Pacific Steel Constructions Pty Limited v Barahona; Jigsaw Property Group Pty Limited v Barahona - [2009] NSWCA 406 - NSWCA 2009 case summary — Zoe

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Pacific Steel Constructions Pty Limited v Barahona; Jigsaw Property Group Pty Limited v Barahona

[2009] NSWCA 406

Court of Appeal (NSW)|2009-07-31|Before: Allsop P, Beazley JA, Giles JA

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Source facts

Court

Court of Appeal (NSW)

Decision date

2009-07-31

Before

Allsop P, Beazley JA, Giles JA

Source

Original judgment source is linked above.

Judgment (159 paragraphs)

[1]

Introduction 2 On 20 January 2004, the first respondent, Luis Barahona, was injured when he fell from a ladder at the construction site of the Strathfield Library. He sustained crush fractures of the L1 and L2 vertebrae, ruptures to disks at five levels, tears of his left supraspinatus tendon and a psychological injury. He brought proceedings against his employer, the second respondent, Pacific Steel Construction Pty Ltd ("Pacific") and against the appellant, Jigsaw Property Group Pty Limited ("Jigsaw"), the principal contractor for the construction of the Strathfield Library, for damages for his injuries. He also sued Hays Specialists Recruitment (Australia) Pty Limited ("Hays"), the employer of Christopher Barber, the site foreman. (It will be necessary to return to the circumstances of Mr Barber's employment in due course.) 3 The primary judge, Truss DCJ, found that Jigsaw and Pacific each breached the duty of care that it owed to Mr Barahona. Her Honour found that on the contribution claim between Jigsaw and Pacific, Jigsaw should bear 80 per cent of the responsibility for the injury to Mr Barahona and Pacific should bear 20 per cent. Her Honour also found that Mr Barahona was contributorily negligent, which she assessed at 15 per cent. 4 The claim against Hays was dismissed, as her Honour found that Mr Barber was employed by Barber Earthworks Pty Ltd, which invoiced Hays for the provision of Mr Barber's services. Jigsaw had also cross-claimed against Hays and this too was dismissed. Mr Barahona's claim for attendant care services was also dismissed. The trial judge, however, made a Bullock order in favour of Mr Barahona against Jigsaw in respect of Mr Barahona's costs incurred in bringing his claim against Hays. 5 Jigsaw has appealed against the primary judge's finding of liability; her Honour's assessment of contribution as between it and Pacific; her Honour's assessment of Mr Barahona's contributory negligence of 15 per cent; and against the Bullock order. 6 Pacific has appealed against the primary judge's finding on liability; her Honour's assessment of contribution; and her Honour's assessment of Mr Barahona's contributory negligence.

[85]

42 In his first report, Mr Cowling expressed the opinion that the incident would not have occurred if Pacific and Jigsaw had met reasonable safety requirements. He stated that Pacific should have reviewed the task and discussed it with Mr Barber, prepared an SWMS, issued clear instructions and explained to Mr Barahona how to do the job. He continued: "This required the essential identification of hazards such as falling, elimination or control of risks by provision of a safe means of access such as scaffolding or the use of an elevating work platform." 43 Mr Cowling provided a 'sample SWMS' that suggested the use of various safety procedures, such as a scaffold or elevated work platform, edge guarding, a toe board, temporary barricades, a sling and goggles. In his supplementary report, Mr Cowling acknowledged that the fence to the garden bed and the glazed wall prevented the beam/column connection from being accessed using an external elevating work platform. 44 Jigsaw relied upon this as "clearly [eliminating] the use of an elevated work platform or scissor lift in the circumstances" and noted that neither the reports, nor other evidence, suggested how a scaffold might have been used, if at all. 45 Mr Barahona submitted that based on Mr Cowling's opinion in his supplementary report, it could be inferred that the beam/column connection could be accessed using an internal elevated work platform. However, in the absence of evidence that this was a reasonable and feasible manner of performing the work, we would not accept that such an inference should be drawn. 46 Jigsaw submitted that in any event, Mr Barahona did not run a case at trial that the job should have been carried out differently and that if he had run such a case, he would have had the evidentiary onus to show that he should have done the job in a different way. This submission cannot be accepted without qualification. As was apparent from Mr Cowling's reports, there was unchallenged evidence as to how the accident could have been prevented. Mr Barahona's case, based as it was on Mr Cowling's reports, was that Jigsaw should have required an SWMS to be prepared by Pacific for this work by Mr Barahona and then reviewed it, or, in the absence of one from Pacific, "Mr Barber should have assessed the work and written his own SWMS or he should have sent [Mr Barahona] away until one was provided". Mr Barahona's case was that had this been done the necessary safety precautions would have been inbuilt into the manner in which the task was to be performed. Those precautions were those in the 'sample SWMS' that Mr Cowling referred to and included, for example, the use of a sling. 47 This leads directly to the critical parts of Mr Cowling's reports. At Part 10 of his first report, Mr Cowling dealt with "Safety - Portable ladders" as follows: "It is important to note that a ladder is intended to provide a means of access to a place of work, not provide a place of work per se .

[104]

The principal submissions of Jigsaw 55 As to the question of the existence of duty, the primary judge's reasons appeared to indicate that there was no real issue as to the existence of a duty of care. In debate on appeal, it became clear that the issue was one of definition of the content of the duty, not the existence of any duty at all. It was submitted that the content of the relevant duty was limited to Jigsaw exercising due care in organising and co-ordinating the various contractors and their employees. As Mr Seton SC (who appeared with Mr McCarthy for Jigsaw) said in oral submissions on appeal: "the scope is … limited to protecting people who come on [to the site] from the risks of injury from other people on the site. It's a co-ordination duty of … care." (Appeal Tr p 5). Thus, it was said, Jigsaw did not owe a duty of care to persons who were not its employees and who caused injury to themselves. In this regard, Jigsaw submitted that the responsibility to provide a safe system of work lay with each relevant trade and each relevant employer. As the submission applied to this case, it was Pacific, it was said, which was responsible for the safety of its own workers, including providing a safe system of work, except to the extent that Jigsaw owed a duty of care in the co-ordination sense referred to above. As Mr Barahona's accident was most likely to have been caused by an unsafe system of work, Jigsaw was not liable to him in negligence. Its duty of care did not extend so far. 56 Jigsaw submitted that Mr Barahona was an experienced tradesman who was used to climbing ladders and for whom it had no responsibility as an employer. It contended that, although the site foreman (Mr Barber) had directed Mr Barahona to undertake the particular task of raising the steel beam to first floor level, Mr Barahona was responsible for devising his own method of work in carrying out that task: see Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204. 57 In Van Der Sluice, the plaintiff, an independent contractor, fell from a 12 ft A-frame ladder on which he was standing whilst installing Christmas decorations on an awning of a building under contract for the defendant. He had undertaken this work for the defendant in previous years. In order to install the decorations, the plaintiff had to place hooks in the awning. To do this, he stood on the second top step of the ladder and reached up at full stretch with one arm and leant forward to clip in the hook. The plaintiff was on the second top step of the ladder and was reaching up when he fell. The top step of the ladder was touching his shins. The plaintiff could not remember whether he had inserted the hook before he fell. Heydon JA (Meagher JA and Foster AJA agreeing) said: "[72] … while it may be reasonably foreseeable that many men in that position would fall off, the plaintiff was a skilled workman experienced in this type of repetitive work. In 1993 the plaintiff had set up a freelance decorating business, and most of the work it did was for the defendant. From 1993 to 1996 the plaintiff had done freelance work for the defendant on an extensive basis - as he said in chief, it was a 'fairly long association'. The September-February period each year was very busy, but not the rest of the year. The plaintiff had worked at the Imperial Arcade for the defendant two years before the accident. In September-October 1996 the officers of the defendant went to some trouble to secure the plaintiff's services. Not only had the plaintiff done work of this kind before for years without mishap, he had done it on that earlier occasion at the Imperial Arcade, and he did it on this occasion without mishap until he fell. The defendant could not reasonably foresee that he would fall, because the defendant was entitled to assume that he would identify any risk of falling and take measures to prevent that risk from arising if he did. For the defendant it was not reasonably foreseeable that the plaintiff would come to harm because of the skill it had detected in him during their earlier association - which skill the defendant had gone to considerable lengths to acquire on this occasion - and because of his experience, and hence his capacity to perceive any possible risks and his capacity to devise methods of negating them by not leaning too far to the right or left, moving the ladder appropriately, and having it held by Mr Smink or someone else if necessary." 58 Jigsaw submitted that the present circumstances were on all fours with those in Van Der Sluice. Jigsaw submitted that at the time of the accident, Mr Barahona was not using the ladder as a place of work, but was in the process of setting up the ladder so that he could perform the designated task of fixing the beam. Jigsaw accepted that there were a limited number of possibilities as to what caused Mr Barahona to fall: the ladder slipped either because the unsupported feet of the ladder moved backwards as the head of the ladder slipped; Mr Barahona's feet slipped off the step of the ladder; or Mr Barahona overbalanced, perhaps as he was stretching for the rope. Another possibility is that he had a dizzy or fainting spell. Jigsaw submitted that in undertaking this particular task, Mr Barahona was in charge of the manner in which he was to perform it and that in those circumstances, it had no duty of care to him insofar as it related to the manner in which he carried out his work. Jigsaw submitted that there was a degree of unreality in the present case in Mr Barahona trying to assert that as a competent and trained worker, he did not know how to safely secure a ladder to climb. Jigsaw submitted that to the extent there had been negligence, it was not its negligence. It had retained experts, namely Pacific, to carry out the steel works. 59 The effect of this aspect of Jigsaw's submission was that it was entitled to rely upon the expert to undertake the work the expert had been contracted to do. Jigsaw contended that this in effect raised the essential issue in the case, namely: "… to what extent a head contractor needs to … hold the hand of an experienced expert in the field who is contracted to do the very job that he's undertaking where he does not require instructions, [and] he does not seek instructions as to how to do it from the head contractor because the head contractor wouldn't be expected to know." 60 Jigsaw's submission in relation to duty made at the hearing involved a challenge to the decision of this Court in Fox v Leighton Contractors Pty Ltd [2008] NSWCA 23. At the time the matter was heard by this Court, Leighton v Fox was reserved in the High Court. Jigsaw contended that the decision of this Court in that matter was wrong. On 2 September 2009, the High Court delivered its decision in Leighton Contractors Pty Ltd v Fox [2009] HCA 35 allowing the appeal. The parties then provided further written submissions. Jigsaw relied on what the High Court said in Leighton v Fox. We will return to Leighton v Fox. 61 As to breach, Jigsaw contended that Mr Barahona had not pleaded a failure by Mr Barber to prepare an SWMS for this task. Further, it argued that that Jigsaw should not have had to prepare an SWMS, when Pacific had prepared its own SWMS and was contractually required to do so.

[108]

The question of duty and breach 71 It is convenient to deal at the outset with Leighton v Fox. Leighton Contractors Pty Limited (Leighton) was the principal contractor for the construction of the Hilton Hotel. It contracted with Downview Pty Limited (Downview) to carry out concreting works on the site. Downview subcontracted the concrete pumping aspect of the work to Messrs Still and Cook, who in turn engaged Mr Fox and another worker, Mr Stewart, in connection with the concrete pour. Mr Fox was severely injured during the cleaning of the concrete delivery pipes which was being carried out by Mr Still and Mr Stewart. 72 The arrangements for the carrying out of the concrete pumping work were a little complex, as explained in the High Court's judgment at [8]-[12]. Having secured the subcontract for the concrete pumping from Downview, Messrs Still and Cook hired a concrete pump truck from Shark Shire Pumping, a business owned by Mr Martin, and engaged Mr Stewart as a driver and Mr Fox as an offsider to assist with the work. Mr Stewart and Mr Fox had been "supplied" by a company associated with Mr Martin and Shark Shire Pumping. Mr Fox was a labourer with many years experience in the industry. Although he mostly worked for businesses operated by Mr Martin, he was an independent contractor. The "arrangement" with Mr Martin was that Mr Stewart and Mr Fox were to report to the construction site and take directions from Mr Still, who had worked in the concrete pumping industry for 19 years. 73 The accident occurred when Mr Still directed that a hessian bag filled with dacron be forced through the pump line at pressure, in order to clean it. The bag became stuck and it was agreed between Mr Still and Mr Stewart that the pressure be increased to blow the bag out of the pump line. Mr Fox was standing about 30 m away from the pipe, as instructed to do by Mr Stewart. However, when the pressure was increased, the pipe whiplashed and struck Mr Fox. The pipe should have been secured.

[109]

74 Mr Fox sued Leighton, Downview and Warren Stewart Pty Limited (Mr Stewart's employer). The trial judge held that the accident was caused by the negligence of Messrs Still and Stewart. Her Honour found that the relevant cause of the accident was Mr Stewart's failure to secure the pipe to the waste bin at his end. However, her Honour found that Mr Still was in charge of the concrete pumping operation and that Mr Stewart followed his directions. No one associated with Leighton or Downview gave any directions in connection with the operation. Her Honour dismissed the claims against Leighton and Downview, holding that neither had a relevant duty of care. An appeal to the Court of Appeal against the dismissal of the claims against Leighton and Downview was allowed. 75 By special leave, Leighton and Downview appealed to the High Court on the basis that the imposition of a common law duty of care owed by each of them to Mr Fox, an independent contractor, involved an unwarranted extension of the liability of principals for the negligent acts of independent contractors engaged by them: see Stevens v Brodribb Sawmilling Company Pty Ltd [1986] HCA 1; 160 CLR 16. 76 In Leighton v Fox The High Court confirmed at [20] the following statement of principle of Brennan J in Stevens v Brodribb at 47-48, governing the circumstances in which a principal will come under a duty to use reasonable care to ensure that a system of work for an independent contractor is safe: "An entrepreneur who organizes an activity involving a risk of injury to those engaged in it is under a duty to use reasonable care in organizing the activity to avoid or minimize that risk, and that duty is imposed whether or not the entrepreneur is under a further duty of care to servants employed by him to carry out that activity. The entrepreneur's duty arises simply because he is creating the risk and his duty is more limited than the duty owed by an employer to an employee. The duty to use reasonable care in organizing an activity does not import a duty to avoid any risk of injury; it imports a duty to use reasonable care to avoid unnecessary risks of injury and to minimize other risks of injury. It does not import a duty to retain control of working systems if it is reasonable to engage the services of independent contractors who are competent themselves to control their system of work without supervision by the entrepreneur. The circumstances may make it necessary for the entrepreneur to retain and exercise a supervisory power or to prescribe the respective areas of responsibility of independent contractors if confusion about those areas involves a risk of injury. But once the activity has been organized and its operation is in the hands of independent contractors, liability for negligence by them within the area of their responsibility is not borne vicariously by the entrepreneur. If there is no failure to take reasonable care in the employment of independent contractors competent to control their own systems of work, or in not retaining a supervisory power or in leaving undefined the contractors' respective areas of responsibility, the entrepreneur is not liable for damage caused merely by a negligent failure of an independent contractor to adopt or follow a safe system of work either within his area of responsibility or in an area of shared responsibility." (citations omitted) 77 The High Court in Leighton v Fox reconfirmed, at [21], that the duty owed by an employer is a personal, non-delegable duty of care to its employees requiring that reasonable care be taken, and that such a duty is more stringent than a duty to take reasonable care to avoid foreseeable risk of injury to a person to whom a duty is owed. 78 In considering whether Downview owed a duty of care, the High Court, at [62], also confirmed the principle stated by Mason J at 31 in Stevens v Brodribb that: "… If an entrepreneur engages independent contractors to do work that might as readily be done by employees, in circumstances in which there is a risk to them of injury arising from the nature of the work and where there is a need for him to give directions as to when and where the work is to be done and to co-ordinate the various activities, the entrepreneur will come under a duty to prescribe a safe system of work." 79 The Court rejected the formulation by the Court of Appeal of a duty upon Leighton "to ensure safe work practices and to take reasonable steps to ensure that those working on the site were properly trained".

[110]

80 Leighton v Fox is a recent affirmation that Jigsaw did not owe to independent contractors engaged to work at the Strathfield Library site a duty of care of the kind owed to its employees. The Court (French CJ and Gummow, Hayne, Heydon and Bell JJ) said that, although the distinction in this respect between independent contractors and employees has been criticised, "the concept of distinguishing between independent contractors and employees is one too deeply rooted to be pulled out" (at [20]-[21]: the quotation carried a reference to Sweeney v Boylan Nominees Pty Ltd at 173 [33] per Gleeson CJ and Gummow, Hayne, Heydon and Crennan JJ). 81 The maintenance by their Honours of the principles explained in Stevens v Brodribb was with recognition (at [21]) that it is common in the construction industry for a principal to engage subcontractors rather than its own work force. Litigious experience suggests that it is common not only in the construction industry. There are legal and practical advantages to principals in so arranging for construction, manufacturing or other activities to be carried out. There are some advantages to workers; but there are also disadvantages to workers who choose to provide their labour as independent contractors, including the more limited circumstances in which they may be owed by the principal a duty to take reasonable care to ensure that a safe system of work is followed than if they provide their labour as employees. 82 Mr Barahona was not himself an independent contractor vis à vis Jigsaw. As an employee of Pacific, he was owed by Jigsaw no greater duty of care than was owed by it to a worker providing his labour as an independent contractor; and that is so even though Mr Barahona did not have meaningful choice in working at the Strathfield Library site otherwise than as an employee of Pacific, doing work which could readily enough have been done by a Jigsaw employee. In Leighton v Fox for example, the question of a duty of care owed to Mr Fox, an employee of the sub-contractors Messrs Still and Cook, was dealt with as if he were an independent contractor. 83 Of course, in such a case the worker is owed by his employer the personal non-delegable duty of care. Assuming solvency or insurance of the employing independent contractor, in that respect the common engagement of contractors or subcontractors rather than the principal employing its own work force is not necessarily detrimental to injured workers. But it can be significantly disadvantageous to an injured worker whose damages recoverable from the employer are restricted to the modified common law damages. This case is an illustration. 84 It is not surprising, then, that the conjunction of increasing engagement of sub-contractors to perform work which in earlier times would have been done by the principal's own work force, and restrictions upon damages recoverable from employers, has brought attention to the circumstances in which a principal may be obliged to use reasonable care to avoid or minimise the risk of injury to an independent contractor or its employees. 85 To an extent the workers compensation legislation makes an independent contractor a worker for its purposes (see s 20 of the Workers Compensation Act 1987 (NSW) and references to deemed employment of workers in Schedule 1 to the Workplace Injury Management and Workers Compensation Act 1998 (NSW)). The common law, however, has not greatly adjusted to the performance of manufacturing, construction and other activities with labour by, or by employees of, independent contractors, doing work which does not involve skill or expertise beyond that which an employee in modern times can readily provide. In accordance with the principles explained by Brennan J in Stevens v Brodribb, principals have been held liable to independent contractors doing work which might have been done by employees where there was a risk of injury arising from the nature of the work and a need for direction and coordination of the various activities being undertaken. But, to return to Leighton v Fox, their Honours said at [59] that provided that Downview (the head contractor) engaged a competent contractor and placed the activity of concrete pumping in the contractor's hands, it was not subject to an ongoing general law obligation with respect to the safety of the work methods employed by the contractor or those with whom the contractor sub-contracted; and at [62] that "… there is nothing unreasonable about subcontracting the work of concrete pumping. It is an activity that requires specialised equipment and which lends itself to being carried out by independent contractors." 86 There can be results which might be thought curious. A head contractor such as Jigsaw may owe to its employees on the site a duty to take reasonable care in relation to sub-contractor A's system of work if there is risk of injury to the employees (see for example Leighton v Fox at [21]). It may owe a like duty of care to sub-contractor B if organisation of activities on the site is necessary to avoid or minimise the risk of injury. So, if Mr Barahona's unsafe use of the ladder brought risk of injury to a Jigsaw employee, or to sub-contractor B, through Mr Barahona falling onto the employee or the sub-contractor, Jigsaw could be obliged to exercise some control over the system of work being followed by Mr Barahona. But the risk of injury to Mr Barahona himself in the fall may not oblige Jigsaw to exercise control over that system of work. These results, however, flow from the ingredient in a duty of care of the person or class of persons to whom it is owed, and the maintenance of the differential duties of care owed to employees and independent contractors.

[111]

87 In Stevens v Brodribb Brennan J referred to circumstances which may make it necessary for the principal to retain and exercise a supervisory role, as a matter distinct from prescribing the respective areas of responsibility if confusion about those areas involves a risk of injury. The basic principle remains, however, that the principal has no duty to retain control of the system of work if it is reasonable to engage the services of an independent contractor who is competent to control the system of work without supervision, and the activity has been organised and has been placed in the hands of the independent contractor. 88 The circumstances to which Brennan J referred were not elaborated. Subsequent cases have explored the circumstances, but Leighton v Fox stands against arriving at "a general law obligation … of a more extensive kind than that recognised in Stevens v Brodribb Sawmilling Co Pty Ltd" (at [59]). 89 In a number of decisions of this Court, it has been held that a principal owes to an independent contractor, or to the independent contractor's employee, a duty beyond the alleviation of risk of injury arising from a need for direction and co-ordination of activities on a site. Examples are Rockdale Beef Pty Limited v Carey [2003] NSWCA 132 (the configuration of the principal's work site brought the safety risk; see also the protruding scaffolding in Erect Safe Scaffolding (Australia) Pty Ltd v Sutton [2008] NSWCA 114; 173 IR 412, although there was also a failure in coordination of activities); Tolhurst v Cleary Bros (Bombo) Pty Ltd [2008] NSWCA 181 (the principal created the conditions in which there was a risk in the system of work and retained control over it); Bostik Australia Pty Ltd v Liddiard [2009] NSWCA 167 (the principal exercised overall control over the activities on the premises, part of a more extensive collection of relevant matters at [89]). (An application for special leave to appeal from the decision in Bostik Australia Pty Ltd v Liddiard is pending). 90 In Sydney Water Corporation v Abramovic [2007] NSWCA 248; 5 DDCR 570; (2007) Aust Torts Rep 81-913 at [98] Basten JA, with whom Mason P agreed, essayed a statement of criteria which may give rise to a duty owed to a worker who is an employee of an independent contractor, although in Caltex Refineries (Qld) Pty Limited v Stavar [2009] NSWCA 258 his Honour observed that he had not intended a precise checklist but rather a guide to criteria suggested by existing caselaw. The statement was: "[98] However, the principal may also owe a duty to a worker who is an employee of an independent contractor. The legal question is to identify the criteria which must be satisfied to give rise to such a duty of care. The cases suggest that satisfaction of one of the following criteria may give rise to such a duty: (a) the principal directs the manner of performance of the work; (b) the work requires the coordination of the activities of different contractors; (c) the principal has or ought to have knowledge of the risk and the employer does not and cannot reasonably be expected to have such knowledge; (d) the principal has the means to alleviate the risk and the employer cannot reasonably be expected to do so; (e) although the employer has or should have the relevant knowledge and can be expected reasonably to take steps to alleviate the risk, it does not, to the knowledge of the principal, do so." 91 To the extent to which in Rockdale Beef Pty Ltd v Carey at [79]-[84] factors generally relevant to the existence of a duty of care were regarded as sufficient to find a duty of care owed to an independent contractor, see also Tolhurst v Cleary Bros (Bombo) Pty Ltd at [64]-[70], the principles affirmed in Leighton v Fox must prevail. So also as to the criteria suggested in Sydney Water Corporation v Abramovic. In Caltex Refineries (Qld) Pty Ltd v Stavar at [108] Allsop P described the use of an independent contractor by a principal, rather than the direct engagement of employees, as "a significant factor in the existence or not of responsibility of the principal arising from the conduct or activity of the subcontractor and its employees or agents." The particular significance is illustrated in the observation in Leighton v Fox at [24] that "to import a duty akin to that of an employer to retain a degree of control over the [concrete pumping] work would be inconsistent with the relationship between principal and independent contractor." 92 There is no question in the present case of Jigsaw owing a duty of care to Mr Barahona because of a need for direction and co-ordination of activities on the site. Mr Barahona was to undertake the discrete task of raising the first floor beam to floor level. So far as the evidence showed this was in no way related to other activities being conducted on the site. This was a task for which Pacific as his employer and Mr Barahona himself were fully competent - it was not suggested to the contrary. According to the above principles, what circumstances, then, may have made it necessary for Jigsaw to retain and exercise a supervisory power over the system of work followed by Mr Barahona in performing the work? 93 The circumstances were, essentially, that Mr Barahona was employed by a specialist contractor on site; as now considered in more detail, he was told he was to follow the instructions and was under the supervision of the site foreman, Mr Barber; on the day of the accident he was required to perform a task to which he was directed by Mr Barber; and that task was within the scope of Pacific's contracted works on site. 94 Mr Barahona first went to the Strathfield Library site on 4 August 2003. He was taken by Mr Christou, and was introduced to Mr Barber. The crucial evidence was, referring to this occasion on 4 August 2003: "Q. Did Mr Christou say anything to you in relation to Mr Barber? A. INTERPRETER: He introduced me to Mr Barber, and he said that I will be working under his supervision. Q. From then on, did you take instructions from Mr Barber? A. WITNESS: (foreign language)." 95 The "foreign language" as recorded in the transcript was not taken up and converted to, or repeated in, the English language. There was no detailed evidence from Mr Barahona of what he thereafter did at the site, let alone of what could amount to supervision by Mr Barber. Mr Barahona said that from the August date until shortly before January 2004 he was "[r]ectifying the structures generally", sometimes working with someone else from Pacific identified only as "Siddy". He went to the site on about sixteen days in total; he thought most of the days were in January 2004 before he had his accident. One period was in early January, for about a week, when he attended with a Zivko Popovic (perhaps this was Siddy). When he went again later in January, on a couple of days, he did not know in advance anything he had to do, and was dependent on Mr Barber telling him "what to do"; in context, this meant what jobs to do, and there was marked absence of any evidence of Mr Barber telling Mr Barahona how to do whatever jobs he had to do. 96 On 20 January 2004, when Mr Barahona alone was on the site, he was told by Mr Barber to "raise the beam at floor level and to be careful with the carpet that are just being laid, and also the glass". Mr Barahona said that Mr Barber did not give him any instructions as to how to go about raising the beam, or as to how to get access to the beam to raise it. 97 Mr Barahona then unfastened some bolts and "undid the welding spots", gaining access from the first floor, and went to get back a ladder from near where Mr Barber was sitting at a desk. When "someone" said that the ladder did not belong to Mr Barahona, Mr Barber said "oh let it [sic] take the ladder because it's [sic] going to do a short job on the ground floor". Mr Barahona took the ladder, and used it in the manner earlier described, with unfortunate result. 98 In considering this evidence for acceptance by Mr Barber of the role of supervising Mr Barahona in the performance of his work, regard should also be had to the evidence of Mr Neubauer. Mr Barahona denied that Mr Barber told him on 20 January 2004 that, if he needed any help, he should ask Gary. Gary was Mr Neubauer. Mr Neubauer gave evidence that Mr Barber introduced Mr Barahona to him and "told me he was doing some work outside there and if he needed a hand doing anything that he was to come to get me …", and that Mr Barahona "just shook his head". 99 Mr Neubauer was also asked about other trades working on the site as at 20 January 2004. He said that there were four or five (electricians, carpenters, plumbers, and persons doing earthworks were instanced). He gave the evidence (although it was general, evidence of "what happened on the site from time to time"): "Q. You would see Chris Barber giving instructions to various people on the site. A. Yes. Q. Some of those would be Jigsaw employees. A. Yes. Q. Some of those would be subcontractors such as electricians, carpenters or people involved in the steel construction. A. Yes. Q. On your observation was Chris Barber involved in telling the various people what to do from time to time? A. Not so much what to do but where to do. Q. When certain things need to be done? Is that a fair way to put it? A. Maybe. Q. Do you agree with that or not? A. To a point, yeah." 100 A little later Mr Neubauer gave the evidence: "Q. You were asked a question by the gentleman to my left about were people told what to do, and you answered it quite specifically, no, they were told where to do it - did you mean by that that the subcontractors where told where they would do their job, and were left to do their job? OBJECTION (TORRINGTON). Two questions. Q. They were told where to do their job. Yes? A. Yes. Q. And left to do their job. Yes? A. Yes." 101 Mr Barahona had said that in January 2004 he saw Mr Barber "giving instructions for people working for different sub-contractors", and that one of the persons he was giving instructions to was himself (Mr Barahona). In our view, understood with Mr Neubauer's evidence the instructions were what to do rather than how to do it; and, to repeat, the specific evidence of Mr Barahona was that he was not given instructions as to how to go about raising the beam or how to get access to the beam to raise it.

[112]

102 With regard to Mr Neubauer's evidence to the effect that Mr Barber told contractors what jobs to do and left them to do them, and in the absence of any attempt to describe in the evidence of Mr Barahona (or otherwise) supervision by Mr Barber by way telling him how to do whatever work of rectifying the structures may have been required, we do not think that the evidence that Mr Christou told Mr Barahona that he "will be working under [Mr Barber's] supervision" supported acceptance by Mr Barber of a supervisory role. 103 Whatever ought properly be understood as the supervision to be provided by Mr Barber was not necessarily accepted by Mr Barber as his role: on one view, the introduction of Mr Barahona to Mr Barber and Mr Christou saying to Mr Barahona that he would be working under Mr Barber's supervision were not conjoined events, and there was certainly no evidence that Mr Barber indicated agreement that Mr Barahona would be working under his supervision. Care should be exercised when the evidence in question was given through an interpreter, lest undue nuance of meaning be found. 104 However, whatever what said to Mr Barahona about supervision was said at the beginning of August 2003, some four and a half months prior to the occasion on which Mr Barahona was injured. Mr Barber in fact only told sub-contractors what jobs to do and left them to do them, and did not on the evidence take on a different role in relation to Mr Barahona. On the evidence as a whole it was not shown that Mr Barber exercised a supervisory power in controlling the system of work used by sub-contractors or the system of work used by Mr Barahona. In relation to 20 January 2004, if Mr Neubauer's evidence were accepted the furthest Mr Barber went was to say that Mr Barahona could ask Mr Neubauer if he needed a hand doing anything. In short, any "supervision", if there was acceptance by Mr Barber of what was said by Mr Christou, was no more than telling Mr Barahona what had to be done - on 20 January 2004, raising the first floor beam to floor level. 105 Although we deal with Pacific's liability later in these reasons, it is appropriate to recognise as a starting point that Pacific was Mr Barahona's employer and thus owed him a non-delegable duty of care requiring it to ensure that reasonable care for his safety was taken. Under its contract with Jigsaw, Pacific was required to submit an SWMS, which ought to have specified the safety requirements for tasks that were properly classified as a class 1 or 2 risk. The preparation of an SWMS was important because it provided a framework or check list for the provision of safe work methods. However, the mere preparation of an SWMS would not satisfy or in any way qualify Pacific's non-delegable duty of care as an employer. 106 Mr Barber no doubt had an obligation to his employer as site foreman to ensure that all trades had adequately and competently carried out their work. However, a mere direction to a particular trade to do rectification work would not have broadened the duty that Jigsaw, as principal contractor, owed to persons working on the site. In this case Pacific directed Mr Barahona to work on site under the 'supervision' of Mr Barber. The direction, however, is to be understood in the manner previously discussed.

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107 Mr Barber was not an employee of Jigsaw. Nonetheless, he was Jigsaw's agent on site for the purposes of carrying out his designated responsibilities and tasks under the Management Plan. Jigsaw was vicariously liable for his negligence. Mr Barahona submitted that Mr Barber was the person under whose direction and supervision he was to perform his work and that Jigsaw through Mr Barber owed him a duty to take reasonable care not to expose him to a foreseeable risk of injury. He submitted that Jigsaw breached that duty, as found by the trial judge, not because it breached its statutory duty, but because Mr Barber: "… directly instructed [Mr Barahona] on the task he was to perform, acquiesced in [Mr Barahona's] use of an unsafe system of work to perform that task and failed to provide a safe work statement, or ensure that [Mr Barahona's] employer did so as required by the Occupational Health and Safety Regulations." 108 This submission requires further examination of what Mr Barber knew. 109 Jigsaw contended that Mr Barber had limited knowledge of what it was that Mr Barahona was intending to do with the ladder on the ground floor. Jigsaw said that at the most, Mr Barber knew Mr Barahona was going to climb the ladder, and accepted that it was reasonable to infer that Mr Barber knew the layout on the ground floor relating to the garden bed; the glass wall fronting the street; that there was a small rebate of 110 mm; and that there was a column. However, Jigsaw submitted that there was no evidence that Mr Barber knew Mr Barahona was actively going to use the ladder to undertake the task. At the most, Jigsaw submitted it could be inferred that Mr Barber knew that Mr Barahona was going to inspect the underside of the slab to see how to rectify the problem with the beam. 110 We have earlier set out in detail the evidence about "supervision". 111 Mr Barahona's evidence was that he went downstairs with the intention of securing the ladder with the rope and then to start working with the beam. The trial judge did not make any specific findings as to what Mr Barber knew. However, Mr Barahona's evidence was that Mr Barber had instructed him to do this particular job and when the other worker protested that Mr Barahona was taking his ladder, Mr Barber said to let him take it because he was "going to do a short job on the ground floor". Mr Barber, as site foreman, can be taken to be familiar with the site. It is reasonable to infer from this conversation that Mr Barber knew that Mr Barahona was taking the ladder in connection with the job. Mr Barber was not called to give evidence and a Jones v Dunkel submission was made at trial. 112 There was other evidence relating to what Mr Barber knew about Mr Barahona's use of the ladder. In cross-examination by counsel for Pacific, Mr Barahona was asked "Had you told Chris Barber why you need[ed] the ladder?", to which he responded, "Yes". No one asked any further questions on this. Mr Barber had told Mr Barahona that he should obtain assistance from Mr Neubauer if he "needed a hand". It might also be commented that Mr Barber was an experienced site foreman with some 20 years experience in the building trade, mainly as a site manager and site supervisor. 113 There is no doubt that Mr Barber knew that Mr Barahona proposed to use the ladder in some way in performing the task of raising the beam. The evidence did not show how he thought Mr Barahona proposed to use it, nor did it establish that use of a ladder was in the circumstances wholly to be rejected and that use with a second person to hold it (and Mr Barahona could have asked Mr Neubauer to hold it) while it was put in place and tied off for some limited use was unsafe. So far as Mr Barber was shown to have knowledge, the ladder might have been intended for use just to look at the beam from the underside in order to assess how to continue, not as a working platform. There was no evidence of a time constraint in raising the beam, and nothing in the evidence to the effect that, if Mr Barahona had asked for someone to hold the ladder - or even had asked for scaffolding after assessment - that would have been refused. 114 On balance we think that while the evidence reveals that Mr Barber knew that Mr Barahona proposed to use the ladder in some way, it did not show precisely how. In particular Mr Barahona's taking of the ladder did not tell Mr Barber that he (Mr Barahona) would use the ladder without assistance.

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115 Unless the evidence reveals that Mr Barber assumed a responsibility to supervise Mr Barahona as to how he did his work there may be seen to be an absence of foundation for a relevant duty of care owed to Mr Barahona. In this regard, it is convenient to refer again to the statement in Stevens v Brodribb and, in particular, to that aspect of Brennan J's reasoning at 47-48, where his Honour said: "The circumstances may make it necessary for the entrepreneur to retain and exercise a supervisory power … But once the … operation is in the hands of independent contractors, liability for negligence by them within the area of their responsibility is not borne vicariously by the entrepreneur … the entrepreneur is not liable for damage caused merely by a negligent failure of an independent contractor to adopt or follow a safe system of work … within his area of responsibility" 116 If Mr Barber did not take on the role of supervising Mr Barahona in the performance of his work, we do not think that Jigsaw can be seen to owe him a relevant duty. From what we have already said, the evidence does not show that Mr Barber assumed responsibility to supervise Mr Barahona in the relevant sense or that he knew that Mr Barahona would seek to use the ladder without assistance. 117 In his pleading and submissions Mr Barahona relied on the OH & S Act and the OH & S Regs. Sections 32 and 46 of the OH & S Act provide, relevantly, that nothing in Part 2 (dealing with duties relating to health, safety and welfare at work) confers a right of action or a defence and that failure to observe an approved industry code does not create civil liability. Further, s 39A provides that regulations may provide that nothing in a provision confers a right or defence, but also that failure of a regulation so to provide in respect of a provision is not to be construed as conferring a right or defence. 118 Here none of cll 34, 35, 36, 39, 226 and 227 of the OH & S Regs has any provision contemplated by s 39A. 119 Mr Barahona did not plead or contend on appeal that these regulations created a statutory duty. Rather, it was said they were "informative of the common law duty". 120 We do not consider that the OH & S Regs widen the content of the duty to the degree suggested by Mr Barahona. There was no duty owed by Jigsaw to Mr Barahona to exercise the contractual powers in the contract for his benefit. Nor do cl 226 and 227 create or "inform" a duty of care owed to Mr Barahona. 121 Clauses 34, 35, 36 and 39 are directed to the "principal controller" as occupier of premises. The danger here was not one of danger from the premises, access, egress, hazards and the like, it was a question of how to do a task safely and, in particular, whether and how to use a ladder. 122 In the absence of an assumption of responsibility of supervision by Mr Barber and of evidence that Mr Barber knew that Mr Barahona, as a skilled and experienced tradesman, would use or was using the ladder in a dangerous way, we do not see a duty owed by Jigsaw to Mr Barahona either to exercise reasonable care in the supervision of Mr Barahona's work or to exercise care to ensure the issue by Pacific of a fresh SWMS. 123 The appeal therefore succeeds on the question of the content of the duty of care. Jigsaw's appeal on contribution 124 This does not strictly arise, but we will deal with it later in these reasons on the assumption that we are wrong about duty. Jigsaw's costs appeal - the Bullock order 125 Again this does not arise, but we will deal with it later in these reasons.

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Pacific's appeal 126 Pacific contended that it should not have been found to have breached its non-delegable duty of care to Mr Barahona. It relied on the various matters argued by Jigsaw. Its position otherwise was that it had discharged its non-delegable duty by the reasonable care exhibited by Jigsaw. 127 There was little oral argument on the appeal as to whether Pacific had breached its duty of care. Pacific placed reliance on its written submissions and the oral submissions of Jigsaw. Pacific's submissions tended to rest its liability to Mr Barahona upon liability of Jigsaw to Mr Barahona. It was submitted that Pacific had been found to be in breach of its duty of care owed to Mr Barahona because the breach of duty by Jigsaw was a breach of Pacific's non-delegable duty, and that if Jigsaw succeeded in its appeal then Pacific's appeal should also succeed. 128 In our opinion, however, the evidence of Mr Cowling made it abundantly clear that Pacific had breached its duty of care. Pacific required Mr Barahona to undertake work on a building site without tools, equipment or direction. It abandoned him to the site. He was required to undertake work which was dangerous and for which equipment should have been provided to ensure that he would not fall from a height. This was not a case such as the labour hire cases where the employer has no input into the manner in which work is to be undertaken. Pacific must be taken to know that rectification work may be undertaken at heights as the original steel works had been performed at heights. The work Mr Barahona was undertaking was part of the steel works that Pacific had contracted to do. Pacific did not take adequate steps to ensure that Mr Barahona was provided with a safe method of work, adequate directions, a safe place of work, or with the tools and equipment reasonably necessary to safely carry out the work which he was directed to do. In our opinion, Pacific breached its non-delegable duty of care to Mr Barahona. 129 The submissions of Pacific failed to distinguish between owing a duty of care and breach of a duty of care. If, as we consider to be the case, Jigsaw's appeal succeeds because it did not owe a relevant duty of care to Mr Barahona, that does not carry with it success in Pacific's appeal. There is no doubt that Pacific owed a non-delegable of care to Mr Barahona, and for the reasons we have given it was in breach of that duty.

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Contribution 130 This does not arise. If we are wrong and if Jigsaw did owe a duty of care, which it breached, our views on contribution are as follows. 131 The primary judge assessed contribution at 80 per cent to Jigsaw and 20 per cent to Pacific. It is unnecessary to set out at length the principles as to the appellate review of such an assessment and the fact that a conclusion by a trial judge is not lightly to be set aside: Podrebersek v Australian Iron & Steel at 493-4; Liftronic v Unver at 868 [2], and 885 [90], 345; Joslyn v Berryman [2003] HCA 34; 214 CLR 552 at 601 [157], Vinidex v Theiss [2000] NSWCA 67 at [29]. 132 Jigsaw submitted that the primary judge misdirected herself in the exercise of her discretion in apportioning responsibility for the accident as to 80 per cent to it and only 20 per cent to Pacific. It relied upon the following factors as relevant to her Honour's misdirection. First, as Mr Barahona was Pacific's employee, it owed him a non-delegable duty, whereas the relationship between Jigsaw and Mr Barahona was more remote. Accordingly, any deficiencies of training or experience with respect to Mr Barahona should have been known to Pacific and it should have ensured that he was sufficiently equipped in these respects to be left on the site unsupervised to undertake such tasks as he was directed to do. Further, pursuant to the contract between Jigsaw and Pacific, it was Pacific's obligation to provide an SWMS for the steel works to be carried out and it retained the primary obligations in relation to the safety of the work that it was carrying out on the site, including the obligation of supervising its own staff. 133 Pacific submitted there was no error in her Honour's apportionment of responsibility for the accident. It pointed out that Mr Barahona was on site fixing up small defects as directed by Mr Barber. Pacific did not know, formally through Mr Christou, that the particular defect existed: or at least, Jigsaw did not seek to prove that it had informed Pacific through Mr Christou or anybody else that this particular work had to be performed. Pacific also relied upon cl (v) and (vii) of Annexure B to the contract, "Additional Special Conditions", set out above. In particular, Pacific relied upon the requirement that its employees, such as Mr Barahona "at all times obey the instructions of the Jigsaw site manager", that is, Mr Barber. 134 In our opinion, her Honour erred in her apportionment of liability in that she failed to give sufficient weight to Pacific's non-delegable duty of care. Pacific was not a labour hire company. It was a specialist contractor on site. Much of the work that it had contracted to do was dangerous. Its duty extended to knowing what work needed to be done. It was not sufficient to leave an employee on site to undertake rectification work without having systems in place to ensure that reasonable care was taken for its employees' safety. That is a stringent duty. Pacific had the primary responsibility for preparing an SWMS for dangerous tasks on site. Pacific's failure to ensure that there were proper systems in place to ensure that whatever work Mr Barahona was directed to do could be done safely, was of such an order that it should bear more than 20 per cent of the liability for the accident, and to that extent her Honour erred. 135 Accepting that these are matters of evaluation and impression, we would adjust the apportionment and find that Jigsaw and Pacific should bear liability for the accident equally.

[117]

Contributory negligence 136 Both Jigsaw and Pacific alleged contributory negligence on Mr Barahona's part, on the basis that he was an experienced tradesman and that he devised the method whereby he was to perform the particular task in which he was engaged when he fell. Her Honour found that Mr Barahona was contributorily negligent, in that he departed from the standard of care of a reasonable man. Her Honour assessed the degree of his contributory negligence at 15 per cent. Both Jigsaw and Pacific appealed against this assessment. 137 Given that Pacific approached the appeal substantially by adoption of Jigsaw's submissions we will deal with this issue in part through Jigsaw's submissions, although these matters are relevant to Jigsaw only if we are wrong about its lack of a relevant duty of care. 138 Jigsaw, in its written submissions, contended (and Pacific adopted) that her Honour's reasons, which were essentially encompassed by what we have just recorded, were inadequate, in that they did not expose anything that would enable Jigsaw to know why the finding complained about was made. However, the ground of appeal relating to this issue in Jigsaw's amended notice of appeal was as follows: "4. Her Honour erred in her assessment of contributory negligence. In that her Honour misapprehended the primary facts informing the question of apportionment as amongst the parties." 139 We would say at the outset that Jigsaw and Pacific ought not be able to rely on an 'inadequacy of reasons' ground in circumstances where it failed to raise that as a ground of appeal, notwithstanding that leave was given for them to file an amended notice of appeal. We would also say (and not critically) that her Honour's reasoning is fairly typical of findings of contributory negligence by trial judges. Such an assessment is made after all the facts have been found and a determination has been made on the primary question of negligence. The question of contributory negligence is then an evaluative task, no more or less complicated than a finding of non-economic loss after a proper consideration of all the relevant evidence. Repetition of the factual matters is not required. 140 Accordingly, we propose to deal with this ground of appeal in the manner in which the ground of appeal was expressed. In this regard, Jigsaw relied (and Pacific adopted) upon two particular matters. First, the fact that Mr Barahona had available to him the assistance of another worker on site, Mr Neubauer, and secondly, that Mr Barahona could have telephoned his employer to arrange help. Mr Barahona did not avail himself of either of these two options. Jigsaw (and Pacific) submitted that had he done so, there was every prospect the accident may not have happened. Jigsaw submitted that if this Court determined that a request for assistance from either Mr Neubauer or Mr Barahona's employer would have prevented the accident, then contributory negligence should be assessed at 60 per cent. This submission was supported by Pacific. Jigsaw also relied upon the fact that Mr Barahona was an experienced worker. 141 We have dealt with Mr Neubauer's evidence. Whilst Mr Barahona was an experienced tradesperson, even an experienced tradesperson is entitled to be provided with a safe system of work from his employer and others who owe him a duty of care in such circumstances. In this case, one of the means whereby a safe system of work was to be effected on the construction site was by having an SWMS in place for all relevant processes. The responsibility for preparing an SWMS was primarily on Pacific, pursuant to its contract with Jigsaw. 142 The significance of Pacific abandoning Mr Barahona at the Strathfield Library site, apparently without regard to what he was to do other than that he was to "rectify the structures" as required by Jigsaw, and so without regard to taking reasonable care to ensure that he did his work safely, weighs heavily in the assessment. 143 It seems that Mr Barahona intended to tie off the top of the ladder so that he could use it to gain access to the beam from the underside. His error at the time of the accident lay in the process of installing the tied off ladder. The failure to have in place an SWMS was the major contributing cause to the accident, and the facts that Mr Barahona could have asked for assistance from Mr Neubauer or could have telephone Pacific were of much less significance when the initial step of an SWMS, with a view to the employer seeing to the safety of his method of work, had not been taken. The trial judge's assessment of contributory negligence as between Mr Barahona and Pacific has not been shown to be incorrect.