In the recent decision of Miljus v Watpow Constructions Pty Ltd  NSWCA 96 (Miljus) the Court of Appeal had occasion to consider whether an occupier of a building site owed a duty to provide a safe means of access along a public road to the subcontractor of one of the occupier's independent contractors.
In doing so, the Court of Appeal took the opportunity to clarify the relevance that industry codes of practice and statutory regulations have in determining whether a common law duty of care exists.
Watpow Constructions Pty Ltd (Watpow) was the head contractor of a residential building project in Seaforth. Watpow retained CSR Ltd (CSR) to provide concrete to the project. To transport the concrete from its depot to the project site, CSR engaged Edensor Transport Pty Ltd (Edensor), a concrete delivery company. Edensor was one of a number of concrete delivery contractors engaged by CSR to transport concrete to the project. Damien Miljus (the plaintiff) and his father were shareholders and directors of Edensor and Edensor employed the plaintiff as a truck driver. Importantly for the later proceedings, Watpow did not engage Edensor or the plaintiff directly.
The project site in Seaforth was only accessible via a narrow road through bushland. The road followed a slight incline up to the project site and in parts was not much wider than the plaintiff's truck. Once at the project site, the concrete was poured into a hopper and pumped up to the project by Pump Force Concrete Pumping (Pump Force). Pump Force used a concrete pump positioned on the road adjacent to the project site to pump the concrete to the site.
Prior to 20 March 2001, work on the project had been underway for several months and many concrete trucks had delivered concrete to the site without incident. However, on 20 March 2001 it was the plaintiff's first time to the site. Accordingly, when the plaintiff reached the road leading to the site, he got out of his truck and checked the surroundings to make sure that he was capable of backing into the road. The plaintiff's father who had accompanied the plaintiff in the truck then got out and gave directions as the plaintiff began reversing along the road. As the plaintiff did so, he lost control of the truck and it fell into an adjacent gully. Again, importantly for the later proceedings, the accident occurred on a public road outside the project site.
The plaintiff sued Watpow and CSR in negligence in the NSW District Court. Later, the proceedings were transferred to the Supreme Court. For reasons that are not entirely clear, the plaintiff consented to judgment in CSR's favour prior to the conclusion of the trial over objections from Watpow which maintained a cross-claim against CSR 1 . The proceedings then continued against Watpow alone after Watpow and CSR agreed to a dismissal of their respective cross-claims by consent.
The plaintiff's case at trial was essentially that Watpow had failed to provide the plaintiff with safe access to the project site (the unsafe access case). A related case was that the way in which the plaintiff was required to deliver the concrete to the site was dangerous, so that an alternative system should have been set up (as indeed was done following the plaintiff's accident) (the unsafe system case).
The unsafe access case faced the immediate obstacle that the plaintiff's accident had not occurred at the project site but on a public road leading to it. The plaintiff sought to overcome that obstacle by arguing that, as the concrete pump was situated on the shoulder of the road outside the site and as it was the concrete pump to which the plaintiff was principally directed, the road itself was the access that Watpow was required to make safe. The plaintiff also relied on concessions from Watpow's director which, the plaintiff said, showed that Watpow had assumed a general responsibility over the condition of the road. The trial judge accepted that a defendant may be liable for breach of a self-imposed duty notwithstanding that the defendant is not obliged to perform that duty at law. Traditionally, this occurred where a plaintiff suffered injury in reliance on a public authority continuing to perform a duty that the public authority performed in the past: Mercer v South Eastern and Chatham Railway Companies' Managing Committee  2 KB 549. In the present case, however, quite apart from the fact that the road was a public road and so not property in which Watpow had any right or entitlement, there was no evidence that the plaintiff had placed any reliance on Watpow taking steps to make the road safe for the plaintiff.
The plaintiff's unsafe system case, although less clearly articulated, was that the position of the concrete pump on the road adjacent to the site put the plaintiff at risk by requiring the plaintiff to back down a narrow road in order to unload the concrete. The plaintiff argued that regulation 73(2) of the Construction Safety Regulations 1950 (NSW), although only pleaded as a particular of negligence, required Watpow to devise a means for the plaintiff to deliver concrete that did not expose the plaintiff to a risk of injury.
The trial judge found that the real question was whether Watpow could be said to have owed the plaintiff a duty of care. As the plaintiff was not an independent contractor to Watpow, the exceptions to the general rule in Stevens v Brodribb Sawmilling Company Pty Ltd  HCA 1 that a head contractor does not owe an independent contractor a common law duty of care did not immediately apply to the plaintiff. Further, the question of whether a duty of care was owed was ultimately a question of law that could not be resolved by Watpow's concessions in the plaintiff's favour. In the end, the trial judge was not prepared to find that Watpow had a duty to the plaintiff to make the road safe or to devise an alternative and/or safer means for the delivery of concrete.
The trial judge nevertheless found that a second concrete pump could easily have been set up further down the road which would have likely prevented the plaintiff's accident from occurring. On that basis, the trial judge found that, had Watpow owed the plaintiff a duty of care, it breached that duty.
The plaintiff appealed the trial judge's decision on both liability and damages. Watpow filed a Notice of Contention in response to the finding of breach of duty.
The Court of Appeal (Bathurst CJ, McColl and Whealy JJA) upheld the trial judge's decision that no duty of care was owed by Watpow to the plaintiff. The Court was categorical in its rejection that a duty of care arose between Watpow and the plaintiff in circumstances where Watpow had retained competent independent contractors to carry out the pumping and delivery of the concrete to the project and where the plaintiff's accident had not even occurred on the project site. In doing so, the Court reaffirmed that the exceptions to the general rule that a head contractor does not owe a common law duty of care to an independent contractor are to be confined to those identified in Stevens v Brodribb Sawmilling Company Pty Ltd  HCA 1.
In the circumstances of the present case, however, the Court went further and considered that the plaintiff's case did not even need to be analysed with reference to Stevens v Brodribb Sawmilling Company Pty Ltd. This was because the accident had not occurred within the boundaries of the site of which Watpow was head contractor. As Whealy JA observed in the leading judgment for the Court, "[Watpow's] duty as a co-ordinator of the site or as an occupier says nothing as to whether a duty was owed to take reasonable steps to avoid any risk that a truck might overturn as it approached the building site on a public road". Since the provisions of the Roads Act 1993 (NSW) conferred no responsibility or power on Watpow for the condition of the road leading to the site, the contention that Watpow owed the plaintiff a duty of care in relation to the road in its capacity as head contractor lacked any real content.
As for Watpow's Notice of Contention, the Court of Appeal overturned the trial judge's finding of breach, finding that the evidence overwhelmingly established that Watpow had discharged its duty by engaging competent contractors responsible for the design and implementation of the delivery of the concrete to the site.
The decision in Miljus at first instance and on appeal makes clear that classifying the relationships of the parties in workplace litigation is key to identifying whether a head contractor owes a duty of care to persons who are not the head contractor's employees. While there are exceptions to the general rule that a head contractor does not owe an independent contractor (or subcontractors of an independent contractor) on site a duty of care, recent appellate authority makes clear that these exceptions are to be confined to those identified in Stevens v Brodribb Sawmilling Company Pty Ltd  HCA 1 and in Leighton Contractors Pty Ltd v Fox  HCA 35.
In this regard, attempts to widen these exceptions by reference to statutory provisions or industry codes of practice are unlikely to meet with any greater success than they did in Miljus. Such attempts run directly counter to the High Court's warning in Leighton Contractors v Fox against translating statutory obligations into a common law duty of care and to section 46(2) of the Occupational Health and Safety Act 2000 (NSW) that civil (or criminal) liability does not attach to breach of an industry Code of Practice.Footnote
1 Arguably, the plaintiff's decision not only to release CSR from the proceedings but to consent to judgment in CSR's favour appears to have been premature. The evidence that later emerged at trial indicated that CSR had considerable input into the delivery route to the project, leading the trial judge to observe that CSR "perceive[ed] itself as responsible for the drivers of the trucks and their safety". See paragraphs , ,  and  of the appeal judgment. Moreover, CSR's Conditions of Sale which were printed on the back of its delivery dockets suggests that Watpow only assumed the risk of the delivery once it entered the project site. Until then, the risk remained with CSR.
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