Judgment date: 20 April 2012
Miljus v Watpow Constructions Pty Ltd  NSWCA 96
NSW Court of Appeal1
- This case reinforces the principles in Stevens v Brodribb Sawmilling Co Pty Ltd2(Brodribb), that an occupier "who organizes an activity involving a risk of injury to those engaged in it is under a duty to use reasonable care in organizing the activity to avoid or minimize that risk"3, and the occupier is not liable for damage caused by a negligent failure of an independent contractor to adopt or follow a safe system of work within their area of responsibility.
- Regulation 73(2) of the Construction Safety Regulations (1950) (NSW) (the Regulations) which obliges a builder/occupier to "provide and maintain safe means of access to every place at which any person has to work at any time", does not have any operation in relation to a delivery vehicle's passage along a public road as it makes its way to the construction site.
- This case followed the decision in Leighton Contractors Pty Ltd v Fox4, (Leighton) that the statutory obligations contained in the Construction Safety Act 1912 (NSW) (the Act) and the Regulations are not simply transposed into the duty to exercise reasonable care.
- Liability does not attach in any civil or criminal proceedings for breach of a Code of Practice pursuant to s 46(2) of the Occupational Health & Safety Act 2000 (NSW).
Mr Miljus (plaintiff) was employed by a company called Edensor Transport Pty Ltd (Edensor), of which he was also a director and shareholder. Edensor was in the business of concrete delivery and had its own vehicle suitable for that purpose.
The defendant, Watpow Constructions Pty Ltd (Watpow), was a building company and was engaged by the owner of a residential property at Rignold Street, Seaforth, to carry out a major building redevelopment (building site).
Watpow contracted with CSR Ltd (CSR), a prominent building products supplier, for concrete to be supplied to the building site. CSR subcontracted Edensor, one of its contract drivers, to transport the concrete from its depot in Brookvale to the site.
Watpow also contracted with Pump Force Concrete Pumping (Pump Force) who was experienced in relation to concrete pours on building sites and provided the "Hopper" into which the concrete was poured and subsequently pumped towards the building site. Pump Force's "Hopper" was located on Rignold Street itself, adjacent to the building site.
Rignold Street had a continuous downhill slope with a fairly steep embankment on the right hand side of the road. The width of the road was not much greater than the plaintiff's truck.
On 20 March 2001, the plaintiff was directed by CSR to deliver 5 cubic metres of concrete to the building site. This was CSR's second delivery to the building site that morning, though the plaintiff had never been to the site before. As he had difficultly locating Rignold Street the plaintiff was directed by CSR's Brookvale depot to speak with the driver who made the earlier delivery that morning. The CSR driver advised the plaintiff to stick to the upper side of the street.
Before entering Rignold Street the plaintiff climbed out of his truck, walked down the street and observed its condition and topography. The plaintiff formed the view that, although there were difficulties, he was capable of successfully reversing down the road. The plaintiff did not speak to anybody at the site, nor did he speak to any representatives of Watpow or Pump Force.
The plaintiff's father, who up until this time had been a passenger, exited the truck and assisted the plaintiff in the navigation process. However, in the course of reversing, the plaintiff lost control of the vehicle which toppled onto its left side and fell into the adjacent gully. The accident occurred on a public road at some distance removed from the building site. As a result of the accident the plaintiff suffered physical and psychiatric injuries.
Proceedings were initially commenced against CSR and Watpow in the District Court of NSW on 2 March 2004. Following a tortuous history, the matter was ultimately transferred to the Supreme Court for hearing on 24 May 2010, before his Honour Judge Davies.
Following 6 days of hearing, CSR and Watpow agreed to have their cross-claims against Edensor dismissed. In addition, following agreement between the remaining parties, judgment in relation to the plaintiff's claim was entered in favour of CSR. Accordingly, the proceedings were ultimately against Watpow alone.
Davies J accepted the evidence given by Mr David Watson, director of the defendant, that 2 CSR representatives, including Mr Mark Watson, traversed the site with him prior to deliveries taking place and examined the suggested spot adjacent to the premises where Pump Force had suggested that the concrete pump should be placed to accept delivery from the concrete trucks. David Watson specifically asked Mark Watson whether he saw any problems with getting the trucks to the site from Boronia Lane along Rignold Street and was assured by one of the CSR representatives that "they could get the concrete truck down there, no problem"5.
The plaintiff made 16 allegations of negligence against Watpow which generally revolved around a claim that Watpow owed a duty to provide and maintain the roadway as a safe means of access. The critical reason advanced by the plaintiff was that the concrete pump (or a second pump, as was done after the accident) ought to have been located at a point which would have obviated the need for trucks to be driven down the roadway.
In support of this argument the plaintiff drew the Court's attention to the Code of Practice for Pumping Concrete (Code of Practice) as well as provisions contained in the Act and the Regulations.
Following consideration of the evidence and each party's submissions, Davies J held that there was no duty of care owed by Watpow to the plaintiff given that:
- in accordance with the reasoning in Leighton, a failure on the part of a builder or contractor to have regard to specific clauses of the Code of Practice might be some evidence of a breach of a common law duty, but it would not provide a basis for imposing a new duty on the builder beyond any duty that the law already imposed;
- given the facts and circumstances of the matter, it was not possible to characterise either the plaintiff or Edensor as an independent contractor of Watpow, given that at no time did Watpow engage the services of Edensor or the plaintiff;
- there was no authority which supported a finding that a builder occupying a building site owed any duty, with respect to the safety and maintenance of a public road, to an independent contractor of a person with whom the builder had a contractual relationship for the delivery of goods. Certainly the builder had no obligation to repair the road or make it or its environs safe;
- there was no evidence of any reliance by the plaintiff on Watpow. The plaintiff's own evidence had been that he did not speak to anyone from the building site when he made his inspection of the road before attempting to reverse his truck to the site. He had formed his own conclusions and determined that although there were difficulties he was capable of driving down the road.
Accordingly, in the absence of any reliance by the plaintiff on anything said or done by Watpow in relation to the roadway, Davies J held there was no duty of care imposed on Watpow.
Interestingly, his Honour concluded that if there were a duty imposed on Watpow, a reasonable person in Watpow's position would have taken certain precautions including the placing of a second pump further up the street. In these circumstances, his Honour considered Watpow would have breached its duty, had one existed, by failing to ensure that trucks did not need to proceed beyond the corner of the road to deliver concrete.
Court of Appeal
The plaintiff appealed Davies J's decision on a number of grounds, the most relevant being:
- Watpow had retained a special controlling role as a head contactor with a supervisory obligation to avoid unreasonable risk of injury to truck drivers such as the plaintiff;
- the failure to use a second pump further up the roadway constituted a breach of duty to exercise reasonable care to provide a safe manner of delivery of concrete to the site; and
- the obligations imposed by s 73(2) of the Regulations and the Code of Practice gave content to the existence and scope of a duty of care owed by Watpow.
Duty of Care
Whealy JA delivered the unanimous judgment of the Court.
His Honour noted that this matter presented an unusual feature, namely, that the claim revolved around an employee of the delivery contractor (the plaintiff) who was not engaged by Watpow, and who was injured in an accident which occurred at a position relatively well removed from a building site. In considering whether a duty of care existed between Watpow and the plaintiff, Whealy JA noted:
- the general duty of care owed by a builder or contractor who has possession of the building site is that of an occupier. It owes a duty to persons coming onto the site to use reasonable care to avoid physical injury to them where the risk of that injury is foreseeable (in accordance with the decisions of Leighton and Australian Safeway Stores Pty Ltd v Zaluzna6);
- this duty, in circumstances where the occupier engages an independent contractor to carry out aspects of its enterprise, does not give rise to a duty of care towards an employee of the independent contractor akin to the duty of an employer to his employee: Leighton;
- in circumstances outlined by Mason J in Brodribb, the duty to take reasonable care may extend to responsibilities involved in the system of work utilised by the independent contractor;
- however, where the builder/occupier has engaged the services of an independent contractor whose task it is to control its own employee's systems of work and without supervision by the occupier, there may, depending on the overall circumstances be no liability imposed on the builder for a failure by the independent contractor to control its own system of work, as per Mason J in Brodribb:
"...once the activity has been organized and its operation is in the hands of independent contractors, liability for negligence by them within the area of their responsibility is not borne vicariously by the entrepreneur..."7
In examining whether the plaintiff was responsible for his own system of work, Whealey JA noted:
- there was no contract between Watpow and Edensor/the plaintiff;
- the contract between CSR and Watpow highlighted that Watpow (as the builder/occupier) would assume responsibility if the delivery vehicle left the road and entered the building site. By contrast, CSR (and its independent contractor drivers) had responsibility up to the point when the truck left the road and moved onto the building site;
- Watpow discharged its obligation to engage a competent contractor to carry out the concrete pumping aspect of its building contract by engaging Pump Force. Similarly Watpow selected a competent and experienced concrete supplier, and relied on it and its independent delivery contractors to bring the concrete to Pump Force; and
- Watpow had neither the expertise in the driving of concrete trucks, nor any specialised knowledge in the operation of concrete pumps or their placement. Watpow was entitled to look to CSR to make determinations as to whether its delivery vehicles would be able to effectively and safely deliver concrete to the pump in its location adjacent to the building site.
His Honour concluded that, based on the abovementioned principles in Brodribb, the duty of care sought by the plaintiff simply did not arise. Accordingly, if no duty arose in relation to the co-ordination of the activities on the project site, it must be the case that no such duty arose or existed in relation to an activity away from the site.
The plaintiff looked to s 73(2) of the Regulations to determine the potential scope and nature of a duty of care owed by Watpow. Section 73(2) of the Regulations obliges a builder/occupier to "provide and maintain safe means of access to every place at which any person has to work at any time".
Whealy JA noted that in this matter, the obligation was intended to fall upon the head contractor/occupier to take all necessary measures to minimise accident risk and to prevent injury to a person delivering goods to the site. In those circumstances, his Honour concluded it would have application only at the time when the process of passing the concrete through the pump system was engaged. His Honour did not consider the Regulations have any operation in relation to the delivery vehicle's passage along a public road as it makes its way to the construction site.
Whealy JA, following the decision in Leighton, confirmed that the statutory obligations found in s 46(2) of the Occupational Health and Safety Act 2000 (NSW) (OH&S Act) are not simply transposed into the duty to exercise reasonable care and "... carried with it, in the case of breach, no civil or criminal liability"8.
Breach of Duty
Whealy JA disagreed with the primary judge's finding that if the defendant owed the plaintiff a duty of care that there was a breach of duty. His Honour found the evidence overwhelmingly established that the defendant had discharged that duty by engaging competent contractors who were responsible for the design and implementation of a system of work for the delivery of concrete to the site. Furthermore his Honour found, having regard to the number of prior truck movements over many months, the probability of harm occurring to anyone delivering goods to the site, including concrete trucks were so low that a reasonable person would not have taken any precautions beyond relying on the advice of specialist contractors in relation to such a possibility.
Ultimately, the plaintiff's appeal was dismissed.
The case reinforces the principles in Brodribb that a head contractor has a general obligation to engage competent contractors to carry out work at a construction site but once that obligation has been fulfilled and a safe system of work prescribed, generally no further duty exists.
The duty to prescribe a safe system of work does not extend to any operation in relation to a delivery vehicle's passage along a public road as it makes its way to a construction site.
The case also reinforces the principles in Leighton that while obligations under statutory or other enactments have relevance to determining the existence and scope of duty they do not impose a more stringent or onerous burden. The duty is discharged by the exercise of reasonable care.
The Act and Regulations have since been replaced by the OH&S Act and the Occupational Health & Safety Regulation (2001) (OH&S Regulation). The above decision may provide some guidance when interpreting similar provisions contained in the OH&S Act and the OH&S Regulation, in particular regs 34 and 46, which provide that a controller of premises is obliged to identify and eliminate risks to "the health or safety of any person accessing, using or egressing from the premises".Footnotes
1 Bathurst CJ, McColl JA and Whealy JA
2  160 CLR 16
3 Brennan J, at 534
4  HCA 35
5 Whealy JA, at 26
6  HCA 7
7  160 CLR 16, at 47-48
8 Whealy JA, at 127
Ranked No 1 - Australia's fastest growing law firm' (Legal Partnership Survey, The Australian July 2010)
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.