MARICIC v DALMA FORMWORK

CATCHWORDS: NEGLIGENCE - duty of care owed by head contractor to subcontractor - employee of subcontractor injured by falling in a penetration in concrete floor - whether the contractor owed a duty to the subcontractor to ensure that its employee was not exposed to unreasonable risk - duty owed by labour hire firm to employee - EVIDENCE - onus of proof - which party had the onus of proving liability of employer for purpose of s151Z(2) of the Workers Compensation Act 1987 (NSW)

LEGISLATION CITED: Workers Compensation Act 1987 (NSW), ss 151H, 151L, 151Z, Part 5, Div 3

Almeida v Universal Dye Works Ltd (2000) 103 IR 433 Atkinson v Gameco (NSW) Pty Ltd [2005] NSWCA 338 Bourke v Hassett [1999] 1 VR 189 Clout Industrial Pty Ltd (In liq) v Biaida Poultry Pty Ltd (2004) 61 NSWLR 111 Currie v Dempsey (1967) 69 SR(NSW) 116 Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601. Emoleum (Aust) Pty Ltd v Bond [2004] NSWCA 352 Forstaff Blacktown Pty Ltd v Brimac Pty Ltd [2005] NSWCA 423 Gayfer v Leahy (unrep, 14 September 1984 CASES CITED: Kondis v State Transport Authority (1984) 154 CLR 672 Oxley County Council v MacDonald [1999] NSWCA 126 Rockdale Beef Pty Ltd v Carey [2003] NSWCA 132 Speirs v Caledonian Collieries Ltd [1957] SR (NSW) 483 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 Stewart v Dillingham Constructions Pty Ltd (1974) VR 24 Thompson v Woolworths (Q'land) Pty Ltd (2005) 221 CLR 234 Timberland Property Holdings Pty Ltd v Bundy [2005] NSWCA 419 TNT Australia Pty Ltd v Christie [2003] NSWCA 47 Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816

Zoran Maricic - Appellant PARTIES: Dalma Formwork (Australia) Pty Ltd - First Respondent/Cross Claimant Bovis Lend Lease Pty Ltd - Second Respondent Dee Why Enterprises Pty Ltd - Cross Respondent

Mr B. Toomey QC/Mr J. Fernan - Appellant COUNSEL: Mr D.P. O'Dowd - First Respondent, Cross Claimant Mr G.M. Watson SC/ Mr P.S. Braham - Second Respondent Mr J. McIntyre SC/Mr A. Capelin - Cross Respondent

CMC Lawyers - Appellant SOLICITORS: Curwood & Partners - First Respondent, Cross Claimant Yeldham & Associates - Second Respondent Moray and Agnew - Cross Respondent

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40148/05 DC 13478/01

BEAZLEY JA IPP JA BASTEN JA

30 June 2006 MARICIC v DALMA FORMWORK (AUSTRALIA) PTY LTD & ANOR The Appellant, Mr Zoran Maricic, appealed from a decision of the District Court which dismissed his claim in negligence against the head contractor, Bovis Lend Lease Pty Ltd and a formwork subcontractor, Dalma Formwork (Australia) Pty Ltd. The Appellant was employed by Dee Why Enterprises Pty Ltd, which contracted out his services to Dalma. Dalma was a subcontractor of Bovis, the project manager of the construction site. While working at the site, the Appellant put his foot in a "penetration" in a concrete floor and fell, suffering injuries. The District Court held that each of the Respondents owed a duty of care to the Appellant but found that there was no breach of duty. The issues for determination by the Court of Appeal were: (i) whether the trial judge erred in finding that there was no breach of duty by either Respondent; (ii) whether the Court should make findings with respect to liability of the Respondents and the employer under s151Z(2) of the Workers Compensation Act 1987 (NSW); (iii) whether each of the Respondents owed a duty of care to the Appellant, who was an employee of a subcontractor; (iv) on which party did the burden of proof lie with respect to the liability of the employer, and the extent of the liability; (v) whether there was contributory negligence on the part of the Appellant. Held by Basten JA (Beazley JA & Ipp JA agreeing): In relation to (i) The decision with respect to liability should be set aside. There was evidence sufficient to establish a breach of duty on the part of those responsible for taking reasonable steps to maintain the premises in a safe condition. The trial judge's reasons for concluding that there was no breach of duty were inadequate. His Honour erred by failing to focus on the precise circumstances of the accident: at [34]. Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816, applied. In relation to (ii) The Court should making a finding with respect to the lability of the Respondents as the Court was in as good a position as the trial judge to determine their liability and the proportionate liability of the employer: [39]. In relation to (iii)

1. The duty of care owed by the head contractor should be addressed as a separate issue in this case regardless of the roles of any independent contractors or subcontractors which may also be involved: at [42]. Almeida v Universal Dye Works Ltd (2000) 103 IR 433 distinguished; and Steven v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 15; Rockdale Beef Pty Ltd v Carey [2003] NSWCA 132, applied.
2. Bovis retained a level of control over the site and owed a duty to ensure that subcontractors and those working for them on the site were not exposed to unreasonable risk to their safety: at [53].
3. The evidence did not disclose the terms of the relationship between Dalma and Dee Why and, in a situation where Dalma rather than Dee Why had control of the workplace, it is impossible to exonerate Dalma from liability for an unsafe system of work: [56]. In relation to (iv)
4. In respect of the statutory reduction on account of the possible liability of the employer pursuant to s151Z(2)(c) of the Workers Compensation Act, where there is no proceeding against the employer, the defendant bears the onus of proving the liability of the employer: [71]. Forstaff Blacktown Pty Ltd v Brimac Pty Ltd [2005] NSWCA 423 per Hodgson JA, applied.
5. The liability of the employer must be assessed on the facts of each case. In the present circumstances, an apportionment of 20% liability to the employer is appropriate: at [74] - [75]. TNT Australia Pty Ltd v Christie [2003] NSWCA 47; Emoleum (Aust) Pty Ltd v Bond [2004] NSWCA 352, considered. In relation to (v) The duty of care imposed on an employer or occupier may extend to the taking of reasonable steps to avoid injury caused by inadvertent conduct on the part of a worker. Inadvertence may, but need not, involve a failure to take reasonable care for one's own safety. There is no basis for concluding that the Appellant was not taking reasonable care for his own safety and there should be no reduction for contributory negligence: at [79]. Thompson v Woolworths (Q'land) Pty Ltd (2005) 221 CLR 234 applied.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40148/05 DC 13478/01

BEAZLEY JA IPP JA BASTEN JA

30 June 2006 MARICIC v DALMA FORMWORK (AUSTRALIA) PTY LTD & ANOR Judgment 1 BEAZLEY JA: I agree with Basten JA. 2 IPP JA: I agree with Basten JA. 3 BASTEN JA: On 20 August 2001 the Appellant, Zoran Maricic, was working on a large construction site at Pyrmont in Sydney's inner west. He was carrying a large sheet of plywood, used for formwork to hold concrete, when he put his foot in a box-like "penetration" in the concrete floor on which he was walking. He fell, suffering an injury, but of no great severity. 4 The project manager on the site was the Second Respondent, Bovis Lend Lease Pty Ltd ("Bovis"). Bovis had entered into a contract with Dalma Formwork (Australia) Pty Ltd ("Dalma"), pursuant to which Dalma undertook the completion of formwork on certain levels and the stripping of existing works, where concrete had been poured. Dalma was the First Respondent to the appeal. 5 The Appellant was in fact employed by Dee Why Enterprises Pty Ltd ("Dee Why") a company engaged in the "labour hire business", which involved the provision of personnel employed by it to other business, such as the First Respondent, Dalma. 6 The Appellant commenced proceedings in the District Court, claiming damages in negligence for the injury he had suffered when he fell on 20 August 2001. Bovis, Dalma and Dee Why were all joined as defendants to those proceedings. However, it was clear well before the commencement of the hearing in the District Court that the medical evidence would not support a finding that the Appellant had suffered a degree of permanent impairment of at least 15%. Being unable to meet that standard, he was precluded from obtaining damages from his employer, by reason of the threshold imposed by s 151H(1) of the Workers Compensation Act 1987 (NSW). In the judgment below, the trial judge noted at [9]: "The plaintiff has no admissible evidence to meet that threshold and hence discontinued against Dee Why by consent on 17th April 2003 and filed on 2nd May 2003.

However, the defendants each maintained cross-claims against Dee Why and each other. 7 The hearing of the matter in the District Court proceeded over some 7 days in September and October 2004, judgment being delivered on 8 March 2005. The plaintiff was entirely unsuccessful, the trial judge ordering that there be a verdict for the remaining defendants (Dalma and Bovis) against the plaintiff and verdict in favour of the cross-defendants against the relevant cross-claimants. His Honour did not proceed to assess damages, in the event that he may have been wrong as to liability. 8 Generally speaking, it is appropriate that a trial judge who has heard all the relevant evidence in relation to the injury and the loss suffered should make an assessment of damages, in case a negative finding with respect to liability is reversed on appeal: see Gayfer v Leahy (unrep, 14 September 1984, Hutley AP, Glass JA agreeing). Given that his Honour was clearly of the view that the injury was not severe and given the likely costs of a 7 day trial, it is unfortunate that that practice was not followed in the present case. If the appeal is to be upheld, it is inevitable that the matter will have to be remitted to the District Court for a further hearing in respect of the assessment of damages.

Issues on appeal 9 The following issues require determination by this Court:

(1) Did the trial judge err in his finding that there was no breach of duty on the part of either Respondent? (2) If he did err, is it appropriate for this Court to make a finding with respect to liability of - (a) each of the Respondents, and (b) the employer? (3) On which party did the burden of proof lie with respect to the liability of the employer? (4) What was the extent of the liability of the employer, its function being limited to that of a "labour hire business"? (5) Should the plaintiff's entitlement be reduced on account of contributory negligence?

Judgment in District Court 10 Apart from the facts which have been recounted, the issues for determination fell within a narrow compass. On 20 August 2001 the plaintiff, and a fellow worker, Mr Samojko Borovcanin, were involved in stripping the plywood and wooden supports of the formwork away from concrete slabs which had been laid some 15 days earlier. They were working at a basement level known as "B2". The area in which they were working was approximately 40 metres by 60 metres, with some limited daylight at the end of the premises where there was a ramp leading on to the level. In addition it was artificially lit by some temporary lights affixed to the walls on three sides. The Appellant and his fellow worker were carrying sheets of plywood weighing between 16 and 20 kilos and measuring some 120 centimetres by 180 centimetres across the concrete floor and along what was described as a "walkway", approximately 50-60 centimetres wide: Tcpt, pp 24 and 26. 11 The hole into which the Appellant put his foot was to the right of the walkway, although the distance from the edge of the walkway was not clearly identified. The hole appears to have been approximately the same size as the sheets of plywood. It was the full depth of the concrete floor, namely 30 centimetres. It was in fact described as a "penetration" being a gap in the concrete floor through which services to or from the floor below were to be ducted. At the bottom of the hole was a wooden panel, presumably supported by timber affixed from below. 12 It would appear to have been a simple matter to place a similar sheet of plywood across the top of the hole, so as to obviate any danger or to place some form of barrier or tape around the hole, so as to make its presence clear and the danger obvious. 13 The trial judge held that each of the defendants owed a duty of care to the plaintiff, but found that there was no breach of the duty: at [28] and [29]. The reason for the latter conclusion was that the plaintiff had "not established that the lighting was inadequate". The finding in relation to liability turned entirely upon that factual conclusion. 14 The evidence in relation to the visibility of the hole was given by the plaintiff, his fellow worker, and Mr John Uremovic, who was the supervisor employed by Dee Why but working as the supervisor under Dalma's contract with Bovis. 15 It was put to Mr Uremovic that the natural light which came through at the ramp was of limited assistance. He gave the following evidence in cross-examination (Tcpt, p 264): "Q. What I am suggesting to you is the light that came through that area was filtered and relatively dim? A. We don't rely on that, that's the thing. Q. Because it doesn't provide much illumination does it? A. We provide our own lights to do our tasks. Q. That natural light did not provide any adequate illumination? A. Well, a bit, but not much." 16 Mr Uremovic also gave evidence that there was no overhead lighting. He agreed, accordingly, that the only relevant lighting was that temporarily located around the three walls of the basement. That evidence was largely consistent with the evidence of the plaintiff and Mr Borovcanin. 17 Mr Uremovic's evidence was that neither the natural lighting nor the temporary lighting on the walls was sufficient to work by and that to erect or strip formwork Dalma provided its own stronger, movable lighting, described as "task lighting": Tcpt, pp 254 and 264. Clearly for work purposes, neither the temporary light nor the natural light would be described as "adequate". 18 Whether the lighting was 'adequate' for observation of the hole, which was otherwise unmarked, required a consideration of the circumstances in which the plaintiff (and no doubt other workers) passed by the hole. The plaintiff gave uncontradicted evidence that he was carrying a sheet of plywood of the size noted above. He held it on his right side with his right hand under the sheet and his left hand on the top edge of the sheet. His view on the right hand side would be partly obscured. Further, the diagrams drawn by the plaintiff and by Mr Borovcanin indicate that, apart from the penetration, there were piles of steel and timber on the floor, a circumstance which no doubt affected the ease with which the penetration could be seen. On the plaintiff's left, as he walked down the "walkway", were a series of steel reinforcing rods projecting from the concrete to a distance variously described by the plaintiff as 10 centimetres and 40-50 centimetres. (These measurements may not have been inconsistent, as there was a concrete ramp to be constructed over the steel.) 19 The adequacy of the lighting could be tested, in part, by its effectiveness. The plaintiff gave evidence that he was not aware of the penetration before he placed his foot in it and fell. That evidence was not challenged in cross-examination and should have been accepted. The plaintiff also gave evidence that he could not see the hole and that the light in the area at the time of the accident was "very poor". There was no cross-examination which directly challenged that evidence either. To that point it might have been thought that the plaintiff had established a prima facie case that the penetration was not obvious, that it was not marked in any way, and that the lighting was not adequate to reveal it in a satisfactory manner. 20 The evidence of the plaintiff with respect to the lighting was supported by Mr Borovcanin who gave the following evidence (Tcpt, p 184-185): "Q. You say that there was some temporary lighting there and the natural light was coming in and you say - could you tell the Court the description of the combination of the natural light and the electrical lighting in this area? A. You couldn't see clearly. Q. On the morning of 20 August 2001 how would you describe the natural light that was coming into this work area? A. That day was cloudy day and you - it was dark on the outside as well. It was winter time. Q. When you were walking around this area was it easy to walk or how would you describe it? A. It wasn't [an] area that you could easily walk, it was dark. One has to keep an eye on everything to be careful." 21 Mr Borovcanin gave evidence that a man with cleaning materials had also fallen into a hole in the concrete: Tcpt at 185. He also gave evidence that after the accident two men employed on site came to look at the hole and following their departure he had placed a full-sized piece of plywood across the hole, covering the whole area: Tcpt, p 196. 22 The trial judge dealt with the matter in his reasons in the following passage at [25] and [26]: "The main count of negligence seems to be that the area was dark. There are two conflicting views on this, one by the foreman who said the lighting 'wasn't that bad, it wasn't poor' and one by the plaintiff and his witness who said that the lighting was very poor. There was lighting around the walls, temporary lighting, of course, as it was a building site. The light was adequate enough for the witness, Mr Borovcanin to see that the worker stumbled and fell. … Given the contradiction in the evidence as to the lighting I am not satisfied that I accept the plaintiff's evidence and that of Mr Borovcanin that the lighting was inadequate since I do not find them to be reliable witnesses; rather I accept the evidence of Mr Uremovic that the lighting was adequate. Where Mr Uremovic and the plaintiff and Mr Borovcanin conflict I accept the evidence of Mr Uremovic." 23 There was also evidence that the plaintiff and Mr Borovcanin had been working on the level on previous days. Mr Borovcanin said that he and the plaintiff had been working on the level "for about 3 or 4 days in all": Tcpt, p 200. On this basis his Honour concluded at [27]: "The fact of 'penetrations' was obvious and the plaintiff knew or ought [to] have known of their existence."

The appeal on liability 24 On the appeal, the plaintiff placed at the forefront of his grounds of appeal, the proposition that the trial judge had failed to provide adequate reasons for his judgment: Amended Notice of Appeal, 9 May 2006, ground 1. While it is true that a judicial officer has a duty to disclose the reasoning process by which he or she reaches a conclusion, and while the reasoning disclosed in the judgment under appeal is sparse, I see no reason to assume that his Honour did not disclose such findings of material fact as he made, nor that he failed to explain the reasons he in fact adopted for reaching his conclusion. In considering a similar ground in Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816 at [130], Hayne J stated: "Rather, because the primary judge was bound to state the reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result. Understanding the reasons given at first instance in that way, the error identified in this case is revealed as an error in the process of fact-finding. In particular, it is revealed as a failure to examine all of the material relevant to the particular issue."

The present case should be approached on the same basis. 25 First, to describe the evidence of the plaintiff and Mr Borovcanin as contradicting the evidence of Mr Uremovic is an oversimplification which obscured the real issue, that being whether those responsible for the safety of the work environment had taken all reasonable steps to ensure that unnecessary dangers were removed and that other obstacles to safe work were clearly marked. That duty extended to the safety of a worker carrying a large sheet of timber who might inadvertently stray from a narrow walkway and who might need to carry the timber in a manner which imposed a significant limitation on his field of vision. Furthermore, Mr Uremovic accepted the need for "task lighting", which were mobile lights used to supplement the existing lighting wherever work was taking place. There was no task lighting to illuminate the walkway and its surrounds. 26 Secondly, to say that the fact of penetrations was obvious and that the plaintiff knew or ought to have known of their existence is no doubt true, but it operates at a level of generality which provides little assistance with respect to the placement and visibility of the particular penetration into which the plaintiff fell. It was by no means clear that this particular penetration was "obvious" to the plaintiff at the time he put his foot in it, given the nature of the work being undertaken. 27 Thirdly, the trial judge relied upon the light being adequate enough for Mr Borovcanin to see the plaintiff when he stumbled and fell. Mr Borovcanin was only two metres behind him at the time of the accident, so that his ability to see the plaintiff fall can have had little if any bearing on the adequacy of the lighting. On the other hand, Mr Borovcanin gave the following evidence in cross-examination (Tcpt, p 199): "Q. In order to step into the hole you had to leave - veer off the walkway, is that correct? A. I don't recall exactly whether I had to veer or not off this pathway because it was so close it was on the verge of this pathway and I don't recall veering off in order to pass through. Q. You had seen the hole before this accident? A. No, I didn't see it before the accident." 28 The basis on which the trial judge treated Mr Borovcanin as unreliable was identified as follows at [15]: "The evidence of his fellow worker Mr Borovcanin supported the plaintiff's description in the accident but was wrong in a particular, namely that the foreman on the job, Mr John Uremovic, was present soon after the accident occurred." 29 Mr Borovcanin had identified two people as visiting the area between 1 and 2pm on the day of the accident, one being Mr Uremovic and the other being the safety officer from Lend Lease known as "Anta". Mr Uremovic gave evidence that he was not at work on that day, but confirmed that Mr Ante Zrilic was the safety officer for Bovis. He confirmed that Mr Borovcanin had shown him where the accident occurred, but said it was the day after and not the day of, the accident: Tcpt, p 274. Accepting that Mr Borovcanin made such a mistake, it is difficult to understand why it rendered his description of the accident unreliable. The timing of the inspection was of no particular significance to the outcome of the proceedings. 30 It was put to Mr Borovcanin (at first by way of an assumption, but then expressly) that he was a friend of the plaintiff, a fact which he denied. Further cross-examination did not elicit any relevant connection between them, other than that they had been work colleagues for a period and his Honour did not make a finding based on partiality. Accordingly, there was no valid reason to reject Mr Borovcanin's evidence as to the relatively straightforward questions of how the accident occurred, as to the visibility of the particular penetration and as to the state of the lighting. 31 The reason given for rejecting the plaintiff's evidence was that he had exaggerated the symptoms of his injury. Again, while the premise may be accepted, it is clear that in material respects his description of how the accident occurred was uncontroversial and was accepted. The reason for rejecting his description of the lighting, which was at best impressionistic, is unclear. 32 The basic facts established by the plaintiff were as follows. First, whilst carrying a large sheet of plywood, he put his foot in a penetration in the concrete floor and fell heavily. Secondly, he did not see the penetration before he fell. Thirdly, there was no cover over the penetration, nor was it otherwise marked. Fourthly, the lighting may have been sufficient to show the penetration to a person looking in the right direction, but that would not necessarily assist a person who was not looking for it and who was carrying a large sheet of plywood which obstructed his view on the right hand side of his path. Fifthly, the penetration was close to a narrow pathway which they were using. And sixthly, both the plaintiff and Mr Borovcanin said they had not seen or known of the position of the specific penetration before the plaintiff fell in it. 33 To these factors may be added the unchallenged evidence that the hole in the concrete could easily have been covered and that, once he was aware of its presence, Mr Borovcanin himself took the initiative and placed a sheet of plywood over it. 34 The trial judge accepted that each of the defendants owed the plaintiff a duty in relation to the safety of the premises on which he was working. (It will be necessary to return to the duty owed particularly by Bovis but also by Dalma, each of which is in dispute.) The danger created by an uncovered hole in the concrete floor proximate to a walkway being used by workmen undertaking a designated task, constituted a real risk of injury, should one of the workmen inadvertently step in the hole. These circumstances are sufficient to establish a breach of duty on the part of those responsible for taking reasonable steps to maintain the premises in a safe condition, accepting that the premises were a work site, under construction. His Honour's reasons for concluding that there was no breach of duty were inadequate. The error may best be described as a failure to focus on the precise circumstances of the accident which occurred. The decision with respect to liability should be set aside.

Determination of liability 35 The next question is what further steps should be taken by this Court. The Appellant contended that the Court should make a finding of liability in his favour and remit the matter to the District Court for assessment of damages. The Respondents, on the other hand, argued that there should be no finding of liability, for two main reasons. One argument concerned the position of Bovis (and to a lesser extent Dalma) and was specific to the particular respondent; the other concerned the operation of s 151Z of the Workers Compensation Act, and applied generally. It is convenient to consider the latter argument first.

Apportionment of liability 36 Assuming that both Respondents were responsible for the condition of the premises, and accepting that the employer, Dee Why, could not be liable for any part of the damages because the severity of the injury did not pass the statutory threshold, nevertheless, the extent of the liability of Dee Why remained relevant to the damages payable by the Respondents. That followed from the operation of s 151Z(2) of the Workers Compensation Act which, so far as relevant, read as follows: (2) If, in respect of an injury to a worker for which compensation is payable under this Act: (a) the worker takes or is entitled to take proceedings independently of this Act to recover damages from a person other than the worker's employer, and (b) the worker also takes or is entitled to take proceedings independently of this Act to recover damages from that employer, the following provisions have effect: (c) the damages that may be recovered from the person by the worker in proceedings referred to in paragraph (a) are to be reduced by the amount by which the contribution which the person would (but for this Part) be entitled to recover from the employer as a joint tortfeasor or otherwise exceeds the amount of the contribution recoverable, (d) the amount of the contribution that the person is entitled to recover from the employer as a joint tortfeasor or otherwise is to be determined as if the whole of the damages were assessed in accordance with provisions of Division 3 as to the award of damages … ." 37 The effect of this provision is that, even if, because of the thresholds now contained in Part 5 of the Workers Compensation Act, the employer is not liable to the worker in damages, if it is a joint tortfeasor (being the relevant source of liability for present purposes) the damages payable by the other tortfeasor(s) will be reduced by the proportion for which the employer would have been liable, but for the operation of other provisions in Part 5. 38 No apportionment is required as between Bovis and Dalma, because they have reached agreement as to their respective liabilities. Nevertheless, they both argue that the question of liability should be remitted to the District Court so that an assessment may be made of the proportionate liability of Dee Why. 39 That argument is unpersuasive. Each of the parties had an opportunity at trial to present any evidence on which it might have sought to rely, for the final determination of liability in this case. Apart from documentation relating to the contractual arrangements between Bovis and Dalma, the only evidence called which was directly relevant to this issue was that of Mr Uremovic. There was no issue as to his reliability or as to his credibility. Accordingly, this Court is in as good a position as the trial judge to determine the proportionate liability of the employer and should do so.

Liability of Bovis 40 Bovis raised a separate argument to the effect that it should be exonerated from liability to the plaintiff in any event. It was a project manager and could not be held liable for the negligence of its sub-contractors. Further, it had a contractual arrangement with Dalma by which Dalma was responsible for the safety of those involved in the formworks. 41 There was some doubt, during the course of argument, as to whether Bovis' contentions involved a denial of any duty owed to the plaintiff (which might have required a notice of contention) or whether it was limited to the proposition that there had been no breach of any duty owed. For present purposes, it is convenient to assume that it was entitled to, and did, place its argument upon the broader contention, which included a challenge to the existence of a duty of care. 42 The duty of a head contractor is sometimes discussed by way of exceptions to the general rule that a principal is not liable for the negligent conduct of its independent contractor: see, eg, Almeida v Universal Dye Works Ltd (2000) 103 IR 433 at [148]-[150] (Santow AJA). An alternative approach is to address the duty of care owed by the head contractor as a separate issue, regardless of the roles of any independent contractors or sub-contractors, which may also be involved in the conduct in question. The latter approach was adopted in Rockdale Beef Pty Ltd v Carey [2003] NSWCA 132, Ipp JA (Mason P and McColl JA agreeing). The present case was addressed on the latter basis, which is appropriate to its circumstances. 43 The reasoning of Ipp JA in Rockdale in turn is based on the approach adopted by the High Court in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16. Stevens involved the separate activities of fellers, sniggers and truck drivers, in undertaking what was described by Mason J (at p 30) as "an intricate process of extracting timber from the forest and delivering it to the saw mill", being carried out in mountainous terrain. As his Honour further noted (at p 31) it was the "interdependence of the activities" which created the need for co-ordination by the head contractor and the provision by it of a safe system of work. 44 Rockdale was a case in which a stockman working on a feed-lot was injured when a steer, which had turned back in a race, struck the plaintiff's horse as he was seeking to prevent its escape. In relation to the opinions expressed in Stevens, Ipp JA said that the nature and extent of the duty of care must be established by reference to the general law of negligence: the examples given in Stevens were not exhaustive of the class. His Honour said (at [84]): "Such a duty may arise in circumstances where there is no need for the entrepreneur to give directions as to when and where the work is to be done and to co-ordinate the various activities, but where, for other reasons, reasonable care on the part of the entrepreneur affects the way in which the work is to be undertaken and the safety of the work site, and where other considerations (not applicable in Stevens …) such as vulnerability, inequality of bargaining power, control, and other manifold factors that the law recognises as being relevant to the existence of a duty of care, are present." 45 As noted above, Bovis had entered into a sub-contract with Dalma, pursuant to which Dalma was responsible for the completion of certain formwork and the stripping of other formwork, after the concrete had been poured. It was assumed by the parties that the contractual arrangements between Bovis and Dalma were properly reflected in a sub-contract dated 14 September 2001, despite the fact that the accident had occurred approximately one month earlier. It was further assumed that a "project safety plan" prepared for the Dalma sub-contract, formed part of the contractual relationship. So far as the plan was concerned, attention was directed to a table identifying "job steps", potential hazards, controls and "person who ensures this happens". Under the step "Erection and stripping of false work and formwork", one of the potential hazards identified was "worker falling". The control to be undertaken was identified as "ensure handrails, scaffolding in place, ladders secure, penetrations covered". The person responsible was identified as J. Uremovic, being one of the on-site personnel nominated by Dalma for the purposes of the project, under clause 4.1 of the sub-contract. 46 Pursuant to clause 3.4 of the sub-contract, Dalma was "entitled to access to and possession of so much of the Site as is reasonably necessary to enable the Subcontractor to carry out the Works". However, Bovis (described as "BLL") was entitled to impose restrictions on possession of the site and clause 3.5 stated: "The Subcontractor acknowledges that other subcontractors and persons (including BLL's Construction Employees) will be working on the Site concurrently with and in close proximity to the Subcontractor. The Subcontractor must co-operate at all times with BLL and other subcontractors and persons on the Site so as to allow the project to proceed expeditiously." 47 Whilst Bovis emphasised the contractual arrangement with Dalma, imposing responsibility on Dalma for safety associated with the formworks, including specifically covering the penetrations in the concrete, there are other factors which indicate a continuing duty of care owed by Bovis. First, Bovis expressly retained ultimate control over the site, and required co-operation with other subcontractors and workers, including employees of Bovis itself. In this respect, Bovis exercised a level of control and co-ordination similar to that identified in Stevens, but in relation to a project which undoubtedly involved a far more complex network of subcontractors than that involved in the logging operation undertaken by Brodribb. 48 Thus, Mr Uremovic was asked if he had received drawings from Bovis as to the requirements for formwork and agreed that he had. The questioning continued, at Tcpt pp 265-266: "Q. You carried out the work according to those drawings? A. That's correct. Q. You did the floor in respect to the second level? A. Yes, I did. Q. And part of the drawings was this particular penetration? A. Yes. Q. For the penetration there had to be set up specifically, that is it had to be formed? A. Yes, it did. Q. So you were aware of it? A. Yes. Q. And of course Bovis Lend Lease were aware of it? A. Yes. … Q. In respect to safety procedures, the procedures that were to be followed were set down by Bovis Lend Lease in relation to the subcontractors? A. We had to submit a safety plan, yes, as a company and risk assessments with the statements, yes. We have to work to our own, not to Bovis's. … Q. In respect to Bovis Lend Lease regarding this particular project they took a reasonably strong position in respect to the safety on the site? A. Yes, they did. Q. That's in respect of all the employees that were engaged on the site? A. Yes. … Q. In your position as foreman you had daily - you had daily contact with Bovis Lend Lease? A. Yes. Q. And they discussed with you on-going safety matters or safety issues on the site? A. Yes, we did a safety walk every week and if there's anything out of the ordinary we would pick it up during the day. 49 Further, it is clear that Bovis accepted a level of on-going responsibility for safety on the site as indicated by the presence of its own safety officer, Mr Ante Zrilic, as described by both Mr Borovcanin and Mr Uremovic. 50 Finally, whilst the contractual arrangements between Bovis and Dalma may be effective to determine responsibility for breach of safety in certain circumstances, as between the parties to the contract, that contract will not determine the extent of a duty owed to a third party. Further, the contract made no express provision in relation to matters such as lighting, in areas where work was being undertaken. 51 As explained in Thompson v Woolworths (Q'land) Pty Ltd (2005) 221 CLR 234 at [24] the status of a person as occupier of the land is a significant aspect of the relationship that may give rise to a duty of care, because of the measure of control that the occupier exercises. However, the Court continued: "That is not to say, however, that the law now disregards any aspect of the relationship between the parties other than that of occupier and entrant. On the contrary, other aspects of the relationship may be important, as considerations relevant to a judgment about what reasonableness requires of a defendant, a judgment usually made in the context of deciding breach of duty (negligence)." 52 The appellant in Thompson was involved in making deliveries to the Respondent's premises "in the pursuit of her own business", as an independent contractor. The Court continued, at [27]: "Even so, the respondent established and maintained a system, and its obligation to exercise reasonable care for the safety of people who came onto its premises extended to exercising reasonable care that its system did not expose people who made deliveries to unreasonable risk of physical injury." 53 In the present circumstances, there is no doubt that Bovis retained a level of control over the site and owed a duty of care to ensure that subcontractors and those working for them on the site were not exposed to unreasonable risks to their safety. It may be that, as between Bovis and Dalma, the bulk of the liability should rest on Dalma. However, that is not a matter which the Court is required to address; the only question is whether Bovis bore any part of the responsibility, however small. In my view it is not entitled to be exonerated from liability. Bovis was partly responsible for the Appellant's injury.

Responsibility of Dalma 54 Dalma also sought to resist responsibility on the basis that liability for negligence was entirely a matter for the plaintiff's employer, Dee Why. According to its approach, Dalma had delegated its responsibility for safety, which it had accepted under its contract with Bovis, to Dee Why. Thus, so it was argued, Mr Uremovic was not only a supervisor for Dalma, but was the supervisor on the site for Dee Why, and hence was responsible for any breach of duty owed to other employees of Dee Why working for Dalma. In his evidence, Mr Uremovic agreed that he worked for Dee Why and continued, at Tcpt p 252: "Q. Were you only supervising that, that is to say the carpenters and the strippers or did you have some other role on the site? A. I virtually managed the whole site on the formwork part of things." 55 Reliance was placed on the proposition that, because Mr Uremovic was employed by Dee Why, as were the formworkers for whom he was responsible, he supervised the work on the site on behalf of Dee Why and not on behalf of Dalma. However, it is clear that the work was being done by Dalma in accordance with its contract with Bovis: see [47] above. Mr Uremovic was named by Dalma as its on-site supervisor in its contract with Bovis. While Mr Uremovic may have had dual roles, it is not possible to describe his position on-site as an exercise of his responsibility solely on behalf of his employer, Dee Why. 56 Indeed, there is some difficulty in accepting the initial step in Dalma's argument, namely that it had delegated its responsibility for safety to Dee Why. Although the contractual arrangement with Bovis, by which Dalma accepted responsibility for safety in relation to formwork was in evidence, no documentation was tendered which evidenced the contractual relationship between Dalma and Dee Why. The evidence simply does not disclose the terms of that relationship and, as will be noted below, in a situation in which Dalma, rather than Dee Why, had control of the workplace, it is impossible to exonerate Dalma from liability for an unsafe system of work. Thus Dalma was liable to the Appellant.

Responsibility of employer 57 Consistently with established authority, it was accepted that Dee Why, as employer, even in the limited role of a "body hire company" remained liable at all times for the safety of its employees: see TNT Australia Pty Ltd v Christie [2003] NSWCA 47 at [63]-[65] (Mason P), applying Kondis v State Transport Authority (1984) 154 CLR 672 at 687-688 (Mason J). Rather, the question turned upon the relevant proportion which should be attributed to it as the Appellant's employer. 58 In Atkinson v Gameco (NSW) Pty Ltd [2005] NSWCA 338 Ipp JA (with whom Giles JA and Hunt AJA agreed) adopted as a correct statement of principle, the following passage from the judgment of Winneke P (with whom Brooking and Buchanan JJA agreed) in Bourke v Hassett [1999] 1 VR 189 at [42]: "One can conceive of a multitude of circumstances where workmen are sent to work upon premises controlled by others in which the impact upon the discharge of the employer's duty will vary. It will depend no doubt upon such matter as the employer's opportunity to inspect the premises, the length of time the employer has put his employees to work on the premises, the awareness in the employer of the danger, his capacity to shield his employees from the danger and various other factors." 59 All of the relevant considerations, so far as the position of Dee Why was concerned, turned upon the knowledge, experience, diligence and responsibility of Mr Uremovic. He was the supervisor appointed by Dalma, but supplied by Dee Why. It is apparent from the contractual material and from the evidence of Mr Uremovic that he was responsible for ensuring that Dalma carried out its contractual obligations under the formwork sub-contract with Bovis. Apart from the fact that he was supplied to Dalma, by inference as a competent supervisor, there is a paucity of evidence as to his relationship with Dee Why. The plaintiff gave evidence that he started work on the building site around about June, as an employee of a personnel company identified only as "Emerson Formwork": Tcpt, p 11. When Emerson went out of business it appears that he and Mr Uremovic were employed by Sydney Labour Hire and then by Dee Why. 60 Mr Uremovic gave evidence that he had commenced on the site as an employee of Emerson in about May, rather than June, as the plaintiff suggested. He agreed that Emerson had supplied formwork materials, including plywood, supports and beams. The managing director of Emerson had given him a set of construction plans for the formwork, but took no part in supervising the men on the site: Tcpt, p 258. At some stage it appeared that the workers commenced using materials supplied by Dalma, but nothing much seems to have turned on that evidence: Tcpt, p 259. It is a possible inference that when Emerson was undertaking the formwork, they were both the subcontractor and had their own labour. That position may have changed when they went out of business, but it is not possible to draw any firm inference in that regard. However, the evidence of Mr Uremovic was that work recommenced with Dee Why as the supplier of labour (being the same men that had been working there prior to Emerson's demise) at about the end of July, namely two or three weeks before the accident: Tcpt, p 261. 61 None of the parties suggested to the Court that there was any greater level of information available from the evidence, which might be relevant to the responsibility of Dee Why for the accident. If it had any control over the site or the systems of work which were adopted on the site, it must have been through Mr Uremovic. However, because the contractual relationship between it and Dalma was not in evidence, no clear inference can be drawn in this respect. Similarly, although Dalma called Mr Uremovic, it asked him no questions about his relationship with Dee Why. However, he was cross-examined by counsel for Dee Why, which was a cross-respondent in the proceedings below, after the plaintiff had discontinued against it.

Onus of proof: liability of employer 62 The uncertainties relating to the contractual arrangements and the practical steps which might have been taken, or which arguably should have been taken, by Dee Why, give rise to a real issue as to the party on whom lies the burden of proof with respect to factual matters relevant to the liability of the employer. 63 Restrictions on the ability of an injured worker to sue his or her employer, in circumstances where a cause of action may be available against joint tortfeasors, have given rise to significant issues of statutory construction, particularly in relation to hypothetical proceedings and transitional issues upon amendments to the Workers Compensation Act: see Clout Industrial Pty Ltd (In liq) v Baiada Poultry Pty Ltd (2004) 61 NSWLR 111. Amendments to the Workers Compensation Act, introducing a threshold, came into force on 27 November 2001. The present proceedings appear to have been commenced, in some form, on 26 November 2001, against the employer, but possibly not against other parties. As already noted, the plaintiff discontinued against his employer. In any event, no transitional issue is raised in argument in the present case, the matter being dealt with on the basis that the 15% permanent impairment threshold applied. 64 The question as to the party bearing the onus of proof in determining any reduction of the amount payable by the joint tortfeasor pursuant to s 151Z(2)(c) has not been authoritatively determined. In Forstaff Blacktown Pty Ltd v Brimac Pty Ltd [2005] NSWCA 423 (5 December 2005) a view as to the party bearing the burden of proof was expressed by McColl JA, in a passage to which reference will be made below. Hodgson JA, however, expressed a contrary view and Ipp JA expressed no opinion on the issue. Hodgson JA held that it was not necessary to determine the matter in those proceedings and Ipp JA implicitly agreed with that view. 65 The issue, as identified by McColl JA in Forstaff at [82] and [83] concerned the onus of proof in assessing what the plaintiff worker's damages would be if assessed under Part 5, Div 3 of the Workers Compensation Act for the purposes of s 151Z(2)(d). That provision requires that the amount of contribution that the joint tortfeasor is entitled to recover from the employer is to be determined as if the whole of the damages were assessed in accordance with the provisions of Part 5, Div 3. However, once it is accepted that the plaintiff does not reach the threshold under Part 5, Div 3, there is no issue as to contribution. 66 Under s 151Z(2)(c), that which must be assessed is the contribution which the joint tortfeasor would be entitled to recover from the employer, but for Part 5. That does not raise an issue as to the quantum of damages, because, absent Part 5, they may be assumed to be the same common law quantification which would be made in relation to both the employer and the joint tortfeasor. The question of burden of proof in that case is solely related to the respective liabilities of the tortfeasors, a matter which is, arguably, of no interest to the plaintiff. The plaintiff is entitled to a judgment against each joint tortfeasor for the full amount of his or her loss; questions of apportionment may arise, but only in proceedings for contribution: see Timberland Property Holdings Pty Ltd v Bundy [2005] NSWCA 419. 67 In Forstaff, at [91] McColl JA concluded: "The effect of s 151Z(2), if applicable, is that a plaintiff worker cannot recover damages against the non-employer tortfeasor unless (assuming that person is entitled to contribution from the employer) the s 151Z(2)(c) and (d) calculations are undertaken. The plaintiff worker is at risk of not having discharged the onus of proving damages if that calculation cannot be performed. In such circumstances, in my view, the plaintiff worker bears both the legal and evidentiary onus of establishing what, if any, damages would be assessed for the purposes of the hypothetical s 151Z(2)(d) exercise." 68 Although there is a suggestion in the second sentence of this extract that there is only one "calculation" to be performed, it is clear from the previous sentence that there are in fact separate calculations to be undertaken pursuant to paragraphs (c) and (d). For present purposes it is not necessary to consider whether the burden of proof would be the same in each case, but it is clear that the terminology differs. Thus, paragraph (c) commences with an assumed amount of damages, being the loss established by the worker, and requires that amount to be "reduced" by another amount which takes account of an hypothetical contribution recoverable from the employer. Paragraph (d) is solely concerned with the calculation of the contribution. 69 The reasoning of McColl JA was directed to establishing the correct approach by analogy with common law principles. Because s 151Z(2) is silent as to where the burden of proof lies, her Honour assumed that there was no intention to vary the analogous common law principle. By contrast, as her Honour noted, when it was intended to place the burden of proof of mitigation on the plaintiff, contrary to the common law position, that was expressly done in s 151L(3). As her Honour then reasoned, an analogous situation at common law was a claim by a dependant upon the death of a worker. In that case, the loss to be compensated was the loss resulting from the death of the individual reduced by any benefits flowing from his or her death, from whatever source. The principle espoused was that set out in Stewart v Dillingham Constructions Pty Ltd [1974] VR 24 at 28, applying, in turn, Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601. 70 However, the analogy is by no means complete: the loss suffered by the plaintiff in a dependency claim required the calculation of two elements, one of which was to be offset against the other. Each was, in the language of Walsh J in Currie v Dempsey (1967) 69 SR(NSW) 116, an essential element in the cause of action. The various provisions of s 151Z do not affect the plaintiff's cause of action. They depend entirely upon reapportionment of the contributions as between an employer and a non-employer joint tortfeasor. The general principle is that a plaintiff is entitled to a judgment in full against each concurrent tortfeasor, whatever the contribution one might be entitled to recover from the other: see Speirs v Caledonian Collieries Ltd [1957] SR (NSW) 483 at 503 (Street CJ and Herron J) and at 511-512 (Myers J). That principle has not been varied by s 151Z of the Workers Compensation Act: see Oxley County Council v MacDonald [1999] NSWCA 126 at [51] (Sheller JA), applied in Timberland Property Holdings Pty Ltd v Bundy [2005] NSWCA 419 at [57]. If the statutory scheme provides that the judgment against one tortfeasor must be adjusted, on account for example of workers compensation payments, the amounts may not be the same. Nor has it ever been held that an injured worker cannot succeed unless he or she can establish with precision the amount received on account of workers compensation payments, which must be offset against the liability of the employer. 71 Thus, in respect of the statutory reduction on account of possible liability of the employer, pursuant to s 151Z(2)(c), the preferable approach is that adopted by Hodgson JA in Forstaff at [5], where his Honour concluded that different questions may arise depending on whether there is or has been a proceeding against the employer. Thus his Honour stated: "However, in my opinion the position concerning onus of proof may be different if the proceedings brought by the worker against the person other than the employer are heard on their own, in the absence of or prior to the hearing of contribution proceedings brought by that person against the employer. It seems to me that that person, as defendant in the proceedings brought by the worker, must have the onus of proving the elements set out in par. (c) in order to obtain any reduction of damages: that is, there will be no reduction of damages … unless the defendant proves that it would, but for Part 5 of the Workers' Compensation Act, be entitled to recover an amount from the employer and that the contribution actually recoverable is nil." 72 Applying that principle, no question arises in the present case as to whether the plaintiff suffered a degree of permanent impairment of 15% or more: it is conceded on all sides that he did not. However, if the present Respondents seek to establish that the employer bore a particular level of liability, they would need to establish the facts to support that conclusion. In the present case, the Appellant conceded (as he appears to have done at trial) that Dee Why might bear 10% of the responsibility for the accident. The Respondents contended on appeal for a far higher percentage, Bovis submitting an apportionment to the employer of between 50% and 60%, whilst Dalma submitted that the employer's responsibility was "at least 50%". 73 As noted above, at the hearing the Respondents reneged on the position taken in their written submissions, namely that this Court should apportion liability as between either or both of them and the employer. For reasons already noted, this Court should apportion liability. 74 In other cases involving labour hire employers, including TNT v Christie, the liability of the employer has been fixed at 20%: see also Emoleum (Aust) Pty Ltd v Bond [2004] NSWCA 352 at [74]-[78] (Mason P, Giles JA and Santow AJA agreeing). However, that should not be treated as a standard; rather the liability of the employer must be assessed on the facts of each case. A high percentage was suggested in the present case because Dee Why had supplied the supervisor as well as the labourers. If, to a significant extent, the supervisor had been negligent in allowing the penetration to remain unmarked and uncovered, that liability should be treated as the liability of his employer as well as that of Dalma. On the other hand, it was not established that Mr Uremovic had any position in Dee Why other than that of a supervisor available for appointment to a building contractor. 75 Nevertheless, the knowledge of the supervisor should be attributed to Dee Why because he was supplied by Dee Why to carry out that function. Having recently taken over employment of the men working for Dalma who had knowledge of the work to be undertaken and the means available to them to do it, in circumstances where there was some urgency in continuing the work following the collapse of Emerson, it is not clear what specific steps could reasonably have been taken by Dee Why. No doubt one might infer that a senior manager from Dee Why might have inspected the site with Mr Uremovic during the two or three weeks between the time it took over the employment of the men and the date of the accident. Had that step been taken, it might have been reasonable to expect that the penetration, and the potential risk it created, might have been identified. By contrast, Dalma and Bovis were in control of the site on a daily basis and must between them bear the bulk of the responsibility. In the circumstances an apportionment of 20% liability to the labour hire company is appropriate. 76 It may be seen as something of an irony that the division of responsibility between subcontractor and employer results in the subcontractor not obtaining the benefit of the threshold under the Workers Compensation Act. However, that is no doubt a factor to be weighed in the balance against the benefits which otherwise flow from the division of functions between contractor and employer. It was not suggested that the Workers Compensation Act should apply otherwise than as discussed above.

Contributory negligence 77 Each of the Respondents contended that any finding of liability should be subject to reduction on account of contributory negligence on the part of the Appellant. The argument was based on the proposition that the Appellant "had an ability to see the hole" and that, having traversed the area prior to the accident, "should have been aware of its existence". 78 The trial judge expressed a similar view at [27] in a passage set out [23] above. 79 It is clear that the duty of care imposed on an employer or occupier may extend to the taking of reasonable steps to avoid injury caused by inadvertent conduct on the part of a worker. Inadvertence may, but need not involve a failure to take reasonable care for one's own safety: see Thompson v Woolworths (Q'land) Pty Ltd, supra, at [37]. In the present case, given the narrowness of the walkway to which the Appellant was, in order to carry out his tasks safely, confined, and the absence of any basis for thinking that he was not taking reasonable care for his own safety, there should be no reduction for contributory negligence.

Conclusions 80 For the reasons noted above, the appeal should be allowed and the judgment below in favour of Bovis and Dalma set aside. The conventional result would be that they should pay the Appellant's costs of the appeal. 81 The matter will need to be remitted to the District Court for assessment of damages. The costs order made in that Court at the first hearing should be set aside and costs should be determined in accordance with the outcome of the further hearing. If there are other factors to be considered in relation to the costs of the appeal, the parties should have leave to file submissions within 14 days of the date of the judgment, if an appropriate variation to the order indicated below cannot be agreed. 82 Accordingly, I would propose the following orders:

(1) Appeal allowed and orders made in the District Court in matter 13478 of 2001, on 8 March 2005, that there be a verdict for the second and third defendants against the plaintiff and that the plaintiff pay their costs, be set aside.

(2) In lieu thereof, on the question of liability, there be a finding for the plaintiff as against the second and third defendants.

(3) Order that the First and Second Respondents pay the Appellant's costs of the appeal, including the application for leave to appeal.

(4) Dismiss the cross-appeal brought by the Respondents against Dee Why Enterprises Pty Ltd.

(5) Order the Respondents to pay the costs of Dee Why Enterprises Pty Ltd of the cross-appeal, including its costs of the application for leave to appeal.

(6) Remit the matter to the District Court for assessment of damages subject to a direction that the damages payable by the Respondents to the Appellant shall be reduced pursuant to s 151Z(2)(c) of the Workers Compensation Act on the basis that the employer, but for Part 5 of that Act, would have been held 20% liable for the injury suffered by the Appellant.

(7) Grant each of the Respondents a certificate under the Suitors' Fund Act 1951 (NSW), if otherwise qualified, in relation to the costs of the appeal. **********

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