Pack-Tainers Pty Ltd v Moore

[2005] NSWCA 43

CITATION:	Pack-Tainers Pty Ltd v Moore [2005] NSWCA 43
HEARING DATE(S):	19/11/04
JUDGMENT DATE:	8 March 2005
JUDGMENT OF:	Santow JA at 1; Bryson JA at 38; Young CJ in Eq at 39
DECISION:	Appeal allowed with costs and consequential orders as para 126.

CATCHWORDS:	TORT- Employee/Independent contractor- Whether it could be said that the person who hired worker was an entrepreneur using so called independent contractors as virtual employees- Held "no".
CASES CITED:	Dettmer v KC McCraken Pty Ltd [2002] NSWCA 199 Graham Barclay Oysters Pty Ltd v Ryan (2002) 194 ALR 337 Eurobodalla Shire Council v Dufty [2004] NSWCA 450 Joslyn v Berryman (2003) 77 ALJR 1233 Multiplex Constructions (NSW) Pty Ltd v Lopez [2004] NSWCA 319 Paddison v Ultimate Image Pty Ltd [2004] NSWCA 410 Rockdale Beef Pty Ltd v Carey [2003] NSWCA 132 Stevens v Brodribb Sawmilling Co Pty Ltd (1985) 160 CLR 16 TNT Australia Pty Ltd v Christie [2003] NSWCA 47 Van der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 Wilke v Astra Pharmaceuticals Pty Ltd [2001] NSWCA 135
PARTIES:	Pack-Tainers Pty Limited (Appellant) Stephen Moore (Respondent)
FILE NUMBER(S):	CA 40951/03
COUNSEL:	I G Harrison SC and P Khandhar (Appellant) A Lidden and E Welsh (Respondent)
SOLICITORS:	Minter Ellison (Appellant) Brydens Law Office (Respondent)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	3896/02
LOWER COURT JUDICIAL OFFICER:	Murray DCJ

CA 40951/03
DC 3896/02

SANTOW JA
BRYSON JA
YOUNG CJ in EQ

Tuesday 8 March 2005

PACK-TAINERS PTY LIMITED v STEPHEN MOORE

Judgment

1 SANTOW JA:

INTRODUCTION
I have had the advantage of reading the judgment of Young CJ in Eq in draft. I adopt with gratitude his statement of the facts and issues. While I agree in the result and generally with the reasons, I wish to add some observations of my own. They principally concern the varying circumstances, as potentially applicable here, in which a duty of care properly falls upon an entrepreneur with respect to an independent contractor engaged on site. Related to this is the question of the extent to which the entrepreneur’s duty of care should be equated to the heightened duty of an employer to provide a safe system of work.

2 The judgments in the leading case on liability to independent contractors, Stevens v Brodribb Sawmilling Co Pty Ltd (1985) 160 CLR 16 differ in their articulation of when such an employer-like duty is to be found and in its degree of stringency. These differences, though not major, are nonetheless potentially significant.

3 Thus Wilson and Dawson JJ (at [37]) emphasised that control was no longer the exclusive test, though the proper starting point of enquiry. Ultimately the matter was to be judged by the degree of discretion left to the manner in which the person concerned did his or her work. But this still imposed on the head contractor engaged in a site co-ordinating or general supervisory role “a duty to exercise care in the co-ordination of the activities of the various…