McVicar v S & J White Pty Ltd - [2007] SASC 107

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
MCVICAR v S & J WHITE PTY LTD T/A ARAB STEED HOTEL
[2007] SASC 107
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Debelle and The Honourable Justice Anderson)
29 March 2007
TORTS - NEGLIGENCE - LIABILITY FOR OTHERS' NEGLIGENCE - INDEPENDENT CONTRACTORS
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DUTY OF CARE - SPECIAL RELATIONSHIPS AND DUTIES - OCCUPIERS
Appeal against a decision of the District Court - contractor hired by occupiers of hotel premises to clean canopy above commercial cooking range - employee of contractors seriously injured when petrol, used by contractor as a cleaning agent, ignited by pilot flame - negligence of contractor in failing to extinguish pilot light and instructing employee to use unsafe cleaning methods - whether occupier of the premises breached duty of care to take reasonable care of employees of the contractor while working in the premises - whether occupier breached statutory duties as occupier, or owner of plant, as set out in s 23 and s 24A Occupational Health, Safety and Welfare Act 1986 (SA) - no evidence that occupier was aware or ought to have been aware of the contractor's use of petrol as a cleaning agent - no non-delegable duty arose - danger arose from presence of petrol not condition of premises - occupier discharged its duty by engaging an expert independent contractor - relevant standard of care did not require occupier to take further positive steps.
Occupational Health, Safety and Welfare Act 1986 (SA) s 23, s 24A; Wrongs Act 1936 (SA) s 17C; Workers Rehabilitation and Compensation Act 1986 (SA) s 54, referred to.
Hughes v Lord Advocate [1963] AC 837, distinguished.
Neindorf v Junkovic (2005) 80 ALJR 341; Complete Scaffold v Adelaide Brighton Cement & Anor [2001] SASC 199; Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; Northern Sandblasting Pty Ltd v Harris (1996) 188 CLR 313; Mount Isa Mines v Pusey (1970) 125 CLR 383, considered.

MCVICAR v S & J WHITE PTY LTD T/A ARAB STEED HOTEL
[2007] SASC 107
Full Court: Doyle CJ, Debelle and Anderson JJ

DOYLE CJ. Mr McVicar worked as a cleaner for Mr Keogh. Mr Keogh carried on business as “Keogh Cleaning Services”. He described himself as “cooking exhaust specialists”.
In September 1999 Mr Keogh and Mr McVicar went to the Arab Steed Hotel, operated by S & J White Pty Ltd (the company). Mr White was a director of the company and managed the hotel.
Mr Keogh was there to clean a canopy or canopies in the hotel kitchen. The men arrived about 5.00 am. At the relevant time Mr McVicar had barely started work. He was standing on top of a commercial gas cooking range. The men had placed sheets of cardboard across the top of the range, and then boards on top of the cardboard to provide a platform for the men. The aim was to clean the canopy above the cooking range, scraping off fat and other residues. The convenient way to do this was to stand on the range, the worker’s body being within the boundaries of the canopy above the range.
Mr McVicar had a scraper or scourer. To clean the scraper or scourer he had with him a bucket with about three inches of petrol in it. Mr Keogh’s practice was to use the petrol to remove grease from the cleaning implement. Mr McVicar was standing on top of the range, and inside the confines of the canopy.
The Judge accepted evidence of another worker, Mr Cooper, about what happened. Mr Cooper heard Mr McVicar make an exclamation, to the effect that “this is fucking hot”, and then:
He turned and saw the Plaintiff turn to get down from the boards and, as he did so, he bumped the bucket containing petrol and it spilt. A moment later there was an explosion as the petrol ignited. The Plaintiff and part of the kitchen were engulfed in flames. Mr Cooper was terrified and ran away.
It is not disputed that the explosion was the result of spilt petrol, or more probably petrol vapour, being ignited by a pilot light under a hotplate on the kitchen range. Mr McVicar was standing on boards above, or close to the hotplate, just before the explosion occurred.
About 15 minutes after the explosion Mr White, who had been called to the hotel, checked the range. He found that two pilot lights under the hotplate were still burning, although others on the range had been turned off. His evidence was that he turned the pilot lights off. Evidence from a police officer with whom he made an inspection later that morning suggests that at that later inspection a pilot light was still burning. Mr White must have failed to turn it off.
The issue at trial and on appeal was whether the company is liable for the injuries suffered by Mr McVicar.
The Judge found that the company had no idea that Mr Keogh would use petrol. He found that the company was not in breach of its duty of care as an occupier. If the company owed a “non‑delegable” duty of care to Mr McVicar, that duty was not breached. A claim based on s 23 and s 24A of the Occupational Health, Safety and Welfare Act 1986 (SA) also failed.
Trial Judge’s Findings of Fact
As I understand the submissions on appeal, most of the trial Judge’s findings are accepted.
The company directors were experienced hoteliers. Mr Keogh had about 15 years experience cleaning canopies (over cookers) in hotels, restaurants, takeaway food shops and the like. Mr Keogh had been hired by the company to clean canopies in the hotel kitchen since about 1993. He did so once each year.
The Judge found that Mr Keogh was a competent canopy cleaner with substantial experience. The Judge found that Mr White was entitled to treat him as competent. Mr Livesey QC, counsel for Mr McVicar on appeal, challenges that finding. He submits that Mr Keogh’s occupation required no formal qualification, such as is required for an electrician or plumber. There was nothing to show he was qualified. Mr White knew nothing about Mr Keogh’s competence. The first submission is correct, and in a sense so is the second submission. But it remains the fact that Mr Keogh held himself out as competent, and to Mr White’s knowledge Mr Keogh had satisfactorily cleaned hotel canopies for several years. The company was entitled to treat Mr Keogh as competent. There was no duty on the part of the company to check that Mr Keogh knew how to perform his task safely.
As I said earlier, Mr Keogh arrived at the hotel about 5.00 am. The practice was to clean the canopies early in the morning when the kitchen was not in use. It was not the practice for Mr White to be present. Mr Keogh was let in by a cleaner.
The Judge found that Mr Keogh knew there were pilot lights in the range and that he knew it was wise to extinguish the pilot lights before the men worked above the range. Mr Keogh said that he extinguished the pilot lights, using a switch, and that he checked that they were extinguished by looking through portals in the range. He explained his failure to extinguish all of the pilot lights by saying that the portals were blocked by fat and cooking residue. The Judge rejected this evidence, and found that Mr Keogh failed to extinguish the pilot lights due to carelessness. This finding is not disputed.
The Judge found that Mr White had no means of knowing that Mr Keogh used petrol to clean the scourers. That finding is correct. There is no basis for a finding that Mr White should have known that petrol would be used.
The Judge also found that the directors had no means of knowing that “any other combustible material was regularly used in the cleaning process”: [61]. Mr Livesey submits that the Judge should have found that Mr White knew that plastic sheeting would be used or might be used, that this was combustible, and that there was a risk of injury by fire because the plastic was used close to the pilot lights. The judge made no specific reference to the evidence on this point from Mr White (T279, T280). The evidence from Mr White is equivocal. Mr White was being questioned about other occasions when the canopies were cleaned, and about what he had seen the cleaners doing. He said that sometimes he had arrived at work when the cleaners were still cleaning up. He said that he had seen them put some covering over the stove or cooking range on which they stood, and that it was “plastic on occasions”. When asked if he would expect the men “to use plastic or cardboard or a combination of both”, he said that he would “expect some sort of covering”. When asked if the plastic or cardboard could be lit (because of the pilot lights) he said, “That’s possible I guess, yes.”
Although the evidence is vague, it could support a conclusion that Mr White was aware that plastic sheeting was sometimes used. But I do not agree that it supports a conclusion that cleaning the canopy created a foreseeable risk of fire. There was no evidence about the temperature at which the plastic might ignite. There was no evidence about where the plastic was placed, if it was used. On the evidence, and assuming that contact with a naked flame was necessary for ignition, I fail to see how the plastic would create a risk of fire. The pilot lights were not in an exposed position. But even if there was a risk of fire, the issue remains of whether it was the obligation of the company to make sure that the pilot lights were turned off. In the evidence just referred to, Mr White himself made the point that if the contractor was doing his job, the pilot lights would be off.
There was a stopcock (and possibly more than one) at the base of the cooking range. That could have been used to stop the flow of gas to the range, including to the pilot lights. There was a control device at the meter, which was quite close by. This could be used to stop the flow of gas to the kitchen. Mr White knew of this, but did not draw to Mr Keogh’s attention the possibility of using the stopcock or control device, nor did he tell Mr Keogh that they should be used.
The Judge’s Reasons
The Judge summarized Mr McVicar’s case at [57]. It was that there was a foreseeable risk of danger if the company took no action to avoid that risk, because the company knew that:
…
·the canopy cleaners would climb onto the kitchen appliances;
·they would likely use inflammable material (but not petrol);
·the pilot lights would be burning when the cleaners arrived;
·it was not necessarily easy to turn the gas to an appliance off and to observe that that result was achieved;
·the gas could be turned off before the arrival of the cleaners without affecting in any way the other operations of the hotel;
·the gas supply was located away from the kitchen and the cleaners were not so aware as where;
Some of the Judge’s reasoning suggests that he found that the company did not owe a duty of care. But I am satisfied that the Judge was in fact considering whether there was a breach of the duty of care. As I understand the submission at trial and on appeal, it is that the failure of the company either to turn off the gas supply to the kitchen, or to the range, or to show Mr Keogh how to do so, was a breach of duty because there was a foreseeable risk of an explosion or injury by fire if the pilot lights were not extinguished: [54].
The Judge considered the provisions of s 17C of the Wrongs Act 1936, the then applicable provision. Section 17C is as follows:
(1)Subject to this Part, the liability of the occupier of premises for injury, damage or loss attributable to the dangerous state or condition of the premises shall be determined in accordance with the principles of the law of negligence.
(2)In determining the standard of care to be exercised by the occupier of premises, a court shall take into account -
(a)     the nature and extent of the premises; and
(b)     the nature and extent of the danger arising from the state or condition of the premises; and
(c)     the circumstances in which the person alleged to have suffered injury, damage or loss, or the property of that person, became exposed to that danger; and
(d)     the age of the person alleged to have suffered injury, damage or loss, and the ability of that person to appreciate the danger; and
(e)     the extent (if at all) to which the occupier was aware, or ought to have been aware, of -
(i)the danger; and
(ii)the entry of persons onto the premises; and
(f)    the measures (if any) taken to eliminate, reduce or warn against the danger; and
(g)     the extent (if at all) to which it would have been reasonable and practicable for the occupier to take measures to eliminate, reduce or warn against the danger; and
(h)     any other matter that the court thinks relevant.
(3)The fact that an occupier has not taken any measures to eliminate, reduce or warn against a danger arising from the state or condition of premises does not necessarily show that the occupier has failed to exercise a reasonable standard of care.
The Judge accepted that it was usual industry practice for pilot lights on such ranges to be left on overnight. He rejected a submission that Mr Keogh could not be relied upon to turn off the pilot lights before work began: [58]. He made the point that Mr Keogh knew he had to turn the pilot lights off, and had intended to do so.
The Judge considered the application of each of the subparagraphs of s 17C(2) and concluded at [66] and [67]:
In all of the circumstances which are here shown to exist, it has not been established that it was reasonably foreseeable that an explosion likely would occur in the Defendant’s kitchen if established past practice was again followed. In my view, it was entirely reasonable for the Defendant to have not done anything as it has not been established that the state of the premises at the time of Mr Keogh’s arrival on 13 September 1999 was such that a danger then arose which required steps to be taken so as “to eliminate, reduce or warn against” it: Wrongs Act s 17(C)(3).
The Plaintiff has failed to establish that the Defendant was in breach of either the provisions of s 17C of the Wrongs Act 1936 or of the principles of common law negligence.
The Judge found that the task undertaken was not so hazardous as to give rise to a duty on the part of the company to ensure that reasonable care was taken in the course of cleaning the canopies. A non‑delegable duty did not arise: [68].
The judge found that there was no breach of the requirements of s 23 and s 24A of the Occupational Health, Safety and Welfare Act 1986 (SA).
Submissions on Appeal
I summarise Mr Livesey’s submission as follows.
Mr White did not give any thought to the need to extinguish the pilot lights or to cut off the gas supply. Although he had a manual relating to the range, which recommended cutting off the gas when cleaning the oven (as distinct from when cleaning a canopy), he did not instruct his own staff when cleaning the oven to do that. Mr White agreed that the stopcocks and the mains control point might be difficult to find. Mr White accepted that he never told Mr Keogh or Mr McVicar where the stopcocks were, or where the mains control point was. Mr Livesey argues that Mr White knew that chemicals, plastic and possibly cardboard would be used in close proximity to the pilot lights and that Mr White accepted that there was a risk of injury by fire.
In those circumstances he submits that there was a foreseeable risk of personal injury as a result of fire when cleaning work was carried out over the oven with the pilot lights left burning.
The result of that was that the company as occupier was under a duty to take steps to protect a person such as Mr McVicar against the risk of injury from fire.
The company was in breach of its duty in failing to close off the gas flow to the cooking range, or in failing to show Mr Keogh how that could be done using the stopcocks or the mains control point. The company was not entitled to rely on the assumption that Mr Keogh was sufficiently competent to attend to this himself. The precaution that should have been taken, cutting off the gas supply or telling Mr Keogh how to do so, could have been carried out with little or no inconvenience.
In the alternative Mr Livesey submits that cleaning the canopy was so hazardous that it was incumbent on the company as occupier to ensure that proper precautions against fire or an explosion were taken. That is, he submits that the company was under a non‑delegable duty to see that proper precautions were taken to eliminate the risk of fire or explosion.
Mr Livesey further submits that the provisions of the Occupational Health, Safety and Welfare Act upon which he relies required the taking of the same precautions.
Consideration of Submissions
It is necessary to bear in mind that the duty to which the circumstances gave rise is a duty imposed on the company as an occupier of the premises.
I have no doubt that the company owed a duty of care to Mr Keogh and to Mr McVicar when they entered the hotel. That duty related to the safety of the premises.
The issue in the present case is whether, in the circumstances, the standard of care required to discharge that duty required the company to close off the gas supply to the kitchen or to the range before the work began; or to inform Mr Keogh how to do so; or (not that I think this was Mr Livesey’s submission) to supervise the work to ensure that appropriate precautions were taken against fire, and to intervene if they were not.
That issue is to be decided by reference to the matters set out in s 17C(2) of the Wrongs Act, bearing in mind the statement in s 17C(3). Each and all of the statutory provisions must be considered. They are directed to the question of what was reasonable and practicable by way of response by the company as occupier to a foreseeable risk of harm, a risk of harm that the company should have foreseen. The decision to be made involves what Gleeson CJ described as a “normative judgment” in Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341 at [8]. It is not sufficient for the plaintiff to establish that something could have been done that would have prevented the incident occurring. The court must also consider what was required of the company by way of a reasonable response to such risk of harm as should have been foreseen by the company, before the event occurred, and not using hindsight to impute to the company foresight of the event that actually occurred: see Hayne J in Neindorf at [93]. The ultimate decision is one of fact, not one of law.
I deal with the last submission first. In my view a reasonable response to whatever risk arose did not require the company to supervise Mr Keogh when he carried out the cleaning work. If the company is liable, it must be on one of the first two bases.
I begin with some comments on the facts.
The task of cleaning the canopy was a simple one. It was a routine act of maintenance. It was commonly carried out by contractors such as Mr Keogh. They do not need to have any kind of licence or formal qualification. It is not the kind of task one would expect the occupier to supervise, or to be involved in. To the contrary, it is the kind of task that one would expect to be left to the contractor, if a contractor was hired to perform it.
The company was entitled to proceed on the basis that Mr Keogh was a competent independent contractor. He had done the task before.
The company had no reason to expect the use of a dangerous substance like petrol. There was no reason to think that other chemicals would be used that created a risk of fire or of an explosion in a kitchen setting.

The company had no reason to think that the task undertaken gave rise to a risk of fire or of explosion. Even if Mr White realised that plastic sheeting might be used to cover the appliances to protect them from debris, the risk of fire from the use of plastic sheeting was so remote as not to be reasonably foreseeable. The gas range would not be hot. The only naked flame was the pilot light. There was no reason to think that plastic sheeting spread over appliances would come into contact with a pilot light. There was no evidence to suggest that plastic sheeting was put directly on to an appliance such as a kitchen range, as distinct from being placed over the top of some other substance. There was no evidence to suggest that the pilot lights would heat a hotplate to such a temperature that there was a risk of plastic igniting. In any event, in assessing the risk of fire or of an explosion, the fact that turning off the pilot lights was such an obvious precaution was relevant. Any reasonable occupier would expect a competent contractor like Mr Keogh to turn the pilot lights off.
If I am wrong in saying that the risk of fire or of explosion was not foreseeable, I would say in the alternative that the risk was very slight.
Mr Keogh knew that the pilot lights should be extinguished to remove any risk of fire. He failed to do so only through his own carelessness. While sometimes the content of a duty of care requires allowance to be made for the risk of carelessness, in assessing the reasonable response to a situation, the appropriate approach to take is that the company could reasonably expect that the pilot lights would be turned off.
The fact that, very shortly after the explosion, Mr White failed to extinguish the pilot lights on his first attempt, is of no particular significance. He might well have been flustered or distracted. There was no reason why he should have realised, before the event, that a person intending to extinguish the pilot lights would have any difficulty in doing so.
There was no difficulty in Mr White arranging to have the gas supply turned off before the cleaners arrived, and no difficulty in Mr White telling Mr Keogh how he should do so or that he should do so. But the precaution was an obvious one. There was no reason to tell Mr Keogh that it was desirable to extinguish the pilot lights. He knew that and intended to do so. Had he been told to do so, his response would have been that he knew that.
In my opinion, in light of the above matters, a reasonable response to any risk of fire or explosion that existed did not require of the company that it close off the gas supply, or tell Mr Keogh how to do so. There was no reason to think that Mr Keogh would be unaware of the existence of stopcocks, or of the possibility of isolating the gas supply to the kitchen at the gas meter.
In light of those matters, I turn to the provisions of s 17C(2) of the Wrongs Act.
The premises were an ordinary commercial kitchen, containing no unusual features or dangers. Mr McVicar and Mr Keogh had often worked in such premises.
I make the following points in relation to the lettered sub-paragraphs of s 17C(2):
(a)There was no particular danger for cleaners arising from the state or condition of the premises. The pilot lights did not pose any particular risk of danger. In any event, they are a common feature of such kitchens and could easily be extinguished.
(b)The danger of fire was the result of Mr Keogh using petrol, a practice that the company could not reasonably have anticipated. The danger of fire did not arise from the state or condition of the premises.
(c) & (d)Mr Keogh and Mr McVicar should have appreciated the danger that arose from the use of petrol.
(e)The company was not aware of the source of danger, nor was the danger one of which it ought to have been aware. There was no reason for the company to believe that the cleaning of the canopies gave rise to the danger of fire or of an explosion.
(f)No measures were taken by the company to eliminate, reduce or warn against the danger.
(g)Warning against the danger would have achieved nothing, because Mr Keogh was aware that the pilot light should be extinguished. The company could have eliminated the danger by turning off the gas supply, or could have reduced the danger by reminding Mr Keogh that he could and should turn off the gas supply using the stopcocks or the gas meter control point.
It was practicable for the company to eliminate, reduce or warn against the danger.
(h)Having regard to the nature of the task undertaken; the circumstances under which it was undertaken; the fact that fire or explosion was not foreseeable, or was a very slight risk only; the experience of the person who undertook the task and the ease with which Mr Keogh could have eliminated any risk, a reasonable response to the situation did not require the company to eliminate or warn against the risk of fire or explosion, even though it was practicable for it to do so.
The task of cleaning the canopy was a simple one, undertaken by an apparently competent independent contractor who had done the task before and who knew that the pilot lights should be extinguished.
When all these matters are taken into account, my conclusion is that because the risk of fire or explosion was not reasonably foreseeable, there was no obligation on the occupier to intervene. Even if the risk was foreseeable, it was a very slight risk, and the response (extinguishing the pilot lights) was so simple and obvious that the company was entitled to leave it to the contractor to do so.
For those reasons, even though the occupier could easily have taken preventative measures, my conclusion is that it was not in breach of its duty of care in failing to do so. In doing nothing by way of response to the risk (if it existed), the company did not fail to act reasonably in all of the circumstances.
I can deal briefly with the suggestion that the company was under a non‑delegable duty to ensure that reasonable precautions were taken to prevent fire or an explosion. In Complete Scaffold v Adelaide Brighton Cement & Anor [2001] SASC 199 I considered the question of when such a duty might be imposed on the occupier of premises. I said at [42]:
A consideration of the judgments of the various members of the High Court in Burnie and Northern Sand Blasting indicates that a circumstance favouring the imposition of a non‑delegable duty of care is that the employer of a contractor (the issue will mainly arise when the act of negligence is the act of an independent contractor) requires the performance of a task or undertaking, or performance of a task in a manner, that carries with it an inherent and high risk of harm to others. Another significant factor will be an undertaking of a particular responsibility for the safety of another person, or a special vulnerability on the part of that person. But, beyond these broad guidelines, the effect of recent High Court decisions is that one must consider all relevant factors. In my opinion one can at least say that putting aside relationships in which courts have recognised a non-delegable duty of care usually arises, the performance of a task that does not carry an inherent risk of damage to person or property may be discharged by engaging a competent independent contractor: see Northern Sand Blasting at 333 Brennan CJ.
The present case is not such a case. The task that Mr McVicar carried out did not involve an inherent and high risk of harm, in the sense in which that expression was used in Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520. The task itself carried no such risk. The risk of harm arose only because of the manner in which Mr Keogh caused and allowed Mr McVicar to perform the task, unknown to the company. This is not a case in which the company undertook a particular responsibility for the safety of Mr McVicar, nor is it a case in which there was a special vulnerability on his part to harm as a result of the task undertaken. Once again, any vulnerability to harm was attributable to the particular manner in which Mr Keogh undertook the task.
I would reject this submission by Mr Livesey.
I turn now to the statutory provisions.
Section 23 requires the occupier of a workplace to “ensure so far as is reasonably practicable” that the workplace “is maintained in a safe condition”. I accept that the kitchen was a workplace. I consider that the workplace was maintained in a safe condition. The pilot lights did not make the workplace unsafe. I do not agree that the workplace became unsafe because Mr Keogh brought petrol into the workplace, creating a risk of fire and of an explosion. I do not consider that s 23 imposes a duty on an occupier of a workplace in relation to danger attributable to what might be called a casual act of negligence by a person who is in the workplace. If the section is interpreted in this manner, it could be complied with only by the occupier supervising the activities of all persons present in the workplace, whether employees or not.
Section 24A(1)(a) requires the owner of plant used at a workplace to ensure that the plant is maintained in a safe condition. The range was maintained in a safe condition. Section 24A(1)(c) requires the owner of any plant to “ensure so far as is reasonably practicable that adequate information necessary to ensure the safe use of the plant is supplied to any user of the plant”. I do not agree that Mr McVicar was using the kitchen range for the purposes of this provision. Mr McVicar was simply standing on the range. That is not, relevantly, a use of the range.
For those reasons I conclude that the company was not in breach of its duty of care as an occupier. Nor was it in breach of the provisions of the Occupational Health, Safety and Welfare Act.
Conclusion
The appeal should be dismissed.
DEBELLE J. The issue on this appeal is whether an occupier of premises owed a duty of care to the employee of an independent contractor who was injured while working in the premises in the course of his employment. The facts are recited in the reasons of Doyle CJ and Anderson J.
S & J White Pty Ltd (“the company”) is the licensee of the Arab Steed Hotel. It is the occupier of the premises. It engaged Mr Keogh, who traded as “Keogh Cleaning Services” (“Keogh”) to clean the canopy over the large commercial stove in the hotel kitchen. Keogh had been cleaning the canopies in the hotel kitchen since 1993 without any untoward incident. The company relied on the expertise of Keogh.
When an occupier engages an independent contractor to carry out work on its premises, the occupier has a duty of care to that contractor and its employees when they enter its premises. The standard of care will be determined by reference to the matters listed in s 17C of the Wrongs Act 1936, the legislation in force at the time of the events the subject of these proceedings. Shortly stated, the effect of s 17C requires an assessment of what would have been reasonable and practicable for an occupier to do: Neindorf v Junkovic (2005) 80 ALJR 341 at [92] per Hayne J. Generally speaking, the occupier will have a duty to warn of any danger which exists because of the state or condition of the premises.
The company did not know and had no means of knowing that Keogh’s employees used petrol as a cleaning agent. It was, therefore, entirely unaware of any potential risk or danger to Keogh’s employees. The evidence shows that the hotel premises were in all respects safe. There was no danger of which the company was or ought to have been aware. The danger was created by the act of Keogh and his employees in bringing on to the premises an inflammable cleaning agent. The company was entirely unaware of that fact. Section 17C(2) lists the matters which the court must take into account. They include
(e)the extent (if at all) to which the occupier was aware, or ought to have been aware, of
(i) the danger; and
(ii) the entry of the persons on to the premises.
In my view, there can be no liability if the danger is one of which the occupier was not aware and could not with the exercise of reasonable care have become aware. To conclude otherwise would make the occupier the insurer of all who came on to his premises. The company was not aware and could not reasonably have become aware of the fact that Keogh’s employees used petrol as a cleaning agent. So far as the company knew there was no foreseeable risk of injury. For that reason, the company as occupier is not liable to the appellant.
The company was also entitled to assume that Keogh would conduct the cleaning in a safe manner and take all appropriate steps to ensure the safety of Keogh’s employees. As Keogh knew that petrol was used as a cleaning agent, it was a duty of Keogh to ensure that the operations were conducted safely. The fact that Mr White knew that plastic was sometimes used to cover the stove did not require the company to take steps to ensure that all burners had been turned off. It was entitled to assume that Keogh would ensure they were turned off.
There will be occasions when an occupier is subject to a non-delegable duty to ensure that reasonable precautions are taken to prevent injuries to employees of an independent contractor but, for the reasons expressed, this is not one of those occasions. There was no risk of which the company could or should have been reasonably aware.
Occupational Health, Safety and Welfare Act 1986
The appellant asserted a claim under s 23 and s 24A of the Occupational Health, Safety and Welfare Act 1986. For present purposes, I assume that a breach of those provisions gives rise to a cause of action. I note the reservations on that question expressed by Doyle CJ in Complete Scaffold Services Pty Ltd v Adelaide Brighton CementLtd [2001] SASC 199 at [46].
The obligation imposed on the occupier of a workplace by s 23 of that Act is to “ensure so far as is reasonably practicable” that the workplace is maintained in a safe condition. This workplace was maintained in a safe condition. It became unsafe only because, unbeknown to the occupier, Keogh’s employees had introduced to the workplace a cleaning agent which created a potential danger. The duty of the occupier of the workplace was to take such steps as were reasonably practicable to maintain the workplace in a safe condition. The occupier had done so. The company did not therefore act in breach of s 23.
An owner of plant has a duty to “ensure so far as is reasonably practicable that the plant is maintained in a safe condition”: s 24A(1)(a) of the Act. The stove was safe but for the introduction of a potential danger of which the company as owner could not reasonably have foreseen. For the reasons just expressed, the company as owner had not acted in breach of s 24A(1).
Section 24A(1)(c) imposes on the owner of any plant a duty to “ensure so far as is reasonably practicable that adequate information necessary to ensure the safe use of the plant is supplied to any user of the plant.” There are two reasons why the appellant cannot rely on this provision. The first is that he was not using the stove in the sense to which s 24(A)(1)(c) refers. A stove is used for cooking. It was not being used for cooking but being cleaned. The second reason is that the obligation is only to do what is reasonably practicable. For the reasons already expressed, the company as owner could not reasonably have known that there was any reason why it should provide any information relating to the cleaning of the stove.
Conclusion
For these reasons I would dismiss the appeal.
ANDERSON J
Introduction
Peter McVicar was seriously injured whilst he was employed as a cleaner and was involved in cleaning the exhaust canopy above a commercial cooking range at the Arab Steed Hotel. S & J White P/L holds the liquor licence for the hotel and has been the licensee since 1993. It leases the premises from the owner of the freehold. I will refer to the company as “the occupier”.
At the time, Mr McVicar was employed by Mr Keogh, who operated a specialised industrial cleaning service. The occupier of the hotel had contracted with Mr Keogh to provide this cleaning service. In turn, Mr Keogh employed Mr McVicar and a Mr Cooper to perform the work. Mr Keogh was present when the work was being performed at the hotel by his employees.
Mr McVicar has sued the occupier of the hotel, for negligence, and also for alleged breaches of statutory duties under the Occupational Health, Safety and Welfare Act 1986 (SA) (“the Act”) as occupier and owner of plant.
Issues
There are two issues in the case. The first is whether the occupier was in breach of a duty to take reasonable care for the employees of the contractor whilst those employees were working at the hotel, but who at all times remained under the instructions of their employer, Mr Keogh. This issue in turn involves a consideration of the provisions of s 17C of the Wrongs Act 1936 (SA) to determine if there was a breach of any duty of care.
The second issue is whether any liability attaches to the occupier for alleged breaches of its statutory duty as occupiers and owner of plant. The duties of occupiers are set out in s 23 of the Act and require the occupier to maintain a safe workplace. The duties of owners of plant are set out in s 24A of the Act.
The accident
The accident occurred when some petrol spilt and was ignited by either a pilot flame on the gas range, or by the heat of the hotplates. The method of cleaning the exhaust canopy above the range involved Mr McVicar using petrol as a de-greasing agent to clean scourers which were used to remove the grease from the canopy. The petrol was not used in cleaning the canopy but only for removing grease from the scourers.
Petrol was the solvent chosen by Mr Keogh for cleaning the scourers, and had been used by him and by his employees under his instructions on other jobs.
The petrol was poured into a plastic bucket, and then hung from a makeshift hook on the edge of the canopy. Mr McVicar was cleaning the canopy by standing on boards which had been placed across the range top. There was also plastic sheeting placed beneath the boards. Mr Keogh knew of the danger of cleaning whilst pilot lights were on. There were obvious risks in using any flammable cleaning materials in close proximity to a pilot light. Mr Keogh normally turned the pilot lights off before his workers commenced cleaning. However, on this occasion, Mr Keogh failed to turn off at least one particular pilot light. He said in his evidence that he could not tell if the pilot light was in fact alight when he looked. He nevertheless allowed the work to continue. The Judge rejected his evidence that he could not tell if the pilot light was in fact on. The Judge found Mr Keogh negligent in this regard and there can be no dispute about this finding.
The lethal combination of the flame from the pilot light, with petrol or petrol vapour, caused the explosion. Mr McVicar apparently bumped the bucket containing the petrol which then caused either the petrol itself or the fumes from the petrol to ignite.
As indicated earlier, the use of petrol as part of the cleaning operation was a normal method used by Mr Keogh and his employees. Mr Keogh was clearly negligent in instructing and allowing his workers to use this method. The negligence of Mr Keogh is of course irrelevant to the remedies available to Mr McVicar because he cannot sue his employer for negligence as a result of the enactment of s 54 of the Workers Rehabilitation and Compensation Act 1986 (SA).
In relation to the duty of care owed by the occupier and any breach of that duty, the argument advanced by Mr Livesey QC, for the appellant, can be summarised in the following way:
1The learned Judge failed to make a finding that there was a duty of care owed by the occupiers to the employees of the independent contractor;
2The learned Judge should have found there was a non-delegable duty because of the inherent risks involved;
3The duty could not be discharged by engaging an independent contractor; and
4The Judge should have found that having regard to s 17C of the Wrongs Act the relevant standard of care had not been met.
Duty of care

Mr Livesey submitted that the trial Judge had erred in failing to identify that a duty of care was owed by the occupiers to Mr McVicar before considering if such a duty had been breached. In my view this is incorrect.
The occupiers of the hotel clearly owed a duty to the employees of independent contractors coming onto their premises. The nature and the scope of that duty was the relevant question to be answered. The trial Judge, in his reasons, analyses the criteria set out in s 17C of the Wrongs Act in relation to the facts of this matter. He then examines the question of whether the occupiers had a non-delegable duty.
Whilst the learned trial Judge does not make any specific finding about whether the occupiers owed a duty of care, his Honour finds at [67] that the plaintiff had failed to establish that the defendant was in breach of its duty of care. This, either at common law or pursuant to the Wrongs Act, in my view, presupposes a finding that there was a duty of care. I believe it to be consistent with the learned trial Judge’s approach generally. It is my view that the Judge has assumed correctly that there must be a duty in these circumstances. His Honour correctly analyses the discussion regarding duty of care and s 17C of the High Court in Neindorf v Junkovic (2005) 222 ALR 631 in his reasons at [41] to [46].
Non-delegable duty and inherent risk
The appellant submitted that the occupier had a non-delegable duty. Mr Livesey submits that in this case an inherent danger arose from the pilot light not being extinguished. It was submitted by him that this was esoteric knowledge of the occupier and therefore because of the hazardous nature of the operation, a non-delegable duty arose. It was submitted that the occupier could not discharge that duty without proper warning of the inherent nature of the risk or by eliminating the risk of fire or explosion.
Mr Livesey submitted that the risk was primarily within the control and the knowledge of the occupier and, further, was a risk which should have been revealed by showing the stopcock to Mr Keogh and Mr McVicar. Otherwise, he submitted, the risk might not be known by them, yet would expose them to danger. I reject this on a commonsense basis. Mr Keogh knew that the range was a gas powered range and that there were pilot lights. Mr Keogh was clearly aware of the risk, but was negligent in failing to properly inspect the pilot light. It was there to be seen. Had he properly checked the pilot light and turned it off, there was no need to use the stopcock.
It was, in my view, the introduction of the petrol for the purpose of cleaning the scourers, that exposed Mr McVicar to a real danger not just the inadvertence by Mr Keogh to turn the pilot light off before commencing cleaning the canopy. I do not consider that the occupier would have been aware or ought to have been aware that Mr McVicar would balance a bucket of petrol on a hook, above the range without turning the pilot light off. It seems that nothing short of supervising the cleaning process could ensure that the petrol and the bucket were not hung above the range if in fact, petrol was to be used as the degreasing agent. In my view, this degree of supervision was not required by the occupiers.
In Northern Sandblasting Pty Ltd v Harris (1996) 188 CLR 313 Brennan CJ stated at 333:
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.
Having read the transcript of the evidence, there is, in my view, no basis upon which it may be found that the defendant should have been aware that petrol was regularly used in the cleaning process or that the risk of explosion was an inherent or esoteric risk unique to the kitchen at the Arab Steed hotel. This is not a case of a non-delegable duty, in my view.
The danger did not arise from the condition of the premises, but rather from the balanced bucket of petrol hung above the stove, combined with the inadvertence or carelessness of Mr Keogh in failing to turn off the pilot light. The task of cleaning the canopy was not a task, which, was inherently dangerous or carrying special dangers other than the danger that would result if the task were done carelessly. (See Complete Scaffold Services Pty Ltd v Adelaide Brighton Cement Ltd [2001] SASC 199 at [42] and [43]; Burnie Port Authority v General Jones Pty Limited (1992-1994) 179 CLR 520 at 558-559). This case should also be distinguished from those cases such as Hughes v Lord Advocate [1963] AC 837 where a series of unusual events unfold to catalyse a foreseeable risk. In my view, there was no foreseeable risk that someone, under the instructions of his employer, would act in the way Mr McVicar did.
It is my view in any event that the occupier’s duty was discharged by the engagement of the expert independent contactor. The engagement of an independent contractor who was experienced and competent discharges the occupiers’ duty in circumstances where it was known by the occupier that the contractor has successfully cleaned at this hotel for several years prior to the accident. Mr Keogh had in fact been in business for 15 years prior to the accident.
Section 17C of the Wrongs Act
Mr Livesey’s submissions as to the negligence of the occupiers are dealt with earlier in these reasons.
In relation to s 17C, Mr Livesey submitted that it was reasonably foreseeable that, if the gas supply was not isolated by the Hotel, there was a real, not fanciful risk of personal injury caused by fire when cleaning the canopy although it may have been easy to find the means whereby the gas supplying the range could be turned off. He submitted that if the occupier had at least shown Mr Keogh where the stopcock or the gas mains were, he would have discharged his duty of care by ensuring that there was no breach of the relevant standard of care. That amounts to saying that the occupier should have taken some positive action.
Mr Livesey argued that it was the duty of the occupier to either tell the contractor how the gas could be isolated, or actually turn the gas off himself. Mr Livesey submitted that the occupier knew or should have known that there was combustible material which was to be used in the cleaning process.
He submitted that the trial Judge incorrectly found that there was no basis on which the hotel knew that combustible material was being used. That challenge to a finding of fact is the only challenge made to the findings of fact.
Mr Livesey’s point then becomes that because there was evidence from Mr White that he thought that there was plastic used by the cleaners, and that he assumed cardboard may also be used, therefore it became a case of the occupier, although not knowing the precise risk, was nevertheless aware of a general risk that there may be fire, and as a result, personal injury. – See Mount Isa Mines v Pusey (1970) 125 CLR 383.
Mr Livesey puts it that there was the potential for a fire if the pilot light was not extinguished. The occupier permitted the cleaning to take place in the light of that risk without either telling the contractor or making sure that the pilot light was extinguished.
It seems to me that that is placing too high an onus upon the occupier. It effectively requires the occupier to second-guess the specially qualified independent contractor as to the fact that the contractor may do something completely unforseen in the course of the cleaning operations. In this case of course it was hanging a bucket of petrol in the vicinity of the pilot light.
Whilst the reasoning in Mt Isa Mines does not require foreseeability of the precise way in which some accident may occur, it seems to me that in this case it would be going even further to say that the occupier here, having engaged a specialised independent contractor, should nevertheless assume that the contractor would allow the work to proceed in such a negligent fashion as it did.
Even assuming that the occupier knew cardboard or plastic was likely to be used, the occupier could not be expected to foresee that there would be direct heat by way of a naked flame coming into direct contact with the materials.
The fact is that the occupier did foresee that the real risk in cleaning the canopy arose from the exhaust fan itself, and took measures to ensure that the exhaust fan was not turned on during the cleaning process.
Having considered the facts of this case and the trial Judge’s findings, and having regard to the relevant criteria as set out in s 17C(2)(a)-(h) of the Wrongs Act it seems to me that looking at the whole sequence of events leading up to the accident, the occupier cannot be criticised for taking no positive action.
His Honour has carefully analysed s 17C and relates each sub-section to the facts in his reasons at [65] and I agree with his analysis.
In this respect, this case is not unlike Neindorf v Junkovic. The High Court there addressed the question of the relevant standard of care required of occupiers in light of the enactment of s 17C. In particular Hayne J at [92] stated that:
In deciding that question, s 17C(2) requires a court to take into account the matters that are identified in the eight paragraphs of that subsection, recognising, of course, that the last of those (“any other matter that the court thinks relevant”) is open-ended. Account must be taken of each of the matters that is identified. But in doing so it is important to recall that s 17C(3) makes plain that there are cases in which doing nothing to eliminate, reduce or warn against a danger is consistent with exercising reasonable care. In particular, demonstrating that an occupier “was aware, or ought to have been aware of” both “the danger” that led to an entrant being injured and “the entry of persons onto the premises” does not require the conclusion that the occupier should have taken some step to eliminate, reduce or warn against that danger. Rather, it is necessary to take account of all of the matters specified in s 17C(2), including “the extent (if at all) to which it would have been reasonable and practicable for the occupier to take measures to eliminate, reduce or warn against the danger” (emphasis added).
In my view the occupiers of the hotel discharged their duty of care in the circumstances of the case. This is not a case in which the duty of care that the occupier owed to Mr McVicar was one which required it to take positive steps to ensure that reasonable care was taken by Mr Keogh in his attempts to check that the pilot lights were off. In this case, although, as I have said, the occupiers owed a duty of care to Mr McVicar, for the reasons already expressed, they have discharged that duty.
Statutory duty
In the course of submissions the appellant sought leave to file an amended notice of appeal. Leave was granted. The amended notice of appeal contained additional grounds relating to alleged breaches of the Act by the occupier. No substantial oral submissions were made to support these grounds of appeal. Counsel for the appellant relied on his written submissions on this aspect, as did counsel for the respondent.
The appellant submitted that certain provisions of the Act applied to the occupier and imposed on a duty, the breach of which gave Mr McVicar a cause of action against it. The appellant submitted that the trial Judge was wrong in failing to make findings that the occupier was in breach of these statutory duties.
The amended notice of appeal complains specifically that there was a breach of s 23 and s 24A(1)(c) of the Act. Section 23 deals with the duties of occupiers, and s 24A deals with the duties of owners of plant.
Section 23 requires the occupier of a workplace to ensure so far as is reasonably practicable that the workplace is maintained in a safe condition. I doubt very much whether this imposes any more onerous requirements than the occupier’s duty at common law.
Section 23 of the Act was considered in Complete Scaffold v Adelaide Brighton Cement [2001] SASC 199. Doyle CJ summarised the position in his reasons between [45] and [82]. Adopting the same reasoning as his Honour, it is my view that the occupier “ensured so far as was reasonably practicable that the workplace was maintained in a safe condition”. His Honour doubted in Complete Scaffold at [58] whether s 23 “applies at all to a passing incident such as occurred here”, and with respect, I share that view on the facts of this case.
It is my view that Complete Scaffold was a case similar to this case. Mr McVicar was injured as a result of the negligence of his employer in allowing him to hang a bucket of petrol above the range. His injury was also caused by his own carelessness in the course of cleaning the canopy. The precarious balancing of the bucket and the use of petrol was something over which the occupier had no control. In my opinion, the evidence supports the finding that the occupier ensured as far as reasonably practicable that the workplace was maintained in a safe condition.
For the reasons already expressed, it is my view that the workplace, as a workplace, was safe when the pilot lights were burning on the cooking range in the kitchen. I agree with the reasons expressed by the trial Judge at [75].
Section 24A(1) imposes a duty on the owners of plant. It requires the owner to ensure, so far as is reasonably practicable, that the plant is maintained in a safe condition. Once again, I do not think that this section does any more than restate the common law duty, but in respect of owners of plant. The section also requires, by virtue of 24A(1)(c) that the owner ensure that adequate information necessary to ensure the safe use of the plant is supplied to any user of the plant. In some respects, again, this is a restatement of the position of common law, but in one respect it confines the duty as being owed only to any user of the plant.
The trial Judge rejected the appellant’s argument regarding the operation of this section in his reasons at [77] and [78] by concluding that the plaintiff was not a user of the plant but someone who was “simply standing on it”.
In my view, the cooking range is not plant for the purposes for which Mr McVicar was employed. Mr McVicar was an employee of an independent contracting company, which was engaged once a year to provide specialist cleaning on the exhaust canopy above the cooking range in the kitchen of the hotel. The cooking range cannot be considered to be part of the “plant” which was being “used” by Mr McVicar. Merely standing upon the range does not constitute use. In my view, Mr McVicar cannot be considered to be a “user” of the stove by standing upon it.
I conclude therefore that there has been no statutory breach by the occupier.
Conclusion
It is my view that for the reasons expressed, the appeal in this matter should be dismissed.