Calliden Insurance Ltd v Fox & Ors; Leighton Contractors Pty Ltd v Fox & Ors

[2009] HCATrans 110

[2009] HCATrans 110

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S534 of 2008

B e t w e e n -

CALLIDEN INSURANCE LIMITED

Appellant

and

BRIAN ALLAN FOX

First Respondent

LEIGHTON CONTRACTORS PTY LTD

Second Respondent

WARREN STEWART PTY LTD

Third Respondent

Office of the Registry
  Sydney  No S528 of 2008

B e t w e e n -

LEIGHTON CONTRACTORS PTY LTD

Appellant

and

BRIAN ALLAN FOX

First Respondent

CALLIDEN INSURANCE LIMITED

Second Respondent

WARREN STEWART PTY LTD

Third Respondent

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 28 MAY 2009, AT 10.01 AM

Copyright in the High Court of Australia

__________________

MR J.E. MACONACHIE, QC:   In the first of those matters, I appear with MR R.G. GAMBI for the appellant and in the second of those matters I appear for the second respondent.  (instructed by Wotton & Kearney)

MR B.W. WALKER, SC:   May it please the Court, I appear with MR W.S. REYNOLDS for the appellant in the second matter and for the second respondent in the first matter.   (instructed by Moray & Agnew Solicitors)

MR M.J. CRANITCH, SC:   May it please the Court, I appear for the first respondent in both appeals together with my learned junior, MR R.C. TONNER.  (instructed by Walkom Lawyers)

FRENCH CJ:   I think there is a motion to substitute the insurer for Downview.

MR MACONACHIE:   There is, your Honour.  In both appeals a summons was filed on 26 May 2009 praying for those orders.  I move on the affidavit of Cassandra Wright in each case, sworn 26 May 2009.  I understand that there is no opposition to the application.  I draw your Honours’ attention to paragraph 6 of the affidavit in each case, that is to say, that Calliden Insurance Limited gives the same undertaking as to costs as previously given by Downview Pty Ltd on the granting of special leave.

FRENCH CJ:   Yes, thank you.  On the summons which was filed on 26 May it is ordered that:

1.Rule 28.02.2 be dispensed with and the time to file and serve the summons be abridged to 5.00 pm on 26 May. 

2.Leave pursuant to section 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) be granted to substitute Calliden Insurance Limited (ACN 004 125 268) as the name of the second respondent in lieu of Downview Pty Ltd.

That is in 528.  There is a similar summons, I think, in the other matter and I make similar orders.  Yes, all right.

MR MACONACHIE:   Would it trouble your Honours if I continue to refer to the appellant in the first matter and the respondent in the second matter as Downview rather than Calliden because all of the papers refer to Downview?

FRENCH CJ:   Yes, I think that will help us.

MR MACONACHIE:   I want to start, your Honours, by taking you, if I may, to the second volume of the joint appeal book at page 616 where Justice Basten, with the concurrence of Justices Giles and McColl said at line 15:

Apart from any contractual obligation to Leighton, Downview had a general law obligation to those participating in carrying out its contracting work to conduct operations safely and to do that –

and these are words I wish to emphasise –

it was obliged to contract with competent and properly trained operators.

We say that that asserts a duty, a common law duty to enter into a contract in a particular way with particular elements and is a duty that has not been recognised and should not be recognised because it is contrary to established principle.

HEYDON J:   Mr Maconachie, if it is said Downview had a general law obligation to those participating in carrying out its contracting work to take reasonable care to conduct operations safely, would that proposition be correct?

MR MACONACHIE:   I am sorry, I did not quite follow your Honour.

HEYDON J:   As Justice Basten has it, it seems to be a strict duty, a duty of strict obligation to conduct operations safely, period.

MR MACONACHIE:   Yes.

HEYDON J:   If it is said to take reasonable care to conduct operations safely, would that be a correct proposition?

MR MACONACHIE:   No.

HEYDON J:   Why not?

MR MACONACHIE:   Because at 110 CLR 74 there is reported a case with which your Honours will have a passing acquaintance, Voli v Inglewood Shirt Council.  At page 85 at about point 2 his Honour Justice Windeyer said this:

First, neither the terms of the architect’s engagement, nor the terms of the building contract, can operate to discharge the architect from the duty of care to persons who are stranger to those contracts -

and importantly:

Nor can they directly determine what he must do to satisfy his duty to such persons.  That duty is cast upon him by law, not because he made a contract, but because he entered upon the work. 

I need go no further, your Honours.  Can I then take you to another well‑known case - Stevens v Brodribb Sawmilling Co Ltd (1985-1986) 160 CLR 16, and I want to take you to page 47 in the judgment of Justice Brennan as he then was at about point 5 on the page, maybe point 6:

The entrepreneur’s duty arises simply because he is creating the risk . . . and his duty is more limited than the duty owed by an employer to an employee.  The duty to use reasonable care in organizing an activity does not import a duty to avoid any risk of injury; it imports a duty to use reasonable care to avoid unnecessary risks of injury and to minimise other risks of injury. 

Then the important words –

It does not import a duty to retain control of working systems if it is reasonable to engage the services of independent contractors who are competent themselves to control their system of work without supervision by the entrepreneur.  The circumstances may make it necessary for the entrepreneur to obtain and exercise a supervisory power or to prescribe the respective areas of responsibility of independent contractors if confusion about those areas involves a risk of injury.  But once the activity has been organised and its operation is in the hands of independent contractors, liability for negligence by them within the area of their responsibility is not borne vicariously by the entrepreneur.

We say that those two well‑known passages of principle are a complete answer to the approach adopted in the Court of Appeal.

GUMMOW J:   Stevens v Brodribb have been cited, have they not, in the Court of Appeal?

MR MACONACHIE:   Yes.  They misunderstood it – or misapplied it, your Honour, and that is because in Brodribb’s case you will recall, there were people - sniggers, truck drivers, tree‑fellers and the like - who had to interact in the activities that they had to undertake, each activity being a separate and distinct one from the other but interrelated.  That is not this case.

In this case, Mr Still, however he came to be there, by whatever contractual arrangements were made or were not made, Mr Still entered upon the work of pumping the concrete and he provided Mr Stewart and Mr Fox, together with Mr Stewart’s concrete pump, to do the simple and uncomplicated operation of pumping concrete, delivered no doubt by a large Readymix truck or something like it, from level 4 to level 12 through a series of static pipes to a place where it was discharged and other people, some having put in reinforcement steel, then placed the concrete.

The simple and uncomplicated operation that was undertaken and entered upon by Mr Still with his subcontractors was the pumping of the concrete and nothing more, and that which caused the harm to the plaintiff was an integral and very simple – if somewhat dangerous – operation of cleaning the pipes and the machinery that belonged to Mr Stewart, and in terms of some of the static pipes, Mr Still, so far as the evidence goes. 

If I can take you to the second appeal book I think it is, there is a work method statement which was provided by Downview Pty Ltd pursuant to its contract with Leightons which sets out in summary form the work contracted to be done by Downview.  If you go to page 320 of the second volume of the joint appeal book and you come to the work method statement, it is laid out in landscape form.  In the left‑hand column you will see “ACTIVITY STEPS” and down the page and pages of the document you see “Saw Cutting (Wet)” and “Core Drilling” and then various propositions for recognition of hazards and control measures to the right.

I am interested at the moment only in the activity steps, saw cutting and core drilling, then “Excavation”, over the page, 322, “Mobile Scaffold”, 323 relevantly, “Concrete Placement” - that is what was being done or had been done when the clean up was happening with respect to that operation, and “Shoveling”, “Vibrating”, “Screeding”, some operation that rejoices in the name of “Bull floating”, “Hand trowelling”, “Curing concrete” and then over the next page – I have misled you, concrete placing was not what was happening.  At 324 “Concrete Pumping”, 325 “Steel fixing”, 326 “FORM WORK” and then 328 “MANUAL HANDLING” but that is perhaps a generic risk.

So what Downview was there to do, was a whole series of operations, one only of which, the simple and uncomplicated operation of pumping concrete from a truck on level 4 to a place on level 12 where it would be placed into formwork, it would be trowelled, bull floated and whatever else was done, and Mr Still, Mr Stewart and Mr Fox did that.  It falls squarely, in our submission, within the words of what Justice Brennan had to say in Stevens in that it was something that could reasonably have been delegated to someone who was a specialist and known by Downview to be a specialist, Mr Still.

I will take you to references to the extent that it is necessary to demonstrate that Mr Still through the eminence grise of Toro Constructions had attended on at least three, if not more, occasions at this very site.  He had done work.  He had embarked upon work for Downview pumping concrete.  He had done so efficiently, and without any cause for concern.  He was inducted onto the site by the people represented by Mr Walker and Mr Reynolds, Leightons. 

HEYDON J:   Mr Still worked for Leightons or ‑ ‑ ‑

MR MACONACHIE:   No, Mr Still was an independent contractor on any view of it and it was never in issue that he, Mr Fox and Mr Stewart were each of them independent contractors.  There was, no doubt, confusion about their legal personality in the sense of Mr Stewart had a company and owned the concrete pump – I beg your pardon, to complicate it factually just a little, the pump was in fact supplied by Aggforce who was in one of these cascading arrangements.

FRENCH CJ:   Mr Fox thought he had been sent there by Aggforce?

MR MACONACHIE:   Yes, I think that is right, your Honour.  It was the entry upon the work that is important, as Mr Justice Windeyer said.

BELL J:   In the Court of Appeal at appeal book 614, paragraph 67 the point that was being made was by reason of the haphazard arrangements with the subcontractor Downview had not delegated the responsibility for ensuring the proper induction of staff on the site.

MR MACONACHIE:   If that was an obligation that Downview had, your Honour, it was an obligation that it had pursuant to a contract with Leighton.  It was not any obligation it had pursuant to a contract with anyone else and the task, as Sir Victor Windeyer identified, that was contracted was relevantly Concrete Pumping and the question arose whether or not Downview was reasonably placed to delegate to a subcontractor the doing of that task.

The person to whom it was delegated as a matter of fact, Mr Still, was someone who was inducted and he was known to be inducted and Downview dealt with him, albeit through a number of steps with Toro Constructions which everybody at the trial and/or in the Court of Appeal said at the end of the day had nothing to do with it, but that is who Downview believed and reasonably believed it was dealing with.  A letter, that I will take you to, from the Downview site representative established that and there was no argument about it at any stage of the litigation.  So that it fell to Mr Still, we say, to ensure or to take the steps to induct, whatever that means and whatever that might have entailed, to have his subcontractors inducted or to be satisfied that they were trained, that they were competent.

The trial judge found that Mr Fox and Mr Stewart were experienced and were competent.  The plaintiff, the evidence discloses, had been doing this kind of work for 11 years.  True it is that he said that he was unaware of the concrete pumping code but that was for Mr Still to deal with, not for us, because having dealt with Mr Still who demonstrated competence and experience with 19 years in the industry, it was reasonable and proper and in accordance with ordinary commercial arrangements for that one simple self‑contained, uncomplicated task to be delegated to a subcontractor.

The casual act of negligence of Mr Still and/or Mr Stewart in the two respects found by her Honour, one, using a paper bag filled with dacron rubbish as the means by which the remainder of the concrete was removed from the static line and, secondly, the failure to secure the discharge end, for cleaning purposes, to the waste bin, they were acts or omissions by Mr Still or, alternatively, by Mr Stewart. 

They were the sorts of things against which Downview could have had no opportunity to prevent, unless one were to say if they were taken to the minutiae of their own specialty and told that that was what was necessary to be done, then that might – and that is as high as it can ever get – have given them pause for thought and they just might have done that which common sense dictated in any way, and that is to secure something down which a projectile was going to be forced by compressed air.

All of that was a subsidiary operation for the benefit of Mr Still and for the benefit of the person who owned the concrete pump.  If the concrete pumper, Mr Still and his offsiders, his subcontractors, had decided, having pumped the concrete, that they would not clean their equipment, they would just go away and throw out the pipes, well, that was of no consequence to Downview.  The operation, the very activity that was being undertaken at the time this injury occurred was the maintenance and preservation of the equipment which was necessary for the doing of the work but owned by others than Downview.  It had nothing to do with Downview whether the pipes were cleaned or not cleaned.

BELL J:   What was the purpose of taking us to Downview’s work method statement?

MR MACONACHIE:   To demonstrate to your Honour that there were a series of eight to 10 operations, individual operations, cutting, no doubt preparatory to placement of concrete, formwork, the installation of reinforcing steel, the work of trowelling and placing the concrete, all to be done by different subcontractors.

BELL J:   Accepting there were a number of operations, the work method statement identified potential hazards, including being struck by concrete or a piece of pipe.

MR MACONACHIE:   Yes.

BELL J:   The purpose of the work method statement was to do, what, apart from identify that there are different components to carrying out the task?

MR MACONACHIE:   One might well ask, but what it was there to do, we would say self‑evidently, was to demonstrate that Leighton, having put in its contract the requirement that there be a work method statement, saw to it that there was one and that it was a proper one and was thereby able to say if prosecuted under the Occupational Health and Safety Act, “Look, I did all that was practicable, therefore I cannot be prosecuted”.  That is the reality of it.  Downview provided that statement and her Honour found, though there is issue about it and I will demonstrate to your Honours that it is a good point, her Honour the trial judge found that by preparing that work method statement, identifying the risks and in particular identifying that control over the pumping process was to be done by the owner of the pump, it satisfied any obligation imposed upon it by the general law, but I will take you to that shortly. 

The purpose of taking you to the work method statement is to do no more than show that there were a discrete series of operations of which pumping concrete was one and self‑contained and not one that was in any way relevantly interrelated with any other operations such as might call in to consideration that which Justice Mason in particular said in Stevens v Brodribb where the injury occurred because sniggers and truck drivers in particular were operating in an interrelated way and because they were not co‑ordinated the snigger, I think it was, had a tree fall on him.

HAYNE J:   Do I understand you, therefore, to say that the third or fourth column rather on 324, ‘CONTROL MEASURES”, should be understood as if it said the measures that Downview will take are to require the owner of the pump to take the following steps?

MR MACONACHIE:   Not require in the sense of see to it personally, but to demonstrate to Leighton that it had thought through what was necessary to be done and in the event that an activity in the first left‑hand column was delegated – and subcontracting and delegation was permitted by the contract and permitted by the general law – it could delegate to the contractor its subcontractor the whole of the task including ‑ ‑ ‑

HAYNE J:   That is we should read the column, should we, as if it amounted to employ competent pumper.

MR MACONACHIE:   Yes, which we did, because Mr Still, as I have said, was known and had worked competently on a series of occasions and what Downview did or did not do to protect itself against any prosecution under the Occupational Health and Safety Act has absolutely nothing to do with this case.

BELL J:   Downview led no evidence.  Did the trial judge make a finding about Mr Still’s competence?

MR MACONACHIE:   Yes, and I will take you to it right now, if your Honour wishes me to.  If you go to appeal book 518, 58 and then 519, 12, they are two points at which the trial judge found that Stewart and the plaintiff were experienced – 518, 58:

Mr Stewart and Mr Fox thus came to be at the site by a rather circuitous route, neither having any connection with either the first defendant or the third defendant. 

That is Leightons and Downview –

Both were experienced, although neither had worked on sites of this type.  But each had worked multi storey jobs before.

And so she goes on.  Mr Stewart in fact as she says at 519, line 9, had worked on units up to six storeys tall.  She then says:

Neither was as experienced as Mr Still, who had been in the concrete pumping business for about 19 years, and unlike either of [Stewart and Fox] was familiar with the Code of Practice.

Then she finds at 519, 29 that what happened was:

the use of a concrete bag, and thus caused by Mr Still’s casual act of negligence.

Whilst I am there, your Honours, at 519, 58 you will find a series of findings by her Honour as events unfolded thus.  If you go to 520 at line 11:

Mr Stewart and the plaintiff were experienced and had worked together previously –

At about line 16 on the same page:

Mr Stewart was experienced in the concrete pumping business, in which he had worked for 11 years although the largest job that he had done was “probably a six storey block of units.”  The plaintiff was less experienced . . . 

Mr Stewart and Mr Still had known each other for some time; and each knew the other to be experienced . . . 

Mr Still was very experienced, having worked in the industry for 19 years and had installed the static line and the pipes which ultimately injured the plaintiff.  Mr Stewart knew Mr Still to be an experienced concrete pump operator and line operator in particular, and Mr Steward had no concerns about working with Mr Still.

At about 51 – no, I do not need to take you there, at the moment.  Those findings are very important, we say.  Another finding that is important is supported by a letter which went into evidence and about which there was no debate, I think I am right in saying – volume 2, page 428.  This is a letter written by Mr Raines who was the site representative of Downview.  This was written after Downview had been excluded from the site as a result of this accident.  He says at line 35, or thereabouts:

On March 6, 2003, I rang Toro Construction, my pumping sub‑contractor informing him about the pour on Friday, 7‑3—03 –

the day that the accident happened –

They have been doing all previous concrete pumping with us without any problems.  They have been inducted LCPL -

Leightons –

On, March 7, the day the accident happened, I arrived from my lunchbreak, pumping had already started.  Quincy –

that is Mr Still –

from Toro Construction was there.  I left them, and went to the other parts of the job.  On my way home, I had a phone call –

and so it goes on.  That established, and her Honour so found, that Downview knew that Mr Still was experienced.  Can I take you to 539, your Honour, there is another reference to Mr Still – line 28 in the middle of the line:

Mr Still was very experienced, competent and in control of the pump clean up, in conjunction with Mr Stewart, who equally was very experienced.

HEYDON J:   But was he experienced in pump blowouts, by way of cleaning?

MR MACONACHIE:   Absolutely.  He was.  I will find a reference that will assist your Honour in that regard.  There is evidence and I will ask Mr Gambi to find a reference to it.  I am sure there is evidence to the effect that on each of the other occasions on which Mr Still had worked on this site prior to 7 March the end of the static line from which the cleaning mechanism was discharged had been tied down or attached and Downview knew that so that there was absolutely no reason why Downview should not, could not delegate in accordance with the principles that I referred to earlier, the concrete pumping operation to Mr Still.  I emphasise again, your Honours, the clean‑up operation was of no concern to Downview in terms of what it contracted to achieve.

It wanted the concrete pumped to a particular place.  Whether or not lines thereafter were cleaned was of no consequence at all.  If they reached the end of their useful days and they were taken away and dumped, so what.  If they still had useful life and the persons who either owned or were by lease of the material chose to clean them, that was something they were doing for their own benefit and not for the benefit of Downview.

HEYDON J:   We have three people, one seems to be a natural person, an independent contractor, Mr Fox.

MR MACONACHIE:   With his own ABN number I might add your Honour, for what that is worth.

HEYDON J:   One is Toro Constructions with its employee Mr Still and one is Warren Stewart Pty Ltd with its employee Mr Warren Stewart.  If you have three separate independent contractors, does that not suggest there is some different processes being carried out and some need for co‑ordination of them?

MR MACONACHIE:   Not at all, your Honour, because they were working together as a team and in tandem.  The mere fact that they were individually forgetting about the corporate structures, because Toro was the contact point for Mr Raines, Mr Raines who was the site representative of Downview, the inference is from his letter at 428 that each time he contacted Toro he was provided with Quincy and it was not a matter for him to inquire into whether Quincy was an employee or a subcontractor of Toro.  What he wanted to do was get his subcontracting contractor to provide an outcome, a result, and how that was achieved he did not care because the person who had turned up, Quincy Still, was demonstrably good at what he did and there was no reason why he should not rely on him.

In the ordinary course of commercial events he passed the doing of this simple uncomplicated operation over to somebody else, was entitled to according to the contract and was entitled to according to the general law, most importantly.  Mr Still, whether he was Toro or whether he was an independent contractor engaged by Toro, undertook the work and that is what gave rise to any duty of care.  The operation was self‑contained involving three men who knew each other, or at least two who knew each other.  Mr Still knew Mr Stewart well, Mr Stewart knew Mr Fox well.  There is nothing to suggest that there was such an interrelationship of activity as to require or call into play the unusual Brodribb type obligation. 

Your Honours, if the way in which Justice Basten dealt with this case is right, then it has this effect we say.  There is a common law duty to contract to control others.  That is the substance of it.  That is inconsistent with notions of freedom of contract and privity.  Mr Fox cannot call in aid the arrangements made between Downview and Leightons and say they undertook to Leightons to do X, Y and Z and, “I can take advantage of that.  It informs the content of any duty of care that Downview might owe to me”. 

Secondly, it offends what Justice Brennan had to say at the passage to which I have already taken your Honours, that is, there is no duty to control working systems of independent contractors.  It is inconsistent with the very idea of independent contractors undertaking a risk and bearing the risk themselves.  Can I take your Honours in that regard to what is said in Stevens at 41 point 5 by Justices Wilson and Dawson, commencing at about point 5 on the page where there is a second extract from the judgment of Sir Frederick Jordan in Torette House Pty Ltd v Berkman the reference to which is (1939) 39 SR (NSW) 156, particularly at 170:

“But there is no general rule that if a person employs an independent contractor to do an inherently lawful act, he incurs liability for injury to others occasioned by the methods incidentally employed by the contractor in the course of its performance (these not being methods necessarily involved in the doing of the act and necessarily injurious), by reason only of the fact that the act is ‘dangerous,’ ‘hazardous,’ or ‘extra hazardous’.

They then refer to the principle laid down in Honeywill’s Case and refer to a number of other cases in America and elsewhere.  At point 9 on the page:

On the other hand, support for the view taken by Jordan C.J. Is to be found in the Rainham Case:

where Lord Buckmaster and Lord Parmoor, rejected the notion rejected the notion advanced by Atkin L.J. ‑

as he then was -

in the Court of Appeal that a person employing an independent contractor to do works of a kind likely to cause danger to others is under a duty to take all reasonable precautions against such danger and that he does not escape from liability for the discharge of that duty by employing the contractor if the latter does not take precautions.

He then goes on to refer to Hughes v Percival, one of the early cases on non‑delegable duty.  Non‑delegable duty in this case was dispatched to the boundary even by Justice Basten.

GUMMOW J:   I thought that doctrine was in bad health.

MR MACONACHIE:   It may be, your Honour.  It may well be.  But whether it is fighting fit or fighting the swine flu, it has nothing to do with this case.  Further, your Honour, the notion that we say is epitomised by Justice Basten’s judgment at appeal book 616, line 20, that is an obligation to contract in a particular way is inconsistent with the general rule that A does not owe a duty of care to B to prevent self‑harm or harm by B to C.

Your Honours recently decided the sad case of Stuart v Kirkland‑Veenstra, the media‑neutral citation of which is [2009] HCA 15. At paragraph 99 in the judgment of Justices Gummow and Hayne, I think, it is said:

So expressed the duty would be a particular species of a general duty to rescue.  The common law of Australia has not recognised, and should not now recognise, such a general duty of care.

This Court long ago in Smith v Leurs recognised the same principle and more recently did so in Modbury and your Honour Justice Heydon recognised it in Van Der Sluice when your Honour sat on the Court of Appeal.  Further, any such notion as is expressed by Justice Basten is inconsistent with the individualistic ethos of the common law which was recognised again by Justices Gummow, Hayne and Heydon at paragraph 87 where your Honours said on its face:

the proposed duty would mark a significant departure from an underlying value of the common law which gives primacy to personal autonomy, for its performance would have the officers control conduct of Mr Veenstra deliberately directed at himself.

That is a slightly different situation but a cognate idea to the one that I am advancing. 

Personal autonomy is a value that informs much of the common law.

And then your Honours go on to ‑ ‑ ‑

FRENCH CJ:   How does that work in this context?

MR MACONACHIE:   It works in this context in this way, your Honours.  The notion that Justice Basten is asserting, we say, a general law duty to contract in such a way as to protect the safety of others is inconsistent with Smith v Leurs, Modbury, Kirk v Veenstra and this underlying primacy of individual autonomy.  It is a backdoor way, it might be said, of getting around that which this Court has set its face against on many occasions. 

Another way of putting it might be to say that it is the fifty‑first step warned against by the dissentients in Donoghue v Stevenson because it starts to become very circular.  You do not have to have a contract in order for there to arise a duty of care but there is a duty to contract in a particular way to ensure others are not hurt.  We say it just does not fit in in any way, shape or form with the construct of the common law, particularly the common law of negligence.

GUMMOW J:   Was there any authority relied upon by Justice Basten to ‑ ‑ ‑ 

MR MACONACHIE:   Can I take you to that in just a moment, your Honour.  We say no.  The last point I want to make on the proposition I am presently advancing is that it would be inconsistent with the recognition in a different context of the difference between contractors and employees which this Court recognised in Sweeney v Boylan the medium neutral citation of which is [2006] HCA 19. Your Honours will remember that was a vicarious liability/doctrine in ill health case. Before I come to Justice Gummow’s point, Justice Basten spoke of the haphazard manner in which there had been contracting by Downview. We say with respect to that finding – and you will find it, your Honours, at ‑ I apologise, I have not written down the reference to the appeal book.

FRENCH CJ:   The haphazard manner did you say?

MR MACONACHIE:   I am sorry, your Honour.

FRENCH CJ:   Is this a reference to the haphazard manner of the operation?

MR MACONACHIE:   Yes.

FRENCH CJ:   That is at 615 at 68 I think. 

MR MACONACHIE:   Thank you, your Honour.  That is a finding of fact that was not agitated in the notice of appeal in the Court of Appeal.  There was no evidence, we say, to permit the inference.  It assumes rather than demonstrates an obligation to contract in an ordered and punctilious way and that is contrary to the approach that Justices Wilson and Dawson took in Stevens at the passage I have already referred to.  It implies – this moves towards causation but I will make the point now if I may – that a chance of a better outcome is sufficient to establish causation, a point not pleaded in the Court of Appeal and contrary to common law principles of causation in any event.  Could I direct your Honours’ attention to 615 line 25 where Justice Basten says that:

an opportunity to ensure that safe practices were adopted on the site was lost . . . 

This cross‑examination tended to emphasise the importance of the induction training –

whatever it might have covered –

and the likelihood that, had it been undertaken by Mr Stewart, different practices might have been adopted –

again loss of a chance of an opportunity for a better outcome we say. 

HEYDON J:   Very shortly, what does Gett v Tabet say on this question?

MR MACONACHIE:   It is 100 pages long.

HEYDON J:   Yes.

MR MACONACHIE:   It says, at the passages to which I will take you, after re‑examining ‑ ‑ ‑

GUMMOW J:   It is 254 ALR 504.

MR MACONACHIE:   Yes, it has been reported and I apologise for not getting your Honours that report.  It was the efficient librarian of this Court that drew to our attention that Butterworths have been quick off the mark.  It is at [323] I think.

GUMMOW J:   I cannot imagine why it is in the Australian Law Reports, but there it is.

MR MACONACHIE:   There it is.  Paragraph [323] I think, your Honour.  I will find a reference to it.  It is in our written submissions.

GUMMOW J:   The paragraph numbers might help.

MR MACONACHIE:   Paragraph [332].  Let me go to my written submissions so that I can give your Honours the particular references we want you to look at. 

GUMMOW J:   Is there any leave application in this matter, do you know?  Any special leave application in this matter?

HEYDON J:   I think there is one. 

MR MACONACHIE:   I do not know, your Honour.  I will be staggered if there is not.  It is in our submissions in reply in fact.  The paragraphs we particularly rely on are [332] to [334], [341], [350] and [385], and the proposition for which we rely on in that case is that loss of a chance of a better outcome, such as has been recognised in Fairchild’s Case in the House of Lords, is insufficient to satisfy causal requirements and that supports our principal submission that section 5E of the Civil Liability Act imposes upon the plaintiff in any case an obligation to prove on the balance of probabilities any fact that is necessary to engage principles of causation.  From [332] to [334] their Honours enter upon the proposition and then at [341] there is reference to a number of other cases.  It is [350], I think, your Honour, that there is a reference to Cameron’s Case but [385] is where ‑ ‑ ‑

BELL J:   I am sorry, where are you, Mr Maconachie?

MR MACONACHIE:   I am trying to answer very ‑ ‑ ‑

BELL J:   No, it is just the reference.  I thought we were ‑ ‑ ‑

MR MACONACHIE:   I beg your Honour’s pardon.  I am looking at the New South Wales Court of Appeal decision in Gett v Tabet [2009] NSWCA 76 and the passages to which I would draw your Honours attention are paragraphs [332] and [334].

BELL J:   Thank you.

MR MACONACHIE:   I only have a copy from the Court of Appeal web page, your Honours.  The next reference is [341] then [350] but that all leads to the proposition that is advanced by their Honours, including Justice Basten, I should bring to your Honours’ attention, at [385]:

if provision of damages for the loss of a chance of a better outcome involves a new concept of causation, that construction would not be consonant with the principles relating to causation set out in ss 5D and 5E of the Civil Liability Act.  In particular, s 5E requires that the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.

This whole concept of loss of chance of an opportunity of a better outcome finds its expression principally in Fairchild where their Lordships plainly said, “We’re making a policy decision which in effect assists the plaintiff to leap the causation proof hurdle”.

HAYNE J:   This branch of your argument takes as its assumptions contrary to your primary position, A, that there is a duty, and B, that there is a breach.

MR MACONACHIE:   Yes.

HAYNE J:   Can I take you back to the question of duty?

MR MACONACHIE:   Yes, I was drawn into it by the way in which Justice Basten had dealt with the matter but I am happy to deal further with duty, your Honour.

HAYNE J:   Can I do it by reference particularly to Kondis, which I do not think it is on the lists of authorities but Kondis 154 CLR 672 and commonly referred to as the non‑delegable duty of an employer to an employee.

MR MACONACHIE:   Yes, your Honour, the crane case.

HAYNE J:   Yes, where the crane in question was operated by an independent contractor.  Consistent with Kondis, would it follow that Downview owed a duty of care to any employee of Downview who was on site at the time of the pour and the cleaning of the pipes?

MR MACONACHIE:   I think it must.

HAYNE J:   The duty relevantly would have been a duty to ensure that the independent contractor undertook a safe system of work, would it not?

MR MACONACHIE:   That is because the – and something about which there can be no doubt, there is a non‑delegable duty owed by an employer to an employee. 

HAYNE J:   But the duty extends only to the employee who happens to be struck by the pipe, not to the independent contractor engaged in the pour who standing next to the employee is hit second by the pipe.

MR MACONACHIE:   Well, your Honour, that might engage the approach favoured by Justice Mason in Stevens v Brodribb.  That is because you have the employee who is under the control and direction of the employer and an independent contractor who is there to produce an outcome and their interrelated activities would require, I would accept, some co‑ordination, depending upon the circumstances of the particular case but it would be Stevens rather than Kondis, we would say, your Honour.

HAYNE J:   But regardless of whether the employee in question was participating in the pour or just happened to come back from lunch a little earlier and happened to wander up to level whatever it was where the pour occurred.

MR MACONACHIE:   Yes.

HAYNE J:   Downview would owe that employee a duty to ensure that the independent contractor engaged by Downview to conduct the pour adopted a safe system of work, that is to say, took the various steps identified in the chart you took us to at page 324, I would have thought.

MR MACONACHIE:   Well, that depends, your Honour, whether or not the employee of Downview at the time that he was injured was in the course of his employment.  If he is not, going there to have a look or wandering back from his lunchbreak or whatever, he is not in the relevant sense in the course of his employment and therefore the liability would be that of the subcontractor only because it is the activity of the subcontractor and not the activity of the employer that gives rise to the risk.

HAYNE J:   But where the inquiry is ultimately headed, Mr Maconachie, is this question of arriving at a coherent outcome.

MR MACONACHIE:   Absolutely.

HAYNE J:   Here you have Downview organising the pour and it engages independent contractors who in turn engage a succession of independent contractors down the line.  Downview is contractually bound, apparently, to Leighton to tell Leighton what it is going to do to ensure a safe worksite. 

MR MACONACHIE:   Yes, for the benefit of Leighton.  Indeed.

HAYNE J:   People make contracts generally because they think it is to their advantage.

MR MACONACHIE:   Sure, I accept that.

HAYNE J:   They are in business.  But we end up, do we – and this is what niggles at the back of the mind – do we end up with tortious outcomes that depend only upon who is struck, whether it is the employee or whether it is the independent contractor, and if that is the outcome, is that a justifiable outcome or is it an outcome that is lacking a degree of coherence which might make you stop and look at some of the steps that you have taken along the way?

MR MACONACHIE:   I would submit not, your Honour, because the employer has an obligation to take reasonable care for the safety of his employee and it is a duty which is of a special and personal kind, that is, to ensure that care is taken but that is ‑ ‑ ‑

HAYNE J:   Because the employee’s safety is in the hands of the employer is the way Justice Mason puts it in Kondis.

MR MACONACHIE:   Indeed.

HAYNE J:   Yes.

MR MACONACHIE:   But in Kondis the employee was working with – in the course of his employment he was working with the crane driver, as I recall it, as a dogman or as a chaser or something like that, so that plainly enough how the employee interacted in a dynamic way in the course of his employment with the independent contractor was something which the employer had to be responsible for.  He could delegate the task but he could not delegate the responsibility.

In that situation, the contractor is, to all intents and purposes, another employer, qua the injured employee of the employer but that is not this situation because in accordance with the approach, unarguably correct, we would submit, by Justice Brennan at page 47 in Stevens, if he can reasonably delegate the section of the work he is contracted to do to somebody who is competent, somebody who he can have faith in, then the problem that your Honour is putting to me does not arise because there is no Downview employee there who is or might be hurt, so that Kondis really is dealing with the problem on its own particular facts and does not lead to any problem of coherence but if your Honours give your imprimatur to what Justice Basten says, for all of the reasons that I have given it is inconsistent with and incoherent with a number of other basic propositions.

HAYNE J:   Yes.  The last point I would put to you for your consideration is that I suspect it may be said that to distinguish between employees and independent contractors on a large commercial building site is something that might properly fascinate lawyers but seems just a tad unreal on the site, and whether they have ABN numbers or not ‑ ‑ ‑

MR MACONACHIE:   That is the sort of thinking that plainly informed the Court of Appeal, but this is a discipline which is informed by principle and precedent.

HAYNE J:   Yes.

MR MACONACHIE:   The approach that they took is not supported by principle or precedent and is inconsistent with it and your Honour may well be right and I will venture to rely on what Justice Kirby said in his dissent in Sweeney v Boylan, all the usual authorities which dictate that such a change in the law is a matter for Parliament and not a matter for the Court because there are not too many Mr Henrys sitting on this Court or informing this Court through its structures and a change as dramatic as that – and we would say it is dramatic – could have commercial impacts that are unforeseeable to those of us who ‑ ‑ ‑

HAYNE J:   People have insured on a particular basis, I recognise that.

MR MACONACHIE:   Not only that but contracted on a particular basis and it would be inconceivable that the Court would do it on a feeling that it just was a bit unreal, your Honour.  In a sense, that seems to be what informed Justice Basten’s approach.

GUMMOW J:   What one does not find really is an explanation of what considerations went into isolating and identifying the duty.

MR MACONACHIE:   Yes.

GUMMOW J:   It seemed to be the first sentence at paragraph 67 on page 614. 

MR MACONACHIE:   To be fair to Justice Basten, it is a little earlier than that because he refers to his analysis of Leighton’s situation earlier.  If your Honours go back to paragraph 47 which you will find on page 604 of volume 2 of the appeal book, his Honour says this:

Although Leighton was not vicariously responsible for the negligence of its subcontractors or of persons subcontracted by them, it remained the principal contractor with overall responsibility for the safety of the site, on which ‑ ‑ ‑

GUMMOW J:   Where does this phrase “overall responsibility” come from?

MR MACONACHIE:   Yes.  It just comes out of the ether, with great respect.

GUMMOW J:   Responsibility to whom for whose safety on the site?  These are mysteries.

MR MACONACHIE:   I put it back to your Honour rhetorically, there is no appeal to precedent or principle to support that fundamental position to the approach taken by Justice Basten. 

GUMMOW J:   I think it is being said that there is a significant number of tradespeople and other workers present there at any one time and they are neighbours it seems.  They have become Donoghue v Stevenson neighbours, I think.

MR MACONACHIE:   Apparently.

GUMMOW J:   Sub silentio perhaps.

MR MACONACHIE:   Then at the top of page 605:

Thus it has long been accepted that a principal may be liable for the negligence of an independent contractor where the principal has directly authorised the doing of the tortious act.

That is not this case.  This was not directly authorised by Downview or, for that matter, Leighton, that is, the doing of a work without tying down the end of the pipe or using the dacron‑filled paper bag.  The next proposition ‑ ‑ ‑

FRENCH CJ:   Is this being derived from the Occupation Health and Safety Regulations?

MR MACONACHIE:   Can I come to that in a minute, your Honour.

FRENCH CJ:   Yes.  You seem to be saying it is reflected in that.

MR MACONACHIE:   Yes.  It cannot be for a number of reasons, which I will come to shortly by specifically addressing some steps that I have outlined in the written submission.  The next proposition is at line 19:

Similarly, the principal may be required to co‑ordinate the activities of various subcontractors –

but he does not rely on that Stevens principle, if I can call it that.  It is not this case. 

GUMMOW J:   The next step seems to be occupier’s liability.

MR MACONACHIE:   Yes.  He does not rely on that either, at least there is no analysis of any of the facts to demonstrate that Downview was, in any relevant sense, an occupier. 

GUMMOW J:   Then the problem with the sentence at line 31 is “such a duty”.  Now, there has been identified a number of species but there is no genus yet and there is an assumption of a genus.

MR MACONACHIE:   Indeed, your Honour, and then at paragraph 48 it gets even a little less clear, in our respectful submission:

The older case-law –

whatever that might be –

concerning accidents on construction sites does not indicate that a general law obligation to provide training in matters of safety . . . It is also clear that construction sites were relatively dangerous workplaces –

Well, so are roadways –

The obligation to ensure a reasonable level of safety is, however, now well‑recognised.

But there is no evidence in the case that would support that proposition.  There was no finding of fact by the trial judge, and there is no appeal to precedent or principle.

GUMMOW J:   Well, the very last sentence on 605, “The obligation” to whom “to ensure a reasonable level of safety” of whom?

MR MACONACHIE:   The world at large, apparently.  Can I come to the Occupational Health and Safety Code of Practice in particular, your Honours.  We deal with it in our written submission ‑ ‑ ‑

GUMMOW J:   But still trying to isolate the duty, it may be at paragraph 67.

MR MACONACHIE:   Yes, your Honour, then we come to 67, but more particularly I would have it ‑ ‑ ‑

GUMMOW J:   The duty is to be discharged, I think, by obtaining similar conditions.

MR MACONACHIE:   Yes.  It is articulated, your Honour, at page 616, as I read his Honour’s judgment, at line 16:

Downview had a general law obligation to those participating in carrying out its contracting work to conduct operations safely and to do that it was obliged to contract with competent and properly trained operators.

So there is a common law duty to contract a particular class of person, but in any event, even if that was the obligation and there has not been recognised by the law thus far, on the facts as found by the trial judge, to which we have already taken you, still was competent, and so was Fox and so was Stewart – and properly trained, but I have taken your Honours to those.

GUMMOW J:   I took you away from the attractions of the code.

MR MACONACHIE:   I do not know that I would embrace that description of it, your Honour.  Can I take you, please, to paragraph ‑ ‑ ‑

GUMMOW J:   I mean, it would be one thing to say, look, this practice of subcontracting is widespread, it has an element of artificiality about it to the layman and, therefore, the law of tort is going to be changed to permit this.  That is one thing.  Then that stands or falls on various social and economic views, I suppose.  It is another thing to try and say it exists as a necessary process of deduction from previous decided cases.

MR MACONACHIE:   Well, it does not. 

GUMMOW J:   That is what one has to try and find.  That seems to be what was being attempted.

MR MACONACHIE:   Yes.

GUMMOW J:   My worry is that it was not achieved.

MR MACONACHIE:   I hope I have demonstrated that the decided cases and the principles to be deduced from them are contrary to what Justice Basten attempted to do, and therefore the duty that he found to the extent that it is articulated is one unknown to the law and one which your Honours ‑ ‑ ‑

GUMMOW J:   Because too much overt dynamism in imposing new liabilities in tort in negligence produces a reaction, experience tends to show, for example, the Civil Liability Act.

MR MACONACHIE:   Indeed.  Well, I do not want to say any more about that, I want to take you to the Occupational Health and Safety Code of Practice, paragraph 22.  There are a couple of very short propositions, if I could just march your Honours through these written submissions to demonstrate what we have to say about it.  The basic proposition that we make is that this code of practice has a purpose entirely foreign to informing the content of any common law duty of care, and that is because it finds its life in an Act which imposes strict liability for creating risks, not injury, but risks, and gives rise to criminal consequences.  This code of practice is promulgated to assist and guide – it is not a regulation in the same way as ‑ ‑ ‑

FRENCH CJ:   When you say it has life, what kind of life does it have?  It does not have statutory force, does it?

MR MACONACHIE:   No, it does not.  It is, as it is described, a guideline to assist people who might be exposed to the rigours of the Occupational Health and Safety Act to enable them to take reasonable steps to try to protect themselves from liability so that they can rely on the statutory defence of reasonable steps, the onus of which is upon them.  Presumably the idea is that the WorkCover people, having produced these guidelines, if there has been demonstrated to be an attempt to follow the guidelines then you are a long way towards being able to satisfy a court that you have taken reasonable steps.

That is the purpose of them, it is not like regulation 73 of the construction safety regulations, with which I know your Honours are all intimately familiar, but I will hand up shortly a judgment of Justice Heydon in the Court of Appeal which sets out ‑ ‑ ‑

GUMMOW J:   Are you trying to verbal his Honour?

MR MACONACHIE:   Absolutely not, your Honour.  Nothing could ever bring me to even contemplate such a notion.  It sets out the regulations and it sets out the way in which both in terms of breach of statutory duty and also as informing the common law duty of care those prescriptive regulations operated.  For example, regulation 73 said, if you have somebody working where they are liable to fall 1.8 metres you have to have scaffolding, you have to have safety belts, et cetera.

It is one thing to say that a regulation or a document of whatever kind can inform a common law duty of care because it prescribes things that you can and should do; it is another thing to say, here is a statutory compact which imposes liability if you do not achieve an outcome.

Something that is connected with that kind of regime is the antithesis of something that can inform what you need to do in order to take reasonable care.  Can I try and give your Honours some assistance in how the code does whatever it does do.  In volume 1, page 271 you will find the concrete pumping code set out.  I will have a few things to say about it in a moment.

GUMMOW J:   What is the genesis of this instrument?

MR MACONACHIE:   I will take you through the document that I have prepared.

GUMMOW J:   Where does it come from?

MR MACONACHIE:   This document at page 271 comes from WorkCover but it comes from WorkCover via the steps that I am about to take your Honours through. The code of practice was given light, if I can call it that, by section 44A of the Occupational Health and Safety Act. You will find the code at page 271. Section 44A, I do not know that I have provided that to your Honours and I do apologise.

GUMMOW J:   We do not seem to have it.

MR MACONACHIE:   It is that he 1983 Act, I apologise to your Honours.

GUMMOW J:   That is the problem.  Yes, that is right.

MR MACONACHIE:   I do not think I have given you the 1983 Act, but I do not think it will matter.

GUMMOW J:   Do you have the text of section 44A there?

MR MACONACHIE:   No, I do not, your Honour.  I apologise.  I will make sure that it comes to your Honours before we leave today.

HEYDON J:   This accident happened in 2003.

MR MACONACHIE:   Yes, indeed.

HEYDON J:   What does the 1983 Act have to do with it over the 2000 Act?

MR MACONACHIE:   It was, to use an expression that I hate, grandfathered into the 2000 Act by the following steps.  When the 1983 Act was repealed – paragraph 23 on page 5 of the written submission – Schedule 3, clause 9 of the 2000 Act – it is in the written submissions of my learned friend at page 15.

GUMMOW J:   Yes, we have it.  Schedule 3?

MR MACONACHIE:   Schedule 3, clause 9.  It continued the codes of practice that were then in existence and the pumping code was one.  They were continued under Part 4 of the 2000 Act.  Part 4 of the 2000 Act I can hand up to your Honours, the operative parts thereof.

FRENCH CJ:   I think we have it, Mr Maconachie.

MR MACONACHIE:   Thank you, your Honour.  Part 4 is headed “Industry codes of practice”.  Sections 40 to 46 are important and perhaps I should go to 46(2) first:

A person is not liable to any civil or criminal proceedings by reason only –

and I emphasise “only” –

that the person has failed to observe an approved industry code of practice.

I will take your Honours shortly to a point in the judgment where his Honour Justice Basten says, “solely on the above basis” ie, not complying with the code of practice, but I am getting in front of myself.  Part 4 deals with “Industry codes of practice” I say in 23(iii).

FRENCH CJ:   In other words, it cannot be characterised as a breach of a statutory duty, for example.

MR MACONACHIE:   No, and nor was there any pleading to that effect, that is, that it was sufficient to support an O’Connor v SP Bray, Sovar v Henry Lane type breach of statutory duty.  The point we make in (iii) is that – it provides – this is section 40:

The purpose of an industry code of practice is to provide practical guidance to employers and others who have duties under Part 2 –

Now, Part 2 is that part of the Occupational Health and Safety Act 2003 which gives rise to these statutory obligations which are put in the imperative –

An employer must ensure the health, safety and welfare at work of all the employees of the employer.

That is section 8.  Your Honours may not have that.

HEYDON J:   We do not have Part 2.

MR MACONACHIE:   Can I give you a bundle which contains sections 8 to 12, both inclusive.

BELL J:   Just while that is being done, I note that to the extent the matter was the subject of pleading, it was in paragraph 7(k):

Failing to ensure that the Code of Practice for pumping concrete (especially clause 3.18) was being observed during the cleaning of the concrete pipeline.

MR MACONACHIE:   Yes, and that was alleged against Leightons and then by reference alleged against Downview.

BELL J:   Against Downview.

MR MACONACHIE:   That is right, your Honour.

BELL J:   Yes.

MR MACONACHIE:   Section 9, “Duties of self‑employed persons”.  Your Honours will note that in each of the sections the substance and burden of the obligation is as follows, look at 8(1)(a):

That duty extends (without limitation) to the following:

(a)ensuring that any premises controlled by the employer where the employees work . . . are safe and without risk to health –

You do not have to cause harm.  You merely have to be found to have given rise to a risk.  Then in (iv) on page 6 of our document, Part 2 of the Act deals with duties relating to health, safety and welfare at work.  Then I make the point in (v), unlike regulations made under the construction safety legislation, and the Factories, Shops and Industries Act and the like, they are not prescriptive but they direct attention to adverse outcomes.

Then in (vi) the concrete pumping code is designed to provide practical guidance to persons in order to enable them to attempt to comply with strict outcome‑directed provisions in respect of which reasonableness and practicability do not have a role to play otherwise than in a particular provision of the Act later where there is a defence, the onus of establishing which is upon the accused and does not work all that well.

Then we make the point that it is thereby incapable of informing the content of the common law duty to take reasonable care for the safety of another.  We then make the point in paragraph 24 – perhaps I should take you to one or two points in terms of construction, if I can call it that, of the code of practice.  This supports the proposition that even if the code of practice could be used in the way in which Justice Basten deals with it, it cannot impact upon Downview for the following reasons.  At page 271 of the first volume of the joint appeal book, this is at 44 or thereabouts:

2.1      Planning by builder

When planning for pumping concrete to be on site the builder or [principal] contractor should consider such factors as -

Top of page 272 at line 11:

2.2Planning by concrete pumping contractor

In addition to collaboration with the builder or principal contractor ‑

and “principal contractor” is defined – and I will come to it in a moment -

in the overall planning for pumping concrete on site, the concrete pumping contractor should consider -

and then there are a number of methods referred to.  You come to 3.18 on page 275, and it is set out elsewhere but “The following safety precautions should be followed” and they are there set out, relevantly:

c.A positive catchment device -

The case seems to have proceeded on the basis that the bin into which the concrete was being discharged was a positive catchment device, that is the basis upon which I understand ‑ ‑ ‑

FRENCH CJ:   A hazard to which that is directed is it is designed to ensure that whatever is put through the pipe goes into the bin and does not go free, none of this directs itself to the actual hazard that gave rise to the accident in this case.

MR MACONACHIE:   Absolutely, and, your Honours, can I take you further to 276, line 46.  This is under the heading “Inspection and maintenance”.  It is giving guidance to the person who maintains or inspects the particular chattels that are used:

All pipeline, including reducers, bends, hose and couplings should be inspected monthly using ultrasonic testing -

That cannot be Downview who used a subcontractor, rather than purchasing its own equipment which would sit idle for weeks at a time.  Then can I take you to 279, the definition of “Principal contractor” at 52.  It is:

A person or company contracted by the owner to carry out the work.

“The work” here was the pumping, and either it is Leighton who is the principal contractor or it is Mr Skill or the person from whom he contracted, but it is not Downview.  Could I then move on your Honours to briefly address O’Connor v Commissioner for Government Transport.  It is referred to in paragraph 25 of my written submission at page 6. 

It is well known, and I have said it often enough in these submissions, a simple and uncomplicated operation and that is the proposition that comes out of O’Connor’s Case.  It is digested, if I can put it that way, in Glass, McHugh and Douglas at page 45 point 6.  That page is attached to the written submissions or, rather, the synopsis that I relied on on the special leave application.  The point is no more than this.  The employer, let alone a head contractor, is entitled to have some regard to the fact that the person he employs is skilled and is basically sensible and if it is an uncomplicated simple operation in the course of work, then he is entitled to rely on the man to look after that operation.  That was this case. 

Can I hand up to your Honours, without addressing it in any detail, a judgment in Kolodziejczyk v Grandview Pty Ltd [2002] ALR 81‑673 at page 69,173. It is a decision of the Court of Appeal. It is the judgment ‑ ‑ ‑

FRENCH CJ:   It is not the Australian Law Reports, is it?

MR MACONACHIE: No, this is the Australian Torts Reports, your Honour. It is the only place it is reported. Its media neutral citation is [2002] NSWCA 267. It is a judgment of Justice Heydon when he sat in that court and, if I may respectfully say so, a tour de force in terms of this area of the law in which the areas that I have been discussing are dealt with but against the background of the prescriptive regulations under the Construction Safety Act that were then enforced.  All the more powerful support for the propositions, we say, that we put because the plaintiff failed.  Acting Justice Ipp, as he then was, agreed with Justice Heydon.  Justice Davies dissented on a narrow question of the application of the construction safety legislation and is for present purposes irrelevant.  That is all I want to say, your Honours, about that aspect of the matter. 

Can I take you to paragraphs 32 and following of our written submission where we deal with the point on causation.  I have already dealt with it.  I rely on what is there said and I rely on the examination of the cases both in other common law jurisdictions and in this Court that led Justice Allsop and others, including Justice Basten, to the conclusion that what had been said in that court in Rufo v Hosking, that is, that a loss of a chance of an opportunity through a better outcome is insufficient to support a causal finding.  They make the point, as I have taken you to, that it is inconsistent with section 5E of the Civil Liability Act, which your Honours have been provided with, and for all of those reasons we ask that the appeal be allowed and that the orders prayed for be made.

HEYDON J:   You were going to give, I think, some evidence references ideally to the state of knowledge of Mr Fox, Mr Still and Mr Stewart as to ‑ ‑ ‑

MR MACONACHIE:   I thought I had done that, but I will see that before we leave today a more comprehensive list of those ‑ ‑ ‑

HEYDON J:   It is your position that Mr Fox and Mr Stewart were not familiar with this whipping effect which might cause injury during the cleaning, whereas Mr Still was.

MR MACONACHIE:   Mr Stewart and Mr Fox both claimed to be unfamiliar with the need to tie down the end of the pipe – that was the discharge end of the pipe – for the purpose of the cleaning process.  Mr Still was so familiar with it.  There are references – and we will see to it that your Honours have those references – that he had done it – I think I am right in saying – that way on this job previously.  But Mr Stewart and Mr Fox said they were unfamiliar with that.  Her Honour the trial judge, at references that we will give you, made a finding with respect certainly to Mr Stewart that his professed inexperience was not to be taken at face value and that he was more experienced than he claimed to be.  We will give your Honours references to those.

FRENCH CJ:   The work method statement prepared by Downview did not identify this as a potential hazard?

MR MACONACHIE:   No, it did not.  That satisfied Leightons.  Can I make this point and I think it is only peripheral.  The first work method statement that Downview gave to ‑ ‑ ‑

FRENCH CJ:   It was not good enough.

MR MACONACHIE:   It was not good enough.  Then the next one was.  As your Honour says, that specific problem and need was not addressed.  Perhaps one can infer that that is because it was so much into the minutiae of what the specialist pumping person should do that it was something for the pumping person, being the principal for the work of pumping, was required to attend to.  Those are our submissions, your Honour.

FRENCH CJ:   Thank you, Mr Maconachie.  Yes, Mr Walker.

MR WALKER:   May it please your Honours.  Leighton Contractors can conveniently be called the principal contractor.  I will take you in a moment to the statutory reasons why and how that is so, but for once the statutory term actually provides in the ordinary meaning of the words an insight into our status.  As such, we immediately accept that the spectacle Justice Hayne asked my learned friend to contemplate of an employee properly so‑called and an independent contractor so‑called standing next to each other, dressed much the same way, engaged in much the same task and one or the other or both of them being injured in much the same way by the same kind of hazard on a modern building site, raises, surely, legal eyebrows at distinguishing greatly in relation to their claims on those who owed them duties of care with respect to that danger, if there is anybody.

However, when it comes to Leighton Contractors in this case there is no such contrast or anomaly or incoherence to be concerned with because for Leighton Contractors such persons standing next to the pump line cleanout operation, no one would have been an employee, and indeed, no one was in contractual relations with Leighton.  The same matrix of fact, the same vulnerability, if there be any control, the same kind of control with minor variance as to control would apply regardless of the two people standing side by side for the purpose of this contrast.

We accept, of course, that there will be circumstances – it was not this case – but there will be circumstances where somebody who can be called the principal contractor, who is in charge both commercially, informally and under statutory authority of a building site, will by dint of that combination of features and the relation shown by the vulnerability of people to be injured by dangerous apparatus and activities, they will be under a duty of care probably and differently, regardless of how that person came to the site that day; that is, as an employee or as an independent contractor.  That is not this case, we were not sued on that basis, or at least it does not appear so when one examines the way in which both the trial judge and the Court of Appeal perceived the case to have been run and presented, and I will come to that in due course as well.

Your Honours, it is our submission that the error in the reasoning of the Court of Appeal can to a degree be shown simply by comparing and contrasting different elements of the reasoning of the Court of Appeal, and to anticipate the way in which I wish to develop that argument, we submit that the court was quite right, with respect, for the reasons briefly given by Justice Basten to reject the scope of any duty being owed by Leighton to Mr Fox encompassing a duty to have supervised this task in such a way as to have prevented the loose end with the consequences it had.  His Honour was right to do that, and he did that.

Furthermore, his Honour incorporated in those reasons what is presented in those reasons as a conclusion that there was no reason shown to entrench upon what he calls the dichotomy, what might be called the clear difference, between the position of an employee and an independent contractor, having referred to this Court’s discussion of related matters in Hollis v Vabu.  Now, doing that, in our submission, provides an instructive contrast to what was done in order to find the liability, and I will come back to develop that in more detail by taking your Honours to the sequence of reasoning itself.

In opening we submit this, that there is no reasoning shown by which, given the approach taken by this Court, particularly in Stevens v Brodribb, there was a use made of the contractual position between Leighton and Downview, on the one hand, and the statutory obligations very plainly laid upon Leighton as principal contractor with respect to this site and the people on it, so as to produce, one, liability which was every bit as ample as it would have been had we been an employer, and two, liability as for the tort of breach of statutory duty, notwithstanding that was not being sued on and as a matter of interpretation was plainly not to be available according to Parliament.

In our submission, those are signs that the reasoning has gone awry and it has gone awry, in our submission, because there was not sufficient analysis of why the content or scope of the duty of care ought to extend to what has been called loosely “induction”.  May I come directly now to the setting in which this word “induction” was used, first in the pleading, and then in the reasons. 

Your Honours, we have given an incomplete set of references to the statute in our written submissions for which I apologise.  I can add simply a reference, the content is not startling, to “principal contractor”, which is to be found in regulation 209.  We will have copies made available.  I do not have them with me at the moment.  The “principal contractor” is usefully ‑ ‑ ‑

HAYNE J:   Which part of the written submissions are we amending, you were saying the ‑ ‑ ‑

MR WALKER:   I should have referred to, and did not, regulations 209 and 210 of the Occupational Health and Safety Regulation 2001. I do have copies.

GUMMOW J:   Do these go in at paragraph 44 of the written submissions?  Where are they?

MR WALKER:   They should have gone in the appendix.

GUMMOW J:   Go in earlier I think, paragraph 44.

MR WALKER:   They are apropos that, yes, because those regulations use the definition, your Honour, yes.  It is one of those slightly deflating definitions:

“principal contractor”, in relation to construction work . . . means a person who is, under clause 210, for the time being appointed or taken to be the principal contractor –

You have to go to clause 210 and clause 210, which I will not read in full, plainly enough describes the position of my client in relation to this major redevelopment of the Hilton building in Sydney.  You see that the process involves the owner having a statutory obligation through this regulation to appoint a principal contractor and to authorise the principal contractor to discharge the responsibilities imposed by the Act.  I am bound to accept that that will mean, in due course, legal authority to licence, including to withdraw or refuse a licence to enter the site.  Those are basic settings in relation to Leightons position that we accept are either explicit or implicit in the judgments below and certainly they are a proper starting point.

Thereafter, however, the position so far as concerns a relationship between us and Mr Fox is, as your Honours have already heard, namely, no contractual relationship of any kind.  This is not a case where one looks at a so‑called independent contractor and marvels how anyone could truly have seen any substantial difference between him and an employee doing the same work.  There is nothing of that here at all.  Rather, however, there were the very comprehensive obligations which were imposed on us by the regulation, and could I take your Honours in page 16, conveniently, of our written submissions, to the sequence.  We accept, with respect, the way in which this sequence is set out and argued against us on behalf of Mr Fox. 

I want to start with 213.  Regulation 213 says of a principal contractor – that is us – that they “must not direct or allow another person” – and we observe that there has never really been debate in this case about whether Leightons was ever in a position to direct or allow Mr Fox – probably, if I might be permitted to comment, they never were, but I have already drawn to attention the fact that we have a licence power in relation to entry to the site.  In any event, they must not do that “unless the principal contractor is satisfied that the person has undergone” – I stress that – “has undergone OHS induction training”. 

Now, I need to draw to attention the way in which that is expressed because that appears, we think, to be the foundation for what is called either the general law, the negligence or the common law, I think all meaning the same thing, content or scope of a duty of care owed by us directly to Mr Fox.  Yet as the pleading shows, and as the judgments recognise, that content or scope was raised as being a duty requiring us to induct him on site, at the site.  As you can see in what appears to be its source, there is no such requirement.  Simply be satisfied that the person has undergone OHS induction training. 

Now, at that point one can go to some real evidence in relation to others on the site in relation to how that might have been done, thinking about the thing in practical terms.  Could I take your Honours in volume 2, page 409.  Your Honours will have read reference to the fact that Mr Still had been inducted – unfortunate language but there it is.  This is the evidence of that, so to speak, and it is not what it claims to be. 

This claims to be an induction record form on behalf of an employer called Toro Constructions signed by, it turns out, Mr Cook and certainly there was no involvement of Toro Constructions in any such exercise, as her Honour records.  These forms are involved on Mr Still’s part the disarming confession that perhaps he had cheated at his exam papers.

So this is in practice – and you will see Mr Cook’s own, he certifies that he himself has been inducted with that self‑induction or self‑certification – that is to the same effect, then Mr Gelle on page 413.  So presumably that is part of the practical means by which one might attempt, and I do stress the word “attempt”, to be satisfied of the matter in 213.

We are not here examining whether or not, for example, one should develop after a fairly short time on such a building site healthy scepticism about the presentation of forms like this, particularly when Mr Cook appears on both sides, as it were.  Rather, in our submission, one is examining against the background of this foundation, seen by the Court of Appeal for the imposition of the common law duty on us with this content, one should inquire what is the practicality or common sense, what is the reasonableness of starting with this notion of OHS induction training as being something which has to have occurred for everybody who is going to work on the site.  Parliament has certainly required that someone be satisfied of that.  Whether you can be satisfied of that by a form like this is a matter for prosecutions under that regulation, which are not in question in this case, and which cannot give rise to any private cause of action on behalf of Mr Fox.

Now, in our submission, the notion that the common law would say, well, based on the statutory obligation to be satisfied that someone has undergone it, which might have happened at a distant place and at a relatively distant time, in place of that and on that foundation we are going to find a duty to have inducted them on the site.  In other words, an even more onerous obligation is imposed on the basis of a statutory obligation which, as we can see, itself produces difficulties of enforcement when one sees the kind of fictitious forms that you see at 409 and following.

I draw to attention matters which did not apply at the relevant time, but you can see there has been consideration given to how one might be satisfied, and nowadays the way the delegated legislation requires it you have to have a current OHS induction training certificate; question no doubt in any future prosecution as to whether production by the person of a purported but false current OHS induction training certificate is going to be a defence to a prosecution - probably not.

Now, your Honours see that this is a penalty provision.  That is found on the next page of our submissions, page 17.  Your Honours also see that the kind of provision which this foundation of the duty found at common law against us is found in is shown by its companion provision, 213(2).  One can see, to pick up a theme that Mr Maconachie developed, that this is not something which is tied by or has parameters supplied by the impositions of reasonableness or reasonable practicability.  Here there is the comprehensive requirement to identify any change – there is no qualification – to the site and the activities by each person that might affect the health and safety of any person on the construction site.

No distinction is drawn between that which one plans and that which one cannot plan for except in the most general sense, namely, to err is human.  Under (b) there is an obligation without any qualification of any kind - it is outcome oriented, as Mr Maconachie puts it - to ensure that every person “undergoes such OHS induction training . . . as is necessary to enable the person to carry out that work safely despite the change”.  Now, that is any change that might, et cetera, that might affect the health or safety of any person.  So at a large site a risk to somebody, say, underground has to be the subject on the face of this of an appropriate induction for the people who are working up above.

Now, our point is not to ridicule the nature of the obligation, but rather to show that the statutory setting which provides the text which was plainly the foundation of the pleading and is explicitly the foundation of the reasoning against us is, in our submission, very far from the reasonableness‑based, foreseeability‑based aspect which is critical to detecting whether or not there is a duty of care with the content or scope that in this case came down to two matters.

Your Honours have seen, I think, at first instance and in the Court of Appeal a number of slightly differing accounts of what the issues where that their Honours thought that they were confronting and no doubt that was because the particulars were, how shall I say, compendious in the pleading.  It appears that of the particulars that one sees in the pleading – if I can take your Honours to volume 1 – it was (b) & (k) that you will find on page 4 of volume 1 that provided ultimately the only successful claim in the Court of Appeal and no others are being pressed in this court.  Now, (b) was:

Failing to ensure that the Plaintiff and Mr Stewart from the Second Defendant had undergone OHS induction training at the site ‑

and I stress “at the site”, that is an addition, and then (k) is:

Failing to ensure that the –

pumping code, as I will call it –

clause 3.18) was being observed –

Now, (k) in particular appears to be supervisory, direct control of work, we think, and that appears to be how it was understood at first instance.  I am going to come back to the supervisory aspect of matters because another contradiction of the kind I referred to in the Court of Appeal reasoning is that their Honours correctly rejected the notion that Leighton owed a duty, the content or scope of which required them to supervise such tasks, but having correctly rejected that, it does not, in our submission, explain how the pumping code particular appeared to have succeeded.

One possible reading of the Court of Appeal outcome is that (k) and (b) were folded one into the other and that (k) provides a respect in which there had to be induction and that the induction had to be so as to include, supposedly via the pumping code – we say that is an error for the reasons we have put in our written submission in reply – but supposedly via that code, the induction had to include a reference to tying down the otherwise free end that might whip around as compressed air, water, concrete and a cleaning device in the hose.  The case does not appear to have shifted from those particulars.  It does appear to have been shaped or refined in the sense that other particulars were either not persisted in or are not persisted in now, but that appears to be the way in which the case was framed.

Your Honours, when one sees that, one can see the importance therefore, of the so‑called induction.  At the outset it appears that it is not being argued that Leighton was in a position where it had to provide training in safe system of work to everybody who worked on the site, regardless by whom they were employed or if they were employed by anyone, of a kind which an employer is bound to provide to an employee lest the employee injure himself or others.  That is not claimed, but, we submit, hoping that that is common ground and very secure foundation for this argument, if that be so and plainly so, then what is the difference in truth between that unthinkable scope of duty imposed on Leighton, namely to ensure that everybody has a appropriate training, and what has been imposed on us?

There is no difference in substance and the difference is more apparent by focusing retrospectively – and I stress retrospectively – on the particular element of tying down the end of the hosepipe as being the appropriate subject of induction.  Why do I say retrospective?  Because when the so‑called induction is being carried on, no one knows this is going to happen, we could even say no body knows that anyone is going to be so silly, rather so‑called common hazards call to be identified and dealt with in a way that, according to reasonable standards of induction one imagines, seems appropriate.

HEYDON J:   Mr Still knew.

MR WALKER:   Your Honour, it appears – and this is one of the reasons why I am not going to say much about causation – it appears, as her Honour held and as Justice Basten reasoned, that it is in the nature of things not at all difficult to have foreseen this.  Indeed, your Honour will recall that there was a contributory negligence allegation which pretty much succeeded in getting out evidence to that effect, though failing in its aim.

HEYDON J:   Justice Basten accepted the point.

MR WALKER:   Yes.  This is not an obscure or arcane matter that if you turn on a garden hose really suddenly the end may whip around if it is not held.  Really, it is as ordinary as that, but you have it coupled here, obviously, with the extra and obvious danger of compressed air.  Obviously the men themselves understood that something was afoot because they took the extra but inadequate precaution of stepping back.  In our submission, viewed prospectively, as it would have to be, what should the induction look at and focusing on these men who were going to be doing concrete pumping – you do not just induct for cleaning out after pumping, it is the induction for pumping – it by no means follows that there would have been anything like emphasis on this extraordinary exercise of not securing.  Indeed – I am going to come to the pumping code in just one moment – you will see that it is taken for granted, although explicitly mentioned, that when you are putting pipes under pressure, true, particularly when you are pumping concrete, then you must secure from movement.

FRENCH CJ:   There is an obligation to secure up the wall, is there not?  I cannot remember, I think that is in the contract?

MR WALKER:   Yes, that is also in the code.  Static lines so‑called have to be fixed in a particular way where pipelines turn, particularly at 90 degrees.  They have to be secured in a particular way, et cetera.  It has to be recalled that the duty of care imposed on us is one to have ensured that Mr Fox did not do anything until at the site he had an induction which included something about this free end of a pipe during the blow back exercise.  In our submission, for the reasons that Mr Maconachie has put, leaving aside the statutory question as a matter of common law, that is surely most obviously a matter which his employer, if he had one, would be responsible for.

His work companion, Mr Stewart, was held liable for failing in just such a duty, notwithstanding the want of any strict employment relationship between them.  But when one comes to Leighton, in our submission, if it applies to Mr Fox and if it applies for this particular hazard, then it must apply to everybody on the site from the whole panoply of occupation, skills and trades and it must apply for all the hazards which ought to be taken into account applying some standard of reasonableness if one can imagine seriously by that stage of the exercise that it could be at all reasonable. 

In our submission, that encyclopaedic approach to hazard reduction by training and on site induction of every person may or may not be a result of the penal provisions of the regulation.  That will be a matter for prosecutions and, one hopes, for discretion as to whether to prosecute, but it is not, with respect, anything that wears at all the hallmark of reasonableness and makes Stevens v Brodribb an inexplicable decision, including as to the way in which the duty in that case was expressed.  I will come back to develop that. 

Your Honours, going then to the regulation, because I stress this appears to be the real foundation of the case against us, you will see that OHS induction training is defined and stipulated in regulation 216.  In regulation 216(1)(b) you see that one of the three species is so‑called:

work activity based health and safety induction training that complies with clause 218 and relates to the particular type of construction work to be carried out –

That then leads over the page to clause 218.  It says that such training must cover – because that introduced questions of judgment as to how one covers a topic:

the relevant health and safety topics set out in the Code of Practice.

That is where Justice Basten made the error that we have argued in writing which has been conceded by the respondent but which, as the respondent, with respect, correctly points out, still brings us back to the pumping code but by a slightly longer route.  That code of practice, however, is the one we have annexed as appendix B – I will be coming to that in a moment – and it has important provisions in it.  One sees that the training in question is relatively formal training by specified trainers, in 218.

I draw to attention the other two kinds of training because they are of some importance to the contractual argument which was also the foundation of the finding against us.  One is “General health and safety induction training” - see clause 217 - and the other is “Site specific health and safety induction training”, 219.  Ironically, that is one that one would have thought probably has to be conducted on site.  “Beware that hole; there is a crane” or whatever.  But there was no site specific training that was relevant to the accident that occurred to this man at all.  It had nothing to do with it.

Now, your Honours, the code of practice which then, by these regulations, is given statutory force as stipulating the topics that need to be covered, is something that involves co‑operation between the principal contractor here and here only, Leighton, and a contractor carrying out the construction work which might include – although this is a matter for others to argue - Downview.  But it also includes - see page 21 of our submissions under the heading “2.  Consultation”, it also involves all the self‑employed persons, which is Mr Fox, for example.

The next page, clause 3, “Training and instruction responsibilities”, there are paraphrases there which I will not read, more or less acceptable as paraphrases of the regulation.  Dropping down to 3.2 which is us, the principal contractor, the head or main contractor, again there is a paraphrase - accuracy does not matter for present purposes - of a so‑called statutory duty.  At the top of page 21 there is then in materially similar terms expressed a so‑called training and obstruction obligation.

HEYDON J:   You told us to correct all these page numbers at the top.

MR WALKER:   I apologise, I have not made the necessary correction, yes.  On page 23, the one that has “3.3 Contractor” on it, you will see that the obligation of training and instruction is expressed in materially similar terms for the principal contractor and also for subcontractors.  One sees that is in very general terms.  You should plan for the:

work to be done safely and provide appropriate training and instruction to all persons carrying out the work.  The training and instruction should include any hazards –

et cetera.  Now, that then leads, because it is a process that is talked about, to 3.4 “Hazard identification, risk assessment and control measures” – I am not going to go through them.  There is a “Hierarchy of control measures”.  You may have seen numeric references to levels of risk, they are explained in 3.5.  Then over the page under 4, “Areas of OHS induction training”, we can come to 4.2 “Work activity OHS induction training” because this is where the so‑called relevant topics are to be found which have to be the subject of the induction.  Under 4.2.1 you can see that it :

is to provide participants with knowledge of the health and safety issues that are relevant to the construction work activities undertaken by a particular industry sector -

That is the hallmark, as we have put in writing and I repeat, so far as common law reasoning is concerned, of imposing that duty on the person who is asking or commissioning or arranging the plaintiff to do the work, who, for example, may profit from the work and who has expertise in the work, normally, of course, an independent subcontractor, a specialist such as a concrete pumper in this case. 

That would be the ordinary common law first resort and probably last resort in terms of the training obligation.  The common law would not ordinarily want to see, as it were, myriad schools of thought in training in safety.  The possibility of inconsistencies or simply what might be called pedagogical burnout is fairly easy to understand.  One person, either the employer or the person responsible for having a person undertake an activity, has the common law duty to ensure that training is appropriate.  But here, as you can see, this is setting out topics to be covered in an induction which might be the subject of one of these certificates produced by a man like Mr Fox at the gate.  Course content, 4.2.4, it must include at  least the following topics.  I stress the word “topics”.  Those topics include the law.  They include statutory provisions, see (c) “relevant OHS legislative responsibilities”.

Now, it would not be enough in a particular case to say retrospectively, had this workman been told about clause XYZ of the regulation under such and such an Act all would have been well.  It may well be impeccable retrospective reasoning, but that is not the hallmark, in our submission, of the way in which the court goes about the task when negligence is alleged.  Prospectively one would ask, assuming there to be any scope or content of the common law duty as opposed to the statutory questions, assuming there to be any training component one would still ask, yes, but that does not mean that that particular section is one which ought to have been given prominence.  It has prominence now only because of what has actually happened.  So one sees that there is the “OHS legislative responsibilities”, that is enormous, large loose‑leaf services, “codes of practice and their application to the work activity”.

Codes of practice is where we get to the pumping code as the first respondent’s submissions – written submissions – correctly, with great respect, point out.  Your Honours will see that there is an extremely comprehensive list of topics in that minimum inclusive list of 4.2.4.  When one considers that what is proposed here is on‑site induction as the scope or content of the duty and one considers the limited daylight available, one considers the nature of pumping concrete, that is, it is not something that can wait for a long time, there is a complete air of unreality about this kind of exercise being that which, at common law, Leightons, who cannot be shown to have known anything about Mr Fox, in fact, are to be liable for his injury because they failed to carry it out or failed to have it carried out.

Could I remind your Honours, I think Mr Maconachie has taken you to the provisions, the code in question was made under the former Act and is therefore caught by the transitional provision clause 9, to which my learned friend took you.  They are to be treated as having the purpose that you see in section 40, page 14 of our written submission.  I do not want to add to what my friend, Mr Maconachie, has said about that.  Plainly enough, this is not a purpose which is apt to be adopted as it were by analogy or by factual demonstration of what was reasonable for the purpose of imposing this as the scope or content of the common law duty of care.

You see that they are made in particular ways which includes preparation by what I will call the regulator, consultation with what might be called the industry in 42 and then ministerial approval.  So there are degrees of policy input that may or may not resemble the policy of the law encapsulated in the standard of reasonableness so far as the tort of negligence is concerned.  The use of codes in 46, it can be seen that Parliament did not intend that these codes, including the grandfather transitional earlier versions such as this one, did not intend that they were to be the standard by which liability to civil proceedings was to be measured.  That is my submission as a matter of the interpretation required by, for example, Sovar v Henry Lane had ‑ ‑ ‑

FRENCH CJ:   It does not exclude the possibility of having a duty of care informed by the code.

MR WALKER:   It is impossible to exclude that possibility.  Those are matters – that is the reasonableness – sorry I will not say impossible – no doubt one day one Parliament will say, presumably having suffered a finding against itself – against the government – they will say that it cannot be looked to, but at the moment everything is grist to the mill so long as it is appropriately put before the court and considered, everything is grist to the mill in relation to informing what is reasonable.  In fact at trial, that is how this code appears to have been used and we have not made any complaint about it in that regard.  These industry codes of practice include the pumping code to which you have been taken.  Can I briefly add these elements in the pumping code. 

The page I want to take your Honours to in particular is page 275, perhaps 274, I do not want to read them if I may be forgiven.  Under 3.12 there are fairly obvious references to concrete pipelines.  At 3.14 tie‑downs necessary to adequately secure the system are referred to.  At 3.15 pipe movement is raised as something to be controlled.  At 3.16 during delivery on a boom pump, that is secured in position by chains.  You will have seen the reference to chains in Mr Still’s evidence.  At 3.18, line cleaning safety.  Now, that is the reason why that has figured so much in this case. 

In fact, whipping around under pressure with an unsecured end is explicitly referred to in this.  It is referred to in b, and that is the rubber delivery hose, and this was telling people, in effect, that this kind of hose is going to behave much the same way as a garden hose will.  Furthermore, the fact that it is dangerous is there.  Now c, a positive catchment device, notwithstanding footnote 6 by her Honour at trial, in our submission, is inexplicable how that could be read to refer to the kind of expedient that should have been most obviously adopted to avoid the accident that actually occurred in this case.

The so‑called cleaning device, your Honours, as the evidence shows, these are spherical sponges, either discs or spheres, I am not sure which – spheres, I think – and that is what it is that is necessary to be safely caught.  Furthermore, it is to be caught but the concrete and the water, et cetera, is to be allowed to run free.  That is, after all, what the cleaning is all about. So, it is something in the nature of a sieve or a net that is being talked about.  That is the positive catchment device.  It is positive in the sense that it will actually hold something, catchment in the sense that it will allow through, as it says here, the concrete to flow.

In our submission, therefore, at the end of this elaborate use of the statutory construct, one finds something which was seized upon in particular (k) in the statement of claim for what is there put as a particular of failure to supervise this task by a person we did not employ, we did not ask to do this, who was not a contractor with us and about whom there is no evidence we knew and it has been, we think, transformed into the content of, or at least part of the content of – apparently a material part of the content of an induction course which we should have ensured had been conducted on‑site, this afternoon, that afternoon, when these men arrived at the site.

In our submission, at every point in that hypothetical set of events there is a failure to satisfy the requirement of reasonableness which is the hallmark of that which would be required in order to be part of the content or scope of the common law duty of care.

HEYDON J:   Are you not working the words “at the site” a little hard?

MR WALKER:   I hope not, your Honour.

HEYDON J:   Let us assume the plaintiff’s case was generally successful, that there had been no induction training at the site but the defendants established that there had been induction training before, some other place than the site, the plaintiff would fail, would he not?

MR WALKER:   Yes.  I hope I have not been misunderstood.  They no doubt chose that because it was the thing they could have done there and then on the spot in the time scale – that was the theory, I presume, in forming the pleading – when men arrived to pump concrete, which has to be done that day obviously and within a time which is dictated by the curing of concrete and other co‑ordinated activities.  That is presumably why the pleader decided to put “at the site” in otherwise there is this generalised, as I put it, encyclopaedic training obligation imposed on Leighton.  This is not just special for Mr Fox.  If this is reasonable for Mr Fox, it is because it would be reasonable for everybody else as well.  It is for those reasons we have assumed that there is this “at the site” limitation of the induction.

Our argument is stronger if “at the site” comes out but “at the site” serves the purpose of highlighting the artificiality and the illicit retrospectivity of the argument against us.  They say, in effect, had there been, in the time that was otherwise spent on consuming a beer and a hamburger, apparently, induction on tying down the hosepipe, then this would not have happened, and that is probably right.  It is always true that if somebody after the event can say, “Of only I had thought about that or been told about that just before it happened”, but that is not the test prospectively of what we have to do in our overall position as a principal contractor.

So, I hope that does not amount to working it too hard.  We are entitled to observe.  It is introduced by the plaintiff in the case.  We think we understand the rationale as to why it was introduced in his self‑interest.  We argue that its introduction, as it were, shows the unreasonableness of the proposition, but if it were not there, it would be an even more unreasonable proposition.  Now, we assume that the case involves induction which is true induction, that is, not just certificates being signed and it is for those reasons that one is contemplating not just form collecting, one seems to be contemplating something more than that, or at least that is what the plaintiff’s case appears to be and how Justice Basten took it. 

Your Honours, could I then come to the way in which all this was put together in the reasoning of the Court of Appeal so as to produce overturning of the finding of no liability.  Now, it would be too elliptical to say there was a finding of no duty at first instance.  Perhaps more accurate to say there was a finding that there was not a duty with the scope or content which would be breached by failing to have inducted.  That is why in various passages, to which I will come, Justice Basten, with great respect, understandably tries to encapsulate or refine or summarise the nature of the case as he understood it to be.  I want to start please at page 598 in volume 2 of the appeal book which is the commencement of the explicit discussion of the liability of my client. 

While it might be accepted that the relevant principles are, as his Honour says, neither precise nor clearly defined in terms of underlying policy, in our submission that is a description which rather deflects attention from the fact that they are relatively plain, if general, statements which are to be found in the authorities.  If being general means they are not precise, then that is because it is the nature of the common law in this area to be general.  If they are not clearly defined in terms of underlying policy, then perhaps so much the better in the sense that underlying policy may more be social explanation for what judges say, rather than for the reasons given by judges.

In our submission, the general propositions which his Honour then recites as possibilities in paragraph 32 are possibilities where he plainly had in mind this Court’s approach in Stevens v Brodribb to which, of course, he turns explicitly later.  You see that between lines 50 and 60.  Now, there would be no need to be looking for so‑called co‑ordination occasions if it was as simple as ultimately comes down, apparently, in this case, that somebody is doing an activity that might injure them.  They are neither an employee nor a contractor, nor indeed someone whose activities need co‑ordination by the principal contractor.  But the principal contractor can induct people, has inducted people and should have inducted this one.

That, in our submission, is a fair summary of a case which really abolishes the need for the intermediate steps of reasoning that led to the result in Stevens v Brodribb.  One sees as well that his Honour is not claiming to have, as it were, done a run around the end of Hollis v Vabu.  To the contrary, see the top of page 599.  Then paragraph 33 his Honour tries to grapple with the form of the pleading and it was indeed variously formulated.  The paraphrase at this point is:

a failure to ensure (by training and supervision) that safe work practices were adopted.

His Honour is not shifting or expanding the case.  That is, with respect, at this level of generality, a fair reference to particulars (b) and (k) to which I have already made reference.  Then immediately his Honour refers to the “statutory responsibilities” though it is to be recalled that this has never been a breach of statutory duty case and then says that is “in addition to any duty of care arising under the general law”.

GUMMOW J:   Where are you reading from, Mr Walker?

MR WALKER:   Paragraph 33, page 599, about line 29, your Honour.

GUMMOW J:   Yes, thank you.

MR WALKER:   Then he says:

Those duties extended beyond employment relationships.

So much may be easily conceded.  Then he refers to regulation 213.  That, in our submission, is an unfortunate mixture of references.  The duties at common law may or may not come about because of relationships created by or regulated by a statute.  That is a common way for a common law duty to be imposed, but as to the content or scope of it, unless it is a breach of statutory duty or unless it so happens that both answer the description of “reasonable” there will be nothing but a coincidental relationship between the regulatory provision, 213, and what the common law requires.

There is no further explanation, we think, of this relationship between 213 and the scope or content of the common law duty, the one informing the other, in the reasons that follow.  In our submission, it is error.

FRENCH CJ:   Where does his Honour actually formulate the duty of care which he found to have been breached in this case as distinct from addressing issues of breach?  I take it when – for example, in paragraph 42 he talks about the case “comes down to a question”, et cetera, he is really talking about breach.

MR WALKER:   Your Honour, we think it is 42 and I am going to take you to 54 as well but I think it is in 42.  Would it be convenient if I just take these through in order because there is a ‑ ‑ ‑

FRENCH CJ:   All right, as long as we can identify precisely if it exists.  I just have some difficulty in winkling it out with precision. 

MR WALKER:   Well, your Honour, one of my criticisms is that it is not done precisely but I think I can ‑ ‑ ‑

GUMMOW J:   I thought it might be at 49.

MR WALKER:   That is, we think, part of the expression of the conclusion that has to be read, I think, with 42 because 42 poses the question that the reasoning including 49 is answering.

GUMMOW J:   Yes.

FRENCH CJ:   At least you say he had a duty – duty is expressed in terms of an obligation to provide induction training.

MR WALKER:   That is it. 

FRENCH CJ:   Yes.

MR WALKER:   So I think I can precisely locate the statement but I do not say that that is a precise statement.  Page 599, we submit this is irrelevant to the question against Leighton, what his Honour is referring to in paragraph 34.  I have already taken you to this statutory material, including the material incorporated by reference, such as the gazetted pumping code.  There is further reference to that on page 600, paragraph 35.  Then there is some criticism, we think, of the first instance reasoning in paragraphs 36, 37, 38, that I do not need to pause on. 

With great respect, Justice Basten appropriately identifies that the citation of section 39A of the Occupational Health and Safety Act was not complete or on its own appropriate in the first instance judgment, but her Honour had in fact also referred to subsection 46(2) which is the relevant provision and you will find that in volume 2 at page 524, I do not have to take you there.

Then picking up the reasoning at 601 in paragraph 39, there is, we think, the beginning of the posing of a relevant question at the foot of that page:  “His”, that is Mr Still’s:

negligent behaviour did not demonstrate that  ‑

and the words that follow are levelled against us of course –

the provision of appropriate training to Messrs Stewart and Fox might not have led to the adoption of safer work practices on level 4.

That is the language, entirely appropriate, to the duty of care the common law imposes on an employer, and it may well be appropriate to other relationships quasi employment or ad hoc where somebody is asked to do something that they could not be expected to know about without training.  In other words, the opposite of a specialist independent contractor. 

That, in our submission again, is a sign of erroneous thinking concerning where Leightons is placed in relation to Mr Fox and all the activities, multifarious as they are, by all the people on this site.  Paragraph 40 similarly ends up – this is on page 602 about line 55, after referring to the evidence or lack of it concerning practice, his Honour says:

it is inconsistent with any implicit finding that –

and here are the words levelled against us –

induction training was unnecessary in respect of Mr Stewart and the appellant, or that such training would have been entirely ineffective.

We are concentrating on the first.  The word “unnecessary” there could unkindly be read as meaning, looked at retrospectively, had it happened, it would have broken the chain, therefore it is necessary in order to have avoided the accident.  That would be, we think, an uncharitable reading.  But presumably it is a reference with somewhat forceful language to what a standard of reasonableness imposes on Leighton, that is, it is necessary that there be induction training for those two. 

At the risk of repetition, may I point out nowhere of course does his Honour commit the fallacy of ignoring, when one considers reasonableness, all the circumstances and the circumstances obviously, as his Honours reference to a modern building site show, include the many and differently skilled kinds of persons who from time to time will be swarming over it.  So it is not just Mr Stewart and the appellant, it is everyone.  Paragraph 41 is, we think, the most categorical or definitive statement by his Honour and, with great respect, correctly by his Honour of what he took the plaintiff’s case to be:

failure to ensure that Messrs Stewart and Fox underwent induction training at the site before commencing work –

His Honour repeats “at the site” because it is obviously in the pleading and that is how he understood the case to be and, I stress, we understand that was done by the plaintiff because it could be fitted into a narrative of the men being stopped at the gate, not being able to produce of induction and being inducted then and there as something which was not so unreasonable as to be beyond the scope of the duty of care.  That was the reasoning we think it fails for the reasons we have tried to point out. 

The second part of the case, as his Honour understood it, see paragraph 41, paragraph 2 at line 20 on page 603, is of course excessively general read out of context, but the context is supplied by the reference to the particulars to which we have already made and there has been no attempt to expand the case beyond those particulars and certainly none was successful either at first instance or in the Court of Appeal. 

Paragraph 42 is an important one.  We say this is where his Honour most precisely states the question which was determinative against us.  He starts by observing what we did do.  It is to be remarked, of course, that we did do things because the statute required us to.  It then says “it required its principal subcontractor” – I am not quite sure why it is referred to as the principal subcontractor.  This to my certain knowledge is a very large job with very many contracts, in any event, Downview. 

I am going to come to those contractual responsibilities, if your Honours will forgive me, quite separately because we have a separate line of attack on his Honour’s use of the contract.  It suffices to say at the moment that they are actually distinctively different responsibilities which are shared between the parties to that contract in relation to induction – quite distinctively different, and relevantly so for this case.

FRENCH CJ:   Broadly speaking, that the latent induction would be a general site induction whereas the subcontractors are more ‑ ‑ ‑

MR WALKER:   Their work activity.

FRENCH CJ:   Their work activity, yes.

MR WALKER:   Yes, that which commonsense, in the absence of a statute, would rather suggest.  There is a reference to Downview having failed to carry out its obligations.  Those are contractual obligations, as we understand it.  Those are the obligations that we imagine are supposed to be observed by ensuring that people produce the kind of forms, the examples of which I showed you at 409, 411 and 413.  Under a contract, no doubt, there will be some implied implications of reasonableness.  As to whether one should be good at spotting frauds and forgeries is a different question.

It certainly informs what we submit is the lack of common sense and reasonableness in imposing such regimes as a matter of common law however they may be required and stipulated under a contract or by statute.  Then his Honour says, “As a result”.  That is a result of these things which are acts and omissions under regulation and contract, compliance generally with regulation, Downview’s failure to comply with its contract:

As a result, the first particular identified above –

which is the induction training one –

namely the failure to induct Messrs Stewart and Fox, comes down to a question as to whether Leighton –

and immediately we go to breach language but it can be converted to a duty question as well –

took all reasonable care to ensure that persons coming onto the site did in fact undergo induction training.

Now, his Honour appears to understand the case there as being one where the relevant breach, that is, the act of negligence by which one may infer what the content or scope of the duty was, was a failure to ensure that people did undergo it.  Now, with respect, there must have been a slip by his Honour here because he could not possibly have been suggesting that the scope or content of this duty applicable to everybody who comes onto the site, however senior or obviously expert or experienced or well known they were to everybody involved, had to undergo induction training.

Induction training appears from its nature – I have taken you to some of the documents about it – to be training that in some respects at least need only be done the once and thereafter you have, as it were, the badge, literally or figuratively, of having done it.  So there is a slip there, but it certainly does comport with the way in which the case was put, namely, you had to ensure that they were trained there and then.

FRENCH CJ:   The content of that induction training for the purposes of this case is identified in paragraph 54 where he says that, “Tying down the end of the pipe was a simple requirement”.  So what we are really talking about is whether Leighton was responsible for ensuring that Mr Fox had training to ensure that he would tie down, or at least the people with whom he was working, would tie down the pipe at the time of cleaning out.

MR WALKER:   That is right.  So we are talking about somebody who, with all due respect to him, appears to have been the lowliest in a relatively humble outfit of an entirely legally informal kind.  I think they all call themselves independent contractors.  At one stage at least Mr Still claimed to be an employee of Toro.  That goes out the window.  They are all just there.

FRENCH CJ:   He was not the person who was actually responsible for – would not have been responsible for – the tying down of the pipe.

MR WALKER:   Query:  he seems to have been in charge of the operation, but of course he was up the top.

FRENCH CJ:   I am talking about Mr Fox.

MR WALKER:   MrFox, yes, that is my point.

FRENCH CJ:   We are talking about induction training for Mr Fox here.

MR WALKER:   I am sorry, your Honour.  Yes, it is Mr Fox.  However, I need to add this.  Mr Stewart is constantly added to this as well.  So a duty was to ensure that the person whose offsider Mr Fox was, namely Mr Stewart, had the training as well.  That has to be added.

FRENCH CJ:   So it really was a requirement to train one or other.

MR WALKER:   Yes.

FRENCH CJ:   The effect of the requirement was to tie down the pipe at the time of cleaning out.

MR WALKER:   That is right.  In our submission, such is the remoteness of anything resembling control.  The only control we had was the undoubted licensing power we had, including its revocation, administered we think through a green card and safety monitoring system for the site.  It would have existed at common law, no doubt, if it had not existed under the statute and the contracts.  That is not a control which hitherto in this Court has been seen to bring with it an obligation to train people undertaking specialised tasks for reward on the site in the hazards of that exercise, let alone, as my friend, Mr Maconachie points out, in the hazards of exercise which is not actually anything that Leightons wants to pay for or the customer wants to get but it is the cleaning of the apparatus so they can use it for another job for another person later.  In our submission, that remoteness of anything in the nature of ordinary forms of control such as an employer might have over an employee ‑ ‑ ‑

GUMMOW J:   I think there is an conflation of duty and breach, is there not?

MR WALKER:   Yes.  That is a problem in 42.  You have to infer what the scope or content is.

GUMMOW J:   It seems to go backwards from breach to duty.

MR WALKER:   Yes.  We say this is a classic case of retrospective reasoning, it can be said very fairly.  We would not criticise if, as a matter of extra legal logic, it was said, what if Mr Fox had been tapped on the shoulder within half‑an‑hour of this time and told, “Make sure the loose end tied down when you blow out”, do you think the accident would have happened?  The answer is, “I do not think it would have happened”.  That is the kind of backwards or retrospective reasoning which, in our submission, produces excessively artificial and ultimately unreasonable statements of the content or scope of a duty which has to be assessed in prospect and it has to be assessed in the circumstances which in this case is a large building site with many people doing many different things from time to time.

HAYNE J:   There is an approximation of the statement of duty, is there not, in the last three lines on page 603 and paragraph 43. 

MR WALKER:   We think so, but that is, of course, the case that failed.  That is why I started by saying there are anomalies, contrasts and comparisons within this reasoning that really highlights the means by which we were held liable, is revealed to be wrong in principal and certainly not shown to be a justified extension of this Court’s jurisprudence by the way in which they were disposed of.  They were disposed of on brief but entirely orthodox grounds which are thoroughly based on reasonableness as shown by this Court’s precedent decisions.

HAYNE J:   But the assertion, the duty to itself instruct independent contractors of those who were independent contractors to Leighton and you have to inject at least those two levels, or to require independent contractors to instruct those employed or contracted to perform work at the site in safe working practices, seems to be a subset of this general proposition, well, whose site is it?  It is Leightons.  Leighton controls it.  Therefore Leighton has to ensure safe place and system of work.

MR WALKER:   We submit that there is certainly no authority that supports that generalised approach with subsets springing up of the kind that would cover this case.

HAYNE J:   Well, not just there is no authority consistent with Stevens v Brodribb and the continued vitality of the distinction between independent contractors and employees, does there not have to be a wholesale rewriting of quite a deal of law?

MR WALKER:   Yes.  Is that a convenient time, your Honour?

FRENCH CJ:   That might be a convenient moment.  We will adjourn until 2.15 pm.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

FRENCH CJ:   Yes, Mr Walker.

MR WALKER:   Your Honours, page 604 of volume 2.  The complaint referred to in paragraph 44 is the complaint that Leighton had failed through its supervisors to ensure that safe work practices were adopted.  This is the case that was considered and rejected by his Honour.  However, in paragraphs 44, 45 and 46 his Honour traces the course of trial, including the pleadings, to leave extant, as we understand it, the part of the second limb referred to at line 18:

to take reasonable steps to ensure that those working on the site were properly trained –

associated with –

a general law duty to ensure safe work practices -

Then in 47, turning to discuss that, his Honour says:

not vicariously responsible . . . it remained the principal contractor –

Well, yes, I have tried to explain that –

with overall responsibility for the safety of the site –

There is a statutory responsibility, that is certainly true –

a significant number of tradespeople –

et cetera.  Then the sentence –

The continuing obligations of a principal contractor –

On reflection, your Honours, it may be that should be read in this way, it means the possibility in an appropriate case of obligations existing:

even where the work to be performed –

That would make sense of the catalogue that then follows on page 605, starting at line 9 with the word “Thus”.  So understood it is not an error.

GUMMOW J:   How do we re‑understand 47?

MR WALKER:   It may mean that when his Honour says “the continuing obligations of a principal contractor”, rather than categorically stating that there are such things, and in such general terms, I think perhaps his Honour is simply saying the possibility of there being in existence such obligations, even where the work that is to be performed has been largely or totally subcontracted.  Otherwise, of course, there is even worse error in the sentence because there is then this notion of being reflected in the regulation. 

Now, if it is not a breach of statutory duty case, then that would simply be the coincidental fact that both of them represented reasonableness and would be of no real moment.  For the reasons we have put and Mr Maconachie has put, we submit that simply cannot be said of the regulation, and there is no reasoning supplied to that effect.  Then at the end of the sentence there is this reference to “and in the general law”. 

That, we think, is a reference to the case law that follows, and it means that the continuing obligations really are the obligations of the particular kinds and in the particular circumstances according to the principles illustrated and applied in the case law that then follows in paragraph 47.  Certainly, paragraph 47 does not supply, however one reads that difficult sentence, any sound reason for departing from the approach taken in the case law but particularly in Stevens v Brodribb, which is, of course, referred to in that very paragraph, see line 25 or thereabouts. 

Now, the antecedent of the word “such” in the expression “such a duty”, line 32, that Justice Gummow asked Mr Maconachie about, is, we think, one – I think perhaps all of the duties the content or scope of which has been referred to in at least his paraphrase of Stevens v Brodribb and Maricic. 

That is doing the best we can.  So it is may be required to co‑ordinate the activity, may be necessary to identify and provide warnings.  The question, whether a principal contractor will be under such a duty and if so, what is necessary to fulfil the duty – that is the scope as well as breach question – will depend upon the particular circumstances?  Well, yes.  Then there are some distinctions that are particularly apposite to this case but ‑ ‑ ‑

FRENCH CJ:   He is not moving to any generalising proposition here, is he?

MR WALKER:   We do not think so.

FRENCH CJ:   It is just sort of a set of different circumstances.

MR WALKER:   It may be scene setting.  But in paragraph 48 we are moving to reasons for decision and there is no other way to describe the first sentence than a confession there is no authority, there is no precedent, or the authorities do not provide precedent.  For what?  For:

a general law obligation to provide training in matters of safety to subcontractors working on a site –

That is the only way one can read the sentence saying:

The older case‑law . . . does not indicate that –

Then there is a reference to “relatively dangerous workplaces in the past”.  That means in the past as well as now surely.  Then there is a generalised reference to ensuring “a reasonable level of safety” which is a retreat to a much higher level of generalisation than the common law method requires at this point, bearing in mind the relationship asserted by the plaintiff against Leightons.  Then there is a reference to it being “well‑recognised”.  With respect, the only thing that is well recognised is that there may be a duty of care arising from the self‑evident danger posed to people in building sites.  That is why I started off in opening the appeal by conceding that.  Of course, but that does not answer the question that what is the duty imposed on the principal contractor owed to people such as Mr Fox and in particular, does its content and scope comprehend the induction or training obligation upon which his success depended. 

Over the page then on page 606, it seems to be a finding of fact, no doubt solidly based, with respect, when one sees the legislative fact of the Act and the regulations, that the need for induction training is now a recognised part of major construction works.  That, with respect, does not begin to supply a reason why somebody in Leightons’ position gets this encyclopaedic obligation.  Then there is a reference to another factual circumstance – the contract between Leighton and Downview. 

You will find clause 32 in the same volume of the appeal book No 2 at page 348.  The simple fact is that the so‑called continuing obligations on the part of Leighton really represented a contractual sharing – that is allocation of responsibility for induction.  As the Chief Justice put to me and I agreed before the break, you will find in particular that made clear in the last paragraph of 32.1 which starts in the left‑hand column at line 45.  “The Site Induction” – and I stress the site induction is one that would have had nothing to do to prevent the accident in this case:

The Site Induction to be conducted by Leighton is intended to outline procedures and requirements that will generally apply to all persons working on the Site ‑

That cannot be said about this specialised task of cleaning concrete pipes:

and does not relieve the Contractor of its responsibility to properly induct persons engaged to perform the work under the Works Contract as to particular procedures and requirements relevant to that work.

That is a very resounding allocation as between these parties to that contract of that responsibility away from Leighton.  In a sense that is all we need to say about the contractual point.  It proceeds both in paragraph 48 and thereafter of the reasons to be based upon an erroneous understanding of the contract and an erroneous assignment to a site induction of the kind of warning or training or inculcation that his Honour said should have been given to Mr Fox about tying down the end of the hosepipe.

But we go further.  In our submission, yes, it is possible to use contracts, as it is possible to use all manner of material as material to provide the factual foundation for recognising what in a particular time and place and in the circumstances obtaining between the parties in question was reasonable and we accept that the content of contracts may well serve just that purpose.  They may by admission or otherwise show what people understood was feasible, to be expected, was going to happen, et cetera, but this is not a claim on the contract.  It is not a claim to have the benefit of any contractual promises of a third party and it most certainly – in our submission, there is no reasoning in this judgment to supply any more role for the contract than to prove that induction was not something foreign to Leighton – the regulation would do that, in any event.

It certainly does not prove that it was reasonable for Leighton to engage in the training of somebody who had the relatively remote relationship with Downview, even more remote relationship with Leighton, as Mr Fox did.  For those reasons, in our submission, the entirety of the contractual reasoning in this judgment ought to be seen as both factually and in principle in error and with it, in our submission, goes about half of the support for the conclusion.  Paragraph 49 then turns back to what actually happened, in fact.

The work method statements, they again do not – we were not sued for being less demanding that we should have been of Downview in its work method statements.  There is a reference to “a gatekeeper”.  That is not part of a particularised case.  Again, it does not begin to deal with the problem of what happens when, as we have seen in this very case, certificates are perhaps only pieces of paper.  Then his Honour correctly, with respect, says at line 40 in paragraph 49:

The fact that it took these steps does not, of course, mean that failure to take any such step would have involved a breach of a general law obligation of care.

We accept that.  In our submission, his Honour erred by not using that to reach an opposite conclusion from what he eventually did reach.  He then says that their significance is that:

they indicate the level of control Leighton maintained over the site.

We concede – I concede, again, of course Leighton could say who can come on to the site and who must go off the site and indeed Downview was sacked after this accident.  But, that is the kind of control which is so all embracing and comprehensive as not even to begin answering the question as to whether or not you have a duty, the content or scope of which extended, as is alleged in this case, otherwise there would be no understanding of the disparate outcomes between the different defendants in the Oysters Case – Graham Barclay.  My client in that case, the State of New South Wales, had more control than anybody else but was not liable.

Then his Honour refers to something as a “relevant omission”.  It is a reference to a breach, presumably, from which one infers content of duty:

the relevant omission was to take steps to ensure that Messrs Stewart and Fox undertook the relevant induction training.  Pursuant to their contractual arrangements, that was a joint responsibility of Leighton and Downview.

That is either irrelevant or a source of error.  It is factually erroneous, as I have pointed out.  It is also, in our submission, the wrong use of the existence and terms of a contract between A and B in examining an alleged case in negligence asserted by C against A.  The error is continued by, as it were, weighting their responsibilities under that contract in the sentence commencing:

Whilst Downview . . . such considerations will clearly be relevant in relation to questions of contribution.

That means that they must be relevant to questions of breach as well.  Then his Honour concludes:

the trial judge should have found that Leighton owed Mr Fox a duty of care –

Now, his Honour introduces that sentence with the expression, “On that basis” and we think, with respect, that the basis is the control or controls referred to back at line 45 and line 46.  As well as the omission – we cannot explain why the sentence that refers to the omission starts with the word “However”.

FRENCH CJ:   Now, just fast forwarding for a moment.  One then sees at 50 “other bases” considered or at least the statement is, “it is not necessary to consider other bases”, and then at 54:

the existence of a duty on the part of Leighton should be upheld on the sole basis articulated above. 

So I take it that you would take that as a reference back to what appears in 49?

MR WALKER:   As the answer to the question in 42, yes.

FRENCH CJ:   Yes, okay.

MR WALKER:   Yes, that is so.  And I can fast forward.  Thank you, your Honour.  The anomalous contradictions within the reasons come about, of course, in 51 and 52 and in 53.  For example – and I am not going to go to it any more exhaustively now – on page 608, about line 48 you have a reference to “control”, but it has been used to opposite effect.  A distinction has been drawn between employee and subcontractor.  It is to be remembered we did not even have any contractual relationships.  We are several removes off having any relationships of that kind with Mr Fox.

For those reasons, the conclusion that one sees then repeated or collected, as it were, in paragraph 54 is in error.  In our submission, the last sentence at paragraph 54 is an illustration of the illicit, backwards or retrospective reasoning which, in our submission, is the explanation of the error.  May it please the Court.

FRENCH CJ:   Thank you, Mr Walker.  Yes, Mr Cranitch.

MR CRANITCH:   Your Honours, may I commence by taking you to page 419 of the joint appeal book, volume 2?  Just to put the matter into context, that is the pipe, it is not a rubber hose, that is the pipe which was supposedly attached on this occasion.  Your Honours will see that the metal pipe that is described within the evidence as being of thick construction and it took four men to lift it into position over the bin.

The purpose of the pumping code, if it had a purpose – and I am referring back to the issue of tying it down for the purpose of allowing the cleansing ball to roll through – was to enable or to ensure, we say, that the pipe did not blow back when the ball blew out.  In other words, it has that, to every action there is an equal and opposite reaction, and that is what happened here because it was not tied down, and clearly the pumping code is directed to that issue.  Having put it into context, can I deal very briefly, firstly, with the arguments advanced by my learned friend, Mr Walker.

His Honour did enunciate a duty and that duty was expressed as an obligation which is encompassed within regulation 213 and that is to ensure that the workplace is kept safe, that there is a safe place of work for those people on this rather complex building site.  The progress of the reasoning, we say, is this, that if the workplace is to be kept safe, the principal contractor – both pursuant to clause 32 of the contract and at common law or general law – is required, and his duty is informed to some degree by regulation 213, to ensure that those trades which interact on the site do their job with safety. 

The purpose of that, as Justice Hayne initially touched on this morning, was to ensure that in a complex building site, even though the operation itself may be described as simple, people in the near vicinity will not be affected adversely and be put at risk by the operations of someone such as the contractor in this case in failing to obey relevant codes and failing to obey proper and safe work practices.  Distilled into its simplicity, therefore, we say that the duty which was enunciated was enunciated to keep a safe workplace for all those who came onto the site. 

One could envisage, for example, that if instead of dealing with pipes these contractors had been dealing with explosives and that they had failed to obey relatively simple procedures which would have rendered their operation safe, and there had been an explosion, and there had been 100 people killed in the street, there would be no issue, in our submission, that the failure in that context of the principal to supervise and to ensure any lack of confusion in the application of building codes and the like would be laid fair square at the door of the principal.  It is for this reason ‑ ‑ ‑

HAYNE J:   Well, before you come to it, is it a duty to keep a safe workplace or a duty to ensure a safe system of work is adopted?

MR CRANITCH:   The latter is consequential upon the first.  In other words, there is a duty to keep a safe workplace, and that is imposed on them, they do not eschew that.  In order that that be the case, then your Honour’s second proposition would come into play.

HAYNE J:   How does the head contractor ensure a safe system of work is followed by the subcontractor to a subcontractor?

MR CRANITCH:   Because, in the context of this case, he had available to him the ultimate sanction, you do not come onto the site unless you demonstrate that you are compliant with those practices which will make your system of work safe.  That is in essence what Justice Basten, we say, said.

HAYNE J:   Sorry, control of entry to the site?

MR CRANITCH:   In its ultimate simplicity.

HAYNE J:   Permits control of the method of work engaged because you can condition entry to the site upon what, agreement to undertake safe working practices, pursuit of safe working practices, what?

MR CRANITCH:   Upon proof that you had been adequately inducted into safe working practices.  That in this instance is the application of the relevant codes of practice for each and every one of the trades.

As I understand it, my learned friend, Mr Walker, now concedes that, albeit the regulations relied upon by his Honour may not have led him there directly, sooner or later applying the regulations through in the way in which we say they should be applied in our written submissions, you get to the relevant code of pumping.  We are not saying, and I do not think it can be suggested, that the matter was read as stringently as Mr Walker would have it read in terms of the way in which the principal contractor dealt with the training and otherwise. 

It was a requirement by the principal contractor that all people who came onto the site, and this is clear, had to show and exhibit relevant skills and experience.  The way to do that was to exhibit at time of entry onto the site that you were familiar with the relevant code of practice which is re‑certifiable every two years, if one looks at the last few paragraphs of that code set out in the appeal book.  The code of practice in this case laid down the very matter which would have obviated this injury occurring, that is, had the end of the pipe been tied down, it would not have happened.  The ultimate reasoning behind both my learned friend, Mr Walker, and Mr Maconachie’s reasoning seems to be this. 

It was a very simple procedure.  It was not complicated and therefore, because there was no interaction in any way or no co‑ordination required in the exemption referred to in Stevens v Brodribb, there can be no exception here. In other words, we are confronted with the fact that there is no determined case law in our favour unless we bring ourselves within the exception referred to by Justice Brennan at page 47 in Stevens v Brodribb.  However, it is facile, we say, to suggest that this is just a simple one‑off operation. 

It is an operation conducted on a building site where they are on level 4 which, the evidence discloses, is the entry level car park area of the site, it contains crib sheds, it contains the first aid shed, there are a number of people walking on or about the site, although at the particular time when this occurred there were specific findings that there were only the specified number of people found by her Honour to be adjacent to the ultimate procedure.  If one views it, as we say his Honour Justice Basten did, away from the simple procedure that both appellants seem to suggest occurred here and puts it into the context of a building site, then that brings into play, we say, two factors. 

The first is that it was then incumbent upon Downview to ensure that whatever delegation they delegated or the contracts they entered into were to, as Mr Justice Brennan put it, somebody suitable and competent, that is the only basis upon which they could be absolved from responsibility.  In respect of the liability of Leightons, the obligation on Leightons to keep a safe worksite encompasses that level 4 where this incident occurred where a number of people could have been injured by this swinging pipe.  It was fortunate for Leightons that the only person injured was Mr Fox. 

The way in which we say Justice Basten approached it was that if Leightons had complied with their end of the bargain as set out in clause 32 of the contract – it is quite clear that clause 32 demonstrates that they did not relinquish the overall responsibility to Downview, rather they retained that responsibility and so much is conceded to this extent, as I understand it, by Mr Walker, that they controlled ultimately the giving of the green cards, the matters which gave access to the site.

If they had complied with their obligations, there would be no way that Mr Fox and Mr Stewart would have been allowed on this site unless they had been given induction training.  In other words, ultimately it is the responsibility of the occupier to make sure that people who come onto the site conduct their trade in a manner which is going to keep the workplace safe.  The only way that that can be assured is to ensure that they understand and know the codes of practice which are not just paper codes, as both my learned opponents suggested. 

They are not there because people want to be able to point to them and say, “Yes, we have filled out this part of the code and that part of the code and therefore you cannot prosecute us”.  They are purposive in intent.  They are driven by a need to provide a safe workplace, otherwise they serve no function.  If it were not thus, then there would be no obligation on Leightons to control the worksite at all.  If all it was a paper exercise, then clearly that would not render a complex worksite safe.

FRENCH CJ:   It all means something.  The question is whether it informs a common law duty of care.

MR CRANITCH:   We say there is sufficient there for his Honour – as I understand it, although the statutory – we did not sue in the sense that we relied upon a breach of statutory duty, but there is no reason and there does not appear to be demonstrated any error of judgment on his Honour’s part by saying that those breaches could not inform a common law duty of care.  Clearly, had there been an acceptance of the obligation imposed upon them and a failure to do so, we could not sue them on a statutory breach, but we could be able to demonstrate that a failure so to do constituted a breach of their general law duty to keep a safe workplace as an occupier, leaving aside their contractual or other obligations.

Reduced as it is to that, if one then moves away, as his Honour Justice Basten did, from the concept that this really is a simple operation and review it in the context of being on level 4 of a very busy building site with multiple people in and about – and, indeed, we do not know what was going on on level 12.  There was obviously pumping concrete up to level 12.  There must have been multiple people up there dealing with the concrete.  So it is not in its terms a simple operation.  It is for that reason that it really does fall within the exception formulated by Justice Brennan in Stevens v Brodribb.

HEYDON J:   Do you submit that it falls within the passage in Justice Mason’s judgment in Stevens v Brodribb about engaging independent contractors and the need to give directions as to when and where work is to be done and to co‑ordinate it?

MR CRANITCH:   Yes.

HEYDON J:   Is there any difference between Mr Fox, Mr Stewart and the other gentlemen in terms of their functions?  Mr Fox was a semi‑skilled labourer, in effect.

MR CRANITCH:   Mr Stewart was not much better, and strangely enough Mr Still, although much reliance has been placed upon him in terms of his knowledge of the concrete pumping code and its application, it turns out when one looks at the evidence – and I have had my learned junior pass me the relevant section of it – that he never tied, although he said he had seen it tied down, he did not rely upon chaining down the end of the pipe.  He relied upon the persons operating the pump to do it.  This appears in volume 1 of the appeal book at page 182 from about line 40 onwards.  He said this:

Q.       You said that on other occasions, you’d seen that end of this pipe fixed with some chains? 
A.       Yes.

Q.       Where did those chains come from? 
A.       From off the pump that was – we used all the time.

Q.       That the pump on the pump truck, or some other pump? 
A.       Whose pump are we talking about? 

Q.       You said that we’ve got the line that’s been removed from the pump truck?
A.       Yes.

Q.       And that’s going to be placed over the waste bin.
A.       Yes.

Q.       You said there was on previous occasions you’d seen chains that were attached at the junction where the line is placed over the waste bin?
A.       Yeah, the boys on the pump . . . 

A.       They came off the pump.

Q.       That’s the pump truck?

The persons who had previously – jumping down to line 30 on that page, page 183, on the previous occasions the people who had secured the end of the line to the bin was the operator of the pump, not Mr Still.

HEYDON J:   Your argument is you have the operator of the pump who is a separate category of trade, as it were.

MR CRANITCH:   Yes.

HEYDON J:   You have your client and Mr Stewart who are in a low category of trade or a different category of trade and Mr Still perhaps in yet a third category, is that the way you put it?

MR CRANITCH:   That is so.  You see, one of the problems with this is that we have three independent contractors, Mr Still, Mr Stewart and Mr Fox who all turn up on what appears to have been an ad hoc basis.  Somehow or other they gain access to the site and we say they should not have had access if they did not have green cards, and two of them certainly did not, Mr Still may have. 

That is not entirely clear either, but there appears to have been nobody in charge of the operation.  They were each operating according to what was going on at a given time.  We know that Mr Still was on level 12 at the time when this occurred.  He was doing a blowback.  The other two were supposedly in charge of what occurred at the other end, and they were the two who relevantly had no knowledge and no induction.

HEYDON J:   The operator of the pump on the day of the accident on this site?

MR CRANITCH:   That was not clearly determined.  All three of them seem to have been the operator at some point or another.

HEYDON J:   There was no other party.

MR CRANITCH:   No.

FRENCH CJ:   So this was an ad hoc event, in a sense, an accident of circumstance that these three came together in this way because somebody was unavailable.

MR CRANITCH:   They were called at the last minute.

FRENCH CJ:   Yes.

MR CRANITCH:   Yes. 

FRENCH CJ:   So nobody to weld them into a unified team.  Why was this Leightons’ responsibility in the co‑ordination sense.

MR CRANITCH:   It is not, and I do not put it as high as that.

FRENCH CJ:   You are relying on a co‑ordination exception, are you not?

MR CRANITCH:   We are, particularly in relation to Downview, but in relation to Leightons, what we say – you take it one step back from that.  You have three people who come onto the site who need to know what each other is doing and need to know what relevant safety matters have to be addressed by the activities that they are carrying out on the site.  Now, we say that those people who did not have the requisite knowledge, which in this case was instruction of the pumping code, should not have been allowed on the site unless they had been inducted.  In other words, Mr Stewart and Mr Fox should have been stopped at the gate.

There was no evidence called by Leightons, or Downview, for that matter, as to what the – we know there was a gatekeeper.  We know that they issued green cards to get access to the site.  We know that from clause 32 of the contract.  Yet, somehow or other they got on to the site, unchallenged.  The person who is responsible for the overall control of the site is Leightons and it was the Leightons man, the gatekeeper, who was just generally there looking after the site, presumably, on behalf of Leightons - that seems to have been the finding – that let these people on.

That is where their liability comes in, we say, because even though they were not contractually bound directly to them they had the ultimate gatekeeping responsibility and had they not been allowed on the site, or alternatively, allowed on and inducted in the time that they went to the pub and had their, whatever it was, their beer and meat pie, there would have been ample time to have said, “There is the pumping code, watch out for this, this, this and this, and, by the way, when you are doing the blowback make sure you tie it down” on a site specific induction which was in fact required to be performed.

BELL J:   As against Leightons, you are relying on the evidence that there was a person described as a Leightons foreman who was aware that Fox and Stewart came on to the site.  Is that ‑ ‑ ‑

MR CRANITCH:   No, I think it is a little bit before that.  There was a gatekeeper, but that seems to be unequivocal.  There was a person who was on the gate who let them in and then there was a man variously described as a foreman and accepted by her Honour as being a labourer.

BELL J:   I am not referring to the latter, I am referring to a finding to which I have seen reference, and I cannot remember if it is in the judgment at first instance or in Justice Basten’s judgment, but to an individual from Leightons who was aware that Stewart and Fox were on the site and from that the inference could have been – the inference that I think in the Court of Appeal it was said was open was knowledge that there were two people on the site who may not have undergone induction.

MR CRANITCH:   Who may not have undergone it.

BELL J:   That is what you put your case against Leighton on?

MR CRANITCH:   Yes, ultimately.

BELL J:   I think there may have been some suggestion that that was not the way it was put at trial.  Is that so or not?

MR CRANITCH:   No, it was always – as I understand it – I was not in the trial at first instance, but as I understood it, and certainly we submitted in the Court of Appeal that the ultimate responsibility for site safety really went back to Leightons at their gatekeeper function.  In other words, if a person did not produce the requisite documentation he did not get on to the site and this thing would never have happened.

BELL J:   Is that how the case was pleaded?

MR CRANITCH:   No, it was pleaded on the basis of failure to provide a safe place of work.  I think the pleadings specifically – yes, page 4 of the first volume.  There were a number of matters pleaded but my learned friends seem to have rolled up (b) and (k), but the part and parcel of it was ultimately not providing a safe worksite which survived the Occam’s razor of his Honour’s dissection of the various things that could have been put in and were not allowed, but, in other words, it was always going to be held that it was Leightons’ responsibility to ensure general site safety and that is why they had the general induction.

BELL J:   Just so I understand it, looking at a common law duty informed by the requirements of regulation 213, how do you get to that leading to an inference that they would have been given instruction in 3.18 of the pumping code and where in 3.18 would they have received the instruction that would have avoided this hazard?

MR CRANITCH:   The method we say – and it appears to have been conceded by my learned friend, Mr Walker – is that when you start out at 213 and you trace through the various – we have set this our in our written submissions – you trace through the various provisions of the regulations and you get to the code, and then you get to the more specific code for the work practices peculiar to a trade.

BELL J:   That you say can be sheeted home by way of informing the general law obligation on Leightons as the principal contractor.  That is the area.  I think I understand the way it works downstream but I am trying to understand the principal contractor’s obligation.

MR CRANITCH:   Well, because we say that the obligation imposed at the very beginning in 213 is imposed on the principal contractor and that is to ensure that the workplace is kept safe.  Following on from that, the way in which a workplace is kept safe for all who embark upon – it is not a workplace, it is a construction site in this instance.  It may be described as a workplace, but, for example, there might have been a coffee vendor down on level 4, somebody who comes onto the site to retail coffee around the place.  It might have been a member of the public who got through the so‑called gatekeeper provisions.  So it is not just a worksite, it is a construction site which fronts onto the street.

So far as those people actually engaged in work on the site is concerned, however, ultimately the only way in which Leightons could be found liable would be if they had failed to control their worksite to the extent of ensuring that those contractors who came onto the site complied with their relevant codes of conduct.  Now, the way to do that is not as complicated as Mr Walker would have everyone believe.  It is not doing a full‑blown induction each and every time they come onto the site.  They get certified under the code every two years, they produce a certificate, pooh‑poohed by Mr Walker, but nonetheless it is a certificate which is valid for two years.

We say the obligation on Leightons is to ensure that all the contractors who come onto the site have the minimum qualifications, and that is, knowledge of the pumping code in this instance or knowledge of the electrical code if they are electricians, and the like, and they do that by producing to the gatekeeper, Leighton’s gatekeeper at the gate, their green card to certify that they have done the appropriate induction training which must have incorporated their relevant codes of practice. 

So it is a gatekeeper function.  I cannot put it any higher than that, I cannot say that Leightons needed to exercise direct control all the way down the line through the chain of subcontractors.  I think that would be imposing too high a duty of care upon them, and I doubt that there is any authority that I could call on which would substantiate that contention.

BELL J:   Within 3.18 of the pumping code, where do you identify the instruction that was relevant to this risk?

MR CRANITCH:   The particular relevance is this:

Extreme care should be taken when using compressed air to clean the pipeline.

That is the first generic warning. 

Air pressure will cause anything inside the pipeline to act as a high‑velocity projectile. 

So they say:

The following safety precautions should be followed –

There is the one that Mr Walker referred to with the rubber hose that whips around at the other end, that is in b.  Importantly c, we say, is the relevant matter because it requires:

A positive catchment device should be attached to the discharge end of the pipeline to safely catch the cleaning device –

This is the projectile which is about the cautionary tale above.  What happened here quite plainly was this pipe was suspended unattached about 12 inches or so, according to the evidence, above the container into which the discharge was to go.  This bag, or whatever it was, filled with dacron filling was projected down under high pressure and, for reasons which are unexplained but common sense would say the following, the projectile gets discharged out of the end of the pipe as a high velocity projectile warned about in 3.18 in the preliminary statement and, being only 12 inches away, either the reaction of it blowing out the end, on the laws of physics, the reaction is to kick the pipe back, as it did, and hit the plaintiff in the head or, alternatively, the projectile itself performed the same task by possibly bouncing back.  We do not know with certainty.  We do know that it did act as a high velocity projectile.  There was an enormous sound and a bang and a rumble and it came streaming out of the pipe.  Had it been tied down, it would not have bounced back. 

HEYDON J:   Strictly speaking, subparagraph c is letting the concrete flow rather than the substances used to clean the pipe after the concrete had flowed, that is the appellants.

MR CRANITCH:   That is so.  The concrete is the residue in the standing pipe but the important thing is that that comes out ahead of the projectile.  The projectile is the thing that is forcing it through.  The cautionary tale is you have to allow the concrete to come out at the end of the pipe, so you cannot have it flat against the metal containers.  It has got to be suspended somewhere.  Once it is suspended, of course, you have the possibility that this thing is going to come out at high velocity in the way a cannon recoils, and this obviously did. 

HEYDON J:   Do you rely on the first sentence of clause 3.18 which says that “Line cleaning should only be carried out”?

MR CRANITCH:   Of course, “by an experienced person”, but that goes without saying.  I thought that was complicit in our argument. 

FRENCH CJ:   Stewart and the plaintiff were not.

MR CRANITCH:   Were not.  There was a factual issue about that of course.  Her Honour at first instance thought they were but Justice Basten in analysing it obviously came to a different view, as he was entitled to do on such authorities as Fox v Percy where he as a Court of Appeal is to review the evidence.  He may well come to a different conclusion to that of the trial judge and he is entitled so to do.  Fox v Percy 214 CLR 118 stands as clear authority for that proposition.

Yes, we do.  Whilst there is undoubtedly a discrepancy between the findings at first instance and the appellate court, we do rely upon that fact because the level of experience for this particular site was inadequate and that was clearly demonstrated by the happening of the occurrence itself.

FRENCH CJ:   Just a minor factual detail, Mr Cranitch.  You mentioned the photograph at 419.

MR CRANITCH:   Yes.

FRENCH CJ:   That is actually a photograph of, I think, a four inch pipe with a five inch elbow and in fact the actual pipe was a five inch pipe with a five inch elbow, I think, on page 67 of the transcript.

MR CRANITCH:   Yes, but it was of that type.

FRENCH CJ:   So we are not talking about a whiplash of something with a rubber component.  This is a rigid ‑ ‑ ‑

MR CRANITCH:   No.It is a very solid, rigid component.  The miracle is that Mr Fox is still alive, to be honest, albeit quite gravely injured.  So the reasoning of Justice Basten has been criticised on the basis that he failed to enunciate a relevant duty of care and seems to have rolled up, as it were, breaches together with the duty.  It is our submission that when one looks at the paragraphs to which Mr Walker has directed the Court, a different picture in fact emerges because what is said by his Honour is that so far as Leightons were concerned there is a very narrow window of opportunity to make them liable. 

That is on the basis that it remained the principal contractor with overall responsibility for the site.  That is ineluctable.  That can never be avoided.  That is part of Leightons’ own contractual documentation.  Whilst his Honour engaged in an extensive discussion at paragraph 47 of the various ways which a principal might be liable for an independent contractor, he ultimately came down to the view that in this instance, and he did treat it on a very considered and narrow base – and it is on the particular facts of this case, it is not of general application – he did consider that because the accident was occasioned as a result of such an elementary thing as not tying down the pipe, which would have been drawn to anyone’s attention had they been inducted, Leightons had the responsibility for ensuring that they should never have gotten on the site to all intents and purposes. 

They should not have been there, if in fact they had not demonstrated a capacity to do the job in a safe manner, ie, in accordance with the relevant code of practice.  The case against Leightons, although considerably narrow, we say, was properly explicated by his Honour.  He eliminated all the other areas that Leightons might have been thought to have been liable upon and came down to the fact that a properly supervised site would ensure that contractors who came on as subcontractors, even in a chain of contractors, could not get on the site without in fact being properly inducted.  Because they exercised the ultimate control over the site in that fashion, then that is why they were liable. 

The important principle of it is that if persons who conduct major site operations, such as the Hilton Hotel, did not ensure that everyone who came on to the site was relevantly inducted, and it is a very simple procedure, produce the green card and produce your documentation to show that whatever underpins the green card is there – not as complicated as Mr Walker would say – and anyone who operated on the site complied with their relevant codes of conduct or relevant codes of practice.

There is a reason underlying this because he pointed out the fact that Mr Stewart had said to Mr Fox, “Look, stand back”.  He clearly appreciated there was some danger there, not the danger which was likely to eventuate by virtue of the pipe not being chained down.  It is a small point, but perhaps significant, that had Mr Stewart understood the risks of not chaining the pipe down, if he had bothered to tell Mr Fox to stand back why would he not have chained the pipe?  The simple fact is he was ignorant of it because he was not trained in the code of practice.

His Honour placed some weight on that and that applies not only against Leighton in terms of their gatekeeper role, but more particularly against Downview for – as he described it – the haphazard way in which they did not fulfil their obligations, in turn under contract, of ensuring that those people who came on to the site were properly inducted and were properly made aware of the relevant pumping codes before they were allowed on, in the form of Mr Stewart and Mr Fox.

The case, it has to be conceded, is much broader against Downview for that reason but we do say that, and I think as Mr Walker fairly concedes, there is a gatekeeper role.  The ultimate control of the site always remains with the principal contractor because they are the ones who have the occupation of the site under the relevant regulation.

HEYDON J:   There is just one small factual matter.  While the machinery was actually in operation and moving nothing but concrete, was compressed air used at that stage, or what force was used?

MR CRANITCH:   I do not understand the mechanisms, your Honour, I am sorry.  Do you mean when it is actually doing the pumping operation itself?

HEYDON J:   Moving the concrete – the liquid concrete through the pipe.

MR CRANITCH:   As I understand, it is a centrifugal pump, in other words, it is driven by a rotor which generates the – or a screw‑type operation which drives the concrete forward and up.  It could not be done by compressed air.  It is an auger.  I am told by Mr Maconachie, who is obviously a very skilled builder’s labourer, that that is an auger of some sort.

The way in which the compressed air, as my learned junior points out, was used appears at pages 219 and 220 of the joint appeal book, volume 1.  That is what is happening at the other end during the pump‑out process but in the actual pumping I understand that there was no compressed air used.  The compressed air was something which was part of a blowback operation separately from the pumping operation itself.

Unfortunately the one person who had some idea of the code was on level 12, not on level 4 and he was the one putting more and more air in and using an incorrect – as both Justice Basten and her Honour found at first instance it was one of the two limbs of negligence that there was an incorrect device used within the pipe.

FRENCH CJ:   As luck would have it, Mr Stewart’s direction put Mr Fox in harm’s way.

MR CRANITCH:   It did, regrettably.  Had he stayed where he was he probably would have been all right.  But, I mean, Mr Stewart was of course found liable at first instance, for what that was worth.  Your attention was drawn earlier to the fact that Leightons had rejected the earlier work method statement supplied by Downview in a letter at page 305 of volume 2 of the appeal books.  But it is quite clear that the work method statement, if one goes then to 307, included the code of practice for concrete and concrete pumping.  So there can be no doubt that the foundation of Mr Justice Basten’s assessment that training in the relevant induction training would have included this, is part and parcel of the documentation which was supplied to Leightons and rejected, initially, by Leightons on behalf of Downview.  So we submit that it is quite clear that “the concrete pumping exercise” as his Honour said at paragraph 56 at page 609:

was a relatively simple one, with a limited number of dangers.  Induction training which did not cover that aspect of the work would not have been proper induction training.

That seems to be unchallengeable because, indeed, their own documentation reveals that the pumping code would have been drawn to their attention as part and parcel of the relevant induction training.

Mr Maconachie put a proposition that his Honour’s conclusions are at best directed to a lost chance of a better outcome.  In our submission that misreads what his Honour said.  If he was to go through that exercise and one looks at the way in which the matters were raised in the various cases discussed in Gett it is clear that if he was to engage in that exercise he would have to go through a proposition of relative risks.

FRENCH CJ:   For myself, I am not sure that his Honour is getting into the loss of chance discourse here. 

MR CRANITCH:   I was going to say that it is quite clear that he did not.

FRENCH CJ:   It just seems to be different territory from Sellars and the other case referred to.  But it may be that it is unfortunate by talking about an opportunity being lost he has drawn in that baggage.

MR CRANITCH:   It is an unfortunate choice of words, but we say what he is really referring to is that the induction training would have drawn their attention to this and ‑ ‑ ‑

FRENCH CJ:   It is a causation issue.

MR CRANITCH:   - - - it is a causation issue.

BELL J:   He makes it explicit at paragraph 71 on appeal book 616 that with respect to Downview questions of causation are resolved in the same way as with Leighton at paragraphs 55 and 56.

MR CRANITCH:   Yes.  I thought I should deal with the question of lost chance lest we all go off the track and, in fact, it quite clearly could not have been a lost chance case.  It was either that it was a reasonable response to the risk to have them engage in the training, in which case they would inevitably, his Honour found, have tied down the pipe and saved this accident occurring.  It is not a percentage and I am very happy to rely upon your Honours’ assessment of it. 

Some criticism was made of his Honour when his Honour relied upon such comments as the haphazard way in which the contract was administered, but what in fact is unexplained in the case and why the criticism of their failure to call evidence is, we say, valid, that is, the failure of both appellants to call evidence, if in the case of Leightons they exercised a gatekeeper role, evidentially they had to provide an explanation as to how two people who were clearly not qualified to pump cement on this multistorey site were allowed on the site, and yet no evidence was forthcoming from them at all. 

It, for example could have been available to them to say, well, they produced false documentation or something like that of the sort of documentation that Mr Walker pooh‑poohed as being of limited value.  None of that was forthcoming.  We say that his Honour was perfectly entitled to accept that, absent that, they had explaining to do and they failed to do it.  They failed to call any evidence at all as to how these unqualified and uncertified people got on the site.

So far as Downview are concerned, it was quite clear that nobody within this little operation had a handle on how it was to be performed.  There were three independent contractors, all of them seemingly going about their own separate operations, two of whom were clearly in breach of Downview’s obligations at least, to provide adequate and proper training in the use of the equipment which was brought onto the site in the form of the pumping code of practice.  Again, there is no evidence from Downview as to how and why that would have occurred.  They simply omitted to call any evidence whatsoever.

Your Honours, I do not know that I can add a lot more than I have already put in our written submissions which take issue with both appellants in a relevant sense.  But if I might just conclude by saying this.  It is important to remember this is not a simple operation.  It may be a simple operation internally, but even then one would have to look at whether it is,

because there are presumably a number people working on level 12 spreading the concrete and we know that there are a number of people of various trades who are likely to be on level 4 and against which a simple induction would have provided safety for them, as it would have for the plaintiff, Mr Fox.  Failure to do so, we say, was an inference easily able to be drawn on the available evidence and his Honour was perfectly entitled to draw that inference in the context.  Those are our submissions, your Honours.

FRENCH CJ:   Thank you, Mr Cranitch.  In reply, Mr Maconachie.

MR MACONACHIE:   My learned friend, Mr Cranitch, made a point at the commencement of his submissions that there were lots of other people moving about on level 4.  There were crib sheds, there was a first‑aid post and the like.  That helps him not at all.  The question always is whether or not there was a duty of care owed to the plaintiff and whether it was breached.  That there might have been a duty of care owed to others that was not breached is neither here nor there.

My learned friend’s proposition, I think in answer to something said by the Chief Justice with respect to the code or the regulations informing the duty at common law, apart from the propositions that I put in‑chief, I would merely remind your Honours that section 46 says that the code cannot, as it were, by itself give rise to civil liability.  Justice Basten at 609 at line 11 identified the sole basis as being, as we read his judgment, the concrete pumping code.  Accordingly, the submissions he put to you, in our respectful submission, that go to the question of the code informing the content of the duty of care or the scope of it fall foul of his Honour’s finding that it was the sole basis for decision, and section 46 which says that is not enough.

My learned friend made the submission to your Honours that if inducted it would have been said – my words, not his, but I think this is the burden of what he had to say - make sure you tie it down.  There is just no evidence of that, none.  No evidence was called from Mr Still, who had been inducted by the plaintiff, that if there had been an induction that was relevant to a pumping contractor and/or his subcontractors, that the tying down proposition would have been referred to.

Justice Basten relied on the proposition that Mr Still was called, the defendants did not ask him any questions about whether or not there would have been, in the content of the induction, something with respect to the tying down and therefore, because Mr Still had been called but the defendants had not asked him any questions about it he could infer that it would have been referred to.  With respect, that flies in the face of section 5E and, in any event, is inconsistent with the propositions in Jones v

Dunkel and Luxton v Vines to the effect that you cannot use a failure to call evidence or a failure to challenge someone who is an onus bearer, as it were.  You cannot use a gap in the plaintiff’s evidence to be cured by the drawing of an inference.

So far as my learned friend’s loss of chance submissions go, we would merely direct your Honours’ attention to paragraph 56 of his Honour’s judgment, which he incorporates by reference against Downview at paragraph 71 of his judgment at page 616, that is paragraph 71.  Justice Bell made the point that Justice Basten said:

Questions of causation have been dealt with in relation to Leighton at [55]‑[56] above.

At 56, the passage to which I have just referred occurs, that is, Still was called, Still did not say anything, Still was not asked, therefore I can infer.  Well, that flies in the face of section 56.  So even if you are against me on the loss of opportunity point, section 56 and the way in which the Court of Appeal in Gett’s Case dealt with it denies the finding of causation in any event, and that is all I wish to say in reply.

While I am on my feet, we undertook, I think to Justice Heydon, that we would before the end of the day provide you with some references to the appeal books.  That has been done, but it has been written out by hand by Mr Gambi.  It looks like an ant has fallen into an ink bottle and run across the page.  Could they be typed up overnight and sent by facsimile or emailed to your Honours first thing in the morning?

FRENCH CJ:   Yes.

MR MACONACHIE:   Thank you.  Can we see one of your Honours’ associates outside to find out when and how?

FRENCH CJ:   Well, to the Registry I think would be best.

MR MACONACHIE:   To the Registry.  Thank you, your Honour.

FRENCH CJ:   Yes, Mr Walker.

MR WALKER:   Your Honours, Justice Bell asked some questions about I think a foreman and some reference has been made by my learned friend, Mr Cranitch, to a gatekeeper.  Now, I mean a literal gatekeeper, not the figurative one.  In terms of a literal gatekeeper, there is a first instance finding against the credibility of the plaintiff, rejecting his evidence, volume 2, 520, line 35, together with footnote 18.  In relation to a foreman, yes, there was evidence, again from the plaintiff, but the trial judge considered and rejected that evidence, preferred contrary evidence.  That is 534, line 60 to 535, line 15, as not a foreman.

GUMMOW J:   Page 534?

MR WALKER:   Page 534, line 60 to page 535, line 15.  Justice Basten refers to this - a case based upon Leightons being, as it were, involved by the presence of a foreman, and therefore being negligent for deficient supervision, failed factually as well as for the other reasons given.

BELL J:   I think Mr Cranitch may have been referring to that passage in Justice Basten’s judgment at appeal book 606, line 35 or so.

MR WALKER:   Yes. 

HEYDON J:   Just on that last passage you took us to on 535, forklift driver and labourer.  What was the forklift doing and what labour was the labourer doing?

MR WALKER:   There is very little further than that.  The relevant finding was that the forklift driver and a labourer were sufficiently in the vicinity to have stood aside while the procedure was being carried out.  A divergence in evidence is referred to at the foot of page 534 which your Honours have seen.  That is where the foreman is referred to.  I do not think that there are any other findings relevant to what they were doing.  You have the “heaps of people everywhere” reference that I assume Mr Cranitch was referring to earlier at 534, line 40.  That includes evidence in generalised form about what they were doing.  But in terms of involvement of this operation there are no other findings. 

Certainly this was not a co‑ordination case in a Brodribb sense. The trial judge appears to be taking that approach, that is, not treating it as such in the comments and findings her Honour made at 544, lines 30 to line 45 about the tandem task. In particular, there is a reference to it being something well within Mr Still’s capacity to co‑ordinate. Justice Basten, of course, does not analyse the case as being an application of Brodribb. Justice Heydon asked my learned friend whether the passage at 160 CLR 16 at 31 in the reasons of Mr Justice Mason were words upon which the plaintiff relied. The answer was yes but ‑ ‑ ‑

HEYDON J:   Against Downview?

MR WALKER:   Against Downview.  I think the answer did become refined to Downview.  We need to make it clear, Leighton did not engage Mr Fox, indeed, did not engage anybody who engaged Mr Fox and the engagement does appear to be very important in the reasoning or the

rationale of that means of liability.  There is certainly, equally, no need for somebody in the position of Leighton to be giving direction in order to co‑ordinate, particularly when there is a finding about Mr Still.  Similarly, factually, Leighton was not involved in whatever led to what my friend called the “last minute calling” of these gentlemen. 

In our submission, the proper answer to our learned friend’s attempt to explain why as principal contractor Leightons were liable.  Fault is because, while speaking of the responsibility or control which was Leightons, there is no quarrel with the reasoning of Justice Basten, surely correct, that there was not sufficient responsibility for Leightons to be vicariously liable for Mr Stewart or, for that matter, for Downview. 

True it is, they might be slightly different areas of discourse, the responsibility or control being talked about, but they all turn on the same facts and they all turn on the facts assembled for the same assessment of legal relationship,  In our submission it would be anomalous and ought to be regarded as impossible for a person in Leightons’ position not to have sufficient responsibility or control to be vicariously liable, including for the person who was found liable, but nonetheless to be found by dint of responsibility and control directly liable.  In our submission, that is self‑contradictory.  May it please the Court.

Your Honours will have gathered, I hope, in my earlier address, Mr Cranitch’s suggestion that Leightons should have stopped people at the gate is not a pleaded case, there was not a literal gatekeeper case.

FRENCH CJ:   Thank you, Mr Walker.  The Court will reserve its decision and will adjourn until 9.30 tomorrow in Melbourne.

AT 3.32 PM THE MATTER WAS ADJOURNED