Pacific Steel Constructions Pty Ltd v Barahona - [2009] NSWCA 406

No judgment structure available for this case.

New South Wales

Court of Appeal

CITATION: Pacific Steel Constructions Pty Limited v Barahona; Jigsaw Property Group Pty Limited v Barahona [2009] NSWCA 406

HEARING DATE(S): 31 July 2009

JUDGMENT DATE:
11 December 2009

JUDGMENT OF: Allsop P at 1; Beazley JA at 1; Giles JA at 1

DECISION: On Jigsaw’s appeal (CA 40440/08):
1. Appeal allowed.
2. Set aside the verdict and the judgment for the plaintiff against the first defendant; and in lieu thereof order that there be verdict and judgment for the first defendant against the plaintiff.
3. Set aside the verdicts and judgments for the cross-claimant/first defendant on the first cross-claim against the first cross-defendant/second defendant and the verdict and judgment for the cross-claimant/second defendant on the second cross-claim against the second cross-defendant/first defendant and the orders that the second defendant indemnify the first defendant and the first defendant indemnify the second defendant each with respect to its liability to the plaintiff; and in lieu thereof order that each of the cross-claims as between the first and second defendants be dismissed.
4. Set aside the order that the first defendant pay the plaintiff’s costs on an ordinary basis until 14 December 2007 and thereafter on an indemnity basis.
5. Set aside the order that the first defendant indemnify the plaintiff in respect of the third defendant’s costs and the order that the first defendant pay the third defendant’s costs of the cross-claim on an ordinary basis up to 6 February 2008 and on an indemnity basis thereafter.
6. Order that the plaintiff pay the first defendant’s costs of the trial and that the first respondent pay the appellant’s costs of the appeal save in respect of contribution between the appellant and the second respondent.
7. Grant the first respondent a certificate under the Suitors Fund Act if otherwise qualified.
On Pacific’s appeal (CA 40398/08):
1. Appeal dismissed.
2. Appellant pay the first respondent’s costs of the appeal.
On Mr Barahona’s cross-appeal (CA 40440/08)
1. Cross-appeal dismissed with costs.
Generally:
1. Reserve liberty for the parties to apply for variations in the orders within ten days.

CATCHWORDS: TORTS – negligence – duty of care – workplace injury –duty of principal to independent contractor – duty arising from need for direction and coordination of activities – whether duty to control system of work of independent contractor – role of foreman – safe work method statements – no assumption of responsibility to supervise – no knowledge of dangerous use of equipment – no duty owed to control system of work - TORTS – negligence – breach of duty - workplace injury – non-delegable duty of employer owed to employee – failure to provide safe system of work - TORTS – negligence – contribution between defendants – apportionment of liability - misdirection in exercise of discretion – failure to give sufficient weight to non-delegable duty of employer to employee - TORTS – negligence – contributory negligence – experienced tradesperson – responsibility of employer to prepare safe work method statement – no error in assessment of contributory negligence - TORTS – negligence – damages – gratuitous attendant care services – Civil Liability Act 2002 (NSW) s 15 and Schedule 1 Part 11 – Civil Liability Legislation Amendment Act 2008 (NSW) – whether proceedings had been “determined” – amended provision applies – no evidence to satisfy the requirements of s 15 to allow award of damages for attendant care services - COSTS – Bullock order – maintenance of cross-claim – creation of uncertainty in identity of defendant – no error in exercising discretion

LEGISLATION CITED: Civil Liability Act 2002 (NSW)
Civil Liability Amendment Act 2006 (NSW)
Civil Liability Amendment Act 2008 (NSW)
Civil Procedure Act 2005, (NSW)
Occupational Health and Safety Act 2000 (NSW)
Workers Compensation Act 1987 (NSW)
Workplace Injury Management and Workers Compensation Act 1998 (NSW)
Occupational Health and Safety Regulations
Uniform Civil Procedure Rules 2005

CATEGORY: Principal judgment

CASES CITED: ACQ v Cook (No 2); Aircair Moree v Cook (No 2); Cook v Country Energy (No 2); Country Energy v Cook (No 2) [2008] NSWCA 306
Almeida v Universal Dye Works Pty Limited (No 2) [2001] NSWCA 156
AV Jennings Construction Pty Ltd v Maumill (1956) 30 ALJR 100
Balesfire Pty Ltd t/as the Gutter Shop v Adams [2006] NSWCA 112
Bostik Australia Pty Ltd v Liddiard [2009] NSWCA 167
Bullock v London General Omnibus Co [1907] 1 KB 264
Cai v Zheng [2009] NSWCA 13
Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258
Coles Supermarkets Australia Pty Limited v Tormey [2009] NSWCA 135
Erect Safe Scaffolding (Australia) Pty Ltd v Sutton [2008] NSWCR 114; 173 IR 412
Fox v Leighton Contractors Pty Ltd [2008] NSWCA 23
Geaghan v D’Aubert [2002] NSWCA 260; 36 MVR 542
Gould v Vaggelas [1985] HCA 75; 157 CLR 215
Harrison v Melhem [2008] NSWCA 67; 72 NSWLR 380
House v R [1936] HCA 40; 55 CLR 499
Joslyn v Berryman [2003] HCA 34; 214 CLR 552
Leighton Contractors Pty Ltd v Fox [2009] HCA 35
Liftronic Pty Ltd v Unver [2001] HCA 24; 75 ALJR 867
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492
Roads and Traffic Authority of New South Wales, Council of the Shire of Evans & Pioneer Road Services Pty Ltd v Palmer (No 2) [2005] NSWCA 140
Rockdale Beef Pty Limited v Carey [2003] NSWCA 132
Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16
Sweeney v Boylan Nominees Pty Limited [2006] HCA 19; 226 CLR 161
Sydney Water Corporation v Abramovic [2007] NSWCA 248; 5 DDCR 570
Tolhurst v Cleary Bros (Bombo) Pty Ltd [2008] NSWCA 181
Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204
Vinidex v Theiss [2000] NSWCA 67

PARTIES: Pacific Steel Constructions Pty Limited (Appellant)
Luis Barahona (First Respondent)
Jigsaw Property Group Pty Limited (Second Respondent)

FILE NUMBER(S): CA 40398/08, 40400/08

COUNSEL: L King SC, M L Snell (Appellant)
B Toomey QC, J Anderson (First Respondent)
R Seton SC, S McCarthy (Second Respondent)

SOLICITORS: McCabe Terrill Lawyers (Appellant)
Martin Bell & Co Solicitors (First Respondent)
Goldberg Lawyers (Second Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 6239/2006

LOWER COURT JUDICIAL OFFICER: Truss DCJ

LOWER COURT DATE OF DECISION: 18 July 2008, 2 September 2008

CA 40398/08
CA 40400/08

ALLSOP ACJ
BEAZLEY JA
GILES JA
Friday 11 December 2009

Pacific Steel Constructions Pty Limited v Barahona

Jigsaw Property Group Pty Limited v Barahona

Headnote

Mr Barahona, was injured when he fell from a ladder at a construction site while attempting to work on a steel beam just below the ceiling of the first floor of the building. Mr Barahona brought proceedings against the principal contractor for the construction site, Jigsaw Property Group Pty Limited (Jigsaw), the principal contractor for the construction site, his employer, Pacific Steel Constructions Pty Limited (Pacific) and the employer of the site foreman.

The primary judge found that Jigsaw and Pacific each breached their duty of care that it owed to Mr Barahona with 80% of the responsibility being attributed to Jigsaw and the remainder to Pacific. The primary judge found that Mr Barahona was contributorily negligent, which was assessed at 15%. The claim against the employer of the site foreman was dismissed, however the trial judge made a Bullock order in favour of Mr Barahona against Jigsaw in respect of costs incurred in bringing that claim.

Appeals were brought by Jigsaw and Pacific and Mr Barahona also cross-appealed. The issues to be dealt with by the Court of Appeal across these proceedings were:

i) Jigsaw’s liability to Mr Barahona;

ii) Pacific’s liability to Mr Barahona;

iii) Mr Barahona’s contributory negligence;

iv) contribution as between Jigsaw and Pacific;

v) the Bullock order against Jigsaw; and

vi) Mr Barahona’s claim in respect of attendant care services.

Held allowing Jigsaw’s appeal and dismissing Pacific’s appeal and Mr Barahona’s cross-appeal:

per the Court (Allsop P, Beazley JA and Giles JA)

1. Jigsaw did not owe Mr Barahona a duty of care to exercise reasonable care in respect of the safety of the work methods used by the contractor

2. Pacific breached the duty of care that it owed as employer to Mr Barahona as employee:

3. The primary judge did not err in the assessment of Mr Barahona’s contributory negligence at 15%:

4. The primary judge did not err in failing to award Mr Barahona damages for gratuitous attendant care services:

Given the finding that Jigsaw did not owe a relevant duty of care the issues of contribution as between Pacific and Jigsaw and the Bullock order did not strictly arise though these issues were also considered in the reasons of the Court.

CA 40398/08
CA 40400/08

ALLSOP ACJ
BEAZLEY JA
GILES JA
Friday 11 December 2009

Pacific Steel Constructions Pty Limited v Barahona

Jigsaw Property Group Pty Limited v Barahona

Judgment

:

Introduction

2 On 20 January 2004, the first respondent, Luis Barahona, was injured when he fell from a ladder at the construction site of the Strathfield Library. He sustained crush fractures of the L1 and L2 vertebrae, ruptures to disks at five levels, tears of his left supraspinatus tendon and a psychological injury. He brought proceedings against his employer, the second respondent, Pacific Steel Construction Pty Ltd (“Pacific”) and against the appellant, Jigsaw Property Group Pty Limited (“Jigsaw”), the principal contractor for the construction of the Strathfield Library, for damages for his injuries. He also sued Hays Specialists Recruitment (Australia) Pty Limited (“Hays”), the employer of Christopher Barber, the site foreman. (It will be necessary to return to the circumstances of Mr Barber’s employment in due course.)

3 The primary judge, Truss DCJ, found that Jigsaw and Pacific each breached the duty of care that it owed to Mr Barahona. Her Honour found that on the contribution claim between Jigsaw and Pacific, Jigsaw should bear 80 per cent of the responsibility for the injury to Mr Barahona and Pacific should bear 20 per cent. Her Honour also found that Mr Barahona was contributorily negligent, which she assessed at 15 per cent.

4 The claim against Hays was dismissed, as her Honour found that Mr Barber was employed by Barber Earthworks Pty Ltd, which invoiced Hays for the provision of Mr Barber’s services. Jigsaw had also cross-claimed against Hays and this too was dismissed. Mr Barahona’s claim for attendant care services was also dismissed. The trial judge, however, made a Bullock order in favour of Mr Barahona against Jigsaw in respect of Mr Barahona’s costs incurred in bringing his claim against Hays.

5 Jigsaw has appealed against the primary judge’s finding of liability; her Honour’s assessment of contribution as between it and Pacific; her Honour’s assessment of Mr Barahona’s contributory negligence of 15 per cent; and against the Bullock order.

6 Pacific has appealed against the primary judge’s finding on liability; her Honour’s assessment of contribution; and her Honour’s assessment of Mr Barahona’s contributory negligence.

7 Mr Barahona has cross-appealed against the primary judge’s refusal of his claim for attendant care services.

8 The issues on appeal, in short, were:

. Jigsaw’s liability to Mr Barahona;

. Pacific’s liability to Mr Barahona;

. Mr Barahona’s contributory negligence;

. Contribution as between Jigsaw and Pacific;

. The Bullock order against Jigsaw; and

. Mr Barahona’s claim in respect of attendant care services.

Mr Barahona’s injury

9 Jigsaw was the head contractor for the construction of the Strathfield Library. It had subcontracted the steel works to Pacific, whose business included the supply and installation of structural steel components, including roof structures. Pacific’s contract with Jigsaw required it to provide “all skilled labour, materials, plant and equipment to carry out structural steel as detailed in the contract documents” (judgment [11]).

10 Mr Barahona was employed by Pacific as a boilermaker/welder. He was a tradesman of some 30 years experience. Usually in his employment with Pacific, Mr Barahona went on to building sites after the steel works constructed by Pacific had been largely completed, so as to make any necessary changes and to rectify any problems that had arisen in the construction of the steel works. This was the nature of his employment task at the Strathfield Library. Mr Barahona had not been involved in the original construction of the steel works undertaken by Pacific and by the time he came onto the site, the work was nearly complete.

11 Mr Barahona first attended on site on 4 August 2003 with his supervisor, Nick Christou. Mr Christou introduced him to “the chief of the site”, Mr Barber, and told him he would be working under Mr Barber’s supervision and was to take instructions from him. At times another welder employed by Pacific was on site with Mr Barahona. However, on the day of his injury Mr Barahona was Pacific’s only employee on site.

12 We will come in more detail to the evidence concerning the subject of working under Mr Barber’s supervision.

13 Mr Barahona was injured when he fell from a ladder. There were no witnesses to his fall. The primary judge, at [14] of her reasons, accepted his evidence as to how he came to be using the ladder. Her Honour’s findings were not challenged and it is convenient, therefore, to set them out in full:

“(a) On the first floor Mr Barber indicated a beam and instructed [Mr Barahona] to raise it to floor level and to be careful with the carpet which had just been laid and also the glass …

(b) Mr Barber did not give [Mr Barahona] any instructions as to how to raise the beam nor as to how to get access to it.

(c) The beam was adjacent to, and about 20mm below the bottom level of concrete slab constituting the first floor. It was bolted and spot welded to cleats attached to a vertical cylindrical column.

(d) The beam was approximately 4.5 metres above ground level. Its construction was an inverted ‘U’ section steel channel 280mm x 12mm x 15mm. It was 5400mm long and weighed approximately 216kg, (according to the [supplementary] report of Mr Cowling who conducted an external view of the building).

(e) [Mr Barahona] placed a leather and asbestos protective mat on the first floor to protect the carpet. He then took an aluminium ladder which was on the first floor a few metres from Mr Barber's desk. When another worker remonstrated with him about taking it Mr Barber told him to let [Mr Barahona] take it because he was going to do a short job on the ground floor.

(f) [Mr Barahona] tied a length of rope to a column on the floor above the head of the ladder and intended to secure the head of the ladder with the rope. He was unable to do this from the first floor.

(g) It was [Mr Barahona’s] intention to elevate the beam using a wedge, a hammer and other tools whilst standing on the ladder after he had secured it with the rope.

(h) [Mr Barahona] carried the ladder to the ground floor and placed the feet in the planter box … which was empty but on its floor was some tar. He checked that the ladder was stable.

(i) [Mr Barahona] rested the head of the ladder against the angle of the wall and the ceiling , which I understood him to mean the floor slab for the first floor. The fact that this was 4.5m above the ground suggests that [Mr Barahona’s] evidence as to the length of the ladder being 3m may not be accurate.

(j) There was nothing to which [Mr Barahona] could tie the base of the ladder.

14 Her Honour was not able to determine precisely how Mr Barahona fell. She recorded his evidence as to what happened as he climbed the ladder and then fell in the following terms, at [16]:

“
[Mr Barahona’s] feet were on the same rung and about 2m above the ground;

he was holding the ladder with his hand;

he stretched his arm to try to grab the rope which was hanging from the first floor when he fell;

he was unable to say what was the first indication that he was about to fall;

15 Mr Barahona’s evidence was that it was his intention to secure the ladder with the rope he had earlier fed down from the first floor and that was his purpose in stretching out to grab the rope.

16 Mr Barahona placed the ladder inside an area that was to become a planter box, the wall of which fronted the street. The floor area of the planter box had been coated with a bitumen, or bitumen-like, membrane. There was a gap between the top of the planter box wall and a glass window which formed the front of the building. From a photograph of the building it would appear the gap was in the order of 5 feet, or about 1.5 m.

17 Mr Barahona said that he placed the top of the ladder against the angle of the wall, which her Honour understood to be the floor slab of the first floor. The height from the ground to the concrete slab on the first floor was approximately 4.5 m. As found by the trial judge, there was nothing to which he could tie the base of the ladder. It is also apparent from the length of the planter box, the vertical height from the ground to the first floor slab and the length of the ladder, that the feet of the ladder would not have been secured against the opposite wall of the planter box.

18 In his supplementary report, dated 28 April 2008 (the “supplementary report”), Hugh Cowling, Mr Barahona’s engineering expert, provided a description of where the ladder was placed and the dimensions of the surrounding structures, as follows:

“1. The ladder was set up against the vertical edge of the floor slab beam beside the steel column (emphasis original) …

2. The column was circular …

3. The beam was about 5.41 metres in length …

4. The beam comprised a 280mm wide x 112mm deep x 115mm thick channel section …

5. … the total weight of the beam was about 216kg …

6. … the channel was attached by means of a bolted connection …

7. The vertical distance from the base of the planter box to the underside of the steel beam was approximately 4.5 metres (nearly 15 feet).

19 The parties accepted that even though Mr Barahona said that he placed the ladder against the angle of the wall and the floor slab, the ladder was in fact leaning against the 110 mm rebate shown in the above diagram. The steel beam he was required to adjust is depicted in the top right hand corner of the diagram. Mr Cowling, in his supplementary report, stated that the placement of the ladder against the 110 mm rebate, or “integral beam”, as he described it, was even more dangerous than if it had been placed against the steel column (as he originally had thought was the case). This was because once the ladder commenced to slide, there was nothing to prevent the ladder from falling.

20 There was no evidence of how Mr Barahona fell, or how the ladder fell, other than that already recorded, namely, he had stretched his arm out to try and grab the rope he had threaded through from the first floor. The only evidence as to what happened to the ladder was that it was in the planter box beside him after he fell. Mr Barahona could not recall how he landed, other than that he heard a crack in his back and was lying down with extreme pain in his upper body.

Jigsaw’s Management Plan

21 Mr Barahona’s case at trial was that it was unsafe for him to use a ladder to perform this particular task (judgment [43]). Reliance was placed upon Jigsaw’s Project OHS&R Management Plan (the “Management Plan”), Mr Barahona contended that this outlined Jigsaw’s responsibilities on the site and, in particular, its responsibility in coordinating activities on site, many of which were dangerous or potentially dangerous.

22 By cl 226 of the Occupational Health and Safety Regulation 2001 (NSW) (“OH & S Regs”) Jigsaw was obliged as a principal contractor to prepare a management plan. Clause 226 is in the following terms:

“ [226] Responsibility of principal contractor to prepare an OHS management plan

(1) This clause applies to any place of work at which construction work is undertaken and the cost of the work exceeds $250,000.

(a) a site specific occupational health and safety management plan is prepared for each place of work at which the construction work is to be carried out before the work commences, and

(b) the plan is maintained and kept up to date during the course of the work.

Maximum penalty: Level 4.

(a) a statement of responsibilities listing the names, positions and responsibilities of all persons who will have specific responsibilities on the site for occupational health and safety, and

(b) details of the arrangements for ensuring compliance with the requirements for occupational health and safety induction training that are set out in Part 8.2, and

(c) details of the arrangements for managing occupational health and safety incidents, including the identity of and contact details for the person or persons who will be available to prevent, prepare for, respond to and recover from occupational health and safety incidents, and

Note. Some incidents must be notified to WorkCover or the Department Head (Mining) under Chapter 12.

(d) any site safety rules and details of the arrangements for ensuring that all persons at the place of work (whether employees or visitors) are informed of the rules, and

(e) safe work method statements for all work activities assessed as having safety risks.

Maximum penalty: Level 3.

(a) any person working at the place of work concerned and by any person about to commence work at that place, and

(b) an employee member of an OHS committee, an OHS representative, a person elected by the persons employed at the place of work to represent a group of employees on health and safety matters or (if the employees so agree) an appropriate representative of an industrial organisation of employees.

Maximum penalty: Level 1.

(5) The principal contractor must ensure that a copy of any parts of the occupational health and safety management plan that are relevant to a sub-contractor are provided to the sub-contractor before the sub-contractor commences work at the place of work concerned.

Maximum penalty: Level 1.

(6) The principal contractor must ensure that, if any change is made to the occupational health and safety management plan during the course of the construction work, a copy of any part of the plan that has been changed and that is relevant to a sub-contractor is provided to the sub-contractor as soon as practicable after the change is made.

23 Jigsaw’s Management Plan was expressed in its “Statement of Purpose” to be developed, inter alia, to maximise the safety of staff, clients and visitors to the construction site. Its objectives, set out in cl 1.1, “Occupational Health and Safety Policy”, included:

“
To achieve an accident free workplace.

To make health & safety an integral part of every managerial and supervisory position.

To ensure health & safety is considered in all planning and work activities.

…

24 The roles and responsibilities of the construction manager, the project manager and the site manager were set out in cl 2.4, “Roles and Responsibilities Defined”.

25 The responsibilities of the project manager, as defined in cl 2.4.2, included:

“Review of subcontractor site specific safety plans and safe work method statements prior to engaging or allowing commencement of work on site …” .

26 The responsibilities of the site manager (or foreman) were specified in cl 2.4.3 and included:

“Observing all OHS&R requirements and Statutory rules and regulations;

…

Providing advise [sic] and assistance on OHS&R to all employees;

Participating in the planning and design stages of trade activities;

…

27 Chapter 4, “OHS Induction”, provided:

“ 4.1 Procedure

[Jigsaw] will ensure that persons carrying out the nominated work have relevant training including Occupational Health and Safety (OHS) Induction Training. No Worker will carry out construction work on site until they have received the minimum requirements for OHS induction training :

2. Work Activity OHS induction (including detailed induction on relevant Safe Work Method Statements where required by the project risk assessment); and

3. Site Specific OHS Induction.

A Visitor to the site may enter the site without completing the Induction. However, they must be accompanied at all times by a responsible supervisor who has completed the Industry General Induction and Site Induction.

4.2 Selection and Use

28 Clause 5.2, “Allowance for Change in Site Conditions”, provided:

“As a site is built additional safety issues may need to be addressed. For new people on site, these issues will be addressed through induction to a revised site induction prepared by the Project Manager and Site Manager on an as needed basis. Existing site personnel will be briefed on the changes through the use of Tool Box Talks …”

29 Chapter 6 was entitled “General Site Safety Requirements”. Clause 6.1, “Minimum Site Safety Requirements”, provided, relevantly:

“ Work Method Statements:

30 Chapter 12 dealt with “Risk Assessment” as follows:

“ 12.2 Assess Risks

For each potential workplace hazard identified a Risk Class will be determined by referring to the categories below. The Risk Management Assessment Form (Form F001 …) has been used to determine the requirement for management of the risks identified.

Class 1: (High Risk): Does the hazard have the potential to kill, or permanently disable you?

Class 2: (Medium Risk): Does the hazard have the potential to cause a serious injury, or illness, which will temporarily disable you?

Class 3: (Low Risk): Does the hazard have the potential to cause a minor injury which would not disable you?

12.3 Selection and Use:

31 Chapter 14, “Safe Work Method Statements”, provided:

“ 14.1 Procedure:

A Safe Work Method Statement (SWMS) records the process of identifying job steps and their potential hazards, assessing their risk and recording how to eliminate, or minimize, the risk to worker safety (controls). Where potential hazards are identified as Class 1 or Class 2 risks Safe Work Method Statements will be completed using the step by step guide on the next page.

… Should the method statement not be acceptable the Project Manager will advise the subcontractor and if necessary assist in the writing of the method statement.

However, NO WORK IS TO BEGIN ON SITE WITHOUT A SATISFACTORY SAFE WORK METHOD STATEMENT .

…

[14.2].15 Additional Method Statements/Variations

An additional method statement may be required if substantial variation is required as a result of changes in conditions, location, etc is [sic] encountered.

…

14.3 Evaluation of Safe Work Method Statements (SWMS)

[SWMSs] will be evaluated by Jigsaw’s Project Manager on how well Class 1 and Class 2 hazards … have been identified for the work activity to be undertaken and whether the suggested controls, wherever possible, eliminate the potential hazard or minimise the risk of injury.

Controls should be as high as practical in the ‘Best to Worst’ guide shown below.

….

3. Use an engineered control …

Safe Work Method Statements

32 Clause 227 of the OH & S Regs deals with the responsibility for safe work method statements as follows:

[227] Responsibility to provide safe work method statements—principal contractor and sub-contractors

(1) This clause applies to any place of work at which:

(a) construction work is undertaken and the cost of the work exceeds $250,000, or

(b) high risk construction work is undertaken and the cost of the work does not exceed $250,000, or

(c) demolition work or asbestos removal work for which a licence is required under Chapter 10 to carry on the business of that work is undertaken (regardless of the cost of the work).

(2) A principal contractor for the construction work must ensure that each sub-contractor, before commencing work at a place of work, provides the principal contractor with a written safe work method statement for the work to be carried out by the sub-contractor.

Maximum penalty: Level 3.

(a) a sub-contractor is directed to comply with:

(i) the safe work method statement that the sub-contractor has provided, and

(ii) the requirements of the Act and this Regulation, and

(b) the activities of a sub-contractor are monitored to the extent necessary to determine whether the sub-contractor is complying with:

(i) the safe work method statement that the sub-contractor has provided, and

(ii) the requirements of the Act and this Regulation, and

(c) if the sub-contractor is not so complying, the sub-contractor is directed to take action immediately to comply with the safe work method statement or the requirements of the Act and this Regulation, or both, and

(d) if a risk to the health or safety of a person arises because of the non-compliance, the sub-contractor is directed to stop work immediately and not to resume work until the safe work method statement or those requirements, or both, are complied with, unless an immediate cessation of work is likely to increase the risk to health and safety, in which event the sub-contractor must be directed to stop work as soon as it is safe to do so.

Maximum penalty: Level 4.

(4) If there are no sub-contractors for the construction work, the principal contractor must:

(a) undertake an assessment of the risks associated with the work to be carried out and prepare a written safe work method statement that includes a copy of the assessment of risks, and

(b) maintain and keep up to date the statement, and

(c) ensure that the work is carried out in accordance with the statement, and

(d) if a risk to the health or safety of a person arises because of non-compliance with the statement, ensure that work is stopped immediately and not resumed until the statement is complied with (unless an immediate cessation of work is likely to increase the risk to health and safety, in which event the principal contractor must stop the work as soon as it is safe to do so).

Maximum penalty (subclause (4)): Level 4.”

The contract between Jigsaw and Pacific

33 The contract between Jigsaw and Pacific was a Standard MBA Trade Contract. Condition 9 of the contract provided, relevantly:

“OCCUPATIONAL HEALTH AND SAFETY OBLIGATIONS AND REGULATIONS

9(a) [Pacific] must establish and maintain a work procedure which ensures workplace safety for [Pacific], [its] employees and any other person on the site. This includes a duty to inspect and ensure any equipment is fit for its purpose. [Jigsaw] is entitled to receive a copy of [Pacific’s] site safety plan.

…

34 Included in Annexure B to the contract, “Additional Special Conditions”, were the following conditions:

“(v) [Pacific] is to at all times comply with the requirements of the [Management Plan], a copy of which is available within the Project Site Office.

(vi) [Pacific] shall submit a [SWMS] complying with the requirements of the [Management Plan] no later than 7 days prior to work commencing on site. All work on site shall be carried out in a safe and professional manner.

(vii) [Pacific], [Pacific’s] foreman, their employees, agents and subcontractors are to at all times obey the instructions of the Jigsaw Site Manager.

(viii) [Pacific] shall be required to show evidence that they have and continue to undertake regular audits to ensure that they are complying with all requirements of their own [SWMS].

(ix) Jigsaw will also undertake regular site safety inspections and audits. [Pacific] shall comply and immediately rectify any non-conformances issued to them as a result of these inspections within the required timeframe.

…

(Emphasis added)

Pacific’s SWMS

35 Pacific’s SWMS dealt with the supply and installation of structural steel roof and purlins and with the conduct of the works in a job sequence from the first step of loading the materials on to trucks in its yard to the completion of each bay. The use of a scissor lift and a mobile crane was identified to avert a falling hazard. The SWMS did not deal with the particular task that Mr Barahona was directed to undertake by Mr Barber. This was so because Mr Barahona was dealing with rectification and other “troubleshooting” work after the main work was completed.

36 The SWMS by its reference to scissor lifts demonstrated that Pacific had adopted a particular safety precaution where there was a hazard of falling. The difficulty here, however, was that given the stage at which this particular task was being performed, that is, near completion, and where there was a both a brick wall and a glass wall limiting access to the place where Mr Barahona had to work, the use of a scissor lift was impractical.

37 The primary judge held that the activity with which Mr Barahona was engaged ought to be classified as either a class 1 risk (high) or class 2 risk (medium): see cll 12.2 and 12.3 of the Management Plan. There was no challenge to these findings.

The expert evidence

38 Mr Cowling provided the only expert engineering/construction evidence in the case. He was not cross-examined and it is apparent that her Honour accepted his expert opinion.

39 In his first report, dated 26 October 2006 (the “first report”), Mr Cowling stated that the safety requirements on the site were governed by the OH & S Regs under the Occupational Health and Safety Act 2000 (NSW) (the “OH & S Act”). He reviewed those at some length.

40 A number of OH & S Regs were relied on, in particular cll 34, 35, 36, 39 and 56 which were in the following terms:

“34 Controller of premises to identify hazards

(1) A controller of premises must identify any foreseeable hazard arising from the premises that has the potential to harm the health or safety of any person accessing, using or egressing from the premises.

(2) Without limiting the generality of subclause (1), the controller must identify hazards arising from:

(a) the layout and condition of the premises, including the presence of a confined space, and

(b) the physical working environment, including the potential for:

(i) people slipping, tripping or falling, and

(ii) objects or structures falling on people, and

(c) the presence of material containing asbestos.

(3) A controller of premises must ensure that hazards are identified:

(a) during any design of the premises, and

(b) before the premises are provided for use as a place of work.

Maximum penalty: Level 4.
35 Controller of premises to assess risks

(1) A controller of premises must assess the risk of harm to the health or safety of any person arising from any hazard identified in accordance with this Division.

(2) When assessing those risks, the controller must:

(a) evaluate the likelihood of an injury or illness occurring and the likely severity of any injury or illness that may occur, and

(b) review available health and safety information relevant to a particular hazard, and

(c) identify the actions necessary to eliminate or control the risk, and

(d) identify records that it is necessary to keep to ensure that risks are controlled (including the length of time for which records are to be kept).

(3) A risk assessment may relate to more than one place of work or hazard so long as it takes account of the particular circumstances of each place of work or hazard.

Maximum penalty: Level 4.
36 Controller of premises to eliminate or control risks

(1) A controller of premises must eliminate any risk, arising from the premises, to the health or safety of any person accessing, using or egressing from the premises.

(2) If it is not reasonably practicable to eliminate the risk, the controller of the premises must control the risk.

(3) A controller of premises must ensure that all measures (including procedures and equipment) that are adopted to eliminate or control risks to health or safety are properly used and maintained.

Maximum penalty: Level 4.

Note. This Part also contains specific risk control requirements with which the controller must comply.
…

39 Fall prevention—particular risk control measures

A controller of premises must ensure that:

(a) safe access is provided to all parts of a place of work to which a person may require access and from which the person may fall, and
(b) if the whole or any part of the roof of a building or structure comprises or includes any brittle or fragile roofing material, warning signs are provided that:

(i) contain the words ‘DANGER—BRITTLE ROOF’, and

(ii) are affixed to each individual slope, curve or section of the roof and to all other places from which access to the roof may be obtained, and

(c) walkways are provided and maintained over roofs that are wholly or partly covered by brittle or fragile roofing material, and

(d) if windows are designed to be cleaned from the outside, anchorage points for fall arrest devices are provided on each window or other safe means for cleaning every window of the building or structure are provided, and

(e) floors are designed to be safe without risks of slips, trips or falls, with adequate drainage (if necessary) and appropriate floor coverings (if necessary).
Maximum penalty: Level 4.

…

56 Prevention of falls from heights—particular risk control measures

(1) An employer must ensure that risks associated with falls from a height are controlled by use of the following measures:
(a) provision and maintenance of:

(i) a stable and securely fenced work platform (such as scaffolding or other form of portable work platform), or
(ii) if compliance with subparagraph (i) is not reasonably practicable—secure perimeter screens, fencing, handrails or other forms of physical barriers that are capable of preventing the fall of a person, or
(iii) if compliance with subparagraph (ii) is not reasonably practicable—other forms of physical restraints that are capable of arresting the fall of a person from a height of more than 2 metres,

(b) provision of a safe means of movement between different levels at the place of work.

(2) If a fall arrest device is provided for use by persons at work, the employer must ensure that:

(a) all anchorage points for the device are inspected by a competent person before their first use and then on a regular basis so they are capable of supporting the design loads, and

(b) if the load-bearing capacity of an anchorage point is impaired, the anchorage is immediately made inoperable so as to prevent its use, and

(c) any harness, safety line or other component of the device that shows wear or weakness to the extent it may cause the device to fail is not used, and

(d) all persons using the device have received training in the selection, assembly and use of the system, and

(e) adequate provision is made for the rescue of a person whose fall is arrested by a fall arrest device.” (emphasis added)

41 Clauses 226 and 227 are set out earlier in the judgment.

42 In his first report, Mr Cowling expressed the opinion that the incident would not have occurred if Pacific and Jigsaw had met reasonable safety requirements. He stated that Pacific should have reviewed the task and discussed it with Mr Barber, prepared an SWMS, issued clear instructions and explained to Mr Barahona how to do the job. He continued:

“This required the essential identification of hazards such as falling, elimination or control of risks by provision of a safe means of access such as scaffolding or the use of an elevating work platform.”

43 Mr Cowling provided a ‘sample SWMS’ that suggested the use of various safety procedures, such as a scaffold or elevated work platform, edge guarding, a toe board, temporary barricades, a sling and goggles. In his supplementary report, Mr Cowling acknowledged that the fence to the garden bed and the glazed wall prevented the beam/column connection from being accessed using an external elevating work platform.

44 Jigsaw relied upon this as “clearly [eliminating] the use of an elevated work platform or scissor lift in the circumstances” and noted that neither the reports, nor other evidence, suggested how a scaffold might have been used, if at all.

45 Mr Barahona submitted that based on Mr Cowling’s opinion in his supplementary report, it could be inferred that the beam/column connection could be accessed using an internal elevated work platform. However, in the absence of evidence that this was a reasonable and feasible manner of performing the work, we would not accept that such an inference should be drawn.

46 Jigsaw submitted that in any event, Mr Barahona did not run a case at trial that the job should have been carried out differently and that if he had run such a case, he would have had the evidentiary onus to show that he should have done the job in a different way. This submission cannot be accepted without qualification. As was apparent from Mr Cowling’s reports, there was unchallenged evidence as to how the accident could have been prevented. Mr Barahona’s case, based as it was on Mr Cowling’s reports, was that Jigsaw should have required an SWMS to be prepared by Pacific for this work by Mr Barahona and then reviewed it, or, in the absence of one from Pacific, “Mr Barber should have assessed the work and written his own SWMS or he should have sent [Mr Barahona] away until one was provided”. Mr Barahona’s case was that had this been done the necessary safety precautions would have been inbuilt into the manner in which the task was to be performed. Those precautions were those in the ‘sample SWMS’ that Mr Cowling referred to and included, for example, the use of a sling.

47 This leads directly to the critical parts of Mr Cowling’s reports. At Part 10 of his first report, Mr Cowling dealt with “Safety – Portable ladders” as follows:

“It is important to note that a ladder is intended to provide a means of access to a place of work, not provide a place of work per se .

…

48 Mr Cowling considered that the accident was preventable. His opinion was as follows:

“In my opinion, this injury incident could not have occurred if reasonable safety requirements had been met by [Pacific] and [Jigsaw].

To start with, [Pacific] did not have any proper understanding beforehand of what work Mr Barber required [Mr Barahona] to undertake, [Pacific] should have gone there …, or sent a supervisor and found out.

Alternatively, [Pacific] could have instructed [Mr Barahona] to attend and ascertain the extent of the proposed work and then come back and inform [Pacfic] of the details before undertaking the work.

[Pacific] should then have reviewed the work task, discussed this with Mr Barber and then issued clear instructions and prepared a simple SWMS and explained to [Mr Barahona] how the job was to be done safely.

This required the essential identification of hazards such as falling, elimination or control of risks by provision of a safe means of access such as scaffolding or the use of an elevating work platform (EWP).

In my opinion, there should have been no expectation that [Mr Barahona] should have been permitted to undertake ANY work without [Pacific] being made fully aware of the proposed method and hence the risks involved.

Failing this, the injury incident could and should have been prevented by [Jigsaw].

Mr Barber should not have permitted [Mr Barahona] to undertake the work without first having been provided with an SWMS by [Mr Barahona].

In the absence of an SWMS from [Pacific], either Mr Barber should have assessed the work and written his own SWMS or he should have sent [Mr Barahona] away until one was provided.

In the event that Mr Barber was not accustomed to obtaining such SWMS’s he should have ensured he understood what was going to be done and how it was going to be done.

Had he done so, it is difficult to see how he could have agreed firstly to [Mr Barahona] erecting a ladder on top of the newly applied bitumen (or similar) membrane.

49 In his supplementary report, Mr Cowling further expressed the opinion that:

“… a proper evaluation of the SWMS by Jigsaw should have ensured as follows:

Either Jigsaw remained responsible to [Pacific] to provide secure (meaning safe) access to enable [Mr Barahona] to carry out his work.

Or else in the alternative [Pacific] should have been instructed by Jigsaw to provide a safe means of access.

Under no circumstances in my opinion

50 Mr Cowling also considered that the work to be undertaken by Mr Barahona was an entirely new activity and thus should have been controlled by cl 5.2 of the Management Plan. His ultimate opinion was that:

“Jigsaw should have ensured that the work involved in the rectification was fully documented and evaluated and approved by Jigsaw prior to its commencement.”

The findings of the trial judge

51 The trial judge found that the question of how Mr Barahona fell from the ladder was irrelevant to the determination of liability in circumstances where Jigsaw and Pacific should have provided an alternative and safe method of undertaking the job. Her Honour came to that conclusion because she considered that Pacific should have prepared an SWMS for the task to be undertaken, or in the absence of an SWMS, Mr Barber should have assessed the task and written his own SWMS, or sent Mr Barahona away until one was prepared. Her Honour, at [46], considered:

“Had [Mr Barber] prepared [an] SWMS he would have appreciated the dangers in using a ladder as the work platform for this particular job and not permitted [Mr Barahona] to do so. Instead, by his conduct [Mr Barber] impliedly authorised the use of a ladder where the task involved lifting a beam weighing 216kg some 4.5m above the ground whilst using a ladder as the work platform particularly where clause 14.3 required [Jigsaw] to use scaffolding rather than ladders to reduce the risk of falls.”

52 The effect of this finding, as accepted by the parties in argument on the appeal, was that Mr Barahona should not have been on the ladder at all, not even as preparatory to carrying out the task he was directed to do.

Jigsaw’s appeal

The grounds of Jigsaw’s appeal

53 Jigsaw made the following complaints in its Amended Notice of Appeal:

(a) The primary judge should not have found Jigsaw to be negligent. (ground 1)

(b) The primary judge failed to give consideration to whether Jigsaw owed a duty of care to Mr Barahona, and if it did, the content of that duty. (ground 1A)

(c) The implicit finding of the vicarious liability of Jigsaw for Mr Barber’s actions should not have been made. (ground 1B)

(d) The contribution of Jigsaw of 80% was too high. (ground 2)

(e) The contributory negligence of 15% was too low. (ground 4)

Bullock

54 An earlier challenge to the damages found by the primary judge (in ground 3) was abandoned.

The principal submissions of Jigsaw

55 As to the question of the existence of duty, the primary judge’s reasons appeared to indicate that there was no real issue as to the existence of a duty of care. In debate on appeal, it became clear that the issue was one of definition of the content of the duty, not the existence of any duty at all. It was submitted that the content of the relevant duty was limited to Jigsaw exercising due care in organising and co-ordinating the various contractors and their employees. As Mr Seton SC (who appeared with Mr McCarthy for Jigsaw) said in oral submissions on appeal: “the scope is … limited to protecting people who come on [to the site] from the risks of injury from other people on the site. It’s a co-ordination duty of … care.” (Appeal Tr p 5). Thus, it was said, Jigsaw did not owe a duty of care to persons who were not its employees and who caused injury to themselves. In this regard, Jigsaw submitted that the responsibility to provide a safe system of work lay with each relevant trade and each relevant employer. As the submission applied to this case, it was Pacific, it was said, which was responsible for the safety of its own workers, including providing a safe system of work, except to the extent that Jigsaw owed a duty of care in the co-ordination sense referred to above. As Mr Barahona’s accident was most likely to have been caused by an unsafe system of work, Jigsaw was not liable to him in negligence. Its duty of care did not extend so far.

56 Jigsaw submitted that Mr Barahona was an experienced tradesman who was used to climbing ladders and for whom it had no responsibility as an employer. It contended that, although the site foreman (Mr Barber) had directed Mr Barahona to undertake the particular task of raising the steel beam to first floor level, Mr Barahona was responsible for devising his own method of work in carrying out that task: see Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204.

57 In Van Der Sluice, the plaintiff, an independent contractor, fell from a 12 ft A-frame ladder on which he was standing whilst installing Christmas decorations on an awning of a building under contract for the defendant. He had undertaken this work for the defendant in previous years. In order to install the decorations, the plaintiff had to place hooks in the awning. To do this, he stood on the second top step of the ladder and reached up at full stretch with one arm and leant forward to clip in the hook. The plaintiff was on the second top step of the ladder and was reaching up when he fell. The top step of the ladder was touching his shins. The plaintiff could not remember whether he had inserted the hook before he fell. Heydon JA (Meagher JA and Foster AJA agreeing) said:

“[72] … while it may be reasonably foreseeable that many men in that position would fall off, the plaintiff was a skilled workman experienced in this type of repetitive work. In 1993 the plaintiff had set up a freelance decorating business, and most of the work it did was for the defendant. From 1993 to 1996 the plaintiff had done freelance work for the defendant on an extensive basis – as he said in chief, it was a ‘fairly long association’. The September-February period each year was very busy, but not the rest of the year. The plaintiff had worked at the Imperial Arcade for the defendant two years before the accident. In September-October 1996 the officers of the defendant went to some trouble to secure the plaintiff’s services. Not only had the plaintiff done work of this kind before for years without mishap, he had done it on that earlier occasion at the Imperial Arcade, and he did it on this occasion without mishap until he fell. The defendant could not reasonably foresee that he would fall, because the defendant was entitled to assume that he would identify any risk of falling and take measures to prevent that risk from arising if he did. For the defendant it was not reasonably foreseeable that the plaintiff would come to harm because of the skill it had detected in him during their earlier association – which skill the defendant had gone to considerable lengths to acquire on this occasion - and because of his experience, and hence his capacity to perceive any possible risks and his capacity to devise methods of negating them by not leaning too far to the right or left, moving the ladder appropriately, and having it held by Mr Smink or someone else if necessary.”

58 Jigsaw submitted that the present circumstances were on all fours with those in Van Der Sluice. Jigsaw submitted that at the time of the accident, Mr Barahona was not using the ladder as a place of work, but was in the process of setting up the ladder so that he could perform the designated task of fixing the beam. Jigsaw accepted that there were a limited number of possibilities as to what caused Mr Barahona to fall: the ladder slipped either because the unsupported feet of the ladder moved backwards as the head of the ladder slipped; Mr Barahona’s feet slipped off the step of the ladder; or Mr Barahona overbalanced, perhaps as he was stretching for the rope. Another possibility is that he had a dizzy or fainting spell. Jigsaw submitted that in undertaking this particular task, Mr Barahona was in charge of the manner in which he was to perform it and that in those circumstances, it had no duty of care to him insofar as it related to the manner in which he carried out his work. Jigsaw submitted that there was a degree of unreality in the present case in Mr Barahona trying to assert that as a competent and trained worker, he did not know how to safely secure a ladder to climb. Jigsaw submitted that to the extent there had been negligence, it was not its negligence. It had retained experts, namely Pacific, to carry out the steel works.

59 The effect of this aspect of Jigsaw’s submission was that it was entitled to rely upon the expert to undertake the work the expert had been contracted to do. Jigsaw contended that this in effect raised the essential issue in the case, namely:

“… to what extent a head contractor needs to … hold the hand of an experienced expert in the field who is contracted to do the very job that he’s undertaking where he does not require instructions, [and] he does not seek instructions as to how to do it from the head contractor because the head contractor wouldn’t be expected to know.”

60 Jigsaw’s submission in relation to duty made at the hearing involved a challenge to the decision of this Court in Fox v Leighton Contractors Pty Ltd [2008] NSWCA 23. At the time the matter was heard by this Court, Leighton v Fox was reserved in the High Court. Jigsaw contended that the decision of this Court in that matter was wrong. On 2 September 2009, the High Court delivered its decision in Leighton Contractors Pty Ltd v Fox [2009] HCA 35 allowing the appeal. The parties then provided further written submissions. Jigsaw relied on what the High Court said in Leighton v Fox. We will return to Leighton v Fox.

61 As to breach, Jigsaw contended that Mr Barahona had not pleaded a failure by Mr Barber to prepare an SWMS for this task. Further, it argued that that Jigsaw should not have had to prepare an SWMS, when Pacific had prepared its own SWMS and was contractually required to do so.

62 As to the position of Mr Barber, reliance was placed on Sweeney v Boylan Nominees Pty Limited [2006] HCA 19; 226 CLR 161. This point was not run below. Jigsaw’s case below was that Hays, the third defendant, was Mr Barber’s employer, and not Jigsaw. Mr Barber had his own company, Barber Earthworks Pty Ltd, which invoiced Hays for his services. The primary judge dealt with the controversy propounded by the parties, being whether Jigsaw or Hays should be taken to be responsible for Mr Barber. This was resolved by the primary judge against Jigsaw, by reference to matters which included the contractual arrangement between Jigsaw and Hays.

63 On appeal, Jigsaw sought to raise, for the first time, that it was not liable vicariously for Mr Barber because Barber Earthworks Pty Ltd was his employer.

64 As to contribution or apportionment between itself and Pacific, Jigsaw submitted that the primary judge fundamentally underestimated Pacific’s responsibility, in particular because of the latter’s responsibility to prepare an SWMS and the terms of its contract with Jigsaw.

65 As to contributory negligence, a significantly higher attribution of 60% was sought.

66 As to the Bullock order, it was submitted that the discretion miscarried in the light of the decisions of this Court in Almeida v Universal Dye Works Pty Limited (No 2) [2001] NSWCA 156; Roads and Traffic Authority of New South Wales, Council of the Shire of Evans & Pioneer Road Services Pty Ltd v Palmer (No 2) [2005] NSWCA 140 and the decision of the High Court in Gould v Vaggelas [1985] HCA 85; 157 CLR 215.

The principal submissions of Mr Barahona

67 Mr Barahona submitted that Jigsaw had a duty under the common law, informed by the OH & S Act, to exercise reasonable care for his safety.

68 On the evidence, this was, it was submitted, breached.

69 Mr Barahona argued that the apportionment and contributory negligence findings were evaluative conclusions in respect of which no error was shown. Therefore, on the basis of well-understood principle (Liftronic Pty Ltd v Unver [2001] HCA 24; 75 ALJR 867 at 868 [2]; Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492 at 493; AV Jennings Construction Pty Ltd v Maumill (1956) 30 ALJR 100 at 101) the court should not interfere.

The disposition of Jigsaw’s appeal

The vicarious liability of Jigsaw for Mr Barber

70 Jigsaw should not be permitted to argue this point. It was not run below. It is not, contrary to Jigsaw’s submissions, a simple question of law with all facts found. The factual nuances involved in issues canvassed in Sweeney v Boylan Nominees at 170-173 [21]-[33] required attention and focus at the trial.

The question of duty and breach

71 It is convenient to deal at the outset with Leighton v Fox. Leighton Contractors Pty Limited (Leighton) was the principal contractor for the construction of the Hilton Hotel. It contracted with Downview Pty Limited (Downview) to carry out concreting works on the site. Downview subcontracted the concrete pumping aspect of the work to Messrs Still and Cook, who in turn engaged Mr Fox and another worker, Mr Stewart, in connection with the concrete pour. Mr Fox was severely injured during the cleaning of the concrete delivery pipes which was being carried out by Mr Still and Mr Stewart.

72 The arrangements for the carrying out of the concrete pumping work were a little complex, as explained in the High Court’s judgment at [8]-[12]. Having secured the subcontract for the concrete pumping from Downview, Messrs Still and Cook hired a concrete pump truck from Shark Shire Pumping, a business owned by Mr Martin, and engaged Mr Stewart as a driver and Mr Fox as an offsider to assist with the work. Mr Stewart and Mr Fox had been “supplied” by a company associated with Mr Martin and Shark Shire Pumping. Mr Fox was a labourer with many years experience in the industry. Although he mostly worked for businesses operated by Mr Martin, he was an independent contractor. The “arrangement” with Mr Martin was that Mr Stewart and Mr Fox were to report to the construction site and take directions from Mr Still, who had worked in the concrete pumping industry for 19 years.

73 The accident occurred when Mr Still directed that a hessian bag filled with dacron be forced through the pump line at pressure, in order to clean it. The bag became stuck and it was agreed between Mr Still and Mr Stewart that the pressure be increased to blow the bag out of the pump line. Mr Fox was standing about 30 m away from the pipe, as instructed to do by Mr Stewart. However, when the pressure was increased, the pipe whiplashed and struck Mr Fox. The pipe should have been secured.

74 Mr Fox sued Leighton, Downview and Warren Stewart Pty Limited (Mr Stewart’s employer). The trial judge held that the accident was caused by the negligence of Messrs Still and Stewart. Her Honour found that the relevant cause of the accident was Mr Stewart’s failure to secure the pipe to the waste bin at his end. However, her Honour found that Mr Still was in charge of the concrete pumping operation and that Mr Stewart followed his directions. No one associated with Leighton or Downview gave any directions in connection with the operation. Her Honour dismissed the claims against Leighton and Downview, holding that neither had a relevant duty of care. An appeal to the Court of Appeal against the dismissal of the claims against Leighton and Downview was allowed.

75 By special leave, Leighton and Downview appealed to the High Court on the basis that the imposition of a common law duty of care owed by each of them to Mr Fox, an independent contractor, involved an unwarranted extension of the liability of principals for the negligent acts of independent contractors engaged by them: see Stevens v Brodribb Sawmilling Company Pty Ltd [1986] HCA 1; 160 CLR 16.

76 In Leighton v Fox The High Court confirmed at [20] the following statement of principle of Brennan J in Stevens v Brodribb at 47-48, governing the circumstances in which a principal will come under a duty to use reasonable care to ensure that a system of work for an independent contractor is safe:

77 The High Court in Leighton v Fox reconfirmed, at [21], that the duty owed by an employer is a personal, non-delegable duty of care to its employees requiring that reasonable care be taken, and that such a duty is more stringent than a duty to take reasonable care to avoid foreseeable risk of injury to a person to whom a duty is owed.

78 In considering whether Downview owed a duty of care, the High Court, at [62], also confirmed the principle stated by Mason J at 31 in Stevens v Brodribb that:

“… If an entrepreneur engages independent contractors to do work that might as readily be done by employees, in circumstances in which there is a risk to them of injury arising from the nature of the work and where there is a need for him to give directions as to when and where the work is to be done and to co-ordinate the various activities, the entrepreneur will come under a duty to prescribe a safe system of work.”

79 The Court rejected the formulation by the Court of Appeal of a duty upon Leighton “to ensure safe work practices and to take reasonable steps to ensure that those working on the site were properly trained”.

80 Leighton v Fox is a recent affirmation that Jigsaw did not owe to independent contractors engaged to work at the Strathfield Library site a duty of care of the kind owed to its employees. The Court (French CJ and Gummow, Hayne, Heydon and Bell JJ) said that, although the distinction in this respect between independent contractors and employees has been criticised, “the concept of distinguishing between independent contractors and employees is one too deeply rooted to be pulled out” (at [20]-[21]: the quotation carried a reference to Sweeney v Boylan Nominees Pty Ltd at 173 [33] per Gleeson CJ and Gummow, Hayne, Heydon and Crennan JJ).

81 The maintenance by their Honours of the principles explained in Stevens v Brodribb was with recognition (at [21]) that it is common in the construction industry for a principal to engage subcontractors rather than its own work force. Litigious experience suggests that it is common not only in the construction industry. There are legal and practical advantages to principals in so arranging for construction, manufacturing or other activities to be carried out. There are some advantages to workers; but there are also disadvantages to workers who choose to provide their labour as independent contractors, including the more limited circumstances in which they may be owed by the principal a duty to take reasonable care to ensure that a safe system of work is followed than if they provide their labour as employees.

82 Mr Barahona was not himself an independent contractor vis à vis Jigsaw. As an employee of Pacific, he was owed by Jigsaw no greater duty of care than was owed by it to a worker providing his labour as an independent contractor; and that is so even though Mr Barahona did not have meaningful choice in working at the Strathfield Library site otherwise than as an employee of Pacific, doing work which could readily enough have been done by a Jigsaw employee. In Leighton v Fox for example, the question of a duty of care owed to Mr Fox, an employee of the sub-contractors Messrs Still and Cook, was dealt with as if he were an independent contractor.

83 Of course, in such a case the worker is owed by his employer the personal non-delegable duty of care. Assuming solvency or insurance of the employing independent contractor, in that respect the common engagement of contractors or subcontractors rather than the principal employing its own work force is not necessarily detrimental to injured workers. But it can be significantly disadvantageous to an injured worker whose damages recoverable from the employer are restricted to the modified common law damages. This case is an illustration.

84 It is not surprising, then, that the conjunction of increasing engagement of sub-contractors to perform work which in earlier times would have been done by the principal’s own work force, and restrictions upon damages recoverable from employers, has brought attention to the circumstances in which a principal may be obliged to use reasonable care to avoid or minimise the risk of injury to an independent contractor or its employees.

85 To an extent the workers compensation legislation makes an independent contractor a worker for its purposes (see s 20 of the Workers Compensation Act 1987 (NSW) and references to deemed employment of workers in Schedule 1 to the Workplace Injury Management and Workers Compensation Act 1998 (NSW)). The common law, however, has not greatly adjusted to the performance of manufacturing, construction and other activities with labour by, or by employees of, independent contractors, doing work which does not involve skill or expertise beyond that which an employee in modern times can readily provide. In accordance with the principles explained by Brennan J in Stevens v Brodribb, principals have been held liable to independent contractors doing work which might have been done by employees where there was a risk of injury arising from the nature of the work and a need for direction and coordination of the various activities being undertaken. But, to return to Leighton v Fox, their Honours said at [59] that provided that Downview (the head contractor) engaged a competent contractor and placed the activity of concrete pumping in the contractor’s hands, it was not subject to an ongoing general law obligation with respect to the safety of the work methods employed by the contractor or those with whom the contractor sub-contracted; and at [62] that “… there is nothing unreasonable about subcontracting the work of concrete pumping. It is an activity that requires specialised equipment and which lends itself to being carried out by independent contractors.”

86 There can be results which might be thought curious. A head contractor such as Jigsaw may owe to its employees on the site a duty to take reasonable care in relation to sub-contractor A’s system of work if there is risk of injury to the employees (see for example Leighton v Fox at [21]). It may owe a like duty of care to sub-contractor B if organisation of activities on the site is necessary to avoid or minimise the risk of injury. So, if Mr Barahona’s unsafe use of the ladder brought risk of injury to a Jigsaw employee, or to sub-contractor B, through Mr Barahona falling onto the employee or the sub-contractor, Jigsaw could be obliged to exercise some control over the system of work being followed by Mr Barahona. But the risk of injury to Mr Barahona himself in the fall may not oblige Jigsaw to exercise control over that system of work. These results, however, flow from the ingredient in a duty of care of the person or class of persons to whom it is owed, and the maintenance of the differential duties of care owed to employees and independent contractors.

87 In Stevens v Brodribb Brennan J referred to circumstances which may make it necessary for the principal to retain and exercise a supervisory role, as a matter distinct from prescribing the respective areas of responsibility if confusion about those areas involves a risk of injury. The basic principle remains, however, that the principal has no duty to retain control of the system of work if it is reasonable to engage the services of an independent contractor who is competent to control the system of work without supervision, and the activity has been organised and has been placed in the hands of the independent contractor.

88 The circumstances to which Brennan J referred were not elaborated. Subsequent cases have explored the circumstances, but Leighton v Fox stands against arriving at “a general law obligation … of a more extensive kind than that recognised in Stevens v Brodribb Sawmilling Co Pty Ltd” (at [59]).

89 In a number of decisions of this Court, it has been held that a principal owes to an independent contractor, or to the independent contractor’s employee, a duty beyond the alleviation of risk of injury arising from a need for direction and co-ordination of activities on a site. Examples are Rockdale Beef Pty Limited v Carey [2003] NSWCA 132 (the configuration of the principal’s work site brought the safety risk; see also the protruding scaffolding in Erect Safe Scaffolding (Australia) Pty Ltd v Sutton [2008] NSWCA 114; 173 IR 412, although there was also a failure in coordination of activities); Tolhurst v Cleary Bros (Bombo) Pty Ltd [2008] NSWCA 181 (the principal created the conditions in which there was a risk in the system of work and retained control over it); Bostik Australia Pty Ltd v Liddiard [2009] NSWCA 167 (the principal exercised overall control over the activities on the premises, part of a more extensive collection of relevant matters at [89]). (An application for special leave to appeal from the decision in Bostik Australia Pty Ltd v Liddiard is pending).

90 In Sydney Water Corporation v Abramovic [2007] NSWCA 248; 5 DDCR 570; (2007) Aust Torts Rep 81-913 at [98] Basten JA, with whom Mason P agreed, essayed a statement of criteria which may give rise to a duty owed to a worker who is an employee of an independent contractor, although in Caltex Refineries (Qld) Pty Limited v Stavar [2009] NSWCA 258 his Honour observed that he had not intended a precise checklist but rather a guide to criteria suggested by existing caselaw. The statement was:

91 To the extent to which in Rockdale Beef Pty Ltd v Carey at [79]-[84] factors generally relevant to the existence of a duty of care were regarded as sufficient to find a duty of care owed to an independent contractor, see also Tolhurst v Cleary Bros (Bombo) Pty Ltd at [64]-[70], the principles affirmed in Leighton v Fox must prevail. So also as to the criteria suggested in Sydney Water Corporation v Abramovic. In Caltex Refineries (Qld) Pty Ltd v Stavar at [108] Allsop P described the use of an independent contractor by a principal, rather than the direct engagement of employees, as “a significant factor in the existence or not of responsibility of the principal arising from the conduct or activity of the subcontractor and its employees or agents.” The particular significance is illustrated in the observation in Leighton v Fox at [24] that “to import a duty akin to that of an employer to retain a degree of control over the [concrete pumping] work would be inconsistent with the relationship between principal and independent contractor.”

92 There is no question in the present case of Jigsaw owing a duty of care to Mr Barahona because of a need for direction and co-ordination of activities on the site. Mr Barahona was to undertake the discrete task of raising the first floor beam to floor level. So far as the evidence showed this was in no way related to other activities being conducted on the site. This was a task for which Pacific as his employer and Mr Barahona himself were fully competent – it was not suggested to the contrary. According to the above principles, what circumstances, then, may have made it necessary for Jigsaw to retain and exercise a supervisory power over the system of work followed by Mr Barahona in performing the work?

133 Pacific submitted there was no error in her Honour’s apportionment of responsibility for the accident. It pointed out that Mr Barahona was on site fixing up small defects as directed by Mr Barber. Pacific did not know, formally through Mr Christou, that the particular defect existed: or at least, Jigsaw did not seek to prove that it had informed Pacific through Mr Christou or anybody else that this particular work had to be performed. Pacific also relied upon cl (v) and (vii) of Annexure B to the contract, “Additional Special Conditions”, set out above. In particular, Pacific relied upon the requirement that its employees, such as Mr Barahona “at all times obey the instructions of the Jigsaw site manager”, that is, Mr Barber.

134 In our opinion, her Honour erred in her apportionment of liability in that she failed to give sufficient weight to Pacific’s non-delegable duty of care. Pacific was not a labour hire company. It was a specialist contractor on site. Much of the work that it had contracted to do was dangerous. Its duty extended to knowing what work needed to be done. It was not sufficient to leave an employee on site to undertake rectification work without having systems in place to ensure that reasonable care was taken for its employees’ safety. That is a stringent duty. Pacific had the primary responsibility for preparing an SWMS for dangerous tasks on site. Pacific’s failure to ensure that there were proper systems in place to ensure that whatever work Mr Barahona was directed to do could be done safely, was of such an order that it should bear more than 20 per cent of the liability for the accident, and to that extent her Honour erred.

135 Accepting that these are matters of evaluation and impression, we would adjust the apportionment and find that Jigsaw and Pacific should bear liability for the accident equally.

Contributory negligence

136 Both Jigsaw and Pacific alleged contributory negligence on Mr Barahona’s part, on the basis that he was an experienced tradesman and that he devised the method whereby he was to perform the particular task in which he was engaged when he fell. Her Honour found that Mr Barahona was contributorily negligent, in that he departed from the standard of care of a reasonable man. Her Honour assessed the degree of his contributory negligence at 15 per cent. Both Jigsaw and Pacific appealed against this assessment.

137 Given that Pacific approached the appeal substantially by adoption of Jigsaw’s submissions we will deal with this issue in part through Jigsaw’s submissions, although these matters are relevant to Jigsaw only if we are wrong about its lack of a relevant duty of care.

138 Jigsaw, in its written submissions, contended (and Pacific adopted) that her Honour’s reasons, which were essentially encompassed by what we have just recorded, were inadequate, in that they did not expose anything that would enable Jigsaw to know why the finding complained about was made. However, the ground of appeal relating to this issue in Jigsaw’s amended notice of appeal was as follows:

“4. Her Honour erred in her assessment of contributory negligence. In that her Honour misapprehended the primary facts informing the question of apportionment as amongst the parties.”

139 We would say at the outset that Jigsaw and Pacific ought not be able to rely on an ‘inadequacy of reasons’ ground in circumstances where it failed to raise that as a ground of appeal, notwithstanding that leave was given for them to file an amended notice of appeal. We would also say (and not critically) that her Honour’s reasoning is fairly typical of findings of contributory negligence by trial judges. Such an assessment is made after all the facts have been found and a determination has been made on the primary question of negligence. The question of contributory negligence is then an evaluative task, no more or less complicated than a finding of non-economic loss after a proper consideration of all the relevant evidence. Repetition of the factual matters is not required.

140 Accordingly, we propose to deal with this ground of appeal in the manner in which the ground of appeal was expressed. In this regard, Jigsaw relied (and Pacific adopted) upon two particular matters. First, the fact that Mr Barahona had available to him the assistance of another worker on site, Mr Neubauer, and secondly, that Mr Barahona could have telephoned his employer to arrange help. Mr Barahona did not avail himself of either of these two options. Jigsaw (and Pacific) submitted that had he done so, there was every prospect the accident may not have happened. Jigsaw submitted that if this Court determined that a request for assistance from either Mr Neubauer or Mr Barahona’s employer would have prevented the accident, then contributory negligence should be assessed at 60 per cent. This submission was supported by Pacific. Jigsaw also relied upon the fact that Mr Barahona was an experienced worker.

141 We have dealt with Mr Neubauer’s evidence. Whilst Mr Barahona was an experienced tradesperson, even an experienced tradesperson is entitled to be provided with a safe system of work from his employer and others who owe him a duty of care in such circumstances. In this case, one of the means whereby a safe system of work was to be effected on the construction site was by having an SWMS in place for all relevant processes. The responsibility for preparing an SWMS was primarily on Pacific, pursuant to its contract with Jigsaw.

142 The significance of Pacific abandoning Mr Barahona at the Strathfield Library site, apparently without regard to what he was to do other than that he was to “rectify the structures” as required by Jigsaw, and so without regard to taking reasonable care to ensure that he did his work safely, weighs heavily in the assessment.

143 It seems that Mr Barahona intended to tie off the top of the ladder so that he could use it to gain access to the beam from the underside. His error at the time of the accident lay in the process of installing the tied off ladder. The failure to have in place an SWMS was the major contributing cause to the accident, and the facts that Mr Barahona could have asked for assistance from Mr Neubauer or could have telephone Pacific were of much less significance when the initial step of an SWMS, with a view to the employer seeing to the safety of his method of work, had not been taken. The trial judge’s assessment of contributory negligence as between Mr Barahona and Pacific has not been shown to be incorrect.

The

Bullock

order

144 Jigsaw challenged the Bullock order made by her Honour against it in respect of the costs Mr Barahona was ordered to pay in favour of Hays. Since in our view Jigsaw is not liable, the Bullock order cannot stand. However, again we will deal with it on the assumption that we are wrong about duty.

145 The Court’s power to award costs is contained in the Civil Procedure Act2005 (NSW), s 98 which provides, relevantly:

“ 98 Courts powers as to costs

(1) Subject to rules of court and to this or any other Act:

(b) the court has full power to determine by whom, to whom and to what extent costs are to be paid …”

146 The Uniform Civil Procedure Rules 2005 (the UCPR), r 42.1 provides:

“ 42.1 General rule that costs follow the event

147 A Bullock order involves the making of an order that an unsuccessful defendant pay the costs that the plaintiff is ordered to pay to a successful defendant in the proceedings: Bullock v London General Omnibus Company [1907] 1 KB 264. The making of such an order involves part of the exercise of the court’s discretion under UCPR, r 42.1. The principles governing the making of a Bullock order are well-known and to be found in Gould. We refer to the discussion of principle by Gibbs CJ at 229-230, Wilson J at 247 and Brennan J at 260. We also refer to the discussion in this Court of those principles: Balesfire Pty Ltd t/as the Gutter Shop v Adams [2006] NSWCA 112; Coombes v Roads and Traffic Authority (No 2) [2007] NSWCA 70; ACQ v Cook (No 2); Aircair Moree v Cook (No 2); Cook v Country Energy (No 2); Country Energy v Cook (No 2) [2008] NSWCA 306; and Roads and Traffic Authority of New South Wales v Palmer (No 2).

148 The judgments in Gould reveal that it may be sufficient for a party, by its pleadings, to engage in conduct which attracts the exercise of the discretion. In Gould, it was not only the vendor’s denial of the purchasers’ claim which rendered it vulnerable to a Bullock order against it, but its pleaded allegation of reliance directed at the accountants. It is reasonable to conjecture that had the vendor only denied the purchasers’ claim, a Bullock order would not have been made. It was the additional factor of the vendor directing blame towards the accountant which tipped the balance. This is apparent, in particular, from the passage in the judgment of Gibbs CJ referred to above.

149 In this case, Mr Barahona initially commenced proceedings against Pacific and Jigsaw. Approximately a year after the statement of claim was filed, Jigsaw cross-claimed against Hays on the basis that Mr Barber was employed by Hays. Mr Barahona then sought and was granted leave to amend so as to join Hays. Mr Barahona submitted to the trial judge that he had always understood that Mr Barber was an employee of Jigsaw and was concerned that if that was not the case, the court might find that Jigsaw was not liable for Mr Barber’s negligence. As it subsequently emerged, Hays had entered into a contract with Barber Earthworks Pty Limited, which provided Mr Barber’s services to Hays, who in turn provided those services to Jigsaw.

150 Her Honour, at [25]-[28] of her judgment on costs dated 2 September 2008, set out her reasoning in deciding to make a Bullock order. As these paragraphs succinctly record both the sequence of events and the parties’ submissions, it is convenient to set them out in full.

“[25] Upon receipt of [Hays’] notice of offer of compromise [Mr Barahona’s] solicitors wrote to [Jigsaw’s] solicitor on 19 March 2008 referring to the offer and stating they would not advise their client to consider that offer whilst the cross-claim against [Hays] was maintained.

[26] [Jigsaw] pursued its cross-claim against [Hays], adducing evidence on that issue and whilst [Mr Barahona] does not allege that he was pressured by [Jigsaw] to pursue [Hays], he says that he was encouraged to do so by its conduct in maintaining its cross-claim. He did however acknowledge that he did not have any evidence to implicate [Hays].

[27] [Jigsaw] submitted that while the first production of records by [Hays] did not include any reference to Barber Earthworks Pty Ltd, a second production about a month before the hearing did. In the letter of particulars of 4 July 2008 [Hays’] solicitor made, for what [Hays] says is the first time, the assertion that the relevant agreement was between [Hays] and Barber Earthworks Pty Ltd. I accept that it was only a matter of days before the hearing but even at that last stage steps could have been taken to release [Hays] from the proceedings had instructions to do so been obtained.

151 Jigsaw contended that in the circumstances, her Honour’s discretion miscarried. Mr Barahona’s decision to join Hays as a defendant was his own decision, notwithstanding that Jigsaw had brought a cross-claim against Hays alleging that Mr Barber was Hays’ employee. There was no pressure, enticement or inducement by Jigsaw that caused Mr Barber to join Hays.

152 Mr Barahona submitted that there was no error in the exercise of her Honour’s discretion. He pointed out that he joined Hays defensively and at the time of doing so, his solicitors wrote to Jigsaw’s solicitors, on 19 March 2008, in the following terms:

“1. [Mr Barahona’s] claim is for damages received as a result of injury on [Jigsaw’s] construction site at the Strathfield Library on 20 January 2004.

2. [Mr Barahona] alleges that Chris Barber, a site foreman, was responsible for some of the relevant acts and omissions giving rise to his claim.

3. At the time of the injury [Mr Barahona] believed that Chris Barber was a foreman employed by [Jigsaw].

4. By letter dated 5 October 2007 you advised us that you were instructed to issue a cross claim against [Hays] on the basis that that company employed Chris Barber on the date of the accident and ‘was engaged as labour hire by [Jigsaw] to work at the Strathfield Library site.’ Until we received your letter we were unaware between of any relationship between Mr Barber and that company. On the basis of your letter and the cross claim subsequently filed by your client against [Hays] we obtained leave to joint [Hays] as a third defendant.

(a) that it did not employ Chris Barber at the date of the injury;

(b) that at the date of the injury Mr Barber was employed by Barber Earthworks Pty Ltd; and

(c) that Mr Barber’s services were provided pursuant to an agreement between Barber Earthworks Pty Ltd and [Hays].

Our further inquiries reveal that:-

(b) as at the date of our [Mr Barahona’s] injury Barber Earthworks Pty ltd did not hold a policy of insurance which would have responded to [Mr Barahona’s] claim

For those reasons we anticipate that [Mr Barahona] would not obtain the leave of the Supreme Court to commence or maintain a cross claim against Barber Earthworks Pty Ltd in liquidation. An application for leave in those circumstances almost certainly would be refused.

The solicitors for Hays have offered to settle [Mr Barahona’s] claim on the basis of a verdict for [Hays] with no order as to costs. We would not advise [Mr Barahona] to consider that offer while [Jigsaw] maintained its cross claim against the [Hays].

In the event that [Mr Barahona’s] claim against [Hays] fails, we will be seeking an order that [Jigsaw] indemnify [Mr Barahona] in relation to any costs which he might be ordered to pay to [Hays].

153 At trial, Mr Barahona submitted that in maintaining its cross-claim against Hays in the circumstances, including after Hays provided particulars to Jigsaw in which it revealed that its agreement was with Barber Earthworks, Jigsaw created uncertainty as to who was the proper defendant. Mr Barahona said that he had also sought clarification of the matter by serving a Notice to Admit Facts and Authenticity of Documents. It appears there was no reply to that. None was in the material before the Court and Jigsaw did not assert it had denied the fact. If that is correct, the “fact” stated in the Notice was taken to have been admitted: the UCPR, r 17.3(2). The fact asked to be admitted was:

“That as at 20 January 2004 there was an agreement in place between [Jigsaw] and [Hays] whereby Christopher Barber was a ‘temporary worker’ on hire from [Hays] to [Jigsaw].”

154 The trial judge found, correctly, that there was more involved in this case than Mr Barahona suing two defendants. It should be assumed that her Honour accepted Mr Barahona’s submission that he was encouraged to pursue the action against Hays because of Jigsaw’s conduct in maintaining its cross-claim against Hays. Her Honour also considered it relevant that Jigsaw could have released Hays from the proceedings prior to hearing, once Hays made it known that its agreement was with Barber Earthworks. Had this been done, then Mr Barahona either would have followed suit or would have continued against Hays at his own peril as to costs.

155 Given those factors, it was within the reasonable exercise of her Honour’s discretion to make a Bullock order. No House v R [1936] HCA 40; 55 CLR 499 error has been shown.

Attendant care services

156 Mr Barahona crossed-appealed against the trial judge’s failure to award him damages for domestic assistance.

157 At trial, Mr Barahona claimed an award of damages for care and assistance based on a need for 13 hours per week up to the date of trial and 7 hours per week in the future. Her Honour refused the claim on the basis that whilst in the immediate post-injury period Mr Barahona required assistance at home, and there was evidence that supported a reasonable need for a small amount for his ongoing care and assistance, she considered that the evidence was not sufficient to satisfy the thresholds provided for in the Civil Liability Act 2002 (NSW), s 15.

158 Section 15 was amended in 2008. A preliminary question arises as to whether s 15 in its form prior to amendment applies, or whether the amended provision applies. The statutory and legal chronology relevant to this question is as follows.

159 At the time of the hearing in this matter, the Civil Liability Act, s 15 provided:

“ 15 Damages for gratuitous attendant care services: general

(1) In this section:

attendant care services means any of the following:

(c) services that aim to alleviate the consequences of an injury.

gratuitous attendant care services

(3) Further, no damages may be awarded to a claimant for gratuitous attendant care services if the services are provided, or are to be provided:

160 The construction of the section in those terms was the subject of determination by this Court in Harrison v Melhem [2008] NSWCA 67; 72 NSWLR 380. The Court held that once either the severity or duration threshold specified in s 15(3) was passed, a plaintiff had satisfied the precondition to recovery once and for all.

161 Following that decision, s 15(3) was amended. The terms of the subsection in its amended form are as follows:

“15(3) Further, no damages may be awarded to a claimant for gratuitous attendant care services unless the services are provided (or to be provided):

162 The section commenced operation on 12 November 2008. However, at the time of the amendment, a new Pt 11 was inserted into the Civil Liability Act, Sch 1. Schedule 1, Pt 11, cl 31 defined the “2008 amending Act” to the be the Civil Liability Legislation Amendment Act 2008 (NSW). Clause 32 then provided:

“ 32 Restrictions on damages for gratuitous attendant care services

163 Section 15(3) as amended by the 2008 amending Act had the effect of reinstating this Court’s decision in Geaghan v D’Aubert [2002] NSWCA 260; 36 MVR 542. The effect of Geaghan is that for a plaintiff to obtain damages for future attendant care services under subs (3), both limbs of the provision have to be satisfied. That is, the services have to had been provided for at least 6 hours per week and 6 months concurrently, before damages are recoverable with respect to the period in question.

164 Mr Barahona contended that his case was governed by s 15(3) prior to the 2008 amendment. Accordingly, pursuant to Harrison, it was only necessary for him to satisfy one or other of the two limbs specified in s 15(3). In this regard, he argued that the word “determined” in cl 32 meant “determined at first instance”. He sought support for this argument by contrasting the terms of cl 32 with Sch 1, Pt 1, cl 1A and Sch 1, Pt 8, cl 23. Clause 1A provides:

“ 1A Final determination of proceedings

For the purposes of this Schedule, proceedings are not finally determined if :

(a) any period for bringing an appeal as of right in respect of the proceedings has not expired (ignoring any period that may be available by way of extension of time to appeal), or

165 Clause 23, which applied to the new s 15A and s 15B inserted by amendments made by the Civil Liability Amendment Act 2006 (amending Act). Clause 23 provided, relevantly:

“ 23 Application of amendments made by amending Act

(1) Section 15A (as inserted by the amending Act) extends to civil liability arising before the commencement of section 15A, but does not apply to any proceedings that were finally determined before that commencement.

finally determined

finally determined

166 Although there would appear to be substance in this argument, that result is precluded by the decisions of this Court in Cai v Zheng [2009] NSWCA 13 and Coles Supermarkets Australia Pty Limited v Tormey [2009] NSWCA 135.

167 It follows that it is necessary to consider this claim on the basis that s 15(3) in its amended form applies.

168 The trial judge’s reasons for rejecting the claim were relatively brief. In some circumstances, that may have been a criticism. However, there was little evidence at trial in relation to this claim. To the extent that Mr Barahona had expert evidence directed to the issue, Dr Bleasel, in a report date 8 February 2005, listed a number of restrictions on his activities, such as housework, small manual jobs such as painting and an inability to attend to the family’s small garden. Dr Bleasel did not indicate the type or extent of assistance that Mr Barahona thereby required. Mr Barahona also had obtained a report from Complete Domestic Care Pty Limited, which made a significant claim for care. However, those claims were not pressed at trial.

169 Mr Barahona’s wife and daughter gave evidence and his daughter prepared a schedule as to the extent of the assistance he needed. Her Honour found that the estimates specified in respect of these claims were not precise and some were excessive.

170 However, the real difficulty with Mr Barahona’s claim was that there was no evidence to support the need for past care, even of six hours per week, and the claim for future care was, at trial, eventually confined to “an hour or two per week”.

171 No error has been shown in her Honour’s dismissal of this claim.

Orders

172 We would make the following orders. There may be some complications in framing orders giving effect to these reasons, and we would also reserve liberty to the parties to apply within ten days if it is thought that the orders do not appropriately do so, preferably with agreed variation(s). We intend that Jigsaw and Pacific each bear its own appellate costs on the question of contribution between them.

On Jigsaw’s appeal (CA 40440/08):

1. Appeal allowed.

2. Set aside the verdict and the judgment for the plaintiff (Mr Barahona) against the first defendant (Jigsaw); and in lieu thereof order that there be verdict and judgment for the first defendant (Jigsaw) against the plaintiff (Mr Barahona).

3. Set aside the verdicts and judgments for the cross-claimant/first defendant (Jigsaw) on the first cross-claim against the first cross-defendant/second defendant (Pacific) and the verdict and judgment for the cross-claimant/second defendant (Pacific) on the second cross-claim against the second cross-defendant/first defendant (Jigsaw) and the orders that the second defendant (Pacific) indemnify the first defendant (Jigsaw) and the first defendant (Jigsaw) indemnify the second defendant (Pacific) each with respect to its liability to the plaintiff (Mr Barahona); and in lieu thereof order that each of the cross-claims as between the first and second defendants (Jigsaw and Pacific) be dismissed.

4. Set aside the order that the first defendant (Jigsaw) pay the plaintiff’s (Mr Barahona’s) costs on an ordinary basis until 14 December 2007 and thereafter on an indemnity basis.

5. Set aside the order that the first defendant (Jigsaw) indemnify the plaintiff (Mr Barahona) in respect of the third defendant’s (Hays’) costs and the order that the first defendant (Jigsaw) pay the third defendant’s (Hays) costs of the cross-claim on an ordinary basis up to 6 February 2008 and on an indemnity basis thereafter.

6. Order that the plaintiff (Mr Barahona) pay the first defendant’s (Jigsaw’s) costs of the trial and that the first respondent (Mr Barahona) pay the appellant’s (Jigsaw’s) costs of the appeal save in respect of contribution between the appellant (Jigsaw) and the second respondent (Pacific).

7. Grant the first respondent (Mr Barahona) a certificate under the Suitors Fund Act if otherwise qualified.

On Pacific’s appeal (CA 40398/08):

1. Appeal dismissed.

2. Appellant pay the first respondent’s costs of the appeal.

On Mr Barahona’s cross-appeal (CA 40440/08):

1. Cross-appeal dismissed with costs.

Generally:

Citations

Pacific Steel Constructions Pty Ltd v Barahona [2009] NSWCA 406

Most Recent Citation

Cases Citing This Decision

27

Value Constructions Pty Ltd v Badra [2024] NSWCA 181

Waco Kwikform Ltd v Perigo and Workers Compensation Nominal Insurer [2014] NSWCA 140

Upper Lachlan Shire Council v Rodgers [2012] NSWCA 259

Cases Cited

28

Statutory Material Cited

9

Van der Sluice v Display Craft Pty ltd [2002] NSWCA 204

Fox v Leighton Contractors Pty Ltd [2008] NSWCA 23

Leighton Contractors Pty Ltd v Fox [2009] HCA 35

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CITATION:	Pacific Steel Constructions Pty Limited v Barahona; Jigsaw Property Group Pty Limited v Barahona [2009] NSWCA 406
HEARING DATE(S):	31 July 2009
JUDGMENT DATE:	11 December 2009
JUDGMENT OF:	Allsop P at 1; Beazley JA at 1; Giles JA at 1
DECISION:	On Jigsaw’s appeal (CA 40440/08): 1. Appeal allowed. 2. Set aside the verdict and the judgment for the plaintiff against the first defendant; and in lieu thereof order that there be verdict and judgment for the first defendant against the plaintiff. 3. Set aside the verdicts and judgments for the cross-claimant/first defendant on the first cross-claim against the first cross-defendant/second defendant and the verdict and judgment for the cross-claimant/second defendant on the second cross-claim against the second cross-defendant/first defendant and the orders that the second defendant indemnify the first defendant and the first defendant indemnify the second defendant each with respect to its liability to the plaintiff; and in lieu thereof order that each of the cross-claims as between the first and second defendants be dismissed. 4. Set aside the order that the first defendant pay the plaintiff’s costs on an ordinary basis until 14 December 2007 and thereafter on an indemnity basis. 5. Set aside the order that the first defendant indemnify the plaintiff in respect of the third defendant’s costs and the order that the first defendant pay the third defendant’s costs of the cross-claim on an ordinary basis up to 6 February 2008 and on an indemnity basis thereafter. 6. Order that the plaintiff pay the first defendant’s costs of the trial and that the first respondent pay the appellant’s costs of the appeal save in respect of contribution between the appellant and the second respondent. 7. Grant the first respondent a certificate under the Suitors Fund Act if otherwise qualified. On Pacific’s appeal (CA 40398/08): 1. Appeal dismissed. 2. Appellant pay the first respondent’s costs of the appeal. On Mr Barahona’s cross-appeal (CA 40440/08) 1. Cross-appeal dismissed with costs. Generally: 1. Reserve liberty for the parties to apply for variations in the orders within ten days.
CATCHWORDS:	TORTS – negligence – duty of care – workplace injury –duty of principal to independent contractor – duty arising from need for direction and coordination of activities – whether duty to control system of work of independent contractor – role of foreman – safe work method statements – no assumption of responsibility to supervise – no knowledge of dangerous use of equipment – no duty owed to control system of work - TORTS – negligence – breach of duty - workplace injury – non-delegable duty of employer owed to employee – failure to provide safe system of work - TORTS – negligence – contribution between defendants – apportionment of liability - misdirection in exercise of discretion – failure to give sufficient weight to non-delegable duty of employer to employee - TORTS – negligence – contributory negligence – experienced tradesperson – responsibility of employer to prepare safe work method statement – no error in assessment of contributory negligence - TORTS – negligence – damages – gratuitous attendant care services – Civil Liability Act 2002 (NSW) s 15 and Schedule 1 Part 11 – Civil Liability Legislation Amendment Act 2008 (NSW) – whether proceedings had been “determined” – amended provision applies – no evidence to satisfy the requirements of s 15 to allow award of damages for attendant care services - COSTS – Bullock order – maintenance of cross-claim – creation of uncertainty in identity of defendant – no error in exercising discretion
LEGISLATION CITED:	Civil Liability Act 2002 (NSW) Civil Liability Amendment Act 2006 (NSW) Civil Liability Amendment Act 2008 (NSW) Civil Procedure Act 2005, (NSW) Occupational Health and Safety Act 2000 (NSW) Workers Compensation Act 1987 (NSW) Workplace Injury Management and Workers Compensation Act 1998 (NSW) Occupational Health and Safety Regulations Uniform Civil Procedure Rules 2005
CATEGORY:	Principal judgment
CASES CITED:	ACQ v Cook (No 2); Aircair Moree v Cook (No 2); Cook v Country Energy (No 2); Country Energy v Cook (No 2) [2008] NSWCA 306 Almeida v Universal Dye Works Pty Limited (No 2) [2001] NSWCA 156 AV Jennings Construction Pty Ltd v Maumill (1956) 30 ALJR 100 Balesfire Pty Ltd t/as the Gutter Shop v Adams [2006] NSWCA 112 Bostik Australia Pty Ltd v Liddiard [2009] NSWCA 167 Bullock v London General Omnibus Co [1907] 1 KB 264 Cai v Zheng [2009] NSWCA 13 Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258 Coles Supermarkets Australia Pty Limited v Tormey [2009] NSWCA 135 Erect Safe Scaffolding (Australia) Pty Ltd v Sutton [2008] NSWCR 114; 173 IR 412 Fox v Leighton Contractors Pty Ltd [2008] NSWCA 23 Geaghan v D’Aubert [2002] NSWCA 260; 36 MVR 542 Gould v Vaggelas [1985] HCA 75; 157 CLR 215 Harrison v Melhem [2008] NSWCA 67; 72 NSWLR 380 House v R [1936] HCA 40; 55 CLR 499 Joslyn v Berryman [2003] HCA 34; 214 CLR 552 Leighton Contractors Pty Ltd v Fox [2009] HCA 35 Liftronic Pty Ltd v Unver [2001] HCA 24; 75 ALJR 867 Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492 Roads and Traffic Authority of New South Wales, Council of the Shire of Evans & Pioneer Road Services Pty Ltd v Palmer (No 2) [2005] NSWCA 140 Rockdale Beef Pty Limited v Carey [2003] NSWCA 132 Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16 Sweeney v Boylan Nominees Pty Limited [2006] HCA 19; 226 CLR 161 Sydney Water Corporation v Abramovic [2007] NSWCA 248; 5 DDCR 570 Tolhurst v Cleary Bros (Bombo) Pty Ltd [2008] NSWCA 181 Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 Vinidex v Theiss [2000] NSWCA 67
PARTIES:	Pacific Steel Constructions Pty Limited (Appellant) Luis Barahona (First Respondent) Jigsaw Property Group Pty Limited (Second Respondent)
FILE NUMBER(S):	CA 40398/08, 40400/08
COUNSEL:	L King SC, M L Snell (Appellant) B Toomey QC, J Anderson (First Respondent) R Seton SC, S McCarthy (Second Respondent)
SOLICITORS:	McCabe Terrill Lawyers (Appellant) Martin Bell & Co Solicitors (First Respondent) Goldberg Lawyers (Second Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	6239/2006
LOWER COURT JUDICIAL OFFICER:	Truss DCJ
LOWER COURT DATE OF DECISION:	18 July 2008, 2 September 2008