Eurobodalla Shire Council v Dufty

CITATION:	Eurobodalla Shire Council v Dufty [2004] NSWCA 450
HEARING DATE(S):	11 October 2004
JUDGMENT DATE:	6 December 2004
JUDGMENT OF:	Santow JA at 1; Tobias JA at 81; Bryson JA at 82
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	NEGLIGENCE - employer/employee versus independent contractor - incidents of each - liability of council for injury suffered by principal of private company engaged by Council to manage a swimming pool and its associated maintenance - damages.
CASES CITED:	Browne v Dunn (1893) 6 R 67 Emoleum (Aust) Pty Ltd v Cecil Henry Bond & Ors [2004] NSWCA 352 Fox v Percy (2003) 214 CLR 118 Multiplex Constructions (NSW) Pty Ltd v. Lopez [2004] NSWCA 31 Rockdale Beef Pty Ltd v Carey [2003] NSWCA 132 State of New South Wales v Moss (2000) 54 NSWLR 536 Stevens v Brodribb Sawmilling Co Pty Ltd (1985-6) 160 CLR 16 TNT Australia Pty Ltd v Christie & Ors [2003] NSWCA 47
PARTIES :	EUROBODALLA SHIRE COUNCIL (Appellant) Shane DUFTY (Respondent)
FILE NUMBER(S):	CA 40068/04
COUNSEL:	R R STITT, QC/ R A CAVANAGH (Appellant) M L WILLIAMS, SC/ R S SHELDON (Respondent)
SOLICITORS:	Riley, Gray-Spencer (Appellant) Carroll & O'Dea (Respondent)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 153/01
LOWER COURT JUDICIAL OFFICER :	Latham DCJ

CA 40068/04
DC 153/01

SANTOW JA
TOBIAS JA
BRYSON JA

6 DECEMBER 2004

EUROBODALLA SHIRE COUNCIL v Shane DUFTY

Judgment

1 SANTOW JA:

INTRODUCTION and OVERVIEW
There is an often indistinct line between employer and employee on the one hand and entrepreneur and independent contractor on the other; so too in this case. But that does not mean that the heightened legal duty of care of employer to employee can be simply transposed to the entrepreneurial relationship that here obtained. What is true is that the greater the degree of entrepreneurial control or practical involvement called for in co-ordinating the tasks of independent contractors, the closer becomes the employment analogy, as the cases illustrate.

2 Thus in Stevens v Brodribb Sawmilling Co Pty Ltd (1985-6) 160 CLR 16 at 37 Wilson and Dawson JJ emphasised that control was no longer the exclusive test, though the proper starting point of enquiry. Ultimately the matter was to be judged by the degree of discretion left to the manner in which the person concerned did his or her work. But this still left the head contractor engaged in a site co-ordinating or general supervisory role “a duty to exercise care in the co-ordination of the activities of the various contractors” (at 45). The Brodribb judgments, as I explain, saw that duty delineated at various levels of stringency; as requiring an employer-like duty at the co-ordinating point (Mason J), or as one merely calling for reasonable care (Brennan J), or as one calling for a duty of care taking account of the independent functions of contractors and thus lower than for an employer (Wilson and Dawson JJ). The result in the present case, as I explain, is the same so…