This finding uses the language of absence of duty, but it is capable of being read as a more limited finding that any possible duty was not breached having regard to the everyday nature of the task that led to the accident.
48 The appellant submits that Andrews breached its Stevens' duty to the plaintiff because a reasonably safe system would have ensured that Chalker was instructed how to go about this potentially dangerous task safely. In particular he would have been told that if the chain was too tight he should wait until the load was lifted, thereby releasing the tension. This was not one of those tasks like climbing a ladder (cf Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 at [74]) or using a tomahawk (cf Electric Power Transmission Pty Ltd v Cuiuli (1961) 104 CLR 177 at 180-1) which were so obviously part of the mental equipment of an experienced worker as to mean that it was not unreasonable for the person in control of the enterprise to leave the worker to his or her own uninstructed devices.
49 Chalker said in evidence that the only instruction he was given by Andrews' employees was on the very first occasion when he was taught how to load equipment onto a particular dolly and jinker. The instruction related to the manner of loading the beam onto Andrews' equipment, including how to attach and restrain it (Black 179-181). This instruction included the method of attaching and tightening the bull chain, although Chalker was already experienced in tensioning chains by using a dog and pipe. There was no instruction about unloading (Black 182, 183, 185).
50 Mr Andrews agreed that the chains were "a secondary safety feature" and "a requirement we place on the delivery" (Black 155). He also agreed that he knew of the capacity of the chains to become tense under strain (Black 156). He was also aware that specialised knowledge was involved in loading and unloading techniques (Black 146); yet he accepted that there was no instruction about the proper use of chains and dogs, this being a matter left entirely to the individual driver (Black 134).
51 In this Court Chalker adopted the submissions of the appellant as regards the legal relationship between himself and Andrews.
52 Mr Ward of counsel, who represented Andrews, submitted that the fixing and unfixing of loads were the responsibility of "the contractors" such as Chalker. These were part of the skills in the use of their own rig and equipment that the owner-drivers hired out to Andrews. Chalker was an experienced operator and recognised as such by Mr Andrews (Black 104, 180).
53 Andrews supported the trial judge's characterisation of the relationship between Chalker and itself as that of independent contractor. It drew attention to the capital investment in the prime mover ($50,000), the special licence held by Chalker to operate it and the other matters referred to by the primary judge as indicators that Chalker was running his own business. Chalker's skills were of a higher order than those of the bicycle courier in Hollis. It was not suggested that these matters were determinative. The most skilled of professional people can be employees. Nevertheless, reliance was placed on the comparison by the majority justices in Hollis (at 41[47]) between bicycle couriers and the situation "where the investment in capital equipment was more significant and greater skill and training were required to operate it".
54 The Court was also referred to the remarks of Dixon J in Humberstone v Northern Timber Mills (1949) 79 CLR 389 at 404-5 where he said:
The question is not whether in practice the work was in fact done subject to a direction and control exercised by an actual supervision or whether an actual supervision was possible but whether ultimate authority over the man in the performance of his work resided in the employer so that he was subject to the latter's order and directions. In the present case the contract by the deceased was to provide not merely his own labour but the use of heavy mechanical transport, driven by power, which he maintained and fuelled for the purpose. The most important part of the work to be performed by his own labour consisted in the operation of his own motor truck and the essential part of the service for which the respondents contracted was the transportation of their goods by the mechanical means he thus supplied. The essence of a contract of service is the supply of the work and skill of a man. But the emphasis in the case of the present contract is upon mechanical traction. This was to be done by his own property in his own possession and control. There is no ground for imputing to the parties a common intention that in all the management and control of his own vehicle, in all the ways in which he used it for the purpose of carrying their goods, he should be subject to the commands of the respondents.
55 Reliance was placed on Chalker's evidence that he regarded himself as a sole trader (Black 223). He saw Andrews as a regular supplier of local work (Black 224).
56 A contrast was drawn between the present case and Hollis as regards the wearing of "livery" in that Chalker had the option to decline to wear the Andrews' uniform.
57 Andrews pointed to the factors distinguishing Chalker's business before and during his engagement to work for Andrews from that of the couriers in Hollis. The submission in part sought to convey the impression that Chalker was more independent, economically speaking, and freer to choose whether to enter and depart from the arrangement with Andrews. The fact that Chalker was working very long hours was implicitly advanced as a badge of independent contracting.
58 I think there is an element of circularity in this last submission. But on balance I accept Andrews' characterisation of the relationship as that of independent contractor.
59 At the end of the day I am not persuaded that the trial judge erred when he held that Chalker was an independent contractor. The factors point both ways, but the situation was clearly distinguishable from that in Hollis where such a holding was regarded as an affront to common sense in the context of that case. The actual arrangements as between Andrews and Chalker were not a sham and they involved significant pointers to Chalker being perceived by himself and Andrews as running an independent business, albeit one that was practically dedicated to Andrews for the time being. Chalker worked long hours and had invested a significant amount of his own capital in the acquisition and maintenance of the prime mover and its core equipment. I am unassisted by reference to some comparative level of skills involved in his enterprise, although they were more than marginally higher than those required of bicycle couriers.
60 Another point of distinction from Hollis, relied upon by Chalker, is the fact that the owner drivers of the prime movers could not be said as having "effectively performed all of [Andrews'] operations in the outside world" (cf Hollis at 45[57]. The evidence does not suggest that the RTA would have perceived that people like the plaintiff and Chalker were employees of Andrews, simply from the fact that Andrews had overall responsibility for the transportation of the heavy beams.
61 The Court is not blind to the general trend towards to "outsourcing" that is occurring in an increasingly de-regulated labour market. The common law of tort should nevertheless proceed by acknowledging the contractual autonomy of the parties involved in cases such as the present. The issue in the present case is characterisation of relationships and not judicial social engineering to encourage one form rather than another (TNT Worldwide Express (NZ) Ltd v Cunningham [1993] 3 NZLR 681 at 698). Legislation such as the Contracts Review Act 1980 and s106 of the Industrial Relations Act 1996 can address matters such as oppression and inadequate remuneration.
62 The common law nevertheless remains wedded to the neighbour principle embodied in the concept of a duty of care where personal safety is involved, particularly in situations where one party has significant "control" of a place or enterprise. Many workplace relationships are of this nature. Cases such as Stevens, Christie and Emoleum show the Court giving due acknowledgement to the formal relationships or non-relationships, but nevertheless recognising that (in matters relevant to the imposition of a duty of care) the parties may have so conducted themselves that it remains just to impose a duty of care, at least one whose scope is nuanced to the areas where the defendant truly has some measure of "control". In these situations, the common law looks to the substance and not the form of the relationship. If that relationship, though formally distanced from employment, is nevertheless analogous to it in its pith and effect, then it may be just for an analogous duty of care to be recognised.
63 The evidence as to Andrews' minimal instruction in loading techniques bears two faces. The appellant seeks to rely upon it as a badge of negligence, assuming a relevant duty of care has been found. Andrews would see it as confirmation of both Chalker's status as an independent contractor as well as some evidence that loading and unloading were seen in the industry as such basic tasks as to require little or no instruction for otherwise experienced owner drivers.
64 Mr Andrews agreed in cross-examination that the practice in the industry was for drivers to take responsibility for securing the loads which they were carrying once they had been loaded on to the lorries (Black 154). Although different techniques were used for dealing with a taut bull chain (see above), it did not follow that failure to instruct an owner-driver to use one rather than the other was negligent. The practice adopted by Chalker on the day in question was not inherently dangerous and was used by some owner-drivers on some occasions (cf Black 167). The real cause of the particular accident was said to be Chalker's casual act of negligence when his wet glove slipped.
65 As regards the alternative submission based on a direct common law duty of care similar to that found in Stevens, Andrews did not so much dispute the existence of a duty, as contend that it had not been breached. Andrews invoked the well-known passages in Van der Sluice at [63], [65], [68], [69] and [72] and O'Connor v Commissioner of Government Transport (1954) 100 CLR 225 at 229-30.
66 To the limited extent that Andrews contended against a Stevens type duty of care I would reject such submission. In my view Andrews assumed an organising, entrepreneurial role analogous to that of the sawmiller in Stevens.
67 The real issue is whether Andrews breached the relevant duty of care vis-à-vis the plaintiff. Merely because Chalker was negligent was not enough. Nor is carelessness established merely by positing that different instruction by Andrews might have made a difference. I do not think that it was established that it was negligent for Andrews not to have instructed Chalker to refrain from using the unloading technique that he did. Was it negligent for Andrews not to have instructed Chalker to be careful when using wet gloves or to tell bystanders to step back? I have concluded that it was not, on the basis that it has not been demonstrated that the sort of techniques involved called forth a need for particular instruction. In this particular industry, they strike me as being the equivalent of climbing a ladder or using a tomahawk.