Bostik Australia Pty Ltd v Liddiard

[2009] NSWCA 167

Appeal Outcome: Special leave dismissed with costs by the High Court, 12 February 2010 s177/2009

New South Wales

Court of Appeal

CITATION:	Bostik Australia Pty Ltd v Liddiard & Anor [2009] NSWCA 167 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	19 and 23 February 2009
JUDGMENT DATE:	26 June 2009
JUDGMENT OF:	Beazley JA at 1; Ipp JA at 113; Basten JA at 128
DECISION:	(1) Allow the appeal and set aside orders (2)-(6) made by Hungerford ADCJ in the District Court on 9 May 2008. (2) In lieu thereof: (a) enter judgment for the second defendant against the plaintiff, and (b) order the plaintiff to pay the second defendant’s costs of the proceedings, other than those attributable to the cross-claims. (3) Order the first respondent (Mr Liddiard) to pay the appellant’s costs of the appeal, other than costs attributable to the question of apportionment as between the appellant and the second respondent. (4) Otherwise make no order as to the costs of the appellant and the second respondent in respect of the appeal. (5) Grant the first respondent a certificate under the Suitors’ Fund Act 1951 (NSW).
CATCHWORDS:	LIMITATION OF ACTIONS – interpretation of the Limitations Act 1969, s 50C and s 50D – date when a cause of action is “discoverable” – whether a person has to know the facts necessary to establish the fault of the defendant or has to know that the defendant is, as a matter of law, liable to pay damages - EVIDENCE – admissibility – evidence given by a manager – whether manager can give evidence of the tasks required to be performed as part of her/his employment - EVIDENCE – admissibility – evidence sought to be adduced from manager as to her/his employer’s legal liability – objection by employer – whether manager’s ostensible authority extends to making an admission as to her/his employer’s legal liability - TORTS – negligence – duty of care – labour hire like arrangement between defendant and employer – whether defendant owes a hired labourer a duty of care – whether defendant breached its duty - TORTS – negligence – duty of care – whether occupier liable for injury to employee of independent contractor – degree of control over or co-ordination of employee's activities – whether existence of obligation to ensure safe system of work - TORTS – negligence – breach of duty – whether any steps required to render system of work safe – whether steps to ensure safety would have ameliorated risk of injury - TORTS – negligence – duty of care – labour hire like arrangement between defendant and employer – breach of respective duties by defendant and employer – apportionment of liability
LEGISLATION CITED:	Civil Liability Act 2002, s 5B Civil Procedure Act 2002, s 98 Limitation Act 1969, s 50C, s 50D Uniform Civil Procedure Rules 2005, r 42.1
CATEGORY:	Principal judgment
CASES CITED:	Baker-Morrison v State of New South Wales [2009] NSWCA 35 Bond Media Ltd v John Fairfax Group Pty Ltd; John Fairfax & Sons Ltd v Rothwells Ltd (1988) 16 NSWLR 82 Caven v The Women’s and Children’s Health [2007] VSC 7 Country Waste Systems Pty Ltd v Wright [2007] NSWDC 287 Dark v The Country Fire Authority (County Court of Victoria, Stott CCJ, 21 June 2005, unreported); Electric Power Transmission Pty Ltd v Cuiuli [1961] HCA 3; (1961) 104 CLR 177 Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 Ilardi v Forster [2006] VCC 793 J Blackwood & Son Steel & Metals Pty Ltd v Nichols [2007] NSWCA 157 Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552 Liftronic Pty Limited v Unver [2001] HCA 24; (2001) 179 ALR 321 National Transport Insurance Ltd v Chalker [2005] NSWCCA 62 Rockdale Beef Pty Limited v Carey [2003] NSWCA 132 Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALR 529 Spandideas v Vellar [2008] VSC 198 Stevens v Brodribb Sawmilling Company Pty Ltd [1986] HCA 1; (1986) 160 CLR 16 Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234 TNT Australia Pty Limited v Christie [2003] NSWCA 47; (2003) 65 NSWLR 1 Tolhurst v Cleary Bros (Bombo) Pty Ltd [2008] NSWCA 181 Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 Vinidex v Theiss [2000] NSWCA 67 Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40
PARTIES:	Bostik Australia Pty Ltd (Appellant) Warren Edward Liddiard (First Respondent) Brolton Industries Pty Ltd (Second Respondent)
FILE NUMBER(S):	CA 40173/08
COUNSEL:	J Sexton SC (Applicant) S Campbell SC; P Menary (First Respondent) A Katzmann SC; D Hooke (Second Respondent)
SOLICITORS:	Lee & Lyons (Appellant) W G McNally Jones Staff (First Respondent) Edwards Michael Lawyers (Second Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2466/2007
LOWER COURT JUDICIAL OFFICER:	Hungerford ADCJ
LOWER COURT DATE OF DECISION:	9 May 2008

- 21 -

CA 40173/08

BEAZLEY JA
IPP JA
BASTEN JA

26 June 2009

Bostik Australia Pty Limited v Warren Liddiard & Anor

Headnote

The first respondent, Warren Liddiard, was injured on premises owned and occupied by the appellant, Bostik Australia Pty Limited (Bostik). Bostik carried on a packaging business in a factory on the site and Mr Liddiard’s employer, Brolton Industries Pty Limited (Brolton) operated an engineering business in part of the factory. Brolton supplied labour to Bostik and used Bostik’s equipment, as and when it needed. There was no written agreement between Bostik and Brolton in respect of these arrangements and Mr Liddiard was unaware of such arrangements. At the time of his injury, Mr Liddiard’s services were being provided to Bostik from Brolton.

Employees of both Bostik and Brolton used a small open shed on the site during meal and other work breaks. A number of drums, each with a capacity of 44 gallons (200 litres), were placed in the shed for use as rubbish bins. The rubbish bins were changed over twice a week and were emptied into an industrial skip bin at the rear of the site. Mr Liddiard was injured when he lifted one of the rubbish bins. He had been carrying out the this task approximately twice a week over the previous six to eight months and had not previously encountered a rubbish bin of any substantial weight. Mr Liddiard had never received any instruction as to how to perform this or any associated or allied task.

Mr Liddiard sued Brolton and Bostik, claiming each had breached a duty of care owed to him. The trial judge, Hungerford ADCJ, found both Brolton and Bostik liable in negligence to Mr Liddiard and apportioned responsibility for the injury as to 40 per cent to Brolton and 60 per cent to Bostik.

Bostik appealed against the finding that it was liable in negligence and against the apportionment of liability should it be found to be liable to Mr Liddiard. It also contended that in any event, Mr Liddiard’s claim was statute barred.

Held:

Was Mr Liddiard’s claim statute barred?

(1) It is not sufficient for the purposes of the Limitation Act 1969, s 50D(1)(b) that a person merely knows the facts necessary to establish the fault of the defendant. The person must also know that the defendant is, as a matter of law, liable to pay damages: [38]-[49].

Dark v The Country Fire Authority (County Court of Victoria, Stott CCJ, 21 June 2005, unreported);

Ilardi v Forster

[2006] VCC 793 (considered)

Caven v The Women’s and Children’s Health

[2007] VSC 7 (considered)

Country Waste Systems Pty Ltd v Wright

[2007] NSWDC 287 (considered)

Spandideas v Vellar

[2008] VSC 198 (distinguished)

Baker-Morrison v State of New South Wales

[2009] NSWCA 35 (applied)

(2) Even if the trial judge was wrong in finding that the relevant date for the purposes of the Limitation Act 1969, s 50D(1)(b) was 31 October 2006 (when Mr Liddiard’s solicitor received correspondence from Brolton’s solicitors in respect of Bostik), then the earliest the cause of action was otherwise discoverable was sometime after November 2004, when the operative treatment did not provide the relief that Dr Seex anticipated: [22]-[56].

Baker-Morrison v State of New South Wales [2009] NSWCA 35 (applied)

Did his Honour err in admitting, over objection, certain evidence?

Per Beazley JA (Ipp and Basten JJA agreeing):

(3) A person is able to give evidence of the tasks required to be performed as part of her/his employment. The fact that the person giving the evidence is in a management role does not make questions about the tasks required to be performed inadmissible: [59]-[61]

(4) A manager’s ostensible authority does not extend to making an admission as to her/his employer’s legal liability, at least once objection is taken to the evidence by the employer. The principle does not, however, detract from the ability (and the requirement if called as a witness) for such a witness to give evidence of facts of which she/he has personal knowledge: [63]-[64].

Bond Media Ltd v John Fairfax Group

Pty Ltd; John Fairfax & Sons Ltd v

Rothwells Ltd

(1988) 16 NSWLR 82 (considered)

(5) A manager is not able to give an opinion in evidence of her/his employer’s legal obligations in relation to safety matters: [68]-[74].

Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 (considered)

Did Bostik owe a duty of care to Mr Liddiard?

Per Beazley JA:

(6) Bostik owed Mr Liddiard a duty of care that was akin to the duty owed to an employee. Mr Liddiard, although employed by Brolton, was undertaking work as a general hand for Bostik; Bostik paid Brolton for those services; Bostik was the principal occupier of the premises and had the overall control of the activities that were engaged in on the premises; Bostik was aware of the method of rubbish removal from the shed; Bostik permitted its empty drums to be used as rubbish bins and Bostik’s site manager accepted that it was part of his responsibilities to ensure that proper safety measures were in place, including in relation to the removal of rubbish bins from the shed: [89]-[91].

J Blackwood & Son Steel & Metals Pty Ltd v Nichols [2007] NSWCA

157 (considered)

[2003] NSWCA 47; (2003) 65

NSWLR 1 (considered)

[1986] HCA 1; (1986)

160 CLR 16 (considered)

National Transport Insurance Ltd v Chalker [2005] NSWCCA 62 (considered)

[2003] NSWCA 132 (considered)

[2002] NSWCA 204 (considered)

Electric Power Transmission Pty Ltd v Cuiuli [1961] HCA 3; (1961) 104 CLR 177 (considered)
Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234 (considered)

[2008] NSWCA 181 (considered)

Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 (applied)

(7) In determining the existence of a duty of care, it is necessary to identify its scope by reference to the circumstances in which the injury occurred: [136].

Sutherland Shire Council v Heyman [1985] HCA 41; 157 CLR 424; Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29; 217 CLR 469; Electric Power Transmission Pty Ltd v Cuiuli [1961] HCA 3; 104 CLR 177 (referred to)

(8) Whether an occupier of premises owes a duty of care to an employee of an independent contractor depends to a significant extent upon the relationship between the occupier and the contractor: [147].

Stevens v Brodribb Sawmilling Company Pty Ltd [1986] HCA 1; 160 CLR 16; Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd [1986] HCA 34; 160 CLR 626; McDonald v The Commonwealth (1946) 46 SR(NSW) 129; Mersey Docks and Harbour Board v Coggins & Griffith (Liverpool) Ltd [1947] AC 1 (referred to)

(9) Neither the legal arrangement nor the practical circumstances in which the work was undertaken imposed a duty on the appellant with respect to taking steps to ensure a safe system of work for the plaintiff as an employee of an independent contractor: [150].

Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19; 221 CLR 234; TNT Australia Pty Ltd v Christie [2003] NSWCA 47; 65 NSWLR 1; J Blackwood & Son Steel & Metals Pty Ltd v Nichols [2007] NSWCA 157 (distinguished)

(10) In the absence of any finding by the trial judge as to the specific cause of the injury, what was required with respect to a safe system of work, or whether such a system of work would have ameliorated the risk of injury, there was no basis for a conclusion that the appellant was in breach, if it were accepted that a duty existed: [28], [30]-[159].

Per Ipp JA:

(11) The appellant’s control over the site must be regarded as theoretical rather than actual, and insignificant. Nothing it did involved an assumption of employer-like responsibilities consistent with its control and direction of the respondent in the work place: [119]-[121].

If Bostik did owe Mr Liddiard a duty of care, did it breach that duty?

(12) Bostik breached its duty of care because it was not a sufficient response to its duty of care to leave any response to the admitted unsafe system of work to Brolton. This is because the premises were Bostik’s premises; it was the major occupier of the premises, the shed was an amenity provided by Bostik for use by those who worked on the premises; it assumed general responsibility for the maintenance and clearing up of the premises including the shed: it engaged Mr Liddiard’s services as a general hand to undertake the maintenance and clearing up tasks; and it provided Mr Liddiard with the equipment to do so: [97]

Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 (considered)

Per Ipp JA:

(13) Although the risk of injury to the respondent was foreseeable it does not follow that a reasonable response to the risk would require a change in the kind of bins that were in use. There were common sense ways of guarding against the risk of harm that would have been obvious to any person undertaking the task which the respondent was instructed to perform: [124]-[125].

Did his Honour err in his apportionment of liability as between Bostik and Brolton?

(14) There was not any appellable error in his Honour’s assessment of the respective contributions for which Bostik and Brolton were liable as between themselves: [100]-[110]

Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALR 529 (applied)

[2000] NSWCA 67 (considered)

Liftronic Pty Limited v Unver [2001] HCA 24; (2001) 179 ALR 321 (considered)
Joslyn v Berryman (2003) 214 CLR 552; [2003] HCA 34 (considered)

CA 40173/08

BEAZLEY JA
IPP JA
BASTEN JA

26 June 2009

Bostik Australia Pty Limited v Warren Liddiard & Anor

Judgment

1 BEAZLEY JA : The first respondent, Warren Liddiard, was injured on 30 January 2003, when, without mechanical or any other form of assistance, he lifted a 44 gallon (200 litre) drum that was used as a rubbish bin. The drum was much heavier than Mr Liddiard had anticipated. He had been carrying out the same operation approximately twice a week over the previous six to eight months and had not previously encountered a drum of any substantial weight. 2 The accident occurred on premises at Blacktown that were owned and occupied by the appellant, Bostik Australia Pty Limited (Bostik). Bostik carried on a packaging business in a factory on the site. Mr Liddiard’s employer, Brolton Industries Pty Limited (Brolton) operated an engineering business in a small section of the factory. Mr Liddiard sued both Brolton and Bostik, claiming each had breached a duty of care owed to him. 3 The trial judge, Hungerford ADCJ, held that both defendants were liable in negligence to Mr Liddiard. His Honour apportioned responsibility for the injury as to 40 per cent to Brolton and 60 per cent to Bostik. 4 Bostik appealed against the finding that it was liable in negligence to Mr Liddiard. Bostik also appealed against the trial judge’s apportionment of liability and contended that if it is liable to Mr Liddiard, then its proportion of liability should be 10 per cent or, at most, 20 per cent. Bostik acknowledged that the system of work in which Mr Liddiard performed his duties was defective. However, it contended that it did not owe a relevant duty of care to Mr Liddiard, or if it owed such a duty, it did not breach its duty of care. 5 Before turning to the issues on the appeal, it is convenient to consider the relationship between Bostik, Brolton and Mr Liddiard.

Relationship of Bostik, Brolton and Mr Liddiard

6 Bostik carried on a business of packaging industrial sealants and similar products at the site. The site itself was large, with a street frontage of 300 m and a depth of 270 m. The sealant raw material for Bostik’s packaging business arrived on-site in 44 gallon drums. When the drums were emptied, they were recycled. At any one time, there were a large number of these drums on site which would be moved around by means of forklift trucks that were either owned or hired by Bostik. Some of the recycled drums were used on site as rubbish bins. 7 Mr Liddiard was employed by Brolton as a labourer. Brolton occupied an area of about 20 m by 12 m of the main factory building on the site, where it carried on a maintenance engineering business. It also had access to the yard area and used Bostik’s equipment, including Bostik’s forklifts, as and when it needed to do so. There was no formal arrangement between Bostik and Brolton in respect of the use of the forklifts. 8 Behind the main factory building was a small open shed, generally referred to as the “ smoko shed ”. The shed contained tables and chairs and was used by employees of both Bostik and Brolton during meal and other work breaks. A couple of the drums were placed in the shed for use as rubbish bins. The rubbish bins were changed over twice a week, and the drums being used as rubbish bins were emptied into an industrial skip bin at the rear of the site. It was one of these drums that Mr Liddiard picked up at the time of his injury. 9 Prior to Bostik taking over ownership of the site, it had been solely occupied by Dow Corning Australia Pty Limited (Dow Corning), which manufactured and packaged industrial adhesives on the site. Dow Corning vacated the premises in about 1998, at which time Bostik commenced manufacturing activities on the site. Mr Lynch, the principal of Brolton, had worked for Dow Corning. When Dow Corning ceased its operations on the site, Mr Lynch stopped working for Dow Corning and commenced his own maintenance engineering business. Bostik became his most important customer, and as a result of that relationship, he entered into an arrangement with Bostik to occupy portion of the premises. Brolton was incorporated in about 2000. 10 In addition to carrying on its own manufacturing business on the site, Brolton also supplied labour to Bostik. Brolton classified this supply of labour into two categories: production and non-production. The difference in the two categories lay both in the type of work performed by its employees and the rate charged for the services so provided. Production labour did packing and factory work for Bostik. Non-production labour carried out general workshop cleaning, site cleaning and waste disposal. 11 There was no written agreement between Bostik and Brolton in respect of these arrangements. However, Brolton’s invoicing for the supply of the service of its employees as non-production labour was not included in the invoicing of the supply of production labour, which was invoiced as an independent item at a specified rate. Non-production labour was invoiced as part of the supply of services to Bostik. 12 Mr Liddiard’s services were provided to Bostik to undertake non-production labour. So far as Mr Liddiard was concerned, he was employed by Brolton and Mr Lynch was “ his boss ”. He was unaware of the terms of the arrangements between Brolton and Bostik. He was aware that there was a distinction between ‘production’ and ‘non-production’ labour, but he did not appear to have any knowledge or understanding of that insofar as that was relevant to the arrangements as between Brolton and Bostik. He simply knew that ‘non-production’ labour meant not working on the silicone lines, and could involve work inside or outside the factory. Mr Liddiard was aware that Mr Pearce was Bostik’s manager on the site. He said he never spoke to Mr Pearce about the work he was doing. He knew that Mr Pearce had an office “ at the front ” and said that Mr Pearce would sometimes be seen walking through the factory. 13 Mr Lynch gave evidence that at some time after Mr Liddiard had commenced his employment with Brolton, Bostik had wanted someone to do the same tasks as he had been performing for Brolton on the site. Mr Lynch described the services that Bostik wanted as being those of a general hand. Mr Lynch said that he provided Mr Liddiard’s services to Bostik about six months before his accident. 14 The smoko shed was built and used by employees when the site was occupied by Dow Corning. Mr Lynch said that when Dow Corning was on site, the drums were used as rubbish bins for the smoko shed and were collected by Dow Corning employees. When Bostik commenced its business on the site the arrangements for the use of the drums as rubbish bins and for their removal from the smoko shed remained unchanged. In about 2000, one of Brolton’s employees commenced performing this task. The drums used for rubbish were collected from the smoko shed. The drums usually had to be moved manually out of the shed for collection, as most of the forklifts were too large to travel into the smoko shed to perform this task. 15 Mr Pearce became Bostik’s site manager at the Blacktown premises in September 2002. He had been working at the site since 2001, originally in the capacity of an industrial chemist. In his examination-in-chief, Mr Pearce was asked what his understanding was of Brolton’s connection with Bostik. He said:

“They provided labour hire [and] various contracts for cleaning, site services shutdown from garden maintenance. Basically, general site outdoor cleaning as well.”
16 Mr Pearce acknowledged that there was no formal written contract relating to the services Brolton provided, although he knew that Bostik paid a labour hire fee to Brolton. Mr Pearce said that although as site manager he did not look after the training of Brolton employees, there was a “ buddy system ” for training employees, including the training of Brolton employees who had been allocated to Bostik tasks. This evidence appeared to relate to the production staff that Bostik hired from Brolton. However, Mr Pearce also said that, as site manager, he had responsibility for systems of safety in the workplace, including matters of waste removal. This extended to the system of rubbish removal from the smoko shed. He knew that 44 gallon drums were used in the shed as waste receptacles. 17 Mr Pearce was familiar with the work Mr Liddiard performed on site. 18 In cross-examination by counsel for Mr Liddiard, Mr Pearce acknowledged that it was his view that he had a responsibility in general terms to look after employees who were hired by Bostik from Brolton, including, in appropriate circumstances, to provide training and instruction to those employees. He acknowledged that this was particularly so in relation to workers on the production line. 19 He accepted that he also had to consider the safety aspects of the employment in relation to non-production work that was performed by Brolton employees who performed duties for Bostik. He acknowledged that such safety aspects included training and instruction in relation to bending and lifting heavy items. He also acknowledged that if he saw an employee acting in an unsafe manner, then he, or one of Bostik’s supervisors, would correct their mode of work or instruct them to work in a safe manner.

Issues on the appeal

20 Bostik raised the following issues on the appeal:


1. Whether Bostik owed a duty of care to Mr Liddiard in circumstances where he was not an employee of Bostik;

2. If it did owe a duty of care, whether it breached that duty;

3. Whether his Honour erred in admitting, over objection, certain evidence of Mr Pearce;

4. Whether Mr Liddiard’s claim was, in any event, statute barred; and

5. Whether his Honour erred in his apportionment of liability as between Bostik and Brolton.

21 I propose to deal with the limitation point first. It will then be convenient to deal with the evidence point, because Mr Pearce’s evidence in respect of Bostik’s responsibility for the system of work is relevant to the questions of duty of care and breach.

Ground 4: the limitation issue

22 The Limitation Act 1969, s 50C(1)(a) provides that an action for personal injury must be commenced within three years from “ the date on which the cause of action is discoverable by the plaintiff ”. 23 Mr Liddiard was injured on 30 January 2003. His statement of claim was filed on 13 June 2007. Accordingly, the relevant date for considering when the cause of action was “ discoverable ” by Mr Liddiard is 13 June 2004. If the cause of action was discoverable before that date, the claim against Bostik was statute barred. 24 The Limitation Act , s 50D specifies when an action is “ discoverable ” for the purposes of s 50C. The terms of the section are as follows:

“ 50D Date cause of action is discoverable

(1) For the purposes of this Division, a cause of action is discoverable by a person on the first date that the person knows or ought to know of each of the following facts:

(a) the fact that the injury or death concerned has occurred,
(b) the fact that the injury or death was caused by the fault of the defendant,
(c) in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action.


(2) A person ought to know of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact.

(3) In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person.

(4) To remove doubt, a compensation to relatives action is not discoverable before the date of death of the deceased.”
25 Bostik contended the relevant date for the purposes of s 50D(1)(a) was 30 January 2003, that is, the date of the workplace injury. Clearly there was no dispute as to this. 26 It then contended that, for the purposes of s 50D(1)(b), Mr Liddiard knew, or ought to have known, that his injury was caused by Bostik prior to 1 June 2004. Bostik relied on a number of matters in support of this submission that I deal with in more detail below. 27 So far as s 50D(1)(c) is concerned, Bostik contended Mr Liddiard knew, or ought to have known, that the injury was sufficiently serious to justify the bringing of an action on the date he sustained the injury, that is 30 January 2003, or at the latest, on 26 September 2003, when Dr Fong certified that Mr Liddiard was unfit for any duties. That this was the relevant date was reinforced, on Bostik’s submission, by the fact that from that date, Mr Liddiard contended he never got any better. Bostik expressed each proposition in relation to s 50D(1)(c) in these terms:
“… if [Mr Liddiard’s] injury is now, as the primary judge found, more than 15% of a most extreme case then it must also have been more than 15% of a most extreme case before 1 June 2004 [and no later than 26 September 2003].”
28 As I have said, there was no issue, either at trial or on appeal, that the relevant date for the purposes of s 50D(1)(a) was the date of injury. The dispute between the parties was whether Mr Liddiard knew, or ought to have known, either of the matters specified in subss 50D(1)(b) or (c) prior to 1 June 2004.

The trial judge’s findings in respect of s 50D(1)(b)

29 Mr Liddiard had made a statement to Brolton’s workers compensation insurer, dated 18 March 2004. Mr Lynch had also made a statement to Brolton’s workers compensation insurer, dated 23 March 2004. There was no suggestion that Mr Liddiard was aware that Mr Lynch had made a statement to the insurer. 30 The trial judge observed that in Mr Liddiard’s 18 March 2004 statement, no mention was made of Bostik, other than that Mr Liddiard had worked for Brolton at the Blacktown site, carrying out duties on machines making silicone for Bostik. It should be made clear that in his statement, Mr Liddiard recorded he worked “ at the factory site in Powers Road Blacktown ” and that at first his duties “ were to work on machines making silicone for Bostik ” and that “ [t]hen they had me emptying 44-gallon drums of rubbish ”. “ They ” was clearly a reference to Brolton. The statement did not mention that Bostik also occupied and carried on business at the premises, or that he was working on Bostik’s machines. The reference to “ making silicone for Bostik ” could logically and reasonably have been understood by a person uninformed of the full facts that Bostik was merely a customer of Brolton. His Honour also noted that the statement recorded that when he was injured, he reported to his “ boss ”, that is, Mr Lynch. 31 In Mr Lynch’s 23 March 2004 statement, there was specific reference to Bostik’s business activities at the Blacktown site. Mr Lynch specified that Brolton leased factory space from Bostik. He described the work Mr Liddiard did as being “ on a labour hire basis for Bostik ”. The statement included a reference to the terms of the oral agreement between Brolton and Bostik in relation to the occupation of the site and the arrangements for work to be performed. There was also a reference to the use of forklift trucks and a system for emptying rubbish from the 44 gallon drums used as rubbish bins in the smoko shed. 32 Mr Liddiard provided a copy of his 18 March 2004 statement to his solicitor, whom he first retained on 13 December 2004. The solicitor prepared a statement in which reference is made to Mr Liddiard’s 18 March 2004 statement. However, there was no specific reference to Bostik in the statement prepared by the solicitor. On 13 October 2006, Mr Liddiard made a further statement to his solicitor, in which he updated his medical condition. Again, there was no reference to Bostik. 33 On 3 November 2006, Mr Liddiard’s solicitor received a letter, dated 31 October 2006, from Brolton’s solicitors, enquiring whether Mr Liddiard had commenced, or was contemplating, common law proceedings against Bostik in relation to the injury of 30 January 2003 and attaching Mr Liddiard’s 18 March 2004 statement and Mr Lynch’s 23 March 2004 statement. That was the first occasion that Mr Lynch’s statement came to the attention of Mr Liddiard’s solicitors. 34 The trial judge found that it was a “ persistent and continuing feature ” of Mr Liddiard’s evidence that his “ boss ” was Mr Lynch of Brolton, that he answered to Mr Lynch and that it was Mr Lynch who told him what jobs he had to do on the site. His Honour observed, at [54], that the absence of any mention in Mr Liddiard’s evidence of:
“… the nature of the relationship with and the role of Bostik, in relation to his work, other than that it occupied the site, was a noticeable and significant omission …”
35 His Honour was satisfied that, so far as Mr Liddiard was concerned, Bostik’s occupation of the site had no relevance. Mr Liddiard simply understood that he performed work for Brolton, as his employer. His Honour found that Mr Liddiard had “ no knowledge of the work arrangements as between Brolton and Bostik ”. 36 After a consideration of the then-existing caselaw, his Honour found, at [64], that for the purposes of s 50D(1)(b):
“… knowledge of the cause of an injury by the fault of another necessarily means awareness of a causal nexus between them and where the conduct of the other gives rise to legal obligations, that it, where the fault may reasonably be seen as so culpable as would justify further enquiry as a preliminary to legal proceedings.”
37 His Honour said, at [65], that on the facts as he had found them and from Mr Liddiard’s statements of 18 March 2004, 13 December 2004 and 13 October 2006, Mr Liddiard “ had no sufficient awareness of the role of Bostik in the system of work he followed when injured ”. His Honour found that the opportunity to know or have any awareness of Bostik’s role did not occur until 3 November 2006, when Mr Trainor received the letter dated 31 October 2006 from Bostik’s solicitor, which attached Mr Lynch’s statement of 23 March 2004. His Honour concluded, that up until 3 November 2006, Mr Liddiard:
“… understood his work was for and at the direction solely of Mr Lynch as his employer and he had no knowledge of the arrangements which were later shown to exist between Bostik and Brolton.”

The limitations caselaw

38 At the time the trial judge gave judgment, there was no decision of this Court as to the proper construction of s 50D(1)(b). There were, however, at least two decisions of the County Court of Victoria: Dark v The Country Fire Authority (Stott CCJ, 21 June 2005, unreported); Ilardi v Forster [2006] VCC 793; and one decision of the Supreme Court of Victoria: Caven v The Women’s and Children’s Health [2007] VSC 7; as well as a decision of Neilson DCJ in the New South Wales District Court in Country Waste Systems Pty Ltd v Wright [2007] NSWDC 287. Since then, there has been a decision of the Victorian Supreme Court: Spandideas v Vellar [2008] VSC 198 and the decision of this Court: Baker-Morrison v State of New South Wales [2009] NSWCA 35. In Baker-Morrison , this Court declined to follow Spandideas v Vellar. 39 The essential difference in the approach taken in these cases was whether, upon its proper construction, “ any element of legal knowledge ” was a component of the matters of which a person was to have either actual or constructive knowledge for the purposes of determining when a cause of action was discoverable. 40 In Baker-Morrison Basten JA (Ipp and Macfarlan JJA agreeing) observed, at [25], that for the purposes of s 50C, a cause of action was discoverable if the person had knowledge or constructive knowledge of certain facts: s 50D. His Honour commented, at [26], that those matters (that is, the concept of knowledge and each of the identified “ facts ”) were interrelated. That was so, because, as his Honour pointed out:
“… if the facts are properly within the understanding and evaluation of a non-professional, the nature of the person’s knowledge will be different from that which incorporates information or opinion supplied by a professional, on the basis of the exercise of professional expertise”.
41 In Baker-Morrison the relevant “ fact ” for the purposes of s 50D(1)(a) was a physical wound that was readily observable by the infant plaintiff’s mother. Likewise, in the present case, the injury was readily apparent on the day of the accident, and hence there is no dispute that Mr Liddiard had knowledge of that fact on that day. 42 Basten JA then turned to a consideration of s 50D(1)(b) and s 50D(1)(c), first observing, at [27], that, in some circumstances, the relevant fact for the purposes of paras (b) and (c) was of a different quality to the relevant fact for the purposes of para (a). Insofar as s 50D(1)(b) is concerned, his Honour said, at [28]:
“In par (b), the word ‘fault’ is no doubt capable of having a broad generic meaning, not necessarily confined to that which engages legal liability. The context, on the other hand, gives it a different connotation. That which is identified as ‘discoverable’ for the purposes of s 50C is “the cause of action”. The ‘fact’ contemplated by par (b) is a relationship between two things, namely the injury or death on the one hand and the fault of the defendant on the other. The relevant connection is one of causation.”
43 His Honour, at [39], rejected, however, that it was necessary for a person to be able to articulate a cause of action for the purposes of par (b). Rather, “ it was the key factors necessary to establish legal liability that had to be known ”. In Baker-Morrison , his Honour held that until the plaintiff’s mother was aware, or ought to have been aware, that there was an available and reasonably practicable means of rendering safe the sliding door that had caused the plaintiff’s injury, she could not be said to be aware that the plaintiff’s injury was caused by a failure on the part of the State to take reasonable care for her safety. His Honour said that “ these are the terms in which the relevant test under s 50D(1)(b) should be formulated ”. 44 In this case, no argument was advanced on the basis of constructive knowledge. Rather, Bostik’s argument was that it was sufficient for the purposes of s 50D(1)(b) that a person know the facts necessary to establish the fault of the defendant and not that the defendant is, as a matter of law, liable to pay damages. Bostik relied, inter alia, upon Spandideas v Vellar . As I have already said, that decision was not followed by this Court in Baker-Morrison. 45 Bostik relied upon the following matters to establish that for the purposes of s 50D(1)(b), Mr Liddiard knew or ought to have known that his injury was caused by Bostik prior to 1 June 2004:
“… [he knew] the distinction between the appellant’s premises and the second respondent’s premises; he knew, notwithstanding that he did not know the terms of the arrangements between the second respondent and the appellant, that, although he was employed by the second respondent, his labour was being used partly for the benefit of the appellant’s business; he knew that the 44 gallon drum in question [was] located on the appellant’s part of the premises; he knew that the 44 gallon drums came from the appellant’s discards; he know that the forklifts were owned by the appellant; he knew that the smoko shed was used by both the appellant’s and the second respondent’s employees and that the rubbish came from both.”
46 The evidence on these matters was as follows. Mr Liddiard knew that Mr Pearce was Bostik’s manager at the Blacktown site. He had never spoken to him about the work he was doing. He knew that the drums were brought on site containing Bostik product. He had never seen Mr Pearce have anything do to with the work of the forklifts and he thought that the forklifts were owned by Brolton. He knew that he was working on Bostik’s premises when the accident occurred and that the smoko shed was used by both Bostik and Brolton employees. He said he would ask Mr Lynch if he thought he needed help with his work. 47 Mr Liddiard understood there was a distinction between production and non-production labour, in the sense that he presumed that “ non production was not working on the silicone lines ”. He was asked about moving from working on the production line to doing the work he was doing when he was injured on 30 January. Importantly, the following cross-examination occurred:

“Q. You have told us that that included collecting 200 litre or 44 gallon drums with rubbish in them?
A. While I was working for Brolton … or for Bostik?

Q. While you were working for Brolton.
A. Yes.

Q. And you started doing that job, that is, collecting waste from 44-gallon drums after you stopped working for Bostik on the production line.
A. Yes, that’s correct.

Q. And you told us yesterday that part of the job involving waste material in 44-gallon drums was to use an item of equipment on the front of a forklift and to lift the drums up into a much larger skip, is that right?
A. Yes, that’s right.”
48 In my opinion, it is not correct to assert that it was likely that Mr Liddiard knew the work he was doing was partly for the benefit of Bostik. He understood his employment was with Brolton. Indeed, in these questions, Bostik identified this aspect of Mr Liddiard’s employment as being referable to Brolton’s area of responsibility. Those questions undoubtedly had a tactical basis, with Bostik seeking to sheet responsibility for Mr Liddiard’s injury home to Brolton. Nonetheless, the evidence elicited in response demonstrates the unlikelihood that Mr Liddiard would have had any understanding for whose benefit the work was intended. His Honour’s factual findings and, in particular, his finding that Mr Liddiard simply understood that he worked for Brolton and saw no relevance in Bostik’s role in the work he performed, were well-based. 49 It follows that the trial judge was correct in concluding that Mr Liddiard did not know the fact that the injury was caused by the fault of Bostik until after his solicitor had received a copy of Mr Lynch’s 23 March statement, as he did not know of the relationship between Bostik and Brolton. It follows that Mr Liddiard’s cause of action was not discoverable until November 2006. Accordingly, his action was commenced within the limitation period prescribed by s 50D.

Section 50D(1)(c)

50 Having concluded that Mr Liddiard did not have the relevant knowledge for the purposes of s 50D(1)(b) until at least 3 November 2006, it was not necessary for the trial judge to decide the relevant date for the purposes of para (c). Nonetheless, as the matter had been argued before him, his Honour went on to determine that question. Likewise, the matter has been fully argued before this Court and it is appropriate to make reference to it. The issue can, however, be dealt with briefly. In Baker-Morrison Basten JA explained, at [41], that for the purposes of s 50D(1)(c):
“… the injury must not only be understood to be serious, but ‘sufficiently serious to justify’ a course of action. Further, that course is ‘the bringing of an action on the cause of action’, an objective which would appear to require the exercise of both legal and medical expertise.”
51 In this case, Mr Liddiard was originally diagnosed as having strained his right biceps and he was certified fit for his pre-injury employment duties within three weeks of the date of the accident, having already returned to work on light duties. Mr Liddiard was seen by Dr Newcombe, neurosurgeon and spinal surgeon, for the purposes of a medicolegal opinion requested by Brolton’s workers compensation insurer. Dr Newcombe raised the question whether there was some pathology in Mr Liddiard’s neck. Following X-rays and an MRI, Dr Newcombe reported on 4 June 2003 that:

“… the injury of 30 ^th January, 2003 should be described as aggravation of cervical spondylosis which was previously not causing significant symptoms and causing, after injury, cervical radiculopathy with sensory and motor changes.”
52 Mr Liddiard was made redundant on 30 May 2003. In September 2003, he aggravated his injury when lifting a sandstone block on Mr Lynch’s property. He came under the care of Dr Seex in February 2004. In a report dated 13 February 2004, Dr Seex considered that there was evidence of C6/C7 radiculopathy and recommended decompression surgery. Dr Seex was of the opinion that this surgery provided a good chance of alleviating Mr Liddiard’s arm pain and would also “ give the best chance of his arm recovering strength ”. Dr Seex’ opinion was supported by Dr Matheson, neurosurgeon, who provided a report dated 22 June 2004 to Brolton’s workers compensation insurer. He stated that surgery would be likely to produce substantial improvement in Mr Liddiard’s condition. He so advised Mr Liddiard. 53 The first operation was delayed from the time it was first recommended because he was required to lose weight before he could undergo surgery. In this regard, as at 1 June 2004, Mr Liddiard was 107 kg and he needed to reduce his weight to 95 kg before surgery could be undertaken. In the meantime, Mr Liddiard continued to have right arm pain and numbness in the C6 dermatone. When Dr Seex reviewed him on 5 November 2004, he considered that the operative procedure should be undertaken. Mr Liddiard underwent operative treatment on 17 November 2004. The first operation was not successful and Mr Liddiard required a second operation which was performed on 28 November 2005. The second operation was also unsuccessful. 54 Mr Liddiard was cross-examined to the effect that the incident involving the lifting of the sandstone block was a fresh injury and it was that injury which was the cause of his ongoing problems. Mr Liddiard denied that was so and said he did not know the full extent of his injury until a long time afterwards (that is, a long time after September 2003). Mr Liddiard also said it did not occur to him to obtain legal advice until after the first operation, when a friend suggested he do so. Mr Liddiard contended that he did not know the injury was sufficiently serious to justify the bringing of an action until after the first operation and therefore until after 1 June 2004, being the relevant date for the purposes of s 50D. Mr Liddiard relied upon the evidence to which I have just referred and in addition, to the advice that there was likely to be a good result from the operation. 55 The trial judge held that the relevant date for the purposes of s 50D(1)(c) was 17 November 2004, that is, the date of the first operation which proved unsuccessful. In my opinion, that finding was correct. Mr Liddiard’s injury was first diagnosed as relatively minor, involving a tear to the right biceps. Such an injury was likely to resolve or substantially resolve. It would not, in the normal course, be sufficiently serious to justify the bringing of proceedings. Although the problem had become sufficiently serious by February 2004 for Dr Seex to recommend surgery, Mr Liddiard was advised by Dr Seex that the operation would provide significant relief. Had that significant relief occurred, it is likely that the injury would not have been sufficiently serious to justify proceedings. This conclusion is supported by Dr Matheson’s medicolegal opinion that post-operatively the degree of permanent impairment would be likely to reduce from 15 to 18 per cent down to 5 to 8 per cent. 56 It follows that, even if his Honour was wrong in finding that the relevant date for the purposes of s 50D(1)(b) was 31 October 2006 (when Mr Liddiard’s solicitor received correspondence from Brolton’s solicitors in respect of Bostik), then the earliest the cause of action was otherwise discoverable was sometime after November 2004, when the operative treatment did not provide the relief that Dr Seex anticipated. Accordingly, the claim was brought within time.

Ground 3: wrongful admission of evidence

57 The evidence that Bostik contended was wrongly admitted is contained in the bolded portions of the passages of evidence extracted below. The surrounding evidence is set out so as to provide the context in which the evidence, to which objection was taken, was given. 58 The first passage of evidence was as follows:

“Q. Mr Pearce, did you look to systems of safety in the workplace?
A. Yes, I did.

Q. Did that include matters of waste removal?
A. Yes.

Q. Did you understand that waste removal in the context of the outdoor areas beyond the warehouse included a smoko or lunch shed?
A. Yes.

…

Q. The system of safety that you were responsible for did that include the smoko shed?
A. Yes.

Q. And the waste removal from the smoko shed?
A. Yes .

Q. Did you understand that the smoko shed had empty 44 gallon drums placed there for a receptacle for waste?
A. Yes.”
59 In my opinion, the two bolded questions and answers were admissible. In the earlier questions, Mr Pearce had acknowledged that one of the areas included in his responsibilities as site manager was to “ look to systems of safety in the workplace ”. He agreed that those systems included waste removal. There was no objection to those questions. The next question was then directed more specifically to the particular circumstances that were relevant to this case. Those questions were objected to. However, in my opinion, they were no different in form than the earlier questions, although they were more specific. A person is able to give evidence of the tasks required to be performed as part of his or her employment. The whole of the evidence set out above merely provided details of the systems of work for which he was responsible. His evidence was no different from a plaintiff stating that his job in an organisation was to undertake a certain task. For example, Mr Liddiard’s evidence that it was his job to move the rubbish bins was of the same nature. The fact that Mr Pearce was in a management role did not make these questions inadmissible. 60 The second passage of evidence to which objection was taken was:

“Q. … Did you manage those workers doing tasks such as those performed by Mr Liddiard?
A. No, I didn’t.

Q. Did you observe other Bostik staff to be managing those tasks?
A. No, I didn’t.

Q. Did you ensure that workers in the place with Mr Liddiard had sufficient work to keep them occupied?
A. Mr Liddiard was doing work on the outside, mainly mowing the lawns and to do with the gardening and the cleaning up of the outside area. There was always sufficient work for that, yes.

…

Q. Was it your role to ensure that workers in the position of Mr Liddiard had sufficient work to occupy themselves?
A. Yes.

Q. I think you had agreed with me that as site manager you were – part of your duties was to ensure a safe system of work for machinery?
A. That’s right, yes .”
61 The two bolded questions and answers were also admissible. Once again, the questions sought to elicit evidence of Mr Pearce as to his duties as Bostik’s manager. The second of the two questions was, in any event, a reiteration of the evidence with which I have already found to be admissible. 62 The third passage of evidence to which objection was taken was as follows:

“Q. It’s clear from your statement that your view was that you had a responsibility in general terms, to look after employees that were hired by Bostik from Brolton?
A. Yes.

Q. It was your view, wasn’t it, that included in that overall responsibility was a responsibility to, in appropriate circumstances, to provide training?
A. Yes.

Q. And instruction again, in appropriate circumstance?
A. Yes.

…

Q. It was your view that Bostik had an obligation particularly in relation to workers who were on [the] production line, working on machinery to make sure as best as Bostik could that the operation of that machinery by those workers was done in safe circumstances?
A. Yes.

Q. And would you agree that going from what you said in your statement aspects of safety in relation to employees of a non production type that Bostik hired from Brolton was something that Bostik had to consider as well?
A. Yes.

Q. And that included safety in relation to tasks such as bending and lifting?
A. Yes.

Q. And operating not only machinery inside but things like forklifts?
A. Yes.

Q. And training and instruction in relation to bending and lifting heavy items?
A. Yes.

Q. And when you say in your statement at paragraph 11 and I’ll read it to you so you don’t have to rely on your recollection ‘We would have shown him how to lift boxes and cartons manually as part of his induction to the site’. Is it fair to say that’s what you would have expected him to have been shown by someone at Bostik before you started there?
A. Yes .”

(Mr Pearce’s statement, which formed the basis of this question, was not tendered in evidence.)

63 Bostik submitted that the bolded questions and answers were not admissible against it because Mr Pearce’s ostensible authority as site manager did not extend to making an admission as to Bostik’s legal liability, at least once objection was taken to the evidence: see Bond Media Ltd v John Fairfax GroupPty Ltd; John Fairfax & Sons Ltd v Rothwells Ltd (1988) 16 NSWLR 82. 64 In Bond Media Giles J (as his Honour then was) held that a witness who is called to give evidence of events in which he participated, that is, as a witness as to material facts, does not, because of his status as managing director of a corporate party, necessarily qualify as a witness who may be asked to make admissions in respect of the corporate party’s liability. Importantly, his Honour held that, in circumstances where a witness had either actual or implied authority to answer a question the effect of which was to constitute an admission against his employer, an objection to the evidence by the employer was sufficient to withdraw that authority. The principle extended to managing directors. However, the principle does not detract from the ability (and the requirement if called as a witness) for such a witness to give evidence of facts of which she/he has personal knowledge. 65 Senior counsel for Bostik acknowledged that if this and the other evidence to which objection was taken was evidence of fact, then it was admissible. If it were admissible, a further question would then arise as to how the evidence should be characterised. Senior counsel for Bostik submitted that the evidence, if admissible, was no more than Mr Pearce’s perception of his own responsibility. He contended that that perception did not establish that Bostik, as a matter of law, had a duty of care to Mr Liddiard. 66 It is necessary to return to Mr Pearce’s evidence and the matters to which it related. As I have already indicated, at the date of Mr Liddiard’s accident, Mr Pearce was Bostik’s site manager. He was called as a witness by Brolton. In evidence in chief he was asked by Brolton’s counsel whether it was his responsibility to oversee safety. Senior counsel for Bostik objected on the basis that he could not make admissions on behalf of Bostik. He submitted that questions relating to ‘responsibility’ went beyond evidence of facts and entered the realm of legal conclusion. Senior counsel submitted that, in accordance with the principle stated in Bond Media , a person who was not authorised to do so could not make an admission of legal responsibility on behalf of a party. Separate consideration needs to be given to each of the questions to which objection was taken in order to determine whether that principle applies in respect of this aspect of Mr Pearce’s evidence. 67 The first question to which objection was taken was:
“Q. It was your view that Bostik had an obligation particularly in relation to workers who were on [the] production line, working on machinery to make sure as best as Bostik could that the operation of that machinery by those workers was done in safe circumstances?
A. Yes.”
68 This question sought Mr Pearce’s opinion on Bostik’s obligation in relation to safety matters. In my opinion, the question was inadmissible. First, it sought his opinion in respect of Bostik’s obligations. Opinion evidence “ is not admissible to prove the existence of a fact about the existence of which the opinion was expressed ”: Evidence Act 1995, s 76. There are exceptions to the rule: see, for example, s 78 which provides that s 76 does not apply where the opinion is based upon what the person saw, heard, or otherwise perceived about a matter or event. 69 The opinion sought in this question was not about a matter of fact, nor was it a question that would elicit an answer within the s 78 exceptions. The evidence sought was about an obligation. The question whether Bostik owed a duty of care to Mr Liddiard was a question of law to be determined having regard to the facts and circumstances of the case: see Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 443, [62] per Gummow J. Mr Pearce could give evidence about systems of work, including such matters as what tasks were undertaken; who gave instructions to whom; and what safety measures were in place. However, he could not give evidence as to what an entity’s ‘legal obligation’ was. That was the purport of the question and in my opinion was inadmissible. 70 The next series of questions were related and can be considered together:

“Q. And would you agree that going from what you said in your statement aspects of safety in relation to employees of a non production type that Bostik hired from Brolton was something that Bostik had to consider as well?
A. Yes.

Q. And that included safety in relation to tasks such as bending and lifting?
A. Yes.

Q. And operating not only machinery inside but things like forklifts?
A. Yes.

Q. And training and instruction in relation to bending and lifting heavy items?
A. Yes.”
71 The essential thrust of this series of questions is in the first question. The other questions hang off the first. Mr Pearce was being asked whether Bostik had an obligation to consider the safety aspects of certain aspects of work that was carried out by Brolton’s non production employees whose services it engaged. Whether it had such an obligation depended upon whether it owed them a duty of care. That was the legal question that the court was required to determine. Accordingly, for the reasons given above, I consider that these questions were inadmissible. 72 The final question was:
“Q. And when you say in your statement at paragraph 11 and I’ll read it to you so you don’t have to rely on your recollection ‘We would have shown him how to lift boxes and cartons manually as part of his induction to the site’. Is it fair to say that’s what you would have expected him to have been shown by someone at Bostik before you started there?
A. Yes.”
73 This question was inadmissible. It was not based upon Mr Pearce’s own knowledge, nor did the question establish that he had obtained such knowledge from Bostik’s records, or, in an admissible way, via its corporate history. Indeed, the cross-examiner effectively shot himself in the foot when he asked, “ Is it fair to say that’s what you would have expected him to have been shown by someone at Bostik before you started there? ” The question was not focussed on any actual knowledge that Mr Pearce might have had. 74 In summary, therefore, part of the above evidence that was admissible established that Mr Pearce’s responsibilities included systems of safety in the workplace and those systems extended to the waste removal from the smoko shed. It also established that Mr Pearce had a responsibility to ensure that Mr Liddiard’s time was fully engaged in circumstances where Mr Liddiard was performing the work of a general hand for Bostik. These questions are thus relevant to the question whether Bostik owed a duty of care and if so, whether it breached that duty.

Ground 1: did Bostik owe Mr Liddiard a relevant duty of care?

75 Bostik denied that it owed Mr Liddiard a relevant duty of care. Bostik contended that even though it used the services and employees of Brolton, there was a distinction between the services of those employees it engaged in the factory, “ paid for ” at an hourly rate and who were under Bostik’s direct supervision and control, and persons such as Mr Liddiard, who performed work for Bostik, but also performed work for Brolton and who remained under the direct control of Brolton. Bostik further submitted that it was also relevant that the rubbish bin removal was carried out for the benefit of both Bostik and Brolton, as employees of both used the smoko shed. 76 The evidence established that the rubbish removal from the smoko shed was work that Mr Liddiard performed as part of his duties as a general hand for Bostik and for which Bostik paid Brolton. Indeed, senior counsel for Bostik conceded that there was no doubt that the work was done largely for the benefit of Bostik. Notwithstanding this concession, Bostik contended that he was instructed by Brolton and not by Bostik in relation to the performance of the work. Bostik also contended that when Dow Corning left the site, it was Brolton that had taken over, without modification, Dow Corning’s rubbish removal system. 77 It is apparent from the evidence that Mr Liddiard did not receive any instruction as to how to perform this or any associated or allied task. Mr Liddiard said he knew what to do because he had seen the task done before. It is also apparent how this came about. As senior counsel for Bostik recognised, the rubbish removal job devolved, as if by an osmotic process, from a task that had been performed by Dow Corning’s employees. When Bostik took over the premises, the arrangement for the collection of the rubbish and its removal remained essentially the same. A question arose on Bostik’s case as to whether Brolton was responsible for continuing that system and, if so, whether Bostik was thereby absolved of owing any duty of care to Mr Liddiard. 78 The evidence that the system remained the same after Bostik took over the premises emerged in cross-examination of Mr Lynch. Bostik relied on Mr Lynch’s evidence that at some point, in about 2000, one of Brolton’s employees commenced to carry out the rubbish removal from the smoko shed. Mr Lynch said that the only difference in the way it was done after Bostik took the site over from Dow Corning was that it was one of Brolton’s employees who did the job. It followed, according to Bostik, that it never had any responsibility for this particular job. The responsibility was Brolton’s and, accordingly, Bostik did not owe a duty of care to any person who carried out the job. 79 Both parties resorted to the bank of authorities in this area relating to the respective duty of a non-employer (if any) and an employee whose services are used by the non-employer. Bostik contended that this case was similar to the circumstances considered in J Blackwood & Son Steel & Metals Pty Ltd v Nichols [2007] NSWCA 157 and thus no duty of care arose. Mr Liddiard and Brolton contended that this case was more akin to TNT Australia Pty Limited v Christie [2003] NSWCA 47; (2003) 65 NSWLR 1. These cases are well-known and can be reviewed briefly. As Christie was first in time, it is convenient to consider that case first. 80 Mr Christie, was employed by an employment agency, Manpower Services (Australia) Pty Limited (Manpower) and was assigned to work at a brewery operated by TNT Australia Pty Limited (TNT). Mr Christie was injured when a pallet jack used to pick up beer orders malfunctioned. Mason P found, at [41], that TNT’s duty of care to Mr Christie in relation to a safe system of work was similar to that of an employer, in that TNT exercised day to day control over Mr Christie’s work activities, treating him the same as TNT employees as regards work on the factory floor. In all respects relevant to the imposition of a duty of care, Mr Christie was in an identical position to that of the four TNT employees with whom he worked. Mason P noted, at [42], that employment was not the only circumstance in which a stringent duty of care arose in respect of a safe system of work. His Honour cited the well-known passage in Stevens v Brodribb Sawmilling Company Pty Ltd [1986] HCA 1; (1986) 160 CLR 16, relating to the engagement of independent contractors, where Mason J (Brennan and Deane JJ agreeing) said, at [26]:

“The interdependence of the activities carried out in the forest, the need for co-ordination by Brodribb of those activities and the distinct risk of personal injury to those engaged in the operations, called for the prescription and provision of a safe system by Brodribb. Omission to prescribe and provide such a system would expose the workers to an obvious risk of injury …”

His Honour held that Brodribb, therefore, owed the contractors a duty of care.

81 The comments of Foster AJA, in Christie , at [178] are also relevant:
“Although TNT was not the original employer of the plaintiff, I am satisfied that, as a matter of common sense, it should be regarded as having the same duty to the plaintiff as an employer. Although, there was no transfer of employment from Manpower to TNT, pro hac vice, TNT clearly assumed employer-like responsibilities consistent with its overall control and direction of the plaintiff in the workplace.”
82 In Blackwood , the plaintiff was standing on a load of steel on his trailer in order to tighten a chain lashed across the trailer from one side of the load to the other. The load moved under him and he lost his balance and fell. He sustained serious injuries. The accident occurred at Blackwood’s premises. The plaintiff was employed by the second respondent who had a contract with Blackwood to provide a prime mover, trailer and driver to transport and deliver Blackwood’s products from Newcastle to Sydney. The plaintiff had undertaken this work for Blackwood for the whole of his six years of employment with the second respondent. 83 Tobias JA (Mason P and Handley AJA agreeing), after reviewing the authorities including Christie, National Transport Insurance Ltd v Chalker [2005] NSWCCA 62, especially at [62] and Rockdale Beef Pty Limited v Carey [2003] NSWCA 132, concluded that in circumstances where Blackwood did not, and did not purport to, exercise any degree of control over the performance of the task in which the plaintiff was engaged at the time of his injury, that is, securing the load on his trailer, that task of securing the load was akin to that of climbing a ladder: see Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204; or using a tomahawk: see Electric Power Transmission Pty Ltd v Cuiuli [1961] HCA 3; (1961) 104 CLR 177. 84 In Rockdale Beef Pty Limited v Carey the plaintiff was an independent contractor whose duties for Rockdale Beef included rounding up cattle that had managed to escape the feed pens, which was a common occurrence. The plaintiff was injured when he attempted to herd an escaped steer back to its pen. He galloped past the steer in order to get behind it, but the steer swung into the path of his horse. The horse fell and the plaintiff was severely injured. 85 Ipp JA stated, at [84], that a business enterprise (the entrepreneur) may owe a duty of care to an independent contractor:
“… 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 … 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.”

As Rockdale had configured the races in such a way as to be a safety risk in the work Mr Carey was directed to carry out, Rockdale was under a duty to use reasonable care to avoid, or minimise, that risk.

86 Bostik, in its submissions, also referred to Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234 for the purposes of distinguishing it from the facts here. The facts in Thompson are conveniently stated in the headnote:
“A contractor engaged to deliver bread to a supermarket injured her back while attempting to move heavy industrial waste bins which obstructed the access to the supermarket’s delivery bay of a truck she was driving. It was a task of supermarket staff to move the bins but the supermarket operator was aware that many delivery drivers moved the binds themselves to save time and of a consequent risk of injury to those drivers. The injured contractor sued the supermarket operator in negligence.”
87 The High Court held that notwithstanding the plaintiff’s status as an independent contractor, the supermarket (Woolworths) owed her a duty of care in circumstances where she was required to conform to a delivery system established by Woolworths and was subject to its direction. A similar approach was taken in Tolhurst v Cleary Bros (Bombo) Pty Ltd [2008] NSWCA 181. 88 There comes a point where reference to the multitude of decided cases ceases to provide assistance in the determination of the question in issue and it is necessary to return to principle. As Gummow and Hayne JJ observed, at [145], in Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540, the “ totality of the relationship between the parties … is the proper basis upon which a duty of care may be recognised ”. 89 In my opinion, the following matters are relevant to the question whether Bostik owed Mr Liddiard a duty of care. First, Mr Liddiard, although employed by Brolton, was undertaking work as a general hand for Bostik. Bostik paid Brolton for those services. In that sense, the arrangement was akin to the labour hire cases exemplified in Christie , although this case was different in that his employer had a presence on the premises. Bostik was the principal occupier of the premises and had the overall control of the activities that were engaged in on the premises. It required the premises to be maintained and kept clean. That work included rubbish removal from the smoko shed. Bostik was aware of the method of rubbish removal from the smoko shed. It permitted its forklifts to be used for that purpose. It was also aware of, and permitted, its empty 44 gallon drums to be used as rubbish receptacles for the smoko shed. Mr Pearce accepted that it was part of his responsibilities as Bostik’s site manager to ensure that proper safety measures were in place, including in relation to the removal of rubbish bins from the smoko shed. 90 Mr Liddiard, for his part, was not in a position to organise his own method of work. He was subject to direction, although it is reasonable to infer that he would have expected that direction to have come from Brolton. However, that is not determinative of the question whether Bostik had a duty of care. He did not provide his own equipment. He had no control over any aspect of the workplace. 91 In my opinion, Bostik owed Mr Liddiard a duty of care that was akin to the duty owed to an employee.

Ground 2: breach of duty

92 Bostik submitted that a reasonable response to the foreseeable risk of injury was to do nothing, by which it meant that it was sufficient to leave any instruction or other response to the risk to Brolton, Mr Liddiard’s employer. 93 The question of breach of duty is now to be considered having regard to the provisions of the Civil Liability Act 2002 . Relevantly, s 5B provides:

“ 5B General principles

(1) A person is not negligent in failing to take precautions against a risk of harm unless:

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b) the risk was not insignificant, and

(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

(a) the probability that the harm would occur if care were not taken,

(b) the likely seriousness of the harm,

(c) the burden of taking precautions to avoid the risk of harm,
(d) the social utility of the activity that creates the risk of harm.”
94 Notwithstanding that s 5B governs this aspect of the case, no argument was directed to its provisions. This may be because the parties acted on the assumption that s 5B enacts the common law as stated in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, in the well-known passage of Mason J, at [14]-[15] 47-48:

“In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.

The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.”
95 Notwithstanding the absence of any reference either to the statutory specification in s 5B or to these principles, it was apparent from the argument advanced that there was no dispute that the risk was foreseeable and was not insignificant: s 5B(1)(a) and s 5B(1)(b). Indeed, the concession was made on the appeal that the system of work was unsafe. The question for determination therefore was whether a reasonable person would have taken precautions against the risk of harm. Bostik’s sole argument was that it did not need to do so as it was reasonable to leave any precautionary steps, including instruction, to Brolton as the employer. 96 Before determining whether that was a reasonable response it is necessary to refer to the evidence as to what steps could have been taken to avoid the risk of harm. In that regard, the uncontested expert evidence of Dr Neil Adams was that there were a number of simple and inexpensive precautions that could have been taken. These included the provisions of bins fitted with wheels; the provision of significantly smaller bins that would be unlikely to ever weigh so much as to be excessively heavy for manual handling; the provision of a bin-tilting trolley which could have been used to extract large bins from locations at which it was not possible for Mr Liddiard to use the forklift; and locating the drums where it was possible for Mr Liddiard to use the forklift to remove them. I would add to this last possible precaution that it may have been sufficient for Mr Liddiard to have been given an instruction to that effect. 97 The responses postulated above were simple precautions that would have involved little or no expenditure so that the burden of implementing one or other of them would be minimal. In my opinion, in circumstances where: the premises were Bostik’s premises; it was the major occupier of the premises, the smoko shed was an amenity provided by Bostik for use by those who worked on the premises, which included its staff as well as Brolton’s; Bostik assumed general responsibility for the maintenance and clearing up of the premises including the smoko shed: it engaged Mr Liddiard’s services as a general hand to undertake the maintenance and clearing up tasks; and it provided Mr Liddiard with the equipment to do so: it was not a sufficient response to its duty of care to leave any response to the admitted unsafe system of work to Brolton. That was not a reasonable response; rather, it was an abrogation of responsibility. 98 It may be that there were aspects of the response that could have been left to Brolton. For example, one possible response was that instructions could have been given as to the proper manner in which to lift a bin, including checking its contents before lifting it. It might have been reasonable for that to have been left to Brolton, although I would have thought that it would have been necessary for Bostik to have communicated with Brolton to ensure that lines of responsibility had been drawn between them in order for that to have been a reasonable response. However, to put the matter at its most trite, the fact that Brolton also had a duty of care that it breached does not mean that Bostik had not breached a duty of care that it owed to him. 99 It follows from the above that this ground of appeal also fails.

Ground 5: contribution

100 The trial judge apportioned liability between Bostik and Brolton as to 60 per cent to Bostik and 40 per cent to Brolton. Bostik contended that his Honour erred in this assessment and that its contribution should be 10 per cent, or at least no more than 20 per cent. His Honour appears to have based his finding as to contribution upon his conclusion, at [89], that Bostik bore the greater proportion of liability because it owned and provided the equipment to do the job. 101 Bostik submitted that this was of marginal relevance and that, in any event, it involved two factual errors. It contended that contrary to his Honour’s finding, Bostik did not provide the equipment to Mr Liddiard and that it had been Brolton who adopted the system of work relating to the collection of the drums used as rubbish bins in the smoko shed, not Bostik. Bostik also submitted that a major contributing cause of the accident was due to Brolton’s abrogation of responsibility as Mr Liddiard’s employer. 102 His Honour’s reasons in respect of contribution were in these terms:

“[89] I have found, for reasons earlier given, the system of work to be a joint venture which would point to equal apportionment as between [Brolton and Bostik] for what occurred to [Mr Liddiard]. However, I am attracted to [counsel for Brolton’s] submissions by reason of the ownership and provision of the equipment to do the job concerned and where, as [Dr] Adams suggested, safer alternatives were available. It is true that the day-to-day control of [Mr Liddiard] was within the hands of [Brolton] as the employer but [Bostik] provided the equipment and means for the job to be done, including the inappropriate drums.

[90] I conclude that an appropriate apportionment for responsibility of the defendants for [Mr Liddiard’s] injury would be 40 per cent for [Brolton] and 60 per cent for [Bostik].”
103 The principles governing appellate review of a trial judge’s contribution findings are well-established and involve the same principles as apply in respect of an assessment of contributory negligence. In Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492, the High Court stated at 493-4:

“A finding on a question of apportionment is a finding upon a ‘question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds': British Fame (Owners) v Macgregor (Owners) [1943] AC 197 at 201. Such a finding, if made by a judge, is not lightly reviewed.

…

The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man ( Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] AC 663 at 682; Smith v McIntyre [1958] Tas SR 36 at 42-49 and Broadhurst v Millman [1976] VR 208 at 219 and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.”
104 In Vinidex v Theiss [2000] NSWCA 67 Rolfe AJA (Sheller and Fitzgerald JJA agreeing) said at [29]:
“… the Court must have regard to what is just and equitable and, in doing so, it must make a comparison of the culpability and of the acts of the parties causing damage and, thus, to the relative blameworthiness and the relevant causal potency of the negligence of each party, and to the whole conduct of each negligent party in relation to the circumstances of the accident by way of comparative examination: Podrebersek v Australian Iron and Steel Pty Limited (1985) 59 ALJR 492; Wynbergen v Hoyts Corporation Pty Limited (1977) 72 ALJR 65; Macquarie Pathology Services Pty Limited v Sullivan (Court of Appeal - 28 March 1995 - unreported) and James Hardie & Coy Pty Limited v Roberts & Anor (1999) 47 NSWLR 45.”
105 In Liftronic Pty Limited v Unver [2001] HCA 24; (2001) 75 ALJR 867 Gleeson CJ at [2] cited with approval the passage in Podrebersek to which I have just referred. Kirby J pointed out, at [90], that the questions of contributory negligence and apportionment are always questions of fact. Although Liftronic involved an apportionment by a jury, the principles stated in Podrebersek were confirmed. 106 The principle has been consistently applied. As Hayne J observed in Joslyn v Berryman (2003) 214 CLR 552; [2003] HCA 34 at [157], “ [f]indings about apportionment of responsibility are not lightly to be disturbed ”. His Honour then set out the above passage from Podrebersek . 107 For my part, I do not see any appellable error in his Honour’s assessment of the respective contributions for which Bostik and Brolton were liable as between themselves. There was sense in his Honour’s initial assessment of matters that pointed to equal contribution, although I would not have labelled the relationship between the two as a joint venture. The question for his Honour’s consideration was, having regard to the respective relationship of each of Bostik and Brolton to Mr Liddiard and the responsibilities that were inherent in those relationships, what proportion of liability should each bear. 108 There were factors that pointed to an assessment that their relative contributions to Mr Liddiard’s injury were equal. In particular, although Brolton had provided Mr Liddiard’s services to Bostik, Brolton was his employer and was on site at all times. Although it had provided Mr Liddiard’s services to Bostik, it was fully aware of the tasks that Mr Liddiard was undertaking and the manner in which he undertook those tasks. In particular, he was fully aware of the system in place for the collection of the rubbish bins. Mr Liddiard looked to Mr Lynch for employment-related matters, as instanced by his evidence that if he needed help with any matter in the course of his employment, he would approach Mr Lynch. 109 For its part, Bostik was responsible for the premises as I have discussed above, and it had engaged Mr Liddiard’s services, through Brolton, to keep those premises in a clean condition. In my opinion, for the reasons I have already given, the system of work involved in Mr Liddiard’s tasks as a general hand was a system for which Bostik had ultimate responsibility. This is so, notwithstanding that it is likely that in an immediate sense it was Brolton that adopted Dow Corning’s system of work. Mr Pearce’s position was that he left such matters to Mr Lynch, “ because he was looking after the outside of the gardens ”. That did not mean, however, that Bostik was entitled to do nothing. There is a difficulty, in any event, with this evidence. Mr Pearce did not say that that was a communicated arrangement with Mr Lynch. Nor did Bostik cross-examine Mr Lynch on the basis that that was the arrangement between Brolton and Bostik. 110 Bostik did not establish that Brolton in fact was in charge of the outdoor area. Mr Pearce’s evidence did not establish that was the case and the fact that Bostik required a general hand would make this unlikely. Whilst it is likely that Brolton merely adopted the system that was in place under Dow Corning, Bostik’s overall responsibility for the premises and for safety systems for the work that was required to be carried out on the premises was such that I do not consider that there was any error in his Honour’s assessment of contribution.

Conclusion

111 Bostik has failed to establish that his Honour’s findings in respect of duty, breach and limitations were erroneous, and therefore, the appeal should be dismissed. So far as costs are concerned, whilst costs are in the discretion of the court: Civil Procedure Act 2002, s 98, the usual rule is that costs follow the event unless the court considers that some other order should be made as to the whole or any part of the costs: see Uniform Civil Procedure Rules 2005, r 42.1. In this case, Bostik had a limited measure of success in challenging his Honour’s evidence rulings. However, that aspect of the case took very little time to argue and involved only partial success on one of five issues on the appeal. That issue, whilst important, was itself within a small compass. In my opinion, that small measure of success is not sufficient to displace the usual rule. 112 Accordingly, I would propose that the appeal be dismissed with costs. 113 IPP JA : I have had the benefit of reading the reasons to be published of Beazley JA and Basten JA. 114 I agree with what Beazley JA has written in regard to the limitations issue and the admissibility of the evidence of Mr Pearce. 115 As regards the issue whether Bostik owed Mr Liddiard a duty of care I consider that the following matters are of particular relevance. 116 Brolton contracted with Bostik to provide certain services that included emptying the rubbish bins in the smoko shed. Bostik paid Brolton for carrying out this work. In order to carry out its contractual obligations to Bostik, Brolton instructed its employee, Mr Liddiard, to empty the rubbish bins. 117 Bostik gave no instructions to Mr Liddiard (or any other employee of Brolton) as to when, where and how the work involved in emptying the rubbish bins was to be done. Furthermore, Bostik did not co-ordinate the activities of work done by Brolton on the site. These matters, in practice, were left to Brolton. 118 Mr Pearce, Bostik’s site manager, admitted that the system of safety for which he was responsible included the waste removal from the smoko shed. He admitted that it was his role to ensure that workers in the position of Mr Liddiard had sufficient work to occupy themselves. He accepted that as site manager part of his duties was “to ensure a safe system of work for machinery”. 119 Mr Pearce’s concession that it was part of his responsibilities as Bostik site manager to ensure that proper safety measures in relation to the removal of rubbish bins were in place, indicated an acceptance by him that, to that extent, he, as Bostik’s representative, was in control of the site. Nevertheless, for the reasons set out below, that control must be regarded as theoretical rather than actual, and insignificant. 120 Mr Pearce never actually exercised any measure of control over Brolton “non-production” employees. He was not involved in the training of Brolton employees and did not supervise or instruct them. He said that if a Brolton non-production employee was not cleaning up properly he would not speak to that employee but would draw the attention of Mr Lynch, Brolton’s manager, to what was happening. He said that he “left it up to Ben Lynch” to deal with workers who were emptying the bins. Mr Liddiard gave no evidence that Mr Pearce had ever spoken to him about the rubbish bins or indeed to any Brolton employee involved in non-production work (as Mr Liddiard was). There was no evidence of any contractual arrangement between Bostik and Brolton whereby any right of control over the manner in which non-production work was to be done was conferred upon Bostik. Nothing that Mr Pearce did (or, on the evidence, anyone else on behalf of Bostik) amounted to any assumption of control by Bostik over the work being performed by Mr Liddiard or any other non-production worker. 121 In the light of the matters set out in the previous paragraph, little weight can be attached to Mr Pearce’s concessions. Whatever may have been in Mr Pearce’s mind concerning his responsibilities relating to non-production work in regard to the rubbish bins, there is nothing to suggest that anything he or anyone else did involved an assumption by Bostik of “employer-like responsibilities consistent with its control and direction of the [respondent] in the work place” (per Foster AJA in TNT Australia Pty Ltd v Christie [2003] NSWCA 47; (2003) 65 NSWLR 1 at [178]). 122 On these facts Brolton did not establish that Bostik owed Mr Liddiard a duty of care. I agree with Basten JA’s conclusion in this respect. 123 I also agree with what Basten JA has written concerning the breach of any duty of care that may exist. I would add that, on the evidence, I do not accept that the exercise of due care by Bostik would require it to provide bins fitted with wheels or smaller bins, or change its rubbish bin system in any other way. 124 The task that Mr Liddiard was performing when he was injured was one which he had performed approximately twice a week for some six months before the injury (as Basten JA points out at [136]). It was not a task which, in the past, had given Mr Liddiard any particular difficulty. That is perfectly understandable. The task was relatively simple. The possibility that some person would put some heavy object in a bin, or that the bin might be heavier than ordinarily would be the case, was a possibility that was obvious and should have been foreseen. It does not follow, however, that a reasonable response to the risk would require a change in the kind of bins that were in use. 125 It is common sense that one way of guarding against the risk of harm, should some heavy material be placed in an existing bin, would be to inspect the bin before lifting it. Another way would be to test the weight of the bin by gently attempting to lift it before applying all one’s strength to move it to the desired position. For my part, without appropriate evidence, I would not be prepared to accept that measures of this kind would not constitute a reasonable response to the risk (rather than changing the kind of bins in use). Appropriate evidence of the kind mentioned was not adduced. In my view, the measures I have mentioned would be obvious to any person required to undertake the task which Mr Liddiard was instructed to perform. 126 I agree with Basten JA that breach of duty was not established. 127 I agree with the orders proposed by Basten JA. 128 BASTEN JA : Mr Liddiard suffered an injury when attempting to lift a rubbish bin on premises owned and occupied by the appellant. Mr Liddiard was employed by Brolton Industries Pty Ltd (“Brolton”), which also operated its business from the same premises. Mr Liddiard gave evidence that he treated Mr Lynch, the manager of Brolton, as the person to whom he was answerable. He had no contact with Bostik’s management, and particularly with its site manager, Mr Pearce. 129 Mr Liddiard (“the plaintiff”) brought proceedings for damages against both his employer, Brolton and the appellant. He succeeded against each in the District Court, Hungerford DCJ apportioning liability as to 60% against the appellant and 40% against Brolton. 130 The proceedings against the appellant were commenced more than three years after the date of injury. A defence based on the Limitation Act 1969 (NSW), s 50C, was rejected at trial. I agree with Beazley JA that the challenge to this finding should be dismissed because the cause of action was not discoverable until the plaintiff knew or ought to have known of a reasonably arguable case involving a connection between his injury and fault on the part of the appellant. The relevant facts included the contractual and practical relationship between Brolton and the appellant. 131 The appellant also challenged the admission of evidence from Mr Pearce which, it contended, constituted admissions in relation to questions of law, namely the existence of a duty of care owed by the appellant to the plaintiff. As Beazley JA explains, to the extent that the questions elicited answers which may be so understood, they were inadmissible; questions seeking to establish the factual basis from which the existence of a duty (and its content) in respect of the plaintiff, might be inferred, were properly admitted. I agree with her Honour’s reasons in that regard. 132 In my view, the grounds upon which the appellant is entitled to succeed are the findings that:


(a) it owed a duty of care to the plaintiff, and

(b) on the assumption that it did owe such a duty, it was in breach of that duty.

Duty of care
133 In finding that both the employer and the appellant owed the plaintiff a duty of care, the trial judge stated at [79]:
“The relationship between each of the defendants … was in the nature of a joint venture in relation to the plaintiff’s work in emptying the rubbish bins at the smoko shed.”
134 His Honour approached the matter, in accordance with submissions made to him, by considering whether the facts of the case provided a closer analogy with the decision of this Court in J Blackwood & Son Steel & Metals Pty Ltd v Nichols [2007] NSWCA 157, or the decision of the High Court in Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19; 221 CLR 234. His Honour held that the circumstances of Thompson were “analogous to the present situation” and that, accordingly, both defendants owed the plaintiff a relevant duty of care to take reasonable steps for his safety: at [78]-[80]. 135 In determining a question of law, namely the existence of a duty of care, the content, which is often the critical component, must be identified by reference to the circumstances in which the injury occurred: see Sutherland Shire Council v Heyman [1985] HCA 41; 157 CLR 424 at 487 (Brennan J) and Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29; 217 CLR 469 at [1] (Gleeson CJ). Thus, the High Court once rejected, as without rational foundation, the contentions that a worker at a bush camp, required to cut timber for a stove, should have been provided with some implement other than a tomahawk or should have been given instruction as to how to use the tomahawk: Electric Power Transmission Pty Ltd v Cuiuli [1961] HCA 3; 104 CLR 177. A similar conclusion was reached by this Court in relation to the use of a ladder in Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 at [74] (Heydon JA, Meagher JA and Foster AJA agreeing) and the securing of a load on a truck in J Blackwood & Son at [61] and [64] (Tobias JA, Mason P and Handley AJA agreeing). 136 In the present case, the 44-gallon drums used as rubbish bins were required to be physically manhandled from the smoko shed and on to the tines of a forklift. The plaintiff had undertaken this task approximately twice each week for some six months before the injury. He gave evidence that the bins were usually not heavy. On this occasion, the bin was unusually heavy. 137 Because the employer did not appeal from the judgment against it, its responsibility to take steps to avoid the need for manual handling of an unexpectedly heavy bin is not in issue. On the other hand, findings made against it, or not contested by it, do not operate against the appellant. 138 The plaintiff was not employed by the appellant and, on the accepted evidence of the plaintiff himself, received no instruction or direction from the appellant’s manager. 139 The fact that an employer may be obliged to take reasonable steps to provide a worker with a safe system of work, does not preclude the existence of a duty owed by others to take reasonable care in their dealings with the worker, whether they be other employees, independent contractors, the occupier of premises which the worker is required to attend in the course of employment or other road users encountered in the course of travel. Where work is undertaken on the premises of a third party, that party may have a duty, which commonly arises from:

(a) the degree of control or direction exercised or which the third party is entitled to exercise over the worker;
(b) the condition of plant or premises under the control of the third party, or
(c) the activities of others on the site, generally for the purposes of the third party’s undertaking or business.

140 The third situation may be put to one side for present purposes. The facts fall within a combination of the first and second elements. Thus, the system for clearing rubbish involved the use of the 44-gallon drums, which were provided by the appellant and the use of a forklift which did not fit under the roof of the smoko shed, which was also provided by the appellant. On the other hand, it is clear that the appellant did not seek to control the activities the plaintiff, nor direct him as to how to perform those activities. 141 The circumstances in which an employer provides labour to a third party, commonly described as “labour hire” arrangements, are not new. McDonald v The Commonwealth (1946) 46 SR(NSW) 129, concerned whether vicarious liability for an accident caused by a negligent worker lay with his legal employer (referred to as the “general employer”) or “the particular employer”, being the party for whom the employee was working and which had control over the employee at the time of the accident. In such a case, the passing of control from one party to another may be treated as in practical terms complete, so as to render the latter the employer pro hac vice (for the occasion only), in the language of Lords Macmillan and Simonds in Mersey Docks and Harbour Board v Coggins& Griffith(Liverpool) Ltd [1947] AC 1 at 13 and 18. In Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd [1986] HCA 34; 160 CLR 626 at 668, Brennan J stated:
“The rule to be derived from Mersey Docks and McDonald is not that two persons cannot be vicariously liable for the same damage or that an employee cannot be the servant of two masters, but that two employers of the same servant who negligently causes damage will not both be liable for the damage if one rather than the other has what Jordan C.J. called ‘the relevant control’: McDonald , [at 132].”
142 No doubt caution must be taken in applying principles stated in cases where the vicarious liability of a principal or employer is in question to a case where responsibility for an injury suffered by an employee is in issue. However, the duty of the principal to an employee of an independent contractor has been upheld in cases such as Stevens v Brodribb Sawmilling Company Pty Ltd [1986] HCA 1; 160 CLR 16, where Mason J stated at 31:
“Although the obligation to provide a safe system of work has been regarded as one attaching to an employer, there is no reason why it should be so confined. 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. The fact that they are not employees, or that he does not retain a right to control them in the manner in which they carry out their work, should not affect the existence of an obligation to prescribe a safe system.”
143 In TNT Australia Pty Ltd v Christie [2003] NSWCA 47; 65 NSWLR 1, in relation to the plaintiff, whose labour was provided to TNT by his employer, Mason P stated at [41]:
“TNT exercised day-to-day control over the plaintiff’s work activities, treating him to all intents the same as its employees as regards work on the factory floor. … It can be seen that the plaintiff and TNT placed themselves in a relationship, day in and day out, indistinguishable from that of employee and employer. … [H]ere the plaintiff had for months been under the daily control of TNT and its managerial staff at the brewery. He was a relatively unskilled labourer. He reported daily to the brewery and everything that he did there was done under the full control of TNT.”
144 Thus, in labour hire cases involving unskilled workers, there may well be a transfer of control to the business in which they are working. It appears that this was the case in respect of employees of Brolton who were provided to work for the appellant on its production lines. However, different practices appear to have arisen with respect to non-production line labour. 145 As had occurred before the trial judge, the parties in this Court sought to rely upon or distinguish particular factual circumstances drawn from cases supportive of their claims. However, the relevant comparison is not to be made between J Blackwood & Son (which concerned the need for instruction, not the person responsible for giving it) and Christie (which concerned the person on whom lay the responsibility for providing safe equipment). Nevertheless, it is clear that the situation of the appellant, with respect to control of the plaintiff, was far removed from that described in Christie . 146 Whether or not the appellant owed a duty of care to the plaintiff must depend to a significant extent upon the relationship between the appellant and Brolton. That appears to have been largely informal at the relevant time. As Mr Lynch explained in evidence, he had originally worked for Dow Corning, the business of which was taken over by the appellant, at which time he ceased working for Dow Corning and set up his own maintenance engineering business. He did work for the appellant and obtained a lease or licence of part of the premises occupied by the appellant. He supplied maintenance services and also labour to the appellant. Brolton was paid for those services but not, it would appear, pursuant to any written agreement. Mr Lynch gave the following evidence at Tcpt, 16/04/08, p 181:
“Q. The smoko shed was used not only by Bostik and direct employees, but also by Brolton employees, is that right?
A. And others, yes.
Q. And not only Brolton employees who were working for Bostik, but Brolton employees who were working directly for Brolton?
A. Yes.
Q. And I think you gave evidence this morning that Brolton Industries used the forklifts owned by Bostik on Brolton’s own premises, is that right?
A. Correct.
Q. Including, if you needed to, to lift piece[s] of equipment that Brolton was working on for customers other than Bostik?
A. Yes.
Q. And to move other items around on Brolton’s own premises, is that right?
A. Yes.
Q. And there was no formal arrangement where you [paid] some sort of fee to do that, was there?
A. No.
Q. And if you wanted a forklift to do something for Brolton’s own business, you just went and got one if it was available, is that right?
A. Correct.
Q. And similarly, Brolton used drums which were surplus or left over from Bostik’s production line as rubbish bins on its own premises --
A. Yes.
Q. -- is that right, for its own rubbish?
A. Yes.
Q. And there was no charge for that, was there?
A. No.
Q. And the understanding or arrangement between Brolton and Bostik was both drums like that and forklifts like that could be used by Brolton for its own business activities if needed?
A. Yes.
Q. And that was the position from 2000 right through until you stopped providing services to Bostik 18 months or two years ago?
A. Correct.”
147 The other party to the arrangement was the appellant. As appears from the evidence of Mr Pearce, the site manager for the appellant, set out above by Beazley JA, an inference was available that the appellant had accepted responsibility for a safe system of work with respect to non-production employees provided by Brolton: Tcpt, pp 206-207. However, in his evidence in chief, Mr Pearce also stated that he did not look after the training of Brolton employees, nor did he personally provide any training, but relied upon a “buddy system” for training people: Tcpt, p 193. He was asked if Mr Liddiard was “given over to tasks at the request of Bostik”, language which he denied applied to Mr Liddiard but agreed might apply to persons working in the production area: Tcpt, pp 196(15) and 199(40). The following exchange occurred (p 208(5):

“Q. And to a lesser extent was it your observation that for non production employees there would from time to time be supervision or instruction given in relation to how those tasks were carried out?
A. Not normally, no.
Q. Sometimes?
A. No.
Q. Why not normally, if it’s not sometimes?
A. Okay. It wouldn’t be – I didn’t see evidence of that.
Q. It would be consistent with your understanding of the arrangement between Bostick [sic] and Brolton that an employee was on Bostick’s premises and not cleaning up properly or driving a forklift in a dangerous manner it would be consistent with your understanding of that arrangement that a supervisor or official from Bostick may well instruct or otherwise prohibit a Brolton employee from continuing in that behaviour?
A. If it was somebody driving a forklift quickly, yes, but if it wasn’t say of not cleaning a part properly or not cleaning up properly, no that wouldn’t be the case.
Q. Well why would there be a difference?
A. If a part wasn’t cleaning or if an area wasn’t cleaned up properly someone would tell me and we’d go to Ben to say that – or Ben needs to say that this person isn’t doing – they’re not cleaning a part properly or they’re not cleaning up properly, can you attend to that please.”
148 The reference to “Ben” was a reference to Mr Lynch, Brolton’s manager. Further, at p 211(15) the following exchange occurred:
“Q. How did you go about addressing that perceived responsibility in your position as site manager for Bostik?
A. For emptying of the bins around the smoko shed?
Q. Yes.
A. I just left it up to Ben Lynch to – because he was looking after the outside of the gardens I left it up to him to be able to – you know basically get the workers to empty them.”
149 Taken as whole, Mr Pearce’s explanation is consistent with that given by Mr Lynch and the understanding of the plaintiff, namely that Brolton had contracted with the appellant to provide services in the outside areas, which included emptying the rubbish bins in the smoko shed, and that Brolton was responsible for the manner in which such work was to be performed. Although the bins and the forklifts may have been the property of the appellant, part of the arrangement was that Brolton could make use of such equipment as it required to carry out the functions for which it was responsible. This was not a case in which any co-ordination of contractors was required, nor was there any other reason for the appellant to devise a safe system of work for the plaintiff. To the extent that the appellant controlled activities on the premises, there was no danger or risk to the plaintiff relevant to the injury suffered, arising from the state of the premises or the activities which took place on them. It was no doubt true that steps could have been taken which would have lessened or removed the risk associated with manual handling of the waste bins. Nevertheless, neither the legal arrangement nor the practical circumstances in which the work was undertaken imposed an obligation on the appellant with respect to such steps. In my view the appellant did not owe a duty of care to the plaintiff.

Breach of duty
150 On the basis that the appellant owed no duty, no question arises as to possible breach. However, against the possibility that the conclusion with respect to duty may be wrong, it is desirable to deal with the question of breach. 151 The injury appears to have occurred because, on the occasion in question, the bin was unexpectedly heavy. Why that was so was not the subject of any finding by the trial judge. There was evidence that it had rained on the previous night, but it was presumably not the case that there had been no rain in the previous six months during which the plaintiff had undertaken this work. Indeed, he referred to empty bins being stored outside filling with rainwater. Further, there was no clear evidence as to why, if the bin were under the roof of the smoko shed, and therefore inaccessible to the forklift, it would have filled with rain. 152 What was clear from the plaintiff’s evidence was that he had not had any difficulty in lifting the bin on any prior occasion. His evidence was that he collected and emptied numerous drums in the course of his work. He was used to dealing with heavy drums which had filled up with rain water and which had been stacked outside, waiting for him to move them to the industrial waste skip: Tcpt, 14/04/08, p 51. Approximately twice a week he would swap four drums used as rubbish bins in the smoko shed with empty drums: p 51(20). Although the bin in question was apparently heavier than usual, he lifted it in the usual way and said that “I didn’t even think of the weight until me bicep went in me arm and I felt the thing in me arm, so”: p 53(20). 153 It was not suggested that his technique was at fault or that he needed instruction as to how lift bins. Rather, the case was run on the basis that he should have been provided with mechanical assistance so as to avoid the need to lift the bins. However, the plaintiff did not anticipate any difficulty in manual lifting; the accident occurred as a result of the bin being heavier than he had expected for reasons which were not explained in the evidence. 154 The trial judge dealt with the question of breach of duty in brief terms. After noting the particulars of negligence, he remarked that the “consequent risks to the plaintiff’s safety … were established by the report of Mr Adams”: at [81]. He noted that Brolton had conceded breach, but that the appellant had denied breach “for the same reasons … put against there being a duty”: at [82]. His Honour then stated at [83]:
“I find that both defendants breached their respective duties of care owed to the plaintiff. On the facts found, the particulars of negligence have been established and the count is therefore made out.”
155 With respect, there was nothing in his Honour’s findings in relation to duty which formed a basis for a conclusion that the appellant was in breach, accepting that a duty existed. On the evidence referred to above, it cannot be said that a finding of breach was self-evident. Indeed, no specific finding was made as to what was required with respect to a safe system of work. If it were established that some form of mechanical device should have been made available, it might have been appropriate to put to the plaintiff that he would have used such a device, had it been provided: cf Civil Liability Act , s 5D(3). He gave no such evidence. The plaintiff’s evidence that he had no difficulty lifting the bins on any prior occasion, combined with the fact that it was necessary to move them only three or four paces to the forklift, leads to no necessary inference that he would have used a mechanical device it if had been available. His evidence was not that the weight of the bin immediately registered as too great to be lifted in comfort; rather, his evidence was that he only became aware of the weight when, having already lifted the bin off the ground, he felt something give in his bicep. 156 It is necessary to separate questions of breach and causation, but the lack of any finding as to the specific respect in which breach was said to be established is reflected in the absence of a finding as to causation. Similarly, the absence of any clear finding as to the cause of the risk which materialised left open questions of foreseeability. 157 Without a finding as to why the bin was so much heavier than usual on the occasion of the injury, it is not possible to say that the system of work was unsafe. Similarly, it is not possible to say that a proper “manual handling risk assessment” would have established the existence of the unknown risk: cf Judgment at [81]. Indeed, it is not clear that the risk in question was reasonably foreseeable. The plaintiff’s evidence was that he did not even trouble to look in the bins before lifting them because all that could be seen was paper: Tcpt, 14/04/08, p 28(30). He himself clearly did not anticipate that a bin in the smoko shed, under cover, might be unusually heavy. Nor is this Court asked to make findings with respect to these issues, an exercise which might well have proved difficult on the evidence. 158 As noted by Beazley JA, the approach to be taken in such a case is that identified in the Civil Liability Act 2002 (NSW), s 5B, set out at [93] above. Whether or not that provision varies the general law principle, it provides a helpful structure against which to ensure that relevant findings of fact are made. In this case the trial judge made no express finding that the risk was foreseeable, that it was not insignificant, nor as to the precise steps which a reasonable person would have taken by way of precautions. Because the cause of the accident was unknown, the risk was not identified and it follows that the plaintiff did not establish breach of any duty which may have been owed by the appellant.

Conclusion
159 For these reasons, the appeal should be allowed and orders (2)-(6) made by his Honour on 9 May 2008 should be set aside. 160 In the course of giving his reasons, the trial judge foreshadowed an order that both defendants should pay the plaintiff’s costs. Following the delivery of reasons, there was some further argument as to the appropriate orders. With respect to costs, his Honour accepted an argument put by Brolton that certain costs which had been reserved in earlier interlocutory proceedings before Walmsley DCJ should be paid by the plaintiff. In the event, his Honour made no order as to costs as between the plaintiff and Brolton. However, no issue is raised in that respect on this appeal. The appellant seeks a judgment in its favour on the statement of claim, together with costs. Those orders should be made. Similarly, the appellant should have the costs of the appeal. 161 Accordingly, I propose the following orders:


(1) Allow the appeal and set aside orders (2)-(6) made by Hungerford ADCJ in the District Court on 9 May 2008.

(2) In lieu thereof:

(a) enter judgment for the second defendant against the plaintiff, and
(b) order the plaintiff to pay the second defendant’s costs of the proceedings, other than those attributable to the cross-claims.


(3) Order the first respondent (Mr Liddiard) to pay the appellant’s costs of the appeal, other than costs attributable to the question of apportionment as between the appellant and the second respondent.

(4) Otherwise make no order as to the costs of the appellant and the second respondent in respect of the appeal.

(5) Grant the first respondent a certificate under the Suitors’ Fund Act 1951 (NSW).

**********

26/06/2009	-	Incorrect date of judgment - Paragraph(s) 1
02/07/2009	-	Typgraphical error - Paragraph(s) 161