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“Occupiers Liability – Liability of principal for employee of independent contractor – Occupational Health & Safety Regulation 2001 cl 39”: J Blackwood & Son Steel & Metals Pty Limited -v- Nichols [2007] NSWCA 157

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Author: Peter Ford
Judgement Date: 4th July, 2007
Citation: J Blackwood & Son Steel & Metals Pty Limited -v- Nichols [2007] NSWCA 157
Jurisdiction: NSW Court of Appeal
In Brief
  • The Court of Appeal held that the duty of care owed by an occupier to an experienced independent contractor does not require the occupier to provide the contractor with a safe system of work once the activity has been organised and its operation is in the hands of the independent contractor.
  • The Court of Appeal also held that the duty to provide safe access to a place of work under the Occupational Health & Safety Regulation 2001 was confined to the provision and maintenance of safe access to a worker’s place of work – ie the regulation is not directed to circumstances where a worker is already at his or her place of work.
Facts
  • The plaintiff was an experienced driver of prime movers and trailers and had been employed in that capacity by D & R Boyle Enterprise Pty Limited (“the cross defendant”) for some six years.
  • The plaintiff was injured at the premises of the defendant when he fell off the back of his trailer whilst trying to tie down a load of steel which had just been loaded onto his truck.  The plaintiff was trying to tighten a chain lashed across the trailer from one side of his load to the other by using a device known as a “fixed level chain load binder” (called a “dog”).  When the load moved under his feet, he lost his balance and fell, sustaining serious injuries. 
  • There was evidence that neither a representative of the defendant nor the employer had ever informed the plaintiff that it was unsafe to place his dogs on the chains whilst standing on top of his load.  This was so, notwithstanding that over the years the plaintiff had on occasions slipped as a result of the steel shifting under his feet whilst he was attempting to tighten a load.  He had not however previously sustained any injury.
  • There was also evidence from the defendant that there was a stepladder and an access platform on site which would have been available to the plaintiff if required.  The plaintiff was unaware of the availability of these items.
  • There was also evidence that on many occasions representatives of the defendant had been present when the plaintiff was tying down his load and had never said anything to him about the safety or otherwise of the plaintiff standing on top of his load and tightening the chains.
  • There was also evidence as to instructions given by the defendant to its own employees who worked as truck drivers in relation to safe loading methods.  Those instructions were not however extended to independent contractors such as the plaintiff.
Decision of Trial Judge
  • The matter came before Acting District Court Judge McGrowdie who took the view that the function exercised by the plaintiff in securing his load was no different from that of an employee of the defendant.  His Honour considered that, had the defendant had in place a system whereby all drivers, including contractors such as the plaintiff, were given adequate instruction and provided with a means to secure loads without standing on them, the accident could have been avoided.  His Honour considered that as the risk of injury to the plaintiff was “readily identifiable” and had also been observed by the defendant on a daily basis, the defendant was in a position to control the loading procedures on its premises even where contractors were involved.
  • In finding for the plaintiff, McGrowdie ADCJ relied on the High Court decision in Stevens -v- Brodribb Sawmilling Co Pty Limited (1986) 160 CLR 16 where it was held that the obligation to provide a safe system of work should not necessarily be confined to an employer.
  • His Honour also relied on the Court of Appeal decision in TNT Australia Pty Limited -v- Christie [2003] NSWCA 47 where it was held that an occupier owed a non delegable duty of care to a labour hire employee.
  • Although the plaintiff had considerable experience in securing loads on trucks, his Honour considered he had been given little choice about how to do so and had never been given proper instructions.
  • Accordingly, his Honour concluded that the defendant owed the plaintiff a duty of care which it had breached. 
Court of Appeal Decision
  • The defendant appealed.
  • The Court of Appeal unanimously upheld the defendant’s appeal, Tobias JA delivering the main judgment.
  • The plaintiff sought to argue that the defendant had numerous indicia of controls in relation to the loading of the plaintiff’s truck and the procedures which were to be employed in this.
  • The defendant submitted that its only direct control was in the placing of the steel products upon the trailer of the plaintiff’s truck.  Thereafter the securing of the load was left to the plaintiff.  The defendant argued the circumstances of this case were very different to those in Christie which was a case where the defendant had supplied the plaintiff with faulty equipment and had therefore actively provided a system of work which was unsafe and which the plaintiff was directed to follow.
  • Tobias JA pointed out that the duty of care held to be owed by TNT in Christie was directly based upon the principle expounded by Mason J in Stevens.  Christie was distinguished in the present case as there was no allegation that the plaintiff was some sort of de facto employee of the defendant.  Unlike TNT, the defendant had not exercised daily control over the relevant work activities of the plaintiff, namely the securing of his load. 
  • The plaintiff nonetheless argued on appeal that it was open to the defendant to direct him as to the method he should adopt in securing the load with the dogs and if he had done so, the plaintiff would have complied with the direction and the accident would have been avoided.
  • The plaintiff argued that as the accident occurred on the defendant’s premises and as it obviously had control of its own premises, it had a duty to ensure that any work performed by the plaintiff should be carried out safely.
  • The defendant relied on a passage from the judgment of Brennan J in Stevens which included the following:

“The duty to use reasonable care in organising 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 minimise 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… 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.”

  • The defendant also relied upon the Court of Appeal decision in National Transport Insurance Limited -v- Chalker [2005] NSWCA 62 where it was held the real question was whether ultimate authority over the contractor in the performance of his work resided in the employer that gave the plaintiff his orders and directions.
  • As in Chalker, the defendant argued that the task of tensioning the chains using a dog was so obviously part of the mental equipment of an experienced driver such as the plaintiff as to mean that it was not unreasonable for the defendant to leave the plaintiff to his own devices.  The fact that the defendant was aware of the risk of injury to the plaintiff was not the point, per Tobias JA.  That would only be relevant if in fact the defendant owed the plaintiff a non delegable duty of care akin to that owed by an employer to its employee.  That was not the case here.
  • The plaintiff also sought to rely upon the Court of Appeal decision in Rockdale Beef Pty Limited -v- Carey [2003] NSWCA 132 where it was held that a defendant’s control over the conduct that gives rise to the risk, a defendant’s knowledge of the risk, and the relevant inability of plaintiffs to protect themselves were important factors in determining whether a duty of care to a contractor arose.
  • The Court of Appeal distinguished Rockdale Beef as the defendant did not relevantly have control over the conduct of the plaintiff which gave rise to the risk of the load moving so that he lost his balance and fell.
  • In addition, the plaintiff was fully aware of the risk of falling and considered it obvious.  The fact that he was unaware of the availability of a ladder or platform did not constitute either a disability or inability on his part.  The plaintiff also had his own doubts as to whether he could safely carry out his tasks from a ladder unless it was appropriately stabilised.
  • Tobias JA stated it was doubtful whether the provision of a ladder or other form of access platform would have been sufficient to prevent the plaintiff from having to stand on top of his load to ensure that “the load goes in the middle“.  Accordingly his Honour noted a real issue of causation arises.
  • Finally, the plaintiff sought to rely upon the High Court decision in Thompson  v  Woolworths (Qld) Pty Limited [2005] HCA 19 where a contractor engaged to deliver bread to a Woolworths’ supermarket injured her back whilst attempting to move heavy industrial waste bins which were obstructing access to the loading bay.  In that case, the High Court held that, as the delivery driver was a lawful entrant, Woolworths owed her a duty to do what was reasonable to avoid the risk of injury to her in attempting to move the bins unassisted.  The Court of Appeal pointed out that the basis of this decision was clearly that Woolworths required the driver to conform to a delivery system and it was therefore obliged to exercise reasonable care for the safety of the driver in making her delivery by not exposing her to an unreasonable risk of physical injury.
  • Tobias JA held this case was distinguishable from that in Thompson as here there was no system of work provided by the defendant which the plaintiff was required to follow for the purpose of carrying out the task of securing his load.
  • Accordingly, the Court of Appeal held the defendant did not owe any duty of care to the plaintiff with respect to the manner in which he secured his load.
  • Finally, the plaintiff on the hearing of the appeal submitted a Notice of Contention that the defendant had breached cl 39 of the Occupational Health & Safety Regulation 2001 which relevantly provides:

“A controller of premises must ensure that:

(a) Safe access is provided to all parts of a place of work to which a person may require access and from which the person may fall ..…”

  • • The Court, per Tobias JA, held the duty imposed by cl 39 was confined to the provision and maintenance of safe access to a worker’s place of work.  In deciding whether the regulation has been breached, it was necessary to distinguish between a worker who was injured at his place of work and one who was injured while gaining access to it.  Therefore the regulation did not apply to the present case as the plaintiff was already at his place of work rather than accessing it.  The place of work was the top of the load; it had already been accessed by the plaintiff; and this access did not materially contribute or contribute at all to the load moving which resulted in the plaintiff’s accident.
  • Accordingly, the primary judge had erred in finding the defendant owed the plaintiff a duty of care to provide him with a safe system of work with respect to the securing of his load.  The relationship between the plaintiff and the defendant was not such as to give rise to any such duty given that the defendant had no control over the manner in which the plaintiff, not being an employee of the defendant, carried out a task which he was at all times experienced in performing.
Implications
  • This is the first decision of which we are aware which considers the construction of cl 39 under the Occupational Health & Safety Regulation 2001 to provide safe access to a place of work.  The Court of Appeal has signalled that the duty to provide safe access will be narrowly construed so that the actual access to a place of work must be causative of a plaintiff’s accident.
  • An occupier does not owe a duty of care to an independent contractor to provide him or her with a safe system of work when the occupier has no control over the manner in which the contractor carries out a task which he or she is experienced in performing.  The Court of Appeal distinguished the duty of care held to be owed by an occupier in Christie where the defendant occupier exercised control over the plaintiff’s activities as was also the case in Thompson -v- Woolworths and Rockdale Beef -v- Carey.
  • The Court of Appeal accepted the present case was more analogous to the circumstances in Van Der Sluice -v- Display Craft Pty Limited [2002] NSWCA 204 where the plaintiff was an experienced contractor who fell from a ladder.
  • Another case which we consider relevant but which was not referred to by the Court in this instance is Westco Distributors Pty Limited v Hickey’s Transport Pty Limited [2006] NSWCA 24 where the plaintiff truck driver sued his employer and the occupier of premises where he was undertaking a delivery.  The plaintiff was given a defective and inadequate jack by his employer to move pallets on his truck as a result of which he was injured.  The Court of Appeal held that the occupier could not be expected to offer assistance where none was sought in circumstances where constant surveillance by the occupier would go well beyond what constituted reasonable steps.  The Court of Appeal held the effective cause of the plaintiff’s accident was the damaged equipment provided by his employer as opposed to any defect in the system at the occupier’s premises.
  • The decision affirms the above authorities that a defendant’s ability to control the manner in which a plaintiff goes about a task on the defendant’s premises remains a crucial factor in determining whether there is a breach of duty in circumstances of injury to an experienced independent contractor.

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