Ante Abramovic v Brambles Australia Ltd

[2005] NSWDDT 30

Reported Decision (2005) 2 DDCR 680

Dust Diseases Tribunal

of New South Wales

CITATION:	Ante Abramovic v Brambles Australia Ltd and Ors [2005] NSWDDT 30
PARTIES:	Ante Abramovic (plaintiff) Brambles Australia Ltd (first defendant) Sydney Water Corporation (second defendant) WorkCover Authority of New South Wales (third defendant) Con Drake (fourth defendant) QBE Insurance (Australia) Limited (fifth defendant)
MATTER NUMBER(S):	244 of 2004
JUDGMENT OF:	Curtis J
CATCHWORDS:	:- Silicosis - Liability - Duty of Care to Employees of Contractor
LEGISLATION CITED:	Metropolitan Water Sewerage and Drainage Act 1924-1954.
CASES CITED:	-Stevens v Brodribb Sawmilling Company Pty Limited (1985) 160 CLR 16; -Commissioner for Railways (New South Wales) v Cardy (1959-1960) 104 CLR 274 ; -Hill v Van Erp (1996-1997) 188 CLR 159 ; -Pippin v Shepherd (1982) 147 ER 512; -Voli v Inglewood Shire Council (1963) 110 CLR 74; -Sutherland Shire Council v Hayman (1984-1985) 157 CLR 424 at 479 ; -Rockdale Beef Pty Limited v Carey [2003] NSWCA 132 ; -McArdle v Andmac Roofing Company (1967) 1 WLR 356; -Modbury Triangle Shopping Centre Pty Limited v Anzil (2000-2001) 205 CLR 254 ; -Boral Roof Tiles Limited v O'Brien BC 9403385; -Smith v Leurs (1945) 70 CLR 256 ; -State Rail Authority v Gudgeon [2000] NSWCA 165; Dorset Yacht Company Limited v Home Office [1970] 2 All ER 294
DATES OF HEARING:	11, 12 and 13 July 2005
DATE OF JUDGMENT:	07/22/2005
LEGAL REPRESENTATIVES:	FOR PLAINTIFF:Mr A Bartley SC instructed by Maurice Blackburn Cashman FOR DEFENDANTS: Mr D Miller instructed by Moray and Agnew appeared for the first defendant Mr GM Watson SC instructed by Phillips Fox appeared for the second defendant Ms W Strathdee instructed by Turks Legal appeared for the third defendant Mr J Sharpe instructed by Thompson Cooper Lawyers appeared for the fourth defendant Mr D Miller instructed by Moray and Agnew appeared for the fifth defendant

JUDGMENT:

Dust Diseases Tribunal of New South Wales

Matter No DDT 244 of 2004

Ante Abramovic

v

Brambles Australia Limited

(First Defendant)

and

Sydney Water Corporation

(Second Defendant)

and

WorkCover Authority of New South Wales

(Third Defendant)

and

Con Drake

(Fourth Defendant)

and

QBE Insurance (Australia) Ltd

(Fifth Defendant)

22 July 2005

JUDGMENT

CURTIS J

1. The plaintiff, Mr Ante Abramovic, was born in Croatia on 15 March 1942 and migrated to Australia on 17 September 1964. He worked here as a labourer, for the most part in tunnelling and excavation works, until he became incapacitated in 1973 by various lung diseases caused by the inhalation of silica in the course of this employment. He sues Brambles Australia Limited trading as Brambles Industrial Services (Brambles), Sydney Water Corporation (Sydney Water), Workcover Authority of New South Wales (WorkCover), Con Drake and QBE Insurance (Australia) Limited (QBE) for damages in respect of his injuries.

2. No defendant submits other than that the plaintiff has injuries which result from the inhalation of silica, that those injuries were foreseeable, and could have been prevented by the exercise of reasonable care on the part of each defendant.

3. By consent of all parties I have ordered pursuant to Pt31 r4 that the question of the liability of each defendant be tried separately from the issue of damages.

BRAMBLES

4. Brambles says that it is not liable because the plaintiff has failed to prove his employment by that company. I accept the plaintiff as a witness of truth. He asserts that he was employed by “Brambles” for about three months performing excavation work at a site near Broadway. No point is taken as to the particular corporate entity (I take it because only one entity "Brambles" was engaged in excavation works in the Metropolitan area). Mr Abramovic's account of this employment is consistent with information given to the Dust Diseases Board in 1974 and 1976 (CD1, CD2). I am satisfied that Mr Abramovic was employed by Brambles as he alleges. I find Brambles to be liable to the plaintiff.

WORKCOVER AUTHORITY OF NEW SOUTH WALES

5. At various times between 1970 and 1972 Mr Abramovic was employed by a man know as Arthur Alex. In respect of at least some of those periods of employment Mr Alex was insured by Associated General Contractors Insurance Company Limited now in liquidation. By statutory imposition, here unnecessary to recount, WorkCover is heir to the liabilities of Mr Alex during those periods of insurance. WorkCover does not resist a finding of liability to pay damages resulting from injury received by Mr Abramovic during those periods of insurance. The extent of that liability is to be determined in the trial of damages. However the plaintiff is entitled to a verdict on the question of liability generally as against WorkCover.

CON DRAKE

6. Mr Abramovic was employed by Con Drake for a period of either one or two months in 1969. It is presently unnecessary to decide whether the period was one or two months because upon the medical evidence all exposure to silica dust is contributory to at least part of the plaintiff's constellation of diseases. I do not regard one month as de minimis although such contribution is certainly minor. There is to be verdict for the plaintiff against Con Drake on the issue of liability.

QBE INSURANCE (AUSTRALIA) LIMITED

7. No evidence is offered against this party and there must be a verdict for the defendant. I presently make no order for costs.

SYDNEY WATER CORPORATION

8. Sydney Water Corporation is heir to the liabilities of the Metropolitan Water Sewerage and Drainage Board (the Water Board), constituted by the Metropolitan Water Sewerage and Drainage Act 1924-1954.

9. Sydney Water contends that the plaintiff has failed to prove he laboured on sites having any connection to the Water Board and that if he did the Water Board owed to him no duty of care.

Exposure

10. For approximately six months in 1969 Mr Abramovic was employed by two men known to him as Mick and Pat, excavating trenches for drainage pipes at Sylvania. The work involved extensive drilling in rock with a jackpick. No precautions were taken by way of water dampening or otherwise to prevent him inhaling silica dust.

11. The site has been identified by Mr Abramovic as between Corea Street and the Princes Highway (SW1). A plan produced by Sydney Water, tendered by the plaintiff as PX8, reveals that the Water Board commissioned works in that exact area and those works were completed on 12 September 1969.

12. Mr Abramovic described the work as the excavation of a major trench running alongside the footpath of the street with minor trenches connecting that trench to the individual properties. This description is consistent with the plan of the works commissioned by the Water Board. Into those trenches were laid red clay pipes. Mr Abramovic said he recognised the pipes as sewerage pipes. At the time of the works s37 of the Metropolitan Water Sewerage and Drainage Act 1924-1954 provided as follows:

Subject to the provisions of this Act the Board shall be the sole authority for the conduct of water supply and sewerage services, and the construction, control and management of storm water channels, within its areas of operations.

13. I am comfortably persuaded that the work upon which the plaintiff laboured at Sylvania was work performed pursuant to a contract between the plaintiff's employers, noted on PX8 as "O'Donovan and Horan" and the Water Board and that the work was supervised by employees of the Water Board named in PX8 as W Donohue and L Fitzpatrick.

Duty Of Care

14. Notwithstanding the availability of these findings on the evidence and the admission by Sydney Water that the plaintiff's injuries were foreseeable by and preventable by officers of the Water Board, Mr Watson SC for Sydney Water contends that his client cannot be liable for its failure to take any steps to protect Mr Abramovic from foreseeable harm because it owed to him no duty to do so.

15. Mr Bartley SC for Mr Abramovic relies on such a duty as was recognised in Stevens v Brodribb Sawmilling Company Pty Limited (1985-1985) 160 CLR 16. Mr Watson asserts that on the present facts such a duty does not arise.

16. At the heart of the present dispute is the degree of abstraction at which principles are to be drawn from the decided cases. With the demise of the concept of proximity as the touchstone of duty and the adoption of the incremental approach, this problem has increased relevance.

17. In Commissioner for Railways (NSW) v Cardy (1959-1960) 104 CLR 274 Fullagar J said:

But the relationships which give rise to the duty [of care] are of infinite variety, their only common characteristic being that which is stated by Lord Atkin [in Donoghue v Stevenson].

18. In Stevens v Brodribb Deane J, a leading proponent of proximity said at 52:

. . . once one accepts - as I think one must - that, under the law of this country reasonable foreseeability of injury is not of itself a determinant of the existence of a duty of care in all categories of case, there would seem to be but two alternatives to acceptance of Lord Atkin's overriding requirement of neighbourhood or proximity. The first alternative is to distort the notion of reasonable foreseeability so as to exclude, in some categories of case, injury to another which is obviously foreseeable by 'everyone of ordinary sense'. The second is to reduce the common law of negligence to a miscellany of disparate and largely unrelated rules under which a duty to take reasonable care to avoid a reasonably foreseeable risk of injury may or may not arise. I find both equally unacceptable.

19. The unacceptable consequences foreshadowed by Deane J may arise if the categories of presently recognised duties were to be too narrowly drawn. This idea was implicitly recognised by McHugh J in Hill v Van Erp (1996-1997) 188 CLR 159 at 213 when he said:

If the rule of law is to have any meaning, if judicial decisions are to be based on more than a judge's sense of justice, like cases must be decided alike in accordance with the principle that transcends the immediate facts of the case .

20. Whether or not their common thread was the idea of proximity, the law has recognised relationships which required that some care be taken to prevent foreseeable injury to another. Thus an occupier of land owes a duty to a lawful entrant (Zaluzna), a surgeon to a patient (Pippin v Shepherd (1982) 147 ER 512). An architect owes a duty to a person lawfully upon a structure he designed (Voli v Inglewood Shire Council (1963) 110 CLR 74) and a solicitor owes a duty to a putative beneficiary (Hill v Van Erp).

21. One such relationship in which a duty to exercise some care arises was described by Brennan J in Sutherland Shire Council v Hayman (1984-1985) 157 CLR 424 at 479 as follows:

Where a person . . . does something which creates or increases the risk of injury to another, he brings himself into such a relationship with the other that he is bound to do what is reasonable to prevent the occurrence of that injury . . .

22. His Honour restated the nature of such a relationship in Stevens v Brodribb (1985-1986) 160 CLR 16 at 47:

An entrepreneur who organises an activity involving a risk of injury to those engaged in it is under a duty to use reasonable care in organising the activity to avoid or minimise the risk . . . the entrepreneur's duty arises simply because he is creating the risk.

23. The general nature of such a duty was confirmed by Ipp J in Rockdale Beef Pty Limited v Carey [2003] NSWCA 132, where he said at par 84:

In my opinion, nothing said by Mason or Brennan J in Stevens . . . prevents the general law of negligence imposing on an entrepreneur a duty of care owed to an independent contractor. Such a duty may arise in circumstances where there is no need for the entrepreneur to give directions as to when and where the work is to be done and to co-ordinate the various activities, but where, for other reasons, reasonable care on the part of the entrepreneur affects the way in which the work is to be undertaken and the safety of the work site, and where other considerations (not applicable in Stevens . . .) such as vulnerability, inequality of bargaining power, control and the other manifold factors that the law recognises as being relevant to the existence of a duty of care, are present.

24. The duty of an entrepreneur to take reasonable care for the safety of persons engaged upon his works extends to employees of the subcontractors there engaged (McArdle v Andmac Roofing Company (1967) 1 WLR 356).

25. Recognition of the existence of a relationship in which a duty to be careful for the safety of another arises does not necessarily entitle a plaintiff injured by another's failure to take precautions to succeed. A duty consists of a legal obligation to do or refrain from doing a particular act. The relationship between the parties merely determines whether any duty arises. In an instant case the relationship may require that some precaution be taken but not that precaution the want of which resulted in the plaintiff's injury.

26. In Modbury Triangle Shopping Centre Pty Limited v Anzil (2000 – 2001) 205 CLR 254 at 289 Hayne J said:

But detecting that the parties stood in a relationship where one owed some duty of care to the other by no means exhausts the first in the traditional trilogy of issues in an action for damages for negligence: duty, breach and damage. The relevant question in the present case is not whether an occupier owes some duty of care to an entrant. The question is what is the extent of the duty which the occupier owes.

Because the extent of the duty falls for decision in relation to 'concrete facts arising from real life activities' it will not always be useful to begin by examining the extent of the defendant's duty of care separately from the facts which give rise to the claim. That may be possible, and useful, in a simple case (like a motorist and injured road user) where the duty of care and its content are well established. In other cases, however, it may lead to an insufficiently imprecise formulation of the duty which obscures the issues that require consideration. That lack of precision may lie in formulating the duty too narrowly: for example by asking did the defendant owe a duty of care to fence the part of the cliffs in its reserve from which the plaintiff fell? It may also, as in this case, lie in formulating the duty too broadly: for example by asking did the defendant owe any duty of care to the plaintiff.

In Sutherland Shire Council v Hayman Brennan J pointed out that, 'a postulated duty of care must be stated in reference to the kind of damage that a plaintiff has suffered and in reference to the plaintiff or a class of which the plaintiff is a member'. Ordinarily it may be expected that it will be sufficient to state the duty of care by reference to these two matters: the kind of damage suffered and the class of which the plaintiff is a member.

27. In the present case the plaintiff suffered damage to his lungs caused by the inhalation of silica. This damage, he asserts, resulted from the Water Board’s undertaking works requiring extensive drilling in sandstone. It was this undertaking which created the risk of injury to those engaged in the drilling. The defendant has conceded that the risk to Mr Abramovic of contracting his disease was foreseeable and that by reasonably practicable means the Water Board could have prevented that injury. This concession must be seen in the light of the pleadings in which the plaintiff asserts that his injury could have been prevented by the Water Board requiring of its contractors that they carry out the work using water dampening and effective respirators.

28. In Rockdale Beef v Carey Ipp J said at par 91:

A defendant's control over the conduct that gives rise to the risk, a defendant's knowledge of the risk, and the relative inability of plaintiffs to protect themselves are also important matters in determining whether a duty of care arises.

29. The Water Board in its contractual dealings with the plaintiff's employers had to a sufficient extent the capacity to control the manner in which the work was to be carried out. This is admitted. The injury resulted not remotely but directly from the failure to exercise that control by contractual stipulation to the plaintiff’s employers.

30. The Water Board, a large enterprise which included, to the specialist knowledge of this jurisdiction medical staff, had access to specialised knowledge concerning the latent dangers of inhaling microscopic silica particles. These were dangers not immediately apparent to laymen such as the plaintiff or his employers. Those employers, upon the evidence, worked with tools on the site. I infer that their enterprise was small and the employers were not men of education or sophistication. The dangers of silica are not readily apparent such as dangers created by failure to shore excavation trenches or direct local vehicular traffic. They comprised an "undisclosed and unexpected hazard" (see Sheller JA in Boral Roof Tiles Limited v O'Brien 2 BC 9403385 p7).

31. The Water Board carried out concurrent excavation activities within the metropolitan area using its own employees. Any duty owed to the plaintiff may be seen as co-extensive with that owed to those direct employees. In Stevens v Brodribb Mason J said,

If an entrepreneur engages independent contractors to do work which might as readily be done by employees in circumstances where there is a risk to them of injury arising from the nature of the work and where there is a need for him to give directions as to when and where the work is to be done and to co-ordinate the various activities he has an obligation to prescribe a safe system of work (at 31).

32. The precautions proposed by the plaintiff involved no cost to the Water Board, merely the addition of a contractual term binding his employers. The plaintiff, who was in no position to control the circumstances of his work and ignorant of the dangers, was vulnerable to the consequences of the Water Board failing to take care. The failure on the part of the plaintiff's employers to adopt a safe system of work was, in the words of Lord Reid in Dorset Yacht Company Limited v Home Office [1970] 2 All ER 294, "the very kind of thing" which was likely to happen as a result of the Water Board’s admitted failure to control the works of its contractors.

33. I am satisfied that in all the circumstances of this case the duty of the Water Board extended to ensuring by contractual stipulation that the work upon which the plaintiff was engaged was carried out with water dampening.

34. The defendant relied upon the general rule that “one man is under no duty of controlling another man to prevent him doing damage to a third" per Dixon J, Smith v Leurs (1945) 70 CLR 256 at 262. His Honour in that case however went on to say, that, "There are . . . special relations which are the source of a duty of this nature". The duty articulated in Stevens v Brodribb is one such duty.

35. The defendant also relied upon the authority of Boral Roof Tiles Limited v O'Brien (supra) and State Rail Authority v Gudgeon [2000] NSWCA 165. Care must be taken to ensure that any principle said to emerge from these cases is expressed at the appropriate level of abstraction.

36. Boral Roof Tiles v O'Brien is not authority for the proposition that an entrepreneur owes no duties to the employees of its subcontractors. It is authority for the proposition appearing at p 7 of the Butterworths report in which Sheller JA says:

If a party contracts to perform a service in a particular way I can see no basis upon which the party, with which it contracts, can be held responsible in negligence for injury done to the employees of the first part in performing that service, absent some undisclosed and unexpected hazard.

37. Those observations are not relevant to the present facts. Mick and Pat did not contract to do the work in a particular way. The Water Board, by Sydney Water’s admission, might reasonably have required that they did contract to do the work in a particular way so as to obviate the risk of injury. Further, that case did not involve an insidious undisclosed and unexpected hazard such as the inhalation of silica dust.

38. Similarly SRA v Gudgeon is a case resting on its own facts. Mr Gudgeon, a contract sleeper cutter for SRA, sued for industrial deafness. The Court of Appeal held that the SRA owed him no duty of care. The reasons of Stein JA, with whom Meagher and Handley JJA agreed, include the statement that:

The factors discussed by their Honours in Brodribb, particularly by Mason J are of assistance in examining any particular principal/contractor factual matrix to determine the existence of duty and its content (p 28).

39. One may readily imagine circumstances in which the SRA could owe a duty to a sleeper cutter, such as a duty to co-ordinate the activities of independent sleeper cutters known by the SRA to be working in ignorance of dangerous proximity to each other, or a duty to warn of some undisclosed or unexpected hazard upon the delivery route to the SRA depot if that hazard was known to the SRA. Gudgeon is no more than authority for the proposition that the content of the duty upon the facts of that case did not extend to protecting independent contractors from the injurious effects of industrial noise.

40. I find that the Water Board owed a duty to the plaintiff the content of which extended to requiring of its contractors that they carry out drilling work with water dampening. Such a duty is of limited content. The duty would not extend to such matters as protecting workers from obvious dangers such as trenches caving in for want of shoring or being struck by traffic for want of vehicular control, which matters may reasonably be left to the judgment of competent contractors. I find Sydney Water to be in breach of this duty and liable to the plaintiff.

Mr A Bartley SC instructed by Maurice Blackburn Cashman appeared for the plaintiff

Mr D Miller instructed by Moray and Agnew appeared for 1st and 5th defendants

Mr GM Watson SC instructed by Phillips Fox appeared for the 2nd defendant

Ms W Strathdee instructed by Turks Legal appeared for the 3rd defendant

Mr J Sharpe instructed by Thompson Cooper appeared for the 4th defendant