Stratton v Van Driel Ltd [1998] VSC 75

Stratton v Van Driel Ltd [1998] VSC 75 - VSC 1998 case summary — Zoe

[27]

I approach the task of construing this statute conscious that it is social legislation intended to secure the safety and welfare of persons at work and to protect them against the risks of this: s.6. It should, therefore, be construed generously with this object in mind. Section 21(1), as exemplified in s. 21(2), imposes on employers an extensive duty in relation to the work environment of their employees, including the activities carried on and the things present in that environment. It may be supposed that this duty is imposed upon employers because, traditionally, it is the employer who has the right to control the work practices of its employees; it is the employer which provides plant and machinery for their work; and it is the employer which arranges or provides facilities for storage, handling and transport of plant and other things for use in the workplace. This statutory duty, to some extent, reflects the duty of care imposed by the common law upon employers. See R. v Australian Char Pty Ltd (1995) 79 A.Crim.R. 427 at 442 (Vic FC). In that context, too, the relationship between the employer and the worker at risk which gives rise to the statutory as well as the common law duty is the employment relationship, because control over the worker's working environment is generally exercised or exercisable by the employer. But, within a working environment things and activities which may put a worker at risk of harm may be brought or conducted there by persons with whom the worker has no employment relationship. The scheme of the legislation therefore is to impose different duties upon those persons depending upon their relationship with the likely source of risk: whether it arises from the "conduct of the undertaking": s. 22; from their occupation of the workplace: s. 23; or from the fact that it is they who manufactured or supplied plant for use at the workplace: s. 24. What s. 21(3) seeks to do, where it applies, is to extend the duty imposed by s. 21 upon the employer of the worker at risk to persons who are not employers of the worker. Where it applies, this is achieved by introducing into s. 21(1) the modification created by s. 21(3). Section 21(1) would then read:

[31]

For the purposes of construing the word "control" I was referred to the Oxford Dictionary where the primary meaning is given as "the fact of controlling, or of checking and directing action; the function or power of directing and regulating; domination, command, sway". I was referred also to cases where the word "control" had been considered, but in circumstances very different from the present. These cases demonstrate, as Gibbs ACJ observed in one of them, that it is a word which will take its meaning from the context in which it is found: Federal Commissioner of Taxation v Australian and New Zealand Banking Group Ltd (1979) 143 CLR 499 at 520. In that case the court was concerned to determine whether certain documents were "in [the bank's] custody or under [its] control". In Botany Fork & Crane Hire Pty Ltd v New Zealand Insurance Co Ltd (1993) 44 FCR 27, the full Federal Court examined the word as part of an exception clause contained in an insurance contract. This clause excluded liability for cover where the damage was to property "in the custody or the control of the insured". It is apparent from these cases and those referred to in them that the word "control" when used in relation to a thing refers to a degree of domination over it. Normally, such a relationship between the person having control and the thing the subject of control will arise from ownership, possession or perhaps contract. Where the subject of control is a person, different considerations may apply. For example, in ordinary speech where a child is said to be under the control of an adult, the speaker is referring to the relationship between the two which may arise from a family or custodial relationship. In a case of undue influence, to speak of a person having control over another suggests a de facto domination. None of these cases was concerned with "control" in the context of the expression "have control over". Moreover, none of these examples quite fits the case before the court where the relationship is between the employer and a "matter" the subject matter of a duty to avoid risk. This matter may be the working environment or a thing or an activity in the working environment which may cause injury or harm.

[34]

I turn now to s. 21(3)(b)(ii). The difficulty with paragraph (ii) is that it is predicated upon a situation where the person who engages the independent contractor does not have control over the matter in question but would have had that control but for an agreement to the contrary. In what circumstances, then, would this control otherwise have existed? I have concluded that in a case such as this it might exist as some legal right in the employer to direct the independent contractor or its employees in the conduct of the activity or aspects of it or from the acceptance by them of an asserted power to give such a decision. The legal right might arise in different ways, but in a building contract it is most commonly conferred by contract between the employer and the independent contractor. In such a case, there is a logical difficulty in applying paragraph (ii) for it would require at once a contractual right of control and a contractual provision to the contrary. I commence by examining the situation on the assumption that a contrary agreement did not exist. If the contrary agreement is part of the agreement under which the independent contractor is engaged to perform the work, an assumption that such agreement does not exist will remove the independent contractor from the workplace so that the employer is left to perform the independent contractor's work itself. In such a case, it must follow that it would have control over that work. This, in essence, was the position adopted by the appellant. The performance of the roofing work was part of Van Driel's contract with the proprietor. Van Driel could do the work itself, in which case it controlled every aspect of it; alternatively, it could sub-contract the work to Signal & Hobbs as, in fact, it did. If the effect of this sub-contract was to remove the control or the right of control, paragraph (ii) applied; if it did not, Van Driel remained in control so that paragraph (i) applied. Accordingly, the argument of the appellant attached the s. 21(1) duty to Van Driel in either situation.

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