Mcvicar v S&j White Pty Ltd T/A Arab Steed Hotel - [2006] SADC 49

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
MCVICAR v S&J WHITE PTY LTD T/A ARAB STEED HOTEL
Judgment of His Honour Judge Anderson
8 May 2006
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DUTY OF CARE - REASONABLE FORESEEABILITY OF DAMAGE - PARTICULAR CASES - DUTY OF OCCUPIER
Plaintiff employee of competent independent contractor employed by Defendant to work on its premises - employer failed to ensure gas pilot light extinguished - employer introduced petrol to kitchen unbeknown to Defendant - explosion - Plaintiff seriously injured - not reasonably foreseeable - no non-delegable duty - no breach of statutory duty - judgment for Defendant.
Wrongs Act 1936 s17; Occupational Health, Safety & Welfare Act, 1986 s23, s24A; Workers Rehabilitation and Compensation Act, 1986 s54, referred to.
Neindorf v Junkovic [2005] HCA 75; Complete Scaffold v Adelaide Brighton Cement [2001] SASC 199; Northern Sandblasting P/L v Harris (1997) 188 CLR 313, applied.
Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7; Thompson v Woolworths (Queensland) Pty Ltd (2005) 214 ALR 452; Van-Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204; Briginshaw v Briginshaw & Another (1938) 60 CLR 336, considered.

MCVICAR v S&J WHITE PTY LTD T/A ARAB STEED HOTEL
[2006] SADC 49

The Defendant is the occupier of the premises known as the Arab Steed Hotel (“the hotel”). It was the occupier on 13 September 1999, the relevant date in these proceedings.
On that day, Mr Keogh attended the hotel in his capacity as a specialised industrial canopy cleaner to clean the kitchen canopy. The Plaintiff was one of his employees who also attended, as did Mr Cooper, another employee.
In these proceedings, the Plaintiff seeks damages in relation to very serious injuries which he sustained as a consequence of being burnt in an explosion which occurred in the kitchen of the hotel shortly before 6.00am on 13 September 1999. He seeks damages from the Defendant said to be founded, either by a breach of s17C of the Wrongs Act 1936, or as common law negligence or as a consequence of the alleged breach by the Defendant of a non‑delegable duty existing at common law or as a consequence of an alleged breach of s23 or s24A of the Occupational Health, Safety & Welfare Act 1986 so as to amount to a breach of a statutory duty.
Mr Eriksen and Mr Bryant of counsel appeared for the Plaintiff. Mr Possingham of counsel appeared for the Defendant.
No issue was taken as to the incorporation of the Defendant or as to its occupancy of the site. Mr & Mrs White were the Directors of the Defendant and were managers of the hotel. Each had, on 13 September 1999, many years experience in the day to day running of the hotel in all its facets.
Mr Keogh said in evidence that he began his career as a commercial cleaner in 1984. In 1985, he began to specialise in industrial canopies. In September 1999, he traded as Commercial Canopy Cleaners - specialist industrial and kitchen cleaners. His estimate was that he had cleaned about 20,000 canopies in establishments such as hotels, motels, restaurants, fish shops and chicken shops from 1984.
The Plaintiff said in evidence that he had worked with Mr Keogh as a casual employee on about 30 occasions over a period of three years. Mr Keogh, however, said it was more likely 10 to 12 occasions over about two and a half years. Nothing turns on this difference as there is no suggestion that the Plaintiff was other than a competent canopy cleaner whom Mr Keogh had used on several occasions over recent years and who understood the task at hand. Earlier in his life, the Plaintiff had his own cleaning business.
Mr Keogh began cleaning the canopy in the kitchen at the hotel in about 1993. He returned annually and, by arrangement with Mr White, was to attend on 13 September 1999. Mr White was entirely satisfied with the work done by Mr Keogh and his staff and was happy to have him return to clean the kitchen canopy each year.
Mr Jones was a hotel cleaner employed by the Defendant. He began work at about 4.00am on his working days and cleaned the hotel until about 7.30am when he left. He was told by Mr White to expect the cleaners on 13 September 1999 at about 5.00am.
On that day, Mr Keogh picked up the Plaintiff and Mr Cooper, who was then aged about 18, in his utility which also carried all necessary equipment to undertake the task at hand. Upon arrival at the hotel, at about 5.15am, they were let in by Mr Jones.
I have taken this narrative from the evidence which, to this point, is not in substantial dispute. Where any such dispute exists, the narrative constitutes my findings. I continue on a like basis.
Upon entry into the hotel, all three men went and looked at the job. The kitchen was quite small. Its dimensions are in evidence, as are photographs of the appliances and diagrams of its layout. There was limited room to manoeuvre.
The Plaintiff and Mr Cooper then returned to the vehicle and brought some of the necessary equipment into the kitchen. Several trips were necessary. Whilst they were doing this, Mr Keogh went into the kitchen to ensure that the pilot lights were extinguished and to remove the filters in the canopy. The open gas ring burners on the left of the range of appliances did not have pilot lights. Next to the burners was a hot plate of commercial size atop an oven. Mr Keogh said he looked through two portals adjacent to the gas control knobs on the fascia of the hot plate and that he could not see any pilot light burning. He said that his vision was obscured by these holes being occluded with fat and cooking residue. He did nothing more other than to feel the hot plate on top of the oven. He said that it felt warm, not hot, to his hand and he assumed that it was still cooling down from use on the previous evening and that the pilot lights were extinguished. He did nothing more to check whether the two pilot lights of the hot plate burners were burning or not. He then turned off the two pilot lights in the deep fryer, which was to the right of the hot plate.
I do not accept the evidence of Mr Keogh that the holes on the front panel of the hot plate adjacent to the gas control knobs were occluded by fat and cooking residue. As a consequence of preferring the evidence of Mr White as to the regular cleaning practise in the kitchen and, more particularly, as a consequence of the evidence of Mr Hall, who was one of two chefs on duty on the evening of Sunday, 12 September 1999, I find that the fascia of the hot plate, including the pilot light holes, were clean and were kept that way at all times.
I accept the evidence of Mr Hall that it was usually his responsibility to clean the hot plate when the kitchen closed and that he did so on this evening. As part of this duty he wiped the whole appliance and there was no fat or cooking residue on, in or about the fascia of the hot plate.
Mr Keogh did not see the pilot light burning because he was careless.
Mr Keogh then removed the four fat filters from within the hood of the canopy. To do so, he used an up‑turned milk crate and stood on the appliance range so as to be able to reach them.
He then went outside into the hotel rear yard and picked up discarded cardboard to put across the top of the appliances. Mr Jones saw him taking cardboard into the hotel, but did not see him position it. I am satisfied that he put it across the appliances as he said so as to protect them. The Plaintiff and Mr Cooper then placed boards to stand on on top of the cardboard.
In addition to the items I have mentioned, scrapers, buckets, gloves, chemicals and scourers were used in the cleaning process. The process required that a person, here intended to be the Plaintiff (and perhaps Mr Cooper, but that was never made clear on the evidence) stand on the boards, through the canopy opening and scrape the accumulated fat and residue into a bucket. That which remained would be cleaned with a scourer and hot water. When the scourer became clogged, it required to be de‑greased. Mr Keogh used a small quantity of petrol for this purpose. Mr Cooper said that part of his duty was to put about three inches of petrol into a bucket from a container in the utility and take it into kitchens for this purpose. His evidence, which I accept, is that he did so on this morning.
At some time, before he did that and whilst the preparations I have described were underway, Mr Jones made coffee for all in an area adjacent to the kitchen door. Again, because of the effluxion of time, there is some uncertainty as to the precise order of things, but, from the evidence, I am satisfied that Mr Keogh did his work in the kitchen before coffee and that Mr Jones had his coffee and left the area to go about his work at about the time the Plaintiff went into the kitchen to begin cleaning after the cardboard and wooden boards were in position and after he had had coffee.
Whilst Mr Jones was Mr White’s “man in charge”, as it were, I accept that he knew Mr Keogh from at least one earlier visit to the hotel and had no interest at all in how he and his men went about their work. His main objective, from his evidence, was to let them in, ensure they were settled and then go about his business which needed to be completed by about 7.30am. I had the clear impression from his evidence, and I find, that once he was happy that Mr Keogh was safely in and the security of the hotel was maintained, he had no interest in the work in the kitchen and made no enquiry, or even substantial observation, in relation to it.
It was after Mr Jones had left coffee to go back to his cleaning duties that Mr Cooper went to the utility to bring in the petrol in the bucket. He gave it to the Plaintiff who was by now crouching on the boards on top of the kitchen appliances. Mr Keogh was outside of the kitchen, having finished his coffee, and was preparing to go to the rear yard of the hotel to work on cleaning the riser from the kitchen canopy - a usual part of the task at hand.
Mr Cooper gave the bucket containing the petrol to the Plaintiff who hung it on a hook which had been placed on the inner lip of the front of the canopy above about the junction of the hot plate and the deep fryer. He turned and began to walk out of the kitchen. As he did so, he heard the Plaintiff call out “This is fucking hot” (T206). 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.
Mr Keogh heard the Plaintiff’s exclamation and rushed back to the kitchen door and saw the Plaintiff alight and the fire in the kitchen. He pulled the Plaintiff out of the area near the hot plate lest the oil in the deep fryer explode. He then rolled the Plaintiff on the floor in the lounge area of the hotel and tried to pat out the fire engulfing him. Mr Jones came from elsewhere in the hotel and trained a fire extinguisher on the Plaintiff to extinguish the flames. He did so. He then extinguished the fire in the kitchen. Mr Keogh pulled burning and smouldering clothes from the Plaintiff. In assisting the Plaintiff, he sustained significant burns to his hands. The Plaintiff sustained the very severe injuries which Mr Eriksen described in his opening address. It is not in issue that the explosion was as a consequence of the spilt petrol coming into contact with a burning pilot light under the hot plate.
As this matter is concerned only with the issue of liability, I do not need to further describe or consider the extent or sequelae of the Plaintiff’s injuries.
Mr Jones then telephoned the emergency services and at about 6.00am, rang Mr White at his home. He attended at the hotel at about 6.15am. He immediately went and checked the pilot lights in the kitchen. He found the two in the hot plate still burning. He turned them off. Those in the deep fryer were off. About two hours later, at another inspection, he found the pilot light in the oven, beneath the hot plates, still burning and he turned it off.
There was some uncertainty of recollection in the evidence as to whether plastic had been laid over the cardboard and under the boards. On balance, I think it unlikely because of the short time between the spilling of the petrol and ignition. Were the whole area to have been covered in plastic so as to prevent water and residue seepage, the contact between petrol and the naked flame may not have occurred or, most likely, would have been somewhat more delayed.
Mr Keogh gave evidence that it was his usual practice to use petrol to clean the scourers as they became clogged with grease and residue in the canopy cleaning process. He said that he had almost always used it in his canopy cleaning. More importantly, he used it on at least 90% of the occasions on which he had previously cleaned at the hotel.
I accept the evidence of both Mr White and Mr Jones that they were unaware of this use of petrol inside the hotel until they so learned after the fire. Mr White said that had he been aware of the use, or intended use, of petrol for the purpose described, he would have immediately cancelled his arrangement with Mr Keogh’s canopy cleaning service. He in fact did so after this day. Had he been informed by Mr Jones of the presence of petrol in the hotel, he would have immediately instructed him to direct that the cleaning stop and that Mr Keogh and his staff be forthwith banished from the hotel.
I find that neither Mr White nor Mr Jones had, earlier than 13 September 1999, or in the case of Mr Jones, on that day, ever smelt petrol in the kitchen or in the vicinity of any of the equipment brought into the hotel for the cleaning purpose. I am satisfied that they had no knowledge of the use of petrol in the canopy cleaning process in the hotel kitchen before the explosion on 13 September 1999.
I accept the evidence of Mr White that on no occasion was he present in the kitchen when cleaning was being undertaken and, at best, would only go near the kitchen when cleaning up was underway, if he was present in the hotel.
Similarly, I accept the evidence of Mr Jones that he never went into the kitchen when cleaning was underway as, to paraphrase his evidence, “they had their job and I had mine”.
Thus, I find that the Defendant, via its representatives, was unaware of the use of petrol in the canopy cleaning process until after the Plaintiff was burnt on 13 September 1999. I do not accept evidence given on behalf of the Plaintiff that the smell of petrol would have been detectable outside of the kitchen during its use.
Because of the provisions of s54 of the Workers Rehabilitation and Compensation Act 1986, I am not concerned to attach any liability to Mr Keogh. Were it not for that section, the matter would be entirely different.
I am satisfied that Mr Keogh was a competent industrial canopy cleaner who had carried on his business successfully and without significant incident for about 15 years prior to 13 September 1999. As I have said, he had successfully completed his work at the hotel for several years before 1999. No criticism of that work was offered. He was, to my mind, qualified in his field and was entitled to be so regarded by Mr White.
That Mr White took such a view is to be gained from his evidence as to the success over about the five previous years of the arrangement and that he was pleased to allow Mr Keogh to go about his business unsupervised and without specific and detailed directions as if he were like any other qualified specialised tradesman. Because he had learned by experience over many years, and not by study or trade training, did not require that Mr White treat him differently from a plumber, electrician or gas fitter when he was on the hotel premises to do his own specialised form of work.
It follows that because of this apparent expertise and the earlier successful completion of the required work, there was no obligation on Mr White to give specific directions as to where pilot lights were on the respective kitchen appliances and how they may be extinguished or where the gas main was and how the gas flow may be turned off, either at a stopcock or at the gas meter. What the safety instructions for maintenance and cleaning as contained in the guide book for the oven/hot plate appliance were, therefore, is of no relevance, not only because Mr White was entitled to rely upon Mr Keogh’s competency, but also because the oven/hot plate was not being cleaned.
As the expert industrial canopy cleaner, Mr Watkinson, implied in evidence, commonsense dictated that the pilot lights be turned off before canopy cleaning began. Here, of course, Mr Keogh knew that because that was what he initially sought to do, albeit partially unsuccessfully, when he first entered the kitchen and before he removed the filters in the canopy. It was his usual practice before work commenced at any site.
The provisions of s17C of the Wrongs Act 1936 are the starting point from which to consider the Plaintiff’s position.
Section 17C, so far as is relevant, is in these terms:
(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 effect of this subsection is to provide “that the liability of an occupier for injury ..... attributed to the dangerous state or condition of premises shall be determined in accordance with the principles of the law of negligence” Neindorf v Junkovic [2005] HCA 75 per Hayne J at paragraph 91. His Honour there refers to the “determination question” presented by s17(C). He states that question to be “what was the standard of care to be exercised by the [defendant]?”
The correct approach to this question is then set out by His Honour in paragraph 92 in these terms:
In deciding that question, s17C(2) requires a court to take into account the matters that are identified in the eight paragraphs of that sub-section, 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 s17C(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 s17C(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 original).

In paragraph 93, he states that a decision as to “what would have been reasonable and practicable for the occupier to do” involves no departure from previous doctrine.
This approach is consistent with that taken by other members of the Court and, in particular, by Kirby J who, whilst in dissent on the result, said that the correct starting point .... “where a statute of relevant operation has been enacted ..... is ...... to start [any] analysis of the legal liability of the parties not with the pre‑existing common law but with the statutory prescription” (Ibid paragraphs 41 and 42).
In this matter, neither counsel at any time suggested that there would be any difference in a conclusion reached by the application of the provisions of s17C of the Wrongs Act 1936 as opposed to the application of the ordinary principles of common law negligence.
Hayne J at paragraph 94 (ibid) described the correct approach to the question in these terms:
This inquiry about what would have been reasonable and practicable is not to be undertaken in hindsight. Nor is it to be confined to what could have been done to eliminate, reduce or warn against the danger. Asking what could have been done will reveal what was practicable. It is necessary to ask also: would it have been reasonable for the occupier to take those measures? (footnote omitted)
It was on this basis that Mr Eriksen submitted that there is a duty of care upon an occupier to act reasonably in relation to an employee of an independent contractor engaged by the occupier to do work for its benefit in relation to those matters which remain under the control of the occupier. He said that this is so where it was reasonably foreseeable, should it fail so to do, that harm would come to such an employee, in this case, the Plaintiff.
This, of course, picks up the question posed by Hayne J as to what would have been reasonable, in the circumstances, for the occupier to do. (Paragraph 94 ibid).
Such a duty will exist only if the injury sustained by the Plaintiff was reasonably foreseeable to a person in the Defendant’s position. Here, that is as the operator of a commercial kitchen in premises where a seemingly competent professional industrial canopy cleaner was engaged to practise his calling.
However, the Plaintiff went further and submitted that not only did such a (common law) duty exist, but, because of the special danger posed by what Mr Eriksen said was the foreseeability of an explosion upon the combination of gas and any introduced combustible substance, such a duty of care was non‑delegable.
As might be expected, such a proposition was refuted by Mr Possingham. Whilst he agreed that an occupier may have such a duty where what the employee (here, the Plaintiff) has to do is inherently risky, he denied that that was so in this kitchen.
He submitted that there was no such inherent danger in this matter. That the burning of pilot lights in the kitchen in itself was not inherently risky - especially when it is acknowledged that the independent contractor, Mr Keogh, together with the Plaintiff on at least one previous occasion - had entered the kitchen to do such work without known difficulty. In addition, there is no doubt that Mr Keogh was aware of his responsibility to extinguish any burning pilot lights before any work above the appliances and within the canopy began. Of course, on this day, as I have mentioned, he turned off the pilot lights he knew to be burning and decided that those under the hot plate were not burning, even though he admitted that he did not see one way or the other, and reached his conclusion based solely upon how warm he thought the hot plate was.
Mr Possingham submitted that what gave rise to an inherently dangerous risk being attached to this cleaning operation was, unknown to the Defendant or its staff, the introduction of petrol into the kitchen as an aid to the cleaning process. This, he said, was something which was not reasonably foreseeable by the Defendant through its staff.
On the issue of reasonable foreseeability, Mr Eriksen placed significant emphasis on the acknowledged failure by Mr White and his wife, in their capacity as managers of the hotel for the Defendant, and thus the Defendant, to give instructions to either their staff, or to Mr Keogh, as to how to either turn off the gas supply to the kitchen or how each individual appliance might be isolated from the gas supply or to direct, at some time before Mr Keogh and his men arrived, and once it was known they were coming, that the pilot lights and/or the gas supply be turned off.
In this regard, he placed reliance on the decisions of the High Court in Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7 and Thompson v Woolworths (Queensland) Pty Ltd (2005) 214 ALR 452.
However, on this topic, these decisions are not in any way different from the test proposed by Hayne J to which I have already referred. As is said in the first of those cases at paragraph 31 “The limit of foreseeability is a question of fact and degree”.
In relation to this issue it was submitted, on behalf of the Plaintiff, that, as a reasonable occupier of premises armed with knowledge 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;
it was foreseeable that if there was no action by the Defendant danger may arise.
In this regard, significant weight was attached to the fact that Mr Keogh was “not an expert in gas or gas stoves” (submission of Plaintiff p27) and that he should not be relied upon to ensure that the pilot lights were all turned off before work began.
This submission totally ignores that Mr Keogh had carried out this work on at least five previous occasions without incident and that there was no need for him to be an expert in relation to gas fittings to undertake the work or its preparation. He knew he had to turn the gas off and he was negligent in that he did not ensure that the gas was turned off in each appliance.
There was no basis upon which the Defendant was to know that it should have done so. Had Mr White made enquiries of his chefs as to usual industry practice the overwhelming inference from the evidence is that he would have been told that his practice in the hotel before 13 September 1999 was standard across the industry. The evidence of Mr Watkinson and Mr McInnes is to this effect. Indeed, had he asked Mr Keogh, the same inference is that he would have been told the same thing.
There is no basis upon which it may be found that the Defendant should have been aware that petrol, in particular, or any other combustible material, was regularly used in the cleaning process. Neither Mr White nor Mr Jones were in the kitchen during the cleaning process on earlier occasions. On this day, Mr Jones had gone to another part of the hotel after coffee before Mr Cooper bought the petrol in and gave it to the Plaintiff. There is no basis upon which it was known that there was the use of, or a smell of, petrol about the hotel such that Mr Jones or Mr White should have appreciated what was to occur in the cleaning process on this day or had occurred on any earlier occasion.
For the Defendant to have been in the position called for by the Plaintiff requires that the “hindsight” so deprecated by Hayne J be relied upon. That cannot occur.
The position here is analogous to the discussion on the topic of foreseeability undertaken by the NSWCA in Van-Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 where, at paragraph 72, the Court said that the defendant was entitled to assume that [that plaintiff - or here, Mr Keogh] would identify any risk and take steps to avoid it:
For the defendant it was not reasonably foreseeable that the plaintiff would come to harm because of the skill [the defendant] had detected in him during his earlier association and because of his experience .....
I return to s17C of the Wrongs Act 1936 and, in so doing, recognise that linked to the eight subparagraph of s17C(2) subsection (3) allows that reasonable care may, in some cases, be exercised by doing nothing to eliminate, reduce or warn against a danger.
I shall refer to the subparagraph of ss(2) seriatim:
(a)“The nature and extent of the premises”: This was the rather confined kitchen of a city hotel. Because of this there exists a consideration pointing towards a higher standard of care even though it was closed for business and the pilot lights were usually left burning.
(b)“The nature and extent of the danger arising from the state or condition of the premises”: The kitchen was unoccupied and cleaned down. The pilot lights were on and the hot plate was warm. The nature and condition of the premises was such that there was no unusual danger existing. The hot plate was not hot enough to burn on contact and so there could be no reasonable expectation of any combustion when Mr Keogh entered the hotel.
(c)“Circumstances of exposure to the danger”: Notwithstanding the greater obligation that may exist where contractual interest exists for an occupier in relation to a contractor he has allowed onto his premises (Kirby J Neindorf v Junkovic Ibid paragraph 65) there existed in this kitchen no danger reasonably known to Mr White or Mr Jones. The danger arose from the failure of the Plaintiff’s employer’s system of work which was unknown to, and unsupervised, by the Defendant. It was not the Defendant’s duty to supervise the work of the independent contractor so as to ensure the Plaintiff’s safety: Papatonakis (ibid). There was no special danger in the condition of this kitchen as it was presented to Mr Keogh.
(d)“The age of the Plaintiff and his ability to appreciate danger”: There was no obligation upon the Defendant in this regard. The Plaintiff was of mature age and able to appreciate danger, as indeed, he did, as is evidenced by his exclamation to Mr Cooper immediately before he went to leave the boards over the appliances and bumped the bucket. Mr Jones recognised that the Plaintiff had been before with Mr Keogh. There is nothing from this head to increase the Defendant’s responsibility.
(e)“The Defendant’s awareness”: The Defendant knew that the pilot lights were on and that Mr Keogh knew so and always dealt with them. He knew from the effluxion of time and through Mr Jones, that those who entered were experienced. There was no reason for the Defendant to anticipate that there was danger in the kitchen or likely to be introduced into it.
(f)“Measures taken to eliminate danger”: There is no way the Defendant could have or should have known of the introduction of petrol into the kitchen. Had he known he would have terminated Mr Keogh’s contract and removed him and his staff and equipment from the kitchen forthwith.
(g)“Reasonableness of steps to eliminate danger”: Having regard to the Defendant’s past relationship with Mr Keogh, there existed no reasonable basis for the Defendant to take any steps in relation to the danger which did not exist until the petrol was brought into the kitchen. Hindsight has no role in this assessment.
(h)“Any other relevant matters”: Mr Keogh was a regularly employed, competent industrial kitchen cleaning contractor who had, on every past visit, successfully and uneventfully completed his contract.
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 s17(C)(3).
The Plaintiff has failed to establish that the Defendant was in breach of either the provisions of s17C of the Wrongs Act 1936 or of the principles of common law negligence.
On the assumption, made in favour of the Plaintiff, that there presently exists in these circumstances, a non‑delegable duty of care owed to him by the Defendant, I am not of the view that it has been shown to have been breached. On the findings which I have made, the task to be preformed by Mr Keogh (and so the Plaintiff) did not carry with it “the inherent and high risk of harm to others ..... [or] the particular responsibility for the safety of another person or a special vulnerability on the part of that person”Complete Scaffold v Adelaide Brighton Cement [2001] SASC 199 per Doyle CJ at paragraph 42.
In the task here to hand, I am not persuaded that there existed such a risk and consequently, the performance of the work - the cleaning of the canopy - could be discharged by the employment of a competent independent contractor: Northern Sandblasting P/L v Harris (1997) 188 CLR 313 @ 333 per Brennan CJ. I have earlier repeatedly emphasised that the Plaintiff has failed to show that Mr Keogh was not such a person.
There is no basis for the Plaintiff’s submission that liability under this head arises from Mr Keogh merely bringing petrol onto the Defendant’s premises (submissions of Plaintiff at p29). The evidence overwhelmingly establishes that the Defendant neither “knew” nor “permitted” such a thing to occur.
I come then to the Plaintiff’s claim based upon an alleged breach of statutory duty. This alleges breaches of ss23 and 24A of the Occupational Health, Safety and Welfare Act 1986.
Those sections are in these terms:
23-Duties of occupiers
The occupier of a workplace must ensure so far as is reasonably practicable-
(a)    that the workplace is maintained in a safe condition; and
(b)    that the means of access to and egress from the workplace are safe.
Maximum penalty:
(a)    for a first offence-Division 2 fine;
(b)    for a subsequent offence-Division 1 fine.
24A-Duties of owners of plant
(1)     .....
(a)     .....
(b)     .....
(c)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.
For present purposes, like Doyle CJ at paragraph 46 of Complete Scaffold v Adelaide Brighton Cement (Ibid), I proceed on the basis that there exists for the Plaintiff, in these circumstances, a private cause of action pursuant to either of these provisions. Respectfully, I share the reservations the Chief Justice has expressed in that paragraph on this topic.
Pursuant to s23, the Defendant has an obligation to maintain the work place in a safe condition and that the means of coming and going are safe.
Here, I am concerned only with the safe maintenance of the workplace. It was safe when the pilot lights were burning before Mr Keogh arrived on 13 September 1999. It did not subsequently become unsafe, in this sense, when something occurred which the Defendant neither permitted nor allowed and so it was something (namely the introduction, on Mr Keogh’s instructions, of petrol) which was not reasonably foreseeable.
The Plaintiff has failed to discharge the ordinary civil onus in this regard, even though it may be arguable, because the section has a penal sanction, that the appropriate onus of proof is higher: Briginshaw v Briginshaw & Another (1938) 60 CLR 336.
Section 24A(1)(c) requires that the Defendant, as owner of the relevant plant, provide information to the Plaintiff to ensure the safe use of the plant. This is an obligation between the owner and the user - here the Defendant and the Plaintiff.
The Plaintiff was not using any plant. He was simply standing on it. He, as he was entitled to do, relied on Mr Keogh in safety matters and did not use any appliance in the kitchen in the sense that he was using it for the purpose for which it was designed which, in my view, is the objective of the section.
No breach of any statutory obligation has been established against the Defendant.
The Plaintiff has failed to establish any breach of its legal obligations by the Defendant. The Defendant is entitled to judgment on the issue of liability. I shall hear counsel on the question of costs and any ancillary orders.