Australia: Narrow is the way that leadeth to liability: Miljus v Watpow Constructions Pty Ltd [2012] NSWCA 96

Construction and Insurance Law Case Note


In the recent decision of Miljus v Watpow Constructions Pty Ltd [2012] 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 [1922] 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 [1986] 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 [1986] 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 [1986] HCA 1 and in Leighton Contractors Pty Ltd v Fox [2009] 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.


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 [26], [27], [29] and [30] 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.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.