Hollis v Vabu Pty Limited (T/as Crisis Couriers)

[1999] NSWCA 334

Reported Decision: (1999) Aust Torts Reports 81-535

New South Wales

Court of Appeal

CITATION:	HOLLIS v VABU PTY LIMITED (T/as CRISIS COURIERS) [1999] NSWCA 334
FILE NUMBER(S):	CA 40282/98
HEARING DATE(S):	28 July 1999
JUDGMENT DATE:	5 November 1999
PARTIES :	Gary John Hollis - Appellant Vabu Pty Limited (T/as Crisis Couriers) - Respondent
JUDGMENT OF:	Sheller JA at 1; Giles JA at 35; Davies AJA at 36

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	1281/96
LOWER COURT JUDICIAL OFFICER:	Wright ADCJ

COUNSEL:	B H Donovan QC/I Ryan - Appellant J G Stewart - Respondent
SOLICITORS:	Brydens - Appellant Henry Davis York - Respondent
CATCHWORDS:	NEGLIGENCE - independent contractor - bicycle courier - whether principal vicariously liable for negligence of contractor - non-delegable duty - held: no such duty
ACTS CITED:	Law Reform (Miscellaneous Provisions) Act 1946 Trade Practices Act 1974
CASES CITED:	Australasian Brokerage Limited v Australian and New Zealand Banking Corporation Limited (1934) 52 CLR 430 Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 Bayley v Manchester, Sheffield and Lincolnshire Railway Co (1872) LR 7 CP 415 Burnie Port Authority v General Jones Pty Limited (1994) 179 CLR 520 Colonial Mutual Life Assurance Society Limited v Producers and Citizens Co-Operative Assurance Co of Australia Ltd (1931) 46 CLR 41 Dalton v Angus (1881) 6 App Cas 740 Darling Island Stevedoring and Lighterage Co Ltd v Long (1957) 97 CLR 36. Frank Perre v Apand Pty Ltd [1999] HCA 36 Glasgow Corporation v Muir [1943] AC 448 Jaensch v Coffey (1984) 155 CLR 549 Kondis v State Transport Authority (1984) 154 CLR 672 Northern Sandblasting Pty Limited v Harris (1997) 188 CLR 313 Roads and Traffic Authority v Scroop (1998) 28 MVR 233 Stevens v Brodribb Sawmilling Co Pty Limited (1986) 160 CLR 16 Swinton v The China Mutual Steam Navigation Co Limited (1951) 83 CLR 553 Torette House Pty Limited v Berkman (1939) 39 SR (NSW) 156 Vabu Pty Limited v Commissioner of Taxation (unreported) 6 September 1996
DECISION:	Appeal dismisssed with costs

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40282/98
DC 1281/96

SHELLER JA
GILES JA
DAVIES AJA

HOLLIS v VABU PTY LIMITED t/as CRISIS COURIERS

The appellant was knocked down on a footpath by a bicycle courier wearing the uniform of the respondent. The appellant sued the respondent in negligence claiming that the courier was riding the bicycle as its servant and agent and that the respondent was in breach of a duty of care owed to the appellant.

The respondent conducted a parcel and document courier business. It contracted with persons who worked for it as bicycle couriers. The parties accepted that in Vabu Pty Limited v Commissioner of Taxation (unreported) Court of Appeal 6 September 1996 it was settled that the couriers were independent contractors.

The respondent had public liability insurance cover, under which policy it was stated that the ‘Insured’ included ‘sub-contractors in respect of work done on behalf of Crisis Couriers’. The respondent levied the couriers each week and used this money to pay the insurance premium.

The trial Judge gave judgment for the respondent. The appellant appealed against this decision claiming that the trial Judge was in error in failing to find the respondent vicariously liable for the negligent acts of its courier, that the courier was the servant or agent of the respondent, that the respondent owed a non-delegable duty to the appellant, and failing to allow the appellant leave to join the insurer to the proceedings.

Held:
By Sheller JA, Giles JA agreeing, Davies AJA expressing no opinion:
(1) There was no evidence before the trial Judge when dealing with the application to join the insurer to the proceedings that supported the contention that the courier was the person who really took out the policy. On the evidence before him, the trial Judge was right to conclude that the courier who knocked down the appellant was not shown to be a person who had entered into the contract of insurance and accordingly the condition for the application of s6 of the Law Reform (Miscellaneous Provisions) Act 1946 was not satisfied.
(2) There was no finding that the respondent directly authorised the offending courier to drive his bicycle in an illegal or negligent manner. While no doubt the couriers were agents of the respondent at least to perform the business of fast delivery, by bicycle, of parcels and documents in the inner city area, the respondent was not vicariously responsible for a tort occasioned by the performance of that function which the respondent had not directly authorised.

By Sheller JA, Giles JA agreeing, dismissing the appeal, Davies AJA dissenting:
(3) There is nothing inherently dangerous to other users of public streets in the delivery by bicycle of parcels and documents. If anything the activity is less inherently dangerous to other street users than using motor vehicles or motor bicycles to carry parcels and documents. In either case the activity carries no inherent risk of injury unless it is negligently performed. The fact that the respondent conducts such a business gives rise to no general duty of care to other street users and creates no special relationship between the respondent and such users; Northern Sandblasting Pty Limited v Harris (1997) 188 CLR 313 applied.
(4) To the extent to which parcels and documents are carried on a particular vehicle or a particular bicycle, the driver or rider owed the ordinary duty of care to the other users of public streets. If that driver or rider was an employee of the respondent, the respondent was vicariously responsible for any breach by the driver or rider of that duty. If the driver or rider was an independent contractor the respondent was not vicariously liable for such a breach. On no basis, on the facts of this case, can there be set up some general duty of care owed by the respondent to other users of public streets derived from the way in which the parcels and documents are carried. Even less can such duty be elevated to one described as a non-delegable duty; Colonial Mutual Life Assurance Society Limited v Producers and Citizens Co-operative Assurance Co of Australia Limited (1931) 46 CLR 41 applied; Torette House Pty Limited v Berkman (1939) 39 SR (NSW) 156, Kondis v State Transport Authority (1984) 154 CLR 672, Burnie Port Authority v General Jones Pty Limited (1994) 179 CLR 520 referred to.

Per Davies AJA, dissenting:

(1) The respondent owed a duty of care to users of the city’s streets and footpaths. The nature of the respondent’s business required couriers to use the streets and footpaths for the delivery of parcels. The couriers were obliged to accept and perform work in respect of which time limits had been imposed by the respondent. It could be reasonably foreseen that, unless reasonable care was taken, pedestrians in the city would be likely to suffer injury to their person or property.
(2) The trial Judge erred in considering that the categories of cases in which non-delegable duties would be imposed were, for practical purposes, closed. One must turn in a particular case to the general principles of the law of negligence. There are no strict or limited categories, although categories have been articulated which will govern the decision when they apply.
(3) Taking account of the vulnerability of pedestrians, the respondent’s recognition that there was a need for public liability insurance, its deduction from the couriers’ remuneration of weekly amounts to meet the premiums and the fact that it was the respondent’s own act of obtaining insurance in its own name, thereby doing nothing to relieve the vulnerability of injured pedestrians, the circumstances were such as to impose upon the respondent personal liability for the acts of its couriers done in the course of its business. The respondent, by the structure of its business, not only created the risk to pedestrians, but failed to exercise due care to avoid such risks and failed to take the steps which were necessary to alleviate the problem that injured pedestrians would be unable to recover damages. Accordingly, the appeal should be allowed and the respondent ordered to pay the appellant the sum of $176,313.- 1 -

Statutes:
Law Reform (Miscellaneous Provisions) Act 1946
Trade Practices Act 1974

Cases:

Australasian Brokerage Limited v Australian and New Zealand Banking Corporation Limited (1934) 52 CLR 430
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479
Bayley v Manchester, Sheffield and Lincolnshire Railway Co (1872) LR 7 CP 415
Burnie Port Authority v General Jones Pty Limited (1994) 179 CLR 520
Colonial Mutual Life Assurance Society Limited v Producers and Citizens Co-Operative Assurance Co of Australia Ltd (1931) 46 CLR 41
Dalton v Angus (1881) 6 App Cas 740
Darling Island Stevedoring and Lighterage Co Ltd v Long (1957) 97 CLR 36.
Frank Perre v Apand Pty Ltd [1999] HCA 36
Glasgow Corporation v Muir [1943] AC 448
Jaensch v Coffey (1984) 155 CLR 549
Kondis v State Transport Authority (1984) 154 CLR 672
Northern Sandblasting Pty Limited v Harris (1997) 188 CLR 313
Roads and Traffic Authority v Scroop (1998) 28 MVR 233
Stevens v Brodribb Sawmilling Co Pty Limited (1986) 160 CLR 16
Swinton v The China Mutual Steam Navigation Co Limited (1951) 83 CLR 553
Torette House Pty Limited v Berkman (1939) 39 SR (NSW) 156
Vabu Pty Limited v Commissioner of Taxation (unreported) 6 September 1996

Text Books:
Bowstead and Reynolds on Agency, 16th ed
Smiths’ Law of Master and Servant

ORDERS

Appeal dismissed with costs

********

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40282/98
DC 1281/96

SHELLER JA
GILES JA
DAVIES AJA

Friday, 5 November 1999

HOLLIS v VABU PTY LIMITED t/as CRISIS COURIERS

JUDGMENT

1    SHELLER JA: In December 1994 the respondent, Vabu Pty Limited trading as Crisis Couriers (Vabu), conducted a parcel and document courier business. For this purpose it contracted with approximately twenty-five to thirty persons who worked for it as bicycle couriers and to whom I will refer in this judgment as “couriers”. Other couriers worked for Vabu using motor cycles and motor vehicles. The couriers wore a uniform marked with a Crisis Couriers gold label on the front and back and a small shoulder logo. The parties accepted that the way in which the couriers carried out their work for Vabu was as described by this Court in Vabu Pty Limited v Commissioner of Taxation (unreported) 6 September 1996. In his judgment in that case Meagher JA pointed out that Vabu retained a considerable measure of control over the couriers. They were required to be neat and tidy, to wear the uniforms Vabu provided, to replace their bicycles when Vabu considered them to be unsatisfactory, to observe a starting time and to work a prescribed number of hours. The couriers were bound to accept work allocated to them by Vabu, deliver goods in the manner in which Vabu directed, accept re-routing if told to by Vabu and take no more leave than was permitted. On the other hand, the couriers provided their own bicycles and had to bear the expense of providing for and maintaining them. They provided their own street directories and telephone books. Very importantly they received no wage or salary. They were paid a prescribed rate for the number of successful deliveries they made. Meagher JA said that each courier conducted his own operation, permitting himself for his own economic advantage to be supervised by Vabu. Thus, if the courier wished he might use a business name or corporate name.

2    Vabu issued a flyer which advertised that it operated within an area bounded by Pyrmont, Surry Hills and Kings Cross on the south side of the harbour and Greenwich, Crows Nest, Cremorne and Kirribilli on the north side of the harbour. In that area it offered to deliver documents and small packages within sixty minutes of the customer’s call. Vabu claimed experience, speed, security, ease of booking and reliability. Vabu also offered an express service “when it must be there double quick”. This promised delivery within thirty minutes.

3    The courier’s contracts provided no payments for annual leave, sick leave or for the supply of tarpaulins, ropes or anything of that kind and no superannuation deductions. At least some couriers were provided with ID cards. The couriers were not obliged to provide their own radio equipment and uniforms.

4    For the period from 30 June 1994 to 30 June 1995 Vabu had public liability insurance cover under a policy issued by CIC Insurance Limited. In the policy “Insured” was stated to include “sub-contractors in respect of work done on behalf of Crisis Couriers”. Clause 7 of the standard form of contract between Vabu and the couriers provided: “Marine and public liability insurance is $7.65 per week. Please note that any claim is subject to $1,000 excess.” The evidence was that the amount of $7.65 varied and that the couriers were levied each week for the contribution. At the time of the trial the levy was over $30 per week. Vabu apparently used the amounts levied to pay the premium to CIC for the public liability insurance policy. There was no evidence about precisely how and when this was done.

5    On 22 December 1994 Gary John Hollis, the appellant, while leaving a building on foot in Harris Street, Ultimo and after coming down five steps and taking two steps on the footpath was struck on his left side by a courier. He was knocked to the ground and injured. The courier went over the top of the handlebars and landed in front of Mr Hollis. He was wearing a green jacket with gold writing across it which said Crisis Couriers. Mr Hollis described the uniform used by Vabu. After the collision the courier got up, dusted himself off, picked up his bicycle, said “Sorry mate” and left the scene. Mr Hollis was still on the ground in “immense pain”. He called after the courier who ignored him.

6    Mr Hollis sued Vabu, inter alia, in negligence claiming that the courier was riding the bicycle along the footpath as its servant and agent and that Vabu by such servant or agent was in breach of a duty of care owed to Mr Hollis. On 17 April 1998 Acting Judge Wright, who heard the proceedings, gave judgment for Vabu. Nevertheless his Honour went on to assess damages at $176,313.

7    The trial Judge made the following findings:

(a) Mr Hollis was knocked down on the footpath by a courier working for Vabu;

(b) The courier was on Vabu’s business at the time of the accident and covered by the insurance policy;

(c) The courier had no obvious means of personal identification on him;

(d) Vabu had known for some time before Mr Hollis’ injury that a significant number of couriers disobeyed traffic rules and posed danger to pedestrians;

(e) Vabu had known for some time before the accident that means of personal identification for bicycle couriers were available and that this would lessen the risk of couriers riding contrary to road rules;

(f) Vabu had been at various times party to voluntary schemes which involved to some extent effective means of personal identification;

(g) These fell into disuse in part because Vabu failed to compel its couriers to adopt the means of identification suggested;

(h) Vabu allowed a system to continue where couriers who had reasons not to wear personal identification declined to do so.

8    Of Mr Hollis’ claim that the offending courier was an employee or agent of Vabu, his Honour said:

“There is evidence in these proceedings which in my view is sufficient to justify a different conclusion and when that evidence is considered in the light of the conclusions of the Court of Appeal in Vabu Pty Limited v Commissioner of Taxation , I do not consider that it is open to me to find that the bicycle rider in question was the employee or agent of the defendant.”

9    However, his Honour made the following further findings:

(a) Vabu set the rates of remuneration and there was no scope for negotiation of those rates between Vabu and the couriers;

(b) Vabu allocated the work entirely and there was no scope for bidding for individual jobs by the couriers;

(c) Vabu assumed all responsibility as to direction, training (if any), discipline, job allocation and attire;

(d) The couriers were provided with numerous items of equipment by Vabu. These remained Vabu’s property and included the only means of communication for the purposes of job allocation and control;

(e) The couriers were required to wear Vabu’s livery at all times, partly due to the desire by Vabu to advertise its services;

(f) Vabu imposed on the couriers requirements such as insurance and the deductions therefor without opportunity for negotiation.

10    Mr Hollis appealed from Acting Judge Wright’s decision. He relied upon the following grounds in his amended notice of appeal:

“1. That the trial Judge erred in failing to find that the respondent was responsible vicariously for negligent acts of its rider.
2. That the trial Judge erred in failing to find that the negligent rider was the servant or agent of the respondent.
2A. That the trial Judge was in error in failing to hold that the respondent owed a non-delegable duty to the applicant which duty was breached by the respondents bicycle rider courier.
3. That the trial Judge erred in failing to find that the supervision by the respondent of its riders was defective and causative of the plaintiff’s injuries in circumstances where the respondent knew that many of its riders rode on the footpath and deliberately disobeyed the Motor Traffic Act and Council requirements as well as requirements for the safety of pedestrians.
4. That the trial Judge erred in failing to find that the respondent’s deliberate decision not to have identifying marks on the livery of its riders amounted to breach of its duty of care to persons such as the plaintiff and was causative of the plaintiff’s inability to identify the actual rider.
5 That the trial Judge erred in failing to hold that the respondent’s deliberate policy of not requiring riders to display registration numbers on their cycles resulted in the plaintiff being unable to identify the actual rider concerned being causative of the plaintiff’s damages.
6. That the trial Judge erred in refusing leave to the plaintiff to join the insurer of the individual cyclists to the proceedings.
…
8. That the trial Judge erred in failing to hold that the Respondent owed a duty of care to the appellant which duty extended to a reasonable means of identifying the actual riders concerned in accidents in circumstances where those riders were insured and the system of identification was wholly within the control of the respondent.”

11    Claims based on estoppel and the Trade Practices Act 1974 argued below were expressly abandoned on the appeal.

Ground 6

12 It is convenient to deal first with ground 6. This arose from the trial Judge’s refusal on 29 October 1997 to grant leave to the plaintiff to amend his statement of claim to join CIC Insurance Limited as a defendant to the proceedings pursuant to s6 of the Law Reform (Miscellaneous Provisions) Act 1946.

13 Relevantly s6 (1) provides that if any person, referred to as “the insured”, has

“entered into a contract of insurance by which the person is indemnified against liability to pay any damages or compensation, the amount of the person’s liability shall on the happening of the event giving rise to the claim for damages or compensation, and notwithstanding that the amount of such liability may not then have been determined, be a charge on all insurance moneys that are or may become payable in respect of that liability.”

Section 6 (4) provides that every such charge shall be enforceable by way of an action against the insurer in the same way and in the same court as if the action were an action to recover damages or compensation from the insured but provides that no such action shall be commenced in any court except with the leave of that court.

14    The application was made on the basis that the courier was an insured. The objective was to gain access to the insurance moneys although the identity of the courier was not known. Although Vabu was clearly an insured, there was no need to proceed against CIC on that basis. Acting Judge Wright dismissed the application because there did not appear “to be any basis to find that the individual bicycle couriers themselves entered into the contract.” It was submitted on behalf of Mr Hollis that the courier was really the person who took out the policy of public liability insurance with CIC since each courier paid a levy to be applied by Vabu in paying the insurance premium. Although the trial began on 29 August 1997 and Mr Harris, Vabu’s fleet administrator, was called by Vabu to give evidence on 5 September 1997, his evidence in chief did not finish and he was not cross-examined until 29 January 1998. There was no evidence before his Honour when dealing with this application to support the contention that the courier was the person who really took out the policy. Such evidence as there was about cl 7 of the standard form of contract was given by Mr Harris on 29 January 1998.

15 Although the policy itself included “sub-contractors in respect of work done on behalf of Crisis Couriers” as part of the description of “Insured” there was nothing in the policy to suggest that the couriers paid any part of the premium. On the evidence before him, the trial Judge was right to conclude that the courier who knocked down Mr Hollis was not shown to be a person who had entered into the contract of insurance and accordingly the condition for the application of s6 was not satisfied. This ground of appeal must be rejected.

Other Grounds of Appeal

16    At trial Mr Hollis’ claim was pursued in various different ways. Mr Donovan QC, who appeared for the appellant, put the appeal on to two alternative bases of liability; Vabu’s vicarious liability for the courier as its agent and Vabu’s direct liability by way of a non-delegable duty of care owed to Mr Hollis as a user of a public thoroughfare; compare Northern Sandblasting Pty Limited v Harris (1997) 188 CLR 313 at 330 per Brennan CJ.

17    Interwoven with these submissions was a submission based on Vabu’s failure to provide a system of identification which would enable “police officers or other authorities” to note any breach of traffic regulations by couriers thereby reducing the amount of infringement, and failure to provide a system of supervision of couriers and in particular to provide a system for spot checks to be made (grounds 3, 4, 5 and 8 of the amended notice of appeal). Mr Donovan relied upon a report, Staysafe 30 (1996), and evidence taken before a New South Wales Parliamentary Joint Standing Committee on Road Safety. According to this material the general manager employed by Crisis Couriers, Mr Pearce, acknowledged that it was very hard to identify a push bike courier and “another thing to catch him”, that was important that couriers abide by the Motor Traffic Rules and Regulations, and that “without any reservation” there was a minority of riders who were possibly jeopardising the industry or giving the general public the wrong idea of what the job of a push bike courier was all about. In my opinion, and with due respect, this material does not advance Mr Hollis’ appeal beyond that put on the bases of vicarious liability and direct personal liability. Apart from problems of causation and quantum of damages, it does not establish or support any duty of care owed by Vabu to Mr Hollis which would pick up as breaches of a duty of care the matters just referred to.

Vicarious Liability

18    The courier in riding his bicycle on the footpath was acting unlawfully; see s11 “Footpaths, bridges etc” of the General Traffic Regulations 1916 subs (1) (b) of which provides that the rider of a bicycle shall not ride the bicycle upon any footpath of a public street unless it is ridden directly across the footpath as slowly as practicable to or from a gateway or entrance and adequate precautions are taken to avoid collision with any person upon the footpath or upon any portion of any public street adjacent to the footpath. Subsection 1 (b) does not apply in relation to a bicycle used solely by an employee of the Australian Postal Commission for the delivery of postal articles (subs 1A).

19    The appellant accepted in light of the decision of this Court in Vabu Pty Limited v Commissioner of Taxation that the couriers were not employees of Vabu but independent contractors.

20    The appellant submitted that the activity in which the couriers engaged on behalf of Vabu was itself a hazardous one or dangerous because of the emphasis on speedy delivery and the recognition that a significant number of couriers disobeyed traffic rules and posed a danger to pedestrians. This submission distorts the nature of the business Vabu was conducting, namely a carrying business using couriers on bicycles. That activity is no more dangerous or hazardous than any use of public streets by bicycle riders. The hazard or danger to pedestrians, of which Mr Hollis’ accident was an example, derives not from the nature of the business but from the way in which the courier rode his bicycle in performing his contract with Vabu. To the extent that what the courier did was unlawful, it was not an unlawful act Vabu employed him to do. In Torette House Pty Limited v Berkman (1939) 39 SR (NSW) 156 at 170 Jordan CJ said:

“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’.”

An appeal to the High Court was dismissed; see Torette House Pty Limited v Berkman (1940) 62 CLR 637. In Stevens v Brodribb Sawmilling Co Pty Limited (1986) 160 CLR 16 at 30, 41 and 47 the High Court approved what Jordan CJ said.

21    In Colonial Mutual Life Assurance Society Limited v Producers and Citizens Co-Operative Assurance Co of Australia Ltd (1931) 46 CLR 41 Dixon J, with whose judgment Rich J agreed, said at 48:

“In most cases in which a tort is committed in the course of the performance of work for the benefit of another person, he cannot be vicariously responsible if the actual tortfeasor is not his servant and he had not directly authorised the doing of the act which amounts to a tort. The work, although done at his request and for his benefit, is considered as the independent function of the person who undertakes it, and not as something which the person obtaining the benefit does by his representative standing in his place and, therefore, identified with him for the purpose of liability arising in the course of its performance. The independent contractor carries out his work, not as a representative but as a principal.”

22    Brennan J quoted and applied this in Kondis v State Transport Authority (1984) 154 CLR 672 at 691-2 and, in dissent, in Burnie Port Authority v General Jones Pty Limited (1994) 179 CLR 520 at 574. See also Northern Sandblasting Pty Limited v Harris at 366 per McHugh J. Dixon J at 49 said that he believed there was no case which distinctly decided that a principal was liable generally for wrongful acts which he did not directly authorise, committed in the course of carrying out his agency by an agent who was not the principal’s servant or partner, except, perhaps in some special relations, such as solicitor and client, and then within limitations. At 49 hee quoted from Dr Baty, Vicarious Liability, at 44 as follows:

“Principals have been held liable in cases substantially of contract. Principals have been held liable in cases of tort where the agent was also a servant. Principals have been held liable for the wrongs of their agents which they told them to commit. But, fortunately, there seems to be no occasion in which a mere agent has been held to have had ‘implied authority’ to commit wrongs or to be negligent. The danger that such a proposition may be laid down is nevertheless imminent.”

This strict demarcation does not apply in the case where a principal confides to its agent the conduct of negotiations with a third party; see Bayley v Manchester, Sheffield and Lincolnshire Railway Co (1872) LR 7 CP 415 at 420 approved in the judgment of Dixon, Evatt and McTiernan JJ in Australasian Brokerage Limited v Australian and New Zealand Banking Corporation Limited (1934) 52 CLR 430 at 451. Such cases speak in the language of the scope of the agent’s authority and ostensible authority. But that is in the context of statements made during the course of negotiation and has no application to the present case.

23    In Bowstead and Reynolds on Agency, 16th ed, para 1-028 the learned author remarks:

“The dichotomy of servant (or employee) and independent contractor stems from the law of tort: a person is more readily liable for the torts of his servants than for those of his independent contractors. The difference turns on the degree of control exercised. The servant has been defined as ‘person employed by another to do work for him on terms that he, the servant, is to be under the control and directions of his employer in respect of the manner in which his work is to be done. An independent contractor has been defined as ‘one who undertakes to produce a given result, but so that in the actual execution of the work he is not under the orders or control of the person for whom he does it, and may use his discretion in things not specified before hand.’ Much space has been devoted in books to considering the relationship between these figures and the agent. It is submitted that the controversy is somewhat sterile. Some employees have agency powers, and these may be (as in the case of a manager) very wide; in other cases (eg a domestic employee) they may be very limited. Others have no agency powers. Many agents (eg brokers) could be called independent contractors; other independent contractors (eg repairers) are unlikely to have agency powers.”

24    There was not and could not be any finding that Vabu directly authorised the offending courier to drive his bicycle in an illegal or negligent manner. The trial Judge said that in his view there was no basis to find that Vabu had expressly or impliedly authorised the commission by the courier who collided with Mr Hollis of his tortious act or acts in that regard. His Honour did find that there was a requirement on the couriers as part of their contractual terms of engagement with Vabu to do their work under conditions of urgency, which would require speedy riding as required from time to time, and that the couriers were under pressure to work to deadlines or within time constraints required by Vabu. But the case is not one of the class exemplified by Brennan J in Kondis at 692 when his Honour said:

“If I prevail upon the driver of a taxi to drive dangerously, I cannot escape liability for the consequences by pointing to the general employment of the driver by the owner of the taxi.”

In the present case Vabu can point to the fact that the courier owned the bicycle and used it as an independent contractor.

25    In my opinion, while no doubt the couriers were agents of Vabu at least to perform the business of fast delivery by bicycle of parcels and documents in the inner city area, Vabu was not vicariously responsible for a tort occasioned by the performance of that function which Vabu had not directly authorised. Accordingly this ground of appeal fails.

Non-delegable Duty

26    In order that there be a non-delegable duty of care there must first be a duty of care. The discharge of the duty of care may be delegated, but if it is a non-delegable duty of care the person owing the duty of care can not escape liability if the person to whom the discharge of the duty of care is delegated, even if that person is an independent contractor, does not properly discharge it. In Northern Sandblasting Pty Limited v Harris at 330-31 Brennan CJ said:

“However, if the defendant is under a personal duty of care owed to the plaintiff and engages an independent contractor to discharge it, a negligent failure by the independent contractor to discharge the duty leaves the defendant liable for its breach. The defendant’s liability is not a vicarious liability for the independent contractor’s negligence but liability for the defendant’s failure to discharge his own duty. The duty in such a case is often called a ‘non-delegable duty’.
In principle, no duty owed by A to B can be delegated to C. If it were otherwise, the mere delegation would discharge A’s duty to B. The difference between a duty and its discharge appears clearly in the speech of Lord Blackburn in Hughes v Percival (1883) 8 App Cas 443 at 446 where, in reference to the duty owed by the defendant to his neighbour in making use of the party-wall between them, his Lordship said:
‘But I think the law cast upon the defendant, when exercising this right, a duty towards the plaintiff. I do not think that duty went so far as to require him absolutely to provide that no damage should come to the plaintiff’s wall from the use he thus made of it, but I think that the duty went as far as to require him to see that reasonable skill and care were exercised in those operations which involved a use of the party-wall, exposing it to this risk. If such a duty was cast upon the defendant he could not get rid of responsibility by delegating the performance of it to a third person. He was at liberty to employ such a third person to fulfil the duty which the law cast on himself, and, if they so agreed together, to take an indemnity to himself in case mischief came from that person not fulfilling the duty which the law cast upon the defendant; but the defendant still remained subject to that duty, and liable for the consequences if it was not fulfilled.’
In Kondis v State Transport Authority , in the course of reviewing earlier cases, Mason J observed:
‘On the hypothesis that the duty is personal or incapable of delegation, the employer is liable for its negligent performance, whether the performance be that of an employee or that of an independent contractor.’
Although the duty is personal to the defendant, the term ‘non-delegable’ does not mean that the defendant cannot get another to discharge the duty. As Lord Hailsham of St Marylebone said in McDermid v Nash Dredging Ltd [1987] AC 906 at 910 in reference to an employer’s duty to his employee, ‘non-delegable’ means ‘only that the employer cannot escape liability if the duty has been delegated and then not properly performed.”

The appellant’s submission elided the steps of finding a duty of care and then asking whether it was a non-delegable duty of care.

27    Although it was never stated with this precision I understand the appellant’s submission to be that the business conducted by Vabu was so hazardous to other users of public streets in the vicinity, that such conduct gave rise to a duty to such users to ensure that reasonable care and skill was taken for their safety; compare Kondis v State Transport Authority at 687.

28    In Burnie Port Authority v General Jones Pty Limited, a case in which the Court was concerned with the duty of the owner and occupier of one part of a building to an occupier of another part of the building, the majority of the High Court in a joint judgment said at 554:

“Where a duty of care arises under the ordinary law of negligence, the standard of care exacted is that which is reasonable in the circumstances. It has been emphasised in many cases that the degree of care under that standard necessarily varies with the risk involved and that the risk involved includes both the magnitude of the risk of an accident happening and the seriousness of the potential damage if an accident should occur. Even where a dangerous substance or a dangerous activity of a kind which might attract the rule in Rylands v Fletcher (1868) LR 3HL 330 is involved, the standard of care remains ‘that which is reasonable in the circumstances, that which a reasonably prudent man would exercise in the circumstances’. In the case of such substances or activities, however, a reasonably prudent person would exercise a higher degree of care. Indeed, depending upon the magnitude of the danger, the standard of ‘reasonable care’ may involve ‘a degree of diligence so stringent as to amount practically to a guarantee of safety’.”

29    Kondis v State Transport Authority concerned the duty of care owed by an employer to an employee. At 687 Mason J said:

“The element in the relationship between the parties which generates a special responsibility or duty to see that care is taken may be found in one or more of several circumstances. The hospital undertakes the care, supervision and control of patients who are in special need of care. The school authority undertakes like special responsibilities in relation to the children whom it accepts into its care. If the invitor be subject to a special duty, it is because he assumes a particular responsibility in relation to the safety of his premises and the safety of his invitee by inviting him to enter them. And in Meyers v Easton (1878) 4 VLR 283 the undertaking of the landlord to renew the roof of the house was seen as impliedly carrying with it an undertaking to exercise reasonable care to prevent damage to the tenant’s property. In these situations the special duty arises because the person on whom it is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised. As we have seen, the personal duty which has been recognised in the other cases which I have discussed, such as Dalton v Angus (1881) 6 App Cas 740, may rest on rather different foundations which have no relevance in the present case.”

(See the comment made by Kirby J on this dictum in Northern Sandblasting Pty Limited v Harris at 397.) Mason J said it was beyond serious challenge that an element of the kind discussed existed in the relationship of employment. Dalton v Angus , which Mason J had discussed earlier at 682, was a case where a landowner and contractor were held liable for the actions of a sub-contractor in carrying out excavations which caused subsidence on adjoining land in relation to which a right of support had been acquired. In that case Lord Blackburn, at 829, had said:

“On the other hand, a person causing something to be done, the doing of which casts on him a duty, cannot escape from the responsibility attaching on him of seeing that duty performed by delegating it to a contractor.”

In Kondisv State Transport Authority at 682 Mason J remarked:

“It is impossible to regard Lord Blackburn’s statement as extending generally to the ordinary case in which a duty to take reasonable care is owed.”

30    In Northern Sandblasting Pty Limited v Harris at 344-5 Dawson J referred to the judgment of Mason J in Kondis v State Transport Authority and said:

“Mason J concluded that the more stringent duty does not arise unless a special relationship exists between the parties such that the person on whom it is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety in circumstances where the person affected might reasonably expect that due care will be exercised.”

31    At 361 Gaudron J said:

“It is now recognised that relationships which give rise to a special non-delegable duty to ensure that care is taken are marked by the central features of control, on the one hand, and vulnerability, on the other.”

32    Vabu engaged the couriers as independent contractors to carry by bicycle, parcels and documents on its behalf and in fulfilment of engagements it had with third parties. As I have said there is nothing inherently dangerous to other users of public streets in such an activity. If anything the activity is less inherently dangerous to other street users than using motor vehicles or motor bicycles to carry parcels and documents. In either case the activity carries no inherent risk of injury unless it is negligently performed; Northern Sandblasting Pty Limited v Harris at 333. The fact that Vabu conducts such a business gives rise to no general duty of care to other street users and creates no special relationship between Vabu and such users.

33    To the extent to which parcels and documents are carried on a particular vehicle or a particular bicycle, the driver or rider owes the ordinary duty of care to other users of public streets. If that driver or rider is an employee of Vabu, Vabu is vicariously responsible for any breach by the driver or rider of that duty. If the driver or rider is an independent contractor, the application of the principles enunciated by Dixon J in Colonial Mutual Life Assurance Society Limited v Producers and Citizens Co-operative Assurance Co of Australia Limited means that Vabu is not vicariously liable for such a breach. On no basis, in my opinion, on the facts of this case, can there be set up some general duty of care owed by Vabu to other users of public streets derived from the way in which the parcels and documents are carried. Even less can such duty be elevated to one described as a non-delegable duty.

34    In my opinion, this appeal should be dismissed with costs.

35    GILES JA: I agree with Sheller JA.

36    DAVIES AJA: The principal facts and issues are set out in the reasons for judgment of Sheller JA. I need not repeat them. I limit my comments to the issue whether the respondent, Vabu Pty Limited, had a duty of care towards pedestrians such as the appellant, Gary John Hollis, and breached that duty. My comments relate only to the bicycle couriers engaged in the business of Crisis Couriers. They do not relate to the motor vehicle couriers or the motorcycle couriers engaged in that business.

37    In past years, when Smiths’ Law of Master and Servant was a standard textbook to be found on the shelves of Sydney’s lawyers, it is likely that the bicycle couriers would have been employees of the courier company. That is because, in those days, there was a benefit to be perceived from the relationship of employer and employee. Servants were bound to comply with the lawful directions of their masters and could be disciplined or dismissed for failing to do so. At the present time, however, there are sound commercial reasons why business proprietors may prefer to conduct their business through the instrument of independent contractors. In doing so, the business proprietors may avoid the necessity of paying group tax, of putting aside amounts by way of superannuation guarantee, of providing for holiday pay and long service leave, of complying with award conditions of employment, of complying with unfair-dismissal laws and, lastly, of accepting responsibility for the acts of those engaged in the business. Presumably, those who were responsible for structuring the respondent’s business had some of those factors in mind. There is nothing wrong with that. But because there is a trend for commercial enterprises to do what the respondent did, namely to engage independent contractors, there is also a trend for cases to arise which involve consideration of that part of the law which concerns, not vicarious responsibility for the acts of employees, but liability for the acts of independent contractors. There has also been development in the principles of negligence: see Kondis v State Transport Authority (1984) 154 CLR 672; Burnie Port Authority, v General Jones Pty Ltd (1994) 179 CLR 520 and Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313.

38    One circumstance in which it has been thought that a special duty of care arises is where the activity carried on is an inherently dangerous operation: see Swinton v The China Mutual Steam Navigation Co Limited (1951) 83 CLR 553. It is therefore necessary to examine whether the activities of the bicycle couriers carried with them an inherent danger of injury to others.

39    Evidence about the appellant’s accident was given by Mr A V Braham who was seated in a van parked on Harris Street, Ultimo, and who witnessed the collision between a Crisis Courier riding a bicycle and the plaintiff. Mr Braham gave evidence that he saw the bicycle coming along the roadway. It cut across in front of his vehicle, jumped the gutter and went onto the footpath. The bicycle was travelling faster than someone could run. It travelled approximately 10 metres along the footpath. The plaintiff came out of a building onto the footpath. The cyclist was going at a speed “where he wasn’t going to be able to stop”. As the plaintiff came onto the footpath, the bicycle collided with him. The plaintiff was thrown to the ground and, in the process of falling, he heard a loud crack from his knee and felt a twist of that knee. After the collision, the Crisis Courier, who had himself fallen over the top of the handlebars and landed on the ground, got up, picked up his bike and said, “Sorry mate” and left the scene.

40    There was evidence before the trial Judge that such was not an isolated occurrence. There is in evidence a transcript of proceedings on 23 October 1995 before the Parliamentary Joint Standing Committee Upon Road Safety (Staysafe). Apart from the members of Staysafe, the meeting on that day was attended by Ms Robertson of the Courier and Taxi Truck Association, Mr Pearce, the General Manager of Crisis Couriers, Mr Bond, the Operations Manager of Mayne Nickless Courier Systems and Ms Kinsella, the Manager of Red Tag Couriers. The evidence did not include the transcript of other days when, for example, members of the Police Service gave evidence. The transcript of proceedings include the following comments:

“ The Hon. A. B. MANSON (STAYSAFE): Mr Pearce, you have just said that it is only a minority of riders who do the wrong thing. Do you honestly expect this Committee to believe that? We have listened to a lot of witnesses today - police included - that when police go out, in one day they will book 50 or 60 bicycle couriers for various breaches. Do you honestly expect us to believe that there are only a handful of people doing the wrong thing?
…
The Hon. A. B. MANSON (STAYSAFE): We are talking about breaches of the road regulations, going on footpaths, going through red lights, and going the wrong way in a one-way street, for instance.
…
Mr BOND: As far as congestion goes, the riders are far more disadvantage(d) in the central business district. The number of accidents in relation to pushbikes because of that congestion - and I am talking in terms of pushbike/pedestrian encounters, but by far the greater number involve pushbike/car encounters - the most common accident, according to our statistics, would be the car door situation. That is where a pushbike courier is going along, the vehicle changes direction with very little indication, the car door opens at the light to let passengers out, and that type of thing. The pushbike courier basically has no time to stop, and it basically results in an injury.
…
The only other issue is, as Ms Kinsella mentioned, the time criteria. Even though it is a very restricted area that city riders use, they are required to take an additional number of jobs and meet an even more specific time criteria as against the couriers in the suburbs.
…
MR GIBSON (CHAIRMAN): But, unfortunately, from all the charges laid by the police and fines issued, only 30 to 34 per cent of them are ever paid. So there is another problem at the other end of the spectrum too, apart from catching them and charging. You have to get the fines from them as well.
…
Mr PEARCE: Yes, that is right. I was saying earlier to Mrs Robertson that if a car is travelling at 30 kilometres an hour and a bike is travelling at 30 kilometres and hour, and you are standing near them as they go by, you get the feeling that the bike is going faster.
Mr MILLS (STAYSAFE): Yes, that is the perception.
Mr PEARCE: Yes, that is perception. I had an incident a couple of weeks ago where a pushbike rider had an altercation with a pedestrian, and the pedestrian said that the cyclist was travelling at a ‘great speed’. I asked where it happened, and he said it was on a footpath on the corner of so-and-so. I spoke to the rider, and he said, ‘Yes, I was on the footpath, but I was dismounting. I came off my bike.’ He was slowing down to get off the bike, but in doing so hit a pedestrian. So he was not travelling at great speed. But he did do the wrong thing, and he admitted that, and he was reprimanded. But the problem I see is that it is the concept of speed that prompts the telephone call from the person who has been aggrieved.
…
MR GIBSON (CHAIRMAN): How many transactions would a courier do, on average, per day?
Mr PEARCE: A good courier would be doing at least 40 to 50.
MR GIBSON (CHAIRMAN): So it could really be 50,000 movements per week, not 15,000?
Mr PEARCE: I might have underestimated it a little bit.
Ms ROBERTSON: Ms Kinsella said that about 20 would be the correct figure for her company; and, for Mayne Nickless, between 20 and 35.
MR GIBSON (CHAIRMAN): So each of your riders is doing on average only 25 articles per day?
Ms ROBERTSON: Yes.
…
Mr SMALL (STAYSAFE): Are many of them overseas backpackers trying to pick up a dollar?
Mr PEARCE: There are people who come in with working visas, and they do get the opportunities. The same thing happens when young Australians go overseas.”

The conclusion that I draw, from reading the transcript, is that bicycle couriers were recognised to be a problem, that many of them travelled fast, broke road rules, rode through red lights, rode on footpaths and so on, and that this conduct was related to the task that had to be performed. I have not included in the above extracts statements which suggested that there was not a significant problem. The transcript as a whole shows that there was a problem and that it was recognised by all.

41    In the course of the discussion on 23 October 1995, the representatives of the courier companies and of the Courier and Taxi Truck Association took the view that there should be regulation of bicycle couriers. Mr Pearce, the General Manager of Crisis Couriers, said, for example, that there was a need for regulation including a need to provide for the identification of each individual courier. Mr Pearce said that, without some form of identification, it was very difficult to control individual couriers. Ms Robertson expressed the view that the legislation should be amended so that awards could be made covering sub-contractors. She indicated that the Industrial Relations Department had drafted a new Act. Mr Pearce mentioned the system in force in New York, where each person working as a pushbike courier, had to pay a sum by way of a bond. Ms Robertson indicated that, on two occasions, in 1990 and 1995, the industry had attempted to introduce a voluntary program of regulation but the attempts had been unsuccessful. Ms Robertson took the view that better training was required and that the problem was that bicycle couriers were simply appointed as independent contractors and started working. Mr Pearce expressed a firm view that something had to be done. He gave this evidence:

“ Mr PEARCE: I think the pushbike couriers have to be regulated, if they want to work as pushbike couriers in the city or North Sydney.
MR GIBSON (CHAIRMAN): So you are talking about generally regulating the industry?
Mr PEARCE: Yes. That is all you need to do: if they want to be pushbike couriers, they have to be licensed to do it.”

Mr Pearce went on to say that the couriers needed facilities where they could rest and shower. He suggested that there were plenty of empty buildings in the city that could be made accessible to them. The Honourable A B Manson asked Mr Pearce why the employers did not, as a collective industry, provide those facilities for the couriers. Mr Pearce responded, “ I do not consider them employees as such. That is something that the industry as a whole possibly needs to look at” . As can be seen, Mr Pearce accepted that there was a problem but considered that, as the couriers were not employees, it was up to others, including the Government, to rectify it.

42    The attempt to persuade the Government to regulate the industry or to provide facilities such as rest rooms and showers for the couriers failed as did the industry’s own attempt to introduce voluntary controls. The evidence given to the trial Judge showed that, although Crisis Couriers had attempted to bring in a system which would enable identification of couriers, the introduced system was inadequate and, in the present instance, failed to identify the courier who ran down the appellant.

43    The explanation of why there was a problem seems to involve five factors. First, the bicycle couriers were not controlled by regulations. They were not required to be licensed, to have identification or to put up a bond. Some were temporary visitors to this country. Many were difficult to trace. Police were able to collect only one-third of fines. Secondly, the bicycle couriers were independent contractors, not employees. They were not controlled as one would have expected employees to have been. Thirdly, the couriers’ income depended upon the number and speed of jobs performed. Even if one took an average of twenty-five parcels delivered per day, rather than Mr Pearce’s estimate of forty to fifty parcels a day, the couriers must have travelled quickly. The remuneration structure encouraged the couriers to travel quickly. The remuneration for a standard one hour delivery was only $2.50, so a courier had to perform many jobs to obtain a reasonable remuneration. The fee for a half-hour express delivery was $5 and for a fifteen to twenty minutes double express delivery was $7.50. The couriers would have sought those jobs. Fourthly, the courier services emphasised urgency. The brochure of Crisis Couriers promised that, within sixty minutes of a client’s call, documents and small packages would be delivered. An express service was offered to clients who wished documents or parcels to be delivered “double quick” and which promised that documents would be delivered in half the standard time at double the rate. The general rules of Crisis Couriers for its “drivers” which included bicycle couriers, included the following:

“4. Drivers are to be mindful of deadlines regarding deliveries . Express work to be treated as such, with older work looked after in preference to fresh work, (unless otherwise directed by the radio operator). In short, use common sense at all times.” (emphasis added)

Fifthly, no courier was entitled to refuse work. A term of the contract read as follows:
“11. NO DRIVER IS TO REFUSE WORK . ANY DRIVER WHO DOES SO WILL NO LONGER WORK FOR THIS FIRM!!”

44    It is no wonder that Mr Harris, the Fleet Administrator of Crisis Couriers, gave this evidence:

“Q. As well as the matters relating to disobeying traffic rules in the inner city area you have over many years haven’t you been exposed to concerns raised in the media and other places as to pedestrian safety so far as cycle couriers are concerned?
A. Correct.”

45    The findings of fact of the trial Judge accorded with the observations I have made. As to speed, his Honour said:

“… I should indicate that I am prepared and do find that there was a requirement on the cyclists as part of their contractual terms of engagement with the defendant to do their work under conditions of urgency, which would require speedy riding as required from time to time and that the riders were under pressure to work to deadlines or within time constraints required by the defendant.”

His Honour made the following findings of fact, inter alia:

“6. That the defendant had known for some time prior to the plaintiff’s injury that a significant number of couriers disobeyed traffic rules and posed danger to pedestrians.

…

8. That the defendant had known for some time prior to the plaintiff’s accident that personal identification would lessen the risk of couriers riding contrary to road rules.

9. That for the same period the defendant knew that injured pedestrians would find it difficult to identify particular couriers without means of personal identification.

…

12. That the defendant allowed a system to continue where riders who had reasons not to wear personal identification declined to do so.”

46    Another aspect of the facts that I should mention is that the courier service was a part of the respondent’s business. The couriers used were contracted to it. They were obliged to wear the respondent’s livery and they were obliged to carry out any task that was allocated to them. The respondent assumed responsibility as to direction, training (if any), discipline, job allocation and attire. The Crisis Couriers functioned as part of the respondent’s organisation, although they were independent contractors, not employees.

47    A basic principle is that stated by Dixon J in Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41 at 48, where his Honour said:

“In most cases in which a tort is committed in the course of the performance of work for the benefit of another person, he cannot be vicariously responsible if the actual tortfeasor is not his servant and he has not directly authorised the doing of the act which amounts to a tort. The work, although done at his request and for his benefit, is considered as the independent function of the person who undertakes it, and not as something which the person obtaining the benefit does by his representative standing in his place and, therefore, identified with him for the purpose of liability arising in the course of its performance. The independent contractor carries out his work, not as a representative but as a principal.”

It is not in dispute that, in the present case, the Crisis Courier was not a servant of the respondent and that the respondent had not directly authorised the doing of the act which amounted to a tort.

48    However, a primary issue is whether the respondent owed a duty of care to persons using the city’s streets and footpaths, particularly pedestrians, when it sent its couriers out into those streets and footpaths to deliver parcels in the course of its business. I should commence by citing the words of Gibbs CJ in Jaensch v Coffey (1984) 155 CLR 549 at 553:

“The statement of basic principle by Lord Atkin in Donoghue v Stevenson [1932] AC 562 at p 580 does not make liability for negligence depend solely on a failure to take reasonable care to avoid acts or omissions which it can reasonably be foreseen will be likely to injure someone. The duty is owed not to the world, but to one’s neighbour, ie, to ‘persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question’. The principle, which is one of proximity as well as of foreseeability, was stated in the following words by Lord Wilberforce in Anns v Merton London Borough Council [1978] AC 728 at pp 751-752:
‘First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter - in which case a prime facie duty of care arises.’”

More recently, in Frank Perre v Apand Pty Ltd [1999] HCA 36, McHugh J said at para 70:
“Where a defendant knows or ought reasonably to know that its conduct is likely to cause harm to the person or tangible property of the plaintiff unless it takes reasonable care to avoid that harm, the law will prima facie impose a duty on the defendant to take reasonable care to avoid the harm. Where the person or tangible property of the plaintiff is likely to be harmed by the conduct of the defendant, the common law has usually treated knowledge or reasonable foresight of harm as enough to impose a duty of care on the defendant.”

49    Factors other than reasonable foreseeability of harm may play a part. In Frank Perre v Apand Pty Ltd, Gleeson CJ said at para 10:

“Moreover, knowledge (actual, or that which a reasonable person would have) of an individual, or an ascertainable class of persons, who is or are reliant, and therefore vulnerable, is a significant factor in establishing a duty of care.”

At para 13, his Honour gave weight to, “actual foresight of the likelihood of harm, and knowledge of an ascertainable class of vulnerable persons.” In Kondis v State Transport Authority , Mason J said, at p 687, that foreseeability of injury was not in itself enough to generate a special duty, that the relationship between the parties must be such as to generate a special responsibility or duty to see that care is taken. The matter was further examined by Mason CJ, Deane, Dawson, Toohey and Gaudron JJ in Burnie Port Authority v General Jones Pty Ltd at pp 550-554. Their Honours approved of the view expressed by Mason J in Kondis v State Transport Authority and, at p 551, referred to both “the central element of control” and to “special dependence or vulnerability” .

50    In my opinion, the respondent did owe a duty of care to users of the city’s streets and footpaths. The nature of the respondent’s business required couriers to use the streets and footpaths for the delivery of parcels. The couriers were obliged to accept and perform work in respect of which time limits for delivery had been imposed by the respondent. It could be reasonably foreseen that, unless reasonable care was taken, pedestrians in the city would be likely to suffer injury to their person or property. It was known that the couriers “posed danger to pedestrians”. And it was known that pedestrians were vulnerable because of the difficulty of identifying and recovering damages from the couriers.

51    The next issue is the content of that duty of care. In Kondis v State Transport Authority, consideration was given of classes of cases in respect of which there was a non-delegable duty arising out of the special relationship between the person for whom the work is performed and the person at risk. In the course of his reasons for judgment, at pp 685-6, Mason J referred to the relationships of employer and employee, hospital and patient, school authority and its pupil and invitor and invitee. In Burnie Port Authority v General Jones Pty Ltd, consideration was given to the category of cases in which an owner or occupier of land undertook either personally or through servants or contractors activities which, unless kept under control, would be liable to cause damage to neighbours. In the present case, the trial Judge said that the categories of cases which had been discussed in Kondis v State Transport Authority and Burnie Port Authority v General Jones Pty Ltd and which had been summarised in Northern Sandblasting Pty Ltd v Harris by Dawson J at pp 343-5, were, for practical purposes, closed. In my opinion, that approach was wrong. One must turn in a particular case to the general principles of the law of negligence. Just as the principles of the law of occupier’s liability were in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 and the principle of Rylands v Fletcher was in Burnie Port Authority v General Jones Pty Ltd assimilated into the general principles of the law of negligence, so, in this area of the existence of a duty of care and of the performance of that duty, there are no strict or limited categories, although categories have been articulated which will govern the decision when they apply.

52    The law of negligence takes account of the risk involved. In Kondis v State Transport Authority, Mason J said at pp 679-680:

“A classic definition of negligence was that expressed by Alderson B. in Blyth v Birmingham Waterworks Co (1856) 11 Exch 781 at p 784, in these terms:
‘Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.’
It has been accepted that the content of the ordinary common law duty of care is a duty to exercise reasonable care (and skill) or to take reasonable steps to avoid risk of harm to a person to whom the duty is owed. The degree or standard of care required varies with the risk involved. Those who engage in inherently dangerous operations must take precautions not required of persons engaged in routine activities: Swinton v China Mutual Steam Navigation Co. Ltd (1951) 83 CLR 553 at pp 566-567. This involves no departure from the standard of reasonable care for it predicates that the reasonable man will take more stringent precautions to avoid the risk of injury arising from dangerous operations.”

I need not set out the passage in Swinton v China Mutual Steam Navigation Co Limited to which his Honour referred.

53    In circumstances which attract a duty of care, it may not be sufficient to avoid liability simply by engaging an independent contractor to undertake the task. In some cases, the duty may be discharged by the employment of a “qualified and ostensibly competent independent contractor”: see Burnie Port Authority v General Jones Pty Ltd at p 550. In other cases, an additional duty of supervision of the activities of the independent contractor may be required: see Roads and Traffic Authority v Scroop (1998) 28 MVR 233. In other cases, there will be strict non-delegable duty which imposes personal responsibility for acts done, whether they be done personally by an employee or by an agent: see Kondis v State Transport Authority; Burnie Port Authority v General Jones Pty Ltd and Northern Sandblasting Pty Ltd v Harris. In such a case, the employer is liable for a breach of the duty owed by the employer brought about by the act of the employer or agent: see Darling Island Stevedoring and Lighterage Co Ltd v Long (1957) 97 CLR 36.

54    As Brennan CJ observed in Northern Sandblasting Pty Ltd v Harris, the content of the duty of care will vary according to the circumstances of the case. His Honour said at p 332 that, apart from well-established relationships that give rise to non-delegable duties, it is not easy to distinguish between the circumstances which give rise to a duty that is discharged by the selection of a competent independent contractor to undertake a particular task and the circumstances which give rise to a duty that can be discharged only by the non-negligent performance of the task. His Honour went on to mention circumstances where, there being a special duty of care, the person was under a duty, not only to use reasonable care, but to ensure that reasonable care was used by any independent contractor employed. His Honour observed that, if the independent contractor was engaged to perform a task which carried an inherent risk of damage to the person or property of another, the employer may be liable even though the independent contractor exercised reasonable care, because the employer authorised the running of the risk and therefore breached his own duty for failing to take necessary steps to avoid the risk which he had authorised. At p 333, Brennan CJ observed:

“Cases of special relationships aside, the duty of care that arises when a task to be performed does not carry an inherent risk of damage to the person or property of another may be discharged by the engaging of a competent independent contractor to perform it. Whether a task does or does not carry an inherent risk of damage to another’s person or property is a question of fact to be determined in the light of common experience.”

55    In the present case, the first factor to be taken into account in assessing the degree of care is that a risk foreseen was the risk of physical injury to pedestrians. A second factor is that the danger was created by the respondent’s business. The couriers did not each carry on an independent business. Each rode in the course of the respondent’s business. Another factor is that the respondent controlled the manner in which its business was carried on. It engaged the couriers. It allocated the work to them. It fixed the time limits for delivery. And it appointed the remuneration for each delivery. The respondent played an active part in creating the risk. It was inevitable, as a result of the way in which the business of Crisis Couriers was structured, that people going about their ordinary business in the streets of Sydney would be injured. It would be going too far to say that the respondent authorised the precise act of negligence of the courier who injured the appellant. It did not. Nevertheless, the couriers did what the respondent expected them to do. They rode fast, both to meet deadlines and to earn remuneration. The appellant’s injury resulted from the way the business was carried on.

56    Another aspect to be taken into account is the vulnerability of pedestrians who were injured or suffered loss as a result of the activities of the bicycle couriers. They might have no satisfactory recourse against the courier who has caused the injury or loss because the courier was impossible to identify or trace or was a person without substance and without insurance. Although Crisis Couriers deducted $7.65 per week from the remuneration paid to each courier by way of contribution to an insurance premium, the policy was taken out under the names of the respondent and Vesegi Pty Limited. This was a state of affairs which the respondent itself arranged.

57    In these circumstances, I consider that the respondent was liable for the acts of its bicycle couriers when they were riding in the course of its business. The matter falls within the principle stated by Lord Macmillan in Glasgow Corporation v Muir [1943] AC 448 at 456, where his Lordship said:

“Those who engage in operations inherently dangerous must take precautions which are not required of persons engaged in the ordinary routine of daily life.”

That passage was cited with approval by Dixon, Williams, Webb, Fullagar and Kitto JJ in Swinton v The China Mutual Steam Navigation Co Limited at p 567. As I have said, this conclusion does not apply to the motor vehicle or motorcycle couriers, for they may be assumed to use the road in a normal fashion and, if there is negligence, the injured party will be able to sue a person of substance who is insured. It is the unusual features related to the bicycle couriers that leads to the conclusion in the present case.

58    But for the aspect of vulnerability, I may have considered that the duty of care which the respondent owed to pedestrians on the streets and footpaths of the city would be satisfied by the taking of due care in the appointment and training of its couriers and by the institution of a system of work that would ensure that the couriers could make all deliveries without speeding and yet achieve a reasonable remuneration for their day’s work. If that was the duty, the respondent did not exercise such due care.

59    Taking account of the vulnerability of pedestrians, of the respondent’s recognition that there was a need for insurance to cover public liability claims, of its deduction from the couriers’ remuneration of weekly amounts to meet the premiums and of the fact that it was the respondent’s own act of obtaining insurance in its own name, thereby doing nothing to relieve the vulnerability of injured pedestrians, it seems to me that the circumstances were such as to impose upon the respondent personal liability for the acts of its couriers done in the course of its business. The respondent, by the structure of its business, not only created the risk to pedestrians, but, failed to exercise due care to avoid such risks and failed to take the steps which were necessary to alleviate the problem that injured pedestrians would be unable to recover.

60    I am satisfied that the respondent is liable to compensate the appellant for the loss which he has suffered.

61    I would allow the appeal. I would set aside the orders below and I would substitute therefore an order that there be judgment for the appellant against the respondent in the sum of $176,313. The respondent should pay the costs below and the costs of the appeal.

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