Almeida v Universal Dye Works Pty Ltd
[2000] NSWCA 264
•12 December 2000
Reported Decision: [2001] Aust Tort Reports 81-603
[2000] 103 IR 433
New South Wales
Court of Appeal
CITATION: ALMEIDA v. UNIVERSAL DYE WORKS PTY. LIMITED & ORS [2000] NSWCA 264 FILE NUMBER(S): CA 40723/99 HEARING DATE(S): 19/09/2000 JUDGMENT DATE:
12 December 2000PARTIES :
Maria Almeida (Appellant)
Universal Dye Works Pty. Limited (First Respondent)
Baleskim Pty. Limited (Second Respondent)
Newtown Dyers & Bleachers Pty. Limited (Third Respondent)JUDGMENT OF: Priestley JA at 1; Powell JA at 10; Santow AJA at 90
LOWER COURT JURISDICTION : District Court LOWER COURT
FILE NUMBER(S) :DC3102/98 LOWER COURT
JUDICIAL OFFICER :Patten DCJ
COUNSEL: L. King SC/P.A. Regattieri (Appellant)
G.F. Little (First Respondent)
P.W. Taylor SC (Second Respondent)
S.A. Kerr (Third Respondent)SOLICITORS: Jones Staff & Co (Appellant)
McCulloch & Buggy (First Respondent)
Abbott Tout (Second Respondent)
Phillips Fox (Third Respondent)CATCHWORDS: INDUSTRIAL LAW - Industrial safety, health and welfare - Factory legislation - Interpretation - Occupier responsible for safety of - Whether contractor's employee replacing corrugated iron roofing working in factory - If so, whether any, and, if so, which, Respondent was occupier of factory - INDUSTRIAL LAW - Industrial safety, health and welfare - Construction and safety legislation - Interpretation - Whether company which retained contractor to carry out work is "person in charge of the construction work" LEGISLATION CITED: Construction Safety Regulations 1950 rr. 73,74.
Factories Shops and Industries Act 1902, ss. 4,40(1), (2).
Workers Compensation Act 1987 s.20DECISION: (By majority) Appeal upheld in part against First Respondent only; otherwise dismissed.
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40723/99
DC 3102/98PRIESTLEY JA
POWELL JA
SANTOW AJA12 December 2000
ALMEIDA v. UNIVERSAL DYE WORKS PTY. LIMITED
JUDGMENT
1 PRIESTLEY JA: All the facts and materials necessary for an understanding of this appeal are set out in the reasons of Powell JA and Santow AJA. In my opinion the appeal should partly succeed, on two separate bases, which if they were both adopted would lead to new trials on different causes of action.
2 The first basis is one with which neither Powell JA nor Santow AJA agrees, so I will simply set out its main steps, without exposition. (It is the argument principally relied on for the appellant (unsuccessful plaintiff below).)
3 One. In my opinion (a) the building on whose roof the deceased was working was a factory within the meaning of that word as defined in s 4 of the Factories Shops and Industries Act 1962, (b) that is sufficient to make the roof of the building a factory or a part of a factory for the purposes of the Act. (Amongst other reasons, s 22 of the Act in its form in 1990 seems to be powerful support for this view.)
4 Two. For the reasons explained by Patten DCJ, I agree with him that the first and second defendants were occupiers of the roof.
5 Three. It was therefore necessary for the trial judge to consider whether the plaintiff had shown the first and second defendants were in breach of subsections (1) and (2) of s 40 of the Act, which, because of his opinion that the roof did not fall within the Act’s definition of factory, he did not do.
6 Four. I do not agree with the arguments advanced by the first and second defendants under their notices of contention, for reasons either explicit or implicit in what I have already said.
7 Five. Since, for the appellant/plaintiff it was conceded that there was evidence both ways on the questions of breach of subsections (1) and (2) of s 40, there should, in my opinion, be a new trial on those questions.
8 The other basis for upholding the appeal (in part) is that dependent on Regulation 74 of the Construction Safety Regulation 1950 (as amended) and is explained in detail by Santow AJA in his reasons, with which, in this respect, I agree.
9 In the result therefore I agree with Santow AJA that the orders he proposes should be made.
10 POWELL JA: This is an appeal by an unsuccessful Plaintiff against a judgment for the Defendants entered by Patten DCJ in the District Court.
11 In the proceedings the Appellant ("Mrs. Almeida"), relying upon the provisions of the Compensation to Relatives Act 1897, sought, on behalf of herself and her two sons, to recover from one or more of the Respondents, Universal Dye Works Pty. Limited ("Universal"), Baleskim Pty. Limited ("Baleskim") and Newtown Dyers & Bleachers Pty. Limited ("Newtown"), damages for the loss of support which she claimed that she and her sons had suffered when her husband, who had been replacing corrugated roofing iron on a factory building situated at 1A Sydney Steel Road, Marrickville, which building was owned by Newtown, fell to the ground and was killed.
12 Notwithstanding that, at the time of his fall, Mr. Almeida was working as an employee of Unistyle Joinery Pty. Limited ("Unistyle"), which had contracted to remove the old roof on the premises and install the new roofing iron, Mrs. Almeida sought to found her claim against the Respondents upon three bases, they being:
2. breaches by the Respondents of the provisions of the Construction Safety Regulations 1950, they being:
1. what was alleged to have been breaches by the Respondents of a general duty of care owed by the Respondents to Mr. Almeida which breaches led to Mr. Almeida's fall;
(a) failure to provide and maintain a safe means of access (Regulation 73(2));
(b) failure to provide means, by fencing or otherwise, for securing the safety of any person working at a place from which he would be liable to fall a distance of more than 1.8 metres (Regulation 73(3));
(c) failure effectively to fence openings in roofs into which persons could accidentally walk (Regulation 73(8));
3. failure by the Respondents, each of which was alleged to have been an occupier of premises being a factory within the meaning of the Factories, Shops and Industries Act 1962, to comply with the following duties cast on them by the provisions of that Act:
(a) failure to provide a safe means of access to every place at which any person was at any time to work (s. 40(1));
(b) failure to provide by fencing or otherwise means of securing his safety (s. 40(2)).
13 In order that one might gain some understanding of how Mr. Almeida came to be working at the premises and why it was that, although, at the time, he was working as an employee of Unistyle, Mrs. Almeida brought her proceedings, not against Unistyle, but against the Respondents, it is necessary to give a far more extended history of the facts that might otherwise have been thought necessary.
14 Newtown, the registered office of which is at 2-6 Clevedon Street, Botany, is a company which appears to have been incorporated in 1948. According to the Company Search (Exhibit G - BAB 97-103), although the shares in Newtown are held by Universal, the registered office of which is also at 2-6 Clevedon Street, Botany, Newtown's ultimate holding company is Standard Knitting Mills (MNF) Pty. Limited, the address of which is given as 2-6 Clevedon Street, Botany.
15 Although the materials which are before the Court do not contain a Company Search relating to Standard Knitting Mills (MNF) Pty. Limited, those materials do contain a Company Search (Exhibit "J" - BAB 1-108) relating to Standard Knitting Mills Pty. Limited ("Standard") the registered office of which is given as 2-6 Clevedon Street, Botany, which company appears to have been incorporated in 1960 and the principal activity of which is said (BAB 106) to be "trustee company of manufacturing trust".
16 According to the Company Search (Exhibit H - BAB 104-105) which is before the Court, Universal, the registered office of which is given as 2-6 Clevedon Street, Botany, was incorporated in 1981, the principal activity being given as "dyehouse".
17 Each of Newtown, Universal and Standard appears to have the same directors and secretary.
18 According to the Company Search (Exhibit L - BAB 112-115) which is before the Court, Baleskim, the registered office and principal place of business of which is given as "Supre Pty. Ltd, 1A Sydney Steel Rd, Marrickville", was incorporated in 1983, its principal activity being said to be "trustee company - equipment rental".
19 According to the Company Search (Exhibit K - BAB 109-111) which is before the Court, Supre Pty. Ltd. the registered office of which is said to be Unit 505, 220 Pacific Highway, Crows Nest and the principal business of which is said to be at Eastern Avenue, Vaucluse, was incorporated in 1985, its principal activity being said to be "clothing manufacturer".
20 Each of Baleskim and Supre has the same directors, one of the directors also being the secretary of Baleskim and the other also being the secretary of Supre.
21 The premises at 1A Sydney Steel Road, Marrickville, which are the now the subject of Folio Identifier 103/630403, were previously the subject of Certificate of Title Registered Volume 15020 Folio 95, the registered proprietor then being Unilever Australia Proprietary Limited ("Unilever").
22 By Memorandum of Transfer given Dealing No. W979360, which Memorandum of Transfer was registered on 9 July 1987, Unilever transferred the subject land to Spurway Cooke Industries Pty. Limited ("Spurway Cooke").
23 By Lease bearing date 11 April 1990 given Dealing No. Z707855, Spurway Cooke leased part of property 1A Sydney Steel Road, Marrickville to Baleskim for a term of 5 years commencing on 1 April 1990 with an option to renew for 1 further term of 5 years.
24 The Lease (Exhibit F (part) - BAB 48-96) contained the following (inter alia) provisions:
"
SUMMARY OF LEASE PARTICULARS………
Item 17
(Clauses 1.1 and 4.1(a)) Lessee's Business
Warehouse, factory and administrative offices and ancillary retail………
1.1 Definitions : In this Lease the following terms shall have the following meanings unless the context otherwise requires:
………
'Lessee's Business' means that business carried on in the Premises in compliance with the permitted use of the Premises specified in Item 17;
………
4.1 Permitted use : The Lessee shall:
(a) Lessee's Business : not without the prior written consent of the Lessor (which consent may be withheld at the absolute discretion of the Lessor) use the Premises for any purpose other than that specified in Item 17.
………
5.1
(a) General repairing obligation : The Lessee shall during the Term and any holding over:
………
keep the Premises, the Lessee's Fittings and all the Lessor's Fixtures in the Premises in good repair and condition.
(b) Structural repair : Nothing in this Clause 5.1 shall impose any obligation upon the Lessee in respect of any structural maintenance, replacement or repair except where rendered necessary by any act, omission, neglect, default or misconduct of the Lessee or the Lessee's Employees, or by its or their use or occupancy of the Premises or by the Lessee's Fittings.
………
5.6 Lessor may enter to repair : If: -
(a) Lessor wishes to repair : The Lessor wishes to carry out any repairs to the Premises considered necessary or desirable by the Lessor or in relation to anything which the Lessor is obliged to do under this Lease;
………
then the Lessor, its architects, workmen and others authorised by the Lessor may at all reasonable times upon giving to the Lessee reasonable notice (except in the case of emergency when no notice shall be required) enter and carry out any such works and repairs. In so doing the Lessor shall endeavour not to cause undue inconvenience to the Lessee and the conduct of the Lessee's business.
………
10.1 Subject to the rights, powers, remedies and reservations of or to the Lessor, including Clause 1.2(e)(ii), the Lessor:
………
(d) maintenance of Building : shall use its best endeavours to maintain the Building (other than any part of it for which a tenant or the Lessee is liable) in good repair and condition."
25 For some reason which is not apparent from the materials which are before the Court, it would appear (BAB 136) that the Lease from Spurway Cooke to Baleskim was not registered until 8 August 1991.
26 It is convenient to pause, here, for the purpose of giving some detail as to Unistyle.
27 Unistyle was a company of which - so he said - for a period until some time in 1989 a Mr. DeSilva had been a director - although claiming to have resigned as a director at some time during 1989, Mr. DeSilva, who was a carpenter by trade (BAB 17, 33), and who was the holder of a Builders Licence (BAB 33), continued to be involved in the activities of the company - apparently in some managerial or supervisory capacity. Despite Unistyle's name, it would appear that, in the period of about 2 years prior to Mr. Almeida's death, the company's principal activity was in the field of building maintenance (BAB 19).
28 Although, at the time of Mr. Almeida's death, Unistyle occupied premises in Hercules Street, Dulwich Hill, at some time in the preceding two years, Unistyle had leased premises in Sir Joseph Banks Street, Botany - a street which connected with Clevedon Street, Botany - which premises were said (BAB 20) were to have been "next to Universal Dye Works main factory".
29 According to Mr. DeSilva, during the period when Unistyle occupied the premises at Sir Joseph Banks Street, Botany, he was approached by a Mr. Montebello - who, at some time, told him that he was an electrician by trade (BAB 32) to quote for "a particular job" - the nature of which, save that it may have been in some way connected with building maintenance, is not revealed by the material which are before the Court (BAB 20). Thereafter, so Mr. DeSilva said (BAB 17-19), Unistyle on a number of occasions carried out building maintenance work for Universal, Newtown and Standard, that work being said to have been carried out on three different buildings in that period (BAB 19), the request for Unistyle to carry out the work on each occasion being made by Mr. Montebello. Save that the work was said to relate to roofs, walls and floors (BAB 19), and that the work was said to represent "about 50%-60%" of the total work done by Unistyle during that period of 2 years or thereabouts (BAB 18), the evidence reveals no further detail as to the work.
30 Although the materials which are before the Court do not reveal exactly when it occurred, it seems tolerably plain that, in about July or August 1990, Spurway Cooke and Newtown entered into a contract for the sale of the property at 1A Sydney Steel Road to Newtown. Thereafter, at a time which appears as if it may have been in late August (BAB 135-136) or in September (BAB 47) 1990, the sale was completed - however, the Memorandum of Transfer, given Dealing No. E860111 appears not to have been registered until January 1993 (BAB 136).
31 According to Mr. DeSilva (BAB 22) it was Mr. Montebello who spoke to him about replacing the roof on the property at 1A Sydney Steel Road and asked him (Mr. DeSilva) whether he was interested in submitting a quote for the job. At the time, Mr. Montebello did not tell Mr. DeSilva on whose behalf he was speaking nor did he tell Mr. DeSilva who owned the property.
32 It would appear that, after Mr. Montebello had spoken to him, Mr. DeSilva went to the property at 1A Sydney Steel Road with a view to ascertaining the nature of job before preparing a quote (BAB 26). It seems likely that, when he did so, he noticed the word "Supre" on the entry into the building (BAB 23-24). Mr. DeSilva claims (BAB 24) that - at some time which is by no means clear he observed that within the building there was both a manufacturing area - with about 15-20 people printing clothing material - and, presumably, making up clothing - and a wholesale area, the manufacturing area being located in that part of the building which was to be re-roofed.
33 On 31 October 1990, Mr. DeSilva signed and forwarded to Universal, a letter on the letterhead of Unistyle, which letter was as follows (BAB 41A):
"RE: ROOF AT 1A SYDNEY STEEL RD., MARRICKVILLE
Dear Sirs,
Further to our discussion with Mr. P. Montebello we are pleased submit (sic) our quote for the removal & installation of 2 new roofs to the above premises for a total of $57,000.00, being $31,534.00 for materials.
This quote relates to the two east most bays of the roof on the large northern building on the property.
This quote includes all materials, crane hire (if any) and other incidental expences (sic).
The quotation also includes ventilation on caping (sic) on both roofs.
All workmanship is guaranted (sic) for a period of 5 years.
All materials will carry the manufacturers warranty.
Despite his assertion that he had ceased to be a director of Unistyle in 1989, Mr. DeSilva signed his letter above the typed words, "B. Silva M. Director."
We trust this quote meets your requirements, and look forward to your valuable order."
34 Although the quote was said to include all materials, crane hire and other incidental expenses, and although Mr. DeSilva ordered the new corrugated iron from K. M. T. Metal Fabrications (BAB 20-21) and appears to have arranged for the hire of a crane, it is clear that Unistyle did not itself pay K.M.T. Metal Fabrications or "Botany Crane", which appears to have hired the crane for the purposes of the job, but was provided by the accountant at Universal's premises with a cheque or cheques to pay for the materials and the crane hire (BAB 21, 44) - this, so it seems (BAB 20), had occurred on previous occasions, albeit that the cheques which were provided for materials were not always provided by Universal.
35 The work of removing the old roofing iron and replacing it with the new iron appears as if it may have commenced on or about 3 December 1990, that is, about a week prior to Mr. Almeida's accident (BAB 22). It would seem (BAB 29) that Unistyle's workforce comprised some six people divided into two teams, one including Mr. DeSilva and the other including Mr. Almeida, those teams working on opposite sides of the roof over that part of the building in which the manufacturing area was located (BAB 24). Although, according to Mr. DeSilva (BAB 23), there were safety harnesses on the site - which harnesses, however, were not worn by the men working on the roof (BAB 28) - there were no safety nets places underneath where the work was to be carried out despite the fact that the roof appears to have been approximately 12-13 metres above ground level (BAB 31) nor was any scaffolding placed under the roof and the roof was not fenced. According to Mr. DeSilva (BAB 34-35) it would not have been possible to remove and replace the roofing iron from underneath and, working as they did, the workman would not have had anything to which they could connect safety harnesses
36 Although it is not entirely clear, it would seem (BAB 23, 26) that the system of work adopted by each of Unistyle's teams involved removing the old roofing iron, one sheet at a time in a row, and replacing that sheet with a new sheet of roofing iron from a stack which had been lifted onto the roof - there was thus, for a short time while the old iron was thrown to the ground and before the new iron was reached from the stack when there was a void in that part of the roof where the team was working. According to Mr. DeSilva (BAB 34) that method of working had been decided upon by the various members of the teams following discussion by all of them.
37 Mr. DeSilva claimed (BAB 24-25) that, because of the method of working which was adopted, it was his practice each day "(to) have a discussion with (the) person from what (he understood) to be Supre in relation to where they should or should not be when (Unistyle's) men were working" as he did not wish to have anyone working directly below in case something fell - those instructions, so he said, were carried out.
38 Although, in the course of his Judgment (RAB 26), Patten DCJ wrote "(d)uring the progress of the work at the premises prior to 10 December 1990, according to Mr. DeSylva (sic) Mr. Montebello came out 'once or twice', including on one occasion about a week before the accident", it is clear (BAB 22) that what his Honour wrote did not accord with Mr. DeSilva's evidence; on the contrary (BAB 28) Mr. DeSilva at no time saw Mr. Montebello at the site although he (Mr. DeSilva) said that, on one occasion, Mr. Montebello told him that he went past the site on his way home to have a look at how the job was progressing. It is equally clear (BAB 37) that Mr. DeSilva had total control of the job, that Unistyle's employees were subject to his control only and that Unistyle's employees would only follow his (Mr. DeSilva's) instructions.
39 Mr. DeSilva did not witness the accident as, at the time, he was working on one side of the ridge in the roof while Mr. Almeida was working on the other side of the ridge. However, "(he) heard a big scream and one of the men yelled out that Mr. Almeida had fallen down the roof" (BAB 29) and he then ran to the spot where Mr. Almeida had fallen and, when he saw where Mr. Almeida lay on the floor, he descended from the roof in order to render such assistance as he was able. Although Mr. DeSilva did not witness the accident, he noted that, at the place where Mr. Almeida fell, the hole in the roof was but the size of a single sheet of corrugated iron, and the sheet which had been removed was only about one metre away from the hole (BAB 30).
40 It would appear (BAB 36) that, after Mr. Almeida's fall, the work of re-roofing was stopped for about one or two weeks - during that period, so it would seem, no attempt was made to apply any form of temporary cover to the hole in the roof.
41 It would seem (BAB 119) that a claim for compensation was made on behalf of Mrs. Almeida on 11 December 1990 and that inquiries were made of Mr. DeSilva with a view to ascertaining the name of Unistyle's workers compensation insurer. At the time, so it would seem, Mr. DeSilva advised that "he was insured by GIO" (BAB 118), although the fact was that Unistyle's workers compensation insurance had lapsed in 1988.
42 Thereafter, at some time which, save that it must have been in the latter part of December 1990, does not appear from the materials which are before the Court, an Application for Determination was filed in the Compensation Court on behalf of Mrs. Almeida, to which application Unistyle and Workers Compensation and Rehabilitation Authority - of which the WorkCover Authority is, in the WorkCover Administration Act 1989 Schedule 4, which came into operation on 1 January 1990, said to be "a continuation of, and the same legal entity as" the Workers Compensation Rehabilitation Authority constituted under the Workers Compensation Act 1987 and the State Compensation Board constituted under that Act before the constitution of the Workers Compensation Rehabilitation Authority - were then joined as Respondents.
43 Despite Mr. Almeida's fall, no nets were installed under the roof of the large building which was being re-roofed when the work resumed - this, so it seems to be suggested (BAB 36),because it was not possible to obtain nets of a sufficient size to span the distance between the external walls of the building. However, after the larger of the two buildings had been re-roofed, nets were acquired and used while the re-roofing of the smaller building was carried out. At first (BAB 28-29),Mr. DeSilva said that the nets were acquired at the instigation of Mr. Montebello. However, in the course of his cross-examination (BAB 38),Mr. DeSilva said that it was he who thought nets should be obtained, that it was he who had ordered the nets and that Universal had paid for the nets because Unistyle was in financial difficulties.
44 At the work of re-roofing progressed, Mr. DeSilva submitted progress claims (Exhibit B - BAB 42), which progress claims were met by cheques drawn by Universal (BAB 43) the last of those payments having apparently been made on 17 January 1991 (BAB 44).
45 At some time which is not clear, but which Mr. DeSilva said he thought "was just after the accident" (BAB 32), Unistyle went into liquidation.
46 It would appear that, at some time prior to June 1991, Mrs. Almeida's solicitors became aware of the fact that Unistyle's quote for the re-roofing of the premises at 1A Sydney Steel Road, had been addressed to Universal and that the progress payments had been paid by Universal. That this was so is suggested by the fact that, in about June or July 1991, there was filed in the Compensation Court, a proposed Amended Application for Determination (Exhibit M - BAB 116-124), to which proposed Amended Application for Determination there were joined as Respondents, in addition to Unistyle, the WorkCover Authority and Universal, the basis upon which Universal was alleged to be liable for compensation being said to be "pursuant to the provisions of Section 20 of the Workers Compensation Act, 1987".
47 It is convenient to pause here for the purpose of recording that s.20 of the Workers Compensation Act 1987 ("the Compensation Act") provides (inter alia) as follows:48 In the Answer which was filed on its behalf (BAB 125), Universal denied that it was liable to pay compensation, the grounds upon which that denial was based including the following:
"20 Principal liable to pay compensation to workers employed by contractors in certain cases
(1) If any person (in this section referred to as the principal ) in the course of or for the purposes of the person's trade or business, contracts with any other person (in this section referred to as the contractor ) for the execution by or under the contractor of the whole or any part of any work undertaken by the principal, the principal is, if the contractor does not have a policy of insurance or is not a self-insurer at the time a worker employed in the execution of the work receives an injury, liable to pay any compensation under this Act which the principal would have been liable to pay if that worker had been immediately employed by the principal.
(2) If compensation is claimed from or proceedings are taken against the principal in respect of any such injury, then, in the application of this Act, reference to the principal shall be substituted for reference to the employer except that the amount of compensation shall be calculated by reference to the earnings of the worker under the employer by whom the worker is immediately employed.
………
(6) This section does not apply in any case where the injury occurred elsewhere than on, in or about premises on which the principal has undertaken to execute the work or which otherwise are under the principal's control or management, but nothing in the foregoing affects the liability of the contractor under any other provision of this Act.
………"
"1. The Third Respondent denies that, in the course of or for the purposes of the Third Respondent's trade or business, it entered into a contract with the First Respondent for the execution by or under the Third Respondent of the whole or any part of work undertaken by the Third Respondent.
………
3. The Third Respondent denies that the injuries which led to the worker's death were sustained by the worker in the execution of work the subject of a contract between the Third Respondent and the First Respondent.
………"
49 Although the sparse nature of such materials as are before this Court cast at least a shadow of doubt over the assertion that Universal was, pursuant to the provisions of s.20 of the Compensation Act, liable to pay compensation, in an Award made by McGrath CJ in the Compensation Court in November 1991 (BAB 126-127), his Honour - but whether after a contested hearing or by consent is not revealed by the materials which are before this Court - found that Unistyle was not insured as at 10 December 1990 and that Universal was an insured principal as at 10 December 1990 within the meaning of s.20 of the Compensation Act and made an Award in favour of Mrs. Almeida against Universal for both lump sum compensation and for weekly payments of compensation in respect of each of the two children of the marriage of Mr. and Mrs. Almeida.
50 These proceedings appear to have been commenced in June 1992 when there was filed in the Common Law Division of the Court a Statement of Claim (Exhibit P - BAB 139-145) to which there were joined as Defendants Universal, Supre and Standard. In that Statement of Claim, it was alleged that, at all material times, Standard was the owner, and Supre was the occupier, of the premises at 1A Sydney Steel Road, that, at all material times, all Defendants were carrying out building and construction work at the premises and that, at all material times, Universal was the head contractor for roofing work being carried out at the premises.
51 Although it is not clear when it was that this occurred, it would seem at least likely that, following a letter (BAB 47) written by Baleskim's solicitors, who appear then to have acted for Supre, the proceedings were amended by substituting Baleskim for Supre as the Second Defendant and Newtown for Standard as the Third Defendant.
52 Although the materials which are before the Court do not disclose when this occurred, the probability is that it was at some time after the coming into force of the amendments to s.143 of District Court Act 1973 made by the District Court Amendment Act 1997 or the coming into force of the amendments to s.44 of the District Court Act 1973 made by the Courts Legislation Further Amendment Act 1997 when an order was made transferring the proceedings to the District Court.
53 In a Further Amended Statement of Claim (RAB 1-7) filed on behalf of Mrs. Almeida in the District Court in July 1998, it was alleged that, at all material times, Newtown was the owner, and that Baleskim was the occupier, of the premises at 1A Sydney Steel Road, which premises were a factory within the meaning of the Factories Shops and Industries Act 1962; that, at all material times, all Defendants were carrying out building and construction work within the meaning of the Construction Safety Act 1912, that Universal was the head contractor for roofing work being carried out at the premises, that Mr. Almeida's death was caused by the negligence and breaches of statutory duty of all Defendants, the breaches of statutory duty being said to be failure to comply with the provisions of Regulations 73(1), (2), (3), (8) of the Construction and Safety Regulations 1950 and failure to comply with the provisions of ss.40(1), (2) of the Factories Shops and Industries Act 1962.
54 It is convenient here to record the relevant provisions of the Construction Safety Act 1912, the Construction Safety Regulations 1950 and the Factories Shops and Industries Act 1962.
55 So far as is relevant, the Construction Safety Act 1912 provides as follows:56 So far as is relevant, the Construction Safety Regulations 1950 provide as follows:
"3. Definitions
(1) In this Act, unless the context or subject matter otherwise requires:
………
Building work means:
(a) work in constructing, erecting, installing, adding to, altering, repairing, … dismantling or demolishing or any other prescribed operation that:
(i) is done in relation to a building or structure, at or adjacent to the site thereof.
………
Construction work means:
(a) building work, excavation work, compressed air work and diving work.
………"
57 So far as is relevant, the Factories, Shops and Industries Act 1962 provides as follows:
"73 Safeguards and accident prevention measures for construction work
Any person who directly or by his servants or agents carries out any construction work shall take all measures that appear necessary or advisable to minimise accident risk and to prevent injury to the health of persons engaged in such construction work and for this purpose, without limiting the generality of the foregoing, he shall, subject to Regulation 74:
(1) provide suitable and safe scaffolding, which shall conform to the requirements of these Regulations, for all work which cannot be done safely by a person standing on permanent or solid construction, except when such work can be done safely from ladders constructed in conformity with the provisions of these Regulations,
(2) provide and maintain safe means of access to every place at which any person has to work at any time,
(3) provide means by fencing or otherwise for securing the safety of any person working at a place from which he would be liable to fall a distance of more than 1.8m,
………
(8) effectively fence in the manner prescribed by these Regulations, all platforms, the open sides of all floors, openings in floors, roofs and platforms into which persons could accidentally walk, the open sides of stairways and stairway landings and all excavations and holes more than 1.5 m deep.
………"
"Definitions
4(1) In this Act, unless the context or subject matter otherwise indicates or requires:
………
'Factory' means:
(a) any building or place other than a farm or rural holding used exclusively for agricultural, horticultural or pastoral purposes in which:
(i) four or more persons are engaged directly or indirectly in a manufacturing process;
………
'Occupier' means, in relation to a factory or shop, the person, partnership, association, or corporation employing persons in the factory or shop or occupying the factory or shop, and includes any agent, manager, foreman or other person acting or apparently acting in the general management or control of the factory or shop and the owner or person deemed to be the occupier pursuant to subsection (2).
………
(2) For the purposes of the definition of 'factory' in subsection (1):
(a) a place shall not be excluded from such definition by reason only that the place is in the open air;
(b) all those parts of the close, curtilage or precincts of a factory over which the occupier has the right of access or control shall be deemed to be part of the factory: Provided that where a place within such close, curtilage or precincts is solely used otherwise than for or in connection with the processes carried on in the factory, that place shall not be deemed to form pat of the factory but shall, if otherwise it would be a factory, be deemed to be a separate factory.
………
For the purposes of any repairs, renovations, replacements, alterations or additions required by or under this Act to be made to a building forming part of a factory or shop or within which a factory or shop is situated, the Minister may, by notice in or to the effect of the form prescribed, notify the owner of the factory or shop, or the person receiving the rent for the same, whether on his own account or on account of any other person, that he will regard him for such special purposes as the occupier of the same and thereupon the said owner or person shall, for the said purposes, be deemed to be the occupier of the factory or shop.
………PART 3 - HEALTH, SAFETY AND WELFARE IN FACTORIES, SHOPS AND OTHER INDUSTRIESDivision 1 - Preliminary
Definitions
9(1) In this Part, unless the context or subject matter otherwise indicates or requires:
………
'Employee' means any person in the employment of an occupier. Any person, other than the person occupying the factory or shop or employing persons therein, who works in a factory or shop, whether for wages or not, at any kind of work whatever, shall be deemed to be an employee and to be employed.
………Division 5 - Safety (Factories)………
Safety of working places and means of access
40.(1) There shall so far as is reasonably practicable be provided and maintained in every factory safe means of access to every place at which any person has at any time to work.
(2) Where in any factory a person is to work at a place from which he will be liable to fall a distance more than 3 metres, then, unless the place is one which affords secure foot-hold and, where necessary, secure hand-hold, means shall be provided so far as is reasonably practicable, by fencing or otherwise for securing his safety.
………"
58 The proceedings came on for hearing at first instance before Patten DCJ on 1 July 1999.
59 The matters which I have earlier recorded reflect the evidence which was tendered on behalf of Mrs. Almeida. There was no evidence which was tendered which would have permitted a finding that the re-roofing which was being carried out by Unistyle represented a repair required by or under the Factories Shops and Industries Act or that the Minister had, in pursuance of the provisions of s.4(2) of that Act, given to Newtown notice that, for the purposes of the carrying out of that re-roofing, he would regard Newtown to be the occupier of the premises. No evidence was tendered on the hearing at first instance on behalf of Universal, Baleskim or Newtown.
60 In the course of the Judgment which he delivered on 31 August 1999, Patten DCJ wrote (inter alia) (RAB 27-28):61 A little later, Patten DCJ continued (RAB 28):
Then, after referring to the provisions of s.4(2)(a),(b) of the Act, his Honour continued:
"As against the First and Second Defendants Mr. McLoughlin SC for the Plaintiff submitted that they were shown to be in breach of statutory obligations arising under the Factories Shops and Industries Act. In considering this contention it is necessary to turn to the provisions of the Statute. It seems plain that the Second Defendant was operating a factory in the premises as defined in Sec 4, in that they constituted a building or place in which four or more persons were engaged, directly or indirectly, in a manufacturing process. The more difficult question is whether the roof through which the deceased fell constituted a factory, or part of a factory."
"Although dictionary meanings of the words, close curtilage and precinct do not seem to encompass a roof, the provision seems to me to be indicative of an intention by the legislature to exclude from the definition of 'factory' any separate area which is not actually used for factory purposes. Such an area would include, in my view, the roof of a building, the utilitarian purpose of which is unrelated to the activities conducted in the area which it covers. I would therefore hold that the roof upon which the deceased was working, did not constitute a factory within the definition of sec 4 of the Act."
62 Then after referring to the definition of 'occupier' in sec 4(1) of the Factories Shops and Industries Act and to the decision of this Court in Ross v. WGE Pty. Limited (1998) 44 NSWLR 510, and, in particular to the Judgment of Sheller JA in that case, (supra) at 517 his Honour continued (RAB 30):
"So far as the Second Defendant is concerned, Mr. McLoughlin submits that it should be regarded as the occupier of the roof by virtue of the provisions of the lease and, so far the First Defendant is concerned, it should be regarded as an agent 'acting or apparently acting in general management or control of the factory' by virtue of the part it played in contracting with retaining (sic) Unistyle."
63 His Honour continued (RAB 31-32):
"In the context of this case, if the roof where the deceased was working constituted, contrary to my view, a 'factory', the Second Defendant should be held, in my opinion, to be the occupier of that factory. It would also, I think, be appropriate to infer that the First Defendant, on the evidence of Mr. De Sylva (sic) and the document tendered in evidence Ex. A, should be held to be an 'occupier' on the basis that it was shown to be a 'person acting or apparently acting in the general management or control of the factory'.
In the above situation it would follow that the obligation to observe the provisions of Part 21 of the Factories, Shops and Industries Act fell upon the First and Second Defendants (See Section 70). Those obligations included the requirements of sec 40, subsections (1) and (2) …
………
However in light of my conclusion that the roof, upon which the deceased was working, did not constitute a factory within the meaning of the Act, it becomes unnecessary for me to consider whether a breach of sec 40, for which the First and Second Defendants could be liable, was established."
"A second basis upon which Mr. McLoughlin sought to establish liability, on the part of one or more of the Defendants, was their alleged breaches of Regulations 73 and 74 of the Construction Safety Regulations. Regulation 73 is introduced by the following words:
'Any person who directly or by his servants or agents carries out any construction work shall take all measures that appear necessary or advisable to minimise accident risk and to prevent injury to the health of persons engaged in such construction work and for this purpose, without limiting the generality of the foregoing, he shall, subject to Regulation 74 …'
………
There is considerable authority, including the decision of the High Court in H.C. Buckman & Son Pty. Ltd v. Flanagan and Anor (1974) 133 CLR 422 for the proposition that the introductory words to Regulation 73 do not impose obligations on persons who have subcontracted work to independent contractors. A fortiori, I think the same proposition would apply to the obligations created by Regulation 74. In my opinion on the facts of this case, there is no basis to conclude that Unistyle was other than an independent contractor in its relationship with the First Defendant and/or any principal upon whose behalf it contracted. The evidence indicates that Unistyle quoted a lump sum of $57,000 for labour and material and that, upon its quotation being accepted, was left to carry out the work as it thought fit. There was no suggestion in the evidence that any of the Defendants, or their servants, had, or sought to have, any role of direction, supervision or otherwise, in the manner of the performance of the work. It is not, I think, to the point, that presumably because of the financial status of Unistyle, one or other of the Defendants paid directly for the materials employed on the job.
It follows that, in my opinion, the Plaintiff's action, in so far as it is based upon an alleged breach of Regulations under the Construction and Safety Act, must fail.
Finally, the Plaintiff put its case against the Defendants at Common Law, relying particularly upon the decisions of the High Court in Northern Sandblasting Pty. Ltd. v. Harris (1997) 71 ALJR 1428 and Burnie Port Authority v. General Jones Pty. Ltd. (1994) ALJR 331. In my opinion, neither of those cases supports the Plaintiff's contention. There is nothing as it seems to me, in Northern Sandblasting which suggests that the owner of a property owes a duty, relevant in this case, to the employee of an independent contractor. Indeed, the case was decided on the basis of a contractual obligation and the court expressly held that the fact that negligence on the part of an electrician might foreseeably cause injury to a tenant's family or invitees did not impose a non-delegable duty of care on the landlord. Relating that proposition to this case, it would seem to me that, even if it be assumed that the contract with Unistyle was one of potential danger to Unistyle's employees, no duty, non-delegable or otherwise, was imposed upon the Third Defendant as owner of the property, and presumably the entity for whose benefit the work was to be performed, or either of the other Defendants, to ensure that Unistyle carried out the work without negligence.
There is, in my view, nothing in what was said by the High Court in Burnie Port Authority to support a submission that any of the Defendants should be held liable for the acts of Unistyle, once it is accepted that Unistyle was an independent contractor. Indeed, dicta in the case, particularly in the judgment of McHugh J is directly to the contrary."
64 His Honour accordingly concluded that, liability not having been established against any of the Respondents, there should be a verdict in their favour.
65 In the Notice of Appeal (RAB 34-35) that was filed on behalf of Mrs. Almeida, the following grounds of appeal were taken:
"1. His Honour erred in not finding that the roof upon which the deceased was working was a factory within the definition of Section 4 of the Factories Shops & Industries Act 1962.
2. His Honour erred in holding that Regulation 73 and 74 of the Construction Safety Regulations did not impose obligations upon the respondent (sic).
3. His Honour erred in not finding negligence on the part of the first respondent and/or second respondent and/or third respondent.
4. His Honour was in error in holding (sic) that any of the defendants, or their servants had or sought to have any role of direction, supervision or otherwise in the manner of the performance of the work.
5. His Honour was in error in not finding that the first respondent and/or second respondent and/or third respondent owed a non-delegable duty of care to the deceased worker.
6. His Honour erred in holding that Unistyle Joinery Pty. Limited was an independent contractor."
66 Despite the form of the Notice of Appeal, on the hearing of the appeal no argument was advanced in support of Ground 5.
67 By leave granted on the hearing of the appeal, Universal filed a Notice of Contention in which it contended that the decision of Patten DCJ should be affirmed on the following further grounds:
"1. The First Respondent was neither an occupier nor employed persons in the factory.
and, by leave also granted on the hearing of the appeal, Baleskim filed a Notice of Contention in which it contended that the decision of Patten DCJ should be affirmed on the following further ground:
2. The Factories Shops and Industries Act did not apply to the circumstances of the accident in this case which occurred in the course of building work under the Construction Safety Act and Regulations."
"His Honour should also have found that upon the true construction of s.4 of the Factories Shops and Industries Act 1962, at all material times the Second Respondent was not an 'occupier'."
68 When the appeal was called on for hearing, Mr. L. King SC appeared with Mr. P.A. Regattieri for Mrs. Almeida, Mr. G.F. Little appeared for Universal, Mr. P.W. Taylor SC appeared for Baleskim and Mr. S.A. Kerr appeared for Newtown.
69 Reduced to their essential elements, the submissions which were advanced on behalf of Mrs. Almeida on the hearing of the appeal were as follows:70 Reduced to their most simple form, Universal's submissions were as follows:
As to Ground 1(a) the building of which the roof formed part was clearly a "factory";
(b) on the face of things, the roof of what is clearly a factory is also part of a factory or a factory;
(c) at the time of Mr. Almeida's accident, the Factory Shops and Industries Act contained s.22 which, relevantly, was as follows:
"FLOORS ROOFS AND CEILINGS
………
(5) The regulations may prescribe the materials to be used in, and the method of construction of floors, roofs and ceilings of factories or any class of factories and may exempt any class of factories from any of the provisions of sub-section (2)."
This would seem to suggest that the roof of a factory was to be regarded as part of the factory for the purposes of the Act.
As to Ground 2
(a) the decision of the High Court in H.C. Buckman & Son Pty. Limited v. Flanagan was distinguishable upon the facts or alternatively wrongly decided;
(b) as to the former submission, Mr. Montebello who, so it was submitted, represented all three respondents for the purposes of their dealings with Unistyle, had a supervisory role in the execution of the works, and, further, as Universal, so it was submitted, provided the materials for the work, Universal was relevantly involved in the roofing work and was obliged to comply with the regulations.
As to Grounds 3 and 4
(a) although there was no evidence that any employee of any of the Respondents was actually engaged in the physical performance of the task of re-roofing -
(i) as against all three Respondents, Mr. Montebello saw, or ought to have seen, before the accident, the way the job was being tackled;
(ii) Universal had a direct interest in the proper utilisation of the materials for which it was paying;
(iii) Baleskim and Newtown had an obvious interest in the work as tenant and landlord respectively and, in the case of Baleskim, in seeing to it that the work progressed efficiently so as to enable its machines to operate to the greatest extent consistent with the progress of the work;
(b) those matters gave the Respondents an interest in seeing the work done properly and safely and brought down upon them a common law obligation to exercise their powers over Unistyle for the safety of Mr. Almeida as part of seeing to it that the work was done properly; they could, and should, have refused to permit Unistyle to carry on with the work in the fashion in which it was being carried on.As to Ground 6
The submissions made in respect of Grounds 2, 3 and 4 demonstrated that Unistyle was not a true independent contractor.
71 Baleskim's submissions proceeded along the following lines:
(a) Patten DCJ erred in having regard to the provisions of the Factories Shops and Industries Act at all.
As to Ground 1
(i) Section 6(2) of that Act provides (inter alia) as follows:
"(2) Nothing in this Act shall effect the operation of the Construction Safety Act 1912 … or any Act amending or replacing any such Act."
(ii) the work of re-roofing which was being undertaken was building work and not a factory process so that Mr. Almeida's accident was an injury sustained by a building worker employed in building work and not an injury sustained by a factory worker employed in the factory process;
(iii) that being so, the relevant Act was the Construction Safety Act and not the Factories Shops and Industries Act (reference was made to Coniglio v. Compressed Yeast Co (1964-1965) NSWR 667, 672 );
(iv) in any event, Patten DCJ was correct in holding that the roof was not part of the factory (reference was made to O'Reilly v. Commonwealth Hostels Limited (1964-1965) NSWR 686 );
(b) Even if the Factories Shops and Industries Act applied:
(i) Patten DCJ erred in holding that an occupier which did not itself employ persons in the premises may fall within the definition of occupier;
(ii) Patten DCJ erred in holding that Universal was an occupier on the basis that it was shown to be a "person acting or apparently acting in the general management or control of the factory" - the evidence does not justify any finding of fact beyond, at the most, a finding that Mr. Montebello, who, on other occasions, had apparently invited quotes from or retained, Unistyle to undertake work on behalf of one or other of Universal, Standard and Newtown invited Mr. DeSilva, on behalf of Unistyle, to submit a quote for a single job of work at the premises at 1A Sydney Steel Road; that Mr. DeSilva had total control of the job, and that Mr. Montebello at no time sought to direct the carrying out of the work which Unistyle had been retained to carry out;
(iii) the fact that a person in the position of Universal was not intended to be regarded as an occupier is pointed up by the provisions of s.4(2) of the Factories, Shops and Industries Act which permit the Minister in certain circumstances to notify "the owner of the factory … or the person receiving the rent for the same" that for the purposes of any repairs, renovations, relevant replacements, alterations of additions, required by or under the Act he is to be regarded as the occupier as this provision demonstrates that, in the absence of such a notice given for such purposes, the owner or the person receiving rent is not to be regarded as an occupier.
As to Ground 2
(a) the decision of the High Court in H.C. Buckman & Son Pty. Limited v. Flanagan (1974) 133 CLR 422 is not distinguishable and was correctly decided (reference was also made to the decision of the Full Court in Davey v. Skinner (1960) 61 SR 648; [1961] NSWR 216 );
(b) although the legislative provisions which were considered in H.C. Buckman & Son Pty. Limited v. Flanagan supra were s.3 of the Scaffolding and Lifts Act 1912 and Regulation 73, those provisions were identical in terms with the provisions of s.3 of the Construction Safety Act and Regulation 73 of the Construction Safety Regulations;
(c) it would follow that Regulation 73 imposed obligations on persons actually carrying out building work whether personally or by servants or persons whose acts are in law their acts but did not impose obligations on persons who had sub-contracted work to independent contractors;
(d) there being no evidence whatsoever that any of Universal's employees were actually involved in the work of re-roofing and no evidence that Mr. Montebello had any supervisory role in the execution of the works, it would follow that, even if Universal were to be regarded as having retained Unistyle for the purpose of carrying out the works, Universal did not become subject to the obligations provided for in Regulation 73 of the Construction Safety Regulations.
As to Grounds 3 and 4
The submissions as to fact made in respect of Grounds 1 and 2 were repeated and reference was made to the Judgment of Brereton J in Castellan v. Electric Power Transmission Pty. Limited [1966] 2 NSWR 104 - another case concerned with the provisions of Regulation 73 of the Scaffolding and Lifts Regulations - where his Honour said "the phrase 'person or directly or by his servants or agents carries out any building work' does not include a person of whom no more than this can be said, that the building is being erected for him and at his expense".
72 Reduced to their most simple form, Newtown's submissions were as follows:
(a) Patten DCJ was correct in holding that the roof of premises occupied by Baleskim was not a "factory":
As to Ground 1
(i) the roof of a building is not within the statutory definition of a "factory" unless it is used "for or in connection with the processes carried on in the factory";
(ii) despite the width of the expression "for or in connection with" the mere existence of the roof as an integral part of the building does not constitute a relevant "use" of the roof:
(b) (i) in any event, the statutory obligation imposed by s.40(1), (2) of the
Factories Shops and Industries Act 1962 only applies to conduct "in" a factory;
(ii) Mr. Almeida was not at the time of his accident "in" the factory unless the roof was itself to be regarded as a separate "factory";
(iii) the roof was not a separate "factory" because no work was being carried out on "any goods or any articles".
As to Ground 2Patten DCJ was correct in holding that the decision of the High Court in H.C. Buckman and Son Pty. Limited v. Flanagan supra was correctly decided and that he was bound by it.
As to Grounds 3 and 4
(a) (i) It was implicit in the submissions advanced on behalf of Mrs. Almeida that Mr. Montebello acted for (inter alia) Baleskim;
(ii) in his Judgment (RAB 26C-G) Patten DCJ recorded Mr. DeSilva's evidence as having been that Unistyle had performed a considerable portion of its work for "the Defendants" and that "for each of the three Defendants, by contract or arrangement with Mr. Montebello, Unistyle had carried out building and maintenance including roofing work at various locations";
(b) (i) there was no evidence that Unistyle had ever carried out any work on behalf of Baleskim or that Mr. Montebello had on behalf of Baleskim ever entered into any contract with Unistyle;
(ii) the only relevant evidence given by Mr. DeSilva was that he had done work for Universal, Standard and Newtown and that Mr. Montebello had dealt with him from time to time on behalf of each of those companies.
As to Ground 6The evidence, such as it was, did not permit a finding that Unistyle was either a contractor to or a servant of Baleskim.
As to the Notice of Contention
(a) Patten DCJ erred in holding that, if the roof constituted a "factory", Baleskim should be held to be the occupier of that factory;
(b) (i) despite the lessor's covenant to repair contained in cl. 5.1(a) of the Lease, cl. 5.1(b) relieved the lessee of any obligation in respect of any structural maintenance, replacement or repair;
(ii) cl.10.1(d) of the Lease imposed on the lessor an obligation to maintain the building in good repair and condition;
(iii) cl.5.6(a) of the Lease authorised the lessor to enter and carry out any works and repairs (inter alia) which the lessor was obliged to do under the Lease.
(d) in the circumstances, Baleskim was not an occupier at the relevant time because it was not in actual possession of the roof and had no right to control the carrying out of the work (reference was made to Wheat v. E Lacon & Co. Limited [1966] AC 552, 574-575, 578-579 .
(c) whilst a mere covenant to repair does not make a lessor an occupier (reference was made to Cavalier v. Pope [1906] AC 428, 433-434 per Lord Atkinson ) the position, so it was submitted, is different where the lease confers an express right to enter to effect repairs and the right is actually exercised;
As to Ground 1(a) as is apparent from Patten DCJ's Judgment (RAB 27 et seq) no submission was made at trial on behalf of Mrs. Almeida that Newtown was in breach of any of the statutory obligations arising under the Factories Shops and Industries Act which were relied upon by Mrs. Almeida;
(b) even if Patten DCJ had held that the roof on which Mr. Almeida was working was a factory, it is clear that he would not have held that Newtown was an occupier of that factory (RAB 30).
As to Ground 2
Even if - which it was said was not clear - this ground were raised against Newtown, there was no evidence to suggest that Mr. Montebello had any "supervisory role" over those working on the roof and no evidence to suggest that Newtown had any involvement in the work of re-roofing which would have subjected it to the provisions of Regulation 73.
As to Grounds 3 and 4
(a) there was no evidence to suggest that Newtown had any role in the supervision or management of the works;
(b) there was no evidence to suggest that Newtown was aware or ought to have been aware, that the works were not being carried out safely.
As to Ground 6
There was no evidence to suggest that Unistyle was other than an independent contractor.
73 By way of reply to the matter raised in the Notice of Contention that was filed on behalf of Universal, Mr. King submitted that the provisions of s.6(2) of the Factories Shops and Industries Act did not preclude Mrs. Almeida having recourse to the provisions of the Factories Shops and Industries Act as well as to the provisions of the Construction and Safety Regulations if the appropriate factual basis were established (reference was made to the decision of the Industrial Commission of New South Wales in Court Session (Richards, Beattie and Sheehy JJ) in Brickworks Limited v. McPherson (1965) AR 27in which their Honours held that, when a statute declares that its provisions are not to affect the operation of an earlier statute, the meaning of the declaration is that the efficacy of the earlier instrument is not to be impaired and that its provisions are to retain their previous force and effect).
74 I turn then, to consider the various grounds which have been argued on the hearing of the appeal.
75 Ground 176 Further support for the view which I have earlier indicated may be found in the provisions of s.40 of the Factories Shops and Industries Act upon which Mrs. Almeida sought to rely in the present proceedings, which provisions require the provision "in every factory" of a means of access (s.40(1)) or require steps to be taken where "in any factory" a particular situation is likely to arise. The provisions of s.40(1), (2) of the Act are to be contrasted with the provisions of s.26 of the Factories Act 1937 (UK) which were considered by the Court of Appeal in Lavender v. Diamints Limited [1949] 1 KB 585 to which, in the course of his submissions on the hearing of the appeal, Mr. King drew our attention. In that case the relevant provision was:
As will be apparent from the definition of the word "factory" in the Factories Shops and Industries Act 1962 which I have set out above, the primary meaning to be given to that word in the context of the Act is "any building or place … in which …" a particular form of activity is carried out. Although it is clear that "a place" need not be within the confines of a building - as was the case with the shipyard under consideration in Ross v. WGE Pty. Limited (1998) 44 NSWLR 510 - it still remains necessary, if that place is to be qualify as a "factory" for the purposes of the Act, that one or other of the types of activity referred to in the definition, or an activity associated with those activities, be carried on in the place. Support for that view may be found in the provisions of s.4(2)(a) of the Act which, as I have earlier recorded, provides that although a part of the close, curtilage or precincts of a factory over which the occupier has the right of access or control may be deemed to be part of the factory, that is to be so only where that place is used for or in connection with the processes carried on in the factory proper. Thus, in Lewis v. Gilbertson and Co. Limited (1904) 91 L.T 377 , a case involving the application of the provisions of the Factory and Workshop Act 1901 (UK), in which the definition of "factory" included a provision in similar terms to that in s.4(2) to that in s.4(2)(b) of the Act, it was held that an area of land which was within the curtilage of a factory for the manufacture of iron and tin plate but which had been cleared for the purpose of creating a new mill and was, at the time of the incident in question, being used for the crushing of stone to make mortar and cement for the new works intended to be created on the site, did not fall within the definition of "factory" in the Act.
which provision was held not to be confined to places inside the factory building.
"There shall, so far as is reasonably practicable, be provided safe means of access to every place at which any person has at any time to work."
77 The provisions of the former s.22 of the Factories Shops and Industries Act do not cast doubt upon the view which I have earlier expressed. Section 22 was to be found in Division 4 - Health (Factories) of Part 3 - Health, Safety and Welfare in Factories, Shops and other Industries of the Act, the object sought to be achieved by the provisions in Division 4 clearly being to ensure that the conditions in which those engaged in the manufacturing processes were required to work were healthy and, further, that, where appropriate, the products of the manufacturing process were not exposed to contamination. Thus, s. 19 requires that every factory should be kept in a clean state; s. 20 requires the provision of sufficient and suitable sanitary conveniences; s.23 is directed to questions of air space, temperature and ventilation; s. 24 is directed to questions of sufficient and suitable lighting - clearly enough the provisions of s.22 were directed to a like object.
78 Although, in the light of the view which I have earlier recorded, it is strictly not necessary for me to deal with the Notice of Contention which was filed on behalf of Universal, I think it appropriate to record that if I had been of a view contrary to that which I have earlier recorded, I would not have been prepared to accede to the submissions advanced in support of the Notice of Contention. The provisions of the Factories Shops and Industries Act, and, in particular, the provisions of Division 5 - Safety (Factories) of Part 3 of the Act, within which are the provisions of s.40(1),(2), are not in pari materia with the provisions of the Construction Safety Act and the Construction Safety Regulations 1950 made pursuant to that Act, the former provisions being directed toward what is to be done within a factory and in particular what is to be done to ensure the safety of persons employed within a factory, while the latter provisions are directed toward prescribing the manner of carrying out construction work and safeguards and measures to be taken for securing the safety and health of persons engaged in such work, whether that work be work concerned with the construction or repair of factories or any other form of building. In this regard, I agree with the approach adopted by the Industrial Commission in Court Sessions in Brickworks Limited v. McPherson supra.
79 Ground 2
Although, as framed, (see para. 56 (above)), Ground 2 asserted that Patten DCJ erred in holding that Regulations 73 and 74 of the Construction Safety Regulations did not impose obligations upon "the Respondent" (sic), the Written Submissions which were filed on behalf of Mrs. Almeida (see para. 60 (supra)) went no further than I have earlier recorded - despite the fact that the decision of the High Court in H.C. Buckman & Son Pty. Limited v. Flanagan dealt only with the provisions of Regulation 73 of the Regulations made under the Scaffolding and Lifts Act 1912 - which Regulation, and, in particular, the introductory words to which Regulation is and are in identical terms to those contained in Regulation 73 in the Construction Safety Regulations. Nor did Mr. King, in the course of his oral submissions in chief, address any further submission in support of Ground 2, in answer to the express question put to him in the course of argument by Priestley JA (T.10) indicating that the sole basis upon which he sought to distinguish the Judgment of the High Court in H.C. Buckman & Son Pty. Limited v. Flanagan was that which I have earlier recorded (see pp. 23-24 (supra)). In the circumstances, it is hardly surprising that Mr. Little, Mr. Taylor and Mr. Kerr, in their Written Submissions, addressed no submission to the question beyond that which I have earlier recorded or that, in the course of their oral submissions, none of them directed any attention to the question and in particular any attention to the relevance, if any, of Regulation 74 of the Construction Safety Regulations.
80 Although the matter had not earlier been raised, in the course of Mr. King's submissions in reply, Santow AJA (T.16) asked Mr. King whether "in relation to Buckman v. Flanagan … a distinction (could) be drawn based on the difference between Regulation 74 and Regulation 73", in the earlier of which the relevant obligations are cast upon "any person or directly or by his servants or agents carries out any construction work" and in the later of which the relevant obligation is cast upon "the person in charge of the construction work". Not surprisingly, Mr. King was not then in a position to give, and he has not since given, a considered answer to that question. That being so, and the question not having earlier been raised, nor thereafter been raised, with Mr. Little, Mr. Taylor or Mr. Kerr, I do not consider it to be proper for this Court to deal with that question.
81 So far as concerns the basis upon which it was said that the facts of the present case were different from those in H.C. Buckman & Son Pty. Limited v. Flanagan supra I say no more than that the evidence does not support the assertion that Mr. Montebello had a supervisory role - at best the evidence demonstrates that Mr. Montebello - but whether on behalf of Universal or on behalf of Newtown, is anything but clear - sought, at the time, from Unistyle a quote for the carrying out of the work and instructed Unistyle to carry out the work.
82 I would therefore reject this ground of appeal.
83 As to Grounds 3 and 4
I have set out earlier (para. 60 p. 24 (supra)) the Written Submission which were advanced on behalf of Mrs. Almeida in support of these grounds of appeal. I am unable to accept those submissions, which submissions, so it seems to me, seek to have imposed upon one or more of the Respondents a duty or duties at common law identical with the duty or duties to which one or more of them may have been subject under the provisions of the Construction Safety Regulations if one or more of them had been held to be the contractor carrying out the work of repair ( H.C. Buckman & Son Pty. Limited v. Flanagan supra ) of if the roof had been held to be a factory of which one or other of the Respondents were an occupier.
84 So far as the first matter is concerned, it seems to me that, if the facts are such as not to impose upon any of the Respondents an obligation under the provisions of the Construction Safety Regulations, it is not open to a Court to impose a similar duty at common law.
85 So far as the second matter is concerned, it seems to me that while, in an appropriate case, an occupier of a factory, who, or which, has been found to have failed to comply with a provision such as that contained in s.40(1) or s.40(2) of the Factories Shops and Industries Act may be found liable to an employee of a contract or carrying out work within the factory who has sustained an injury by reason of that breach (see, for example, the decision of the Court of Appeal in Lavender v. Diamints Limited supra and the decision of the House of Lords in Wigley v. British Vinegars Limited [1964] AC 307 to which Mr. King drew our attention; see also Massey-Harris-Ferguson (Manufacturing) Limited v. Paper [1956] 2 QB 396) it would not be open to this Court to impose upon any of the Respondents a like obligation where the place where the actions occurred was not a factory even if one or other of the Respondents had been held to be an occupier of that place.
86 In the circumstances, it is not necessary for me to deal with the submissions advanced on behalf of Universal and Newtown to the effect that neither in the ordinary sense of the word nor within the extended meanings given to the word under the Factories Shops and Industries Act was either an occupier of the roof; nor is it necessary to deal with the submissions advanced on behalf of Baleskim, which submissions were based upon the decision of the House of Lords in Wheat v. E. Lacon & Co Limited [1966] AC 552 that by reason of the fact that the work of re-roofing was being carried out, presumably on behalf of Newtown, pursuant to the provisions of cl. 5.6 of the Lease, Baleskim was not, during the time when the work was being carried out, to be regarded as the occupier of the roof.
87 I would therefore reject these two grounds of appeal.
88 As to Ground 689 For these reasons, I would propose the following Orders:
I would reject this ground of appeal upon the simple basis that the evidence does not permit a finding that Unistyle was other than an independent contractor.
90 SANTOW AJA:
1. ORDER that the appeal be dismissed.2. ORDER that the Appellant pay the costs of each of the Respondents to the appeal.
Introduction
91 An employee of an uninsured independent sub-contractor engaged to repair a roof of a factory suffers a fatal injury, falling from the roof of the building. Was the trial judge in error in denying any right of action to the widow for loss of her late husband’s support? Such action was brought against the head contractor, the lessee and the owner based on a claim for breach of statutory duty or a general law duty of care to the deceased husband.92 The Appellant brought her action pursuant to the Compensation to Relatives Act 1897 (NSW) against all three Respondents for loss of support for herself and her sons. The trial judge held that no liability for breach of statutory duty or general law negligence lay against any of the three Respondents.
93 The claim for breach of statutory duty relied in the alternative upon Regulations 73(1), (2), (3) and (8) and Regulation 74 of the Construction Safety Regulations 1950 and upon s40(2) of the Factories, Shops and Industries Act 1962. In rejecting breach of statutory duty, the trial judge based his decision upon:
(a) a construction of Regulations 73 and 74 of the Construction Safety Regulations 1950 as applying only to impose an obligation on the subcontractor, as “the person who carries out the work”, and(b) a construction of the Factories Shops and Industries Act 1962 as excluding a roof from the statutory definition of “factory”.
In rejecting negligence at general law, the trial judge concluded that none of the three Respondents owed the sub-contractor’s employee any duty of care in the circumstances.
summation of the facts and issues
94 The widow, Maria Almeida the Appellant, sues the head contractor Universal Dye Works Pty Limited ("Universal" the First Respondent) to whom the deceased’s employer directed the quotation for the work (Combined Appeal Book, 41A, Red Book, 25X-Y) and which paid for the materials for the job (Combined Appeal Book, 20X-21M). She also sues the lessee and occupier, Baleskim Pty Limited ("Baleskim" the Second Respondent) whose lease is from the Third Respondent (Combined Appeal Book, 48I, 49F and Red Book, 26Q). Finally she sues the owner of the leased property, Newtown Dyers & Bleachers Pty Limited ("Newtown" the Third Respondent). Each of the Respondents denied it owed to the deceased either a statutory duty or a general law duty of care.95 The method by which the work of removing and replacing the rooves of the large factory site was as follows. As each old sheet of corrugated iron was removed a hole in the roof was created. This remained a void until a new sheet was put on, so that as the work progressed, there was routinely a gap in the roof structure: Combined Appeal Book, 26R-U; 27W-28P. Nothing was done to secure the men upon the roof and prevent them from falling to the floor, 12 metres below; Combined Appeal Book, 27-28. Thus there was no net, no scaffold and no fencing around the hole (Combined Appeal Book, 27Q-W) and the men were working without harnesses (Combined Appeal Book, 28P).
96 As the deceased was going about his work on the roof, he took a sheet off and “10 minutes later he fell down the hole”: Combined Appeal Book, 28C-B.
97 In this appeal, the trial judge’s conclusion was not disputed that "no nets, scaffolding, safety harnesses were provided for the safety of the employees engaged" and "it was common ground that from the roof there was a drop of about 12 metres to a concrete floor below" (Judgment of Patten DCJ, Red Book, 26W).
98 The grounds of appeal in the Notice of Appeal (correcting obvious typographical errors) were these:
“1. His Honour erred in not finding that the roof upon which the deceased was working was a factory within the definition of Section 4 of the Factories Shops & Industries Act 1962.
2. His Honour erred in holding that Regulation 73 and 74 of the Construction Safety Regulations did not impose obligations upon the Respondent[s].
3. His Honour erred in not finding negligence on the part of the first Respondent and/or second Respondent and/or third Respondent.
4. His Honour was in error in holding (sic) that [none] of the defendants, or their servants had or sought to have any role of direction, supervision or otherwise in the manner of the performance of the work.
5. His Honour was in error in not finding that the first Respondent and/or second Respondent and/or third Respondent owed a non-delegable duty of care to the deceased worker.
No argument was advanced in support of ground 5.
6. His Honour erred in holding that Unistyle Joinery Pty Limited was an independent contractor.”
99 The essential questions to which this appeal gives rise can be conveniently stated and dealt with in the following order:
Question 1 (incorporating appeal grounds 1 and 2)
100 Whether:
(a) either or both Regulations 73 and 74 made under the Construction Safety Act, 1912 (NSW); or
(b) Section 40(2) of the Factories Shops and Industries Act , 1962 (NSW)
imposed obligations upon the Respondents or any of them so as to give rise to liability on the part of such Respondent for breach of statutory duty?
101 It was contended by the Appellant (as to (a)) that the trial judge erred in holding that Regulations 73 and 74 of the Construction Safety Regulations did not impose obligations on the Respondents. This was on the basis that H C Buckman & Son Pty Limited v Flanagan (1974) 133 CLR 422 was distinguishable upon the facts, or alternatively wrongly decided, though the latter was put purely as a formality since this court is bound by Buckman. It was contended by the Appellant (as to (b)) that the trial judge erred in not finding that the roof upon which the deceased was working was a factory within the definition of s4 of the Factories Shops and Industries Act, 1962.
Question 2 (incorporating appeal ground 3)
102 Whether the trial judge erred in not finding negligence on the part of each or any of the first, second or third Respondents?Question 3 (incorporating appeal ground 4)
103 Whether the trial judge erred in holding that "there is no suggestion in the evidence that any of the Defendants, or their servants, had, or sought to have, any role of direction, supervision or otherwise in the manner of the performance of the work" (see Red Book 32I)?Question 4 (incorporating appeal ground 6)
104 Whether the trial judge erred in holding that Unistyle Joinery Pty Limited was an independent contractor?105 Appeal ground 5 (error in not finding that each of the Respondents owed a non-delegable duty of care to the deceased worker) was not pressed.
106 By leave granted on the hearing of the appeal, Universal filed a Notice of Contention in which it contended that the decision of the trial judge should be affirmed on the following further grounds:107 Leave was also granted on the hearing of the appeal to Baleskim filing a Notice of Contention in which it contended that the decision of the trial judge should be affirmed on the following further ground:
"1. The first Respondent was neither an occupier nor employed persons in the factory.
2. The Factories, Shops and Industries Act did not apply to the circumstances of the accident in this case which occurred in the course of building work under the Construction Safety Act and Regulations."
"His Honour should also have found that upon the true construction of s 4 of the Factories, Shops and Industries Act, 1962 at all material times the second Respondent was not an "occupier"."
108 I have had the advantage of reading the judgment of Powell JA in draft who has set out the factual circumstances comprehensively. Save as indicated, I adopt that elaboration. While I would concur in his conclusion that the ground of appeal based upon s40(2) of the Factories, Shops and Industries Act, 1962 (NSW) fails, I would do so for the reasons which I set out later in this judgment.
109 I also agree with Powell JA that Regulation 73 does not avail the Appellant for the reason given by the trial judge. He concluded that “the introductory words to Regulation 73 do not impose obligations on persons who have subcontracted work to independent contractors” (Red Book, 32E). The High Court’s decision in Buckman forecloses any question that the statutory duty imposed by Regulation 73 applies to any of the Respondents. None of these come within the introductory words of Regulation 73 which describes the person upon whom the statutory duty is imposed as “the person who carries out the work”.
110 However, the Appellant also contends that Regulation 74 applied. In support of that contention, the Appellant submits that “H C Buckman & Son Pty Limited v Flanagan (1974) 133 CLR 422 was distinguishable upon the facts of this case”. (The Appellant also added, as a matter of formality only, the alternative submission that it was wrongly decided, recognising this Court is bound to follow it.) That led at the reply stage of argument to my putting the following question to Counsel. Whether in relation to Buckman a distinction could be drawn based on the difference between Regulation 74 and Regulation 73?
111 With respect I differ from Powell JA where in his judgment he concludes (para 71) that “the question not having earlier been raised, nor thereafter raised with [Counsel for the Respondents]” it is not “proper for the Court to deal with [that] question”. The reason why I differ is essentially because that question was before the trial judge (Red Book, 32) and underlay the Appellant’s submissions quoted below. Before the Court of Appeal, it was further elaborated in argument at the reply stage; see below. Finally, resolving that issue involves no new evidence but simply a closer analysis of Regulation 74, in relation to Buckman.
112 Thus I quote first the Appellant’s written argument (written submissions of 7 September 2000, p4):113 This issue was further debated in reply. Thus the transcript of argument before the Court of Appeal, to which Powell JA makes reference (T, 16), records the following exchange:
“ Ground 2
1. The appellant submits that H.C. Buckman & Son Pty Limited v Flanagan (1974) 133 CLR 422 was distinguishable upon the facts of this case or alternatively wrongly decided.
2. As to the latter proposition, it is conceded that this court is bound by Buckman and can only treat the submission as a formality.
3. As to the former proposition, the facts in this case were that Mr Montebello, who represented all three respondents for the purposes of their dealings with Unistyle, apparently had a supervisory role in the execution of the works and attended once as found by His Honour before the accident: RAB26R-T. The first respondent as already noted herein, provided the materials without which the work could not have been executed. It is submitted that these things relevantly involved the first respondent in the roofing work and obliged it to comply with the regulations."
"SANTOW AJA: In relation to Buckman v Flanagan could a distinction be drawn based on the difference between regulation 74 and regulation 73. Regulation 74 talks about the person in charge of the construction work as having the obligation. Regulation 73, which was the regulation dealt with by the High Court, talks about the person who carries out construction work. You look at a head contractor [and] subcontractors vis a vis the proprietor of the property, he is in charge of the construction work and he is responsible for it.
I am looking at the question of whether or not there is a basis for distinguishing the High Court decision in Buckman , being a decision on regulation 73, it turns on the meaning of the words in that regulation. The High Court says an independent contractor is not an independent agent. Accepting that and noting that regulation 73 is said to be expressed in relation to regulation 74 we come to regulation 74 and find the obligation is there imposed on the person in charge of the construction work. That could mean that the building contractor is directly doing it but because of the difference in language might it be comprehended the head contractor vis a vis the proprietor is charged with carrying out the construction. True it is, as is common in the building industry, he chooses to use a subcontractor but it may be that regulation 74 was to say : if you being in charge of the construction work as head contractor do not put in a safety belt and safety harness then you are in breach. It may be that there is a concurrent obligation on the subcontractor as well. I am not sure of that. In one sense both have charge of the construction work.
KING, SC: As a matter of language, what you say is obviously a possibility. I have got the Butterworth’s blue practice and the note to regulation 74 is note 32,525.1 at page 44,453. I think it would be quicker if I were to hand up this page of my practice. It says that regulation 74 extends the duties imposed. It is very inconclusive."
114 Further brief exchange followed. None of the parties made or proffered any further submission, then or subsequently.
115 The question of distinguishing Buckman in relation to Regulation 74 was therefore squarely before the Court as previously before the trial judge. So too were two potential bases for doing so. The first was that advanced in the Appellant’s written submissions. The second was a variant advanced in argument at the stage of reply. In those circumstances and with no further submissions proffered, I consider it would be unjust to the Appellant not to deal with that ground of appeal and not unfair to the Respondents to do so. The situation is wholly different from that in Coulton v Holcombe (1986) 162 CLR 1 where the High Court held it was unfair for the appellate court to have permitted a new issue to be argued which would have subjected the other party virtually to a new trial on an issue different from that already litigated. In the present case the issue remains the same, as also the broad parameters of the related argument. What has occurred is simply greater refinement of the arguments put, as is not uncommon on appeal, largely as foreshadowed in the quoted exchange though with some attention in my judgment to the legislative history of Regulation 74.
116 Before dealing with Regulation 74 for this purpose, I commence by considering Regulation 73, so their inter-relationship can be brought out.
Appeal Ground 2: "That his Honour erred in holding that Regulation 73 and 74 of the Construction Safety Regulations did not impose obligations upon the Respondent[s]".
117 I agree with the trial judge that H C Buckman & Son Pty Ltd v Flanagan is not distinguishable upon the facts of this case so far as Regulation 73 is concerned. However Buckman concerned only Regulation 73. Each of Barwick CJ, McTiernan and Stephen JJ held that Regulation 73 imposed obligations on persons actually carrying out building work whether personally, or by servants or agents. They concluded that Regulation 73 did not impose obligations upon persons who had subcontracted work to independent contractors. In so doing, they took a stricter view of agency in this context than did Mason J (at 479). Mason J was supported by Jacobs J in supposing that an independent contractor could be an agent in that setting. The majority reasoning emphasised the terms of Regulation 73 and in particular its opening words:
"Any person who directly or by his servants or agents carries out any construction work shall take all measures that are necessary or advisable to minimise accident risk and to prevent injury to the health of persons engaged in such construction work and for this purpose without limiting the generality of the forgoing, he shall-"
118 What thereafter follows in Regulation 73 are 22 statutory requirements. They lay down particular safety precautions in each case to be taken by the person carrying out the construction work, or its servants or agents. These included, relevantly, the two opening requirements (Regulation 73(1) and (2)) as well as the fencing requirements of Regulation 73(3) and (8). The two opening requirements were to "provide suitable and safe scaffolding" and "provide and maintain safe means of access to every place at which any person has to work at anytime". The words “provide and maintain” emphasise that it is not a mere passive obligation that is here imposed such as might more appropriately rest on an owner or head contractor. Rather the positive nature of the obligation, reflected in the requirement “to maintain”, falls on the person actually carrying out the construction work. This presupposes an active involvement with the building work on the site. Contrast Regulation 74 which merely requires that there be provided safety equipment (harness, etc.) for workers on the site. That is a more limited obligation appropriate to be imposed on the person in charge of the work but not closely involved in how the work is done. It is for the protection of those doing the work.
119 It can readily be seen that the class of persons protected by Regulation 73 is specifically "persons engaged in such construction work". Whereas the class of person obliged by Regulation 73 (here to provide the relevant safeguards and accident prevention measures) is specifically “any person who directly or by his servants and agents carries out any construction work". That class of person includes a subcontractor who actually carries out the work, but not the head contractor who is in charge of it. Regulation 74, as I explain, reverses the position. It takes the class of person obliged by Regulation 73 (“a person engaged in construction work”) and makes that person instead the protected person. But the person obliged by Regulation 74 becomes “the person in charge of the construction work”.
120 Regulation 74 like Regulation 73, has existed in the Regulations since they were first introduced in 1950. But, in contrast to Regulation 73 which was not materially amended, Regulation 74 was amended on 13 March 1987 in significant respects. I set out below the two versions of Regulation 74. First, the version immediately preceding the amendments of 13 March 1987 and dating back to 1950. Second, the version which replaced Regulation 74 and which has subsisted to the present day.
Regulation 74 as existed from 25 May 1950 until amended 13 March 1987Regulation 74 from 13 March 1987 to present
"Provision of safety nets or belts and life lines.
74(1) If the special nature or circumstances of any part of a building work render impracticable compliance with the provisions of regulation 73 designed to prevent the fall of any persons engaged on that part of the building work, then those provisions shall be complied with so far as practicable and , except for persons for whom there is adequate hand hold and foothold, the contractor or person in charge of the building work shall provide safety nets or safety belts and life lines of a type approved by the Chief inspector which will so far as practicable enable such persons to carry out work without risk of serious injury.
(2) paragraphs (6) and (7) of Regulation 73 do not apply to or in respect of demolition work as defined in Regulation 84." [Emphasis added to show what was omitted in 1987].
"74 Provision of safety nets and life lines
(1) Where there is a risk that a person engaged in construction work may fall because there is no adequate hand hold or foot hold the person in charge of the construction work shall provide:
(a) a safety belt and safety line or safety harness and safety line complying with the requirements of AS 1891 for the use of that person, or
(b) a safety net complying with the requirements of BS 3913,
while the work is being carried out.
(2) Paragraphs (6) and (7) of Regulation 73 do not apply to or in respect of demolition work as defined in Regulation 84." [Emphasis added to show what was substituted in 1987 — note omission of the words “the contractor or” before “the person in charge of the construction work”].
121 It can be clearly seen from the emphasised portions of Regulation 74 in the two versions pre and post 13 March 1987 that significant changes were made in 1987. As Butterworths’ Occupational Health and Safety Law NSW Vol. 2 at 44,453 points out, the current Regulation 74 extended the duties imposed by Regulation 73. The old Regulation 74 dispensed with the obligations in Regulation 73 where compliance was impracticable. In Storozuk v Commissioner of Railways [1963] SR(NSW) 581 Brereton J at 592 described the pre-1987 Regulation 74 as introducing “matters of excuse or justification” for non-compliance with Regulation 73.
122 On the pre 1987 Regulation 74, Sugerman J concluded in Smith v Rex Building Co Pty Ltd [1963] SR (NSW) 32 at 33:
"In my opinion however, the duties which are imposed by reg 74 in the event that the special nature or circumstances of any part of the building work render impracticable compliance with the specified provisions of reg 73 are substituted and independent duties imposed in that event. There are two such substituted duties, one of which is qualified by the words ‘so far as practicable’ and the other of which is subject to a stated exception. These are imposed upon different classes of person - the first upon the persons who but for the condition or event mentioned would be responsible for compliance with the relevant unqualified provisions of reg 73, and the second upon a different but overlapping group of persons . The true view, in my opinion, of reg 74, read with a relevant provision of reg 73, is that, in the event of such impracticability as is referred to in reg 74, the necessity for compliance with the relevant unqualified provision of reg 73 is dispensed with and replaced by a requirement of compliance with the provisions of reg 74. The latter does not provide in express terms for such an exoneration. But it appears to me to be a matter of necessary implication, whether the appropriate implication should be inserted in reg 74 itself or whether in reg 73." [Emphasis added].
123 Thus the pre 1987 Regulation 74 imposed substituted duties where compliance with Regulation 73 was impracticable, doing so upon “a different but overlapping group of persons”.
124 The words in Regulation 73 which were added subsequent to H C Buckman Pty Ltd v Flanagan, namely "subject to Regulation 74" may at first sight appear more appropriate for the pre 1987 version of Regulation 74. However those words still have work to do in qualifying the requirements which follow. This is because Regulation 74(2) expressly qualifies Regulation 73 in terms of later paragraphs (6) and (7) (requirements not presently relevant).
125 Regulation 74 in both its versions imposed an obligation to provide a safety belt and safety line or safety harness and safety line, or safety net. Post 1987 that was by reference to AS 1891 and BS 3913; pre 1987 by reference to equipment approved by the Chief Inspector. But otherwise there was no significant difference in the nature of that equipment.
126 There was however another change made in 1987 to Regulation 74 whose significance needs to be considered. "Contractor" is deleted immediately before the retained words "person in charge of the building work". This is in describing the class of person subjected to the new self-standing Regulation 74 obligations. Does this mean that pre-1987, head contractors were subjected to Regulation 74 obligations, but not post 1987? Or were head contractors still subjected to those obligations post 1987, being subsumed by the words “person in charge of the building work”?
127 There are no background statutory materials concerning these regulation changes made in 13 March 1987. But one possible answer to the last question may lie in the changed nature of the post 1987 Regulation 74. The post 1987 Regulation 74 ceases to be a dispensing regulation modifying Regulation 73. It becomes instead a self-standing extension to Regulation 73. Reference to "the contractor" in the pre-1987 version of Regulation 74 may therefore have been a succinct, shorthand way of obligating “the person carrying out the construction work” referred to in the opening words of Regulation 73. Thus a subcontractor (picked up by the word “contractor”) would have been subject to both Regulation 73 and the pre 1987 Regulation 74 on this theory. Regulation 74 in its pre-1987 form would therefore apply, inter alia, to impose its obligations on a subcontractor who, finding it impracticable to comply with Regulation 73, is thereby still required to provide safety harnesses, etc. But post 1987, with that connection to Regulation 73 severed, there would be no need to maintain such a dual obligation under both Regulations 73 and 74 upon a subcontractor. The Construction Safety Act 1912 itself, in s22(3D), provides that a regulation may “impose duties upon ….. contractors, principal contractors, subcontractors”. That suggests that the word “contractor” in the Regulations is not necessarily to be understood as synonymous with the principal contractor, though the additional reference to “independent contractor” may militate against a subcontractor being subsumed by the term “contractor”.
128 There is however another possibility. It is that “contractor” in the pre-1987 Regulation 74 retained its conventional meaning of head contractor including where there is a subcontractual arrangement. When the reference to contractor was eliminated in 1987, this was because “contractor” was already subsumed by the words “person in charge of the construction work”.
129 Butterworths Australian Legal Dictionary (1997) defines contractor in these terms:
A clear statement of the conventional status of a head contractor in terms of responsibility is similarly to be found in H Bailey “Construction Law in Australia” (LBC, 1981) at 121:
“ Contractor The builder of a construction project. In modern complex projects, the contractor or its servants does very little actual building; rather, its role is that of financier and coordinator of the various subcontractors and suppliers who bring the project into physical existence.”
"The time has long passed where a building or engineering contract is completely executed by the main contractor and his direct employees. Most contracts are still let on the basis of complete responsibility for the performance on the contractor, but with provision for the contractor to sub-let portions of the work. The only circumstances where a total prohibition would be placed on the contractor’s capacity to subcontract would be where the contract is for some specialist personal skill or knowledge of the contractor. Whilst the contract may permit the contractor to sub-let part or even the whole of the contract works, the contractor will nevertheless remain liable for the performance of the contract"
130 The question then to be asked is whether, by deleting from Regulation 74 the word “contractor” in 1987, an intention was evinced to exclude from Regulation 74, post 1987, the head contractor? Or was the deletion made because “contractor” was already subsumed by the reference to “person in charge of the construction work”? I consider the latter conclusion more likely. The words “person in charge of the construction work”, are apt to include a head contractor in overall charge of construction work, co-ordinating any various trade or trades and making the building site under its control available to those doing the work. Moreover, because a head contractor remains responsible for the work to the proprietor, it could not discharge that responsibility if not in overall charge of the work and building site. This certainly does not mean that the head contractor must carry out the work itself. A subcontractor, as here, may be delegated to do the work. Nor does it mean that the head contractor dictates how the subcontracted work is to be done, save very broadly in its co-ordinating role. Typically, the head contractor is not an employer of the subcontractor’s employees dictating in any detailed fashion how the work is done. Indeed Regulation 74 imposes no duty requiring such dictation. The duty is merely to “provide” certain equipment capable of use on the site for its intended purpose. Certainly there is no duty that presupposes the capacity to enforce its use, as in the wearing of a safety harness. Contrast, for example, Regulation 73(2) in its requirement “to provide and maintain” safe means of access, or Regulation 73(14) “to cause measures to be taken to ensure scaffolding materials” etc are not “thrown, tipped” etc.
131 The conclusion that “the person in charge of the construction work” would include a head contractor in the First Respondent’s position is not precluded by the holding of the trial judge as to the role actually played by the Respondents. He concluded that “there is no suggestion in the evidence that any of the Defendants, or their servants, had, or sought to have, any role of direction, supervision, or otherwise, in the manner of performance of the work” [emphasis added] (Red Book, 32I). Supervision of the manner of work is not what the head contractor typically does. But the head contractor is nonetheless in charge of the construction work. Nor does that conclusion depend upon whether the First Respondent instigated the putting up of the safety net (Combined Appeal Book, 28X to 29A) though Mr De Silva gave evidence to that effect, subsequently resiling (at 38U-V). Nonetheless the evidence that the First Respondent funded equipment purchases for the indigent subcontractor reinforces the First Respondent being “the person in charge of the construction work”. But that would have been so even without that additional involvement.
132 I consider that a subcontractor’s control of the manner of performance of the work can and typically does co-exist with the head contractor being, for purposes of Regulation 74, “the person in charge of the construction work”. That the contractor retains overall responsibility for the construction work necessarily entails being in charge of it, whether carried out by the contractor itself, or as is more usual, via a subcontractor.
133 Section 22(3D)(b) of the Construction Safety Act 1912 is also consistent with such an interpretation when it provides that:134 That Regulation 74 applies to head contractors is also in evident accord with the purpose of promoting safety manifested by the Construction Safety Act, in its various forms as it evolved from the original Scaffolding and Lifts legislation of 1912. That purpose is reflected in the Parliamentary debates on amendments to the legislation which took place on 16 November 1948. Those debates preceded the Construction Safety Act Regulations introduced in 1950 for the first time. One finds the following statement affirming that safety purpose for those working on roofs in the NSW Parliamentary Debates in the Legislative Assembly on 16 November 1948. I quote from the second reading speech for the Minister for Labour and Industry at 546:
“(3D) A regulation may:
(a) …..
(b) impose duties upon constructors, contractors, principal contractors, sub-contractors or other persons.”
"By proposed new section 21 the regulation - making powers of the Governor are being extended to protect against the risk of accident, workmen who are engaged on the work of fixing, or whose work necessitates them operating on, roofs of buildings which are intended to be or which already are sheathed with asbestos cement or other brittle material.
There have been many accidents, some fatal, on roofs sheeted with asbestos cement, because of the brittle nature of that covering. Men working on such roofs have fallen through on to hard floors many feet below. I venture to say that every hon. member, not only on this side but also on the other side of the House, will agree that legislative action should be taken to minimise the risk of that type of accident. This provision will permit the department to insist upon wire netting and other safety materials being provided under asbestos sheet roofs."
135 The same safety theme is to be found in the second reading speech of the then Minister on 15 March 1978 when introducing the Scaffolding and Lifts (Amendment) Bill. This was when the legislation was changed from the Scaffolding and Lifts Act to the Construction Safety Act. The latter designation “will reflect more accurately the thrust of the legislation”, referred to as “safety legislation”; see NSW Parliamentary Debates 15 March 1978 (at 13160) second reading speech by Minister for Industrial Relations Mr Hills.
136 If interposing a subcontractor exonerated and discharged the head contractor from any obligation to provide the additional safety measures contemplated by Regulation 74, that legislative safety purpose would clearly be frustrated. One would not expect such a result from the 1987 amendments. These were directed to extending safety obligations, not narrowing them. If their deleting “contractor” were to have such a dramatic effect in 1987, that would be not only incongruous but also unlikely to have happened in so unheralded a way.
137 It was not in dispute that the obligation under Regulation 74 was not carried out by the First Respondent or indeed anyone. Moreover if a safety net were brought onto the site in compliance with Regulation 74, it would obviously have to have been capable of covering the relevant area. The evidence is that a safety net for the larger roof area would not have been feasible: see Combined Appeal Book 27H and 36E.
138 There remained the alternative in Regulation 74(1)(a) of providing a safety belt and safety line, or safety harness and safety line, complying with the relevant requirements. The evidence in the Combined Appeal Book (at 34X-35B) makes clear that working on the top of the roof, there was nothing to connect safety harnesses to. The provision of a safety harness must contemplate that the safety harness be capable of use. Thus Mr De Silva gave evidence that there were safety harnesses on the site which were not worn by the men working on the roof (Combined Appeal Book, 23 and 28). That could hardly satisfy the requirements of Regulation 74 if, as the evidence establishes, there were no way of attaching the harnesses to the roof and when, as the evidence also shows, there were no effective safety nets placed underneath where the work was to be carried out. This was despite the fact that the roof appears to have been approximately 12 to 13 metres above ground level.
139 Turning to the trial judge’s analysis of Regulations 73 and 74, I have earlier concluded that he was correct in concluding that the decision in H C Buckman & Son Pty Ltd v Flanagan precludes any reliance upon Regulation 73 against any of the Respondents. However, for the reasons earlier stated, I consider that the trial judge was in error in concluding, as he did, that "a fortiori, I think the same proposition would apply to the obligations created by Regulation 74".
140 In so concluding, I note that Wood CJ at CL in Hetherington v Mirvac Pty Ltd & Ors (unreported) [1999] NSWSC 443, a decision not cited to us but of some analogous bearing, did not distinguish between Regulation 73 and 74 in concluding that neither regulation availed the plaintiff in that case.
141 However, Wood CJ at CL did not, it appears, have detailed argument addressed to him as to the distinguishing features of Regulation 74 as he does not give any reason for treating Regulation 74 in the same way as Regulation 73. I therefore do not consider his decision stands in the way of the conclusion I have reached that the First Respondent was in breach of Regulation 74.
Appeal Ground 2 — Second and Third Respondents
142 I turn now to the owner or occupier of the building, in the present case the Second and Third Respondents respectively. If the occupier or owner were in a real sense “in charge of the construction work”, each would be caught by Regulation 74. But if neither are in charge of the construction work — as appears the case here — then there is no basis for bringing them within the ambit of Regulation 74. Thus by parity of reasoning, in Castellan v Electric Power Transmission Pty Ltd 87 W.N. Pt 2. (NSW) 67; [1968] 1 NSWR 286 it was held for the purposes of Regulation 73 that where the whole of the building operation is being carried out by an independent contractor and the owner of land on which the work is being done takes no part in it, the building owner does not in those circumstances “carry out” the work either directly or by his servants or agents, within the meaning of Regulation 73.143 However, it must be remembered that the question in Regulation 73 is a different one from Regulation 74. In Regulation 73, the question is who is “carrying out” the construction work as distinct from who is in charge of it. But where, in the present circumstances, there is an interposed head contractor in overall charge of the work done by the subcontractor, there would not appear to be any room for either the owner or the occupier to be treated as also in charge of the construction work. There is no evidence that the Third Respondent retained any residual capacity to be in charge of the construction work following interposition of the First Respondent as head contractor and the further interposition of Unistyle as subcontractor. The Second Respondent lessee/occupier similarly played no role in the construction work. In the materials before the trial judge there was no evidence of any contractual arrangement between either owner and head contractor, or lessee and head contractor. The First and Third Respondents are on the evidence affiliated companies sharing a common board. That would explain why everything was left to the First Respondent as head contractor in overall charge of the work, with the Third Respondent playing no apparent role in the work.
144 Indeed the expression "the person in the charge of the construction work", in using the definite article "the", suggests that it applies only to the principal person in charge. That was clearly the First Respondent, on any view. In those circumstances, in the absence of any evidence either way, I would conclude that neither the Second nor Third Respondent were within the ambit of Regulation 74.
145 So summing up:
(2) This is borne out by:
(1) A head contractor, with or without an interposed subcontractor, is “the person in charge of the construction work”, upon whom Regulation 74 imposes its obligations, doing so for the protection of “the person who carries out the construction work” (being the person obliged under Regulation 73);
(a) the terms of the language used in Regulation 74, being apt to encompass the head contractor who by law and contract ordinarily remains responsible for the work, though delegating it to a subcontractor, on the basis that one cannot meaningfully be responsible for the work without being also in overall charge of it;
(b) the terms of Regulation 74 in imposing relatively passive obligations merely to “provide” various items of equipment, being a role compatible with not dictating how the work is to be carried out, which is the subcontractor’s task — whereas Regulation 73 imposes the more active obligations appropriate for the person doing the work so picking up the subcontractor;
(c) the historical safety purposes of the legislation, emphasised since 1912, are best advanced by a construction of Regulation 74 which treats a head contractor as not exonerated from statutory obligation under Regulation 74, merely by delegating to a subcontractor;
(d) the legislative history of Regulation 74, when in 1987 “contractor” was deleted and Regulation 74 made into a self-standing extension of Regulation 73 rather than a modification of it, is consistent with Regulation 74 still remaining applicable to a contractor who delegates to a subcontractor, as express reference to “contractor” was not necessary but subsumed in the language used, and
(e) Buckman is a decision about Regulation 73; this present analysis of Regulation 74 does not depend on the notion of agency in Regulation 73 to which the reasoning of Buckman is directed.
Overall Conclusion on Appeal Ground 2
146 I am satisfied that the trial Judge was in error in his conclusion concerning Regulation 74. I conclude that ground 2 succeeds against the First Respondent only, on the basis that the First Respondent breached Regulation 74 but not Regulation 73. I am satisfied that the injury suffered was within the general class of risks that the statute was intended to protect against. It follows the Appellant is entitled under this head to recover the damages she claims for breach of that statutory duty against the First Respondent but not against the Second or Third Respondent.Liability in negligence — Appeal Ground 3
148 While it has long been a general rule that a principal is not liable for the negligent conduct of his independent contractor, or for the independent act of a third party (see for example Condis v State Transport Authority (1985) 154 CLR 672 at 691-2) to that general rule there are some recognised exceptions. The first is when the principal authorises the doing of the act which amounts to the tort. The second, is when the principal engages the independent contractor to perform a non-delegable duty resting on the principal and the independent contractor fails to perform; see generally Hetherington v Mirvac Pty Ltd & Ors (supra) at paras 133-4. In such a case, while performance may be delegated, the duty may not. As Giles JA put it in Elliott v Bickerstaff (1999) 48 NSWLR 214 at 236-7:
147 Given my earlier conclusion of a breach of statutory duty giving rise to tortious damage, it is not necessary that I deal with this alternative basis for liability. However, subject to the caveat below, there is a case for concluding that the elements for liability in negligence against the First Respondent were made out, once it be established, as I have earlier concluded, that the First Respondent was in breach of the statutory duty applicable to it under Regulation 74. This is subject however to an important caveat. It is that the Appellant did not argue ground 5, (non-delegable duty of care to the deceased worker), presumably treating it as subsumed in ground 3 dealing with negligence. Ground 3 was however argued on a basis that each of the Respondents had an interest in seeing the work done properly, including safely. In the First Respondent’s case this was in the proper utilisation of the materials for which it was paying. In the Second and Third Respondent’s case this was as tenant and landlord respectively, in the case of the Second Respondent this being to enable its machines to operate to the greatest possible extent, consistent with the progress of the work. However, I would not base such a conclusion on such a basis and indeed, subject to the earlier caveat, see no basis for treating the Second and Third Respondents as liable at all on this ground.
“The question of a non-delegable duty of care has arisen where a person owing a duty of care has delegated performance to another person. A person owing the duty of care may generally fulfil it by exercising reasonable care in entrusting performance to a competent third party. But in some circumstances the person owing the duty of care cannot fulfil it in that way, and is liable if the third party does not exercise due care. In such circumstances, it is said that the duty of care is non-delegable.
The language can mislead. In both situations the duty of care is owed by the first person, and the duty of care is not delegated. The performance can be and is delegated. The effect of a non-delegable duty of care is that the person owing the duty of care is under a more stringent duty of care, a duty of care which cannot be fulfilled by exercising reasonable care in entrusting performance to a competent third party. The duty of care requires that the person ensure that the third party exercises reasonable care, in the sense that the person is liable if the third party does not exercise reasonable care.”
149 There is also a third exception, whose ambit is less clear, recognised in cases such as Kondis v State Transport Authority (1984) 154 CLR 672 at 687. It applies where there is some element in the relationship between the parties that makes it appropriate to impose on the defendant a duty to ensure that reasonable care and skill is taken for the safety of the persons to whom that duty is owed. The common element which is to be found in the categories of case in which this more stringent duty is applied is that the defendant “has undertaken the care, supervision and control of the person or property of another”, or is so placed in relation to the person or property of a vulnerable plaintiff as “to assume a particular responsibility” for the plaintiff’s safety, as explained in Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 550-1; 120 ALR 42 at 62. An instance of this, is the head contractor’s vicarious liability for the acts of independent contractors in Stephens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16. It arose from the head contractor’s general supervisory functions necessarily entailed by the need to co-ordinate interdependent activity on the site where otherwise there was a distinct risk of personal injury for employees of the subcontractor from the actions of others. That feature is absent here. Most recently the High Court emphasised that vicarious liability for the acts of an independent contractor was not to be attributed by reference to agency, without further explanation of what was thereby meant, or by recourse to the notion of non-delegable duty without caution constraining its general application; see Scott & Ors v Davis (2000) 74 ALJR 1410 especially per Gleeson CJ at [4] and [18] and Gummow J at [227-239] and [245-250].
150 Here, the principal was the First Respondent. The principal left it to the independent contractor to perform the statutory duty imposed by Regulation 74, despite it being imposed upon the First Respondent as "the person in charge of the construction work". The independent contractor failed to perform what remained the head contractor’s personal duty under Regulation 74. Moreover this was in circumstances where it was clear that the First Respondent was on notice that the independent contractor Unistyle was in financial difficulties rendering its employees the more vulnerable. That led to the First Respondent actually paying for materials on behalf of Unistyle; see Combined Appeal Book, 29B-I. Indeed the evidence is that these financial difficulties were known to the First Respondent during the process not only of the current job but of an earlier job. Notwithstanding the First Respondent’s knowledge, it engaged the subcontractor to carry out a task carrying an inherent risk of physical injury to the person of an employee engaged in the roofing. The employee was thus more than usually vulnerable to the subcontractor failing to ensure that the relevant safety measures were taken. These were safety measures moreover which, so far as Regulation 74 was concerned, unavoidably fell upon the head contractor as the person in charge of the work, notwithstanding interposition of the subcontractor.
151 That situation is distinct from the case where it can be said that the employer is not rendered liable merely because it is foreseeable that the independent contractor might, on his own initiative, adopt a careless way of doing the work; compare Brennan CJ in Northern Sandblasting Pty Ltd v Harris (1997) 178 CLR 313 at 332-3. Thus it may be said that the elements necessary to make out a duty of care coexist where:
(a) the task is inherently dangerous upon which the employee is engaged,(b) to the knowledge of the head contractor, the employee is vulnerable to the failure to carry out the statutory safety measures, and
(c) the very risk which eventuated was one for which the head contractor retained a statutory responsibility.
152 The Second and Third Respondents were however on any view outside the ambit of any duty of care to the deceased employee of the subcontractor. They had no statutory duty for which they were in breach. Nor had they any involvement in the work, beyond it occurring on a site occupied by the Second Respondent and owned by the Third Respondent. Any interest they had as tenant and landlord, in the tenant’s case seeing to it that the work progressed efficiently to enable its machines to operate to their greatest extent could not ground any duty of care to the deceased. Neither could therefore be liable.
Conclusion
153 These circumstances point to the trial judge being in error in rejecting the Appellant’s case at common law so far as the First Respondent is concerned but not the other two Respondents; see Red Book, 32-33. However, in the absence of fuller argument on the point, and with ground 5 not independently pressed, save as inherent in ground 3, I make no formal finding of negligence in relation to the First Respondent against whom the Appellant in any event in my judgment succeeds on ground 2 so far as Regulation 74 is concerned.Ground 1 — Statutory liability under s40(2) Factories, Shops and Industries Act 1962
154 Given my earlier conclusions, it suffices if I simply state my own reasons for agreeing with the conclusion reached by Powell JA that no statutory liability arises under s 40(2) of the Factories, Shops and Industries Act 1962 (“the Act”).155 The trial judge’s reasoning was essentially that a roof fell outside the definition of "factory" in s4(1) of the Act as not being "any building or place … in which: (i) four or more persons are engaged directly or indirectly in a manufacturing process …".
156 "Manufacturing process" is defined by the Act as meaning "any handicraft or process in or incidental to the making, assembling, altering, repairing, renovating, preparing, ornamenting, finishing, cleaning washing … or any goods or any articles or any part of an article for trade or sale or gain, or ancillary to any business …".
157 The trial judge referred also to s4(2) of the Act in particular paragraphs (a) and (b) which are in the following terms:158 Section 40 provides:
"(a) A place shall be not be excluded from such a definition by reason only that the place is in the open air;
(b) Or those parts of the close, curtilage or precincts of a factory over which the occupier has right of access or control shall be deemed to be part of the factory. Provided that where a place within such close, curtilage or precinct is solely used otherwise than for or in connection with the processes carried out in the factory, that place shall not be deemed to form part of the factory which, if otherwise would be a factory, be deemed to be a separate factory;
…"
“Safety of working places and means of access.
40.(1) There shall so far as is reasonably practicable be provided and maintained in every factory safe means of access to every place at which any person has at any time to work.
(2) Where in any factory a person is to work at a place from which he will be liable to fall a distance more than 3 metres, then, unless the place is one which affords secure foot-hold and, where necessary, secure hand-hold, means shall be provided so far as is reasonably practicable, by fencing or otherwise for securing his safety.”
159 The trial judge stated that "the provision seems to me to be indicative of an intention by the legislature to exclude from the definition of "factory" any separate area which is not actually used for factory purposes. Such an area would include, in my view, the roof of a building, the utilitarian purpose of which is unrelated to the activities conducted in the area which it covers"; see Red Book, 28H. The difficulty is that the roof is related to those activities as I explain below.
160 The trial judge then went on to say that if he were wrong in that conclusion, then the second defendant should be held to be the occupier of that factory as also the first defendant (being the Second and First Respondents respectively); see Red Book, 30J. This would be on the basis that the definition of "occupier" included a "person acting or apparently acting in the general management or control of the factory". I shall for present purposes proceed on the basis that each was an “occupier”.
161 The difficulty I have with that reasoning is this. A roof is required by those carrying on the manufacturing processes underneath, if they and those processes are to be protected from rain and the elements in so doing. A roof performs a necessary function ancillary to those manufacturing processes. To treat a roof as outside the definition of “factory” for the purposes of the Act disregards the fact that the building in which manufacturing processes are carried on necessarily requires a roof to perform the ancillary purpose of protecting machinery and factory workers from the elements.
162 The situation of a factory roof is quite distinct from a totally separate area outside the factory building which plays no role in assisting the manufacturing process carried on. Section 4(2) of the Act is directed to that.
163 A person is not taken outside the ambit of the Act merely because he is an independent contractor; Wigley v British Vinegars Ltd [1962] 3 WLR 731. But it does not follow that because the roof is to be treated as part of the factory, s40(2) of the Act applies to protect the employee of an independent contractor working on the roof. Such a person is not engaged directly in the manufacturing processes but merely assists in fulfilling a function ancillary to those processes. Thus a workman not employed in the factory who repairs the roof, though it protect the manufacturing processes from rain and the elements, is not within the intended ambit of statutory protection under s40(2) of the Act. Where s40 refers in subs(2) to “where in any factory a person is to work” the person there referred to must either be engaged in the manufacturing processes or be there for its purposes, in a central and direct sense, such as someone repairing factory machinery. When Glass McHugh and Douglas in their work, “The Liability of Employers” (LBC, 1979) at 151 would include within the Act’s protection anyone who is there to work for the purposes of the factory, I consider this should be taken as requiring more than an involvement in an ancillary function to the manufacturing processes carried out. I would otherwise adopt what is said in the following passage:
“The duties respecting safe means of access and safe place of work contained in s40(1) and 40(2) apply to independent contractors and their employees.66 The presence of the words “any person has to work” and “where a person is to work” has been held to extend these duties to all persons who are to work for the purposes of the factory but to exclude those who do not, such as a policeman pursuing a felon or a fireman extinguishing a fire.67 Similarly the presence of the words “persons employed” in the section creating the duty will limit its scope to persons who are employed to work on the premises but not necessarily by the occupier.68
66 Wigley v British Vinegars Ltd [1962] 3 WLR 731, per Lord Kilmuir at pp. 737-8. A different conclusion was reached in relation to the U.K. Building Regulations: Herbert v Harold Shaw Ltd [1959] 2 QB 138; [1959] 2 WLR 681; [1959] 2 All ER 189.
67 Ibid.
68 Massey-Harris-Ferguson (Manufacturing) Ltd v Piper [1956] 2 QB 396; [1956] 3 WLR 271; [1956] 2 All ER 722. Bonser v Country and Suburban Stock Feeds Pty Ltd 82 WN (Pt 2) (NSW) 79. Quilty v Bellambi Coal Co Pty Ltd. 67 SR(NSW) 193; 84 WN (Pt 2) (NSW) 116; [1966] 2 NSWR 742. Silvestro v Verbon Pty Ltd [1973] 2 NSWLR 513.
164 In my judgment, the ambit of protection of the Act is thus limited to those who are engaged directly in the manufacturing processes or who are there for its purposes, but not someone assisting a function which is merely ancillary to the manufacturing processes carried out. The deceased employee does not come within the category of those protected by the Act.
Conclusion
165 The Appellant does not succeed in any action for breach of statutory duty reliant upon s40(2) of the Act.Remaining grounds and Notices of Contention
Overall conclusions
166 In view of my earlier conclusions, I do not need to consider the remaining grounds nor the various notices of contention.
167 My conclusions are as follows:168 Accordingly I propose orders as follows:
(1) The Appellant succeeds in her claim for breach of statutory duty against the First Respondent only, so far as based upon Regulation 74 of the Construction Safety Regulations, 1950. That suffices to entitle the Appellant to the damages claimed for loss of support in reliance upon the provisions of the Compensation to Relatives Act , 1897.(2) The Appellant does not succeed in any claim for breach of statutory duty based upon Regulation 73 of the Construction Safety Regulations or upon s40(2) of the Factories, Shops and Industries Act , 1962.
(3) As to negligence see paras 63 and 64 above.
(1) Appeal allowed as against First Respondent.(2) Appeal dismissed as against Second and Third Respondents.
(3) Set aside judgment in favour of the First Respondent only and remit the proceedings to the District Court for a new trial limited to damages for breach of statutory duty by the First Respondent arising under Regulation 74 of the Construction Safety Regulations 1950.
(4) The First Respondent to pay all of the Appellant’s costs as against the First Respondent of the first trial and the appeal.
(5) The Appellant to pay the costs of the Second and Third Respondents of the appeal.
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