Multiplex Constructions (NSW) Pty Ltd v Lopez & Anor

[2005] HCATrans 417

[2005] HCATrans 417

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S404 of 2004

B e t w e e n -

MULTIPLEX CONSTRUCTIONS (NSW) PTY LIMITED

Applicant

and

CAMILO LOPEZ

First Respondent

PICT BRICKLAYERS PTY LIMITED

Second Respondent

Application for special leave to appeal

GLEESON CJ
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 17 JUNE 2005, AT 9.57 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR S.P.W. GLASCOTT, for the applicant.  (instructed by Phillips Fox)

MR M.I. BOZIC, SC:   If it please the Court, I appear with my learned friend, MR D.M. SHOEBRIDGE, for the first respondent.  (instructed by Taylor & Scott)

MR D.J. RUSSELL, SC:   If it please the Court, I appear with MR G.F. BUTLER for the second respondent.  (instructed by P.W. Turk & Associates)

GLEESON CJ:   Yes, Mr Walker.

MR WALKER:   Your Honours, there is an application to extend time, which I understand is not the subject of ‑ ‑ ‑

GLEESON CJ:   Yes, you have that leave.

MR WALKER:   Thank you.  Your Honours, at pages 60 and 61 of the application book, Justice Santow extracts something which, in our submission, is one of two foundations for demonstrating clear error in a case which also threatens to introduce a fallacy of general principle. 
The error in relation to this particular case first emerges from the fact that the plaintiff’s employer was itself subject to a contract, and clearly had full corporate knowledge of the requirements of that contract, which as your Honours will see by reference to the emphasised words, required dewatering to be carried out, not only from its work areas where the unfortunate plaintiff was to do bricklaying, but also from access ways.  Your Honours may take it that it was in an access way which had not been dewatered, that the gentleman met his mishap.

If I could then take your Honours to page 58 of the application book, in paragraph 20 of Justice Santow’s reasons, there is the second and, in our submission, clinching demonstration of error in the conclusion of the Court of Appeal, because it is there seen by reason of the circumstances and content of the conversation between the two human faces of the relevant corporations, my client in charge, as it were, overall of the site, and Mr O’Sullivan, the supervisor of Mr Lopez, the human face of his employer and it is clear that the aptly named Mr Boss, for us, was directing that the very matter be carried out which the Court of Appeal must be holding we had to do.

What the Court of Appeal holds is that the document which incorporated the various functions and responsibilities of everybody in relation to dewatering required us to inspect and to carry out in a proactive, so‑called, way what needed to be done.  What needed to be done, quite simply, was dewatering and what we did was to tell our contractor, with whom we had gone to the trouble of ensuring by way of contractual stipulation, that they did have to dewater access ways, we told them it was all right to go back in and dewater, not all right to go back in and work, all right to go back in and dewater.

Now, those two matters show that what is held out by the decision of the Court of Appeal in this case, by extrapolation from those facts and their conclusion, is that a body, a corporation, a person in the position of my client, with a contractor working in a particular part of the site, a part of the site where at that time there were no other contractors or subcontractors, so spectres of complex co‑ordination can be removed factually from this case, may not, in effect, to use the jargon, delegate the duty of care by asking a competent contractor to do the very kind of thing which the parties contracted that that contractor should do.

No one has suggested in this case, the slightest detraction from the capacity of Mr Lopez’s employer corporation to carry out the dewatering duties which was imposed upon by the contractor, and which was the subject of specific request, pursuant, one would have thought, to any careful approach if there is water, before the men start working again, ensure there is dewatering. 

GLEESON CJ:   I know that you are arguing if there is no duty of care, but where is the finding of breach?

MR WALKER:   At page ‑ ‑ ‑

GLEESON CJ:   Page 65, is it?

MR WALKER:   No, page 71 of the application book in paragraph 55 his Honour concludes that there was a:

failure to take reasonable steps to ensure that the site was safe for the resumption of work.

GLEESON CJ:   It is paragraph 53 that has the detail, is it not?

MR WALKER:   Yes, and the error there is to have treated exhibit X as something which either superadded to the content of reasonable care, which it could not possibly do, and also the error in finding that exhibit X had not been observed.  Exhibit X required steps to be taken, both mental and by way of direction on site, but which inevitably resulted in seeking to have the site dewatered.

GLEESON CJ:   I am looking at lines 26 and 27 on page 71:

the men going into the site were not given the equipment needed to carry out the dewatering.  This was only available from Multiplex ‑ ‑ ‑

MR WALKER:   Your Honour, the finding quite simply as a matter of fact is that, on behalf of Multiplex, the contractor was asked to get ahead with dewatering; there is no finding that the contractor was unable to get on with that job.  What his Honour is referring to there is the fact that, as you would expect, there is a network, an interlocking of relationships in relation to access to site, access to plant, which was necessary for the ordinary working of the site.  There is nothing remarkable about that.  There is no finding of a breach of any contractual duty or a failure to comply with a reasonable standard of care owed to a person on the site not an employee, by reason of a failure to provide plant or equipment in timely or, appropriate fashion.  His Honour is there simply referring to the fact that there was, of course, an ongoing relationship requiring co‑operation between these two parties.

We would paraphrase what appears on page 71 at lines 25 and following in this way:  “His path to the place where the dewatering was to occur contained the very danger that reasonable steps had revealed were obvious to his employer and to Multiplex and had been the subject of a direction by Multiplex to his employer to have removed.  We had undertaken everything that exhibit X or, more accurately, reasonable care could require us to do.  We had asked the person whose job it was to dewater both worksite and access ways, to do so ‑ ‑ ‑

McHUGH J:   What do you say about paragraph 51?

MR WALKER:   Your Honour, there is, with respect, an absurdity about complaining concerning inspection before approving dewatering.  Dewatering is what had to happen before any activity could ensue.  We did not tell our contractor to have Mr Lopez, who had misunderstood a direction - that is not due to us - to start bricklaying work.  We were not responsible for that at all, and the notion that you should inspect before approving the dewatering holds open the prospect that if you had done so you might have behaved differently.  But this is absurd.  Both parties, Multiplex and the employer of the worker, knew that it needed dewatering, and there was an approval to go in, a direction to go in and dewater.  His Honour does not find, and no party could sensibly suggest, that there was some step which should have intervened before ‑ ‑ ‑

McHUGH J:   No, but his Honour’s judgment seems to concentrate on depth, does it not?  It is not just merely a question of dewatering.  It is ‑ ‑ ‑

MR WALKER:   Whether it is 3 centimetres or 7 centimetres, no one ‑ ‑ ‑

McHUGH J:   It contained mud, which can conceal submerged objects such as those upon which Mr Lopez later struck himself.

MR WALKER:   Your Honour, those are clearly critical matters for causation, but dewatering is dewatering, however deep it is.  No one has said that some direction was necessary different from “Go ahead and dewater”, by reason of it being 3 centimetres, 7 centimetres, muddy or pellucid.  That is critical.  His Honour, in effect, worked back from the misfortune that befell the plaintiff by reason of the mud and the depth of the obscuring of obstacles as if somehow Multiplex was responsible for that.  Ultimately, of course, no, the rain and the nature of the building site is responsible for that.

McHUGH J:   What is the special leave point?

MR WALKER:   The special leave point, your Honour, is this ‑ ‑ ‑

McHUGH J:   It is just a run‑of‑the‑mill negligence case, is it not, an employer’s liability case?

MR WALKER:   We are not an employer.  Yes, it was a run‑of‑the‑mill employer’s liability case and should have been determined as such, without us being involved at all.  Accepting a duty, and for the purposes of argument that is necessary to get a special leave point, accepting the duty, in this case, its content is not exhibit X.  Exhibit X, like counsel’s submissions, will be simply subject to the yardstick, does it accord with reasonable care or not?  It may be more than reasonable care, it may be less than reasonable care.  If it is coincidentally reasonable care, it falls away as having any particular significance.  In any event, we complied with exhibit X.

GLEESON CJ:   Whether a head contractor owes a duty of care to an employee of a subcontractor in relation to the performance of some particular work would just all depend on the circumstances of the particular case, would it not?

MR WALKER:   It does indeed, and that is not the special leave question that I would formulate.  The special leave question I would formulate here is that that duty of care, assuming that it comes about because of an overall control of the site, well we must accept that that will be a very frequent aspect of operations under a building contract where an owner gives occupation and access to an overall site to a head contractor and the head contractor has contractual relations with so‑called subcontractors, et cetera, who then have employment relations with their actual workers.  In our submission, it is clear as a matter of likelihood that that is a set of relationships which will recur daily throughout Australia and in important ways, namely on sites which are relatively dangerous, building sites.

McHUGH J:   Yes, but the duty is just simply a duty to take reasonable care.

MR WALKER:   Quite.

McHUGH J:   This is a question about breach.

MR WALKER:   Yes, your Honour. 

McHUGH J:   And the question is what did standard of care require?  Now, that is a question of fact.

MR WALKER:   Unquestionably, your Honour.  That, in our submission, could not be enough to scotch the notion of special leave, or very few cases could get to the High Court.  What elevates it over and above simply whether the calibration of reasonable was correct in this case as a matter of fact, what elevates it is that the consequence or implication of this decision is that a person in the position of Multiplex, and one can imagine as I say, many engineering, mining and building operations in which there will be many people in that position so far as their relationship with workers is concerned, cannot discharge their duty of reasonable care, that is, will be in breach if, under a contract, they ask a subcontractor, apparently competent to do a task, safety related, for example, and there is a failure or mishap by reason of that contractor’s exercise.  Now, that is to introduce a new category of non-delegable duty of care.

McHUGH J:   Not as a matter of law, it just happened on the facts of this case.  If the case had been decided by a jury, nobody would be arguing that the jury’s verdict against your client constituted some precedent that bound future cases.

MR WALKER:   They might, your Honour, if there had been an application before it went to the jury and this point had been taken, but it was clear that that was requisite for reasonable care had been directed to be carried out by a contractor, competent but able to do it, and that that discharged the first defendant’s duty of care, and then jury or not, that could and would be the subject of something which later trial judges, later parties, would have to take into account in relation to their admittedly factual determinations of every fresh case.

That is how the law of negligence proceeds; not by treating the past as a wilderness of irrelevant factual decisions, but by seeking to extrapolate principle.  The principle that emerges here is that notwithstanding you have a contractual right, which you exercised in timely fashion, to have your contractor dewater the site, the watered nature of the site having caused the accident, notwithstanding you did that, notwithstanding there is no complaint about the competence of that contractor, your duty of care is breached by your contractor’s failure in such a way as to show, really beyond any doubt as a matter of principle, that here is a new, hitherto undiscovered non-delegable duty of care.

In our submission, the law in this Court on so called non‑delegability would not look favourably upon the notion of, under the guise of a factual determination, introducing a new burden for people who are perforce, required to carry out their multifarious operations by means of contracts with others.  It is for those reasons, in our submission, that this does present a special leave application which ought to be upheld.  It is not a matter which turns on peculiar facts.  It is a matter which raises facts which are likely, of their very nature, to be repeated time and time again.  It is a decision which of course will be called in aid by plaintiffs intent on obtaining one more defendant in relation to workplace accidents, and to include defendants who have done that which, in our submission, in a lay sense, reasonableness required.  Ask the person whose job it was to attend to it.

GLEESON CJ:   Is it still the case that liability of employers is capped in some jurisdictions ‑ ‑ ‑

MR WALKER:   Yes, your Honour.

GLEESON CJ:    ‑ ‑ ‑ but not liability of other people who are not employers?

MR WALKER:   Yes, your Honour.  There is a real ‑ ‑ ‑

GLEESON CJ:   Hence the search for defendants.

MR WALKER:   Yes, yes, your Honour.  In our submission, that is a recognition of a general circumstance which is important for an appreciation of this as an application for special leave.  But there is perhaps, not for the first time, a threat, in our submission, to the simplicity, the appropriate simplicity of principles of negligence brought about by such incentives which are extraneous to the law of negligence, and this is an opportunity for the Court to say that in that understandable search for other defendants, other kinds of defendants, there must not be implicitly, an

invention of new, different and unreasonably more burdensome standards of care in the nature of a non-delegable duty.

GLEESON CJ:   I am not suggesting for a moment that it is this case, but the inevitable consequence of capping liability of employers is to force lawyers to seek more inventive causes of action against people who are not employers.

MR WALKER:   Unless and until we are not only capped as to liability, we are dispensed as to duty, that is, we lawyers, that must be so, your Honour, yes.  May it please your Honours.

GLEESON CJ:   We do not need to hear you, Mr Bozic and Mr Russell.

The decision of the Court of Appeal in this case turned on the application of established general principles to the particular facts and circumstances and the case does not warrant a grant of special leave to appeal.  The application is dismissed with costs.

AT 10.14 AM THE MATTER WAS CONCLUDED