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Delegated duty 17 WCMS 1

J Blackwood & Son Steel & Metals PL v Nichols &c [2007] NSWCA 157. Tobias JA, Mason P & Handley AJA concurring.

[Special leave refused with costs by the High Court 14.12.07. CA dismissed with costs s 151Z(2) appeal: [2008] NSWCA 142.]

The first respondent, an experienced truck driver, was injured on 15.04.02 by the shifting of a trailer load of steel on which he was standing to secure with a fixed level chain load binder, or dog.

The incident occurred at the premises of the appellant, a long term customer of the second respondent trucker employer, whose insurer had made statutory payments, and who in the District Court was subject of LR (Misc Provs) Act 1946 s5(1) cross-claim from the appellant.

McGrowdie ADCJ found the appellant obliged analagously to an employer's duty, a want of safe system, and assessed damages at $510,000, with the employer liable to 20% contribution.

Tobias JA noted the trial judge's express reliance on Stevens v Brodribb Sawmilling Co PL(1986) 160 CLR 16 at 31, Pack-Tainers PL v Moore [2005] NSWCA 43, TNT Australia PL v Christie [2003] NSWCA 47; (2003) 65 NSWLR 1. His Honour noted oral evidence as well as the appellant's procedure manual, which incorporated BHP transport safety guidelines.

Tobias JA noted the appellant's reliance upon Brennan J in Stevens at 47, including: '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."

Noted also were Humberstone v Northern Timber Mills (1949) 79 CLR 389 at 404-405, per Dixon J, and referred to National Transport Insurance Ltd v Chalker [2005] NSWCA 62 per Mason P at [54], and [62-63], and Van der Sluice v Display Craft PL [2002] NSWCA 204, and Electric Power Transmission PL v Cuiuli (1961) 104 CLR 177.

Holding there was no employer standard, at [63] Tobias JA said: "This is because the appellant neither exercised nor purported to exercise any degree of control over the performance of the first respondent of the task of securing his load including the tensioning of the chains by using a dog.

"Although the first respondent pointed to some 16 indicia of control being exercised by the appellant with respect to the first respondent's movements within its premises, none related to the work of securing his load."

That the appellant was "in a position to control" was, according to Tobias JA, "... irrelevant absent an actual exercise of control by the appellant over that activity by the giving of information and directions or in some other way.

"However, it was not under a duty to exercise any such control over the undertaking by the first respondent as an independent contractor of the task of securing his load: cf: ICI ANZ v Murphy (1973) 47 ALJR 122 at 125, 129."

Cited but distinguished was Rockdale Beef PL v Carey [2003] NSWCA 132 at [91] per Ipp JA who said: "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 are also important factors in determining whether a duty of care arises."

Also distinguished was Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234.

Tobias JA said: "There was no system of work provided by the appellant that the first respondent had to follow for the purpose of carrying out the task of securing his load."

His Honour noted facts derogating the existence of duty or breach.

To Occupational Health & Safety Regulation 2001 cl 39, Tobias JA said: "The duty imposed by cl 39 is confined to the provision and maintenance of safe access to a worker's place of work. It says nothing with respect to the place of work itself once safe access is provided to it. It is therefore necessary to distinguish between a worker who is injured at his place of work and one who is injured while gaining access to it: cf AI&S PL v Luna (1969) 123 CLR 305.

"For the Regulation to be engaged in the present case, it was necessary for there to be a finding that when his load moved and he lost his balance, the first respondent was in the course of accessing his place of work rather than that he was at his place of work."

"In my opinion, whether or not the appellant breached the Regulation by failing to provide the first respondent with safe access from the ground to the top of his load, his place of work at the time of the accident was the top of his load, which he had already accessed safely. In other words, the accident occurred as a consequence of what happened after he had reached his place of work, being the top of his load."

Judgment below substituted in favour of appellant with costs, cross claim dismissed with costs, worker to have certificate for appeal costs only, appellant to pay second respondent's appeal costs.

A: S G Campbell SC, D A Priestley, Wotton & Kearney, Sydney; 1R: M Williams, SC, T McKenzie, D B Beukes, J A O'Brien & Co, East Maitland. 2R: L King SC, M Snell, Goldbergs.

* See also J Blackwood & Son v Skilled Engineering [2008] NSWCA 142 (24 June 2008)

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