Leighton Contractors Pty Ltd v Fox

• Jurisdiction: Australia Federal only
• Judge: French CJ,Gummow,Hayne,Heydon,Bell JJ
• Judgment Date: 02 September 2009
• Neutral Citation: 2009-0902 HCA C,[2009] HCA 35
• Court: High Court
• Docket Number: S528/2008
• Date: 02 September 2009

[2009] HCA 35

HIGH COURT OF AUSTRALIA

French CJ, Gummow, Hayne, Heydon and Bell JJ

S528/2008

S534/2008

Leighton Contractors Pty Ltd

Appellant

and

Calliden Insurance Limited (Acn 004 125 268)

Respondents

Leighton Contractors Pty Ltd

Appellant

and

Brian Allan Fox and Ors

Respondents

Representation

B W Walker SC with W S Reynolds for the appellant in S528/2008 and the second respondent in S534/2008 (instructed by Moray & Agnew Solicitors)

J E Maconachie QC with R G Gambi for the appellant in S534/2008 and the second respondent in S528/2008 (instructed by Wotton & Kearney)

M J Cranitch SC with R C Tonner for the first respondent in both matters (instructed by Walkom Lawyers)

No appearance for the third respondent in both matters

Occupational Health and Safety Act 2000 (NSW).

Occupational Health and Safety Regulation 2001 (NSW), Pt 8.2.

Code of Practice: Pumping Code (NSW).

Code of Practice: Occupational Health and Safety Induction Training for Construction Work (NSW).

Leighton Contractors Pty Ltd v Fox

Calliden Insurance Limited v Fox

Torts — Negligence — Duty of care — Independent subcontractor suffered injury resulting from negligent conduct of co-subcontractor — Whether induction training in industry approved code of practice would have avoided cause of injury — Whether principal contractor for construction work owes duty to provide, or be satisfied of the prior provision of, training in safe work methods to independent contractors working on construction site — Whether contractor retained to carry out concreting owes duty to provide training in safe work methods to independent subcontractor engaged by it to carry out concrete pumping — Whether obligations imposed on principal contractor and contractor under the Occupational Health and Safety Act 2000 (NSW) and the Occupational Health and Safety Regulation 2001 (NSW) give rise to a common law duty requiring for its discharge the provision of occupational health and safety induction training in respect of safe work methods of carrying out specialised tasks.

In each matter, order:

1. Appeal allowed.

2. Set aside orders 1 and 5 of the orders of the Court of Appeal of the Supreme Court of New South Wales made on 7 March 2008, and in lieu thereof order that the appeals to that Court be dismissed.

3. Appellant to pay the costs of the first respondent of the appeal to this Court.

French CJ, Gummow, Hayne, Heydon and Bell JJ

Introduction

1 Background facts. On 7 March 2003 Brian Allan Fox, the first respondent in each of these appeals, suffered severe injury in the course of working at the construction site of the Hilton hotel in Sydney. Leighton Contractors Pty Ltd (‘Leighton’), the appellant in the first appeal, was the principal contractor for the project. By the ‘Works Contract’, Leighton had contracted with Downview Pty Ltd (‘Downview’) to carry out the concreting, including the provision of reinforcing and formwork, for certain works. Downview had subcontracted the concrete pumping to Quentin Still and Jason Cook. Mr Fox and Warren Stewart were engaged by Mr Still and Mr Cook in connection with the concrete pumping for a pour that was scheduled to take place on 7 March.

2 After the concrete pour was completed Mr Still, Mr Stewart and Mr Fox commenced to clean the concrete delivery pipes. This involved blowing an object through the pipes with compressed air. In the negligent manner in which this was done the end pipe swung around and struck Mr Fox on the head.

3 The trial. Mr Fox brought proceedings in the New South Wales District Court in negligence against Leighton, Warren Stewart Pty Ltd, which employed Warren Stewart, and Downview. The trial judge (Gibb DCJ) found that the accident was caused by the negligent conduct of Mr Still and Mr Stewart. She dismissed the claims against Leighton and Downview, holding that there was no relevant breach of duty by either of them. She gave judgment for Mr Fox in the amount of $472,561.95 against Warren Stewart Pty Ltd. Warren Stewart Pty Ltd did not appeal against the judgment. Unfortunately for Mr Fox, it has since been de-registered.

4 The appeal to the Court of Appeal. Mr Fox appealed against the dismissal of his claims against Leighton and Downview. The Court of Appeal allowed the appeal, holding that Leighton and Downview were each subject to a common law duty of care for the benefit of Mr Fox and that each was in breach of that duty. The primary judge's orders were set aside and judgment was given against Leighton and Downview in the sum of $472,562. The Court of Appeal upheld a cross-appeal brought by Leighton against the dismissal of its cross-claim and ordered that Downview pay 80% of the judgment debt owed by Leighton to Mr Fox.

5 The appeal to this Court. Leighton and Downview appealed by special leave from the orders of the Court of Appeal. They contended that the imposition on each of them of a common law duty of care owed to Mr Fox, an independent contractor, involves an unwarranted extension of the liability of principals for the negligent acts of other independent contractors engaged by them 1. Each appeal should be allowed for the reasons that follow.

6 On 16 April 2009, after the institution of the appeals, Downview was de-registered. On the hearing of the appeals leave was given to substitute Calliden Insurance Limited as the second respondent in the first appeal, and as the appellant in the second appeal, pursuant to s 6(4) of the Law Reform ( Miscellaneous Provisions) Act 1946 (NSW). Calliden gave an undertaking as to costs in the terms of the undertaking previously given by Downview as a condition of the grant of special leave in the second appeal. This was an undertaking that Downview would pay Mr Fox's costs of the appeal and that it would not seek to disturb any costs order in his favour made in the Court of Appeal. Leighton gave an undertaking in the same terms as a condition of the grant of special leave in the first appeal.

7 It is convenient to continue to refer to the second respondent in the first appeal, and the appellant in the second appeal, as ‘Downview’.

The factual background

8 The relationships and experience of those present on 7 March. Downview had dealings with Quentin Still, Jason Cook and Chris Gelle in connection with the subcontract for the concrete pumping. Each represented to Downview that he was employed by Toro Constructions Pty Ltd (‘Toro’). Downview understood that its contract was with that entity. Toro was joined to the proceedings as fourth defendant. The proceedings were discontinued against Toro after Mr Still revealed that he was not in its employ.

9 Despite the confusion occasioned by the misrepresentation concerning Toro, Mr Still and Mr Cook secured the subcontract for the concrete pumping from Downview. They supplied the pipes and other equipment required for the work. Neither were joined to the proceedings.

10 Mr Still had attended the site on several occasions before the date of the accident. On these occasions he had engaged a man named Jamie who supplied a

concrete pump truck together with his own labour and that of an offsider. The concrete pour on 7 March had originally been scheduled to take place on the following day. One consequence of the re-scheduling was that Jamie was not available to supply his pump truck or to work on that day. Mr Still was informed of the re-scheduling on 7 March and either he or Mr Cook telephoned a man named John Martin to arrange for another concrete pump truck and labour.

11 Mr Martin was one of the principals of a business, Shark Shire Pumping, which supplied concrete pump trucks. He was also a principal of Aggforce Concrete Pty Ltd, which supplied labour to the concrete pumping industry. On 7 March Mr Stewart and Mr Fox attended the site in a pump truck supplied by Shark Shire Pumping in response to the request made to Mr Martin. Mr Stewart was the driver and Mr Fox was the offsider. Mr Fox was a labourer who had worked in the industry on and off for nearly a decade. Even though he worked ‘virtually exclusively’ for the businesses operated by Mr Martin, he was an independent contractor. Neither Aggforce nor Mr Martin were joined to the proceedings.

12 The arrangement made by Mr Still or Mr Cook with Mr Martin was that the pump truck was to go to the Hilton site and that the driver and offsider were to take directions from Mr Still. Mr Still had worked in the concrete pumping industry for 19 years. Mr Stewart had worked in this industry for 11 years, but he did not have experience working on a major multi-storey construction site such as this one. The largest job that he had previously done was ‘probably a six storey block of units’. He and Mr Still had known one another for some time and each considered the other to be experienced in concrete pumping. Mr Fox had previously worked as a concrete linesman/pump truck offsider, but he had no experience of working on a major construction site. The biggest jobs that he had worked on involved the construction of two storey houses or townhouses.

13 The accident. Mr Still met the pump truck on its arrival and directed it to level 4, the access level to the site. The three men took a number of pipes from the pump truck up to level 12, where the concrete was to be poured. They linked up the pipes on level 12 to the static line, a pipe attached to one of the columns, which ran down to level 4. They then returned to level 4 and connected the line from the truck to the static line. During the concrete pumping Mr Fox assisted Mr Still on level 12 while Mr Stewart remained with the pump truck on level 4. After the pour was completed, and the pump had been turned off, Mr Still and Mr Fox went down to level 4 to assist Mr Stewart to uncouple the pipes. Mr Stewart then reversed the pump truck out of the way and a forklift driver...