Client Update

In J Blackwood & Son Steel & Metals Pty Ltd v Nichols & Anor [2007] NSWCA 157 the NSW Court of Appeal (“Court”) overturned a decision of the District Court of NSW in finding that the appellant company did not owe a duty of care to the first respondent, an employee of a contractor. The Court found that the appellant lacked control over the first respondent’s performance of his work and that the appellant could rely on his level of experience and expertise in carrying out that certain work.

It was found by the Court that clause 39 of the Occupational Health & Safety Regulation 2001 (NSW) (“clause 39”) was not breached by the appellant since the accident occurred after the first respondent had reached his place of work and not in the course of accessing his place of work.

This case examines the boundaries of a principal’s duty to provide a safe system of work to employees of contractors and illustrates that control is the most important element in determining whether the duty should extend to a particular situation. Furthermore, this case exhibits the restrictive interpretation of clause 39.

Background

The first respondent (Jon Leslie Nichols) had been employed by the second respondent (DNR Boyle Enterprises) as an experienced driver of prime movers and trailers for some six years. The first respondent was injured in an accident which occurred at the premises of the appellant (J Blackwood & Sons Steel & Metals Pty Ltd t/as Horans Steel) with whom the second respondent had entered into a contract to provide a prime mover, trailer and driver for the purpose of transporting and delivering the appellant’s steel products to its customers between its Carrington yard in Newcastle and its Wetherill Park yard in Sydney.

On 15 April 2002 the first respondent 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” which is also called a “dog”. When the load moved under his feet, he lost his balance and fell, sustaining serious injuries.

The first respondent commenced proceedings against the appellant for negligence in some 12 respects however the only allegation that was pursued was that the appellant failed to provide the first respondent with an alternative work platform so that he was not required to stand on top of the platform while tensioning the chains.

The primary judge concluded that the appellant owed the first respondent 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 was a risk to the first defendant as in fact had materialised. Damages were assessed by the primary judge in the sum of $510,571. The appellant cross-claimed against the second respondent for contribution pursuant to section 5(1) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) and the primary judge assessed the second respondent’s contribution at 20%.

In cross-examination of the first respondent, he agreed that he had had 20 plus years of experience in the industry and presented himself as a worker who was able to cope with the day-to-day activities of a truck driver and make decisions in that capacity.

The appellant appeals the decision of the primary judge on the grounds that the first respondent was not subject to the appellant’s supervision or direction in carrying out the task of securing his load and therefore did not owe him a duty to ensure that the manner of securing the load was safe.

Issues in dispute

This case presents two important occupational health and safety issues:

• Did the appellant owe the first respondent a duty to provide a safe system of work and if so, was the duty breached?
• What is the meaning of “place of work” as provided for in clause 39 and did the appellant breach the clause?

Held

The Court upheld the appeal and set aside the primary judge’s finding.

Did the appellant owe the first respondent a duty to provide a safe system of work and if so, was the duty breached?

The first respondent submitted that the present case was similar to TNT Australia Pty Ltd v Christie [2003] NSWCA 47 (“Christie”) in that the appellant had daily control over the first respondent’s activities. In Christie, the Court considered that the daily instruction and control of the principal over an employee of its contractor gave rise to a relationship analogous to that of employer and employee that it was just to impose a duty of care.

In contrast, the appellant relied upon National Transport Insurance Ltd v Chalker [2005] NSWCA 62 (“Chalker”) in support of its submission that it did not truly have a measure of control over the manner in which the first respondent secured his load. In Chalker, the Court found that the release of tension on a chain used to secure a load to a truck did not call forth a need for particular instruction and that in the industry of loading and unloading trucks, the techniques employed should be regarded as being equivalent to climbing a ladder or using a tomohawk.

As control was a prominent issue in the parties’ submissions, the Court undertook the exercise of examining the level of control exerted by the appellant over the first respondent in order to determine whether the duty of provide a safe system of work should extend to the first respondent’s activities in securing the load. Whilst the Court accepted that the appellant had control of its premises and had a duty to ensure that any work performed by the first respondent on behalf of the appellant should be carried out in a safe manner, the Court held that the appellant neither exercised nor purported to exercise any degree of control over the performance of the first respondent of the task of securing his load including the tensioning of the chains by using a fixed level chain binder. A finding by the Court that the appellant lacked control over the first respondent’s securing of his load allowed the Court to distinguish this case from Christie.

Furthermore, the Court noted the following:

“the primary judge’s finding that the appellant “was in a position to control the loading procedures on its site even where drivers such as the [first respondent] were involved” could not give rise to a non-delegable duty of care, for that matter, any duty of care with respect to the securing of the first respondent’s load. The fact that it “was in a position” to do so is irrelevant absent an actual exercise of control by the appellant over that activity by giving of information and directions or in some other way.”

The Court also rejected the first respondent’s reliance upon Thompson v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234 in which a contractor engaged to deliver bread to Woolworths supermarket injured her back whilst attempting to move heavy industrial waste bins obstructing access to the supermarket’s delivery bay. The basis of the Court’s rejection was that in the present case there was no system of work provided by the appellant that the first respondent had to follow for the purpose of carrying out the task of securing his load.

In conclusion the Court found that the relationship between the appellant and the first respondent was not such as to give rise to any such duty given that the appellant had no control over the manner in which the first respondent carried out a task which he was at all times experienced in performing.

What is the meaning of “place of work” as provided for in clause 39 and did the appellant breach the clause?

Clause 39 requires a controller of premises to ensure that safe access is provided to all parts of a place of work to which a person may require access and from which the person may fall.

The Court distinguished a situation where a worker is injured at his place of work and one where a worker is injured while gaining access to his place of work. This differentiation lead the Court to find that the duty imposed by clause 39 is confined to the provision and maintenance of safe access to a worker’s place of work and does not apply to the place of work itself once safe access is provided to it.

The Court identified the “place of work” in this case as the top of the first respondent’s load and queried whether the appellant breached clause 39 by failing to provide the first respondent with safe access from the ground to the top of his load. This analysis resulted in the Court finding that at the time of the accident the first respondent was not using a means of access to the top of the load but was in fact at the top of this load being his then place of work.

As such, the Court reasoned even if the appellant failed to provide a safe means of access to the top of the load whether by way of stepladder of some other form of raised platform, this would not materially contribute or contribute at all to the slippage of the first respondent from the top of the load. At the very least, the Court found that any breach of clause 39 was not causative of the first respondent’s injuries as the first respondent.