Le Cornu v Hammill & Qual-Chem No. Scgrg-97-1025 Judgment No. S6655
[1998] SASC 6655
•6 May 1998
LE CORNU FURNITURE & CARPET CENTRE PTY LTD
v HAMMILL & QUAL-CHEM BUILDING SERVICES PTY LTD
Full Court
Coram: Matheson, Prior and Debelle JJ
Matheson J
On 1 August 1990 the first respondent, ("the plaintiff"), was employed by the second respondent, ("Qual-Chem"). He was working on an asbestos roof on premises of the appellant, ("Le Cornu"), at Scotland Road, Mile End, when portion of the roof collapsed. The plaintiff fell a distance of approximately six metres through the aperture and his injuries included a fractured skull, and a fracture of his right wrist. He sued Le Cornu and Qual-Chem in the District Court. The learned trial judge found that Le Cornu was negligent and in breach of its statutory duty. He rejected a plea that the plaintiff was guilty of contributory negligence. Le Cornu has appealed against that decision.
His Honour assessed the plaintiff’s damages as follows:-
Non economic loss
pastfuture $40,000$45,000 $85,000.00
Past loss of earning capacity $50,000.00
Future economic loss $250,000.00
Future medical expenses $5,000.00
"Beck v Farrelly" award $1,250.00
Special damages agreed (paid by Workcover) $18,350.33
Interest $3,100.00
Management fee $50,000.00
$462,700.33
Le Cornu has also appealed against his Honour’s assessment of damages for past and future loss of earning capacity, and against the award of a management fee.
His Honour also found that Qual-Chem was negligent and in breach of its statutory duty. Qual-Chem has not appealed.
The plaintiff has cross appealed. He alleges that the amounts awarded for non-economic loss, for interest thereon, for past and future loss of earning capacity and the award for gratuitous assistance, both past and future, were manifestly inadequate.
Qual-Chem issued a contribution notice against Le Cornu. Relevant to the issue of contribution was s.54 of the Workers’ Rehabilitation and Compensation Act 1986 ("the Act") which at the relevant time, and so far as is material, provided:
(1) Subject to subsection (2), no liability attaches to an employer in respect of a compensable disability arising from employment by that employer except -
(a) a liability under this Act;
or
(b) a liability at common law for non-economic loss ...
(2) and (3) ...
(4a) ...
(4b) Where -
(a) a worker suffers a compensable disability (not being a disability that arises out of the use of a motor vehicle and gives rise to a liability of a kind referred to in subsection (2));
and
(b) action is taken against a person other than the employer for damages in respect of the disability,
the other person has no right to recover contribution from the employer;
... "
On the topic of contribution, the learned judge said:
"A contribution notice was issued by the second defendant against the first. By operation of s54(4b) of The Workers Rehabilitation and Compensation Act, Le Cornu is precluded from any similar recovery against Qual-Chem.
The exercise is to a large extent academic but I am obliged to make a finding upon the contribution notice as to the extent to which it is just and equitable that the second defendant should recover contribution from the first.
In all the circumstances that there is little to separate between the respective departures from the appropriate duty of care of each of the two defendants and I would determine that the second should recover from the first one half of the entitlement of the plaintiff in this action."
The relevant part of his Honour’s formal judgment was worded as follows:
"IT IS THIS DAY ADJUDGED that the plaintiff have judgment against [Le Cornu] in the sum $462,700.33 (which sum includes the sum of $65,140.00 being a judgment sum jointly and severally against [Qual Chem]) and the plaintiff have judgment against the second defendant in the sum of $65,140.00 and against both defendants the costs of action of the plaintiffs to be taxed or agreed."
As far as I am aware, the transcript does not reveal how his Honour reached the figure of $65,140, but it is convenient here to state how I think he reached it. He awarded $85,000 for non-economic loss. WorkCover made two payments totalling $22,610 under s43 of the Act. Deducting those payments from $85,000, one gets a figure of $62,390. To this must be added the award of $2,750 for interest.
His Honour found that the premises of Le Cornu at Scotland Road, Mile End, were occupied partially as a warehouse of furniture and furnishings and partially for the purpose of assembly of furniture.
In its case against Le Cornu, the plaintiff sought to rely upon s23 of the Occupational Health, Safety and Welfare Act which provides, inter alia, that the occupier of a workplace shall ensure, so far as is reasonably practicable, that it is maintained in a safe condition. The plaintiff also claimed that Le Cornu was in breach of Regulations 5(1) and 14 of the Occupational Health, Safety and Welfare (Commercial Safety) Regulations 1987, and Regulations 8 and 25 of the Occupational Health, Safety and Welfare (Industrial Safety) Regulations 1987.
It is sufficient if I set out Regulations 5(1) and 14 of the (Commercial Safety) Regulations:
(1) The occupier of commercial premises must -
(a) do all things necessary to ensure compliance with the Act and these regulations;
(b) take all reasonable precautions to ensure the health and safety of any person who works in or about the premises.
...
14.(1) Where the roof of a building used as commercial premises is constructed of fragile material, the occupier of premises must -
(a) fix to the building, adjacent to the places of access to the roof, prominent and permanent legible warning notices in English stating the danger of being on or moving on such roofing without crawling boards;
and
(b) provide adequate and safe walkways or crawling boards of ample dimensions for the use of any person who is required to be on or move on that roof.
A person required to be on or move on a roof or any part of a roof made of fragile material must use the walkways or crawling boards provided.
The notice required to be exhibited in accordance with subregulation (1) of this regulation -
(a) must be constructed of sheet metal or other approved material not less than 600 mm by 450 mm and of sufficient thickness to give suitable rigidity for the overall size;
(b) must display the words
DANGER
FRAGILE ROOFING
USE CRAWL BOARDS’;
and
(c) must comply with the appropriate requirements of Australian Standard 1319 ‘Safety Signs for the Occupational Environment’ for design, size of lettering and colours to be used.
(4) and (5) ... " (My emphasis)
"Commercial premises" are defined in Regulation 3(1), and I do not think it is disputed that the Mile End premises were commercial premises as so defined. Crawling or crawl boards are not defined.
As against Qual-Chem, the plaintiff sought to rely upon s19 of the Occupational Health, Safety and Welfare Act which provides inter alia, that an employer shall provide and maintain, so far as is reasonably practicable, a safe working environment.
The learned trial judge most painstakingly described the roof in question, but having regard to the view that I have formed, I do not think it necessary to say more than what, in fact, is not disputed, that it was a fragile and dangerous so-called "sawtooth" roof.
On the day of the accident the bulk of the work which Qual-Chem had contracted to do had been completed. A small section of guttering was left to be coated with their product, and it was necessary to clean up debris left by previous Qual-Chem workers. The plaintiff had only been employed by Qual-Chem the previous day as a casual worker, and his first job was actually the job which led to his fall and his injuries.
He attended at the premises with another employee of Qual-Chem, namely, Mr J Wibberley. They took with them an aluminium ladder and a wooden ladder to the bottom of which was attached a wooden slat about three feet long.
His Honour summarised the plaintiff’s version of what took place in the following passage:
" ... the two men [extended] the aluminium ladder, and [placed] it against the northern side of the cantilever roof which I have described. Wibberley climbed the ladder onto the cantilever. The wooden ladder was brought by rope up onto the cantilever roof by Wibberley with the plaintiff guiding it from the bottom. The plaintiff then climbed to the cantilever roof. A wooden ladder was placed against the facade ... between the second and third peaks of the roof. The plaintiff was not clear as to whether the ladder used to perform that manoeuvre was the wooden ladder with the foot plate or an aluminium ladder but it does not matter for the purposes of this case. The plaintiff then followed Wibberley onto the roof and they alighted on the galvanised iron sheet at that portion of the roof to which I have referred. The wooden ladder was then placed in the position where it lay on the galvanised iron sheet and the men used it to ascend the sloping portion of the roof moving towards the next apex to the south. It was the plaintiff who went first according to his evidence. Wibberley followed him to the apex and then pulled the ladder up and dropped it to the other side, the wooden plate resting on the line of nails and the top of the ladder at the apex, on the side of the vertical glazed face. Wibberley then descended the ladder and stepped into the gutter. The plaintiff followed him. The plaintiff says that Wibberley instructed him to walk along the gutter collecting empty buckets, which had been used to transport the patching material, and other rubbish, put the rubbish in the buckets and take the buckets back to where the ladder was, tie a rope to the handles, climb the ladder, pull the buckets up and lower them down into the gutter between the second and third peaks so that they could then be taken from there to the cantilever verandah and then from the verandah to the ground. He said that he was instructed by Wibberley (tr.39.2) "Just walk in the gutters, that’s it. Not to walk on the roof because it was brittle asbestos and could very well go smash.
Wibberley left the plaintiff to this task and proceeded in a westerly direction down the gutter to the task of completing application of sealing materials ...
The plaintiff collected three buckets from the gutter in which the two men were then working, took them to the ladder, a distance of probably ten to fifteen metres, tied a rope to one of the buckets, climbed the ladder, sat on the apex, pulled the bucket up, slid it down the sloping portion of the roof onto the next gutter to the north, by means of the rope, half walked and half slid down the galvanised iron sheet into that gutter, disconnected the rope from the bucket, and climbed up the corrugated iron sheeting again. He was wearing sandshoes which gave him a "fair grip". He reached the apex, climbed down the ladder, tied his rope to the second bucket, climbed to the apex, sat on it, pulled the second bucket up, and lowered it down to the next northernmost gutter as he had done on the previous occasion. He descended the corrugated iron sheeting as he had done before, [he] untied that bucket and then ascended the corrugated iron sheeting, to the apex and descended the ladder again. He remembers tying the third bucket to the rope, ascending the ladder and sitting on the apex as he had done before. That is the last thing he remembers. He estimates the time which had elapsed from his leaving the ground to climb to the roof and his last recollection was about 20 minutes."
His Honour then referred to Mr Wibberley’s version. His Honour said that he confirmed the evidence of the plaintiff as to the fixation of the wooden slat at the base of the wooden ladder on the day of the plaintiff’s fall. He confirmed the ultimate placement of the ladder on the asbestos sheeting near the purlin line. He said that he was working with his back to the plaintiff and was unaware that anything had occurred until somebody called out that the plaintiff had fallen through the roof. He looked around to see a hole in the asbestos sheeting and saw the ladder askew with the western end of the slat fixed to the bottom protruding over the hole.
His Honour said that it is was impossible to find exactly how the fall occurred. He said:
"It is possible that Mr Hammill slipped from the apex and fell to the asbestos and through it. It is possible that as he was ascending or descending it, the ladder twisted and fractured the roof, causing him to fall. Certainly the ladder was observed by Mr Wibberley and others after the accident occurred to be obscured with a portion of its plate to the west in the aperture of the asbestos sheeting. It is also possible that the ladder slipped as the plaintiff was stepping off it causing him to put his weight heavily on the asbestos sheeting to the south of the purlin line. It may simply be that after he descended the ladder he stepped onto the asbestos to the south of the purlin line and that his weight caused the asbestos to fracture, allowing him to fall through the aperture. The weight of Mr Jarratt had certainly caused the asbestos to fracture in that manner. It is possible that he stood on the asbestos sheeting to the south of the purlin line as he was tying the rope to bucket, and that the asbestos fractured and he fell. For the purposes of the case it matters little which of the alternatives actually occurred. What is plain however is that there is absolutely no evidence upon which a finding of contributory negligence could be made against the plaintiff.
The process by which the two men gained access to the gutter on which they were working is known as ‘ladder hopping’ It is acknowledged, particularly in the report of the industrial safety expert, Mr Moulds, and in the evidence of the Department of Labour and Industry Inspector Mr Taylor, that that practice is a dangerous one in any circumstance. It is particularly perilous when fragile roofs are involved. The risks of falling and of ladders slipping are obvious.
It is equally obvious that, as the Regulations provide, movement about fragile roofs should be assisted by crawl boards, the principle being that the load of weight upon the roof surfaces is distributed to minimise the risk of collapse of the roof cladding.
I make the finding, on the evidence of Mr Taylor who investigated the accident on the day it occurred, that no such mechanism, whether it be a plank or ladder laid horizontally upon the surface of the roof or especially designed mechanisms was present at the time of the fall. That conclusion is re-enforced by the evidence of Mr Wibberley ...
There was a deal of evidence given as to the ideal situation for working in hazardous conditions in fragile roofs. Mr Taylor spoke at length about industry standards at the relevant time. Mr Moulds expressed his expert opinion as to the proper provision of mechanism for moving about on fragile roofs. His opinion was that what was provided was insufficient. So was Mr Taylor’s. Indeed he was scathing about Qual-Chem’s approach to this task. There was a great deal of evidence about the development of safe work systems involving moveable scaffolding, ladders, static lines, safety lines and harnesses after the plaintiff’s fall, into which Le Cornu’s entered with the Department during the course of negotiations to secure the removal of work bans which the Department placed preventing work on the roof after the fall.
I do not think that it was necessary for the provision of such elaborate equipment, although used in conjunction with proven methods of access to the roof and gutters, it would have been ideal. Such equipment was not then frequently in use anywhere in South Australia, except, I think, static lines and harnesses. However, far simpler methods were available. The provision of boards for the plaintiff, and the use of work methods which did not involve ‘roof hopping’, whilst involving some trouble to Qual-Chem, could obviously have been arranged. Direct access to the southernmost gutter could have been obtained from the outside of the building by use of a long ladder, by crane, or from the inside of the building by ‘cherry picker’ or ‘scissor hoist’ to the internal access doors. Direct access to the other gutters individually from the cantilever roof was a simple matter involving the use of ladders.
It is well established that there is a duty upon an employer to take reasonable care and foresight to avoid exposing employees to unnecessary risks and that it is a breach of that duty to disregard the likelihood of the occurrence of those risks. Hamilton v Nu-Roof (W.A.) Pty. Ltd. (1956) 96 CLR 18. That case also makes it clear that it is not necessary for the plaintiff to establish precisely how his injuries occurred, as in this case, in circumstances where the danger of a plaintiff sustaining injury was ‘both real and evident’.
Further it is quite apparent that Qual-Chem was in breach of its obligations under s.19 of The Occupational Health and Safety Act, ..."
Although Qual-Chem has not appealed, I deemed it desirable to set out the reasons why his Honour inculpated that company, especially as those reasons were based on findings of fact that were also relevant to the plaintiff’s case against Le Cornu.
His Honour summed up his finding against Le Cornu in the following passage:
"[Le Cornu] was negligent in my view at Common Law, in that it did not ensure the safety of the plaintiff by the provision of the simplest mechanisms then accepted by the Department of Labour and Industry that is, crawl boards which would have significantly reduced any risk or by providing easy means of access to the several gutters by the means readily available to it, i.e. cherry pickers and lifts which it had on the premises could have been used to provide safe access to the gutters through the internal doors. Indeed other equipment could have been provided to provide safe access to each of the gutters by other means. I can find nothing to suggest that the appointment of the second defendant can be seen to satisfy any of the statutory provisions.
The second simple thing which the first defendant could have done was to employ a firm whose specialty was doing precisely the sort of work which the second defendant was employed to do, for example, whose specialised occupation was roof repair or roof fixing or plumbing with respect to fragile and dangerous roofs. ... After the tragic death of Mr Jarrett extreme caution was needed."
I have also reached the conclusion that the plaintiff was entitled to succeed against Le Cornu. I agree with counsel that dicta in cases such as Stevens v Brodribb Sawmilling Co Ltd (1986) 160 CLR 16 assist the plaintiff and that a breach of Le Cornu’s common law duty of care was established. In that case a sawmiller (Brodribb), engaged truckers to remove the timber from the logging area to the mill. The whole court held that even though the truckers were not employees of the Brodribb, Brodribb owed a general common law duty of care to them. Ultimately, a majority of the court found that Brodribb was not in breach of that duty. At 30-31, Mason J (as he then was) said:
" The final questions are whether Brodribb was under a general common law duty of care and, if so, whether it was a personal (non-delegable) duty. In this case the first question is to be determined by reference to the elements of reasonable foreseeability and proximity discussed in the judgment of Deane J in Jaensch v Coffey (1984) 155 C.L.R. 549, at pp.586-582. It is plain that Brodribb could reasonably foresee that there was a real risk that a worker carrying out Stevens’ duties would sustain an injury of the kind that occurred. It is equally plain that a relationship of proximity existed between Brodribb and the individual worker sufficient to ground a common law duty of care. Subject to the ultimate control of the Commission, Brodribb had an exclusive licence to cut and take away logs from the logging areas. It allocated fellers, sniggers and truck drivers to specified parts in those logging areas; it required them to work together in teams in an intricate process of extracting timber from the forest and delivering it to the sawmill; and it monitored and co-ordinated the operations through its bush boss. While individual fellers, sniggers and truck drivers may have been responsible for their own safety with regard to carrying out their own functions, they had little choice but to rely on the care and skill of Brodribb in the arrangements which it made for the disposition of the work, and on the care and skill of the persons engaged by Brodribb in the execution of the work.
The interdependence of the activities carried out in the forest, the need for co-ordination by Brodribb of those activities and the distinct risk of personal injury to those engaged in the operations, called for the prescription and provision of a safe system by Brodribb. Omission to prescribe and provide such a system would expose the workers to an obvious risk of injury. Although the obligation to provide a safe system of work has been regarded as one attaching to an employer, there is no reason why it should be so confined. If an entrepreneur engages independent contractors to do work which might as readily be done by employees in circumstances where there is a risk to them of injury arising from the nature of the work and where there is a need for him to give directions as to when and where the work is to be done and to co-ordinate the various activities, he has an obligation to prescribe a safe system of work. The fact that they are not employees, or that he does not retain a right to control them in the manner in which they carry out their work, should not affect the existence of an obligation to prescribe a safe system. Brodribb’s ability to prescribe such a system was not affected by its inability to direct the contractors as to how they should operate their machines."
Mason J then considered whether Brodribb had breached the duty, and concluded that it had not. He continued at 32-33:
" Finally, it remains to consider whether the duty which Brodribb owed to Stevens was non-delegable. In Kondis v State Transport Authority (1984) 154 CLR 672 I considered that the law sometimes imposes on people a duty higher than the usual common law duty to take reasonable care. This higher duty is a duty to ensure that reasonable care is taken and it is said to be non-delegable because a principal who engages another to perform work will be liable for the negligence of the person so engaged, notwithstanding that he exercised reasonable care in the selection of the contractor. I also stated (at p687), that a non-delegable duty will arise where a person ‘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’. If Brodribb’s duty in the present case is non-delegable, it necessarily follows that it is liable for the admitted negligence of Gray. However, the facts in the present case are essentially different from those in Kondis in that there is not the requisite relationship between the parties such as would be required to impute liability to Brodribb for the casual negligence of Gray in freeing the log without satisfying himself that Stevens was in a safe position. In Kondis the crane driver assumed the control or supervision of the labourer who was injured, control or supervision which was ordinarily exercised by the employer (at pp677-678). Here, Gray had not in any sense assumed control or supervision of Stevens during the loading operation. And, as I have found, Brodribb did not exercise control of, or retain a right to control or supervise, the loading operation. In these circumstances it can scarcely be suggested that Stevens could reasonably expect that Brodribb would see to it that due care was exercised in the loading operation by Gray. Indeed he probably would have been surprised at the suggestion that Brodribb should have done so."
A 47-48 Brennan J, as he then was, said:
" An entrepreneur who organizes an activity involving a risk of injury to those engaged in it is under a duty to use reasonable care in organizing the activity to avoid or minimize that risk, and that duty is imposed whether or not the entrepreneur is under a further duty of care to servants employed by him to carry out that activity. The entrepreneur’s duty arises simply because he is creating the risk (Sutherland Shire Council v Heyman (1985) 157 C.L.R. 424 at p479), and his duty is more limited than the duty owed by an employer to an employee. The duty to use reasonable care in organizing an activity does not import a duty to avoid any risk of injury; it imports a duty to use reasonable care to avoid unnecessary risks of injury and to minimize other risks of injury. It does not import a duty to retain control of working systems if it is reasonable to engage the services of independent contractors who are competent themselves to control their system of work without supervision by the entrepreneur. The circumstances may make it necessary for the entrepreneur to retain and exercise a supervisory power or to prescribe the respective areas of responsibility of independent contractors if confusion about those areas involves a risk of injury."
In the case at bar I stress the following findings of fact. Asbestos roofs are notoriously fragile, as Le Cornu well knew. One of its employees named Jarrett had fallen through the roof in question on 12 December 1988 and been killed. Thereafter Le Cornu did not permit its own employees to go on the roof. Le Cornu was prosecuted for failing to provide a safe working environment, and was actually convicted and fined a substantial amount ten days prior to the plaintiff’s fall. Qual-Chem was not a firm qualified by experience or otherwise in working on fragile roofs, and his Honour found that there was no evidence of any enquiry by Le Cornu as to Qual-Chem’s expertise in such work. No crawl boards or safety equipment were present on the roof at the time of the plaintiff’s fall. Employees of Le Cornu were on the Scotland Road premises at the time. In those circumstances, I would find Le Cornu owed a duty to the plaintiff, and that it was clearly in breach thereof.
Next, I would hold that Le Cornu was in breach of its statutory duty. I stress that Regulation 5(1)(b) requires an occupier to take all reasonable precautions to ensure the health and safety of any person who works in or about the premises. I also refer to Regulation 14. I have no doubt that the words "any person" are not limited to Le Cornu’s employees, and I have no doubt that the regulations involve "a correlative private right" (see O’Connor v Bray (1937) 56 CLR 464 at 477-478; Australian Iron and Steel v Ryan (1956) 97 CLR 89 at 98 and John Pfeiffer Pty Ltd v Fanny (1981) 148 CLR 218 at 231).
Counsel for both respondents also articulated their case against Le Cornu at common law in an alternative way. They argued that Le Cornu had in all the circumstances that I have mentioned a non delegable duty of care to the plaintiff, that it was in breach thereof and that the breach was causative.
The court was referred to many cases, but an adequate starting point for consideration of this submission is the majority judgment in Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520. I do not need to refer to the facts. At 550-551 the majority judges (Mason CJ, Deane, Dawson, Toohy and Gaudron JJ) said:
" It has long been recognised that there are certain categories of case in which a duty to take reasonable care to avoid a foreseeable risk of injury to another will not be discharged merely by the employment of a qualified and ostensibly competent independent contractor. In those categories of case, the nature of the relationship of proximity gives rise to a duty of care of a special and ‘more stringent’ kind, namely a ‘duty to ensure that reasonable care is taken’ (see Kondis v State Transport Authority (1984) 154 CLR 672 at p.686). Put differently, the requirement of reasonable care in those categories of case extends to seeing that care is taken".
Their Honours referred to the statement of Lord Blackburn in Hughes v Percival (1883) 8 App Cas 443 at 446 and went on:
" In Kondis v. State Transport Authority (1984) 154 CLR at pp679-687; and see also, Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR at p44, per Wilson and Dawson JJ, in a judgment with which Deane J and Dawson J agreed, Mason J identified some of the principal categories of case in which the duty to take reasonable care under the ordinary law of negligence is non-delegable in that sense: adjoining owners of land in relation to work threatening support or common walls; master and servant in relation to a safe system of work; hospital and patient; school authority and pupil; and (arguably), occupier and invitee. In most, though conceivably not all, of such categories of case, the common ‘element in the relationship between the parties which generates [the] special responsibility or duty to see that care is taken’ is that ‘the person on whom [the duty] 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’ (Kondis v State Transport Authority (1984) 154 CLR at p687; see also, Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR at pp31,44-46. It will be convenient to refer to that common element as ‘the central element of control’. Viewed from the perspective of the person to whom the duty is owed, the relationship of proximity giving rise to the non-delegable duty of care in such cases is marked by special dependence or vulnerability on the part of that person (The Commonwealth v Introvigne (1982) 150 CLR 258 at p271, per Mason J)."
I also refer to Northern Sandblasting Pty Ltd v Harris (1977) 188 CLR 313. The case concerned the liability of a landlord to a child of its tenant who was electrocuted. Brennan CJ, Toohey, Gaudron and McHughJJ (Dawson, Gummow and Kirby JJ dissenting) held that in the circumstances the landlord was liable for breach of a duty of care. At pp331-333, Brennan CJ said:
" 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 problem is not so much to classify a duty as delegable or non-delegable as to identify the content of the duty. However, there are some categories of relationship that give rise to a duty to perform certain tasks that cannot be discharged merely by employing an independent contractor to perform them. As the majority judgment in Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 550, per Mason CJ, Deane, Dawson, Toohey and Gaudron JJ, observed:
‘It has long been recognised that there are certain categories of case in which a duty to take reasonable care to avoid a foreseeable risk of injury to another will not be discharged merely by the employment of a qualified and ostensibly competent independent contractor.’
Thus the ‘non-delegable’ duty of an employer was stated by this Court in Ferraloro v Preston Timber Pty Ltd (1982) 56 ALJR 872 at 873; 42 ALR 627 at 629, in these terms:
‘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.’ (Emphasis added.)
The question whether a defendant who employs an independent contractor to perform a given task is liable for a breach of the defendant’s own duty in the event of negligence on the part of the independent contractor in performing the task is not answered by pointing to the independent contractor’s negligence (see The Commonwealth v Introvigne (1982) 150 CLR 258 at 279). The independent contractor’s negligence is material only in showing the non-discharge of any duty that may have been imposed on the defendant. The basic question is whether any and what personal duty was imposed upon the defendant in the circumstances of the case. Apart from well-established relationships that give rise to non-delegable duties (Kondis v State Transport Authority (1984) 154 CLR 672 at 685-687), 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. Mason J essayed a definition of the material relationships that would give rise to a non-delegable duty in Kondis v State Transport Authority (1984) 154 CLR 672 at 687:
‘[T]he 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.’
In cases where this special duty is imposed on a person in relation to a particular task, that person is under a duty not only to use reasonable care but to ensure that reasonable care is used by any independent contractor whom he employs to perform that task (Hughes v Percival (1883) 8 App Cas 443 at 446). Moreover, if the task which an independent contractor is employed to perform carries an inherent risk of damage to the person or property of another and the risk eventuates and causes such damage, the employer may be liable even though the independent contractor exercised reasonable care in doing what he was employed to do, because the employer authorised the running of the risk and the employer may be in breach of his own duty for failing to take the necessary steps to avoid the risk which he authorised. In Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 580, following Stephen J in Stoneman v Lyons (1975) 133 CLR 550 at 564, I noted that the employer of an independent contractor would be personally liable:
‘if the risk of damage arises from the way in which the work will necessarily be done or from the way in which the employer expects that it will be done (as in Black v Christchurch Finance Co [1894] AC 48 or McInnes v Wardle (1931) 45 CLR 548), for in each of those situations the incurring of the risk is authorised by the employer. But the employer is not liable merely because it is foreseeable that the independent contractor might, on his own initiative, adopt a careless way of doing the work. If liability were imposed on an employer in that situation, the employer would become a virtual guarantor of the independent contractor’s carefulness.’
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."
At pp362-363 Gaudron J said:
" Subject to a qualification to which reference will shortly be made, the matters to which I have referred compel the conclusion that the duty owed by occupiers and landlords with respect to electrical installations and electrical defects is a duty to engage a competent electrician and not a non-delegable duty to ensure that the electrician exercises care and skill. The qualification is that different considerations apply in a case in which an occupier or landlord engages an electrician to carry out work on premises on which there are dangerous or potentially dangerous activities or substances. Depending on the nature of those activities or substances, the carrying out of electrical work may, in the circumstances, constitute a special danger such that there is a special relationship of proximity, characterised by a central element of control, on the one hand, and special dependence or vulnerability on the other, giving rise to a non-delegable duty of the kind recognised in Burnie Port Authority (1994) 179 CLR 520 at 551-552."
At p369 McHugh J said:
" When all relevant factors are considered, the proper conclusion is that the landlord owed the plaintiff a personal, non-delegable duty of care because he undertook to have an electrical stove repaired in circumstances where the plaintiff and her parents might reasonably expect that due care would be exercised in repairing the stove. The present case cannot persuasively be distinguished from the holding in Burnie Port Authority that a landowner who allows a dangerous substance to be brought onto the land or who allows a dangerous activity to be performed on the land owes a non-delegable duty of care to persons who come on the land. Nor can it be persuasively distinguished from the holding of the House of Lords in Thomson v Cremin [1956] 1 WLR 103; [1953] 2 All ER 1185, that the owner of a ship who invites a stevedore’s labourer to work on the ship owes a personal duty of care to that person and is liable for the negligence of a firm of shipwrights in fixing fittings to the ship. That being so, the landlord’s duty to the plaintiff in this case was not merely a duty to take reasonable care; it was a duty to ensure that reasonable care
for her safety was taken (Kondis (1984) 154 CLR 672 at 686),
It is not strictly necessary for this court to rule on this submission, but I would also be prepared to uphold it, having regard to the concatenation of circumstances referred to above. Those circumstances included the fact that Le Cornu retained control of their premises and the fact that the plaintiff was clearly vulnerable to the risk of falling from Le Cornu’s roof. (I add a reference to Professor Fleming’s criticism of this "duty" in "The Law of Torts", 9th Edn p434).
It is convenient to state here that I agree with the learned judge that there was no evidence upon which a finding of contributory negligence could be made.
I would dismiss Le Cornu’s appeal on the issue of liability.
Le Cornu in its notice of appeal challenged his Honour’s decision to apportion liability equally between it and Qual-Chem, but the court was advised that if it upheld the trial judge’s finding against Le Cornu, Le Cornu no longer challenged the apportionment. In the circumstances, I express no opinion on that matter.
Damages
Before considering the various damages awards made by his Honour, it is necessary to look at the plaintiff’s pre-accident personality and his pre-accident employment history, to both of which matters his Honour directed some attention. As to the former, his Honour said:
" The impression which I have gained of him so far as his pre-accident condition was concerned was that he was a headstrong and erratic young man, likely to have frequent changes of jobs as a result of a personality which might be described as reckless, abrasive self assertive of what he perceived to be his rights. He was likely by his own abrasion (sic) to get himself into situations in which, when he gained employment, it was at risk and likely to be short lived. Those negative characteristics can be seen to have been developing from his school reports after he left school and home. I have not yet mentioned that during a period of about four months before the fall he developed a full sexual relationship with a fourteen year old girl, which must be considered (to say the very least) inappropriate, but which he carried on despite the disapproval of both sets of parents. I make the finding that he was certainly a man who had personality problems before the fall."
Later his Honour said, "he was a man liable to interpersonal difficulties and to a substantial period of unemployment prior to the injury".
In reaching those conclusions, his Honour was particularly influenced by the plaintiff’s general practitioner, Dr Cormie, who had known him since he was a young child and had been his general practitioner for a period of sixteen years. Mr Frayne, counsel for the plaintiff, challenged his Honour’s findings, but in my opinion they were clearly open to him on the evidence.
As to his past history of employment, his Honour said:
"He had left school at the age of 17. He had spent some time as a cadet volunteer with State Emergency Service and had done some basic training in rescue which included abseiling, rock climbing and use of various techniques for lowering people off cliffs and so forth. ... He had worked as a pizza delivery driver after leaving school and given assistance to his mother in her work as an office cleaner both before and after his work with the pizza organisation. He did work as a storeman and delivery driver for Repco for about two weeks but was dismissed for mis-use of his delivery vehicle because in two weeks he wore out a new clutch in it. He worked at a service station as a console operator for a couple of months. He went to Kensington Park TAFE to further his studies in Matriculation English and in August l988 he started working again as a part-time pizza driver. He was dismissed for dangerous driving. He then did some casual paving work for a couple of weeks. He then assisted a neighbour of his mother, Mr. Graham Olds, in fitting skylights and that included a couple of domestic jobs and a major job at Coles at Newton. He was Mr Olds’ offsider for one to two weeks. That involved working at heights of about 30 feet with the use of a scaffold and the roofing material there was ribbed flat steel. (page 18.) He then worked as a labourer for a garden landscaper, as a driver for a chicken shop, as a barman at Jules Bar in the city during the Grand Prix in l989 and as a kitchen hand in the Terrace Hotel for a period of a few months. He was dismissed from that for what appears to be insubordination, wanting to take a meal break at an unauthorised time. He was unemployed for another couple of months and then was told by his father of an opportunity for employment with [Qual-Chem]."
There is no real dispute as to the injuries the plaintiff received or as to their subsequent treatment or prognosis. He was admitted to the Royal Adelaide Hospital after his fall. He sustained a moderately serious head injury, involving an extradural haematoma in the right frontal region and a left parietal fracture. He also sustained a fracture of the right wrist. Upon recovering consciousness, he had double vision. He was transferred to the Julia Farr Centre on 8 August and remained there until 7 September 1990.
He was treated for the double vision with an eye patch for nearly one year. On the 17 June 1991 Dr J L Crompton performed, under general anaesthetic, a resection of his left superior/muscle. In a report dated 6 March 1995 Mr Crompton said that the plaintiff had a ten per cent permanent disability of one eye.
The plaintiff’s main problems have been, and are, the sequelae of his head injury. He was still complaining of headaches at the trial. His Honour found that the plaintiff had suffered much pain and discomfort during his rehabilitation. There has been some cognitive impairment, resulting in an inability to work, an inability to drive, difficulties with relationships, an inability to handle money, a marked personality change making him over confident and unrealistic in his expectation, inappropriate in his conduct and prone to a fiery temper. The neurosurgeon, Mr North, gave evidence that there was a ten per cent risk of epilepsy, the risk not being sufficient for the prescription of anti-convulsant medication. Many of the medical witnesses called expressed an opinion as to the plaintiff’s loss. Dr Ravindran, Director of the South Australian Head Injury Service, assessed his permanent residual disability in response to his intellectual capacity at about fifteen per cent. Mr North, in his report of the 30 November 1994, said that he had a thirty give per cent loss of total bodily function. A psychologist, Anthony Walsh, said that his disability was "twenty five per cent total and incurable loss of intellectual capacity resulting from damage to the brain. A clinical psychologist, Mr Graham Quinton, in a report dated 10 May 1994, estimated a significant loss of cognitive and intellectual capacity resulting from brain dysfunction due to the accident which he expressed as a thirty per cent loss. The plaintiff’s general practitioner, Dr Cormie, said that the plaintiff has lost about a quarter of his pre-accident capacity both physically and psychologically.
Personally, I have some reservation about opinions as to percentage losses, especially where the witnesses are not focusing on the same losses, but it is clear that this plaintiff’s losses, however they be described, were substantial. I note that the learned judge was especially impressed by Dr Cormie’s opinions.
It must be acknowledged that the assessments of both the plaintiff’s non-economic and economic loss in this case were extremely difficult, having regard to his pre-accident personality and employment history.
His Honour awarded $50,000 for past loss of earning capacity. He said:
" Because of the casual nature of his employment, his work history, and the various findings as to his pre-accident earning capacity, the plaintiff’s pre-trial economic losses should, in my view, be assessed as general damages. The period between injury and judgment approximately is six years and six months. Using the Award figures and the income tax tables as a guide, and adopting the broad approach I have followed, I assess the plaintiff (sic) past loss of earning capacity at $50,000."
His Honour was referring to the Caretakers and Cleaners Award under which the plaintiff had been working shortly prior to his fall. At the date of the hearing it provided for a salary of $20,058 per annum gross for an unskilled worker. It appears that the plaintiff had virtually not worked for six years and six months. I acknowledge that there were several periods during which he undertook work experience and he did have a short period of employment that proved unsatisfactory at the Gourmet Pizza House between 16 January and 14 February 1996, but using the Award as a guide, it would appear then that the most he could have been awarded for past loss of earning capacity was roughly $130,000. For the reasons already discussed, that figure had to be substantially discounted, but with respect I think his Honour’s figure was manifestly too low. He was also in error in referring to income tax tables, and presumably then making a further discount (see Fox v Wood (1981) 148 CLR 43). As at 13 November 1995 he had already received $83,770.06 for income maintenance under the Act. His Honour’s assessment was delivered on 21 February 1997. I would increase the award for past loss of earning capacity to $90,000.
I turn now to the assessment for future loss of earning capacity. His Honour said:
"... I think it probable for the future that he is unlikely to find it easy to obtain work. He will have the capacity to do some work but is likely to lose his employment easily and find it difficult to regain it. I cannot come to the conclusion that he is now totally unemployable, but I think that he is substantially so.
As an example, towards the latter stage of the trial with the financial assistance of Workcover (sic) he obtained work as a kitchen hand and general assistant in a pizza business run by a relative. Despite family ties there was, on my finding, an abrasive relationship between the plaintiff and his employer which focussed around injustices which the plaintiff perceived were dealt to him. I was advised when the matter was called on again in May l996, that that employment had been terminated. I think that typifies what the future holds for the plaintiff - periods of employment lasting for months perhaps but interspersed with very lengthy periods of unemployment.
It is of course impossible to make accurate predictions for the future and the matter can only be one of assessment.
That assessment, however, must be measured against what is also an assessment of what the plaintiff’s pre-existing prospects would have been. I have mentioned his erratic employment history prior to the fall. Whilst he was a younger man then, his employment record can be categorised broadly in the same way, in my view, as it can be categorised in the future. It is noteworthy that some of his jobs were terminated as a result of abrasion between himself and his employer. His delivery job was terminated after he destroyed the almost new clutch of his delivery vehicle, in a period of two weeks."
Later however, his Honour said that he considered the plaintiff had permanently lost about thirty per cent of the capacity he had before the fall, but in the same passage of his judgment he said "I think that an allowance for adverse contingencies in the order of about thirty five to forty per cent should be considered in assessing his pre-accident earning capacity". In so far as I understand his Honour’s approach, I am disposed to think that the attempt to fix percentages in this way has led to some error.
I consider a useful starting point would have been for his Honour to attempt to assess what the plaintiff’s future loss of earning capacity would have been if in fact his earning capacity had been completely destroyed and if there had been no pre-existing personality problems. On this aspect of the case, his Honour had some assistance from reports from an accountant, Mr P J Holmes of Price Waterhouse, from the Caretakers and Cleaners Award (SA) and from Table 3A in the appendix to Luntz "Assessment of Damages" 3rd Edn p545. Mr Holmes also provided some calculations to assist in making allowance for the net present value of the benefit of an employer’s contributions to superannuation. On the assumption that the plaintiff was to retire at sixty five and remained unskilled, a figure of about $533,283 ($387,698 + $145,585) would be reached. I entirely agree with the learned judge that he had to make a substantial discount for the vicissitudes of life, especially those to which the plaintiff would be subject because of his pre-injury personality (see the useful discussion under the heading "The Eggshell Skull Rule" in Luntz (supra) at pp127-133 and in particular, Wilson v Peisley (1976) 58 ALJR 207). It is convenient to state here that I am not persuaded that Calvaresi & Rota Forma Pty Ltd v Lawson (1955) 184 LSJS 147 was wrongly decided, and consequently I agree with the trial Judge that it is necessary to look at net earnings in assessing future loss of earning capacity.
Although his Honour did not explain how he finally used the percentages he mentioned to fix the amount awarded at $250,000, I suspect the approach he adopted (supra) led him to an erroneous assessment of future loss of earning capacity. I think this was a case in which a very broad brush approach was called for. I make no apology for saying that I intuitively feel that $250,000 was too low. It would appear that the plaintiff’s intelligence was above average. He was still only twenty six at the time of assessment. I suspect his Honour really proceeded on the basis that all contingencies were adverse and that all vicissitudes were harmful (compare Wynn v New South Wales Insurance Ministerial Corporation (1995) 184 CLR 485 at 497). Whilst acknowledging that this is an area in which there could be wide differences of opinion, I would increase the award to $325,000.
As far as the awards for past and future non economic loss are concerned, I consider they are a little on the low side, but having regard to what I have said about past and future loss of earning capacity, and the need to avoid overlap (see Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 at 663), I would not disturb these awards.
Counsel for the plaintiff challenged the award of interest on the amount for past non-economic loss, and by a more precise approach than that adopted by his Honour reached a figure that was $704 more than was awarded. However, the calculation of the interest component here was complicated by payments the plaintiff had already received under the Act. Moreover, his Honour was awarding a lump sum, making it more difficult to interfere. I would not disturb his award on this aspect.
I turn now to his Honour’s award of $1,250 which he referred to as a Beck v Farrelly award (see (1975) 13 SASR 17). He did not actually say this was for the period pre judgment but it must have been. The basis for his Honour’s award was the following passage in his reasons:
"Mrs Hammill became aware of the plaintiff’s accident and visited him in hospital. It was a distressing experience for her although that does not sound in damages. She did look after him for a week after he was released from the Julia Farr Centre and needed help which was perhaps a little greater than would have been expected of a normal parent of a young man that age in dressing, transport to medical practitioners and so forth, and I think probably a small Beck and Farrelly award is justified. I shall turn to its quantum towards the end of this judgment. ...
After a week with his mother the plaintiff stayed with Mr Hammill senior and his wife for a period of about five weeks. He and his wife provided domestic assistance for him and I think that also was to a degree beyond what would normally be provided to a young man of the plaintiff’s age. I shall allow a small Beck v Farrelly allowance in this regard."
On appeal Mr Frayne focussed on the following passage in the evidence of the psychologist, Mr G Quinton:
"Q. What do you mean by long term supervision, does someone have to hold his hand every day, what do you mean.
A. Yes, I’m afraid so, that they really do have to hold his hand every day.
Q. So this man couldn’t live on his own, he should have a nurse to look after him, is that what you are saying.
A. Not a nurse, he definitely needs someone to act as his frontal lobes, someone that can organise him, make sure that if he does behave in an inappropriate way they can step in quickly to reduce the impact of that, apologise on his behalf when he has done something, to look after his financial affairs, et cetera."
It is true that his Honour did not refer to this evidence in his judgment but I am not persuaded he overlooked it. He certainly indicates some scepticism about Quinton’s evidence, and none of the other medical witnesses said anything comparable. Nor for that matter did Quinton say what he actually said in evidence in his very lengthy report. Moreover, except for an eighteen month period when he lived with a girl friend, and the very short initial periods with his parents, the plaintiff has lived alone. I find Quinton’s evidence unconvincing and in my opinion his Honour implicitly rejected it. I would have done so. I would not increase the so-called Beck v Farrelly award.
Having regard to the plaintiff’s inability to manage his affairs and his Honour’s decision to make a protection order and direct that moneys be paid to Public Trustee, his Honour made an assessment "as a head of damage in the order of $50,000 as an allowance for damages in compensation for a management fee". It is conceded by the plaintiff’s counsel that the only basis for an assessment at that figure was that that was the amount awarded by Zelling J in Campbell v Nangle (1985) 40 SASR 161 at 179 (and see King CJ on appeal at 193).
The total amount both paid and payable by WorkCover to the plaintiff under the Act was $436,122.60, and therefore it had a first charge on the damages payable by Le Cornu pursuant to s54 of the Act. I have already quoted from that section, and now quote the subsequent sub-sections that are relevant:
Where -
(a) compensation is paid or payable under this Act in respect of a compensable disability;
(b) a right of action exists against a person other than the employer for damages in respect of the disability,
the person by whom the compensation is paid or payable is entitled to recover the amount of the compensation in accordance with
subsection (7).
(6) ...
Where -
(a) compensation is paid or payable to a person (‘the injured party’) under this Act;
(b) the injured party has received, or is entitled to, damages from another person (‘the wrongdoer’) in pursuance of rights arising from the same trauma as gave rise to the rights to compensation under this Act;
(c) the person by whom the compensation is paid or payable under this Act (‘the claimant’) is entitled to recover the amount of the compensation by virtue of subsection (5) and (6),
then the following provisions apply:
(d) the claimant is entitled to recover the amount of compensation paid or payable under this Act from the wrongdoer or the injured party but subject to the following qualifications:
no amount may be recovered from the wrongdoer in excess of the wrongdoer’s unsatisfied liability to the injured party;
the claimant must exhaust its rights against the wrongdoer before recovering against the injured party;
and
no amount may be recovered from the injured party in excess of the amount of the damages received by the injured party;
(e) the claimant shall, on giving notice to a wrongdoer of an entitlement to recover compensation under this section, have a first charge, to the extent of the entitlement, on damages payable by the wrongdoer to the injured party;
(f) any amount recovered by the claimant against a wrongdoer under this subjection shall be deemed to be an amount paid in or towards satisfaction of the wrongdoer’s liability to the injured party;
(g) ...
(7a) - (7c) ...
In this section -
‘damages" includes any form of compensation payable apart from this Act in respect of a compensable disability:
‘employer’ includes -
(a) any person for whose torts an employer is vicariously liable;
(b) any person who is vicariously liable for the torts of an employer;
...
‘prescribed sum’ means the amount that, at the time of the occurrence of the disability that gave rise to a liability at common law for non-economic loss, was the prescribed sum for the purposes of Division V.
(8a) ..."
In consequence of these provisions counsel for the plaintiff pointed out that Public Trustee would receive on his Honour’s judgment only $65,490, and accordingly his Honour should award a management fee based upon that sum, which upon advice from Public Trustee was only $16,353.82. Mr Frayne virtually conceded that his Honour’s award was erroneous. It clearly was. I would hear counsel further as to what sum, if any, should be awarded having regard to this court’s judgment.
Prior J
I agree with Matheson J that the appellant was in breach of a duty of care owed by it to Mr Hammill. I identify that duty as being one to ensure that reasonable care for Mr Hammill’s safety was taken by Le Cornu . Taken into account in identifying that duty are all the facts, especially those stressed by Matheson J and the statutory obligations imposed upon Le Cornu as an occupier of commercial premises. In particular, Regulation 5 of the (Commercial Safety) Regulations calls upon an occupier of commercial premises to take all reasonable precautions to ensure the health and safety of any person who works in or about the premises. Thus, Le Cornu owed more than a duty to take reasonable care of Mr Hammill. The duty was one identifiable as a personal or special duty imposed upon Le Cornu in all the circumstances of the case. Special duties were identified by Mason J in Kondis v State Transport Authority and further considered in more recent judgments of the High Court .
Here the statutory obligations are very relevant to the existence of a special duty upon the occupier of land. I think the expansion of the law of negligence and the reduction of other categories of liability calls for an identification of a particular duty owed by a defendant to a plaintiff not categorised by common law negligence or breach of statutory duties separately. In this case a special duty is identified . I have gratefully adopted the approach of McHugh J in Northern Sandblasting in a passage cited by Matheson J:
"(Le Cornu’s) duty to the plaintiff in this case was not merely a duty to take reasonable care; it was a duty to ensure that reasonable care for (his) safety was taken."
If this approach be impermissible, I agree with Matheson J that negligence at common law and breach of statutory duty involving a correlative private right are well established on the facts .
As to the damages awarded, I agree with Matheson J that this Court should interfere. The awards for economic loss should be varied in the manner that he proposes. The amount referred to as a Beck v Farrelly award should stand. I would not interfere with the award for non-economic loss nor the amount awarded for interest on that award.. The management fee fixed is plainly erroneous. I agree with the course proposed by Matheson J as to that.
Debelle J
The facts are set out in the reasons of Matheson J.
In my view, a duty to take reasonable care for the safety of Mr Hammill was imposed on LeCornu by Regulations 5 and 14 of the Occupational Health Safety & Welfare (Industrial Safety) Regulations, 1987 or, alternatively, under Regulations 5 and 14 of the Occupational Health Safety & Welfare (Commercial) Regulations, 1987. The Regulations are in like terms. It is, therefore, unnecessary to determine whether the premises of LeCornu are more accurately described as industrial premises or commercial premises. The obligations imposed by paragraphs 5 and 14 are quite specific and applied in the circumstances of this case. The duty of the occupier to provide the equipment provided in Regulation 14 applies to all persons who come on to the premises. I do not agree with the manner in which the appellant sought to restrict the operation of these Regulations. The effect of the Regulations is that, even where an independent contractor is engaged to carry out work on the roof which involves movement across the roof, the occupier must comply with Regulations 5 and 14. There is an interesting question as to the extent to which the provisions apply where the contractor has been engaged to replace an existing roof. But that is not this case.
Given the conclusion I have reached, it is unnecessary to examine the question whether LeCornu had a non-delegable duty of care towards Mr Hammill. I believe there are serious questions as to whether such a duty existed in this case. LeCornu had engaged an independent roofing contractor to carry out the work; the roofing contractor had held out that it was competent to do the work; and there was no reason why LeCornu should have been concerned as to the competence of the contractor to do the work. The decisions in such cases as Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 and Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 are distinguishable from the facts of this case and different principles apply.
But for the provisions of s54(4b) of the Workers Rehabilitation & Compensation Act, 1986, the appellant would clearly have been entitled to contribution by reason of the negligence of the second respondent Qual-Chem Building Services Pty Ltd. However, that entitlement is barred by the provisions of s54(4b). This is but one of a number of instances which call into question the fairness of s54(4b).
I agree with the substance of the reasons of Matheson J for interfering with the award of damages.
I agree with the orders proposed by Matheson J.
CITATIONS LISTED IN ORDER OF APPEARANCE
(1984) 154 CLR 672 at 684-687
See for example Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33; Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 at 369
cf Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7 at 27 and 28; Henwood v MTT (1938) 60 CLR 438 at 461 and Wrongs Act 1936, s17C
Northern Sandblasting Pty Ltd v Harris (1977) 188 CLR 313
O’Connor v S P Bray Ltd (1937) 56 CLR 464 at 478
(1975) 13 SASR 17
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10
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