Stevens v Brodribb Sawmilling Co Pty Ltd

Stevens v Brodribb Sawmilling Co Pty Ltd - [1986] HCA 1 - HCA 1986 case summary — Zoe

[40]

Finally, it remains to consider whether the duty which Brodribb owed to Stevens was non-delegable. In Kondis v. State Transport Authority [38] I considered that the law sometimes imposes on people a duty higher than the usual common law duty to take reasonable care. This higher duty is a duty to ensure that reasonable care is taken and it is said to be non-delegable because a principal who engages another to perform work will be liable for the negligence of the person so engaged, notwithstanding that he exercised reasonable care in the selection of the contractor. I also stated [39] that a non-delegable duty will arise where a person "has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised". If Brodribb's duty in the present case is non-delegable, it necessarily follows that it is liable for the admitted negligence of Gray. However, the facts in the present case are essentially different from those in Kondis in that there is not the requisite relationship between the parties such as would be required to impute liability to Brodribb for the casual negligence of Gray in freeing the log without satisfying himself that Stevens was in a safe position. In Kondis the crane driver assumed the control or supervision of the labourer who was injured, control or supervision which was ordinarily exercised by the employer [40] . Here, Gray had not in any sense assumed control or supervision of Stevens during the loading operation. And, as I have found, Brodribb did not exercise control of, or retain a right to control or supervise, the loading operation. In these circumstances it can scarcely be suggested that Stevens could reasonably expect that Brodribb would see to it that due care was exercised in the loading operation by Gray. Indeed he probably would have been surprised at the suggestion that Brodribb should have done so.

[50]

Gray's negligence was not contested before us and the first question which arises is whether Gray was acting as the servant of Brodribb at the time of the accident so as to render Brodribb liable for his negligent behaviour. That question falls to be determined upon the facts found by the learned trial judge. The classic test for determining whether the relationship of master and servant exists has been one of control, the answer depending upon whether the engagement subjects the person engaged to the command of the person engaging him, not only as to what he shall do in the course of his employment but as to how he shall do it: Performing Right Society Ltd. v. Mitchell and Booker (Palais de Danse) Ltd. [42] . The modern approach is, however, to have regard to a variety of criteria. This approach is not without its difficulties because not all of the accepted criteria provide a relevant test in all circumstances and none is conclusive. Moreover, the relationship itself remains largely undefined as a legal concept except in terms of the various criteria, the relevance of which may vary according to the circumstances. Thus when Windeyer J. in Marshall v. Whittaker's Building Supply Co. [43] said that the distinction between a servant and an independent contractor "is rooted fundamentally in the difference between a person who serves his employer in his, the employer's, business, and a person who carries on a trade or business of his own", he was really posing the ultimate question in a different way rather than offering a definition which could be applied for the purpose of providing an answer. So too when Denning L.J. in Bank Voor Handel en Scheepvaart N.V. v. Slatford [44] observed that the test of being a servant does not rest nowadays on submission to orders but "depends on whether the person is part and parcel of the organization". As a restatement of the problem, this observation may place a different emphasis upon the tests to be applied but of itself offers no new test for the solution of the problem, although a submission to the contrary was made on behalf of Stevens in this case: see also Stevenson Jordan and Harrison Ltd. v. MacDonald and Evans [45] , per Denning L.J.; Ready Mixed Concrete (South East) Ltd. v. Minister of Pensions and National Insurance [46] , per MacKenna J. We would be doing no more ourselves if we were to suggest that the question is whether the degree of independence overall is sufficient to establish that a person is working on his own behalf rather than acting as the servant of another, but putting it that way does at least indicate that the question is one of degree for which there is no exclusive measure.

[74]

Then again, a duty may be of such a kind that it is not possible to discharge it or transfer it by the employment of a competent contractor. The origin of this qualification to the general principle that an employer is not liable for the acts or omissions of his independent contractor is to be seen in cases such as Pickard v. Smith [15] , although it is said (per Williams J. delivering the judgment of the Court [16] ) to be derived "by a parity of reasoning" from those cases "in which the act which occasions the injury is one which the contractor was employed to do". This explanation may not be wholly satisfactory, but it is clear that the qualification does exist. The most obvious example is where a duty is imposed by statute which cannot be met by the employment of someone else. In that case there is an analogy with a duty imposed by contract which cannot be discharged by entry into a subcontract. But the qualification goes beyond duties statutorily imposed and extends to some duties at common law. The difficulty is in identifying those cases in which such a non-delegable duty arises. An effort was made to do so by Mason J. in Kondis v. State Transport Authority [17] , where he said that such a duty arose from "some element in the relationship between the parties that makes it appropriate to impose on the defendant a duty to ensure that reasonable care and skill is taken for the safety of the persons to whom the duty is owed". The most important example is probably the duty of care of an employer at common law to provide adequate plant and equipment, a safe place of work and a safe system of work for his employees. That is a duty which cannot be delegated to an independent contractor and the duty to take care becomes a duty to ensure that reasonable care is taken. Other examples are the duty of care owed by a hospital to its patients or by a school authority to its pupils. In such cases at least it would seem that liability for the acts or omissions of a contractor is personal rather than vicarious, but that aspect of the matter is not beyond debate: see Atiyah, Vicarious Liability in the Law of Torts (1967), pp. 338-339.

[76]

Apart from a submission based upon the hazardous nature of the logging operations, a submission was also made on behalf of Stevens that there was a non-delegable duty of care owed by Brodribb to Stevens arising from the general supervisory functions exercised by Brodribb in its licence area. There were, of course, other teams of fellers, sniggers and loaders and carters operating within the area and the co-ordination of all their functions was said to be the responsibility of Brodribb and to involve a duty on its part to take reasonable steps to see that the whole operation was safely carried out. The obligation said to be imposed upon Brodribb, which in the case of servants would be part of its duty to provide a proper place of work, proper plant and equipment and a safe system of work, was said to arise upon the ordinary principle that in the absence of such provision it was foreseeable that harm would be done to persons, such as the plaintiff Stevens, working in the area where the logging operations were being carried on. Reliance was placed upon the decision in McArdle v. Andmac Roofing Co. [18] which held that the employment of a contractor to do certain roofing work did not displace the overriding responsibility of the employer to take precautions for the safety of subcontractors working together in close proximity in circumstances of obvious danger. It is true that the decision in that case resulted from the application of the familiar concepts of proximity and foreseeability in the law of negligence and may be said to support the appellants' submissions in these cases. There is no reason why those same concepts should not provide a basis upon which it might be found that Brodribb was under a duty of care towards Stevens and we are prepared to assume that it was under such a duty of care, although it seems to us that the extent of the duty would have to take account of the independent functions of the contractors and be something less than that owed by an employer to his employees. To equate the duty with that owed by an employer to his employees would be to give no weight to the very circumstance which differentiates the contractors from employees. For reasons which will appear, it is unnecessary to pursue that aspect of the matter to finality.

[85]

Brodribb organized the felling, snigging, loading and trucking operations which brought the forest logs to the mill. All of those operations involve some risk of injury to those engaged in them. We are concerned with the loading operation. The movement of bulldozers as they manoeuvre heavy logs on loading ramps involves some risk of injury to those engaged in the loading operations. 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 (Sutherland Shire Council v. Heyman [19] ) 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.

[86]

In the present case, Brodribb prescribed the location of loading ramps. Brodribb also retained (though it did not actively exercise) a right to prescribe the manner of their construction and, if it be a matter of additional prescription, the means by which logs were to be loaded. Logs were to be loaded by pushing them by bulldozer blade up and over the edge of the ramp onto a waiting trailer. The bulldozer would move up and down between the skids of the ramp. Perhaps forklifts could have been used, but any improvement in safety would have been speculative, and did not warrant the cost and inconvenience involved. Brodribb did not employ servants to snig, load or carry logs; it employed independent contractors who were experienced in those activities. That seems to be the extent of the organization by Brodribb of the activity of loading logs. Was it negligent in prescribing that organization? Further supervision by a Brodribb employee of the independent contractors while they were working could have been prescribed but it might have been an irritating distraction to those engaged in loading. At all events, it would have been unreasonable to prescribe supervisors of experienced contractors. Brodribb did not prohibit truck drivers from helping in the loading of logs, nor did Brodribb prohibit those engaged to load logs from helping truck drivers. Was it bound to do so? In my opinion, no such prohibition was called for; to prohibit one from helping the other might increase the risk of injury in some situations. It would have prevented the injury suffered by Stevens if truck drivers had been absolutely prohibited from getting up on the loading ramp, but that would have been an unnecessary and unreasonable prohibition to prescribe. The problem of manoeuvring logs too short to straddle the gap between the skids of a loading ramp was well known. But Brodribb was not negligent in leaving the problem of manoeuvring short logs to competent independent contractors to deal with. In my opinion, the evidence did not show that Brodribb failed to exercise reasonable care in organizing the loading of logs. Apart from its responsibility in the organizing of the loading of logs, did Brodribb have any relevant continuing responsibility in the conduct of the loading operations? I think not. If the persons working in the vicinity of the loading ramps had been employees, Brodribb would have remained under a continuing duty to prescribe and enforce a safe system for dealing with the problem of logs jammed on or near the ramp (see Kondis v. State Transport Authority [20] ), but Brodribb was not under such a duty to persons who were not employees. The way in which the independent contractors chose to deal with the problem of jammed logs was a matter for them. The cause of Stevens' injury was Gray's movement of the bulldozer while Stevens was still within the danger area. That was negligence on the part of an independent contractor within an area of his responsibility. Brodribb is not vicariously liable to Stevens for Gray's negligence in moving the bulldozer when and in the manner he did.

[94]

The requirement of a relationship of proximity as a general overriding control of the test of reasonable foreseeability has been expressly or impliedly recognized in a series of recent judgments in this Court including, it would seem, the judgments of four of the five members of the Court in Sutherland Shire Council v. Heyman [1] per Gibbs C.J., [2] per Mason J., [3] per Wilson J., and [4] per Deane J. The notion of such a general and distinct requirement has been subjected to criticism by some eminent authorities: see Candlewood [5] ; Leigh and Sillivan Ltd. v. Aliakmon Ltd. [6] ; Sir Robert Goff, The Search for Principle, Proceedings of the British Academy, vol. 69 (1983), pp. 178-179. It must be acknowledged that such criticism would have undoubted force if the requirement of proximity of relationship had been propounded as some rigid formula which could be automatically applied as part of the syllogism of formal logic to determine whether a duty of care arises under the common law of negligence in a particular category of case. The "general conception" of proximity of relationship was, however, neither propounded by Lord Atkin nor accepted in judgments in this Court in that sense. Its acceptance involved neither question-begging nor the introduction of undesirable uncertainty into the common law. To the contrary, it flowed from the perception of a consistent jurisprudence of common law negligence in which the notion of proximity can be discerned as a unifying theme explaining why a duty to take reasonable care to avoid a reasonably foreseeable risk of injury has been recognized as arising in particular categories of case and assisting in the determination, by the ordinary legal processes of analogy, induction and deduction, of the question whether the common law should adjudge that such a duty of care is owed in a new category of case. In that regard, recognition of the requirement of proximity as a general prerequisite of a duty of care neither precludes nor dispenses with the need, in the interests of certainty, for particular rules or tests for determining whether the requirement is satisfied in the circumstances of a particular category of case: see, e.g., the judgment of Gibbs C.J., in Jaensch v. Coffey [7] and the judgment of Mason J. in Heyman [8] . Indeed, once one accepts - as I think one must - that, under the law of this country, reasonable foreseeability of injury is not of itself a sufficient determinant of the existence of a duty of care in all categories of case, there would seem to be but two alternatives to acceptance of Lord Atkin's overriding requirement of neighbourhood or proximity. The first alternative is to distort the notion of reasonable foreseeability so as to exclude, in some categories of case, injury to another which is obviously foreseeable by "every one of ordinary sense". The second is to reduce the common law of negligence to a miscellany of disparate and largely unrelated rules under which a duty to take reasonable care to avoid a reasonably foreseeable risk of injury may or may not arise: cf. Candlewood [9] . I find both equally unacceptable.

[98]

I agree with Mason J. that, for the reasons which he gives, there existed in the relationship between the Brodribb Company and Stevens the requisite element of proximity to give rise to a relevant duty of care. With due respect to those who see the matter differently, however, it appears to me that the Brodribb Company failed to discharge that duty. At its heart, there lay the obligation to take reasonable care to provide a safe system of work at least in those fields of operation in which the Brodribb Company required interaction between the activities of the various "fellers", "sniggers" and truck drivers whom it retained and assigned and whose activities it organized for the felling, loading and carrying of timber from its licensed areas of forest for cutting and treatment in its Orbost sawmill. One such field of operation was that involving the loading of logs on the trucks. There, the truck driver's functions and the snigger's functions necessarily overlapped to an extent that obviously required co-ordination and co-operation between the two. This was particularly so in the cases where the length of timber being loaded was shorter than the distance between the two pairs of skids on the ramp and where the ordinarily obvious method of pushing the logs up the two pairs of skids was plainly inappropriate. It may well be that the approach which was finally adopted by Gray in the present case - manipulation by bulldozer combined with the use of a supporting chain - was capable of providing the basis of an acceptable solution to one of the problems involved in loading the shorter logs in that way. To be acceptable, however, the method would have to have been adopted as part of some rational system under which the respective roles and responsibilities of truck driver and snigger were identified and integrated. In fact, the evidence leads to the conclusion that the Brodribb Company provided no system at all to deal with the problem of loading the shorter logs. It simply left the problem which they posed to be dealt with on an ad hoc basis. The consequence was that a truck driver was unnecessarily exposed to any danger involved in the unplanned and unexpected. It was this absence of any settled system for the loading of the shorter logs which led to the lack of co-ordination between Gray and Stevens in the present case. In failing to provide such a system, the Brodribb Company was in breach of the duty to take reasonable care which it owed to Stevens. The injuries which Stevens sustained were of a kind which was reasonably foreseeable and were caused by that breach of duty.

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