DAC Finance (NSW/Qld) Pty Ltd v Cox

[2024] NSWCA 170

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

DAC Finance (NSW/QLD) Pty Ltd v Cox [2024] NSWCA 170

Hearing dates:

20 June 2024

Decision date:

16 July 2024

Before:

Ward P at [1];
Leeming JA at [2];
Mitchelmore JA at [102]

Decision:

1. Appeal allowed.

2. Set aside orders 1 and 2 made by the District Court on 16 February 2024, and in lieu thereof enter judgment in favour of the defendants.

3. Direct the parties to file and serve, within 21 days of today, agreed short minutes of order as to the costs at first instance and in this Court, or in lieu of agreement, the orders which each seeks accompanied by submissions not exceeding 4 pages in support, with a view to any dispute as to costs being determined on the papers.

Catchwords:

NEGLIGENCE – workplace injury – occupier’s liability – plaintiff suffered jolt when descending elevator stopped without warning during planned power interruption – power testing conducted by other employees at the workplace – no steps taken to ensure lifts were not being used – no warnings given – litigation conducted on basis that plaintiff’s employer was not sued – plaintiff sued two related companies which owned the land and operated the business – whether related companies liable in negligence as occupiers – whether evidence capable of sustaining findings of breach attributable to related companies, as opposed to attributable to plaintiff's employer – appeal allowed and judgments entered in favour of defendants

Legislation Cited:

Civil Liability Act 2002 (NSW), Pt 2

Evidence Act 1995 (NSW), s 60

Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5

Limitation Act 1969 (NSW), s 18A

Supreme Court Act 1970 (NSW), s 75A

Uniform Civil Procedure Rules 2005 (NSW), r 17.3

Workers Compensation Act 1987 (NSW), ss 34, 36, 37, 38, 151G, 151H, 151J, 151Z, Pt 5

Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 326, Pt 7 of Ch 7

Cases Cited:

AF Concrete Pumping Pty Ltd v Ryan [2014] NSWCA 346

Clancy v Plaintiffs A, B, C and D; Bird v Plaintiffs A, B, C and D [2022] NSWCA 119; 318 IR 31

Day v The Ocean Beach Hotel Shellharbour Pty Ltd (2013) 85 NSWLR 335; [2013] NSWCA 250

Deatons Pty Ltd v Flew (1949) 79 CLR 370; [1949] HCA 60

Forstaff Blacktown Pty Ltd v Brimac Pty Ltd [2005] NSWCA 423; [2005] Aust Torts Rep 81-814

Galea v Bagtrans Pty Ltd [2010] NSWCA 350; [2011] Aust Torts Rep 82-078

Kabic v AAI Ltd t/as GIO (No 2) [2019] NSWCA 311

Mt Owen Pty Ltd v Parkes [2023] NSWCA 77; 324 IR 34

Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313; [1997] HCA 389

Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626; [1986] HCA 34

QBE v Orcher [2013] NSWCA 478

Transpacific Industrial Solutions Pty Ltd v Phelps [2013] NSWCA 31; 230 IR 438

Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2006] QB 510; [2005] EWCA Civ 1151

Williams v Metcash Trading Ltd [2019] NSWCA 94; 286 IR 438

Category:

Principal judgment

Parties:

DAC Finance (NSW/Qld) Pty Ltd (First Appellant)
DAC Finance Pty Ltd (Second Appellant)
Patricia Cox (Respondent)

Representation:

Counsel:
D Priestley SC (Appellants)
D Hooke SC, M Hammond, A Saleh (Respondent)

Solicitors:
Gilchrist Connell (Appellants)
Somerville Laundry Lomax Solicitors (Respondent)

File Number(s):

2024/98286

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Citation:

[2024] NSWDC 22

Date of Decision:

16 February 2024

Before:

Acting Judge Levy SC

File Number(s):

2021/00183201

HEADNOTE

[This headnote is not to be read as part of the judgment]

The respondent, Mrs Patricia Cox, worked as an “Assistant in Nursing” at a residential aged care facility, known as the “Opal Florence Tower”, in Tweed Heads. On 4 July 2018 she was in an elevator which stopped abruptly during its descent due to a test of an emergency power supply from a backup generator. The testing was conducted by Messrs Hyndes and Garner. No notice was given to staff that day that a power outage was to occur. The respondent was found to have suffered serious injury from the incident.

The retirement village at Opal Florence Tower involved three related companies, “DAC Finance”, “DAC (NSW/QLD)” and “DPG Services”. Various ASIC searches and a statement of agreed facts established: (1) that the parent company DAC Finance operated the business named “Opal Aged Care”, (2) it did so on land owned by its wholly owned subsidiary DAC (NSW/QLD), while (3) another subsidiary DPG Services owned the business name “Opal Florence Tower” and employed the respondent.

The respondent did not sue her employer, DPG Services, seemingly because of perceived statutory hurdles imposed by s 151H of the Workers Compensation Act 1987 (NSW). That provision provides that no modified common law damages whatsoever may be ordered “unless the injury results in the death of the worker or in a degree of permanent impairment of the injured worker that is at least 15%”. The respondent instead alleged that DAC (NSW/QLD) was liable as owner of the land, and that both that company and its parent DAC Finance were occupiers which owed a duty of care to her.

The District Court found both DAC (NSW/QLD) and DAC Finance liable, and entered judgment against them in favour of the respondent in the amount of $925,435.42.

The primary issue on appeal was whether a breach of duty was made out against either DAC (NSW/QLD) or DAC Finance.

The Court (Leeming JA, Ward P and Mitchelmore JA agreeing) held, allowing the appeal, setting aside the orders made by District Court and in lieu entering judgment in favour of the defendants:

As to the principal issue:

(1)  Although the primary judge did not make an explicit finding about the employment of Messrs Hyndes and Garner, uncontroverted evidence at trial established that they were also employed by DPG Services: at [32]-[45].

(2)  The relevant tortious acts and omissions were those of Messrs Hyndes and Garner, for which DPG Services was vicariously liable as their employer for acts and omissions done in the perceived performance of their duties: at [46], [77], [84].

(3)  Not only was DPG Services vicariously liable for the tortious acts and omissions of Messrs Hyndes and Garner, but no other company was vicariously liable. The only relevant tortious conduct was that of Messrs Hyndes and Garner, and the only vicarious liability that was available based on their conduct is the vicarious liability of their employer: at [47], [71]-[82], [84]-[86].

Day v The Ocean Beach Hotel Shellharbour Pty Ltd (2013) 85 NSWLR 335; [2013] NSWCA 250, QBE v Orcher [2013] NSWCA 478, Clancy v Plaintiffs A, B, C and D; Bird v Plaintiffs A, B, C and D [2022] NSWCA 119; 318 IR 31, Mt Owen Pty Ltd v Parkes [2023] NSWCA 77; 324 IR 34, followed. Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626; [1986] HCA 34, applied. Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2006] QB 510; [2005] EWCA Civ 1151, distinguished.

Discussion by Leeming JA of:

(4)  The interaction between claims for common law damages and the entitlement for workers compensation: at [13]-[21].

JUDGMENT

1. WARD P: I agree with Leeming JA.

2. LEEMING JA: This appeal is brought from a “verdict and judgment” of the District Court constituted by a judge sitting without a jury in the amount of $925,435.42 against two companies, neither of which was the employer of the respondent employee, following an accident at her workplace. There are numerous grounds, but the principal question is whether the District Court erred in finding the companies liable and failing to make findings about the company which employed the people whose breaches of duty caused the injury, in circumstances where the respondent did not, and seemingly could not, sue her employer. I have concluded that the appeal must be allowed, the District Court judgment set aside and judgment entered in favour of the appellants, because there was no evidence capable of sustaining the conclusion that the appellants, as opposed to the employer, breached any duty owed by them thereby causing injury to the respondent.

Factual background

3. The respondent Mrs Patricia Cox was found to have sustained serious injury at her workplace. She had been working as an “Assistant in Nursing” at a residential aged care facility, known as “Opal Florence Tower”, in Tweed Heads. On 4 July 2018 she was in an elevator which stopped abruptly during its descent due to a test of an emergency power supply from a backup generator.

4. A statement of agreed facts tendered at the trial included the following:

3. The Plaintiff commenced employment as an AIN at Opal Florence Tower in January 2017.

4. On 4 July 2018 the Plaintiff was at work performing her AIN duties, at Domain Florence Tower, 7-9 Florence Place, Tweed Heads in NSW, (Lot 50, DP 1118321), (the Premises).

5. The Plaintiff, with co-workers Donna Siganto and Daniel Sheridan, entered one of the two lifts to travel down to the ground floor.

6. A planned power outage to test the backup generator’s operation occurred at the same time as the lift was travelling downwards.

7. No notice was given to staff that day that a power outage was to occur.

8. The lift operated in an unexpected manner as a result, and came to a sudden stop.

9. The Plaintiff’s wages were paid to her by DPG Services Pty Limited, and she was employed at all relevant times by DPG Services Pty Ltd.

5. I shall return to the significance of the last paragraph, which in addition to a statement of fact concerning the payment of wages contains the legal conclusion that DPG Services Pty Ltd was the respondent’s employer and which bears directly on the central issue in this appeal. The trial proceeded on that basis. For present purposes, dealing with the evidence bearing on the incident itself, the agreed facts were supplemented by some testimonial evidence and some documents.

6. The trial took place more than five years after the event. The respondent gave evidence but said she did not have a good recollection.

7. A WorkCover NSW “certificate of capacity” dated 9 July 2018 gave the following description:

Works in lift at Work – Power went out and lift plunged down on 4/07/2[0]18 at 11.20 am. Because of sudden fall she Suffered lower back pain. Pain radiates to anterior Left Thigh.

8. A statement signed by the respondent dated 27 July 2018 and made as part of an investigation by DPG Services’ workers compensation insurer recorded her saying that “The lift slowly started to move for only one or two seconds, and then just dropped suddenly”, and then it “stopped with a very strong jolt”, and that she lost her balance and grabbed onto a handle at the back of the lift, and “put the pressure on my left leg when I lost my balance just prior to grabbing onto the handle bar”. The same statement said “I am employed by OPAL Florence Towers (OFT) in Tweed Heads as an AIN” and “I have worked for OFT for about one and a half years”.

9. A medico-legal report, prepared more than a year later, stated:

HISTORY OF ACClDENT: On 4^th July 2018, Patricia was working in her capacity as a nurse at the Opal Florence Tower Aged Care Facility. She was on her lunchbreak. She was in a lift – descending. The lift mechanism faulted and came to a very sudden stop. She became airborne by a centimeter or 2 and landed on her feet. She suffered an axial compression injury to her spine and has severe pain ever since. She remained at work on restricted duties. The last time she worked was February 2019.

10. There is no reason to doubt that the mechanism of the respondent’s fall was the decision to turn off the power to the lift as it was descending, while it contained occupants who were not warned of the fact that a test was about to be conducted.

11. The respondent suffered pain in the aftermath of the incident. She worked on the following two days (a Thursday and Friday), saw her doctor on Monday 9 July, and a CT scan of her lumbar spine was taken on 10 July 2018 at Tweed Hospital, which showed “severe lumbar facet joint degenerative changes throughout the lumbar spine focally worse at L3-L4 and L4-L5 and of the left L5-S1 facet joints”, and “mild to moderate degenerative changes seen of both SI joints”. At trial, Dr Cleaver, an orthopaedic surgeon retained by the respondent’s solicitors, said:

Patricia has been involved in a work accident which has brought to clinical relevance degenerative changes in the facet joints in the lumbar spine and caused her to stop work.

12. The pain continued thereafter, despite a variety of interventions (including a CT guided injection, cortisone injections, physiotherapy, aqua therapy, acupuncture). The respondent gave evidence, which was accepted by the primary judge, that she was in pain every day, and many of her daily activities were impeded.

The interaction between the claims at trial and the entitlement for workers compensation

13. The respondent sought and obtained workers compensation for parts of the “first entitlement period” and the “second entitlement period”, according to a table of payments tendered by consent at the trial. Those periods are the first 13 weeks and weeks 14-130, respectively, after the accident: see Workers Compensation Act 1987 (NSW), ss 36 and 37. It seems, both from the quantum of payments of workers compensation, and from a note made by a doctor treating the respondent on 7 August 2018 (“Unhappy about being sent back to work. … Work cover has cut her off”) and 31 October 2019 (“Not successful with the work cover”), that there was a dispute about her entitlement to workers compensation. If that is so, the documents bearing upon it were not in evidence. In any event, s 38 of the Workers Compensation Act provides that a worker’s entitlement to compensation in the form of weekly payments ceases on the expiry of the second entitlement period unless the worker is “assessed by the insurer as having no current work capacity and likely to continue indefinitely to have no current work capacity”.

14. The reasons of the District Court in favour of the respondent, and in particular the component of damages for future economic loss and superannuation, proceeded on the basis that it was:

improbable that she will ever be able to sustain remunerative employment in the future, whereas uninjured, she would most probably have worked until her projected retirement for another 11 years to the age of 67 years. Her pre-existing depressive illness and GORD would have been unlikely impediments to sustained future employment: at [224].

15. To anticipate what follows, that assessment is very difficult to reconcile with an assessment of permanent impairment of 8%.

16. Speaking generally, employees who sustain serious injury by reason of their employer’s negligence are entitled to “modified common law damages” pursuant to Pt 5 of the Workers Compensation Act. Such damages are less generous than damages either at general law, or pursuant to Pt 2 of the Civil Liability Act 2002 (NSW). Thus, no damages are available for non-economic loss, the discount rate for future economic loss is 5%, and economic loss is limited by a cap (see Workers Compensation Act, ss 34, 151G and 151J). Those considerations make it desirable for an employee, in a case where the breach of duty by multiple defendants has caused his or her injury, to seek to allocate all, or as much of the responsibility as is possible, to defendants other than an employer.

17. In addition to the above, a precondition to the making of a claim for any modified common law damages is imposed by s 151H. That section provides that no modified common law damages whatsoever may be ordered “unless the injury results in the death of the worker or in a degree of permanent impairment of the injured worker that is at least 15%”.

18. The trial was run on the basis that s 151H prevented the respondent from bringing a claim for modified common law damages against her employer. Dr Cleaver “assessed” her permanent impairment at 8% (his letter expressed an opinion, but was not a formal certificate). The written submissions of the defendants, following trial, stated that the respondent had sought and obtained leave to sue DPG Services, but had not done so, “presumably because of statutory procedural hurdles”. The respondent’s own written submissions following the trial stated that she was “unable to bring proceedings against her employer, DPG Services Pty Ltd (DPG) due to not reaching the relevant permanent impairment threshold found in section 151H of the Workers Compensation Act 1987”.

19. The operation of the assessment of permanent impairment upon s 151H and s 151Z in cases where an employee has a claim against defendants other than his or her employer (such as an occupier of premises or a manufacturer of a defective product) was explained in AF Concrete Pumping Pty Ltd v Ryan [2014] NSWCA 346 at [41]-[45]. There is an obvious tension between an assessment of permanent impairment of 8% and the injury found by the primary judge resulting in judgments against both defendants in the amount of $925,435.42. But in the present case, such documents as existed bearing upon the assessment of permanent impairment were not included in the appeal books.

20. Indeed, so far as I can see, there was not tendered any formal medical assessment certificate consequent upon assessment pursuant to Pt 7 of Ch 7 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW). That may be because none was ever obtained. Such a certificate is conclusively presumed to be correct on the matters identified in s 326(1) of that statute, including the degree of permanent impairment of the worker as a result of an injury, in any proceedings in a court with which the certificate is concerned.

21. For many workers employed by a sole trader, or a company, or a partnership, s 151H would operate as a complete bar to an action for negligence in cases where permanent impairment is assessed as less than 15%. However, the retirement village at Opal Florence Tower involved three related companies, as a result of which the respondent brought an action for negligence in the District Court on 25 June 2021, shortly before the expiry of the three year limitation period imposed by s 18A of the Limitation Act 1969 (NSW). She did not sue her employer, DPG Services. She sued two related companies, DAC Finance (NSW/QLD) Pty Ltd and DAC Finance Pty Ltd. I shall refer to the three companies as “DAC (NSW/QLD)”, “DAC Finance” and “DPG Services”.

DAC Finance and its subsidiaries

22. An ASIC search established that DAC (NSW/QLD) is a wholly owned subsidiary of DAC Finance, and a Business Name search established that DAC Finance was registered as the owner of the name “Opal Healthcare”. Another ASIC search established that DPG Services is also a subsidiary of DAC Finance. Another Business Name search established that DPG Services owned the business name “Opal Florence Tower”.

23. The ASIC search established that in July 2018, DPG Services had two directors, Mr Harley Wright and Mr Sean Bilton. Both men were also, at the time, directors of the parent company DAC Finance although there were other directors of the latter company. No ASIC search for DAC (NSW/QLD) was tendered, but as it happens a document which is addressed in ground 1 was signed by Mr Wright on behalf of each of DPG Services and DAC (NSW/QLD).

24. The statement of agreed facts provided:

10. DAC Finance (NSW/QLD) Pty Limited owned the subject land and buildings at the Premises including the lift.

11. DAC Finance Pty Limited operated a business named Opal Aged Care at the relevant time.

25. In short, the various searches and agreed facts established that the parent company DAC Finance operated the business named “Opal Aged Care”. It did so on land owned by its wholly owned subsidiary DAC (NSW/QLD), while another subsidiary DPG Services employed the respondent.

26. The respondent alleged that DAC (NSW/QLD) was liable as owner, and that both that company and its parent DAC Finance were occupiers who owed a duty of care to her.

25. The happenstance that those controlling the three related companies had chosen to vest the land in one subsidiary and make another subsidiary the employer resulted in an opportunity to outflank the prohibition in s 151H, which would not have been available had the same company owned the land, operated the business and employed the respondent. The respondent was entitled to advance a case which took advantage of that opportunity. However, in order to make out such a case it was essential to focus upon breaches of duties owed by DAC (NSW/QLD) and DAC Finance, as opposed to DPG Services.

26. Of course, none of DAC (NSW/QLD), DAC Finance or DPG Services itself did, or failed to do, anything at the respondent’s workplace. All three were artificial persons, which could only act through their officers, employees and agents. Therefore it was necessary for the respondent to attribute the acts or omissions giving rise to a breach of duty which caused her injury to one of DAC (NSW/QLD) or DAC Finance, as opposed to DPG Services. That may seem quite artificial, in circumstances where the three companies are so closely related, and indeed it is. For example, if it was said that Mr Wright had done something, or failed to do something, it would be essential to determine whether he was acting as a director when doing so and, if so, of which company. But such artificiality is brought about by the artificiality inherent in the respondent’s claim that related companies other than her employer breached duties owed to her which caused her injury.

The evidence bearing on breach of duty and the companies to which it was attributable

29. It is not difficult to analyse the entirety of the evidence which is capable of bearing upon acts or omissions by DAC (NSW/QLD) or DAC Finance, as opposed to DPG Services. There was not much of it.

The absence of documentary records

30. In a case which was pleaded against DAC (NSW/QLD) and DAC Finance as occupiers and (in the case of the former) owner of the land, and which particularised the need for those companies “either by themselves, or through their servants and/or agents” to ensure that the power interruption did not take place when the elevator was being used, or to warn the respondent, there was no evidence bearing upon the relationship between the natural persons present on the land and the various companies. No contracts of employment were tendered. No financial statements or annual reports were tendered. No notices to admit or interrogatories were tendered.

31. There was however direct testimonial evidence from the men who caused the incident to occur.

Messrs Hyndes and Garner

32. The man who turned off the power in order to test the back up generator, Mr Stephen Hyndes, was not a party. He, like the respondent, worked on site. He was the on-site maintenance employee. Neither side called him as a witness. However, a statement made by him on 31 July 2018 to an investigator acting for DPG Services’ workers compensation insurer was tendered without objection. In it, he stated:

10. I understand that the reason for this interview is in relation to a GIO work claim G507702Z157.

11. I am employed by OPAL Florence Towers as the Maintenance officer (MO).

12. I have been in this position with OPAL for approximately eighteen (18) months.

13. My duties are to maintain, fix, repair and attend to a matrix regarding all the utilities, equipment, gardens and building.

14. The risk management side of things are done by head office and overseen at our facility by either the facility care manager or the facility manager.

15. Part of my duties is to check the list of duties is the scheduled maintenance checks. [sic]

16. One of these checks is to turn the power off once every three (3) months to ensure that our generators kick in. This check is obviously to check that if in the event of a blackout or power failure, the generators kick in to take over.

17. On 4 July 2018, we were scheduled to do a check that the generators were working in case of power failure.

18. About 11.15am, I turned the power off, and the generator kicked in within about ten (10) seconds.

19. The staff are not generally alerted, because if they are, the test doesn’t get an accurate load reading. The generator runs for about twenty (20) minutes before we turn the power back on.

33. The statement also referred to the fact that, after incident reports were logged, two lift maintenance people from ThyssenKrupp attended to do a maintenance check. That occurred on 12 July 2018. The statement said that “Drew” organised for this to occur.

34. Mr Hyndes’ statement did not identify “Drew”. However, the respondent’s own statement identified “Drew” as the “facility manager” who had an office on the ground floor. In any event, the same workers compensation insurer investigator took a statement from Mr Drew Garner, which once again was tendered without objection and without him being required to attend to give evidence. Mr Garner said that he was “employed by OPAL Florence Towers as the Facility Manager”, had been with OPAL for two years, and OPAL Tweed Heads since April 2018. He said that the respondent was a “part time permanent employee with OPAL Tweed Heads”. He had conducted the test with Mr Hyndes, and said the following:

25. I oversee the maintenance manager Steve Hynd[es], who is responsible for the preventative and active maintenance.

26. Part of OPAL’s schedule maintenance is documented and is required to be followed.

27. I have provided you with a copy of the scheduled maintenance requirements for the Tweed Heads Facility.

28. As such on Wednesday 4 July 2018, I was required to conduct a test with the maintenance manager Steve Hynd[es], to shut the power off, to check if the generators kick in.

29. This test is done every three (3) months. I have supplied you with a copy of that schedule.

30. My thought process were the machines required for emergency treatments, if there is a case of a real incident of power failure, to check that our generators are working as they should be.

31. I was in my office around 11.15am when the power was switched off by Steve.

32. The lights and computer switched off and then back on after a split second, which told us that the generator was operating as it should be.

35. In the statements prepared by the workers compensation insurer’s investigator, Messrs Hyndes and Garner said they were employed by “Opal Florence Towers”. The same investigator prepared a statement from the respondent at the same time, in respect of the same workers compensation claim, and that statement also recorded that she was employed by “OPAL Florence Towers”. There is no company of that name, or anything like that name, in the evidence. However, DPG Services owns the business name “Opal Florence Tower” [sic, in the singular].

36. It is not uncommon for the employees of companies which form part of a corporate group to be employed by the same company. That makes it easier for them to be paid their income and compulsory superannuation, for payroll tax to be calculated, for income taxation to be withheld, for workers compensation premiums to be calculated and paid, and so on.

37. Neither side tendered any financial statements, or pay slips, or tax records, or contracts of employment, or notice to admit, or any other document which might have displaced the inference that Messrs Hyndes and Garner were also employed by DPG Services.

38. There is nothing to suggest that either Mr Hyndes or Mr Garner were employed by DAC (NSW/Qld) or DAC Finance.

39. The trial took place at Lismore. It was opened briefly on Monday 23 October 2023, in a running list, and evidence was taken from Mrs Cox, her doctor and an engineer Mr Hampson on the Tuesday, before the case adjourned for final submissions on the Thursday. Most of that day’s hearing was occupied by an attempt to tender part of a deed relating to a lease (which is the subject of grounds 1 and 5 of the appeal) and although closing submissions commenced, the trial was adjourned at around lunchtime on the basis that the defendants would file written submissions on 10 November followed by the plaintiff on 17 November.

40. In their written submissions, the defendants contended, extensively, that DPG Services employed everyone on the site with the result that they were not liable:

21 DPG Services operated the business named Opal Florence Tower. That business had its principal place of business at the Premises. DPG employed staff who provided aged care and related services at the Premises evidently under that business name. This is clear from the following evidence:

(a) each of the lay witnesses whose statements were in evidence, being the Plaintiff, Mr Sheridan, Mr Hyndes and Mr Garner, stated that they were employed by this business, Opal Florence Tower/s;

(b) the Plaintiff was employed by and paid wages by DPG Services Pty Limited.

22 Against this, there was no evidence of any person being employed by any other entity conducting a business at the Premises.

23 Mr Garner stated that as the Facility Manager it was part of his duties to ensure that all of the equipment was kept working. He went on to say that he oversaw the Maintenance Manager, Steven Hynd(es).

24 Mr Hyndes said that it was part of his duties to perform scheduled maintenance checks which included generator tests. Indeed, under the supervision of, and with the knowledge of Mr Garner, Mr Hyndes performed the generator test in question which led to the incident.

25 In the circumstances, and on the evidence, DPG Services and its employees were wholly responsible for the conduct, and safe conduct, of the generator test.

26 The breach of duty alleged against the Defendants is failing to take two reasonable precautions against the identified risk of harm:

(a) conducting the generator test at a time when the lift was or may be in use, rather than afterhours or with lift use prevented; and

(b) perhaps as a lesser measure, warning persons including the Plaintiff who may enter and use the lift that the generator test was about to be conducted.

27 To the extent that for present purposes it may be accepted that these were either or both reasonable precautions that should have been taken against the risk of harm, they were entirely within the province and duty of DPG Services to take them, because:

(a) DPG Services was responsible for conducting the generator test;

(b) DPG Services was aware when and in what manner the test could be conducted;

(c) DPG Services was the entity in a position to change the timing of the generator test or take other measures such as warning to alleviate the risk.

28 Further and of importance, is the fact that the duty of care of DPG Services extended to include the well established features of the duty of care of an employer, including providing a safe place of work, a safe system of work and safe plant and equipment. To the extent that the alleged breaches constituted failure to take reasonable precautions, there can be no question that they fell well within the ambit of the extensive scope of the duty of care of an employer.

29 The Plaintiff sought and was granted leave to join DPG Services as a defendant in the proceedings, but did not, presumably because of statutory procedural hurdles. Regardless, the liability of the employer cannot then be simply attributed to other entities, even related entities, other than by proper application of law. (Footnotes omitted.)

41. The primary judge did not make an explicit finding about the employment of Messrs Hyndes or Garner, despite being asked to do so. The reasons do not address the submission reproduced above. Nor do they even record that it was made. It went to the heart of the case.

42. The submission was renewed on appeal:

The evidence established not only did the employer, DPG Services, the employer of the plaintiff, have actual notice of the testing, it conducted the testing and there was no basis to conclude that either of the defendants knew or ought to have known of the testing, or how it might be conducted.

…

Not only were they an employer with a particularly recognised duty of care in relation to this plaintiff and her safe place of work, but as the employer of Mr Garner and Mr Hyndes, it was vicariously liable for the conduct of the persons who had failed directly to take the reasonable precautions.

43. In their written submissions in reply, the appellants noted that “the Respondent puts forward no basis to doubt: (a) that DPG Services operated the business with the name it was registered to operate; or (b) that each of the Respondent, Mr Hyndes and Mr Garner were employed in that business, by that entity”.

44. This Court is empowered to make findings of fact in the course of conducting a real review: Supreme Court Act 1970 (NSW), s 75A. The appellants’ submissions invited it to do so. In respect of the employment of Messrs Hyndes and Garner, this Court is in no inferior position, since the finding turns on inferences from a documentary record which is unaffected by any oral evidence.

45. This Court should find that, no differently from the respondent, Messrs Hyndes and Garner were employed by DPG Services, because:

1. there was uncontroverted evidence from both men that they were employed by “Opal Florence Towers”, which was (save for its being in the plural) a business name owned by DPG Services;

2. the same investigator had produced contemporaneous statements from each of the respondent, Messrs Hyndes and Garner, all of which identified the same employer “Opal Florence Towers”;

3. it was accepted that the respondent was employed by DPG Services; and

4. there was nothing to suggest that Messrs Hyndes or Garner were in some different position from the respondent.

46. No suggestion was made that by the appellants that the acts and omissions of Messrs Hyndes and Garner on 4 July 2018 were outside the scope of the activities in respect of which their employer was vicariously liable; cf Deatons Pty Ltd v Flew (1949) 79 CLR 370 at 379, 380-381; [1949] HCA 60. In that case, Dixon J distinguished the conduct of Mrs Barlow (who threw beer and a glass at a patron) from “a case of a negligence or improper act, due to error or ill judgment, but done in the supposed furtherance of the master’s interests”. The conduct of Messrs Hyndes and Garner fell into that category: it was plainly in the perceived performance of their duties.

47. Not only was DPG Services vicariously liable for the tortious conduct of Messrs Hyndes and Garner, but no other company was vicariously liable. Day v The Ocean Beach Hotel Shellharbour Pty Ltd (2013) 85 NSWLR 335; [2013] NSWCA 250 at [23]-[33] rejected a submission that Australian law admitted of a theory of dual vicarious liability; cf Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2006] QB 510; [2005] EWCA Civ 1151 at [20]-[38] and [57]-[75]. The submission was rejected on the bases that (a) it was contrary to the ratio of Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626; [1986] HCA 34, and (b) even if that were not so, the reasoning of Gibbs CJ, Wilson and Dawson JJ amounted to “long-established authority and seriously considered dicta” to be followed by Australian courts below the High Court. That has subsequently been endorsed in (without being exhaustive) QBE v Orcher [2013] NSWCA 478 at [95], Clancy v Plaintiffs A, B, C and D; Bird v Plaintiffs A, B, C and D [2022] NSWCA 119; 318 IR 31 at [197]-[199] and by Basten AJA writing for this Court in Mt Owen Pty Ltd v Parkes [2023] NSWCA 77; 324 IR 34 at [32].

48. I shall return to the consequences of this below, after dealing with two other aspects of the evidence capable of bearing upon the appellants’ liability.

The contracts entered into by DAC Finance

49. By letter dated 16 May 2023 responding to a request for particulars, the plaintiff’s solicitors asserted that “[t]he second defendant [DAC Finance] had entered into a number of contracts with” eight nominated “subcontractors”, including ThyssenKrupp Elevator Australia Pty Ltd. No attempt was made by the plaintiff to prove any of those contracts, including (for example) by way of notice to admit pursuant to r 17.3 of the Uniform Civil Procedure Rules 2005 (NSW).

50. In this Court, and apparently not below, it was said that because the answer to the request for particulars had been included in the court book which was tendered without objection, by reason of s 60 of the Evidence Act 1995 (NSW) it was in for all purposes and sustained the conclusion of fact that the second defendant had entered into such a contract. This is wrong. Section 60 applies to prior representations, and permits their tender despite the hearsay rule if they are relevant for a purpose other than proof of an asserted fact. But the letter was from the plaintiff’s solicitor and could not be an admission. Nor could the letter itself establish the fact of the contracts, as opposed to that being within the scope of the plaintiff’s case. Another way of putting this is that particulars identify the extent and limits of a party’s case, but do not of themselves assist in establishing that case.

51. In short, the claim in the plaintiff’s solicitors’ letter that the parent company DAC Finance had entered into a number of contracts including with ThyssenKrupp Elevator Australia was not evidence of that fact. There was no other evidence of that fact.

52. Nonetheless, by their written submissions after the trial, the defendants said that “[t]he evidence suggested that the Second Defendant may have contracted with service providers to provide services in relation to the Premises”. The submission treated the response to the request for particulars as evidentiary, and to that extent was erroneous. As will be seen, the concession was relied upon by the primary judge. But the submission went on to say, “More importantly, it says nothing as to whether [DAC Finance] had any responsibility at all for matters such as the conduct of the generator test”.

53. Even accepting that the parent company contracted with ThyssenKrupp Elevator Australia and other companies to service lifts in properties owned or operated by members of the corporate group, the ultimate question is whether conduct alleged or found to constitute breach of duty is conduct which could be attributable to DAC Finance. There was nothing sophisticated about the breaches alleged or found: conducting a power outage test while people were in the lift, or alternatively not issuing a warning before doing so. That was not shown to have had anything to do with anything connected with a subcontractor, ThyssenKrupp Elevator Australia, or anyone acting on its behalf, and still less was it shown to be connected with any contract between DAC Finance and ThyssenKrupp Elevator Australia.

54. An employer has a non-delegable duty to exercise reasonable care to provide employees with a safe place of work, a safe system of work, and safe plant and equipment, which extends to maintenance. Hodgson JA writing for this Court in Galea v Bagtrans Pty Ltd [2010] NSWCA 350; [2011] Aust Torts Rep 82-078 said at [65]-[66]:

An employer has a non-delegable duty to exercise reasonable care to provide employees with a safe place of work, a safe system of work, and safe plant and equipment: Kondis v State Transport Authority (1984) 154 CLR 672; [1984] HCA 61; TNT Australia Limited v Christie (2003) 65 NSWLR 1; [2003] NSWCA 47. Where an employer entrusts another with the task of providing the employee with the place and/or system of work, and/or with plant and equipment, the employer will generally be vicariously liable for failure by that other person to exercise reasonable care in those matters: Civil Liability Act 2002 s 5Q.

The non-delegable duty in respect of plant and equipment does not extend to defects in plant and equipment that an employer obtains from a reputable vendor or manufacturer, where those defects are the product of the manufacturer’s or vendor’s negligence: Davie v New Merton Board Mills Limited [1959] AC 604, TNT. However, it was held in TNT that the non-delegable duty did extend to the maintenance and repair of plant and equipment: per Mason P at [60] – [62] and per Foster AJA at [174] – [179], although Davies AJA at [150] left the question open.

The rehabilitation documents

55. Scant submissions were made in writing on this point (indeed, the written submissions responding to 20 pages of submissions by the appellants on 13 grounds occupied a mere four pages). It was said by the respondent without elaboration that it was “clear that the Opal Aged Care facility purportedly identified itself as the employer of the Respondent entitled to direct her in relation to her work and the manner in which she was supposed to return to work”. The blue appeal books contain more than 900 pages of materials, mostly relating to the respondent’s post-injury treatment, and no references were given to any of the materials said to support the submission.

56. However, in oral address, Mr Hooke SC (who had not signed the written submissions and had not appeared at trial) gave careful consideration to documents brought into existence in the course of the respondent’s attempted rehabilitation, from which the following emerges.

57. After the respondent’s injury, efforts were made to provide rehabilitation with a view to her return to work, and some of the documents suggested that DAC Finance was taking those steps. Some were from Ms Penelope Behan, who described herself as “Work Health and Safety Advisor, QLD” and whose letter included an email address and website which included “opalagedcare”. Another was from Ms Sue Wu, described as the “Work Health and Safety Advisor, VIC” who gave similar email and website addresses. Ms Wu in fact sent two substantially similar items of correspondence to one of the respondent’s treating doctors on 20 August 2018. Strangely, the footer of one identified a “corporate office” of an unnamed company as an address in Burwood, Victoria, while the footer of the second identified the head office in Sydney of DAC Finance. Substantively, both letters commenced “Opal Specialist Aged Care would like to thank you …” and stated “Opal Aged Care is committed to early intervention of workplace injuries” and “Opal Aged Care has Accredited Return to Work Coordinators”.

58. Similarly, a document styled “Return to Work Arrangements”, with an “Opal Specialist Aged Care” logo at the top, and signed by each of the respondent, Ms Behan and Mr Garner, identified restricted work duties for the respondent. The document included details of DAC Finance’s name, corporate office and ABN in its footer, as well as email and website addresses which include “opalagedcare”.

59. The same document also described the respondent’s employer as “Opal Aged Care”. That description could not undermine the agreed basis on which the litigation had been conducted, namely, that DPG Services was her employer. Numerous of the workers compensation documents referred to the employer as “DPG Services P/L”.

60. The respondent submitted that this was evidence that DAC Finance was directly involved in the employment of the respondent and other employees:

We say that those extensive items of correspondence and involvement in healthcare and rehabilitation and return to work are compelling evidence that Opal Aged Care, ie the second appellant, was up to its armpits in the activities of the business being carried on at the address in Florence Avenue. Were they not, their offer to be flexible in return to work duties and arrangements would be entirely hollow, and there'd be no basis at all for them to involve themselves in the respondent's medical care or rehabilitation in any event.

61. I would accept the submission. But it is not directly to the point. The question is whether the acts or omissions on and prior to 4 July 2018 were attributable to DAC Finance or DAC (NSW/QLD). What occurred afterwards bears only peripherally on that question. The documents seem to show a fairly haphazard use of letterhead, which does not suggest any particular attention being given to which company in the corporate group a particular person was acting on behalf of. But putting that to one side, let it be assumed favourably to the respondent that DAC Finance was itself involved in giving directions to the respondent concerning her rehabilitation and return to work. That provides some evidence that DAC Finance may have been involved in directing the activities of other persons involved in the business run under the name “Opal Aged Care” at earlier times. But what it does not do is displace the inference from the documents referred to above that Messrs Hyndes and Garner were employed by DPG Services.

The reasons of the primary judge

62. The primary judge introduced his reasons for judgment at [5]-[9]:

5. The first defendant, DAC Finance (NSW/QLD) Pty Ltd owned the premises where the plaintiff was injured, and therefore, it was a relevant occupier of the premises.

6. The second defendant, DAC Finance Pty Ltd, operated the business of an aged care facility at the premises. It did so under the business name of Opal Healthcare, and as such, it was also a relevant occupier of the premises. The second defendant is the sole shareholder of the first defendant company.

7. Opal Healthcare is a business name owned by DAC Finance Pty Ltd.

8. The plaintiff was employed to work at the premises as an Assistant in Nursing (AIN) by DPG Services Pty Ltd. That company is not a party to these proceedings.

9. DPG Services Pty Ltd, the holder of the business name Opal Florence Towers, was a corporate conduit structure for the payment of wages to persons working at the premises. The registered office of that company is in Sydney. There is no evidence that company had an office or a supervisory presence at the premises known as Opal Florence Tower.

63. I do not agree with parts of this. I shall return to the assertions in [5] and [6] that DAC (NSW/QLD) and DAC Finance were “relevant” occupiers of the premises. The statements about ownership of land and shares and business names are correct, as is the statement in [8] that DPG Services employed the respondent. What was meant in [9] by a “corporate conduit structure for the payment of wages” was not explained. It may have reflected a submission made by the plaintiff at trial: “The Defendants present no evidence to set aside the plaintiff’s claims that DPG is merely a service company that pays wages”. That submission is wrong. The plaintiff had to prove her case. And it was formally agreed that DPG Services was not “merely a service company”, but was her employer, and the reality of that relationship of employment was clear from the payments of workers compensation and the statements on workers compensation documents that DPG Services was her employer.

64. It is also wrong to state that there was no evidence that DPG Services had “an office or a supervisory presence” at the premises. DPG Services employed a facility manager and a maintenance manager. The former, Mr Garner, had an office on site.

65. An attempt was made by the respondent to read [9] of the primary judgment differently. It was said that it was correct:

in a sense [to] characterise the arrangement as akin to a labour hire situation where you’ve got DPG acting as the employer for the purpose of paying wages but in reality the host employer is the second appellant. That seems to be the sense of what his Honour was talking about when he found that DPG was a corporate conduit for paying wages.

…

properly understood his Honour’s finding that DPG Services was a corporate conduit used for paying wage[s] is akin to really a labour hire employment situation where the contract of employment can be accepted as being with DPG, but the pro hac vice employer is really the host, which is the second appellant.

66. That submission was not made in writing in advance of the hearing. Nor was there a notice of contention, and perhaps for those reasons there was no examination of whether it was inconsistent with the parties’ agreement that DPG Servies was the respondent’s employer. But in any event, this is nothing like the case of a labour hire company, which itself employs staff and makes them available to work in a mine or factory or warehouse under the control of an unrelated company. Such practices not uncommonly give rise to litigation following an employee sustaining a personal injury, in which it is often complained that the actual or “legal” employer failed adequately to train or supervise its employees, and the “host” employer was separately negligent in the conduct of its business: see by way of recent example Mt Owen Pty Ltd v Parkes and Williams v Metcash Trading Ltd [2019] NSWCA 94; 286 IR 438. The “host” employer will often owe very similar duties to the people provided by a labour hire company as if they were its actual employees. For example, Barrett JA said writing for this Court in Transpacific Industrial Solutions Pty Ltd v Phelps [2013] NSWCA 31; 230 IR 438 at [40]:

Transpacific, as “host employer”, owed the plaintiff a duty of care in negligence. Because the services of the plaintiff were effectively at the disposal of Transpacific for all purposes and Transpacific controlled the work the plaintiff was required to do and the circumstances and manner in which it was to be done, Transpacific owed to the plaintiff either a duty corresponding with that of an employer or a duty very similar to an employer’s duty: TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1; [2003] NSWCA 47.

67. The present case is quite different. There was not shown to be any commercial relationship between the legal employer DPG Services and its parent company DAC Finance whereby employees of the former were made available to work at the direction of the latter.

68. The reality of the situation, based on the limited evidence adduced at trial, seems to be that a business was operated at premises using assets of three closely related companies. The land was owned by DAC (NSW/QLD), the business name “Opal Aged Care” was owned by DAC Finance, while the business name “Opal Florence Tower” was owned by DPG Services, with the latter company employing the staff. It seems clear enough that there was at least an informal licence whereby DAC (NSW/QLD) permitted the other companies to enter onto its land, and likewise the employees of DPG Services when performing work on the premises were doing so to further a business whose name was owned by DAC Finance. The precise details of what occurred are obscure. Those details may matter for a range of purposes, concerning accounting, or income taxation, or insurance, or payroll taxation, or as in the present case, tortious liability.

69. But the litigation proceeded on the basis that DPG Services was the employer of the respondent, and that was not just the parties’ agreement, but a reality reflected in the workers compensation claims and payments with which this dispute began, and which seemingly drove the decision to sue DAC (NSW/QLD) and DAC Finance. For the reasons identified above, Messrs Hyndes and Garner were, no differently from the respondent, employed by DPG Services. That does not necessarily stand in the way of a finding that one of the other companies owed a duty of care to the respondent, in some capacity other than as employers. But as will be seen, the difficulty becomes acute when identifying the act or omission which amounts to a breach.

70. The primary judge addressed breach as “Issue 4” at [174]-[184] (the references to the precautions identified by Mr Hampson are to his views, based on his being an engineer with expertise in vertical transportation, that the testing should not have taken place when the lifts were in operation, failing which there should have been a warning):

Issue 4 – Negligence

174. The plaintiff must satisfy the requirements of s 5B(1), s 5B(2), and s 5C of the CL Act in order to sustain her claim that the defendants were negligent in the circumstances in which she was injured.

175. In this case it was plainly foreseeable that there was a real risk of injury to a passenger travelling in a descending elevator cabin in circumstances where the plan was to bring the descent of the cabin to an abrupt halt as a result of an interruption to the power supply: s 5B(1)(a) of the CL Act.

176. Given that an unexpected sudden stoppage of the elevator cabin was planned, the risk of injury to passengers was not insignificant, especially where they had not been warned to take precautions: s 5B(1)(b) of the CL Act.

177. In circumstances where the interruption to the power supply was planned for testing purposes, a reasonable person in the position of the defendants would have taken the precautions identified by Mr Hampson, namely, to isolate the elevator cabin into a parked position, or alternatively, to warn persons who were in or who were about to enter the elevator cabin as to what was about to happen so that they had the choice of either refraining from entering or leaving the cabin until the intended testing had been completed: s 5B(1)(c) of the CL Act.

178. The evidence of Mr Hampson satisfies me that there was a high probability of harm to the plaintiff if the precautions identified in the preceding paragraph were not taken: s 5B(2)(a) of the CL Act.

179. The risk of injury to un-warned passengers due to an unexpected abrupt stoppage of a descending elevator cabin was very likely to include the risk of potentially serious injuries, especially if a fall was to occur as a result of such stoppage: s 5B(2)(b) of the CL Act.

180. It is plain from the evidence of Mr Hampson that the burden on the defendants in taking the identified precautions would have been negligible: s 5B(2)(c) of the CL Act.

181. There was no relevant social utility to be achieved in subjecting unsuspecting elevator passengers to the risk of injury from the testing procedure where, without their consent, they would in effect be used as laboratory rats for testing purposes: s 5B(2)(d) of the CL Act.

182. The evidence of Mr Hampson provides satisfactory proof that the precautions he identified would have applied to similar circumstances where the identified risk of injury was foreseeable without undue burden: s 5C(a) of the CL Act.

183. No disentitling factors arise for consideration pursuant to s 5C(b) and s 5C(c) of the CL Act.

184. Accordingly, I find both defendants were negligent in the circumstances in which the plaintiff was injured.

71. I respectfully agree with all of the above, so far as it goes. But it does not go far enough on the critical issue in this trial, where it was sought to render DAC (NSW/QLD) and DAC Finance liable, and where no claim could be made against DPG Services. What are the acts or omissions attributable to the defendants, as opposed to acts or omissions attributable to DPG Services, which render the defendants liable? The critical findings by the primary judge are expressed in the passive, and for that reason fall short of taking the essential step of attributing acts or omissions to a particular defendant.

72. The persons who omitted to warn staff and residents that the power was about to be tested were Messrs Hyndes and Garner. In omitting to do so, they failed to take a reasonable step which would have avoided a not insignificant risk of harm, and for which their employer is vicariously liable. But that just makes DPG Services liable.

73. I have not neglected the fact that Mr Hampson expressed the opinion that “it was the negligence of the building owner, operator or their subcontractor that led to the lift stoppage”. But the attribution to a corporation is a question of law, and rightly no reliance was placed on this by the primary judge or the respondent in this Court.

74. The primary judge did address the duty owed by DAC (NSW/QLD) and DAC Finance, as the previous issue in his reasons, at [165]-[173], as follows:

Issue 3 – Scope and content of the defendants’ duty of care

165. There is no dispute that the duty of an occupier towards entrants onto premises is to exercise reasonable care to avoid foreseeable risks of injury: Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479, at p 488.

166. In this case that duty must be seen to have extended to the consideration of matters of safety with regard to scheduled maintenance of fixtures within the premises, including passenger elevators.

167. In my view, both defendants were relevant occupiers of the premises where the plaintiff was injured.

168. There was no evidence to suggest that the first defendant’s presence and involvement in the premises was simply limited to the fact of ownership without the burden of discharging the duty of care owed to persons within the premises.

169. In final submissions the first defendant unsuccessfully sought to disavow the admission it made on the pleadings by which it conceded it owed a relevant duty of care in relation to activities such as the testing of the power generator for proper functioning.

170. The elevators and the power equipment on site were fixtures of the premises. As owner of the premises, the first defendant cannot reasonably maintain that it was not a relevant occupier and therefore had no duty of care arising out of the use and testing of those items of equipment at the premises.

171. The second defendant had its head office in Sydney. The second defendant conceded it may have contracted with service providers in relation to the premises.

172. In view of that concession, the second defendant cannot reasonably maintain that it was not a relevant occupier of the premises, or that it did not conduct any business or any activities on the premises.

173. Accordingly, each of the defendants owed the plaintiff the duty of care ordinarily owed by occupiers of premises where elevators were used to move about the building, such as in this case.

75. The assertion that “both defendants were relevant occupiers” is conclusory, repeating the same assertion at [5] and [6], and so I turn to the reasoning in the ensuing paragraphs.

76. The liability of DAC (NSW/QLD) turned on its ownership of the lift and the power generator. It is true that it owned those items which were affixed to its land. It is also true that a landlord which leases premises in a dangerous condition may be liable (Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313; [1997] HCA 389), but that is not this case. I would accept that a landlord which has covenanted to repair or maintain premises and which carries out the repairs or maintenance negligently may be liable. And indeed, I would accept that if an employee of DAC (NSW/QLD) had attended the premises on 4 July 2018 and had turned off the power without warning causing the lift to jolt to a stop thereby injuring the respondent, DAC (NSW/QLD) would be vicariously liable for the employee’s breach of duty. But that is not this case.

77. The breach of duty which caused the respondent’s injury was not some failure to repair or maintain the lift, or the failure of electricity to the building because of a poorly maintained power supply. It was the positive act of DPG Services’ employees of turning off the power without warning, for which DPG Services is vicariously liable.

78. The liability of DAC Finance was expressed to turn on a concession that it “may have” contracted with service providers including those which maintained the lift. As already noted, there was no evidence of this, although a concession was made in the terms reproduced by the primary judge, and I would accept that, it having been made, his Honour was entitled to rely upon it. But even so, the concession fell short of establishing to the requisite standard that any contract was entered into. A concession that DAC Finance “may have” contracted with service providers falls short of establishing, to the civil standard, that it did so, let alone what the terms of the contract were. But in any event, the existence of a contract is for the reasons already given removed from the events which gave rise to the respondent’s injury.

79. If an employee of ThyssenKrupp Elevator Australia had turned off the power on 4 July 2018, I could see a basis for rendering that company liable. I could also see formidable obstacles to DAC Finance being liable, even if there were a contract between that company that ThyssenKrupp Elevator Australia pursuant to which the power was turned off. But that is far removed from what occurred on 4 July 2018.

75. Finally, I should address the only other section of the reasons which distinguishes the three companies. Within “Issue 6”, his Honour rejected a defence based on s 151Z of the Workers Compensation Act, whereby the defendants maintained that if either were liable, all or most of the liability should be apportioned to DPG Services, as employer. His Honour rejected that defence. The dispositive reasoning is at [191]-[197]:

191. In my view, those findings sought by the defendants are unsustainable on the evidence adduced in this case.

192. The first defendant owned the premises. The second defendant operated an aged care business at the premises. The plaintiff’s employer provided the plaintiff’s services as an AIN. There is no reliable evidence to show that the employer had actual or imputed notice of the timing of the interruption and testing of the power supply in this case.

193. Therefore, the plaintiff’s employer had no reason to take precautionary steps to avoid its employees being exposed to the testing of the elevators whilst carrying passengers.

194. The testing of the power supply was a matter that fell within the particular responsibilities of the owner of the premises and operator of the business on the premises. The interruption to the power supply was a matter the defendants needed to consider in terms of resident welfare and safety. This had nothing to do with the provision of nursing staff on the premises by the plaintiff’s employer.

195. The testing procedure was deliberately planned to occur under normal loading conditions. This was a function of the way in which the premises were maintained and operated. It had nothing to do with the way in which the employer’s staff were deployed at the premises.

196. In view of the intention to conduct the testing under normal conditions of elevator use, the compelling inference that arises is that persons such as the plaintiff were intentionally left uninformed about what was about to happen where they would be part of a test that could foreseeably result in injury to them. Those circumstances have not been shown to have been due to any fault on the part of the plaintiff’s employer.

197. Accordingly, the claim for apportionment of the plaintiff’s entitlement to damages pursuant to s 151Z of the WC Act, based on the notion of an argued breach of the employer’s duty of care, must be rejected.

81. Contrary to what was said in [192], there was reliable evidence that the employer DPG Services knew of the testing. Its employees Messrs Hyndes and Garner were conducting it. They did so in the perceived performance of their duties as employees. Their knowledge and conduct was imputed to their employer. It was for the employer to take reasonable precautions to address the risk of harm. Those precautions would be taken, in the natural course, by Messrs Hyndes or Garner. The conclusion in [195] that the intentional turning off of the power supply by Mr Hyndes was not shown to have been due to any fault on the part of DPG Services cannot be sustained. DPG Services is liable for his tortious conduct.

82. It may be acknowledged that the testing of the power supply was of importance to the owner of the land and the operator of the business, as was observed at [194]. But it was not shown that the owner of the land or the operator of the business engaged anyone to test the power supply. Instead, employees of DPG Services undertook the testing, just as (so far as the evidence discloses) employees of DPG Services undertook all of the activities in the conduct of the Opal Aged Care business on the site. The reasoning does not address this.

Conclusion on the principal grounds of appeal

83. In substance, what the primary judge has done amounts to this. In the section dealing with breach, there was no reasoning attributing the act (of turning off the power) and the omission (of failing to warn staff and residents) to any defendant. In the section dealing with duty, there is broad reasoning connecting DAC (NSW/QLD) and DAC Finance with duties to persons on the land, but divorced from what occurred on 4 July 2018. And the section dealing with apportionment proceeds on the basis that the acts and omissions of Messrs Hyndes and Garner cannot be attributed to DPG Services.

84. Once it is concluded, as it must be on the evidence adduced at trial, that Messrs Hyndes and Garner were employed by DPG Services (no differently from the respondent), none of this reasoning can stand. The acts and omissions were those of Messrs Hyndes and Garner for which DPG Services was vicariously liable. Had the respondent sued DPG Services, that company would have been liable for substantial damages, albeit calculated in accordance with Pt 5 of the Workers Compensation Act, assuming s 151H were satisfied. But no action was brought against that company, for reasons which on the state of the record cannot fully be appreciated.

85. There is another way of viewing the position. The litigation was conducted on the basis that the respondent was employed by DPG Services. It might have been possible to advance a case that no separate distinction was drawn between DAC (NSQW/QLD), DAC Finance and DPG Services, and that in substance, the parent company DAC Finance was her employer. That case would have faced a similar obstacle, because for all the same reasons, it would follow that Messrs Hyndes and Garner were also, in substance, employed by DAC Finance. But all this is hypothetical, because in light of the workers compensation claims and payments and disputes which preceded the litigation, the case proceeded expressly on the basis that DPG Services was the employer of the respondent and that company was, deliberately, not sued.

86. A final way of making these points is to state that I cannot accept that the respondent can litigate on the basis that DPG Services was her employer, but distance herself from the proposition that DPG Services was the employer of the men whose acts and omissions caused her injury, Messrs Hyndes and Garner. I do not accept that the respondent can have it both ways, on the one hand maintaining that DHG Services was her true employer, but that other companies were the employer of Messrs Hyndes and Garner so as to avoid the disentitling effect of s 151H. Ultimately the respondent’s allegations of breach require imputing conduct to one of the companies sued, and the only conduct that is relevant is that of Messrs Hyndes and Garner, and in this country the only vicarious liability that is available based on their conduct is the vicarious liability of their employer.

87. For those reasons, no case of breach of duty has been made out against either appellant. That is sufficient to dispose of the appeal.

Remaining grounds of appeal

88. There were no fewer than 13 grounds of appeal. Grounds 6-10 were the primary grounds, and have been addressed above. I shall address the remaining grounds concisely.

Grounds 1 and 5 concerning the “lease”

89. A great deal of attention was directed to what was said to be a single document, part of which was tendered subject to a limiting order on the first day of the trial, and another part of which was rejected when an application to reopen on the third day of the trial was made. The inference sought to be drawn from both is that in September 2018, three months after the incident sustained by the respondent, various companies within the corporate group sought to regularise the occupation of land owned by, inter alia, DAC (NSW/QLD).

90. A document described as “Lease in respect of the DAC NSW Leases” was tendered on the first day. It was referred to as a “lease” but that is inapt. It was not executed and it had no execution clause. It was not in registrable form. In large measure, it was a template of the operative covenants of a lease. It included a reference schedule which identified four properties in New South Wales, including Florence Tower, and in each case identified a termination date of 31 December 2018 and an annual rental. The document also identified “DAC Finance (NSW/QLD) Pty Ltd” as the landlord and “DPG Services Pty Ltd” as the tenant. It was tendered subject to a ruling that it was “no evidence of a legal relationship between these two companies”.

91. On the final day of the trial, a document described as an “Implementation Deed” was sought to be tendered. It defined as the “DAC NSW Leases” three “undocumented leases”, one of which was Florence Tower and provided that “on and from the Effective Date the DAC NSW Leases will be on the terms as set out in Schedule 11”. Schedule 11 was left blank (as were all other schedules). It is possible that the unexecuted document tendered on the first day corresponded to Schedule 11, although if so the disparity between the four leases identified in that document and the three leases in the Implementation Deed was left unexplained. The point of the tender was to seek to establish that because with retrospective effect DPG Services was treated as the tenant pursuant to the Implementation Deed, neither of the appellants could be liable to the respondent. No testimonial evidence was given in an attempt to explain the transaction, or that it had been executed.

92. The attempted late tender of the Implementation Deed occupied much of the morning of the final day of the trial. As noted above, that led to directions for the filing of written submissions, in lieu of oral address. Despite the extent of the argument, it is fair to say that at best limited attention was given to (a) the fact that none of the leases was in registrable form, (b) whether the documents might give rise to an equitable lease, or an estoppel by convention, (c) the effect of a merely equitable lease upon the legal owner for the purposes of liability in tort, or (d) accepting that it might be open to the parties to treat the lease as coming into existence prior to the Implementation Deed, how could that affect third parties like the respondent. Nor were these points investigated in this Court.

93. But those difficulties do not arise, in light of the anterior rulings confining the use of the unexecuted document tendered on the first day of the trial and rejecting the tender of the Implementation Deed after the close of evidence on the final day of the trial.

94. The first ground of appeal asserted error by the primary judge in declining to permit a reopening to tender the deed which purported, retrospectively, to put in place a lease between the first appellant and the employer. Although there seems (at least not in the transcript) not to have been recorded a formal statement that the parties’ cases were closed, counsel treated his application on the third day of the hearing as one of reopening. The discretion exercised by the primary judge, in a running list, is not lightly to be reviewed. It is also to be borne in mind that it ought not to have been difficult to establish (a) that the partial document described as “the lease” was Schedule 11 to the deed, and (b) that the purpose of the transaction was to regularise informal arrangements that previously had been in place, including in July 2018 when the accident occurred. Reading the incomplete document on its face, in accordance with the appellants’ submissions, it does not appear to be a free standing lease. The absence of any execution clause supports the proposition, for which the appellants contend, that it was intended as merely an annexure to the deed. But this merely heightens the artificiality of what is sought to be achieved. There is no evidence whatsoever to suggest the terms upon which the employer was licensed or otherwise permitted to carry out activities on the site. I do not consider that a basis has been made out to interfere with the decision of the primary judge.

95. Ground 5 (the notice of appeal omitted grounds 2-4) was expressly dependent upon the success of ground 1. I would accept that if the Implementation Deed had been admitted into evidence, that would have called for a revisiting of the limiting order upon the document tendered on the first day of the trial, as this ground contends. But it does not arise because the first ground is not made out.

Ground 11 – apportionment

96. Ground 11 maintained that there was error in not reducing the appellants’ liability either by reason of statutory contribution pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) or s 151Z(2)(c) of the Workers Compensation Act. The former is misconceived. There was no cross-claim against DPG Services, and such liability as the appellants have for damages for personal injury is solidary.

97. The reasoning of the primary judge based on s 151Z is reproduced above. With respect, I do not accept that there was no fault on the part of DPG Services, because I have concluded that Messrs Hyndes and Garner were employees of that company. That is not an end to the matter. The appellants say that “As the Plaintiff has never been assessed above the threshold necessary for suing her employer for common law damages, then the deduction would be calculated simply by applying the percentage to the award of damages without any complications arising under the formula prescribed by s 151Z(2)(c)”, citing Forstaff Blacktown Pty Ltd v Brimac Pty Ltd [2005] NSWCA 423; [2005] Aust Torts Rep 81-814. I am unpersuaded it is necessarily so simple, having regard to [107] of that decision, the extent of the respondent’s injuries and the scant informal evidence that her permanent impairment was 8%. I am certain that this Court did not receive full submissions on this point, and I think it is not only unnecessary but also inappropriate to determine it.

Quantification of damages

98. The last five grounds asserted that the awards of non-economic loss ($246,500), past economic loss (of $221,600), past superannuation loss ($19,994), future economic loss of $325,125 and future superannuation loss ($39,740) were all manifestly excessive.

99. I would not interfere with the primary judge’s determination of non-economic loss. However, there was conceded error in the calculations of economic loss, because the primary judge used the gross income of the respondent’s husband (of around $800 per week) rather than her own (of $681 per week). There was also force in the submission that calculating future economic loss based on working without interruption or diminution of earnings until the respondent was 67, was unrealistic. The respondent was in far from the best of health before the incident. She was a heavy smoker who had been diagnosed with diabetes in around 2015 and tachycardia in 2017, and suffered from a pre-injury degeneration of her lumbar spine as well as other conditions which need not be mentioned. This was a case which required significantly more than a 15% deduction for vicissitudes. There is no utility in setting out in detail the respondent’s medical history in order to explain why I would, if the issue arose, apply a discount substantially higher than 15%.

Conclusion and orders

100. For those reasons, the appeal must be allowed. The “verdict and judgment” ordered by the District Court is to be understood as a judgment, there being no jury which could give a verdict: cf Kabic v AAI Ltd t/as GIO (No 2) [2019] NSWCA 311 at [7], and must be set aside against both appellants and in lieu thereof judgment entered in their favour. No orders were sought in the notice of appeal for restitution. The orders I propose will permit the parties to be heard as to costs.

101. I propose the following orders:

1. Appeal allowed.

2. Set aside orders 1 and 2 made by the District Court on 16 February 2024, and in lieu thereof enter judgment in favour of the defendants.

3. Direct the parties to file and serve, within 21 days of today, agreed short minutes of order as to the costs at first instance and in this Court, or in lieu of agreement, the orders which each seeks accompanied by submissions not exceeding 4 pages in support, with a view to any dispute as to costs being determined on the papers.

102. MITCHELMORE JA: I agree with Leeming JA.

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Decision last updated: 16 July 2024