Kondis v State Transport Authority - [1984] HCA 61

HIGH COURT OF AUSTRALIA

Mason, Murphy, Brennan, Deane and Dawson JJ.

ANASTASIOS KONDIS v. STATE TRANSPORT AUTHORITY (formerly VICTORIAN RAILWAYS BOARD)

(1984) 154 CLR 672

16 October 1984

Negligence

Negligence—Master and servant—Duty of care—Safe system of work—Employer's duty to provide—Employee injured by act of independent contractor to employer—No warning by contractor about act—No direction by foreman about likelihood of risk—Whether employer in breach of duty.

Decisions

MASON J. This appeal, by way of special leave from a decision of the Full Court of the Supreme Court of Victoria, arises out of an action commenced by the appellant in the County Court for damages for personal injuries suffered in the course of his employment as a labourer of the respondent.

2. The appellant was injured on 14 March 1975 while working with a small gang of men employed by the respondent at the Jolimont Railway Yards. The gang, under the direction of a sub-foreman named Wallis and a leading hand named Cercone, had been given the task of dismantling a large metal "A" frame structure which was fixed between two wooden poles some eight to ten metres above the ground. To assist in the operation the respondent had hired a mobile crane from a third party. The crane was operated by a man named Clissold who was an employee of the third party.

3. Before the crane could be used it was necessary for its jib to be extended. This was done by extending two sections which fitted telescopically inside the main part of the jib. The first section, inside of which was the second, could be extended and retracted hydraulically. The second section had to be extended manually. The procedure for doing this was that the first extension was initially fully extended and a metal rod placed between two brackets, one of which was attached to the main part of the jib and the other to the extremity of the second extension. A long pin which passed through holes in the sides of the first and second extensions holding them together was then removed and the first extension hydraulically retracted. The metal rod would prevent the second extension from retracting with the first so that the second extension would, when the first extension was retracted, be fully extended. The pin which had been removed was then inserted through holes in the sides of the two extensions ensuring that the second remained extended from the first. The pin was held in position by a clip which was passed through a hole in its end. The first extension was again hydraulically extended to complete the extension procedure. If the metal rod was not manually removed, movement of the first extension at this stage would cause it to fall.

4. The appellant's injury occurred when he was struck on the back by the metal rod while he was under the jib picking up either the pin or the clip which had fallen to the ground. How this came to happen was the subject of conflicting evidence at the trial.

5. According to the appellant, he was instructed by Cercone to assist in the extension of the jib. He said that a boilermaker was standing in the bucket of a digging machine which had been raised to a height to allow him to place the pin through the holes in the first and second extensions to secure them. The boilermaker was having difficulty in this task because the holes were not in correct alignment and so he was attempting to hammer the pin in. During this procedure the pin slipped out of the holes and fell to the ground a number of times and the appellant was instructed to stand close by either to catch the pin or to pick it up from the ground and hand it back to the boilermaker. It is clear from the appellant's evidence that it was in the process of bending down to pick up the pin that the rod fell and struck him.

6. Clissold's version of the incident was completely different. He said that he performed the extension procedure entirely without assistance, though he may have had some help in assembling the rod which was initially in two pieces. He said that he placed the pin through the holes in the sides of the first and second extensions himself by climbing out of the cabin of the crane and along the jib but that in doing so he accidentally knocked the clip off the jib causing it to fall to the ground underneath. He then climbed back into the cabin. He decided that he would release the rod by extending the jib slightly, climb down to the ground to recover the clip and then climb back along the jib to place it through the hole in the end of the pin. He said that he had observed some workmen standing in the vicinity of though not close to the crane but that as he caused the rod to fall he saw that the appellant had moved under the jib and was bending down, apparently to pick up the clip.

7. Four men who had been in the gang with which the appellant was working, including Wallis and Cercone, were also called to give evidence. On the whole, their evidence was of little assistance in choosing between the conflicting accounts. All agreed that the appellant was struck as he bent down underneath the jib to pick something up. They also agreed that a boilermaker was present but were unable to recall him standing in the bucket of the digging machine trying to insert the pin. Wallis, however, did remember Clissold having some difficulty in inserting the pin. The boilermaker was not called. Cercone said that he did not tell the appellant to help with the extension of the jib but that it was the appellant's job within the gang to assist generally by handing up tools and that he may well have been helping with the extension procedure. The trial took place nearly seven years after the incident and all witnesses, with the exception of the appellant, said that their recollection was blurred.

8. The trial judge, Judge Just, on the whole accepted the version of the facts given by the appellant and rejected the version given by Clissold, though he found that the dropping of the rod by Clissold was deliberate and that the appellant was struck as he bent down to pick up what he simply described as "an object" without identifying that object as the pin or the clip. He found that the appellant had been instructed to assist in the extension procedure by standing under the jib and picking up the pin as it dropped and that Wallis, Cercone and Clissold were all aware of this but that neither Wallis nor Cercone had made any enquiries of Clissold as to the procedure to be followed in respect of lowering or dropping the rod. He further found that Clissold failed to give any warning that he was about to drop the rod and failed to keep a proper lookout before doing so. Towards the end of his judgment on this point, his Honour said:

"13. The Court makes the express finding that Clissold was at the time acting under the over-all control of the (respondent) and that the (respondent) is liable for his negligence.

14. If Clissold had kept a proper lookout or if he had given a proper warning before causing the tube to drop the accident to the (appellant) would not have occurred..."

His Honour entered judgment for the appellant against the respondent and awarded damages in the sum of $228,848.

9. On appeal by the respondent to the Full Court of the Supreme Court, Young C.J. and Murray J., who constituted the majority in that Court, accepted the trial judge's finding of liability on the part of the respondent as being based solely on the negligence of Clissold, interpreting his Honour's finding that Clissold was acting under the overall control of the respondent as indicating that he regarded Clissold as a servant pro hac vice of the respondent. This view, they held, could not be supported on the evidence. They further held that the respondent was not otherwise liable for the negligence of Clissold which they saw as being a "casual" act of negligence by an independent contractor. While they were clearly of the opinion that a finding of negligence on the part of the respondent independently of the negligence of Clissold was available on the evidence, and particularly on the evidence of Clissold himself which on a reading of the transcript they would have preferred, they apparently regarded such a finding as not being open on the version of the facts accepted by the trial judge. They therefore allowed the appeal and took the unusual course of ordering a new trial.

10. Marks J., dissenting, while agreeing that Clissold was not a servant pro hac vice of the respondent, held that the respondent, in leaving the supervision of the extension procedure entirely to Clissold and at the same time requiring the appellant to work with him, had entrusted to Clissold the performance of its own duty to take reasonable care for the safety of the appellant and was liable for a breach of that duty. Alternatively, he held that the facts and circumstances allowed clear inferences to be drawn that the appellant was injured as a result of the respondent's breach of its duty of care to him in failing to properly supervise him in the performance of his work and in failing to co-ordinate and lay down a safe system of work and to ensure that reasonably safe procedures were carried out.

11. I agree with the Full Court that Clissold was not at the time of the appellant's injury a servant pro hac vice of the respondent so as to bring the case within the principle of vicarious liability discussed in McDonald v. The Commonwealth (1946) 46 SR(NSW) 129 and Mersey Docks and Harbour Board v. Coggins and Griffith (Liverpool) Ld. (1947) AC 1. On any view of the facts, the entire supervision and control of the extension procedure was in the hands of Clissold. He was the driver of the crane and the only person present who was familiar with its mechanism. Indeed, the evidence establishes that the decision to extend the jib was made by Clissold alone after an inspection of the site. It is not to the point, as was urged by counsel for the appellant, that most of Clissold's work as a crane driver for the third party was on hire to the respondent and that he took his orders from the respondent in relation to particular projects. It is clear that upon his arrival at the site on the day of the appellant's injury, Clissold was commencing a new and separate project. Wallis said that the full extent of his discussion with Clissold at that time was simply to tell him that the "A" frame structure was to be removed. The extension procedure was preparatory to and separate from the main operation of dismantling the "A" frame. In such circumstances it could not be said that the respondent exercised any supervision or control over Clissold at all at the relevant time.

12. In considering alternative bases of liability on the part of the respondent, it is necessary to define to some extent the factual context of the appellant's injury. Although the full circumstances are perhaps unclear, certain essential facts appear to be established. As noted above, the entire supervision and control of the extension procedure was left with Clissold. It is conceded by the respondent that Clissold was negligent in dropping the rod. Furthermore, it was found by the trial judge and is now accepted by the respondent that the appellant had been instructed to assist in the extension procedure by standing under the jib and that he was acting in accordance with his instructions when he was struck by the rod. Leaving to one side for the moment the possibility of the respondent being negligent independently of the negligence of Clissold, the question then becomes whether, in such circumstances, the respondent is liable to the appellant for an admitted act of negligence on the part of an employee of an independent contractor.

13. The extent of the liability of an employer for injury caused to an employee in the course of his employment through the negligence of another has been the subject of continuing debate. The formulation of the relevant principles has been beset by many problems. One problem, that caused by the doctrine of common employment, is no longer with us, though the law in the course of its development has had to take account of the doctrine. One legacy of the doctrine is the concept of the personal or non-delegable duty, a concept which was designed to circumvent the doctrine of common employment and has been invoked frequently in recent times. But the principal difficulty in formulating acceptable principles has been due to the dominating influence accorded to the so-called general rule that the employer is not liable for the negligence of a person who is not a servant but an independent contractor. The area of operation of this rule has not been precisely defined. At times it seems to have been thought that the effect of the rule was to exclude liability on the part of an employer who engaged a competent independent contractor to engage in work on the employer's premises (Haseldine v. C.A. Daw &Son Ld. (1941) 2 KB 343, an invitor-invitee case). At other times it has been suggested that the rule may mean no more than that there was no liability in the employer for injury caused in the execution of some activity or operation falling outside the employer's business activity or his skill and experience, involving the doing of work which he had no capacity or opportunity to inspect or check (Davie v. New Merton Board Mills Ltd. (1959) AC 604, at p 646). And from time to time in England it has been said that the rule excluded the employer's liability for casual acts of negligence on the part of the contractor or the contractor's servants. Moreover, it has been accepted that in many situations an employer will be liable for the negligence of his independent contractor, e.g., when the injury is caused by an act which the contractor is employed to do or when the contractor's neglect involves the employer in a breach of his duty of care (see, for example, Pickard v. Smith (1861) 10 CB (NS) 470, at p 480 (142 ER 535, at p 539)).

14. However, to express the extent of the liability in the terms stated in the preceding sentence provokes the question: In what circumstances does the negligence of the contractor amount to a breach of the employer's duty of care? In recent times there has been a tendency to say that such a breach of duty arises when the employer's duty is "non-delegable". This is to say that the duty is of such a nature that its performance cannot be delegated to a contractor on the footing that delegation to a competent contractor is a sufficient compliance with the duty.

15. A classic definition of negligence was that expressed by Alderson B. in Blyth v. The Birmingham Waterworks Company (1856) 11 Exch 781, at p 784 (156 ER 1047, at p 1049), 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. The 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.

16. If the employer's common law duty of care to his employees is no higher than the general duty to take reasonable care and skill for their safety, it imposes on him an obligation to take reasonable steps to provide adequate plant and equipment, a safe place of work and a safe system of work. If the duty or obligation of the employer requires no more than the exercise of reasonable care, it will often be satisfied by engaging a competent person to perform some service or work, particularly if the service or work calls for some skill or experience which the employer does not possess and cannot reasonably be expected to possess and the employer has no opportunity or capacity to inspect or check what the contractor does. It has been a reluctance to accept this result that has prompted judges to speak of the employer's duty as "personal" or "non-delegable" and to conclude that it cannot be satisfied by the appointment of a competent person to carry out the necessary task.

17. The leading example of this approach - and it has great importance for the present case - is the decision of the House of Lords in Wilsons &Clyde Coal Co. v. English (1938) AC 57, where it was held that the duty of care owed by an employer to an employee was non-delegable with the consequence that the defence of common employment was not available to an employer who was the owner of a mine where injury was caused to a miner through the failure of the mine manager appointed as agent in charge of the employer's mining activities to provide a safe system of work. The employer was held liable because the system of work was not reasonably safe, although the system had been devised by the manager to whom the employer was obliged by statute to leave the matter and the employer had personally done everything that it could to provide a safe system. Lord Wright said (at p.78):

"... the ... duty was personal to the employer, in this sense that he was bound to perform it by himself or by his servants. ... The obligation is fulfilled by the exercise of due care and skill. But it is not fulfilled by entrusting its fulfilment to employees, even though selected with due care and skill."

Later, in discussing the limits of the obligation, his Lordship said (at pp.83-84):

"The true question is, What is the extent of the duty attaching to the employer? Such a duty is the employer's personal duty, whether he performs or can perform it himself, or whether he does not perform it or cannot perform it save by servants or agents. A failure to perform such a duty is the employer's personal negligence.

.....

... the whole course of authority consistently recognizes a duty which rests on the employer and which is personal to the employer, to take reasonable care for the safety of his workmen, whether the employer be an individual, a firm or a company, and whether or not the employer takes any share in the conduct of the operations."

His Lordship went on to say (at pp.84-85):

"It is not, however, broken by a mere misuse or failure to use proper plant and appliances due to the negligence of a fellow-servant or a merely temporary failure to keep in order or adjust plant and appliances or a casual departure from the system of working, if these matters can be regarded as the casual negligence of the managers, foreman, or other employees."

See also pp.64-65, 75, 87-88.

18. The concept of the employer's personal duty as explained by Lord Wright amounts to a duty to see that care is taken, e.g., in the provision of safe premises and of a safe system of work. Although in this respect it imposes on the employer a more stringent obligation than that imposed by the general duty to exercise reasonable care and skill, Lord Wright characterized it as a particular exemplification of the general duty in its application to an employer with respect to the safety of his employees. So it is said that the employer in order to discharge his general duty of care for the safety of his employees must ensure that reasonable care and skill is exercised in relevant respects. Lord Wright's approach is vulnerable to the criticism that he advances no reason or policy consideration for fixing the employer with the higher duty to see that care is taken instead of the duty that he himself take reasonable care.

19. In a later case, Thomson v. Cremin (1956) 1 WLR 103n., Lord Wright treated Wilsons' Case as an application of the general rule stated by Lord Blackburn in Dalton v. Angus (1881) 6 App Cas 740. After referring to the general rule that a person employing a contractor to do work is not liable for the negligence of the contractor or his servants, Lord Blackburn continued (at p.829):

"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 Dalton v. Angus a landowner and a contractor were held liable for the actions of a sub-contractor in carrying out excavations which caused subsistence on adjoining land in relation to which a right of support had been acquired. It seems that it was because they commissioned excavations which interfered, or tended to interfere, with the neighbour's right of support that they came under a personal duty to see that care was taken. 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.

20. In Thomson v. Cremin itself it was held that an invitor was liable to an invitee for the negligence of an independent contractor on the ground that, as the duty was personal, he was under an obligation to see that care was taken, notwithstanding that he had no reason to think that there had been negligence on the part of the independent contractor. However, Lord Reid pointed out in Davie (at p.642) that there is no necessary connexion between the liability of an occupier to an invitee and the liability of a master to his servant. Viscount Simonds expressed a similar view (at p.619).

21. In Wilsons' Case the system of work was devised by an employee, not by an independent contractor. For this reason the doctrine of common employment became central to the argument presented by the employer. The decision and the reasoning on which it is based is therefore a rejection of the argument that the doctrine excludes liability on the part of an employer for failure on the part of his manager to take reasonable care in devising a safe system of work. And there are comments in the speech of Lord Wright which suggest that the principle which he was enunciating might be limited to negligence on the part of an employee and that it might not necessarily extend to that of an independent contractor - see pp.78-79. By way of illustration he says that a duty "personal to the employer" must be performed "by himself or by his servants" (p.78). However, the concept of the personal duty which he expounded makes it impossible to draw a convincing distinction between delegation of performance of the employer's duty to an employee and delegation to an independent contractor. 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.

22. The later decision of the House of Lords in Davie is not inconsistent with the proposition stated in the preceding sentence. The decision denied that the employer is liable where the negligence is not that of an independent contractor to whom the employer has delegated the performance of some part of his duty, but is that of a stranger - in that case the manufacture of a standard tool which the employer has purchased for use in his operations. Lord Tucker explicitly recognized that the employer who delegates the performance of his obligations to an independent contractor is liable for the contractor's negligence (pp.646-647). On the other hand, the speeches of Viscount Simonds and Lord Reid proceeded on the footing that the principle enunciated in Wilsons was not actually expressed to extend to injury resulting from an independent contractor's neglect. However, Lord Reid conceded (at p.646) that -

"... an employer is liable for the negligence of an independent contractor whom he has engaged to carry out what have been described as his personal duties on his own premises and whose work might normally be done by the employer's own servant - at least if the negligent workmanship is discoverable by reasonable inspection."

His Lordship, after denying that an employer is liable for the negligence of the manufacturer of an article which he has bought, provided that he has taken care to buy from a seller of repute and has made any inspection which a reasonable employer would make, observed that there was a wide sphere which must be left for future legal development.

23. Lord Reid was influenced by two Scottish cases - Baird v. Addie (1854) 16 D 490, and Nisbett v. William Dixon &Co. (1854) 14 D 973, particularly by the remarks of Lord Ivory in the second case (at p.981), where a distinction was drawn between the liability of a defendant who carries on one trade and invokes the assistance of someone who exercises a different trade, and the liability of a defendant who calls in another to perform a subordinate part of the defendant's trade. In the second case what is done on the defendant's premises under its control is in execution of its trade.

24. In Australia the approach taken by Lord Wright in Wilsons' Case was accepted and applied in Cotter v. Huddart Parker Ltd. (1941) 42 SR(NSW) 33. Jordan C.J., placing emphasis on implications arising from the contract of employment, regarded the employer's duties to his employee as "personal", and stated (at p.37):

"He is therefore liable for any injury sustained through their non-performance, notwithstanding that he may have employed a competent contractor to perform them for him".

25. Pickard v. Smith was the source of the concept of the non-delegable duty as applied to a common law duty of care, though the concept seems to have been derived from earlier cases dealing with duties imposed by statutes (e.g. Hole v. The Sittingbourne and Sheerness Railway Company (1861) 6 H &N 488 (158 ER 201)). In Pickard v. Smith an occupier of refreshment rooms at a railway station was held liable for injuries sustained by a train traveller when he fell down a trap door which had negligently been left open by a coal merchant. Williams J., delivering the judgment of the Court, stated (at p.480 (E.R. p.539)) that the rule that an employer is not liable for the casual negligence of an independent contractor is -

"... inapplicable to cases in which the act which occasions the injury is one which the contractor was employed to do; nor, by a parity of reasoning, to cases in which the contractor is intrusted with the performance of a duty incumbent upon his employer, and neglects its fulfilment, whereby an injury is occasioned."

However, the most frequently cited of the early formulations of the concept was that expressed by Lord Blackburn in Dalton v. Angus (1881) 6 App Cas 740 (at p 829), reference to which has already been made. The same principle was again enunciated by Lord Blackburn in Hughes v. Percival (1883) 8 App.Cas. 443, at p 446.

26. Although these statements explained the nature and consequences of a non-delegable duty, they have been criticized on the ground that they offered no criteria distinguishing those duties which are non-delegable from those which are not. See Glanville Williams "Liability for Independent Contractors" (1956) C.L.J. 180, at pp.183-184. Indeed, it has been said that the classification of a duty as non-delegable in the circumstances of particular cases rests on little more than assertion (Cf. Fleming, Law of Torts (6th ed. 1983) at p.360; Salmond &Heuston on Torts (18th ed. 1981) at p.457). Lord Blackburn's statement gives no guidance upon this critical question because it assumes the existence of a personal duty on the part of the person engaging another to do something and states that the first person cannot avoid compliance with the duty by delegating its performance to another.

27. In a number of cases a person has been held liable for damage caused through the interference with the rights of an adjoining landowner due to the negligence of an independent contractor. Bower v. Peate (1876) 1 QBD 321 and Johns v. Delaney (1890) 16 VLR 729, like Dalton v. Angus, concerned interference with a right of support. Hughes v. Percival concerned interference with a party wall. In such cases it may well be that the courts proceeded according to a view, which they did not express, that the relationship of the parties as adjoining landowners was such that the rights of one necessarily involved a correlative duty on the part of the other, when authorizing work which might interfere with those rights, to ensure that reasonable care and skill was exercised rather than a duty merely to exercise reasonable care and skill which in many instances might be satisfied by the appointment of a competent contractor, cf. Stoneman v. Lyons (1975) 133 CLR 550.

28. The decision in Meyers v. Easton (1878) 4 VLR 283, at p 283, appears to rest on a slightly different footing. In that case a landlord undertook, at the solicitation of his tenant, to renew the roof of a house and employed an independent contractor to do so. During the course of the repair operation and due to the negligence of the contractor, the tenant's furniture was damaged by rain. The Full Court of the Supreme Court of Victoria refused to grant an order nisi for a new trial from a verdict that the landlord was liable in damages. Stawell C.J. said (at p.284):

"Where one person becomes liable to perform, or undertakes the performance of a duty to another, it is quite immaterial (as between him and that other) whether he performs the duty himself or employs an agent, or an independent contractor to perform it. The liability (whatever it may be) for the proper performance of the duty; adheres to the person who undertook it; he cannot get rid of it."

29. Outside the realm of master and servant and the cases discussed in the preceding paragraph the concept of a personal duty has been applied to the common law duty of care owed by a hospital to its patient (Gold v. Essex County Council (1942) 2 KB 293, at p 304; Cassidy v. Ministry of Health (1951) 2 KB 343; Roe v. Minister of Health (1954) 2 QB 66; Samios v. Repatriation Commission (1960) WAR 219; Toronto General Hospital v. Matthews (1972) SCR 435), and by a school authority to its pupils (Ramsay v. Larsen (1964) 111 CLR 16, at p 28; Commonwealth v. Introvigne (1982) 56 ALJR 749, at pp 755, 757 and 759; Carmarthenshire County Council v. Lewis (1955) AC 549). Thus a hospital was held liable for an injury caused by the negligence of a radiographer in Gold, of a part-time anaesthetist in Roe and Matthews, and of a special consultant in Samois. The liability of a hospital arises out of its undertaking an obligation to treat its patient, an obligation which carries with it a duty to use reasonable care in treatment, so that the hospital is liable, if a person engaged to perform the obligation on its behalf acts without due care (Gold, at p.304). Accordingly, the duty is one the performance of which cannot be delegated, not even to a properly qualified doctor or surgeon under a contract for services (Cassidy, at p.364).

30. Likewise with the school authority. It is under a duty to ensure that reasonable care is taken of pupils attending the school. It is the immaturity and inexperience of the children and their propensity for mischief that lie at the basis of the special responsibility which the law imposes on a school authority to take care for their safety (Introvigne, at p.755). The child's need for care and supervision is so essential that it is a necessary inference of fact from the acceptance of the child by the school authority, "that the school authority undertakes not only to employ proper staff but to give the child reasonable care", to use the words of Kitto J. in Ramsay v. Larsen (at p 28).

31. As we have already seen, Thomson v. Cremin supports the view that the invitor's duty to his invitee is non-delegable in the sense that it is no answer that the invitor has engaged a competent independent contractor to remedy the hidden defect. See also Vial v. Housing Commission of N.S.W. (1976) 1 NSWLR 388, at pp 394-396. But cf. Voli v. Inglewood Shire Council (1963) 110 CLR 74, esp. at p 98; Davie, at p 644; Lyons v. Nicholls (1958) NZLR 409. If the invitor's duty is non-delegable it is because the invitor's invitation to the invitee to enter his premises imposes upon the invitor a duty to see that reasonable care and skill is exercised in making the premises safe.

32. The principal objection to the concept of personal duty is that it departs from the basic principles of liability in negligence by substituting for the duty to take reasonable care a more stringent duty, a duty to ensure that reasonable care is taken. The failure in Wilsons' Case to acknowledge this departure and to advance a convincing reason for fixing the employer with a more stringent duty made the reasoning in Wilsons' Case vulnerable to criticism. However, when we look to the classes of case in which the existence of a non-delegable duty has been recognized, it appears that there is some element in the relationship between the parties that makes it appropriate to impose on the defendant a duty to ensure that reasonable care and skill is taken for the safety of the persons to whom the duty is owed. As I said in Introvigne (at p.755):

"... the law has, for various reasons imposed a special duty on persons in certain situations to take particular precautions for the safety of others ...".

That statement should be expanded by adding a reference to safeguarding or protecting the property of other persons, a matter which did not present itself for consideration in Introvigne.

33. 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 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 recognized in the other cases which I have discussed, such as Dalton v. Angus, may rest on rather different foundations which have no relevance for the present case.

34. The foreseeability of injury is not in itself enough to generate the special duty. Before the special duty arises there must exist in the relationship between the parties an element of the kind already discussed.

35. That such an element exists in the relationship of employment is beyond serious challenge. The employer has the exclusive responsibility for the safety of the appliances, the premises and the system of work to which he subjects his employee and the employee has no choice but to accept and rely on the employer's provision and judgment in relation to these matters. The consequence is that in these relevant respects the employee's safety is in the hands of the employer; it is his responsibility. The employee can reasonably expect therefore that reasonable care and skill will be taken. In the case of the employer there is no unfairness in imposing on him a non-delegable duty; it is reasonable that he should bear liability for the negligence of his independent contractors in devising a safe system of work. If he requires his employee to work according to an unsafe system he should bear the consequences. Indeed, there is a stronger case for concluding that the employer's duty is non-delegable than there is for reaching the same conclusion in the case of the invitor. It is not immediately obvious that it is appropriate to impose liability on the occupier of a house for injury caused to an invitee by the negligence of an independent contractor, e.g., in making or repairing an electrical installation carelessly, when it is reasonable for the occupier to rely on the reputed competence of the contractor in a field in which the occupier has no expert knowledge. But this is by the way, for it is not an issue that needs to be decided in the present case.

36. In the result the respondent's duty to provide a safe system of work was non-delegable and the respondent was liable for any negligence on the part of its independent contractor in failing to adopt a safe system of work. The risk of injury from a falling rod or pin to an employee positioned under the crane during the extension procedure was slight, but nevertheless obvious. Avoidance of the risk called for the adoption of a procedure, even an instruction forbidding any employee assisting Clissold from taking up a position under the jib of the crane during the extension operation. If control of this operation was in the hands of Clissold then it was for him to adopt a safe system of work. The respondent is liable for his neglect, not on a vicarious basis, but because Clissold's omission to adopt a safe system is a breach of the respondent's duty. Although Clissold was guilty of casual negligence, as it is often called, in failing to keep an adequate look-out and to give warning, his omissions in these respects do not inhibit the conclusion that there was a breach of the respondent's duty to provide a safe system of work.

37. Even if I had not concluded that the respondent was liable for the default of the independent contractor in failing to prescribe and adopt a safe system on the footing that the duty to provide a safe system was non-delegable, I should have concluded that the respondent was in breach of its duty on the ground that the appellant's foreman failed to direct him not to be under the jib of the crane during the extension procedure. Although the primary judge found that the appellant was acting under the control of Clissold, Clissold's control of the appellant was not such as to exclude the giving of directions to the appellant by his foreman. The respondent was making its employees available to assist Clissold in extending the crane. In that operation Clissold was giving instructions to the appellant, but the giving of these instructions did not relieve the respondent through its foreman of taking reasonable steps to protect the appellant from injury and to that end of prescribing and insisting on a safe system of work. It was not a case in which the employer had placed his employee under the control of a third party in circumstances in which the employer ceased to have any power or opportunity to give directions as to the manner in which the work in question was to be undertaken.

38. The employer's duty at common law to take reasonable care for the safety of his employee extends to giving him directions in the performance of his work where directions might reasonably be thought to be required to secure him from danger of injury (O'Connor v. Commissioner for Government Transport (1954) 100 CLR 225, at p 229). The giving of such directions remained within the ordinary prerogative of the respondent despite the engagement of the independent contractor (Jones v. Tivoli Collieries Pty. Ltd. and Noyes Bros Pty. Ltd. (1966) QdR 140, at p 148).

39. The appeal should be allowed and the case remitted to the Full Court to enable it to deal with the issue of damages which was raised by the respondent on its appeal to the Full Court but not determined by that Court in view of the conclusion which it reached on the issue of liability.

MURPHY J. Workers employed by the respondent Authority in construction work were required or allowed to work in a part of the Authority's railway yards where from time to time a push-rod would, without warning, be dropped from a height above them by a worker employed by an independent contractor. The plaintiff worker, an employee of the respondent, was injured by the falling push-rod when it was dropped without warning.

2. It is well-settled that an employer has a personal, non-delegable duty, to take all reasonable care to institute a safe system of work and to ensure that it is carried out, so that his employees will not be exposed to unnecessary risk (Wilsons &Clyde Coal Co. v. English (1938) AC 57).

3. It was conceded, correctly, that a reasonably safe system of work would at least require a warning to be given when the push-rod was about to be dropped. The Authority's failure to take care to see that a reasonably safe system was instituted and carried out in this respect renders it liable in negligence. There were other precautions which should have been taken and other warnings which should have been given. There was nothing resembling a safe system. That is enough to dispose of this appeal.

4. Even if the injury were caused by a casual act or omission of an independent contractor or its employee, the developing organization test would provide another basis of liability in the Authority. The test arises out of the modern structure of industry, including services such as health and education. It is designed to meet the realities of industrial life, particularly the fact that industry or parts of industry are carried out by undertakings and authorities such as factories, hospitals, schools, and mining corporations.

5. For example, in Australia, construction work is commonly carried out by a private or public builder who in a practical sense undertakes the construction work generally and is in charge of the site. The builder may engage employees and contractors to carry out various subordinate parts of the work. The contractors often employ sub-contractors to do it. The contractors and sub-contractors are often workers or gangs of workers who are not financially strong, and who may not be insured. Suppose an independent contractor by an act of casual negligence in handling explosives on a construction site caused great personal injury. The organization test would not only hold liable the negligent contractor, but also hold the builder vicariously liable (see Fleming, The Law of Torts 6th Ed. (1983), pp.344-345).

6. The organization test has been applied to schools (Commonwealth v. Introvigne (1982) 41 ALR 577) and hospitals, and should be applied to undertakings such as ship building, railway operations, mining and the construction industry (but not domestic operations, see Stoneman v. Lyons (1975) 133 CLR 550).

7. In the development of the common law of negligence there are sound policy reasons for attaching, to those conducting such undertakings, liability (not only to their own employees but at least to all workers engaged on the site or the undertaking) for the negligence of all workers (whether employees of the undertaking or not).

8. The appeal should be allowed.

BRENNAN J. The relevant facts which give rise to the questions of law in this case are set out in the judgment of Mason J. whose statement of them I gratefully adopt. Those facts invite consideration of two bases on which an employer may be held liable to an employee in negligence: the liability of an employer if reasonable care is not exercised to establish and maintain a safe system of work and the employer's vicarious liability for the negligent acts or omissions of a third party.

2. In Hamilton v. Nuroof (W.A.) Pty.Ltd. (1956) 96 CLR 18, Dixon C.J. and Kitto J. observed (at p 25) that, the defence of common employment having been abolished, there is no point in the distinction between these two bases when the third party is another of the employer's servants. The distinction was critical when the doctrine of common employment excluded vicarious liability for casual acts of negligence of the employee's fellow servant, but did not exclude liability for a failure to discharge a duty of care resting upon an employer personally. The distinction may still be critical when an employee is injured by the negligence of a fellow workman who is not a fellow servant. In such a case, the employer is liable for damage caused by breach of any duty resting upon him personally, but the general rule is that he is not vicariously liable for the casual acts of negligence of the workman who is not his servant. In the present case, where the appellant was injured when a rod was negligently dropped on him by Clissold, an independent contractor's employee, the two bases of liability must be separately considered: first, is the respondent vicariously liable for Clissold's negligence though Clissold was not his servant? and secondly, was the appellant's injury caused by a failure to discharge the duty of care resting on the respondent personally?

Vicarious liability

3. The general rule was 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 p 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 has not directly authorized 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."

4. A defendant is not vicariously liable for a tortious act done by a workman who is not his servant if the defendant has no authority to control the doing of the act and does not directly authorize it. It makes no difference that the tortious act is done in performing work for the defendant's benefit. Prima facie, the workman's employer is vicariously liable for the tortious act, but if he is able to transfer and transfers authority to control the doing of the act to the defendant, the defendant is liable. It has been said that the nature and extent of the control transferred to the defendant or retained by the employer determines whether there is a shift of liability from the employer to the defendant: see McDonald v. The Commonwealth (1946) 46 SR (N.S.W.) 129, at p 132; Karuppan Bhoomidas v. Port of Singapore Authority (1978) 1 WLR 189. Where the defendant's vicarious liability depends upon his authority to control the doing of the tortious act that must be so, for he could have no such authority if it has not been transferred to him by the employer. But it does not follow that a defendant, lacking the relevant authority, can never be vicariously liable: liability can arise from a direct authorization of the tortious act. 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 some circumstances, a defendant may also be vicariously liable for a negligent act or omission done or made by the driver of a vehicle who is not his servant and who has not been directly authorized to do the act or make the omission. A defendant is liable if he is the owner or bailee of the vehicle, if he appoints the driver to drive it on his behalf and if he is in the vehicle or is otherwise able to assert control over the driver: see Soblusky v. Egan (1960) 103 CLR 215, at pp 229-231. It is unnecessary to consider whether an owner's or bailee's liability is more extensive than the liability considered in that case (cf. Launchbury v. Morgans (1973) AC 127).

5. None of these foundations of vicarious liability appear in the present case. Clissold's employer was the owner of the crane which was hired to the respondent with Clissold to drive and manage it. Where a crane is let out on hire and the owner's servant is sent to drive and manage it with instructions to do the work directed by the hirer, the hirer's authority to direct what work is to be done does not ordinarily extend to an authority to control the manner of doing it. The respondent had no authority to control Clissold in his extension of the jib of the crane and neither the respondent nor its servants directly authorized Clissold to go about the extension of the jib in a particular way. Once Clissold was directed to the job in hand, it was left to him to decide how the crane should be prepared to do that job. Clissold alone decided to extend the jib of the crane and he alone determined and controlled the extension procedure. What Lord Simon said of the respondent company's liability in Mersey Docks and Harbour Board v. Coggins and Griffith (Liverpool) Ld. (1947) AC 1, at p 10, may be said of the respondent's liability in the present case:

" The respondent company, however, had no power to direct how the crane driver should work the crane. The manipulation of the controls was a matter for the driver himself. In the present case the accident happened because of the negligent way in which the crane driver worked his crane, and since the respondent company had no control over how he worked it, as distinguished from telling him what he was to do with the crane, it seems to me to follow that (the crane driver's) general employers must be liable for this negligence and not the hirers of the apparatus."

It follows that the respondent is not vicariously liable for Clissold's casual act of negligence in dropping the rod onto the plaintiff.

Breach of employer's duty of care

6. This Court has recently restated the employer's duty of care in Ferraloro v. Preston Timber Pty.Ltd. (1982) 56 ALJR 872, at p 873:

" The employer's duty, to whomsoever it falls to discharge it, is to take reasonable care to avoid exposing his employee to an unnecessary risk of injury and the employer is bound to have regard to a risk that injury may occur because of some inattention or misjudgment by the employee in performing his allotted task."

What ought reasonably to be done to avoid exposing an employee to an unnecessary risk of injury depends upon the circumstances, but the specific duty relevant in the present circumstances is stated in O'Connor v. Commissioner for Government Transport (1954) 100 CLR 225, at p 229:

" The defendant as employer was of course under a duty, by his servants and agents, to take reasonable care for the safety of the deceased by providing proper and adequate means of carrying out his work without unnecessary risk, by warning him of unusual or unexpected risks, and by instructing him in the performance of his work where instructions might reasonably be thought to be required to secure him from danger of injury."

7. The degree of care and foresight required from an employer varies with the circumstances of the case (Hamilton v. Nuroof (W.A.) Pty.Ltd., at p 25). The appellant was sent to work under or in the vicinity of the jib of the crane. There was a risk of injury to him in standing there. The appellant, who was not accustomed to the procedure of extending the jib of the crane, could and should have been told to keep away from the area where objects might be dropped from above and to keep watch for the dropping of the rod. He was given no such warnings. He could have been given those warnings by Clissold. He could have been given them by his foreman if the foreman had found out what procedure was to be followed in extending the jib and what risk there was in standing beneath it. It is immaterial to identify who ought to have given him those warnings. The failure to give the warnings meant that the duty of care resting on the employer personally was not discharged.

8. I would allow the appeal and remit the case to the Full Court as Mason J. proposes.

DEANE J. I agree with the judgment of Mason J.

2. The obligation of an employer to provide a safe system and conditions of work for an employee is not discharged by mere delegation to an independent contractor any more than it is discharged by mere delegation to an employee. It "is one of those" cases in which a person "remains liable to third parties for the consequences of the negligence of an independent contractor, just as he would be if it were his own negligence or that of his servant" (per Windeyer J. in Voli v. Inglewood Shire Council (1963) 110 CLR 74, at p 95). The employer "may bargain with the contractor that he shall perform the duty, and stipulate for an indemnity from him if it is not performed but he cannot thereby relieve himself from liability to those injured by the failure to perform it" (ibid., quoting Lord Blackburn, in Dalton v. Angus (1881) 6 App Cas 740, at p 829). The reason is that, in the context of the particular relationship of employer and employee and of the undertaking by the employee of the general obligation to work in the interests of the employer, the content of the employer's duty to take reasonable care to provide a safe system and conditions of work for the employee is not discharged by delegation unless the delegate, be he employee or independent contractor, in fact provides the reasonable care which the employer was under an obligation to bring to bear.

DAWSON J. I agree with Mason J. that the respondent was in breach of its duty of care as an employer to provide a safe system of work. The breach was the failure of the foreman employed by the respondent to direct the appellant to stay clear of the jib of the crane whilst it was being extended. The fact that directions were being given during that operation by the operator of the crane, who was an employee of the independent contractor, did not displace the duty of the respondent to take reasonable steps to avoid risk of harm to the appellant. For that reason, I would allow the appeal and remit the matter to the Full Court to deal with the issue of damages.

Orders

Appeal allowed.

Order of the Full Court of the Supreme Court of Victoria set aside in so far as it relates to the appeal to that Court by the present respondent.

Order that the respondent pay the costs of the appellant in this Court and in the Supreme Court of Victoria.

Remit the matter to the Full Court of the Supreme Court of Victoria to proceed in accordance with the judgment of this Court.