(f) Mr Abramovic did not, and was thus in a vulnerable position.
70 Some of these findings of fact and inference were challenged, but their existence may be assumed for the purposes of the present argument.
71 In circumstances where a foreseeable risk of injury is said to result from work carried out for a principal, the question of duty may be identified as whether, and to what extent, the principal remains responsible for ensuring a safe system of work. Where the injury arises from failure to co-ordinate different groups of workers, it may readily be seen that a general duty will operate where the different groups, with their different employers, are directed by the principal as to where and when they are to carry out their relevant activities. Stevens v Brodribb Sawmilling illustrates this point. At the other end of the scale, where the independent contractor is required to carry out standard services, where questions of co-ordination do not arise, a different result may obtain: see State Rail Authority of New South Wales v Gudgeon [2000] NSWCA 165. In other circumstances, a general duty may arise because elements of control and knowledge of risk remain with the principal and, in relative terms, the worker is vulnerable. Another relevant consideration may be the extent to which the employer itself is subject to a degree of control, albeit as an independent contractor, and the extent to which it has the relevant knowledge.
72 A final and highly significant consideration, is the fact that the principal is a statutory authority. Although a statutory authority, like a non-statutory corporation, may owe a duty of care to those who provide services or carry out functions on its behalf, the scope of its responsibilities must be identified taking into account the statutory context. As noted by Gaudron J in Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at [27]:
"Legislation establishing a statutory body may exclude the operation of the common law in relation to that body's exercise or failure to exercise some or all of its powers or functions. Even if the legislation does not do so in terms, the nature or purpose of the powers and functions conferred, or of some of them, may be such as to give rise to an inference that it was intended that the common law should be excluded either in whole or part."
73 Crimmins provides a closer analogy to the present case than other authorities relied upon by the Tribunal. In Crimmins, the defendant was the successor to the liabilities of the Australian Stevedoring Industry Authority, established by the Stevedoring Industry Act 1956 (Cth). Under that Act, both employers and workers were required to be registered in order to undertake stevedoring work at a port. The Authority was responsible for allocating work and for paying the workers. Mr Crimmins had contracted mesothelioma as a result of inhalation of asbestos fibres between 1961 and 1965 whilst working at the Port of Melbourne. He estimated that he spent some 20 days each year handling asbestos cargos. As noted by McHugh J (with whom Gleeson CJ at [3] agreed on the duty question) at [58]:
"Neither the Authority nor any employer warned the plaintiff of the dangers of asbestos; nor was he provided with clothing or equipment to protect him from those dangers. From time to time, waterside workers complained of working in dusty conditions, and on occasion they were paid 'dirt money' as the result of inspections by Port Inspectors."
74 His Honour noted that there was evidence to support a finding that the employers knew or ought to have known of the risk to health from inhaling asbestos dust and that the Authority was "the conduit for the provision of information respecting occupational health and safety to the industry": at [59]. His Honour continued at [60]:
"Although the Authority had an overarching supervisory and regulatory role with respect to safety on the waterfront, it is clear that the primary responsibility fell upon the employers. The Award placed a number of very specific safety responsibilities upon the employers (and not the Authority) including an obligation to provide safety equipment where it was needed."
75 After noting that the case had not been argued on the basis of a negligent exercise of the statutory power of the Authority to allocate waterside workers to particular operations, his Honour addressed the question of common law liability of the Authority in the following terms at [71]-[72]:
"71. The present case has no factors which require it to be categorised as a case where a duty always exists or never exists … . Nor is the case one where the factual situation is identical or nearly so with a situation where a common law court has held that the defendant owed no duty of care. It is a case where the plaintiff claims that the statutory authority owed him a duty to take affirmative action to protect him. The question of duty must therefore be determined by reference to what has been decided in similar cases.
72. Basic to that determination, as always, is the question: was the harm which the plaintiff suffered a reasonably foreseeable result of the defendant's acts or omissions? A negative answer will automatically result in a finding of no duty. But a positive answer then invites further inquiry and a close examination of any analogous cases where the courts have held that a duty does or does not exist."
76 The approach adopted by his Honour was expressed in the following terms at [93]:
"1. Was it reasonably foreseeable that an act or omission of the defendant, including a failure to exercise its statutory powers, would result in injury to the plaintiff or his or her interests? If no, then there is no duty.
2. By reason of the defendant's statutory or assumed obligations or control, did the defendant have the power to protect a specific class including the plaintiff (rather than the public at large) from a risk of harm? If no, then there is no duty.
3. Was the plaintiff or were the plaintiff's interests vulnerable in the sense that the plaintiff could not reasonably be expected to adequately safeguard himself or herself or those interests from harm? If no, then there is no duty.
4. Did the defendant know, or ought the defendant to have known, of the risk of harm to the specific class including the plaintiff if it did not exercise its powers? If no, then there is no duty.
5. Would such a duty impose liability with respect to the defendant's exercise of 'core policy-making' or 'quasi-legislative' functions? If yes, then there is no duty.
6. Are there any other supervening reasons in policy to deny the existence of a duty of care (eg, the imposition of a duty is inconsistent with the statutory scheme, or the case is concerned with pure economic loss and the application of principles in that field deny the existence of a duty)? If yes, then there is no duty."
77 Although expressed in different language, particularly at [36] and [42]-[45], I do not understand Gaudron J to have adopted a significantly different approach. Kirby J adopted the three-stage approach favoured by the House of Lords, which has since been said not to represent the law in Australia: see Sullivan v Moody (2001) 207 CLR 562 at [49] (Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ). However, his Honour placed significant weight upon the close analogy between the role of the Authority and that of an employer and employee: at [235].
78 Callinan J dealt with the matter succinctly identifying the duty in the following terms at [360]:
"That duty I would define as a duty to take such reasonable care for the safety of Mr Crimmins in the workplace as the respondent was reasonably capable of taking as a matter of practicality in the performance of its functions, and which the employer could not be expected to, or did not itself to have the capacity to take, or was flagrantly failing to take, in circumstances in which measures available to the respondent, if taken, would have been likely to be effective in preventing or alleviating the harm done to Mr Crimmins."
79 It is this statement of Callinan J which most expressly identified the need to have regard to the position of the actual employer. The approach adopted is clearly inconsistent with the suggestion made by the Appellant in the present case that the employer was to be viewed in some way as a "third party" responsible for the injury caused to the worker. Nor did his Honour treat the role of the employer as relevantly defined by any common law or statutory obligations which it might have to the worker as an employee.
80 Before leaving Crimmins, it may be noted that Hayne J (in dissent), with whom Gummow J agreed in relevant respects, discounted the analogy to be drawn between the position of the Authority and that of an employer, preferring to treat the Authority as, adopting the language of Professor Stapleton, a "peripheral party", stating at [306]:
"At its highest, the complaint now made against the Authority is that it did not control others - the employers. And for the reasons I have given earlier, I reject the contention that the Authority was duty bound to exercise its order-making power to require modification of the system of work which was used by stevedores. The other complaints made (failure to warn, failure to encourage, failure to supply but not require) are even less causally significant."
81 To an extent, the submissions of the Appellant would seek to have the Court adopt the approach of Hayne J in Crimmins: that, however, is not an option in this Court.
82 There will undoubtedly be cases in which one factor, which did not loom large in Crimmins, will be determinative, namely the inconsistency of imposing a common law duty of care upon an authority exercising statutory powers where the result will be conflicting duties or a lack of coherence of legal principles: see, eg, Sullivan v Moody, dealing with officers of the Department of Community Welfare (SA) engaged in investigating complaints of child abuse, at [30], [42] and [50]-[55], and Tame v New South Wales (2002) 211 CLR 317 at [25]-[28] (Gleeson CJ), [57] (Gaudron J), [125]-[126] (McHugh J), [231]-[232] (Gummow and Kirby JJ), [298] (Hayne J) and [323] and [336] (Callinan J).
83 In the present case, the trial judge made findings which would, at least on one view, satisfy the criteria identified by McHugh J in Crimmins. First, it was not in issue that a failure to take care for the safety of workers such as Mr Abramovic, drilling through sandstone, could lead to the inhalation of silica dust and physical harm. Secondly, his Honour held that the Board had the statutory power to protect workers in that situation, including by imposing conditions on the manner in which work was carried out. Thirdly, there is no doubt that Mr Abramovic was "vulnerable" in the sense that he could not reasonably have been expected to safeguard himself adequately from the risk of injury. Fourthly, the Board had knowledge of the conditions in which Mr Abramovic was working because it specified the precise nature and place of the work to be carried out and, through two inspectors, supervised the carrying out of the work.
84 In relation to the fifth criterion, no question seems to have been raised suggesting that the imposition of such a duty would be inappropriate or inconsistent with the statutory functions of the Board, nor that there were any other specific policy considerations which would render the imposition of such a duty inappropriate. Indeed, it was accepted that, had the Board employed Mr Abramovic and his fellow workers, as well it might under its statutory powers, there would have been no denying that it owed a duty of care of the kind for which Mr Abramovic contended. The question is whether these findings sufficed to give rise to the specific duty identified.
85 The duty of care finally identified by the Tribunal was one which "extended to requiring of its contractors that they carry out drilling work with water dampening. … The duty would not extend to such matters as protecting workers from obvious dangers such as trenches caving in for want of shoring or being struck by traffic for want of vehicular control, which matters may reasonably be left to the judgment of competent contractors": [2005] NSWDDT 30 at [40]. In short, the Tribunal held that such a duty existed because the worker was vulnerable, his employers were "were not men of education or sophistication", the dangers were "not immediately apparent to laymen such as the plaintiff or his employers", but were known to the Board, which had the power to control the system of work: at [30]. The question is whether the circumstances, identified by Santow JA at [42] above, were sufficient to establish a duty of care. If they were, it is difficult to see why there will not be liability upon the principal in relation to work undertaken by an independent contractor in many if not most situations. Yet, as explained in Stevens v Brodribb Sawmilling, by Wilson and Dawson JJ in discussing the scope of McArdle v Andmac Roofing Co [1967] 1 WLR 356, at p 45:
"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."
86 Although in dissent in Crimmins, Hayne J noted the explanation for the common law duty imposed upon an employer, as explained by Mason J in Kondis v State Transport Authority (1984) 154 CLR 672 at 687-688, as being dependent upon the power to direct and the power to control the employee. Hayne J further noted at [276]:
"The common law imposes a duty on the employer because the employer is in a position to direct another to go in harm's way and to do so in circumstances over which that employer can exercise control."
87 The position of the principal is different with respect to an independent contractor, because the nature of the relationship is likely to mean that the principal has less control over the system of work and how it is performed. In some cases the independent contractor will be the worker, in others the worker will be the sole employee of his or her own contracting company. Broadly speaking, the cases suggest that powers to direct and control will be critical in determining the existence of and scope of a duty. On one view, it was disparate assessments of those considerations which led to the conclusions of the majority and minority in Crimmins. In Coote v Forestry Tasmania (2006) 80 ALJR 1089 the High Court unanimously upheld a claim by a tree feller who was injured whilst working for an independent contractor, but in accordance with directions given by an officer of Forestry Tasmania. There was a statutory obligation to carry out the work in accordance with an "approved timber harvesting plan" which required that trees with good quality timber capable of milling were to be removed, but other timber was to be retained. The plan gave authority to officers of Forestry Tasmania to help with selection of relevant trees although trees considered to be unsafe by the contractor, were to be removed: at [45] (Gummow J). In effect, the direction given by the officer was found to have created a dangerous situation which resulted in injury to the plaintiff when a tree he was felling brushed against another tree which had been left standing, in circumstances where he would usually have first removed the other tree to prevent the danger materialising. The power of the officer of the authority to give directions as to how the work was to be carried out formed the basis of the finding of duty.
88 Rockdale Beef v Carey [2003] NSWCA 132 may be seen to be a similar case, where the plaintiff was employed as an independent contractor to do work he had previously undertaken as an employee of Rockdale Beef and in circumstances where Rockdale Beef exercised a high level of control over the manner in which the work was undertaken.
89 Questions of control involve judgments to be made in the particular circumstances of each case as to what level of control is vested in the principal, as opposed to the employer or indeed the worker. In this case the Tribunal held that the Board retained a significant level of control for two reasons. First, it was the Board which identified the work to be done and hence required that hazardous work, because it necessitated extensive drilling in sandstone, be undertaken: at [27]. Secondly, it employed supervisors to oversee the carrying out of the work: at [13]. In addition, it had the power to give directions to the employers as to how the work was to be undertaken through its contractual dealings: at [29].
90 Two factors should be clarified in these circumstances. The first is that there appear to have been no significant statutory powers or restraints on the operation of the Board. Pursuant to the Metropolitan Water Sewerage and Drainage Act 1924 (NSW), s 37, the Board was "the sole Authority for the conduct of water supply and sewerage services, and the construction, control and management of stormwater channels, within its areas of operations". However, this says nothing about the present situation, other than that the Board had undoubted power to construct the sewerage line on which Mr Abramovic was working. It also had power to enter upon lands to undertake such necessary works: s 32(1). It had power to employ "officers and workmen to assist in the execution of this Act" (s 26(1)) and also to "make and enter into contracts or agreements with any person for the construction of works … in connection with the discharge or exercise by the board of its functions and powers": s 34(1). There was no statutory function remotely similar to the degree of regulation to be undertaken by the Authority in Crimmins, nor was there the degree of control over the execution of the works required by statute in Coote. In most circumstances a principal will be able to demand a degree of control over the nature and manner of carrying out of works by independent contractors: that fact alone cannot determine the existence or scope of a duty to require a safe system of work, by identifying the manner in which it is to be carried out.
91 The next question is the degree to which the Board in fact exercised control over the works undertaken by Mr Abramovic's employer. The Tribunal found that the work "was supervised" by employees of the Board: at [13]. However, there is a degree of ambiguity in this finding. The supervision may have been limited to ensuring that the cutting required for the pipes was undertaken in accordance with the specifications and was proceeding according to timetable: it did not necessarily extend to directing the manner in which the work was carried out. On the other hand, the fact of supervision may have been sufficient to draw to the attention of the Board the failure of the contractor to provide necessary safety equipment to prevent or alleviate the harm to Mr Abramovic, as envisaged by Callinan J as part of the duty he defined in Crimmins at [360]. In other words, the complaint may properly have been that the supervision which was undertaken was inadequate because it did not extend to insistence upon the employer's adopting a safe system of work. That it was this "admitted failure to control the works of its contractors" which constituted the breach of duty, was identified by the Tribunal at [32].
92 If that duty is not to arise in all cases involving independent contractors additional elements, as in Crimmins, must be established. These appear to be that: