The question of the responsibility on a non-employer for the safety of a contractor performing work on their premises was again recently considered by the NSW Supreme Court and then the Court of Appeal in J Blackwood & Son Steel v Nichols (2007) NSWCA 157.
Initially, the Supreme Court found for the injured contractor against the non-employer. However the Court of Appeal overturned the decision.
Whilst the relevant principles of law may be well established, the application of the particular facts of a case continues to provide challenge for arriving at the correct result. In this case, it is our view, the Court of Appeal succeeded where the Supreme Court failed.
Mr Nichols was seriously injured (assessed at $510,571 in damages) on 15 April 2002 when he was standing on a load of steel on the trailer of his truck and the load moved, causing him to fall. He was tightening a chain lashed across the load at the time.
Blackwood & Son had a contract with Nichols' employer, for the employer to provide a prime mover, trailer and driver to transport Blackwood & Son's steel to its customers. Nichols had been performing this contract, 5 days a week, for 6 years before the incident.
The incident occurred at the premises of Blackwood & Son. Nichols drove his rig into a loading bay, where Blackwood & Son placed a load of steel onto the trailer. As was the usual procedure, Nichols indicated where the load should be placed and then secured the load with chains, tightening them with a ratchet. It was during the tightening of the chains that the load moved causing him to fall.
The evidence was that Nichols had secured loads like this many thousands of times before and that he was always aware of the very risk which eventuated.
The Supreme Court found for Nicholas.
It concluded that even though Blackwood & Son was not Nichols' employer, it was in a position to prescribe a safe system for him to perform his work and to provide him with further equipment (which it had available, such as a ladder of raised platform) to obviate the need to stand on the load. It was held that this raised a duty of care, which Blackwood & Son breached.
The trial judge was persuaded that an often cited principle, laid down in Stevens v Brodribb Sawmilling (1986) 160 CLR 16 at 31, applied. There Justice Mason said: "If an entrepreneur engages independent contractors to do work which might as readily be done by employees in circumstances where there is a risk to them of injury arising from the nature of the work and where there is a need for him to give directions as to when and where the work is to be done..., he has an obligation to prescribe a safe system of work. The fact that they are not employees, or that he does not retain the right to control them in the manner in which they carry out their work, should not affect the existence of an obligation to prescribe a safe system."
The Court of Appeal unanimously (3-0) overturned the trial decision.
Citing a different judgment (Brennan J) in Stevens v Brodribb Sawmilling, the Court of Appeal noted: "It does not import a duty to retain control of working systems if it is reasonable to engage the services of independent contractors who are competent themselves to control their system of work without supervision….The entrepreneur is not liable for damage caused by a negligent failure of an independent contractor to adopt or follow a safe system of work either within his area of responsibility or in an area of shared responsibility."
It was irrelevant that Blackwood & Son was in a position to prescribe a safe system of work and to provide further equipment. The Court of Appeal considered that was no duty on Blackwood & Son to take control over a practice that was always undertaken by a very experienced independent contactor.
In relation specifically to the task of securing the loads of steel to trucks, the evidence was that Blackwood & Son never actually exercised control over the system or equipment used by Nichols. For this specific task it had always left Nichols to his own devices. Nicholas gave evidence that he told Blackwood & Son not to secure the load.
It was also found that although Blackwood & Son knew of the risk of falling in these circumstances, this did not mean that it had control over the risk or should take control of it. Again, it was apt to leave an experienced independent contactor to his own devices. The Court of Appeal relied on the fact that Nicholas was fully aware of the risk and that he was not under some disability or special vulnerability which may require Blackwood & Son to assume control.
Particular reference was made to a similar case, National Transport Insurance v Chalker (2005) NSWCA 62, where the defendant was held not negligent when it didn't advise the injured independent contractor that he should not use wet gloves when releasing the tension on the chain securing the load on his truck.
Occupiers of premises, principal contractors and their insurers will be relieved.
The Court of Appeal's decision is a sound application of the particular facts to established legal principle.
There remains scope for a defendant to owe a duty of care to an independent contractor. However this is not so where the particular task (which gives rise to the damage) is one that the contractor is engaged to perform; where the defendant did not control or seek to control the activities of the contractor; and where the defendant did not supply the contractor with improper equipment.
t (07) 3231 1532
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.