around the site after Mr Harford's accident, which could have been the plate removed from over the penetration. Mr Rigg said that some plates of this description were stored on-site by Hallmark but I would discount the possibility that the plate which had been covering the subject penetration was removed during the preceding two days just to be put into storage.
If the plate used by Hallmark to cover the penetration had been a 20 mm thick road plate of similar dimensions it would, according to the evidence, have weighed approximately 400 kg. Such a plate could only have been moved by telehandler. It would likely have been very difficult, if not impossible, to manoeuvre it within a half constructed building. It appears to me far less likely that a plate of that thickness and weight would have been removed and misappropriated to another use. It is, accordingly, far less likely that the plate originally placed over this penetration and then misappropriated had been a 20 mm thick plate.
The plate shown in photograph 6, across the road and lying at an angle to the townhouses, was within about 9 m of the penetration. It was lying on muddy ground and may have been placed there to facilitate passage into the partly constructed building. Alternatively, the place where it is seen in photograph 6 may have been a temporary resting place pending it being lifted inside for some other use. The proximity of the plate to the subject penetration tends to suggest that that is where it came from. Given the difficulty of carrying or transporting such an item, the natural inclination of someone looking for such a plate would be to take it from nearby. The other two plates on the side of the road nearest the townhouses (see [31] above) would be unattractive as whatever holes they were covering were much closer to the worksite and would therefore pose more danger, if uncovered, than the penetration in question.
In cross-examination Mr Rigg said it was possible that Hallmark may initially have put down a 20 mm thick road plate over this penetration and that someone may thereafter have replaced it with an 8 mm chequer plate. There is no evidence that after Mr Harford's accident any such 20 mm plate was located on the site and identified as having been, or possibly having been, taken from the top of the penetration. The possibility identified by Mr Rigg and is speculation. In answer to a question whether anyone would have "any other or ulterior use" for a piece of 20 mm thick steel Mr Riggs said "I would not have thought so, other than [as] a road plate".

Hallmark's duty of care to Mr Harford

Hallmark admits it was an occupier of the building site although it alleges Copeland was also an occupier of the immediate area in which the accident occurred. The question whether Hallmark owed to persons who might enter the site a duty to exercise reasonable care to avoid injury that might result from the condition of the site is to be decided in accordance with the general principle stated Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; [1987] HCA 7. There, Mason, Wilson, Deane and Dawson JJ adopted this passage from the judgment of Deane J in Hackshaw v Shaw (1984) 155 CLR 614; [1984] HCA 84 at 662-663: in an action in negligence against an occupier … [a]ll that is necessary is to determine whether, in all the relevant circumstances including the fact of the defendant's occupation of premises and the manner of the plaintiff's entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff. A prerequisite of any such duty is that there be the necessary degree of proximity of relationship. The touchstone of its existence is that there be reasonable foreseeability of a real risk of injury to the visitor or to the class of person of which the visitor is a member. The measure of the discharge of the duty is what a reasonable man would, in the circumstances, do by way of response to the foreseeable risk.
Identification of the relevant risk of harm is essential to consideration of what if any action was required of the defendant to discharge its duty of care (the scope or content of the duty), leading to ascertainment of whether there was breach by reason of such action not having been taken. Gummow J said in Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 at [59]: It is only through the correct identification of the risk that one can assess what a reasonable response to that risk would be.
In Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12 Mason J (as his Honour then was) recognised that identification of the relevant risk is a prerequisite to evaluating the factors, now enacted in s 5B of the Civil Liability Act 2002 (NSW), that bear upon what precautions a defendant may be required to take in order to discharge a duty of care: [14] In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.
Mr Harford was a member of the class of persons who would visit the site to deliver materials essential to enable Hallmark's subcontractor to carry out its work. It was reasonably foreseeable to Hallmark that any dangerous features of the site would pose a real risk of injury to visitors in this class. A duty to exercise reasonable care undoubtedly arose. From May 2012 when construction of the retention tank was complete and road base had been laid over it, a risk was posed by the existence of the penetration with which this case is concerned. It was a risk that a person of the class to which Mr Harford belonged might, through lack of awareness of the penetration or of its precise location or through inadvertence, fall into the retention pit below and suffer injury. That risk was plainly foreseeable.
The considerations relevant to determining what preventive actions were required of Hallmark to avert the identified risk are primarily as follows: 1. Whether Hallmark "ought to have" foreseen the identified risk, which is equivalent to whether a reasonable person in the position of Hallmark would have foreseen it: s 5B(1)(a) Civil Liability Act. I have already answered this affirmatively. 2. The degree of likelihood of the risk coming to pass and, in particular, whether the risk was "not insignificant": s 5B(1)(b). I assess the likelihood as high. The evidence shows that the surface at which the penetration terminated was to remain incomplete with respect to road surfacing and associated kerbing and guttering for at least 12 months after May 2012. During that period no permanent grate or cover would be affixed over the penetration. The chances of somebody falling into this, on a building site with significant construction activity taking place in close proximity, were high. 3. What, if any, precautions a reasonable person in the position of Hallmark would have taken: s 5A(1)(c). This is addressed at [60]-[65] below. 4. The probability that harm would be sustained by an entrant on the site, within the class to which Mr Harford belonged, if reasonable care should not be taken: s 5B(2)(a). This was again a high probability. There was a very considerable potential for the penetration to cause harm to entrants on the site if they should encounter it inadvertently. 5. The likely seriousness of the harm that might be suffered by an entrant as a result of the risk coming to pass, that is, as a result of falling through the penetration: s 5B(2)(b). It is self-evident that it was highly likely that any person who fell through this penetration, dropping 4 m to the base of the retention tank below, would suffer very considerable injury. 6. The cost burden and degree of difficulty of Hallmark taking precautions to avoid the risk of an entrant to the site falling through the penetration: s 5B(2)(c). This is addressed at [66]-[69] below. 7. The social utility of Hallmark maintaining this penetration while further construction work took place on the site. No doubt the utility was substantial. I infer that the tank was required under a condition of the Development Approval for the site as a means of preventing overload of stormwater systems maintained by public authorities. Necessarily the penetration would remain without a permanent cover while construction of buildings was completed and before the road surface and the kerbing and guttering were finished.
The considerations I have paraphrased in the preceding paragraph from both subss (1) and (2) of s 5B of the Civil Liability Act bear upon the requirements for discharge of a duty of care and hence upon whether a breach has occurred. This is so notwithstanding that the heading "Division 2 - Duty of Care" appears immediately before s 5B: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48 at [13]; Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72 at [93]-[95].
The question of what precautions were reasonably required of Hallmark in discharge of its duty is to be answered on a prospective basis, looking forward from before Mr Harford's accident, not looking back with hindsight derived from the fact that the accident did take place on 24 May 2013: Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62 at [60] (Gummow J) and [126]-[129] (Hayne J); Adeels Palace Pty Ltd v Moubarak at [40]; Neindorf v Junkovic [2005] HCA 75 at [93].
With respect to consideration (3) above, until the works were complete and a permanent cover or grate was placed over this riser in conjunction with finishing the roadway, a reasonable person in the position of Hallmark would have covered the penetration from May 2012 with a plate or other rigid material that would prevent a person who might be walking on the surface from falling in. A reasonable person would have fixed this cover in place by means that would provide reasonable security against it being removed. A steel plate would be an obvious choice. Reasonable security against removal could have been achieved by bolting the steel cover to the concrete lip of the penetration riser. Bolting the plate down is one of the measures reasonably required.
Counsel for Hallmark submitted that it was not open to the Court to find that a plate could have been bolted down without expert evidence concerning the means by which steel may be bolted to concrete. I reject that submission. It is common knowledge that steel and other components can be bolted to concrete and to other masonry surfaces using a variety of widely available fasteners. A common type is a bolt with an expanding sleeve sold under the proprietary name Dynabolt. It is also common knowledge that holes to receive such fixings may readily be drilled into concrete using a percussion drill. The fixing of steel and timber components to concrete using methods such as this is something that is encountered daily in ordinary life. It is an aspect of construction that is judicially noticeable.
The steel plate that Hallmark used was, as I have found above, 1.85 m x 1.6 m x 8 mm thick chequer plate. It was not bolted down. In the absence of bolting to the concrete some other means of providing reasonable security against removal was required, in the exercise of reasonable care. Evidence was given that a plate of either 8 mm or 20 mm thickness could have been used, secured by driving pegs of an inverted 'L' profile into the road base around the plate perimeter. If reasonable security of fixation of the plate could not be achieved by any of these means then a barricade around the penetration would have been required in order to discharge Hallmark's duty of care. This might have been in the form of a rigid fence or highly visible warning tape stretched between star pickets at each corner. Such a barricade would have to have been of sufficient permanence and robustness to prevent anyone from inadvertently walking to a point from which a fall through the penetration could occur. The barricade would be required to last for at least 12 months.
The necessity for one or more of these measures in order to discharge the duty of care arose from the foreseeable risk that mere placement of an unfixed 8 mm thick chequer plate over the penetration would not be sufficient. Mr Harford gave evidence that such a plate could be displaced by the drive wheels of a vehicle passing over it. Having regard to the known utility of such plates for other purposes on the site, it was foreseeable that an unfixed plate might be deliberately removed by a subcontractor to be applied to another purpose.
Hallmark submitted that this was not foreseeable because there was no evidence that on any earlier occasion a plate had been removed after being placed over a penetration. I reject that argument. It is not essential to foreseeability of an event that the alleged tortfeasor should have had experience of it actually occurring on a previous occasion. It was also submitted that unauthorised removal of such a plate in order to use it for another purpose was not foreseeable because Hallmark had available storage such plates on site. This does not follow. It was in my view reasonably foreseeable that some person working near to the subject penetration might prefer to use a plate close to hand rather than get one from the store, wherever that was located.
If nothing more was done than to place an unfixed 8 mm thick chequer plate without a permanent and robust barricade, then Hallmark's duty of care would require, at least, that a warning sign be erected in proximity to the penetration and that a watch be maintained over it, either continuously or at very frequent intervals, to ensure that the warning sign was not disturbed and that the loosely positioned plate was not removed.
Although the Court has not been provided with evidence of the cost of any of these measures, I am satisfied that none of them would have been significantly expensive. Bolting down the plate would require four or perhaps eight holes to be drilled through 8 mm steel and corresponding holes to be bored in the concrete. The time of a labourer to carry out this work can be reasonably estimated at no more than 3 hours. On the balance of probabilities the cost of each bolt would not be more than a few dollars. The entire cost would be almost negligible measured against the risk of very serious injury which would likely occur if these measures were not taken.
Mr Rigg gave evidence that bolting down cover plates over penetrations was the usual practice of Hallmark, indicating that cost certainly cannot have been prohibitive. He said in cross-examination: Q. [I]f you're using a light piece of, for example, chequer plate, 8 mil chequer plate, do I take it from your answer that that's something that you would bolt down? A. We would - we would bolt it down, yeah. I would have requested it be bolted down, yeah. Q. So if there was a penetration that was covered by the 8-mil chequer plate, as the site manager, you would have requested that be bolted down? A. I would have, yeah. HIS HONOUR Q. Would that be whether it was in a roadway, or off a roadway, or would it make-- A. It should have been bolted - they should be bolted down and, generally, I may not have used that every time we, we, we had to put a plate down, but I would have hoped that our guys that were experienced would know that they had to put it down. So I can't relay every last little bit of information to them, but if we needed a plate down, they should have put a bolt in it. Bolts were available, the tools and that were available to do it, yeah. So it was, sort of, an accepted practice that we'd put a plate and bolt it down.
Similarly, if the steel plate was held down with 'L' pegs driven in around the perimeter the cost of the pegs and of the labourer's time to drive them into the ground would, in my estimation, be comparable to the cost of bolting. The passage of Mr Rigg's evidence quoted in the preceding paragraph continued as follows: If we couldn't bolt it down, we would put a - a stake, a bent stake, not a straight up and down one so you'd puncture a tyre, even though that had happened before, but generally, an L-shape or a tent peg-type peg over the corner of it or whatever. That was common practice, yeah. POLIN Q. You said, if you didn't bolt them, you could actually use the pegs with the one sided top? A. You could use a peg, yeah. If the plate was bigger and it had a hole in it, you could put a peg through it with a - with a flat end or a bend on it. We had a number of those pegs. We had - we had those. Provided it didn't stick straight up in the air it would be acceptable, yeah.
Still on the subject of cost and feasibility, if it were found necessary to place rigid fencing around the penetration because sufficient security for a temporary cover could not be achieved, that would involve no more than 4.8 m of fencing (1.2 m on each side) to a height of 1.2 m. No costing of this form of protection has been given on the evidence but having regard to the dimensions the cost would have been finite and modest relative to the risk of serious injury posed by the penetration. The cost of four star pickets with warning tape stretched between them would be less again.

Breach of Hallmark's duty of care to Mr Harford

The mere placement of the 8 mm chequer plate over this penetration in May 2012, unsecured by bolts or pegs, with no barricade, permanent warning sign or marker present, and without a system of constant or at least frequent verification that the plate remained in place, was inadequate to discharge Hallmark's duty of care. The extent of periodic checking was, as described by Mr Rigg, that he made a general inspection of the whole site on most days. He inspected the entire site on the morning of Tuesday, 21 May 2013 and saw that the plate was in position over the subject penetration. On Wednesday 22 May he "walked past" the location and did not notice the plate missing. He said he would have noticed at that time if the plate had been removed because the unprotected opening would have attracted his attention. I am not satisfied that that is so. Mr Rigg accepted that if the plate had been removed at some time after his Tuesday 21 May inspection and replaced with a pallet, his walk-past on Wednesday would not have alerted him to what had occurred: Okay, I don't know if this is right or wrong, but if there was a pallet covering over that, that hole, and the plate had been taken in the afternoon or the day previous, I wouldn't have noticed there being a hole there. So in other words, the pallet's covered over the hole, so I wouldn't have seen that the plate was missing.
Mr Rigg said he did not inspect this location at all on Thursday, 23 May 2013. In my view surveillance of the level and frequency described by him was seriously deficient in relation to this safety-critical cover plate, which was unsecured, unfenced and posed a temptation for removal. The surveillance was particularly insufficient whilst Copeland was actively constructing the block-work and masonry components of the townhouses immediately adjacent to the retention tank, which it had been doing for about three months before 24 May 2013. I conclude that the plate may have been removed at any time between Mr Rigg's departure from the site at 3:30 pm on Tuesday 21 May 2013 and the closure of the site on the late afternoon of Thursday 23 May. There was an interval of a full two working days between the last confirmation by Mr Rigg of the plate being in position and the accident.
Mr Rigg said in his statement that the induction of all workers to the site included instruction that they should not remove cover plates. Having regard to the utility, for other purposes, of a sheet of 8 mm chequer plate this instruction was in my view not adequate to enable reasonable reliance to be placed upon a loosely positioned plate of this kind as an effective protection against the hazardous penetration below.
Mr Rigg said, "we made it quite clear in our documentation that [deliveries] were [to be received] after 7 o'clock". Hallmark relied upon this as a precaution taken in discharge of its duty of care on the basis that persons making deliveries after 7:00 am, in daylight, would be more likely to see the penetration if its cover should have been removed or dislodged and would therefore be less likely to be injured by it through inadvertence. I do not consider that this stipulation as to delivery times was sufficient, either alone or in conjunction with anything else Hallmark did, to discharge its duty of care.
To begin with, the "documentation" to which Mr Rigg refers appears to me to have been limited to instructions and agreed safe working methods as between Hallmark and its subcontractors. A start time of 7:00 am for deliveries was not brought to the notice of Mr Harford. He said no one had ever told him of this. He was contracted to Austral. He said that if Austral had been instructed not to deliver to this site before 7:00 am its personnel at the Prospect yard would not have allowed him to take deliveries prior to that hour. Mr Rigg said a document was given to Austral notifying that deliveries were to be made after 7:00 am. No such document was tendered. I infer that Austral did not receive such an instruction.
Copeland's Safe Work Method Statement dated 16 February 2012 stipulated that delivery drivers were to adhere to site hours of 7:00 am to 3:00 pm. There is no evidence Mr Harford was shown this. Even if he had been, neither Copeland nor Hallmark insisted upon a 7:00 am start time. Copeland had routinely accepted deliveries by Mr Harford before that hour over the preceding two years. Hallmark did not keep the site gates closed until 7:00 am and nor did it post a watchman to hold delivery traffic until that time. By May 2013 it was an established practice on the site that Mr Harford's deliveries would be received before 7:00 am.
Hallmark also relied upon a sign which it had placed at the entry gate. This included the following warnings: UNAUTHORISED PERSONS KEEP OUT ALL VISITORS MUST REPORT TO THE SITE OFFICE ALL PERSONNEL MUST BE SITE INDUCTED BEFORE STARTING WORK ON THIS SITE
Mr Harford was not an unauthorised person. He had been delivering consignments of masonry products to Hallmark's subcontractor on the site for over a year. Copeland could not have performed its subcontract without these deliveries. In the absence of any express evidence about authorisation directly from Hallmark to Mr Harford I infer that by its conduct and acquiescence it had impliedly authorised him to enter for the purpose of making deliveries.
On this occasion Mr Harford reported to Copeland's site office as he had done on numerous previous occasions. Having regard to Hallmark's acquiescence over the past year in this manner of reporting, Mr Harford was entitled to understand that Copeland's site office was the relevant one for the purposes of the instruction at the entry gate. If Hallmark intended that a visitor such as Mr Harford should report to its own office, the sign taken in combination with Hallmark's course of conduct did not make that clear and any such intended meaning was an inadequate precaution against the danger to a person of the class to which Mr Harford belonged, posed by the inadequately protected penetration through the verge opposite the townhouses.
So far as the sign required "personnel" to be "site inducted" it would not be reasonable to expect that a delivery driver such as Mr Harford should understand that this applied to him. He was not "personnel" of Hallmark or of any of its subcontractors. There is no evidence on which I would find that Mr Harford ought to have regarded himself as subject to this requirement of induction, on the basis of industry practice or otherwise. He said no one had ever asked him to attend an induction meeting or site safety meeting on any of the occasions when he was on this site. This aspect of the sign contributed nothing towards discharge of Hallmark's duty of care with respect to the subject penetration.
Taken all together, the measures adopted by Hallmark to ameliorate the risk of a visitor to the site such as Mr Harford falling through this penetration were a long way short of discharging its common law duty of care.

Hallmark's submissions on risk and duty

Hallmark submitted that the relevant risk, for the avoidance of which it might have exercised reasonable care, was not the risk that an entrant to the site might fall through the penetration into the retention pit below but rather that "unidentified and unidentifiable miscreants" might remove the steel cover plate placed by Hallmark in May 2012 (T 379, 381). From this proposition Hallmark argued that the law does not recognise a duty on the part of an occupier to exercise reasonable care to prevent harm being done to an entrant on its premises by a third party - in this case, whoever removed the plate. Hallmark cited Smith v Leurs (1945) 70 CLR 256; Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; [2000] HCA 61 and Ashrafi Persian Trading Co Pty Ltd v Ashrafinia [2001] NSWCA 243 for this principle.
The authorities cited by Hallmark are all concerned with deliberate infliction of harm by a third-party upon a plaintiff. Principles that govern that situation are inapplicable here. There is no basis in the evidence for finding that whoever removed the plate and replaced it with the CHEP pallet thereby harmed Mr Harford deliberately. Hallmark did not submit that such a finding would be open. The only possibility on the evidence is that the person or persons who removed the plate and left the penetration inadequately protected did so negligently vis a vis Mr Harford. If his case against Hallmark had been pleaded on the basis that the cause of his injury was this third-party act of negligence, the principles engaged would not be those expounded in the cases cited. Rather, principles concerning vicarious liability of Hallmark for the tort of the third-party would be relevant. But Mr Harford has not pleaded against Hallmark that the tort was committed by the "unidentified and unidentifiable miscreants" who removed the plate. Nor has he alleged vicariously liability of Hallmark for any such tort.
Analysis of causation in Mr Harford's claim against Hallmark exposes a fundamental reason why the common law's rejection of a duty to prevent harm caused by the deliberate acts of others has no relevance to this case. Mr Harford was not injured by the third party's act of removing the plate. He was not present when it was removed. That act was not the proximate cause of harm upon which Mr Harford has brought his action. Mr Harford has alleged and proved that his injuries resulted from a dangerous static condition of the premises, namely, a hole in the roadway big enough for a man to pass through and with a sufficient drop under it to cause significant injury.
The proximate cause of Mr Harford's injury was Hallmark's negligent failure to take reasonable care to protect him against this static condition. As an unsecured plate over the penetration would be removable, reasonable care required more by way of protection for entrants such as Mr Harford than the loose placement of such a plate. It required bolting or pegging, a fence or other barricade, surveillance - or a combination of these. It is a mis-characterisation of the facts to treat the removal of the plate by a third party as the cause of Mr Harford's injuries. It is misconceived to proceed from that false premise to characterise the duty of care upon which Mr Harford relies as a duty to prevent such third-party removal.

Alleged contributory negligence of Mr Harford

In its defence to Mr Harford's statement of claim Hallmark has pleaded that his injuries were caused or contributed to by his own negligence. This is also pleaded in defence of Hallmark Transport's s 151Z recovery claim. The particulars of alleged contributory negligence are numerous but may be grouped into the following essential contentions: 1. that Mr Harford entered the site in contravention of standing restrictions stipulated by Hallmark that he should not arrive before 7:00 am and that he should contact Copeland by phone in advance; 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.
As to (1), I have found that there was no operative restriction requiring Mr Harford to defer deliveries until after 7:00 am (see [73]-[75] above). With respect to making contact before entering the site, Hallmark did not require delivery drivers to contact its own personnel but left this in the hands of the subcontractor for whom the delivery was to be made. I accept Mr Harford's evidence that a practice had developed between himself and Mr Isaia whereby he would not always make phone contact prior to arrival and, if he did not, would enter and search out Mr Isaia before unloading. That is what occurred on this occasion. Mr Harford's entry on the site on 24 May 2013 was in accordance with the conditions that had been established by the conduct and acquiescence of Hallmark and Copeland.
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.
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.
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.
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.

Hallmark's allegation that Harford Transport was negligent

Reference has been made to Hallmark's allegation that Harford Transport breached its duty of care to Mr Harford as its employee and that Harford Transport is therefore a tortfeasor liable to indemnify Hallmark or to contribute to Mr Harford's damages pursuant to s 5(1)(c) of the 1946 Law Reform Act. The particulars alleged are that the company failed to provide Mr Harford with a safe system of work, a safe place of work, safe and adequate plant, tools and equipment and adequate instructions for the performance of his work. There are also particulars of failing to carry out an induction of Mr Harford on the site, or failing to cause Copeland to carry out such an induction; failing to instruct him to defer deliveries until 7:00 am and to contact Copeland's representative before entering the site; failing to instruct him not to "walk around the premises whilst it was still dark" and failing to provide him with a torch.
It is well accepted that an employer owes at common law a duty to its employees to take reasonable care for their safety and that this encompasses an obligation to take reasonable steps to provide safe plant and equipment and a safe system of work. Although Mr Harford and his wife were both directors of Harford Transport, Mr Harford did all the driving and undertook all dealings with Austral and with the consignees of loads carried, such as Copeland. In substance the actions and knowledge of Mr Harford were the actions and knowledge of Harford Transport. 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. These circumstances do not alter the fact that Harford Transport is a legal entity distinct from Mr Harford, its sole employee. They are no bar to a claim by Hallmark for contribution under the 1946 Law Reform Act, if Hallmark can establish breach of the employer's duty: Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424; [2004] HCA 28 at [45]-[52].
The nature of Mr Harford's work in his employment by the company required that he should visit construction sites on which he would be required to move about on foot and where he would have to demount the forklift and manoeuvre it to unload the truck. A reasonable employer in the position of Harford Transport would foresee that this work would involve a risk of injury to Mr Harford from any danger that might be present on a site to which deliveries might be made. Recognition of that risk informs the scope of what was required in order to provide a safe system of work.
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.
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.
I reject Hallmark's contention that discharge of the employer's duty of care required that it should arrange for Mr Harford to undergo a general safety induction for the site. His work did not require that he should remain on the site for any significant period or that he should move extensively around it or undertake any construction work. His visits would be limited to operating the demountable forklift to unload the truck in a limited area. The system Mr Harford adopted for himself, of taking direction from Mr Isaia as to where he should unload and assessing the designated area carefully on each occasion, was reasonable and sufficient.
Hallmark's cross-claim against Harford Transport in Mr Harford's action for damages will be dismissed. In the s 151Z proceedings, the consequences of my finding that Harford Transport was not negligent will be considered later in this judgment.

Copeland's duty of care to Mr Harford and its breach

Hallmark's cross-claims in both proceedings allege that Copeland is a tortfeasor liable to Mr Harford in respect of the same damage as that which Mr Harford claims from Hallmark. Copeland is alleged to have owed Mr Harford a duty in its capacity as a joint occupier of the part of the site on which he was invited to unload. Hallmark's particulars of alleged negligence are numerous but may be reduced to two groups.
First, it is alleged that Copeland caused or permitted the removal of the steel plate from the top of the penetration and thereafter failed to substitute an adequate cover or to install a safety barrier. Hallmark's case based upon this contention fails for want of proof of the alleged breach, even before considering how Copeland's duty towards Mr Harford arose. The circumstances raise a strong suspicion that the plate was removed by or at the direction of one or more of the workmen performing Copeland's subcontract. However, there is insufficient evidence to enable me to find on the balance of probabilities who committed this grossly negligent act or that it must have been a person or persons for whom Copeland is vicariously liable.
The second group of Hallmark's particulars of breach of duty are to the effect that Copeland failed to direct Mr Harford safely on the site, failed to warn him of the penetration and failed to ensure that he was not required to work in close proximity to the penetration when unloading his truck. I will first address the basis upon which Copeland may be considered to have owed a duty that may have been breached in these respects.
Mr Isaia told Mr Harford to place his load in front of where his truck was parked. Obviously this did not mean in the roadway. Nineteen pallets of blocks stacked in the roadway would have obstructed all other traffic. It was apparent to Mr Harford, as it is to anyone looking at contemporaneous photographs, that the roadway was in use. The instruction plainly meant that the load should be set down on the left-hand verge and I am satisfied that is how Mr Isaia intended it to be understood. The verge was already in use for storage of building materials. Exhibit A (police photograph with JPG number ending 377, WorkCover photographs 3, 5, 6, 12), Exhibit D and Exhibit E (photograph 6) show pallet loads of bricks or blocks from previous deliveries standing on the verge. The presence of those materials to the left of the road would have made it apparent to Mr Harford that that was the location intended for his load.
The fact that Mr Isaia gave this instruction is sufficient, alone, to satisfy me that through him Copeland exercised control over the relevant area as an occupier. For reasons given at [115]-[122] below, Mr Isaia was the authorised agent of Copeland with respect to receipt of the load of blocks and his act of utilising the verge by directing placement of the load there is attributable to Copeland. In addition I infer that the pallet loads of bricks or blocks already standing on the left-hand verge were Copeland's. There is no evidence of any other masonry subcontractor operating on the site. Copeland's subcontract required it to purchase all materials. The pallet loads of masonry products already standing on the left-hand verge when Mr Harford arrived could only have been Copeland's. Its prior and ongoing usage of this area for storage is further evidence of control and occupation.
Copeland's occupation of the verge was not exclusive. This was part of the entire site occupied by Hallmark and there were also other subcontractors working in the vicinity. For the purposes of establishing liability in negligence for the static condition of premises there can be more than one occupier: Kevan v Commissioner for Railways [1972] 2 NSWLR 710. In that case Jacobs P said (with the concurrence of Hope and Reynolds JJA) (at 713G-714A): [I]t is not necessary, in order to be an occupier, that a person should have entire control over the premises. He need not have exclusive occupation. It suffices that he has some degree of control. The degree of control that one finds in the present case is that degree of control which is given by the legal right to extend an invitation to the plaintiff. It is not possible, in my view, to say that there is no measure of control when there is a legal right to extend such an invitation.
Joint occupation by Copeland in conjunction with the circumstances of Mr Harford's entry onto the relevant part of the site gave rise to Copeland's duty of care under the ordinary principles of negligence, applying the passage quoted at [53] above from Hackshaw v Shaw. It was reasonably foreseeable by Copeland that a delivery driver such as Mr Harford would be at a real risk of injury from any hazardous condition of the ground in this location. Copeland owed a duty of care to prevent Mr Harford suffering harm from any such hazard of which it knew or ought to have known.
I am satisfied on the balance of probabilities that when Mr Isaia directed Mr Harford where to unload he knew there was a cavity of some description in the roadway at the place where, shortly afterwards, Mr Harford in fact suffered his fall into the pit. Mr Isaia was the head labourer for Copeland on the site. He had been in that position for two years. He had been engaged on Copeland's work on the townhouses for approximately three months by the date of the accident. In Copeland's minutes of the safety meeting of its workers on 27 May 2013 Mr Isaia and Mr R Marando are designated "Site Supervisor".
It is an inescapable inference that Mr Isaia must have walked on and near the road in front of these townhouses on frequent occasions over the three months leading up to the accident. It was no more than 180 m from his site office. In the course of his duties he could not have failed to see the two steel cover plates on the right-hand side of the road and the third cover plate on the verge to the left. It would have been obvious to a construction worker of his experience that these plates were in position for a purpose and not by chance. It would have been equally apparent that the purpose was to cover some sort of cavity underneath. Mr Harford was well aware that this was signified by the placing of such plates and Mr Isaia would have drawn the same conclusion.
In attributing to Copeland knowledge of where the penetration lay, I do not rely upon the evidence that it had constructed the block-work walls of the retention tank a year earlier. There is insufficient evidence from which I could conclude that through performing such work Copeland gained knowledge of the configuration of the finished tank above the level of its walls. The roof and risers were constructed by other contractors.
Mr Isaia's knowledge of the penetration in the unloading area is attributable to Copeland because, in his role as Copeland's representative on site for the receipt of block deliveries (referred to in more detail at [114]-[122] below), he was bound to communicate this knowledge to the company. As said by Mason J (as his Honour then was) in Sargent v ASL Developments Ltd (1974) 131 CLR 634; [1974] HCA 40 at 658: As against a third party the law imputes to a principal knowledge gained by his agent in the course of, and which is material to, a transaction in which the agent is employed on behalf of the principal, under such circumstances that it is the duty of the agent to communicate it to the principal.
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: Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 at 320. 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.
If, contrary to the above finding, Copeland did not know through Mr Isaia by the early morning of 24 May 2013 that there was a penetration at the subject location, then it ought to have known. Its duty of care to drivers who would deliver and unload consignments of blocks for the townhouses called for a reasonable inspection by Copeland, prior to the date of this delivery, to familiarise itself with the features and condition of all areas in proximity to the ongoing work where loads of blocks might be placed. Such an inspection at any time up to Tuesday, 21 May 2013 would have revealed the unsecured steel plate. The existence of the penetration below ought to have been known either by inference from experience on building sites, by enquiry of Hallmark or through first-hand inspection by lifting one edge of the plate with a crowbar or telehandler. As the construction of the townhouses demanded that block-delivery trucks be brought to this area, a reasonable person in Copeland's position would have adopted safety measures either on the assumption that the plate covered a hazard or with knowledge of that fact gained through enquiries or a physical inspection.
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.
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.
Copeland's duty of care arose from it implicitly inviting Austral's contract driver to the site and it extended to the verge because Mr Isaia's control over that area, by directing Mr Harford, was control by Copeland through its agent. The duty was breached by omission because Copeland negligently failed to take any of the above-mentioned protective steps. Its liability in negligence is direct and does not depend upon attributing to Copeland, as principal, any positive negligent acts of Mr Isaia. It does not depend upon Copeland being vicariously liable, through employment or otherwise, for a tort committed by Mr Isaia. Nevertheless I will also consider, under the next heading, the legal basis upon which Copeland may be held liable for Mr Isaia's personal negligence in giving his direction to Mr Harford to unload in the relevant location without warning.

Copeland's liability through the agency of Mr Isaia

Business records of ANM and of the Insurers establish that ANM employed seven bricklayers and two labourers from 27 February 2013 and continued to employ them past the date of the accident. These included Mr Isaia. I am satisfied that Mr Isaia was not an employee of Copeland in May 2013 but that he was employed by ANM. His services and those of a number of other workmen were made available to Copeland. 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. I will examine whether Mr Isaia's negligent positive acts of directing Mr Harford on-site can be attributed to Copeland as breaches of the duty it owed to him and/or whether Mr Isaia separately owed a duty to Mr Harford and breached it, giving rise to tort for which Copeland is vicariously liable.
There is no evidence that any director or officer of Copeland was on-site in the early hours of the day of the accident or at other times on a consistent or regular basis. For the purpose of Copeland receiving materials it had to be represented on-site by someone. With respect to deliveries from Austral, there had to be a contact person at the site who could be notified of the delivery, either by phone in advance or in person after the load had arrived. Someone on behalf of Copeland had to direct where, on this large construction area, each load of blocks was to be placed. Every delivery was accompanied by a docket and someone had to sign on behalf of Copeland by way of receipt.
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.
In Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Company of Australia Ltd (1931) 46 CLR 41; [1931] HCA 53 (the CML case) the High Court held an assurance company liable for slanders uttered by a canvasser and agent in the course of trying to solicit business. Although the agent was not an employee but was engaged on contract, he acted as a representative of the assurance company and not independently. It was contrary to an express term of his agency that the canvasser should utter slanders such as he did. Gavan Duffy CJ and Starke J said (at 46-47): [O]ne is liable for another's tortious act "if he expressly directs him to do it or if he employs that other person as his agent and the act complained of is within the scope of the agent's authority." It is not necessary that the particular act should have been authorized: it is enough that the agent should have been put in a position to do the class of acts complained of (Barwick v English Joint Stock Bank (1867) LR 2 Ex 259; Lloyd v Grace Smith & Co [1912] AC at p. 733). And if an unlawful act done by an agent be within the scope of his authority, it is immaterial that the principal directed the agent not to do it. [Citation omitted]. The class of acts which [the canvasser/agent] was employed to do necessarily involved the use of arguments and statements for the purpose of persuading the public to effect policies of insurance with the defendant, and in pursuing that purpose he was authorized to speak, and in fact spoke, with the voice of the defendant. Consequently the defendant is liable for defamatory statements made by [the canvasser/agent] in the course of his canvass, though contrary to its direction.
Dixon J (with whom Rich J agreed) said at (49) that in most cases where an independent contractor performs work for the benefit of another person: the work … is considered as the independent function of the person who undertakes it, and not as something which the person obtaining the benefit does by his representative standing in his place and, therefore, identified with him for the purpose of liability arising in the course of its performance. The independent contractor carries out his work, not as a representative but as a principal. But a difficulty arises when the function entrusted is that of representing the person who requests its performance in a transaction with others, so that the very service to be performed consists in standing in his place and assuming to act in his right and not in an independent capacity.
Dixon J further said (at 49-50): In this very case the "agent" has authority to obtain proposals for and on behalf of the appellant; and he has, I have no doubt, authority to accept premiums. When a proposal is made and a premium paid to him, the Company then and there receives them, because it has put him in its place for the purpose. This does not mean that he may conclude a contract of insurance which binds the Company. It may be, and probably is, outside his province to go beyond soliciting and obtaining proposals and receiving premiums; but I think that in performing these services for the Company, he does not act independently, but as a representative of the Company, which accordingly must be considered as itself conducting the negotiation in his person. … If the view be right which I have already expressed, that the "agent" represented the Company in soliciting proposals so that he was acting in right of the Company with its authority, it follows that the Company in confiding to his judgment, within the limits of relevance and of reasonableness, the choice of inducements and arguments, authorized him on its behalf to address to prospective proponents such observations as appeared to him appropriate.
The words to which I have added emphasis in the above-quoted passages show that where a person is not an employee of a principal but is nevertheless authorised to represent the principal and to act in its name as a true agent, the agent's acts are attributed to, and treated as acts of, the principal. The principal's liability in tort for those acts is direct. I read the judgment of the plurality in Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161; [2006] HCA 19 at [18] and [22] as confirming this understanding of the CML case. The plurality said: [22] Colonial Mutual Life establishes that if an independent contractor is engaged to solicit the bringing about of legal relations between the principal who engages the contractor and third parties, the principal will be held liable for slanders uttered to persuade the third party to make an agreement with the principal. It is a conclusion that 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.
If the relevant actor is an independent contractor conducting his or her own business it will in many cases be difficult to characterise the actor as a "true agent" or an "agent properly so called" for the purpose of attributing tortious acts to a putative principal. That is because the law attaches significance to the distinction between employees and independent contractors for the purpose of assigning vicarious liability for torts: Scott v Davis (2000) 2014 CLR 333 at [106] (McHugh J); Hollis v Vabu Pty Ltd (2001) 207 CLR 21; [2001] HCA 44 at [32]; Sweeney v Boylan Nominees Pty Ltd. It was recognised in Hollis v Vabu Pty Ltd at [40] that the distinction between an employee and an independent contractor in this context lies in "the difference between a person who serves his employer in his, the employer's business, and a person who carries on a trade or business of his own".
The CML case shows that a contractor may be an agent whose tortious acts will be attributed to a principal if the very business of the contractor was that of representing and standing in the shoes of the principal. The present is a stronger case for attribution than that of the canvasser in the CML case. The putative agent, Mr Isaia, was not an independent contractor to Copeland. He was a seconded employee of another company. In directing Mr Harford where to unload, Mr Isaia "was authorised to speak, and in fact spoke, with the voice of [Copeland]" (adapting the words of Gavan Duffy CJ and Starke J in the CML case). In his interactions with Mr Harford on 24 May 2013 Mr Isaia did "not act independently, but as a representative of the Company, which accordingly must be considered as itself" accepting the delivery and directing its placement (applying Dixon J's words in the CML case).
It follows that Mr Isaia's direction to place the blocks on the verge where Mr Harford was exposed to the inadequately protected penetration, without any warning to him, constituted a direct breach by Copeland of its duty of care through the acts of its agent or representative who was authorised to do in the name of Copeland everything necessary to take delivery of the blocks on-site. On this basis, alternative to the analysis made at [113] above, Copeland is liable to Mr Harford and to Harford Transport. This analysis derives support from the judgment of McHugh J in Scott v Davis at [34], [35] and [56]-[72]. McHugh J was in dissent in the result of that appeal and no other member of the Court joined in his Honour's general statements of principle in the paragraphs cited. However, Scott v Davis concerned whether the owner of a light aircraft was liable for the negligence of a pilot whom he permitted to fly the machine. The various reasons given by the majority are directed to liability of an owner for the negligent misuse of a chattel and are neutral as to the application of the CML case in the way McHugh J considered it and as I have applied it here.
A further basis for holding Copeland liable to Mr Harford is its vicarious liability for the tort of Mr Isaia. Mr Isaia owed a personal duty of care. 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. 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.

Hallmark's allegation that ANM is liable to Mr Harford

In its cross-claims in both proceedings Hallmark alleges against the Insurers that at the time of the accident ANM had contracted with Copeland to carry out block-laying work in execution of Copeland's subcontract. However there is no evidence of any such contract between Copeland and ANM. The evidence establishes no more than that from 27 February 2014 the workmen executing Copeland's subcontract were employees of ANM.
On the premise that ANM contracted to perform Copeland's subcontract, Hallmark alleges that ANM "exercised dominion and control over" and "was an occupier of" the verge on which the penetration was located and as an occupier owed a duty of care to Mr Harford. The premise is not sustained. At 24 May 2013 Copeland was a joint occupier with Hallmark of the relevant area of the site. Copeland's use of ANM's employees did not give ANM control over any part of the site or make it an occupier of any part. Unlike Copeland, ANM did not have a "legal right to extend an invitation to the plaintiff" to enter upon the relevant area: see the passage quoted from Kevan v Commissioner for Railways at [103] above.
As ANM did not enter into joint or partial occupation of the part of the site that lay in front of the townhouses, it did not come under any duty to exercise reasonable care to protect an entrant on the site from the danger posed by a static condition such as the penetration in the verge. This accords with common sense. 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.
Hallmark further alleges that because Mr Isaia, as one of ANM's employees, directed Mr Harford where to unload, ANM owed a duty of care to Mr Harford to direct him to unload in a manner that would not cause him injury. In breach of this duty it is alleged that ANM caused or permitted the steel plate to be removed from over the penetration and failed thereafter to provide an adequate physical barrier around it. With respect to this particular, I have already determined that there is insufficient evidence to permit a finding on the balance of probabilities regarding who removed the steel plate and replaced it with the pallet.
A second breach of the duty is said to have arisen from ANM's employee, Mr Isaia, directing Mr Harford where to unload, namely that ANM failed to direct Mr Harford safely or to warn him of the penetration or ensure that he did not work near it. Copeland and not ANM was the purchaser of the blocks and the party at whose invitation and for whose benefit Mr Harford attended the site. The omission of the consignee of the blocks to designate a safe place for unloading and to warn the driver of the location of the penetration was an omission of Copeland, not of ANM. Insofar as Mr Isaia was negligent in positively directing Mr Harford to the unsafe location without warning him of the danger, he did so as the agent and representative of Copeland, not of ANM. Mr Isaia's acts are attributed to Copeland not to ANM.
So far as Mr Isaia's acts constituted a personal tort, Copeland and not ANM is vicariously liable for it. In Day v The Ocean Beach Hotel Shellharbour Pty Ltd [2013] NSWCA 250 at [23]-[33] Leeming JA reviewed in detail the authorities concerning whether two separate persons or entities may concurrently be vicariously liable for the conduct of a tortfeasor. His Honour concluded that [33]: [33] It follows that in my opinion it is not possible for any court other than the High Court to adopt the submission advanced by Ms Day that Australian law admits of a theory of dual vicarious liability where two different persons had control over a tortfeasor. [W]here as here there is a well-established basis of vicarious liability, namely, that of employer for the tortious conduct of its employee in the course of the employee's employment, there is no sound basis for imputing vicarious liability to another person, who did not even have a contractual relationship with the wrongdoer. This is directly applicable to the present circumstances. As Copeland is vicariously liable for the tort committed by Mr Isaia, ANM could not also be vicariously liable.
It follows that Hallmark's cross-claims against the Insurers in each of the proceedings must be dismissed.

Apportionment of liability for Mr Harford's damages

Mr Harford is entitled to judgment against Hallmark and Hallmark is entitled to contribution pursuant to s 5(1)(c) of the 1946 Law Reform Act. In making an apportionment between the two tortfeasors there must be taken into account "the degree of departure [of each of them] from the standard of care of the reasonable man … and … the relative importance of the acts of the parties in causing the damage": Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; Parkview Constructions Pty Ltd v Abrahim [2013] NSWCA 460 at [113]; Central Darling Shire Council v Greeney [2015] NSWCA 51 at [62]-[63].
As to the degree of shortfall from the standard of reasonable care, each of the tortfeasors breached their respective duties in an equal measure of seriousness. For Hallmark, the mere placement of an unfixed steel cover over this penetration in about May 2012 was far short of what was required, especially having regard to the time span over which the riser would remain without a permanent cover and the number of construction workers and delivery personnel who would likely be active in the location in the meantime. Hallmark, as the head contractor with control over the entire site, had primary responsibility for taking reasonable care to ensure that no part of its works should be left in a dangerous condition while other parts were being completed. For Copeland, the departure from the standard of reasonable care was also very significant. Copeland was actively engaged in the immediate vicinity and it invited Mr Harford onto this part of the site to deliver materials for its benefit. Marking off this penetration with, at least, star pickets, barrier tape and a warning sign and maintaining a watch to see that these protections remained in place would have been equally feasible and equally inexpensive for either of the two tortfeasors.
With respect to the relative causative effect of the negligence of the two companies, again I find it equal. It would have been more within the scope of Hallmark's authority to take the precaution of bolting down the cover plate. But a barrier around it would likely have been effective and the two companies failed equally to implement that measure. Hallmark's negligence was significantly causative in that it had constructed the riser and the penetration and then left them unprotected knowing that they would remain so for at least a year. On the other hand, Copeland was working in the immediate vicinity at the time of the accident and was in a position to identify the risk and take protective steps where Hallmark had failed to do so. Copeland was the party that, without having exercised reasonable care to make the penetration safe, invited onto the site a casual entrant and then directed him to a location close to the hazard without warning him of it.
Taking all of these considerations into account I consider that a proper apportionment under s 5(1)(c) of the 1946 Law Reform Act is 50% to each of Hallmark and Copeland. Judgment will be entered in Mr Harford's favour against Hallmark for the full amount of his damages. There will be judgment in Hallmark's favour against Copeland for half that amount.

Hallmark's claim for contribution to its indemnity under s 151Z

On my finding that Harford Transport is not liable to Mr Harford in damages for negligence and that Hallmark is so liable, s 151Z(1)(d) of the Workers Compensation Act is engaged and Hallmark must indemnify Harford Transport for the workers compensation benefits that the latter has paid. It is not necessary for Harford Transport to invoke s 151Z(2)(e): cf South West Helicopters Pty Ltd v Stephenson [2017] NSWCA 312 at [173]. Section 151Z(1)(d) is in these terms: 151Z Recovery against both employer and stranger (1) If the injury for which compensation is payable under this Act was caused under circumstances creating a liability in some person other than the worker's employer to pay damages in respect of the injury, the following provisions have effect: … (d) if the worker has recovered compensation under this Act, the person by whom the compensation was paid is entitled to be indemnified by the person so liable to pay those damages (being an indemnity limited to the amount of those damages)
Copeland, as well as Hallmark, is a "person so liable to pay [Mr Harford's] damages" within the meaning of s 151Z(1)(d). In order for that sub-paragraph to apply it is not necessary that Mr Harford should have recovered judgment against the "person so liable". It is sufficient that "the injury … was caused under circumstances creating a liability in some person other than the worker's employer to pay damages". Hallmark has cross-claimed against Copeland, pleading that it is entitled under s 5(1)(c) of the 1946 Law Reform Act to contribution to the indemnity that must be paid to Harford Transport. Section 5(1)(c) is inapplicable. The liability of both Hallmark and Copeland is for a statutory indemnity, not for damages: Westpac Banking Corporation v Tomassian (1993) 32 NSWLR 207 at 215F-216A (Mahoney JA); South Eastern Sydney Area Health Service v Gadiry (2002) 54 NSWLR 495; [2002] NSWCA 161 at [12]. Insofar as Hallmark and Copeland are both liable to indemnify Harford Transport, s 151Z(1)(d) of the Workers Compensation Act does not make them "tort-feasors liable in respect of the same damage" within the meaning of s 5(1)(c).
Hallmark's cross-claim against Copeland in the s 151Z recovery proceeding has some utility with respect to the sharing of responsibility for interest payable on the statutory indemnity. The cross-claim is redundant so far as it seeks contribution towards the amount of the indemnity itself. This follows from sub-par (e1) of s 151Z(1), which is in these terms: (e1) if any payment is made under the indemnity and, at the time of the payment, the worker has obtained judgment for damages against the person paying under the indemnity (but judgment has not been satisfied), the payment, to the extent of its amount, satisfies the judgment.
Pursuant to this provision Hallmark may deduct from Mr Harford's judgment the full amount of the statutory indemnity to Harford Transport. It may pay the deducted amount directly to the employer and the balance of the judgment to Mr Harford, the two payments together constituting full satisfaction. In Mr Harford's action Hallmark will have judgment on its cross-claim against Copeland for 50% of Mr Harford's damages. Upon Copeland satisfying that judgment on the cross-claim, no further order is required in either proceeding for the purpose of limiting Hallmark's burden to 50% of the total that must be paid (aside from interest). Hallmark's objective in pursuing its cross-claims in the two proceedings has been to limit its exposure to a just proportion, assessed under s 5(1)(c), of the total that must be paid to Mr Harford and to Harford Transport. This is achieved, without resort to the cross-claim in the s 151Z proceedings, by the judgment for contribution in Mr Harford's action combined with sub-par (e1) of s 151Z(1).
In addition to its statutory indemnity, Harford Transport is entitled to interest up to judgment pursuant to s 100 of the Civil Procedure Act 2005 (NSW). The interest so payable is not the subject of the indemnity but will arise from an order under s 100 of the Civil Procedure Act: Howard Rotavator Pty Ltd v Wilson (1987) 8 NSWLR 498; Kwanchi Pty Ltd v Kocsis (1996) 40 NSWLR 270; The State of New South Wales (Government Cleaning Service) v Les Cooper (200) 49 NSWLR 221; [2000] NSWCA 148. It follows that Hallmark cannot treat the payment of interest on the indemnity as partial discharge of Mr Harford's judgment under sub-par (e1) of s 151Z(1)
The principle upon which Hallmark is entitled to contribution from Copeland toward the interest which it must pay on the indemnity is that stated by Gaudron A-CJ and Hayne J in Burke v LFOT Pty Ltd (2002) 209 CLR 282; [2002] HCA 17 at [15]-[16] (some citations omitted): [15] The doctrine of equitable contribution applies both at common law and in equity. It is usually expressed in terms requiring contribution between parties who share "co-ordinate liabilities" or a "common obligation" to "make good the one loss". More recently, in BP Petroleum Development Ltd v Esso Petroleum Co Ltd [1987] SLT 345 at 348 per Lord Ross referring to Caledonian Railway Co v Colt (1860) 3 Macq 833 at 844 per Lord Chelmsford, the right to contribution was said to depend on whether the liability was "of the same nature and to the same extent". [16] The notion of "co-ordinate liability" is one that depends on common interest and common burden. Perhaps because, at common law, there was no general right of contribution between tort-feasors, the notion of "co-ordinate liability" has not traditionally been expressed in terms requiring equal or comparable culpability or a requirement that the acts or omissions of the persons in question be of equal or comparable causal significance to the loss in respect of which contribution is sought. However, the requirement that liability be "of the same nature and to the same extent", as stated in BP Petroleum, is apt to include notions of equal or comparable culpability and equal or comparable causal significance.
McHugh J explained the doctrine of equitable contribution for co-ordinate liability in similar terms at [38]-[50]. In Burke v LFOT Pty Ltd the liability of the claimant for contribution and that of the person from whom contribution was sought were not of the same nature or extent. They were not co-ordinate liabilities. Contribution was not ordered. However, the liabilities of each of Hallmark and Copeland to indemnify Harford Transport in respect of workers compensation benefits are co-ordinate. Interest on the indemnity is therefore also a co-ordinate liability. Under the equitable principle, parties who share a common liability can only be required to contribute equally as between themselves. As it happens in the present case that coincides with my conclusion that Hallmark and Copeland bear equal responsibility as tortfeasors.

Orders

In proceedings No 2015/234127, Harford v Hallmark Construction Pty Ltd, there will be judgment for the plaintiff in the sum at which his damages have been agreed. There will be an order that the defendant pay the plaintiff's costs. Further orders will be made to the following effect: 1. 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 a sum equivalent to half the amount of the judgment in favour of Mr Harford. 2. The first cross-defendant is to pay the cross-claimant's costs of the further amended first cross-claim. 3. The further amended first cross-claim is dismissed as against the second, third and fourth cross-defendants, with costs. I will hear the parties as to whether Copeland should indemnify Hallmark in respect of the costs Hallmark must pay to the third and fourth cross-defendants (Insurers of ANM).
In proceedings No 2015/152742, Harford Transport Pty Ltd v Hallmark Construction Pty Ltd, there will be judgment for the plaintiff for the sum in which the recoverable benefits are agreed and there will be an order that the defendant pay the plaintiff interest up to judgment on the amount of those benefits. The defendant will be ordered to pay the plaintiff's costs. There will be further orders to the following effect: 1. Judgment for the cross-claimant (Hallmark Construction Pty Ltd) against the first cross-defendant (Copeland Building Services Pty Ltd) on the second further amended first cross-claim, in a sum equivalent to half the interest ordered to be paid by the defendant to the plaintiff. 2. The second further amended first cross-claim is dismissed as against the second, third and fourth cross-defendants, with costs. I will hear Copeland and Hallmark regarding the costs, as between those two parties, of the second further amended first cross-claim, including whether Copeland should indemnify Hallmark in respect of the costs Hallmark must pay to the third and fourth cross-defendants (Insurers of ANM).

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