Leighton Contractors Pty Ltd v Fox Calliden Insurance Limited v Fox [2009] HCA 35 2 September 2009 S528/2008 & S534/2008
ORDER
In each matter, order:
1.Appeal allowed.
2.Set aside orders 1 and 5 of the orders of the Court of Appeal of the Supreme Court of New South Wales made on 7 March 2008, and in lieu thereof order that the appeals to that Court be dismissed.
3.Appellant to pay the costs of the first respondent of the appeal to this Court.
On appeal from the Supreme Court of New South Wales
Representation
B W Walker SC with W S Reynolds for the appellant in S528/2008 and the second respondent in S534/2008 (instructed by Moray & Agnew Solicitors)
J E Maconachie QC with R G Gambi for the appellant in S534/2008 and the second respondent in S528/2008 (instructed by Wotton & Kearney)
M J Cranitch SC with R C Tonner for the first respondent in both matters (instructed by Walkom Lawyers)
No appearance for the third respondent in both matters
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Leighton Contractors Pty Ltd v Fox Calliden Insurance Limited v Fox
Torts – Negligence – Duty of care – Independent subcontractor suffered injury resulting from negligent conduct of co-subcontractor – Whether induction training in industry approved code of practice would have avoided cause of injury – Whether principal contractor for construction work owes duty to provide, or be satisfied of the prior provision of, training in safe work methods to independent contractors working on construction site – Whether contractor retained to carry out concreting owes duty to provide training in safe work methods to independent subcontractor engaged by it to carry out concrete pumping – Whether obligations imposed on principal contractor and contractor under the Occupational Health and Safety Act 2000 (NSW) and the Occupational Health and Safety Regulation 2001 (NSW) give rise to a common law duty requiring for its discharge the provision of occupational health and safety induction training in respect of safe work methods of carrying out specialised tasks.
Occupational Health and Safety Act 2000 (NSW). Occupational Health and Safety Regulation 2001 (NSW), Pt 8.2. Code of Practice: Pumping Code (NSW). Code of Practice: Occupational Health and Safety Induction Training for Construction Work (NSW).
FRENCH CJ, GUMMOW, HAYNE, HEYDON AND BELL JJ.
Introduction
Background facts. On 7 March 2003 Brian Allan Fox, the first respondent in each of these appeals, suffered severe injury in the course of working at the construction site of the Hilton hotel in Sydney. Leighton Contractors Pty Ltd ("Leighton"), the appellant in the first appeal, was the principal contractor for the project. By the…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Leighton Contractors Pty Ltd v Fox
Sign in free to access the full text
Details
AGLC
Leighton Contractors Pty Ltd v Fox [2009] HCA 35
Case
[2009] HCA 35
Decision Date
CaseChat Overview and Summary
In this matter before the High Court of Australia, the parties were Leighton Contractors Pty Ltd (the principal contractor) and Mr. Fox (an independent subcontractor). The dispute arose from an injury Mr. Fox sustained on a construction site, which he alleged was caused by the negligent conduct of a co-subcontractor. The central question was whether Leighton Contractors, as the principal contractor, owed a duty of care to Mr. Fox to ensure he received adequate induction training in safe work methods, particularly concerning specialised tasks like concrete pumping.
The High Court was required to determine whether a principal contractor owes a common law duty of care to an independent subcontractor to provide, or be satisfied of the prior provision of, training in safe work methods on a construction site. Specifically, the court considered whether this duty extended to ensuring that a contractor engaged for concreting work provided such training to an independent subcontractor engaged by them for concrete pumping. Furthermore, the court examined whether the obligations imposed by the *Occupational Health and Safety Act 2000* (NSW) and the *Occupational Health and Safety Regulation 2001* (NSW) gave rise to a common law duty requiring the provision of occupational health and safety induction training in respect of safe work methods for specialised tasks.
The High Court allowed the appeal, setting aside the orders of the Court of Appeal of the Supreme Court of New South Wales. The court reasoned that while the *Occupational Health and Safety Act* and Regulation imposed duties on employers and persons in control of workplaces, these statutory obligations did not, in themselves, give rise to a common law duty on the principal contractor to provide or ensure the provision of specific induction training in safe work methods to independent subcontractors. The court found that the statutory framework did not create a positive duty for the principal contractor to supervise the training practices of its subcontractors' subcontractors. Consequently, the appeals to the Court of Appeal were dismissed.
Orders
Orders of the court
In each matter, order:
1. Appeal allowed.
2. Set aside orders 1 and 5 of the orders of the Court of Appeal of the Supreme Court of New South Wales made on 7 March 2008, and in lieu thereof order that the appeals to that Court be dismissed.
3. Appellant to pay the costs of the first respondent of the appeal to this Court.
Background
Background to the litigation
It is convenient to continue to refer to the second respondent in the first appeal, and the appellant in the second appeal, as "Downview".The factual background The relationships and experience of those present on 7 March. Downview had dealings with Quentin Still, Jason Cook and Chris Gelle in connection with the subcontract for the concrete pumping. Each represented to Downview that he was employed by Toro Constructions Pty Ltd ("Toro"). Downview understood that its contract was with that entity. Toro was joined to the proceedings as fourth defendant. The proceedings were discontinued against Toro after Mr Still revealed that he was not in its employ. Despite the confusion occasioned by the misrepresentation concerning Toro, Mr Still and Mr Cook secured the subcontract for the concrete pumping from Downview. They supplied the pipes and other equipment required for the work. Neither were joined to the proceedings. Mr Still had attended the site on several occasions before the date of the accident. On these occasions he had engaged a man named Jamie who supplied a concrete pump truck together with his own labour and that of an offsider. The concrete pour on 7 March had originally been scheduled to take place on the following day. One consequence of the re-scheduling was that Jamie was not available to supply his pump truck or to work on that day. Mr Still was informed of the re-scheduling on 7 March and either he or Mr Cook telephoned a man named John Martin to arrange for another concrete pump truck and labour. Mr Martin was one of the principals of a business, Shark Shire Pumping, which supplied concrete pump trucks. He was also a principal of Aggforce Concrete Pty Ltd, which supplied labour to the concrete pumping industry. On 7 March Mr Stewart and Mr Fox attended the site in a pump truck supplied by Shark Shire Pumping in response to the request made to Mr Martin. Mr Stewart was the driver and Mr Fox was the offsider. Mr Fox was a labourer who had worked in the industry on and off for nearly a decade. Even though he worked "virtually exclusively" for the businesses operated by Mr Martin, he was an independent contractor. Neither Aggforce nor Mr Martin were joined to the proceedings. The arrangement made by Mr Still or Mr Cook with Mr Martin was that the pump truck was to go to the Hilton site and that the driver and offsider were to take directions from Mr Still. Mr Still had worked in the concrete pumping industry for 19 years. Mr Stewart had worked in this industry for 11 years, but he did not have experience working on a major multi-storey construction site such as this one. The largest job that he had previously done was "probably a six storey block of units". He and Mr Still had known one another for some time and each considered the other to be experienced in concrete pumping. Mr Fox had previously worked as a concrete linesman/pump truck offsider, but he had no experience of working on a major construction site. The biggest jobs that he had worked on involved the construction of two storey houses or townhouses.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
FRENCH CJ, GUMMOW, HAYNE, HEYDON AND BELL JJ
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by:
FRENCH CJ, GUMMOW, HAYNE, HEYDON AND BELL JJ