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.…

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.

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Details

Case: [2007] SASC 107
Decision Date: 29 March 2007

CaseChat Overview and Summary

The appeal against the District Court's decision was brought by Mr McVicar, an employee of Keogh, who was injured while cleaning the canopy above a commercial cooking range at the Arab Steed Hotel, which was operated by S & J White Pty Ltd. The incident occurred when petrol, used by Keogh as a cleaning agent, ignited due to a pilot flame, resulting in severe injuries to Mr McVicar. The appeal focused on whether the hotel operator, as the occupier of the premises, breached its duty of care by not taking steps to ensure the safety of Keogh's employees. Additionally, the appeal examined whether the occupier had violated statutory duties under the Occupational Health, Safety and Welfare Act 1986 (SA).

The key legal issues revolved around the occupier's duty of care towards employees of an independent contractor working on the premises. The court had to determine whether the occupier was aware or should have been aware of the risk posed by the contractor's use of petrol as a cleaning agent. Furthermore, the court considered whether the occupier's statutory duties under the Occupational Health, Safety and Welfare Act had been breached, specifically whether the company was required to take additional precautions beyond engaging an expert contractor.

The Supreme Court of South Australia concluded that the hotel operator was not in breach of its duty of care as an occupier. The occupier had engaged a competent independent contractor and had no knowledge or means of knowing about the dangerous cleaning methods employed by Keogh. The court emphasized that the occupier was not required to supervise the contractor's work or ensure that all burners were turned off. The danger arose from the contractor's actions, not from any condition of the premises. Therefore, the occupier had fulfilled its duty by hiring a qualified contractor and was not liable for the accident. The court also found that the occupier had not breached the statutory duties outlined in the Occupational Health, Safety and Welfare Act.

As a result, the appeal was dismissed, affirming that the occupier was not liable for the injuries sustained by Mr McVicar due to the independent contractor's negligence. The occupier had discharged its duty by engaging an expert contractor and had no reason to foresee the risk associated with the contractor's use of petrol.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

DOYLE CJ DEBELLE J (dissent)

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. 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.

Ratio Decidendi

Legal Principle Established

Established by: DOYLE CJ,

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.