uty of care not owed to experienced subcontractor, Court rules

Source: Workplace OHS

The NSW Court of Appeal has overturned a worker's damages award finding the duty of care owed by an occupier to a subcontractor did not require the occupier to provide a safe system of work once the work had been organised and it was under the control of an experienced independent contractor.

An experienced driver of prime movers and trailers, employed by DNR Boyle Enterprise Pty Ltd, was standing on a load of steel on his trailer in order 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' (also called a 'dog'). When the load moved under his feet, he lost his balance and fell, sustaining serious injuries.

The accident occurred at the premises of J Blackwood & Sons Steel & Metals Pty Ltd with whom DNR had entered into a contract to provide a prime mover, trailer and driver for the purpose of transporting and delivering Blackwood's steel products to its customers between its yard in Newcastle and its yard in Sydney. In this respect, the worker was engaged in such work on behalf of Blackwoods for the whole of the six years that he had been employed by DNR.

In March 2005, the driver commenced proceedings in the District Court seeking damages from Blackwood's. He alleged that in the course of loading the trailer he was required to stand on top of the load to tighten the chains used for securing the load and that in the course of doing this, the chain slipped and loosened resulting in the load moving thereby causing him to lose his balance and fall to the ground.

District Court findings

Acting Judge McGrowdie concluded that Blackwood's owed the driver a duty of care to take reasonable steps to provide him with a safe system of work upon its premises, and that it had failed to do so knowing that there existed a risk of injury to the worker. Damages were assessed in the sum of $510,571.

Blackwood's had pleaded contributory negligence on the part of the worker, but the Court declined to find that he had negligently contributed to his injuries.

Blackwood's appealed to the NSW Court of Appeal against the primary judge's finding that it owed the driver a duty of care or, if it did, that it had breached that duty or, if it had, that the breach was causative of the worker's injuries. It also appealed against the primary judge's rejection of its claim that the worker was guilty of contributory negligence and against the Court's assessment of DNR's liability to contribute to the driver's damages at only 20%.

Conclusions

The NSW Court of Appeal found the primary judge's finding that Blackwood's was in a position to control the loading procedures on the site even where drivers were involved 'could not rise to a non-delegable duty of care or any duty of care with respect to the securing of the first respondent's [the driver's] load'.

The fact that it was in a position to do so was irrelevant absent of an actual exercise of control by the appellant over that activity by 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 driver as an independent contractor of the task of securing of his load.

The primary judge erred in finding that Blackwoods owed a duty of care to the worker to provide him with a safe system of work with respect to the securing of his load. The relationship between Blackwood's and the driver was not such as to give rise to any such duty given that the company had no control over the manner in the subcontractor, not being an employee, carried out a task which he was at all times experienced in performing.

Although it is true that Blackwood's was in a position, if it so wished, to advise the worker in the performance of the task in question, it was under no duty of care which could be breached by its failure to do so.

Accordingly, Blackwood's was not liable for the driver with respect to his injuries and the original judgment was set aside.

The appeal was allowed.

J Blackwood & Son Steel & Metals Pty Ltd v Nichols & Anor [2007] NSWCA 157 (4 July 2007)