Legal principles
8In order to identify the relevant factual considerations, it is necessary to address the legal issues identified by the parties as being in dispute.
9Although the submissions focused on the similarities and difference derived from a comparison of the present case with binding authorities, that is not the appropriate exercise. The first step is to identify any appropriate statutory provision. The second step is to identify the legal principles derived from relevant authority. The way that the principles have been applied to particular facts may elucidate the scope and operation of the principles, but will not provide authority to be followed.
10The key statutory provision, identified by the trial judge, is s 5B of the Civil Liability Act 2002 (NSW), which relevantly provides:
5B General principles
(1) A person is not negligent in failing to take precautions against a risk of harm unless:
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a) the probability that the harm would occur if care were not taken,
(b) the likely seriousness of the harm,
(c) the burden of taking precautions to avoid the risk of harm,
(d) the social utility of the activity that creates the risk of harm.
11These provisions appear in Pt 1A, Div 2, which is entitled "Duty of care". The heading to the division is part of the Act: Interpretation Act 1987 (NSW), s 35(1). However, in Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420, the High Court stated that the heading was "apt to mislead" and that ss 5B and 5C, which appear in that Division, "are evidently directed to questions of breach of duty": at [13].
12In Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40, after discussing the principle outlined by Lord Reid in The Wagon Mound (No 2) [1967] 1 AC 617 at 643, Mason J stated at 47:
"In essence its correctness depends upon a recognition of the general proposition that foreseeability of the risk of injury and the likelihood of that risk occurring are two different things. I am of course referring to foreseeability in the context of breach of duty, the concept of foreseeability in connexion with the existence of the duty of care involving a more generalized enquiry."
13The factors that Mason J stated (at 48) bear a close relationship to the statement of "general principles" in s 5B, a matter which supports the view that s 5B is dealing with breach of duty.
14However, two difficulties remain. First, where all questions of fact or law are to be determined by a judge alone (not the situation which arose in Shirt's case) applying the concept of foreseeability in two different contexts is more likely to confuse to than to illuminate. Further, it is clear that the Civil Liability Act does deal with questions of duty in Pt 1A, (although not in the division headed "duty of care") identifying those circumstances in which there is no liability because there is no duty: see s 5H (no duty to warn of obvious risk) and s 5M (no duty with respect to recreational activity where 'risk warning' given). In other provisions, the Act merely states that a person is "not liable in negligence for harm suffered": s 5I (materialisation of inherent risk), s 5L (dangerous recreational activities and obvious risks), s 5O (competent professional practice). The failure of the Civil Liability Act to resolve this confusion is compounded by the statement that Pt 1A applies to "any claim for damages for harm resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise": s 5A. Yet most of the provisions referred to have been drafted with an eye firmly fixed on the law of tort. An underlying intention to make them more broadly applicable may have deflected the drafter from clarity of expression with respect to claims in tort.
15The issue of present importance is that the legislative scheme has been assumed to leave untouched the general law principles which control the scope of liability of an employer, the occupier of premises, or an independent contractor.
16Where the relationship between plaintiff and defendant is not that of employee and employer, it is unhelpful to identify the scope of duty or the standard of care as "akin" to a relationship which does not exist. The exercise sought to be invoked would begin with a strong standard and depart from it only to the extent that material differences from the posited relationship can be established. However, if, for example, a key element of the employment relationship is that of control, the better approach is to acknowledge that control is a significant element and identify the extent of control exercised by the defendant in a particular situation: see Stevens v Brodribb Sawmilling co Pty Ltd [1986] HCA 1; 160 CLR 16 at 24 (Mason J).
17Brennan J spoke of the need for a principal 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": at 47. There was no elaboration on the scope of the "supervisory power", although it was expressed to be independent of the choice of competent contractors and coordination of areas of responsibility: at 48.
18The appellant sought to rely on principles derived from Stevens: however, except at a high level of generality, that exercise was misplaced. The defendant, Brodribb Sawmilling, conducted logging operations which involved felling trees, using a snigger to push or pull the logs up a loading ramp and a driver to transport the logs on a truck to the sawmill. The plaintiff, and another man, Gray, were independent contractors engaged by Brodribb. The plaintiff was a truck driver. Mr Gray was a snigger. When attempting to load the plaintiff's truck, he negligently allowed a log to roll onto the plaintiff, causing him significant injury. The question was whether Brodribb was liable to the plaintiff for Gray's negligence. However, the present case is not concerned with the negligence of one independent contractor causing harm to another: it is concerned with a contractor injuring herself in the course of her work.
19In Leighton Contractors Pty Ltd v Fox [2009] HCA 35; 240 CLR 1, the High Court stated at [20]:
"The common law does not impose a duty of care on principals for the benefit of independent contractors engaged by them of the kind which they owe to their employees. However, it is recognised that in some circumstances a principal will come under a duty to use reasonable care to ensure that a system of work for one or more independent contractors is safe. The principles were explained by Brennan J in Stevens [at 47-48] ...."
20The circumstances in Leighton v Fox were similar to those in Stevens: the plaintiff, an independent contractor on a building site, was injured by the negligence of another independent contractor, but sued the principal responsible for engaging the various contractors. The fact that an employer (but not a contractor) "owes a personal, non-delegable, duty of care to its employees requiring that reasonable care is taken" rather than simply "a duty to take reasonable care to avoid foreseeable risk of injury to a person to whom a duty is owed" recognises, without quantifying, the difference between the two relationships: Leighton at [21]. Otherwise, the circumstances of Leighton, being similar to those in Stevens, are of no direct relevance, in the sense that they involved the application of general principles to rather different facts.
21There is a line of cases of more direct relevance, of which the most important is Thompson v Woolworths (Q'land) Pty Ltd [2005] HCA 19; 221 CLR 234. The appellant, Thelma Thompson, delivered bread to a Woolworths store at Stanthorpe in Queensland. On occasion, access to the loading dock would be blocked by waste bins. It was the responsibility of Woolworths staff to return the bins to a fenced off area once they had been emptied. However, as the store manager (and hence the respondent) knew, contractors carrying out deliveries often moved the bins themselves. In moving the bins on one occasion, Ms Thompson suffered an injury to her back.
22In upholding her entitlement in negligence against Woolworths, the Court noted that one aspect of the relationship between the parties was the status of Woolworths as an occupier of the land, which gave it a measure of control, not only over the physical condition of the premises, but also with respect to the business operations carried out on the premises: at [24]. Other factors were also relevant.
"26 The purpose for which, and the circumstances in which, the appellant was on the respondent's land, constituted a significant aspect of the relationship between them. The appellant, in the pursuit of her own business, was delivering goods to the respondent for the purpose of sale in the course of the respondent's business. To do that, she was required to conform to a delivery system established by the respondent. She was directed by the respondent when, where, and by what method she was to deliver. ... Since the respondent established the system to which the appellant was required to conform, the respondent's duty covered not only the static condition of the premises but also the system of delivery. Some aspects of what went on were within the independent discretion of the appellant. She was not the respondent's employee. Within a fairly narrow time frame, she could choose when she made her deliveries. She could choose what kind of delivery vehicle suited her purpose. Decisions about the management of the vehicle, and the method of unloading, were largely left to her.
27 Even so, the respondent established and maintained a system, and its obligation to exercise reasonable care for the safety of people who came onto its premises extended to exercising reasonable care that its system did not expose people who made deliveries to unreasonable risk of physical injury. ...
28 The essential issue in the case concerns, not the existence or general nature of the duty owed by the respondent to the appellant, but whether there was a breach of duty."
23Rockdale Beef Pty Ltd v Carey [2003] NSWCA 132 pre-dated Thompson. In it, this Court considered the liability of a feedlot owner to a stockman, working as an independent contractor, who was injured when trying to herd a steer back into its pen. In upholding liability, Ipp JA (with whom Mason P and McColl JA agreed) stated:
"88 Mr Carey had no control over the configuration of his workplace. That was in the sole control of Rockdale. He had no control over where he had to work and what work he had to carry out. He was instructed by Rockdale as to these matters including the system of work that he needed to follow.
...
90 Although he was an independent contractor, Mr Carey worked for no one apart from Rockdale and had done so for many years. The bargaining power of the parties was not equal. Mr Carey was as vulnerable to potential misuse as any employee. ...
91 A defendant's control over the conduct that gives rise to the risk, a defendant's knowledge of the risk, and the relative inability of plaintiffs to protect themselves are also important factors in determining whether a duty of care arises ...."
24What was described as "the configuration of the work site" was said to have given rise to a safety risk, and a duty on Rockdale to use reasonable care to avoid or minimise that risk, namely by prescribing a safe system of work: at [92].
25Another case in this Court is Sydney Water Corporation v Abramovic [2007] NSWCA 248. Mr Abramovic worked as an employee of an independent contractor to Sydney Water Corporation. He suffered silicosis as a result of inhaling silica dust in the course of his work. The Dust Diseases Tribunal upheld the liability of Sydney Water in negligence. The appeal being limited to a question of law, the issue was limited to the existence of a duty of care. In considering the important question as to the level of control vested in the principal as opposed to the independent contractor or worker, I noted that a principal will often reserve to itself the right to exercise a degree of control over the nature and manner of carrying out works by independent contractors, a fact which cannot alone determine the existence or scope of a duty to require a safe system of work: at [90]. Significant in the particular case was the degree of control in fact exercised by the principal: at [91].
26At [98], I suggested a number of potentially relevant factors, namely:
"(a) the principal directs the manner of performance of the work;
(b) the work requires the coordination of the activities of different contractors;
(c) the principal has or ought to have knowledge of the risk and the employer does not and cannot reasonably be expected to have such knowledge;
(d) the principal has the means to alleviate the risk and the employer cannot reasonably be expected to do so;
(e) although the employer has or should have the relevant knowledge and can be expected reasonably to take steps to alleviate the risk, it does not, to the knowledge of the principal, do so."
27Those considerations were not intended to provide an exhaustive list (like most lists they were context-specific) nor, despite the wording which introduced them, was satisfaction of any one necessarily sufficient to give rise to a duty. Further, they were expressed in terms of the distribution of responsibility between the principal and an employer of the worker, although they could obviously apply where the independent contractor was the worker, rather than the employer of the worker. Finally, the somewhat restrictive formulation, albeit non-exhaustive, reflected an attempt to identify considerations relevant to the question of law involved in the existence of a duty, whereas, in most cases, as in Thompson, the focus of the dispute will rely upon the factual issues relevant to breach.
28Tolhurst v Cleary Bros (Bombo) Pty Ltd [2008] NSWCA 181 involved a worker who was employed by a contractor (Cleary) to stockpile coal at a mine site. When the stockpile was some 30 metres high, it collapsed onto the loader which Mr Tolhurst was driving, causing injury to him. The relevant issue for present purposes was the liability of the owner and operator of the colliery, Endeavour Coal Pty Ltd. The Court (the principal judgment being delivered by Giles JA, Beazley and Tobias JJA relevantly agreeing) upheld a duty on the part of Endeavour Coal to the worker, based on it having retained a degree of control over the performance by Cleary of its activities as contractor and having created the conditions in which there was a risk to the drivers of coal loaders, absent establishment of a safe system of work: at [73].
29Next, it is convenient to refer to the decision in Bostik Australia Pty Ltd v Liddiard [2009] NSWCA 167. Mr Liddiard was a worker injured when attempting to move an empty 200 litre drum, used as a rubbish bin, without mechanical or other assistance: at [1]. Although the premises were occupied by Bostik, part of the area was used by a separate business, Brolton Industries Pty Ltd, which employed Mr Liddiard. The evidence demonstrated that about six months before the accident, Brolton had supplied Mr Liddiard's services to Bostik for various cleaning and maintenance purposes, including that in which Mr Liddiard was engaged at the time of his injury. Ipp JA and I concluded that Bostik did not owe a duty of care to Mr Liddiard (Beazley JA being of a contrary view). On the evidence, the proper inference was that Brolton had contracted with Bostik to provide the services, but remained responsible for the manner in which such work was to be performed: at [149]. The reasons continued:
"Although the bins and the forklifts may have been the property of the appellant, part of the arrangement was that Brolton could make use of such equipment as it required to carry out the functions for which it was responsible. This was not a case in which any co-ordination of contractors was required, nor was there any other reason for the appellant to devise a safe system of work for the plaintiff. To the extent that the appellant controlled activities on the premises, there was no danger or risk to the plaintiff relevant to the injury suffered, arising from the state of the premises or the activities which took place on them. It was no doubt true that steps could have been taken which would have lessened or removed the risk associated with manual handling of the waste bins. Nevertheless, neither the legal arrangement nor the practical circumstances in which the work was undertaken imposed an obligation on the appellant with respect to such steps. In my view the appellant did not owe a duty of care to the plaintiff."
30Finally, there is Elphick v Westfield Shopping Centre Management Co Pty Ltd [2011] NSWCA 356. The plaintiff, Mr Elphick, was employed by a cleaning company, known as ACS, which had a contract to clean a shopping centre managed by Westfield. One of his responsibilities was to empty cardboard set aside for recycling from a large metal cage into a compactor. To undertake that task, he stepped inside the cage which, being mounted on three wheels, was inclined to move. The cage had to be secured before the plaintiff sought to climb into it, but on the occasion in question it moved causing his right hip to twist away from his legs. He suffered an injury but did not recover from Westfield. The facts were found to illustrate a regime of responsibility which conformed to the contractual scheme, which effectively exonerated Westfield.