Liability for "Inherently Dangerous" Activities
58 I shall start to examine whether Transfield had a non-delegable duty to the Respondent by considering how the law has dealt with arguments that there are special rules governing liability for "inherently dangerous" activities.
59 Read v J Lyons & Co Ltd [1947] AC 156 involved a plaintiff who was an invitee to the defendant's explosives factory, who was injured when a high-explosive shell being manufactured exploded without any negligence on the part of the defendant. The House of Lords held that the dangerousness of the activities make it appropriate for the defendant to be subject to a high standard of care, but rejected the notion that there was a type of activities or things the inherent danger of which resulted in the imposition of absolute liability, in the sense of liability regardless of whether anyone (whether the defendant its servants and agents, or anyone else) had been negligent. Lord Macmillan said at 172-173:
"In my opinion it would be impracticable to frame a legal classification of things as things dangerous and things not dangerous, attaching absolute liability in the case of the former but not in the case of the latter. In a progressive world things which at one time were reckoned highly dangerous come to be regarded as reasonably safe. The first experimental flights of aviators were certainly dangerous but we are now assured that travel by air is little if at all more dangerous than a railway journey. Accordingly I am unable to accept the proposition that in law the manufacture of high-explosive shells is a dangerous operation which imposes on the manufacturer an absolute liability for any personal injuries which may be sustained in consequence of his operations. Strict liability, if you will, is imposed upon him in the sense that he must exercise a high degree of care, but that is all. The sound view, in my opinion, is that the law in all cases exacts a degree of care commensurate with the risk created. It was suggested that some operations are so intrinsically dangerous that no degree of care however scrupulous can prevent the occurrence of accidents and that those who choose for their own ends to carry on such operations ought to be held to do so at their peril. If this were so, many industries would have a serious liability imposed on them. Should it be thought that this is a reasonable liability to impose in the public interest it is for Parliament so to enact. In my opinion it is not the present law of England."
60 In the Full Court of the New South Wales Supreme Court in Torette House Pty Ltd v Berkman (1939) 39 SR (NSW) 156 Jordan CJ, at 164-165, recognised that there were some categories of relationship in which one party owed the other a non-delegable duty. At 165 his Honour said of a person who engaged an independent contractor to carry out work:
"… although he is liable for all the consequences of the results contracted for, he is not as a general rule responsible for damage occasioned by negligence on the part of the contractor in applying the methods selected by the contractor for achieving those results, these methods and their application being matters over which the employer has no control, and not being methods which must necessarily be used and from which damage must necessarily result."
61 Jordan CJ declined to recognise any exception concerning work that was "extra hazardous". After an extensive review of the authorities he concluded, at 170:
"… there is no general rule that if a person employs an independent contractor to do an inherently lawful act, he incurs liability for injury to others occasioned by the methods incidentally employed by the contractor in the course of its performance (these not being methods necessarily involved in the doing of the act and necessarily injurious), by reason only of the fact that the act is "dangerous," "hazardous," or "extra hazardous." "
62 On appeal to the High Court (Torette House Proprietary Ltd v Berkman [1940] HCA 1; (1940) 62 CLR 637) the decision of the New South Wales Full Court was affirmed, but not on the basis that involved acceptance, or rejection, of this latter aspect of the judgment of Jordan CJ.
63 Latham CJ at 647-648 noted that the English Court of Appeal in Honeywill and Stein Ltd v Larkin Brothers Ltd [1934] 1 KB 191 and Matania v National Provincial Bank Ltd [1936] 2 All ER 633 had held that someone who engages an independent contractor to do "an act which in its very nature involves in the eyes of the law special danger to others" can be liable for negligence in the conduct of that operation. It was those cases that Jordan CJ had declined to follow. Latham CJ, at 648, said it was not necessary to consider whether those cases were correct, because the act of the independent contractor in the case before him was not one that in its very nature involved special danger to others. Starke J at 651-652 said that the work the contractor was engaged to do:
"… was lawful in itself and of such a character that if executed with due care involved no injurious consequences to others; there was no special or peculiar hazard in the work which the plumber was employed to execute. Under these circumstances the rule of law is that an employer is not responsible for the act of a person who is not his agent or servant but an independent contractor".
64 Amongst the authority quoted by Starke J for that proposition was Honeywill and Stein. Dixon J did not advert to the question.
65 The test put forward by Jordan CJ in Torette House was adopted and applied by Stephen J in Stoneman v Lyons [1975] HCA 59; (1975) 133 CLR 550 at 564-565. The defendant in that case was a landowner, who had engaged a builder to carry out work that involved construction of a trench immediately adjacent to a building on the boundary of the neighbouring land. The terms of the contract with the builder required the builder to obtain instructions from the architect before proceeding with any work that required underpinning of the adjoining property. The builder dug underneath the neighbouring property, without previously obtaining the architect's instructions, thereby causing damage to the neighbouring building. The defendant was held not liable, Stephen J at 565 doing so on the basis that:
"… the negligent acts of the contractor's workmen were not authorised by the employer, the appellant, nor necessary to be employed in achieving the contractual aim; they were merely methods, and grossly unskilled and hazardous ones, selected by them for achieving the results contracted for. For these acts, as Jordan CJ points out, the employer will not be liable."
66 Stephen J also said that the matter was not one involving extra-hazardous activity, because (at 565):
"… the erection upon a block of level, vacant land of a single-storeyed structure, the building contract itself calling for no special and dangerous methods of construction but on the contrary containing suitable safeguards, is not such an activity … the suggested doctrine should not … extend beyond the … case of work authorised by the employer which, however performed, inherently involves peculiar danger to others."
67 Mason J (with whom Barwick CJ agreed) said at 575 that the case was no occasion to decide whether the doctrine of absolute duty or strict liability for extra-hazardous activities was part of the common law in Australia, but said
"If it has application here, it would be wrong to classify the demolition and erection of a building (necessarily involving an excavation) in immediate proximity to the wall of an adjoining building as an extra-hazardous act. The operation is one which certainly involves a risk of injury to the neighbour if it is not executed with due care. But this is not in itself enough to justify its description as extra-hazardous. To my mind this expression signifies that, notwithstanding the taking of proper precautions, there is some element of danger arising from the operation."
68 Mason J at 576 said:
"The principle that in the case of dangerous operations there is a special responsibility to take care does not exclude the liability of a person who engages an independent contractor to undertake an operation which is inherently dangerous and which injures a third party. But to make the principal liable it must appear that he himself was guilty of some negligent act or omission or that he authorised some negligent act or omission by the contractor in executing the operations which the latter was employed to carry out. Thus it may appear that the principal is liable because he failed to take care to engage a competent contractor or because, having knowledge that the contractor proposed to execute the work in an unsafe manner, he did nothing to eliminate the danger."
69 If this passage stood by itself, one might conclude that Mason J was rejecting the notion that a principal had a non-delegable duty for the negligence of an independent contractor engaged to perform an inherently dangerous task, if the principal had selected the contractor with care and had no knowledge that the contractor was proposing to use unsafe methods. However when at 575 he had said there was no occasion to decide whether there was an absolute duty for extra-hazardous activities, one cannot be sure whether it is appropriate to draw that conclusion.
70 Though Kondis does not deal with liability for extra-hazardous activities, it is convenient to mention here, in its correct place in the chronology of cases, a different topic dealt with by Kondis, namely the rationale for non-delegable duties. In Kondis at 680-681 Mason J noted that the decision in Wilson & Clyde Coal Co v English [1938] AC 57, had held that an employer's duty to its workers was a non-delegable duty, but that Lord Wright in Wilson
"… advances no reason or policy consideration for fixing the employer with the higher duty to see that care is taken instead of the duty that he himself take reasonable care."
71 After tracing the types of cases in which such a non-delegable duty had been held to exist Mason J at 687 sought to identify the sort of circumstances in the relationship between plaintiff and defendant in such a case which led to the imposition of that higher standard:
"The element in the relationship between the parties which generates a special responsibility or duty to see that care is taken may be found in one or more of several circumstances. The hospital undertakes the care, supervision and control of patients who are in special need of care. The school authority undertakes like special responsibilities in relation to the children whom it accepts into its care. If the invitor be subject to a special duty, it is because he assumes a particular responsibility in relation to the safety of his premises and the safety of his invitee by inviting him to enter them. And in Meyers v Easton (1878) 4 VLR 283 the undertaking of the landlord to renew the roof of the house was seen as impliedly carrying with it an undertaking to exercise reasonable care to prevent damage to the tenant's property. In these situations the special duty arises because the person on whom it is imposed 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. As we have seen, the personal duty which has been recognised in the other cases which I have discussed, such as Dalton v Angus (1881) 6 App Cas 740, may rest on rather different foundations which have no relevance for the present case.
The foreseeability of injury is not in itself enough to generate the special duty. Before the special duty arises there must exist in the relationship between the parties an element of the kind already discussed."
72 In Stevens v Brodribb Sawmilling Company Pty Ltd [1986] HCA 1; (1986) 160 CLR 16 the High Court considered a situation in which Stevens, who was an independent contractor to Brodribb, was injured by the negligent manipulation of logs by Gray, another independent contractor to Brodribb. One basis upon which it was argued that Brodribb had liability was that the operations involved in manipulating the logs, that caused Stevens' injury, were inherently dangerous, or extra-hazardous.
73 The argument of counsel for Stevens is reported, at page 19, as being:
"… on the assumption that both men were independent contractors, the company owed a duty to Stevens to ensure that the logging and carting were performed with care, and that duty could not be delegated. [He referred to Kondis v State Transport Authority ]. If Stevens was an independent contractor, the company was liable to him for Gray's negligence because all the relevant activities were extra-hazardous: Honeywill & Stein Ltd v Larkin Bros Ltd [1934] 1 KB 191; Matania v National Provincial Bank [1936] 2 All ER 633. The doctrine is well established in England, Canada, and America, and should be adopted here."
74 Thus, the argument that the High Court was being asked to adopt was that a person who engaged an independent contractor to perform extra-hazardous operations owes a non-delegable duty of care to someone who it was foreseeable could be injured in the course of those operations. The argument was the one that Jordan CJ had rejected in Torette House, but concerning which no ratio emerged from the decision of the High Court in Torette House. It was the argument that had been put under a serious cloud, though not decisively rejected, by the High Court decision in Stoneman v Lyons.
75 In Stevens v Brodribb Mason J (with whom Brennan J was "in general agreement") said, at 29-30:
"The next question to consider is whether, notwithstanding the fact that the relationship between Brodribb and Gray is one of independent contract, Brodribb is liable to Stevens on the footing that his injury arose out of dangerous operations or extra-hazardous acts. Although the doctrine of extra-hazardous acts is sometimes treated as an exception to the general rule that a principal is not liable for the negligence of his independent contractor, it is in truth an instance of strict liability for breach of a duty of care which the principal personally owes to the plaintiff. The principal's liability is therefore primary, rather than vicarious: Salsbury v Woodland [1970] 1 QB 324 at 336-7, 347; Staveley Iron & Chemical Co Ltd v Jones [1956] AC 627 at 639, 646-7; Stoneman v Lyons (1975) 133 CLR 550 at 574.
The doctrine has been applied in the United States and Canada. Although it has been affirmed in a number of English decisions ( Honeywill & Stein Ltd v Larkin Bros Ltd [1934] 1 KB 191; Matania v National Provincial Bank Ltd [1936] 2 All ER 633 at 645-6; Salsbury v Woodland at pp 338, 345, 348), it has not achieved complete acceptance ( Hughes v Percival (1883) 8 App Cas 443 at 446-7; Rainham Chemical Works Ltd v Belvedere Fish Guano Co Ltd [1921] 2 AC 465 at 476-7, 490-1). And doubt has been cast on its authenticity by the rejection in Read v Lyons & Co Ltd [1947] AC 156 of the proposition that dangerous operations give rise to strict liability.
The doctrine has not found favour in Australia. In Torette House Pty Ltd v Berkman (1939) 39 SR (NSW) 156 the Supreme Court of New South Wales emphatically rejected the notion that a principal could be made liable for the negligence of an independent contractor on the basis that the activities he was engaged to perform were extra-hazardous. More recently, in Stoneman v Lyons , this court discussed the shortcomings of the doctrine, emphasizing (CLR at pp 563-5, 574-5) the elusive nature of the distinction between acts that are extra-hazardous and those that are not. Furthermore, the traditional common law response to the creation of a special danger is not to impose strict liability but to insist on a higher standard of care in the performance of an existing duty: Adelaide Chemical & Fertilizer Co Ltd v Carlyle (1940) 64 CLR 514 at 522-3, 534; Swinton v China Mutual Steam Navigation Co Ltd (1953) 87 CLR 553 at 566-7; Thompson v Bankstown Corporation (1953) 87 CLR 619 at 645; Imperial Furniture Pty Ltd v Automatic Fire Sprinklers Pty Ltd [1967] 1 NSWR 29 at 31, 44; Todman v Victa Ltd [1982] VR 849 at 851-2. For these reasons, the doctrine, in my opinion, has no place in Australian law." (Some citations omitted)
76 Wilson and Dawson JJ considered the argument at somewhat more length. They had, at 40, some difficulty in working out what should count as extra-hazardous activities and in particular doubted "whether logging operations can be so categorised", but assumed for the purpose of the argument that the logging operations were extra-hazardous.
77 The argument as their Honours saw it was that Brodribb was liable because Stevens' injuries (at 39-40):
"… were sustained as a result of the extra-hazardous operations in which Stevens and Gray were engaged at the time of the accident. In these circumstances, it was said, Brodribb was under a duty to take special precautions to safeguard Stevens against injury and it was a duty which could not be delegated by the employment of independent contractors."
78 It is not clear, from the argument as so formulated, whether the "duty to take special precautions" is more extensive than a duty to take reasonable care. However, a reading of their Honours judgment as a whole suggests that they understood the argument as being that Brodribb was under a duty to ensure that reasonable care was taken. I say that not only because of the way the argument had been put by counsel, but also because, at 40, their Honours quoted from Honeywill and Stein Ltd v Larkin Bros Ltd [1934] 1 KB 191, at 199-200 the principle that they were considering as being:
"… if a man does work on or near another's property which involves danger to that property unless proper care is taken, he is liable to the owners of the property for damage resulting to it from the failure to take proper care, and is equally liable if, instead of doing the work himself, he procures another, whether agent, servant or otherwise, to do it for him."
79 Wilson and Dawson JJ went on to say that the cases relied upon in Honeywill and Stein did not support a proposition of such width, and it is "inconsistent with the ordinary principles regarding vicarious liability and liability for the acts of independent contractors". They approved the statement of "those principles" by Jordan CJ in Torette House v Berkman, at 170 where his Honour said:
"A person who procures the doing of an act is liable for its actual consequences and for anything necessarily involved in its being done whomsoever he may have procured to do it. He is liable for the acts of any agent of his acting within the scope of his employment. For the actual breach of any duty owed by himself he is responsible whatever steps he may have taken or agency he may have employed to endeavour to prevent a breach. In certain special circumstances, if he causes an act to be done he incurs a liability to see that care is used to prevent injury from being caused by methods incidentally used to produce the result, whomsoever he may employ to produce it. But there is no general rule that if a person employs an independent contractor to do an inherently lawful act, he incurs liability for injury to others occasioned by the methods incidentally employed by the contractor in the course of its performance (these not being methods necessarily involved in the doing of the act and necessarily injurious), by reason only of the fact that the act is 'dangerous', 'hazardous', or 'extra-hazardous'."
80 After considering further authority, Wilson and Dawson JJ said, at 42-43:
"The direction taken in this Court has also been away from strict liability for tortious behaviour. There is a preference for a view which is more in harmony with the ordinary principles governing liability for negligence, namely, that the extent of a duty of care will depend upon the magnitude of the risk involved and its degree of probability: Adelaide Chemical & Fertilizer Co Ltd v Carlyle (1940) 64 CLR 514 at 522-3; Swinton v China Mutual Steam Navigation Co Ltd (1951) 83 CLR 553 at 566-7; Thompson v Bankstown Corporation (1953) 87 CLR 619 at 645. Thus the standard of response required is that of a reasonable man placed in the relevant circumstances: see Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-8. If that means, in the words of Lord Simonds, an ultra-cautious response to an ultra-hazardous operation, it nevertheless falls short of the imposition of strict liability. In our view it would be inconsistent with this approach to follow the decision in Honeywill and Stein Ltd v Larkin Bros Ltd [1934] 1 KB 191, and the view of Jordan CJ in Torette House Pty Ltd v Berkman (1939) 39 SR (NSW) 156 is to be preferred."
81 Deane J, the other judge who sat in Stevens v Brodribb, said nothing about the significance of extra-hazardous activities.
82 Mason J and Wilson and Dawson JJ all referred to the doctrine they were rejecting as one involving "strict liability". However, in the context in which the argument was put, that involves rejecting a proposition that a principal who engages an independent contractor to engage in an extra-hazardous activity is liable, even in the absence of personal fault in the principal, for failure of the independent contractor to take reasonable care in carrying out that activity.
83 In other words, four of the five judges in Stevens v Brodribb expressly reject the proposition that a person has a non-delegable duty to ensure that reasonable care is taken by an independent contractor who is employed to engage in an extra-hazardous activity. That rejection is part of the ratio of the case. Thus, even if it were the fact that the activity to be carried out by ATS was extra-hazardous, that by itself would not suffice to impose liability on Transfield.
84 Mr Campbell SC, counsel for the Respondent, reminded us of Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13; (1994) 179 CLR 520. It is a case that has significance concerning both liability for extra-hazardous activities, and the basis on which non-delegable duties exist. Burnie was a joint judgment of Mason CJ, Deane, Dawson, Toohey and Gaudron JJ, in which the defendant was a building owner who retained an independent contractor to carry out work on the defendant's premises. Those premises contained some highly inflammable material, that was ignited when welding activities carried out by the contractor caused sparks or molten metal to ignite the material. The plaintiff was an occupier of adjacent premises whose goods were ruined when the fire spread. The court held that the defendant was in breach of a non-delegable duty of care.
85 At 550 the majority judgment referred with approval to the judgment of Mason J in Kondis, and said, at 550-551:
"In most, though conceivably not all, of such categories of case, the common "element in the relationship between the parties which generates [the] special responsibility or duty to see that care is taken" is that "the person on whom [the duty] is imposed 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" : Kondis v State Transport Authority (1984) 154 CLR at 687; see also, Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR at 33, 44-46. It will be convenient to refer to that common element as "the central element of control" . Viewed from the perspective of the person to whom the duty is owed, the relationship of proximity giving rise to the non-delegable duty of care in such cases is marked by special dependence or vulnerability on the part of that person: The Commonwealth v Introvigne (1982) 150 CLR 258 at 271, per Mason J."
86 Their Honours said that the ordinary situation where liability of the type recognised in Rylands v Fletcher (1868) LR 3 HL 330 would arise was such a situation:
"One party to that relationship is a person who is in control of premises and who has taken advantage of that control to introduce thereon or to retain therein a dangerous substance or to undertake thereon a dangerous activity or to allow another person to do one of those things. The other party to that relationship is a person, outside the premises and without control over what occurs therein, whose person or property is thereby exposed to a foreseeable risk of danger. In such a case, the person outside the premises is obviously in a position of special vulnerability and dependence. He or she is specially vulnerable to danger if reasonable precautions are not taken in relation to what is done on the premises. He or she is specially dependent upon the person in control of the premises to ensure that such reasonable precautions are in fact taken. Commonly, he or she will have neither the right nor the opportunity to exercise control over, or even to have foreknowledge of, what is done or allowed by the other party within the premises. Conversely, the person who introduces (or allows another to introduce) the dangerous substance or undertakes (or allows another to undertake) the dangerous activity on premises which he or she controls is "so placed in relation to [the other] person or his property as to assume a particular responsibility for his or its safety' '." (at 551-552)
87 Their Honours also held, at 558-559, that:
"… the character of "dangerous" is not confined to those classes of things, such as poison, a loaded gun or explosives, which are "inherently dangerous" or "dangerous in themselves" … [F]or the purpose of determining whether the duty of a person in occupation or control of premises to take care to avoid injury or damage outside the premises is or is not a delegable one … [i]t suffices … that the combined effect of the magnitude of the foreseeable risk of an accident happening and the magnitude of the foreseeable potential injury or damage if an accident does occur is such that an ordinary person acting reasonably would consider it necessary to exercise special care or take special precautions in relation to it."
88 The expression "collateral negligence" is used to refer to negligence of a contractor in the way in which the contractor chooses to perform the work, and that is not inherent in the task he or she has been asked to perform. In accordance with the principles governing when a person who engages an independent contractor is liable for negligence of that independent contractor that were stated by Jordan CJ in Torette House, the employer is liable for anything that is necessarily involved in performance of the task that has been given to the contractor, but not for collateral negligence of the contractor. For example, a defendant is not liable if an employee of an independent contractor, engaged to install windows in a building, accidentally leaves a tool in a position from which it falls on a passer-by: Padbury v Holliday & Greenwood Ltd (1912) 28 TLR 494. And it has been held that if a defendant engages an independent contractor to deliver beer to a hotel, and an employee of the contractor chooses to do so by delivering it through a cellar flap in the footpath that he negligently leaves open, causing a passer-by to fall in, the defendant is not liable if it was an available alternative for the employee to deliver the beer by means that did not create that risk: Wilson v Hodgson's Kingston Brewery Co (1915) 85 LJ KB 270. In Burnie their Honours pointed out that in some circumstances a defendant could be liable for collateral negligence of an independent contractor:
"Similarly, a substance or activity entrusted to an independent contractor or other agent may be relevantly dangerous notwithstanding that foreseeable injury or danger will arise only in the event of what is commonly described as "collateral'' negligence. If X engages an independent contractor to separately move two chemicals, which will cause a major explosion if they come into contact with one another, into separate storage areas, there may be no real risk of injury or damage at all if the independent contractor does what he or she is engaged to do. The activity is, however, obviously fraught with danger unless special precautions are taken to ensure that the independent contractor does not, through "collateral'' negligence, transport the two chemicals together and in a way which causes contact between them." (at 559)
89 I would not regard that statement as providing any justification for holding an employer liable for the collateral negligence of an independent contractor in any circumstances other than those where a dangerous activity carried out within certain premises by or at the instruction of a person who is in control of those premises causes reasonably foreseeable damage to a person or property outside the premises. The concern of the court in Burnie was to restate on a coherent basis the ancient law concerning damage caused by the spread of fire from premises, and the case law that stemmed from Rylands v Fletcher. The previous law in those two areas had both involved strict liability. Burnie replaced that strict liability with a liability based on a non-delegable duty of care of the person in control of the premises. If the liability of the person in control of the premises did not extend to liability for collateral negligence of that person's independent contractors the law, on that new basis, would provide for liability in a substantially narrower field of circumstances than the previous law had provided. As I understand it, it was to preserve the commonality of coverage of the newly restated law and the old law concerning spread of fire, and Rylands v Fletcher, that the remarks in the paragraph I have just quoted were made. The ratio in Burnie does not apply in the present case, because the present is not a case where Transfield occupied any relevant premises, nor did any dangerous activity carried out on its premises cause damage to someone outside the premises.
90 I have quoted a passage at para [87] above from page 558-559 of Burnie, that contemplated that there could be a non-delegable duty in relation to things or activities that were "dangerous", in a wider sense than "inherently dangerous" or "dangerous in themselves". For similar reasons to those I have mentioned in the last paragraph, I do not regard that passage as intending to suggest that there could be a non-delegable duty concerning such dangerous things or activities outside the context with which Burnie was concerned, of activities formerly covered by the ancient law concerning spread of fire, and Rylands v Fletcher. Burnie has recognised a new category of non-delegable duty, that can be owed by the occupier of premises to a person outside the premises, concerning the activities carried on within the premises. It is not necessary for the purpose of this judgment to set out in detail the precise circumstances in which that new category of non-delegable duty arises. What matters for present purposes is that in the circumstances where that duty exists, it can apply in relation to the conduct of dangerous activities (not merely extra-hazardous activities) within the premises. But, outside its proper sphere of operation, broadly coextensive with that occupied by the former law concerning spread of fire and Rylands v Fletcher, Burnie has not detracted from the principle decided in Stevens v Brodribb, that there is no general doctrine in Australian law that a person has a non-delegable duty to ensure that reasonable care is taken by an independent contractor who is employed to engage in an extra-hazardous activity.
91 My reasons for taking this view of the two passages involve not only a reading of Burnie itself. As well, subsequent remarks in the High Court concerning non-delegable duties provide no support for extending the scope of the operation of the concept of non-delegable duties beyond existing categories. I turn now to consider those subsequent cases.
92 Northern Sandblasting Pty Ltd v Harris [1997] HCA 39; (1997) 188 CLR 313 was a claim brought by a child who had been electrocuted as a result of the combined effect of two defects in the electrical system of a house that the defendant had rented to her parents. One of the defects was an inadequate repair of the stove. That repair had been carried out by an electrician, Mr Briggs, who was an independent contractor engaged by the landlord, after the tenants had entered into possession of the premises. The other was a defect in the earthing system, arising from an earth wire in the neutral link of the fuse box being inadequately connected.
93 A majority in the High Court (Brennan CJ, Toohey, Gaudron and McHugh JJ) held that the landlord was liable, but differed in the reasons why that liability arose. What is relevant for present purposes is that five of the seven judges held that the landlord was not under a non-delegable duty such as made it liable for the negligence of the electrician who had repaired the stove, Mr Briggs. Brennan CJ said, at 333:
"The fact that negligence on the part of Mr Briggs might foreseeably cause injury to [the child] or to some other member of the tenants' family or to the tenants' visitors was not enough to impose a "non-delegable" duty of care on the landlord. Nor was the relationship between the landlord and the tenants and their family sufficient to impose on the landlord a non-delegable duty of care in effecting repairs to the premises or to equipment in the premises that were needed because of ordinary wear and tear during the tenancy or because of some other reason apart from the landlord's own default. The repair of the stove did not carry any inherent risk of injury unless it were negligently done. There was no want of due care on the part of the landlord in selecting Mr Briggs to repair the stove. Apart from the landlord's duty to exercise reasonable care in the selection of a licensed electrician to repair the stove, no further duty in respect of the repair of the stove arose from the circumstances."
94 Gaudron J at 361-363 said:
"There are two matters which tell against a non-delegable duty on the part either of an occupier or of a landlord with respect to electrical installations and the remedying of electrical defects. First, the law only imposes a duty to take steps which, in the circumstances, a reasonable person would take to prevent a foreseeable risk of injury: See Hackshaw v Shaw (1984) 155 CLR 614 at 663 per Deane J; Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 487-8 per Mason, Wilson, Deane and Dawson JJ. It seems to me impossible to say that a reasonable occupier or landlord would ordinarily do more than seek the services of an apparently competent electrician to carry out electrical work. In this regard, it is sufficient to observe that, short of engaging a second electrician to check on the first, it is not apparent that there is any other precaution that might profitably be taken to guard against risk of injury as a result of carelessness on the part of an electrician.
The second matter which tells against a duty to do more than engage an apparently competent electrician is that electrical work requires special skill and expertise. The very essence of work that requires skill and expertise is that the person engaged to carry out the work has control over that work, not the person on whose behalf it is carried out. In other relationships, notably those involving hospital and patient and employer and employee, the control involved is that exercised by one person in relation to the other and it is that control coupled with the special vulnerability of patients and employees that justifies the imposition of a non-delegable duty. And in the case of dangerous activities and substances, it is the occupier's control over the carrying out of those activities or the presence of those substances that justifies a special non-delegable duty of the kind identified in Burnie Port Authority ."
95 Kirby J at 399-404 rejected the existence of a non-delegable duty, in the course of which he explained, at 401, why the case he was considering did not fit within the general criteria of control and vulnerability for the existence of a non-delegable duty that the High Court had laid down.
"… the respondent herself, as a young child, was vulnerable. She was in need of protection. But it would not normally be the landlord who would provide it. The "vulnerability" to which the legal test is addressed, in this context, relates to the relationship and not to particular individuals within it. Whereas, as a class, landlords might generally be in a better position than tenants, to carry the risk of unexpected harm in demised premises, this would not always be so. In commercial tenancies, the opposite might be the case. Specifying in a satisfactory way a sub-class of residential tenancies and then extending common law protection to all tenants within that sub-class, their families and visitors, presents significant challenges of definition. The appellant was not in actual occupation of the premises. Although it had a right, as landlord, to enter and inspect, generally speaking it lacked the entitlement to control, or even to know, what was done or allowed to be done within the premises: cf Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 551. The tenant had a greater opportunity to observe and report defects. The appellant did not profess expert knowledge in the field in which the risk arose: cf Kondis v State Transport Authority (1984) 154 CLR 672 at 688 . Both by law, and as a matter of practicality, the task required skill and expertise. It was at once necessary and reasonable that the tenants, their family and visitors, should rely on the skill, knowledge and expertise of a qualified electrical contractor such as was engaged by the appellant: cf Voli v Inglewood Shire Council (1963) 110 CLR 74 at 84; Bryan v Maloney (1995) 182 CLR 609 at 619-620. There was thus absent from this relationship the "central element of control" referred to in Burnie Port Authority (1994) 179 CLR 520 at 551. There was no special dependence or vulnerability in the relationship of the kind that exists in a hospital or school. It is true that electricity can be hazardous. However, its supply to a domestic dwelling does not ordinarily involve an element of extraordinary danger such as to attract the non-delegable duty. Within the formulations previously offered by this court, there was no other feature of the case which pointed to the existence of a "special" duty, as distinct from the general duty of care which the appellant accepted."