Moore v Pack-Tainers Pty Ltd
[2005] HCATrans 661
[2005] HCATrans 661
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S134 of 2005
B e t w e e n -
STEPHEN MOORE
Applicant
and
PACK-TAINERS PTY LIMITED
Respondent
Application for special leave to appeal
McHUGH ACJ
HEYDON J
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON FRIDAY, 2 SEPTEMBER 2005, AT 11.15 AM
Copyright in the High Court of Australia
MS S. NORTON, SC: If the Court pleases for the applicant with my learned friend, MS E.E.J. WELSH. (instructed by Bryden’s Law Office)
MR I.G. HARRISON, SC: If the Court pleases, I appear with my learned friend, MR P.N. KHANDAR, for the respondent. (instructed by Minter Ellison)
McHUGH ACJ: Mr Harrison, in your submissions, you set out a passage which you say comes from Graham Barclay Oysters Pty Limited, but does it not come from Rockdale Beef Pty Ltd v Carey?
MR HARRISON: As I stand here, your Honour, I am not certain if it does.
McHUGH ACJ: I do not think any of us said that in Graham Barclay, I think that passage comes from Rockdale Beef.
MR HARRISON: I still rely on it, your Honour.
McHUGH ACJ: Yes, Ms Norton.
MS NORTON: Thank you, your Honour. This application relates to an increasingly common situation where an independent contractor is injured at premises occupied by the respondent in this case who, at those premises, employs a number of people as actual employees. The trial judge found that the respondent occupier owed and had breached a duty to the independent contractor to provide a safe system of work while the Court of Appeal found that the independent contractor was solely responsible for his own safety so we say it is an issue of some importance, as this Court has recognised. I believe earlier today, though I was not here, again that there are more and more independent contractors or what have been called dependent contractors actually engaged in working within factories than used to be the case.
McHUGH ACJ: In that particular case the issue was not on a duty of care owed to an independent contractor but whether or not a person who was said to be an independent contractor’s negligence could be attributed to the employer.
MS NORTON: Which is similar to Hollis v Vabu.
McHUGH ACJ: Yes.
MS NORTON: That is not the situation here.
McHUGH ACJ: No, there is a difference.
MS NORTON: The situation here does turn, as all cases do, somewhat on its facts and I had sent up to your Honours just some photographs so that you would know what we were talking about.
McHUGH ACJ: Yes.
MS NORTON: If your Honours go to those, the facts are simply that Mr Moore had experienced fixing certain things for container carriers. He also fixed forklifts. He had been employed for about 10 years, I think, for a company called Linde, who constructed these types of machines including the container carrier which he was engaged in fixing on the day of the accident.
The photographs of those are taken out of the expert’s reports but there are two photos which I think are labelled at the bottom, “Photographs 1 and 2”. The photograph at the top shows the container carrier, itself, and if you look at that you can see on the side of the forklift part of it, or the motored part of it, a number of things that are steps - they get smaller as they go up, they are the steps. The next photo down shows the way the container fits into the container carrier, that is it is a bit like a forklift and the container carrier goes up to it but then it attaches to the container by four anchor points and the container is picked up crossways, not lengthways, so that is how it carries. The purpose of it is you pick up the containers when they are full or empty and you carry them around, it was the only piece of equipment that this respondent had to move containers and they had approximately, at some times, 200 containers in their warehouse, sometimes less.
The other photographs which were sent up are labelled “Photographs 5 and 6” and photograph 5 shows just again the steps on the side of the motored part of the container carrier and what the applicant did was he climbed up those stairs and then you step onto the mudguard on top of the wheel and then you turn around and kind of lift yourself up backwards and put your bottom on the top of the container and then swing around and fix whatever is wrong.
In this particular case, what was wrong was you can just see there, there is like a crossbeam on the container carrier and it has got four anchor points and it would not release so what he had to do was to try and release it, it was done electronically. He would look at the electronics in the cabin of the carrier. If that could not release the container he then had to get on top of the container and his evidence was, and there was no issue, that you actually had to look down inside what you were trying to fix so you could not do it from standing on a ladder or something next to the container, you had to actually get up onto the container and look into it.
He checked three of them and they were all right and he was going to the fourth one when he knelt down to look into it and he slipped and fell off, so that is why the photos were taken up. The last photo, photo 6, just shows the type of surface that he was required to work on, that is what the top of the container, for those of us who have never worked on one, looks like.
McHUGH ACJ: The issue that you have to deal with is what appears in paragraph 73, in particular paragraph 74, of the Court of Appeal judgment at pages 48 and 49 of the book, and it is particularly paragraph 74. What is the matter with that statement of his Honour?
MS NORTON: Your Honour, that is the statement in Justice Young’s judgment. Justice Young’s judgment really focused on the fact that it would only be in exceptional cases that someone in the position of the respondent would owe someone who was an independent contractor a duty of care. I think they even went so far as to owe a duty even to consider whether it was breached and we say that is simply wrong in that whether you are classified as an independent contractor or an employee, or you are an occupier or an entrant, what the applicant in this case was suing in, was suing in negligence and so the question should have been approached, rather than going to the end point, by stepping back to the beginning point and saying, “Okay, there must be a duty because they are an occupier, what is the term of that duty?”. They started from a point that only in exceptional circumstances will such a duty be found.
McHUGH ACJ: I am not sure that is right, is it? Does that do justice to the reasoning? What his Honour says is that ordinarily they do not owe the same duty and he must be talking about the content of the duty,
to look after independent contractors as it does for its own employees. The law usually takes the view that the independent contractor will assess the situation and provide for his or her safety -
Then in paragraph 74, he says this is an exceptional circumstance case. Is he not doing no more than saying there is nothing about the particular facts of this case, no integration of the independent contractor into the employer’s system, which would require the standard of care to be different from that which usually applies, namely, the contractor has to look after himself?
MS NORTON: But there was, we say, an integration although it was not a Brodribb-type situation because the respondent here was actually the occupier of the premises. They engaged the services of the independent contractor mainly because he had some expertise in fixing these particular types of container carriers, but the facts were he went there every day to check if there was something to be fixed.
On this day he was fixing a smaller forklift when the big container carrier broke down. He had to go and fix that container carrier where it was broken so there was an interrelation between the two businesses. He could not, in any practicality, move the container somewhere else to fix it where it would be safe, he could not provide his own gantry to work on it.
As the trial judge found, over a period of 11 months, this container carrier had broken down some 48 times and 11 times related to the locks on the top so at least 11 times in the last 11 months this independent contractor had been required to work at a distance three metres above the ground when it really was not within his capability to provide a safe system of work. To put it briefly, what ‑ ‑ ‑
McHUGH ACJ: Yes, but that is the whole point about being an independent contractor. The theory of the law is he does not have to go there. He is under no control by the employer. He does not have to go. If my television set breaks down every month and I call an electrician to come along and look at it, I do not owe him any duty of care, no matter how often he comes to the premises.
MS NORTON: If you told him he was not allowed to take the TV away and he had to fix it there and perhaps there was something wrong with the wiring of your house, then maybe that might be different but this is the employer of a factory. If I just take you down to what I think is an important paragraph, it is paragraph 75, where Mr Harrison, who appeared on the appeal, pointed out something that had happened in the transcript and that was:
But once they pointed out a forklift to you that was broken they wouldn’t tell you how to fix it or when to fix it, unless they needed it urgently -
and the evidence was that this thing was always needed urgently -
they would tell you where to go and you would go and do it in your own way, is that correct?
and that is where, in my submission, the difference lies. They would tell him where to go and where they told him to go, with respect to this container carrier was to climb up on top of the container and work three metres above the ground. They were the ones who told him to do that.
He was responsible, of course, for his own safety. He provided things like goggles and gloves. If he burnt himself whilst welding that would have been his fault. If he welded without wearing his eye glasses and injured his eyes, that would have been his fault. They are matters within his area of trade. He was a fitter and machinist. He was not a tiler or a roof plumber or anyone else particularly used to working at heights. He was not a scaffolder.
His evidence was that at other factories they provided these gantries – whatever they are called – but here he was required to fix something urgently, they required him to do it, and he was required to fix it by standing on the top. If this had been the first time that he had done it and they did not realise he had to stand on the top to fix it, perhaps it would be different, but it had been almost once a month over the last 11 months he had been going out and standing on the top of this container to fix it and it has to be foreseeable that, if someone does that, they will be injured and what could he do about it? He could not provide a gantry. All he could do was refuse to carry out the work.
McHUGH ACJ: He did not have to go. He could insure himself. He could ask for a higher price if there was a greater risk. That is the whole basis of the distinction between the duty owed to the independent contractor and the duty owed to the employee. They are very different situations. You want to transform the law. Brodribb made an important development in this area of the law but it required integration, but you are a long way removed from integration here.
MS NORTON: The factors that told with the trial judge were the facts that the frequency that this had to be fixed and the urgency with which it had to be fixed and we say they are very significant matters. The Court of Appeal looked at the urgency and accepted it but they did not really consider the question of the frequency that this happened so often and they accepted the facts that although he was an independent contractor, this was his main source of work. He had other people that he worked for, it ranged between I think 15 and 27 people, but they were odd call-outs. He went to this factory every day to see if there was something to be fixed so he was there every day, a bit different than the TV repairman who might come round to your Honour’s place to fix it. He was there every day. He had been integrated into their system of work. Without him there the business could not operate.
Once this container carrier broke down, minor things could be done like moving the bales of wool around to be compressed and put into the containers, but the containers could not be moved and at some time there were up to 200 containers in this factory site. Once they cannot be moved, the whole place gradually comes to a stop. He was integrated into the system, a very necessary part of their system, and it is the urgency and the frequency along with the fact that really all he could do was refuse to carry out the work that, we say, means that the approach of the trial judge is correct rather than the approach of the Court of Appeal.
The Court of Appeal said matters of safety are solely his responsibility. That, in our submission, like the trial judge said, is an over‑simplification. There must be a time when the occupier of a factory owes a duty even to an independent contractor who comes onto their premises ‑ ‑ ‑
McHUGH ACJ: They owe duty in respect of static defects in the premises. They owe a duty in respect of any dangerous operations that they are running but this is a case where somebody is asked to repair something and he is employed as an independent contractor, he gets injured doing it.
MS NORTON: We submit that because they are an occupier it is similar to the case which I sent up yesterday of Thompson v Woolworths [2005] HCA 19 because that was an independent contractor who was the bread van driver who was driving to the premises occupied by the respondent and there was a thing there which made her job unsafe, the bins, and she tried to move them. No two cases are ever exactly the same, but that is an example of a case where an independent contractor is owed a duty because of, not an entirely static condition of the premises. Those bins were there sometimes and not there sometimes like sometimes he was required to work at a height and sometimes he was not.
His expertise, which he took with him, was in fixing these machines, not in devising safe systems of work to work at a height. That was not his area of experience. He had worked on a similar machine before when he worked for Linde, but he could not take his own gantry with him so the only thing he could do was refuse to carry out the work which would leave him with hardly any work to carry out and, in those circumstances, he is a vulnerable person, which is relevant, in the tests of whether someone owes a duty or not.
The Court of Appeal said in one paragraph that he was just as able as Pack-Tainers to work out that this was an unsafe system of work. That is at paragraph 17 which is page 33 in the appeal book:
That is to say, he was in as good a position as Pack-Tainers to assess the safety of the task and initiate steps to improve it.
How could he improve it – he could not take his own gantry – and they seem to acknowledge there that Pack-Tainers could have assessed the situation and realised it was unsafe. In fact, they must have, over the time
he was there, realised that - although Mr McKay, who gave some evidence, thought it was perfectly safe to work 9 metres off the ground because you just had to be careful not to fall over the edge, most reasonable people would not find that to be the case.
The other part of the judgment I would like to take you to is in the judgment of Justice Young where he says to a layperson the fact that he is required to work in these conditions is “appalling” - page 46, paragraph 58 in the application book. Just to show how extreme the Court of Appeal has taken this particular proposition, it says:
Before dealing with the matters of principle that arise on this appeal, I should note that to a layman, the fact that a worker should have to work three metres or so from the ground without safety rail, harness or other safety equipment is appalling. There is some material to suggest that the appellant had a cavalier attitude to safety in the interest of cost cutting. This was not established as a fact. In any event what I have just said is irrelevant to the outcome of this appeal.
But when you are deciding a case on the principles of negligence, if you replace the word “layman” with “reasonable man”, how is it irrelevant that what he was required to do by their system led to this extreme position?
There is also the fact that Justice Santow, we say, muddies the water somewhat for the rest of us with respect to what Brodribb actually stands for, a large number of practitioners thought they knew but we may be wrong. Also, he goes through at pages 40 to 41 setting out a number of facts, some of which are internally inconsistent and some of which are simply against the evidence which was accepted by the trial judge. In particular, at page 41, paragraph (e), it says:
Mr Moore did not ask for a metal safety cage which was available at the premises for lifting personnel on a forklift -
The trial judge actually found he thought it unlikely that cage was actually there and, in any event, Mr Moore did not know about it and that is in the application book at page 14 point 10. Then Justice Santow goes on to say the cage would probably not be feasible anyway. There was also evidence that the only cage was one they used for transporting gas cylinders around so the Court of Appeal have placed emphasis on the evidence of certain witnesses who were disbelieved by the trial judge and used that to find there were grounds for interfering with the judgment at the trial. Those are my submissions, your Honour.
McHUGH ACJ: Yes. The Court need not hear you, Mr Harrison.
This case turns on its own facts. It raises no question of general principle which would warrant a grant of special leave to appeal. In addition, the Court is of the view that, on the facts of the case, it would have insufficient prospects of success in any event. The application is dismissed with costs.
AT 11.36 AM THE MATTER WAS CONCLUDED
0