CONCLUSION
37 I agree with the reasons given by Young CJ in Eq for concluding that the Notice of Contention fails and have nothing to add. I agree that this appeal should fail.
38 BRYSON JA: I agree with Young CJ in Eq.
39 YOUNG CJ in EQ: This is an appeal from the decision of his Honour Acting Judge Murray in the District Court pursuant to which he awarded the respondent $730,000 plus costs in respect of personal injury suffered in a factory accident on 26 July 1999.
40 The appeal is against his Honour's finding of liability. There is no challenge to the quantum.
41 The appeal was heard on 19 November 2004. Mr Ian Harrison SC and Mr Khandhar appeared for the appellant, Mr Lidden and Ms Welsh of counsel appeared for the respondent. The Court was also assisted by the written submissions of Mr Hoeben, QC as his Honour then was and those of Mr Lidden.
42 The respondent was an independent contractor who operated his own business through a corporate vehicle of maintaining Container Carriers and associated equipment including forklift trucks. He was a qualified fitter and machinist who had had special training with the maintenance of container carriers and forklifts with his previous employer.
43 On the day in question, the respondent was doing work at the appellant's premises being part of the Yennora Wool Store. The appellant had a problem with its Container Carrier. The problem was that one of its twist locks had not disengaged from the container. The container had evidently been in the yard outside and its top was wet.
44 The containers in question were very heavy and bulky articles which could only be moved by forklifts. The appellant only owned one forklift. It was this vehicle that was having problems.
45 To deal with the problem, the respondent needed to get on top of the container. There was a dispute as to how he did this, but the learned trial judge accepted the evidence of the respondent that he manoeuvred the forklift into an appropriate position, mounted its steps and got onto the mudguard of the forklift and in his words, he followed his usual procedure namely, "just hang on to the safety rail and just turn around and sort of put your bum on the container and you're on."
46 The evidence included photographs which have been reproduced in the Appeal Books Black 149 et seq which shows that the forklift had steps up from a little above ground level to the front offside mudguard.
47 Once on top of the container, the respondent, who would have been in excess of three metres above ground, walked across it to examine the pins which are at each corner of the container. He says that he was examining the fourth and last pin. He knelt down to test the sensor and "when I went to kneel down my foot slipped on the top of the container which threw me off balance and I fell off on to the concrete." (Black 18D). He fell onto his back and was severely injured.
48 Part of the respondent's case was that the appellant failed to provide clean premises and as a consequence the respondent's shoes became engrained with grease which contributed to his fall. The judge rejected this part of the case.
49 The judge stated his conclusions at paragraphs 46 -56 of his reasons.
50 He said at [46] that the resolution of the case depended upon the consideration of whether there was a breach of duty of care owed to the respondent in expecting him to work on the Container Crane which necessarily had to be done at a height of approximately three metres.
51 His Honour noted that the respondent was an independent contractor, but said it was too simplistic an approach to the problem just to say that he was responsible for his own safety. He considered that the situation equated more closely to that of employer and employee than that of contractor and independent contractor.
52 His Honour then said that he considered he should be guided by what Mason J said in Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16 at 31 and distinguished on their facts decisions in this Court of Van der Sluice Craft Pty Ltd v Display Craft Pty Ltd [2002] NSWCA 204 and Dettmer v KC McCraken Pty Ltd [2002] NSWCA 199.
53 In the Brodribb case, Mason J said:
"If an entrepreneur engages independent contractors to do work which might as readily be done by employees in circumstances where 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 he has an obligation to prescribe a safe system of work. The fact that they are not employees, or that he does not retain the right to control them in the manner in which they carry out their work, should not affect the existence of an obligation to prescribe a safe system."
54 The trial judge thus considered that the appellant was obliged to prescribe a safe system of work and had failed to do so.
55 The learned judge rejected the defence of contributory negligence on the facts.
56 The appellant says that the learned judge erred in two respects. First he wrongly stated the content of the duty owed to the respondent. Secondly, he did not carry out the correct analysis of contributory negligence.
57 The respondent has filed a notice of contention seeking to reverse the judge's finding on the unclean premises issue.
58 Before dealing with the matters of principle that arise on this appeal, I should note that to a layman, the fact that a worker should have to work three metres or so from the ground without safety rail, harness or other safety equipment is appalling. There is some material to suggest that the appellant had a cavalier attitude to safety in the interest of cost cutting. This was not established as a fact. In any event what I have just said is irrelevant to the outcome of this appeal.
59 The appellant puts that the respondent was an expert independent contractor who was injured in the course of performing the very task for which he was retained to perform and over which he had full control and in no sense could he be equated with an employee.
60 It puts that the trial judge's approach virtually removes any real distinction between employee and independent contractor. Furthermore, it fails to have regard to the requirement that the content of any duty must include the concept of reasonableness. How could it be considered reasonable for the appellant to be fixed with the duty of prescribing a system of work for this expert contractor? Surely it was reasonable for him to perform his work in his own way at least unless he brought any particular problem to the appellant's attention.
61 Generally speaking, an independent contractor is considered to be in a position where he or she can make proper arrangements for safety and adjust the price for the job accordingly. It is only in rare cases that a court will consider that all the relevant circumstances operate to cast onto the person who retains the independent contractor a duty to care for his or her safety.
62 In the present case, there is no doubt at all that what the respondent was doing was inherently dangerous. There is no doubt that the respondent was seriously injured in the accident. The only question is whether there was a duty on the appellant which was breached so that the appellant is liable to the respondent in damages.
63 The respondent submits that the present is one of those rare cases for a number of reasons.
64 The respondent says that it is most significant that an employee of the appellant, Mr Araya was employed to do the exact same work as the respondent and it was unquestionable that the appellant owed Mr Araya a duty to have a safe system of work. It would be bizarre if the duty owed to the respondent was less.
65 Further, the respondent says that he was required to work within the appellant's premises because of the size of the machine, he would only bring hand tools with him and would use whatever facilities the appellant had available to perform the required task.
66 The appellant rejects the idea that Mr Araya was employed to do the same work as the respondent.
67 The judge described Mr Araya (whom neither party called, but whom the judge described as being in the appellant's camp) as a jack of all trades, available to assist the respondent. The respondent in his evidence in chief (Black 16) did say that Mr Araya did much the same sort of work as he himself. However, the whole of the evidence shows that Mr Araya was the appellant's maintenance man who would do welding work, oxy cutting, the repair of damaged containers and on the odd occasion assist the respondent.
68 It is significant that when the respondent was injured, it was not Mr Araya who completed the job, but one of the respondent's sub-contractors.
69 I do not see sufficient material to find that Mr Araya was doing the same work as the respondent in any real sense. However, it is certainly true that other persons, being the appellant's employees, did work on the top of containers. Mr Araya indeed did work on top of containers with welding equipment.
70 Thus the basic question on this aspect of the appeal is whether the appellant owed a duty to the respondent to provide a safe system of work. This in turn raises the issue as to whether it is correct to say that, although the respondent was an independent contractor, the judge was correct in applying the passage from Mason J's judgment in the Brodribb case which I have already cited.
71 Whilst it is Mason J's judgment in the Brodribb case that is most frequently cited by judges and counsel, it must be borne in mind that the other judgments in that case stated the relevant duty in differing ways. At page 37 of the report, Wilson and Dawson, JJ emphasised that control was no longer the test, though the proper starting point of the enquiry. Ultimately the matter was to be judged by the degree of discretion left to the worker as to the manner in which the work was to be done.
72 At p 47, Brennan J said that he was generally in agreement with Mason J, though he did not state the duty as strongly. Deane J at p 50 said that questions of duty were to be dealt with as matters of substance and not by applying tags such as employee or independent contractor.
73 I should note at the beginning, that one starts with the proposition that the factory occupier or the like does not ordinarily owe the same duty to look after independent contractors as it does for its own employees. The law usually takes the view that the independent contractor will assess the situation and provide for his or her safety taking into account its cost when giving the quotation for the work. However, the law has made it clear that, in some situations, that duty does attach. The point of principle in the instant appeal is as to whether this is one of those exceptional cases.
74 The present case in no way involves an entrepreneur who hires a bevy of independent contractors whom he manages almost in the same way that he might manage employees. Here there was no integrated organized project involving the worker and other people under the entrepreneur's control. This worker was a skilled person doing a solo task though he was working in the midst of regular employees in the appellant's organization and with the appellant's equipment. Much of the reason for this was the size of the machinery and that the machinery was physically located in the appellant's premises.
75 Mr Harrison SC pointed to the significant evidence that was elicited from the respondent in cross-examination at Black 31W:
"Q. But once they pointed out a forklift to you that was broken they wouldn't tell you how to fix it or when to fix it, unless they needed it urgently, they would tell you where to go and you would go and do it in your own way, is that correct?
A. Yes."
76 The general background suggests that this case is not in the same category as Brodribb.
77 However, the situations where the relevant duty may attach are not limited to cases which fit within the facts of Brodribb.
78 Thus, in TNT Australia Pty Ltd v Christie [2003] NSWCA 47 at [42], Mason P said, after quoting Brodribb, that employment is not the only circumstance that can generate a stringent duty of care in relation to a safe system of work.
79 There have been a number of cases on the present point in recent times; see eg Paddison v Ultimate Image Pty Ltd [2004] NSWCA 410, but most do not assist on the facts of the present case. I will thus only cite one more authority.
80 In Rockdale Beef Pty Ltd v Carey [2003] NSWCA 132, Ipp JA, with whom Mason P and McColl JA agreed did not confine the principle to cases akin to those described in Stevens, but said that one must judge the case in the context of the totality of the relationship between the parties.
81 At [84] of the Rockdale case, Ipp JA said that:
"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… such as vulnerability, inequality of bargaining power, control, and the other manifold factors that the law recognizes as being relevant to the existence of a duty of care are present."
82 At [88]-[92] of the Rockdale case, Ipp JA made it clear that he considered it a most relevant matter when assessing whether that case was one for the stringent duty that although he was an independent contractor, Mr Carey had worked for no-one apart from Rockdale for many years, Rockdale had control over the risk, Mr Carey was not really in a position to protect himself and was vulnerable in that sense. Mr Carey was as vulnerable as any employee in the circumstances of the case.
83 Rockdale was a case of a semi literate ex-employee who had been rehired on a cattle station as an independent contractor. It bears little relation to the position of the respondent. At first blush, it is difficult to see how the extended view of the applicable principle taken in Rockdale assists the respondent. Indeed, Ipp JA at [89] actually said that Mr Carey's position was to be contrasted with that of an electrician, plumber or roof tiler who enters premises to carry out skilled work.
84 Mr Lidden submits that within the considerations examined in Rockdale, the respondent should be considered a vulnerable person. He was a former employee of the manufacturer of the forklift. The appellant found the manufacturer's service too expensive and had cost-cut by taking on the respondent as an independent contractor. He says that the respondent was as much at the mercy of the appellant as to working conditions as any employee. He could not demand that a gantry or other safety equipment be provided as was provided in similar factories.
85 Mr Lidden says that a gantry would have provided a safe system. It was unreal to expect a single worker with hand tools to provide a gantry which would probably have to be an integral part of the premises.
86 However, the evidence shows that the respondent never had any discussion with anyone at the appellant's premises suggesting that a gantry should be provided. Indeed, an officer of the appellant said that if a cage or the like had been asked for, it would have been provided. The trial judge did not accept this witness on other matters, but the fact remains that one could not find that had the respondent requested safety equipment, it would not have been provided.
87 Mr Harrison agrees that had the evidence been that the controller of the premises had put in position a phalanx of impediments in the way of the respondent so that the court could see that the physical state of the premises and the way the respondent would have to work was really solely in the control of the appellant, the case would be very different.
88 I agree with Mr Harrison's submission. I cannot agree with Mr Lidden that this respondent should be regarded as vulnerable in the sense used in Rockdale.
89 A significant piece of evidence, however, is that in practice not only was the worker permitted to seek the help of the appellant's employees, but that, he was expected to do so.
90 The inference might be drawn (it did not occur to the trial judge to draw it and he may not have been asked to do so) that employees were duty bound to respond favourably to such a request as if the worker was a superior officer.
91 Although this matter is of some significance, I do not see, even if the inference was drawn, that in the totality of the material as to the circumstances of this worker it is enough to put him in the protected category.
92 Finally, Mr Lidden put a series of propositions which can be summarized as follows:
(a) Employees of the appellant such as Mr Araya were like the respondent, expected to work on the top of containers three metres off the ground and were exposed to the same risks as the respondent;
(b) Those employees were entitled to a safe system of work ;
(c) Those employees were entitled to a gantry or other safety equipment;
(d) The respondent was entitled to expect that there would be in place the same safety equipment;
(e) Thus the appellant had a duty to provide the equipment.
93 There are a number of answers to this conjoint submission. First, the respondent in fact could not have expected the equipment because he knew it was not there and never asked that it be provided.
94 Secondly, the matters raised do not go to the issue as to whether there was a duty at all.
95 Thirdly, the submission ignores the basal proposition that the respondent as an independent contractor was entitled as a matter of law (ignoring, of course, economic factors) to consider the workplace, assess its safety, provide his own equipment or demand that the owner provide it and refuse the job if the owner did not do so.
96 Accordingly, this first aspect of the appeal should succeed.
97 It is thus unnecessary to consider contributory negligence and the notice of contention. However, I will briefly do so.
98 The appellant says that the judge asked himself the wrong question on the issue of contributory negligence. The key question was, whether the respondent had exercised reasonable care for his own safety: see Joslyn v Berryman (2003) 77 ALJR 1233 [16].
99 The appellant says that the risk of a person falling off a container from a height of three metres was so obvious that it was incumbent on the respondent to do something about it.
100 The respondent in fact did nothing either to bring the problem to the attention of the appellant or to attempt to remedy the problem himself.
101 The appellant suggests that the finding should have been 50% contributory negligence.
102 The respondent rightly says that the onus was on the appellant to prove contributory negligence.
103 Further, it is correct as the respondent has submitted that there was no material on which a finding could have been made that some safety harness could have been attached which would have prevented the respondent's fall or lessened the severity of his injuries.
104 However, it is extremely difficult to gainsay the submission of the appellant that what the respondent was doing was obviously extremely dangerous and he took no precautions at all for his safety.
105 The respondent complains that the appellant was at fault for not recognizing this and dealing with it. However, the same must be said of the respondent. He was doing something inherently dangerous and took no precautions for his own safety.
106 At Black 52, the respondent said that as he checked the four corners of the container in turn, he found that he was working in wet and slippery conditions.
107 He was asked why it was that he kept going if it was wet and slippery up there. His reply was that he had been told that he had to fix the forklift urgently "they said, 'Get it going, we want it going right now!' ".
108 He was then asked why he did not get down on his hands and knees, to which the respondent replied that that was exactly what he was doing when he fell.
109 Mr Lidden made great play on the urgency factor and asked us to consider that there were trains and trucks waiting outside, being held up whilst the forklift and container were disengaged. This was an overstatement: there was no evidence of any train or truck being inconvenienced on the day in question. However, there was the evidence I have set out that the respondent was told it was an urgent task.
110 However, even with an urgent task, where the work to be done is dangerous, unless lives are at stake, there is no good reason to sacrifice safety.
111 In written submissions the appellant put that there must be contributory negligence of 50%. Obviously Mr Harrison, with good reason, thought this moderate, but agreed that that was the extent of the submission.
112 If it were relevant, I would accept the appellant's submission on this aspect of the case.
113 As to the notice of contention, the respondent says that the forklift machine was known to the workers as "Exxon Valdez" because of the oil and grease it exuded. Both the respondent and Mr Boyd, an officer of the appellant, labelled the forklift "a lemon".
114 Mr Lidden submitted that although the judge was unable to find that there was any oil or grease on the respondent's boots, there was really an inevitable inference to be drawn that the respondent's boots were greasy.
115 He says that, although he has a finding against his client on this point, the finding is an inference to be drawn or not drawn from the primary facts and the judge's finding has not the same significance as if it had been one of primary fact.
116 There was a fair amount of evidence tendered on this issue, though it is scattered throughout the transcript.
117 At [45] of his judgment, the learned trial judge said:
"I am not satisfied that the condition of the premises led to the Plaintiff sustaining his accident. The plaintiff himself was unable to say whether the cause of his slipping was due to any collection of grease on his boots. The evidence on the issue as to the general state of cleanliness of the premises is inconclusive."
118 Before making that finding, his Honour had, at [42] and following, analysed a considerable part of the evidence on this issue. In particular he noted that Mr Burns who took over the work from the respondent had said that the container carrier itself was always covered with oil and one had to be careful working around it.
119 However, the respondent's own evidence on the issue was not that strong. At Black 18 his counsel asked him:
"Q. You told me that the condition of the top of the container was wet, the condition of the soles of your shoes please.
A. Wet and probably slippery, dirty from the oil that's around."
120 The significance of the word "probably" was not explored at the trial, but it gives the flavour of supposition.
121 At Black 35, the respondent said that if the area in which he was working was too filthy, he tried to clean it up himself. There was no suggestion that he did any such cleaning on the day in question.
122 At Black 44, in cross-examination, the respondent said that the top of the container was wet, but did not look slippery. However, as I have already noted, at Black 52, he did say that as he checked the corners of the container he found that he was working in wet and slippery conditions.
123 The respondent also gave evidence at Black 32 that he had available some degreasing compound, but he only used that at the end of the day so as not to soil his truck as the solvent tended to eat into the rubber of his boots.
124 I do not consider that there is sufficient material to suggest that the trial judge was wrong on this aspect of the case or that I should draw the inference that Mr Lidden seeks me to draw.
125 Accordingly, the matters contained in the notice of contention fail.
126 Thus I would allow the appeal with costs, set aside the orders of the trial judge and substitute an order that there be a verdict for the defendant with costs below and on appeal. The respondent, if eligible, should have a certificate under the Suitors Fund Act, 1951.
127 I am not aware as to whether any part of the verdict was paid over to the respondent. If an application for restitution is to be made it should be made as soon as possible.