Slivak & Anor v Lurgi (Australia) Pty Ltd & Anor No. Scgrg-96-450 Judgment No. S254

SLIVAK & ANOR v LURGI (AUSTRALIA) PTY LTD & ANOR
[1999] SASC 254

Full Court: Doyle CJ, Bleby and Martin JJ

DOYLE CJ. This is an appeal against a decision by a judge of this Court. The judge dismissed the appellants’ claim against the respondent. The male appellant, to whom I will refer hereafter simply as the appellant or as the worker, claimed damages from the respondent for personal injuries that he received in the course of his employment. His wife also made a claim for damages. The respondent was not the appellant’s employer. The respondent is a company that entered into a contract to design and erect works on which the appellant was working when injured.

The facts and the trial judge’s findings

The Broken Hill Proprietary Company Limited (“BHP”) entered into a contract with Lurgi (Australia) Pty Ltd (“Lurgi”) for the design, supply, erection and commissioning of a Fume Extraction System for a blast furnace operated by BHP at Whyalla.
The contract between BHP and Lurgi is a single page document, but includes annexures, that have contractual force, of almost 300 pages. The documents that were tendered do not include appendices to one of the annexed documents.
Under the contract, which was for a lump sum payment, Lurgi accepted responsibility for the whole project. That is implicit in the description of the contract works. Lurgi was undoubtedly the project manager. It was given access to the site and, for the purposes of the contract, possession of the site. Lurgi accepted a general responsibility to BHP for the safety of the works and for safe working conditions. This included an obligation on Lurgi to ensure that all subcontract labour received a safety induction. The contract contemplates that Lurgi could, subject to BHP’s approval, subcontract any part of the contract works.
The contract works involve the construction of a fume extraction and dust disposal facility. The relevant part of the work was for the design and erection of a substantial tower through which air would be drawn and, in the process, filtered.
I will describe this structure, and the work that the appellant was doing, in very simple terms. It is not necessary to descend to technical detail to explain the setting in which the issues in the case arise.
The tower was to be some 25 metres high. Air is drawn into it, passes through a filter system, and then is drawn out. About 15 metres above ground level, and inside the tower, there was to be a filter system. This required the placement within the tower of four rectangular steel cell plates. They were to form the floor of the filter cell within the tower. Each plate weighed about one tonne. They were to be arranged in a 2x2 formation. The plates were perforated by elongated holes, arranged in concentric circles. These holes would allow air to pass through.
The steel plates were to be supported inside the tower by steel supports. Steel supports were welded to the inside wall of the tower at the appropriate height. Two steel beams were also erected inside the tower, spanning its width, and crossing at right angles. Those beams, in effect, divided the interior space into four quarters, and into each quarter one of the four steel plates was to be placed. This meant that each plate would be supported on two adjacent sides by steel supports welded on the internal side of the tower wall. The other two adjacent sides of each steel plate would be supported by the steel beams that spanned the interior of the tunnel.
Although the contract between Lurgi and BHP was tendered as an exhibit, there was no evidence at all about the part played by Lurgi in the contract works. The case proceeded on the premise that Lurgi designed the contract works. It prepared detailed construction drawings of the tower and of the filter system. Those construction drawings were tendered at trial. The drawings included drawings of the steel plates referred to, and drawings indicating the positioning of the steel plates.
Lucon (Australia) Pty Ltd (“Lucon”) was the appellant’s employer. The appellant was injured while engaged in positioning one of the steel plates prior to it being welded into its permanent position. At the time the steel plate was resting on the supports to which I have referred, but was capable of being moved.
The trial appears to have been conducted on the basis that Lurgi had entered into a contract with Lucon for the performance by Lucon of part of the contract work. There was no evidence at all about the scope or terms of the contract between Lurgi and Lucon.
There was no evidence that, at the relevant time, any employee of Lurgi was on site. Such limited evidence as there was from the appellant and a fellow worker suggested that the relevant work, erecting the tower and positioning the steel plate, was being carried out by employees of Lucon and under the general supervision and control of Lucon.
The trial also seems to have proceeded on the basis that Lucon’s subcontract with Lurgi embraced the fabrication and erection of the tower walls and of the steel plates forming the cell floor. This is implicit in a finding that the judge made. He found that the support structure for the cell plates (the pieces welded to the internal walls of the tower and the crossbeams) was not constructed in accordance with Lurgi’s design, and was constructed out of square. He made the following finding:
“Sadly, the fact was that the cell plate support structure was constructed out of square. All of these circumstances clearly establish fault against Mr Slivak’s employer. It failed to construct the cell plate support structure in accordance with the designer’s specifications. The internal space was too large.”

It is implicit in that finding that the judge found that the work had been subcontracted to Lucon, and not carried out by it in accordance with the construction drawings. In the course of making those findings the judge had earlier referred to the fact that the cell plate in question was also not constructed according to the construction drawings. The judge clearly treated that as Lucon’s responsibility.

No finding was made that Lurgi was aware of these departures from its construction drawings. Nor was there a finding that it should have been aware of that. I get the firm impression that the trial proceeded on the basis that Lucon was a specialist subcontractor in respect of this work, and that it accepted responsibility for it as between Lucon and Lurgi.
I return to the events on the day in question. The appellant and another employee of Lucon were inside the tower and standing on one of the four cell plates. They decided that the plate needed to be moved about 30mm before they welded it into position. There was a space between one of the tower walls adjacent to the plate and the adjacent plate edge. The appellant and the other worker set about making the 30mm adjustment to the positioning of the plate. To that end they placed a scaffold plank in the space between the plate and the tower wall, and used the plank as a lever to move the plate on which they were still standing.
As they did so the plate suddenly fell, and the appellant and the other worker fell with the plate. The appellant was badly injured.
The plate could have fallen only if it became unsupported on two adjacent edges. The judge found that that is what happened.
The plate became unsupported on two adjacent edges for two main reasons. First of all, as I have already mentioned, the judge found that the support structure was constructed out of square, and the cell plate itself was not constructed to specification. That produced the result that the cell plate overlapped the supports on which it rested to a lesser extent than envisaged by Lurgi’s construction drawings. Indeed, the overlap must have been non-existent on one side, and dangerously small on another. The second reason for the accident was, the judge found, that the action of levering the plate into place, by pushing against the internal side of the relevant tower wall, caused a small degree of outward movement of the wall (and the angle iron attached to it on which a side of the plate was supported), causing the plate to be unsupported on that side as well, and thus to fall.
In short, as the judge found, the plate fell because the plate and its supports were not constructed in accordance with Lurgi’s construction drawings, reducing to a dangerous level the overlap of the plate on its supports, and because the method of moving the plate caused the supports on one side to move away from the edge of the plate.

Submissions on appeal

None of these findings are challenged on appeal.
At trial and on appeal the appellant submitted that Lurgi’s design of the cell plate and of the support structure was negligently prepared.
It is not submitted that Lurgi’s design was inherently defective. If the support structure and plate had been constructed according to specification, the plate could not have fallen. The submission is that Lurgi should have foreseen that the support structure and plate might not be constructed to specification, and that Lurgi should have realised that that in turn might result in the overlap between the plate and the support structure becoming dangerously small. Realising that, Lurgi should have designed in features to ensure that the plate could not become unsupported. It is submitted that Lurgi was in breach of a statutory and common law duty of care as designer of the tower. The judge rejected that submission.
Alternatively, it was and is submitted that Lurgi was in breach of duties that it owed to the appellant on the basis of Lurgi’s status as an occupier of the site, or as the constructor of the tower. These duties are said to arise under statute and at common law. The judge also rejected these submissions. He found that Lurgi was not an occupier of the site. He found that in its capacity as designer of the structure Lurgi was not under a duty to the appellant to supervise its construction. He found that as head contractor Lurgi did not owe a duty of care to the appellant in connection with the safety of the method adopted to construct the tower. The judge’s approach is summarised in the following two paragraphs that appear at the conclusion of his reasons:
“Mr Slivak sustained his injuries as a result of an unsafe system of work, lack of proper supervision and a failure by his employer to carry into effect the defendant’s design and specifications for the construction of the extraction system. There is no proof that the design of the structure was itself defective. If the support structure and the cell plate had been constructed as designed the cell plate would not have fallen. It was reasonable for the designer to expect that the structure would be erected within the specified design tolerances. Had this occurred the accident would not have happened.
I reject the submission that the defendant was under an obligation to warn the employer about the need to adhere to the design specifications and to ensure that, at all relevant times, the fume extraction system was being constructed in accordance with those specifications. I reject the suggestion that it was incumbent on the designer to anticipate an unsafe system of work and the method used by the two workers on the cell plate, issue warnings and be present to avoid such things occurring. Those duties were upon the plaintiff’s employer. The employer has paid worker’s compensation to Mr Slivak. Neither Mr Slivak nor his wife can succeed in these proceedings against the current defendant.”

Lurgi’s duty as designer

The documents indicate that Lurgi specified a design tolerance of plus or minus 2mm. The submission for the appellant accepts that that is an acceptable design tolerance. It is submitted, however, that Lurgi should have realised that whoever fabricated or made the cell plates and the component parts of the support system might not achieve that requirement, giving rise to the risk of the cell plates becoming unsupported. It is submitted that Lurgi should have built into the design features that would ensure that the cell plates did not become unsupported. Failure to do this is submitted to be a breach of a duty of care owed by Lurgi as designer to those involved in the erection of the cell plates.
The appellant called as a witness Mr Fowlie, a structural engineer. He gave evidence that an additional supporting member, located diagonally across the internal corners of the tower wall, and attached to the support framework, would have eliminated the problem that eventuated. This measure would have cost between $400 and $500 for each cell plate. There is no suggestion in the evidence that doing this would impede the function of the cell plate floor. There is a suggestion in the evidence that these additional members might have affected adversely the squaring up of the tower wall.
Most of the evidence that Mr Fowlie gave was directed towards explaining how the accident came to happen. As I have already said, the judge’s findings in that respect are not challenged.
For the appellant’s submission under this head to succeed, in my opinion it is necessary to conclude that the design, as embodied in the construction drawings, is not consistent with proper or sound engineering practice, taking account of what could reasonably be expected to be achieved by persons carrying out the fabrication and erection of the support system and the fabrication of the cell floor plates. Current industry practices and standards would have to be taken into account in determining what could reasonably be expected of persons carrying out the fabrication and erection process.
Putting the matter a little differently, the appellant needed a finding that a competent engineer would not have designed the support structures and cell plates as Lurgi did, because a competent engineer would realise that there was a real risk of the design tolerances being exceeded, in the process of construction and erection, resulting in the overlap of the cell plate over the supporting structures being so slight that there was an unacceptable risk of something happening that could give rise to a loss of support on two adjacent sides. The appellant needed a finding that the prudent engineer would have realised that the design tolerance might be exceeded to such an extent that this would result.
The judge rejected the submission to that effect.
I have examined Mr Fowlie’s evidence with care. I did so on the basis that the judge accepted his expertise and bearing in mind that Lurgi called no answering evidence. I do not consider that his evidence required the judge to make the finding that the appellant needed. It was critical for the appellant to get a finding that the design embodied in the construction drawings was not one that a competent engineer would have adopted. In my opinion Mr Fowlie’s evidence did no go that far. His written report, which was tendered, does not deal with this particular point. In examination-in-chief the following passage appears:
“Q.... When someone is designing a structure such as this, is it prudent for the designer to take into account tolerances which might be reasonably expected in constructing the structure.
A... In my opinion it would be reasonable.
Q... Would you have considered that a prudent designer would have allowed greater than a possible one millimetre overlap each as constructed, to allow for reasonable variances in construction.
A... That would seem to be the prudent thing to do.
Q... Is it expected in the industry that something will always be constructed exactly as designed.
A... No, there will always be tolerances in construction. And they can be over or under the design set out on the drawings.
Q... The position as or from the drawings prepared after the incident, does it appear to you if those drawings are correct that there had been a variation between what was designed and what was constructed.
A... That’s correct.
Q... Were those variations within a range of reasonable variations in your view.
A... I think, in my opinion, the variations are getting towards the outer end of what would be reasonable.
Q... Is that possibility something that a prudent designer should take into account in your opinion.
A... The prudent designer, in my opinion, should recognise that there are tolerances associated with construction.”

I consider that that evidence falls short of what is required. He says that a designer should take into account tolerances that could reasonably be expected in the course of construction. He says, in effect, that actual construction will not always accord exactly with the design. He says that the variation from the construction drawings is towards the outer end of what could reasonably be expected or anticipated. When asked the critical question, he gave what seems to me to be a very cautious answer. He does not say that the prudent designer should have anticipated the departure from the construction drawings that actually occurred. This was the critical issue. The matter was not taken any further. The only relevant passage of cross-examination was as follows:

“Q.... Did it seem to you, from those construction drawings, that the designer required very close adherence to the measurements contained in the drawings.
A... In my opinion he would have relied on adherence to them, yes.
Q... Where he, I assume it’s a he, had provided for tolerances as to certain measurements in the construction that he would expect the structure to be erected and completed within those tolerances.
A... In my opinion, particularly where tolerances had been specified, he would have relied on those.
Q... And it would be reasonable for him to suppose that the person constructing it would comply with those specified tolerances, assuming tolerances have been given.
A... In those areas where tolerances had been specified it would have been reasonable to assume that.”

To my mind that evidence only emphasises the difficulty of reaching the conclusion that the appellant requires, on the basis of the evidence-in-chief. It is quite capable of meaning that the prudent designer could have expected the specified tolerances not to be exceeded.

It is quite clear, to my mind, that Mr Fowlie did not say that a competent engineer would not have designed the relevant part of the structure on the basis of a tolerance of plus or minus 2mm being achieved. Such evidence as he gave is equivocal. The trial judge had the advantage of seeing and hearing the evidence given, and of determining whether anything about the manner in which the relevant evidence was given added an emphasis or point to it that does not emerge from the printed word. On the basis of this evidence I am unable to conclude that the judge was required to find that the design work was not competently done.
The appellant also relies upon s24(2a)(a) of the Occupational Health, Safety and Welfare Act 1986 (“the Act”). That subsection provides as follows:
“... where any structure is to be erected in the course of any work—
(a).... the person who designs the structure must ensure so far as is reasonably practicable that the structure is designed so that the persons who are required to erect it are, in doing so, safe from injury and risks to health;”

It is not clear to me what, if anything, that provision adds to the common law obligation to exercise the appropriate level of care and skill. To the extent that it replicates the common law obligation, my reasons for concluding that the design work was not negligent lead to the conclusion that the appellant cannot succeed on the basis of this provision. To the extent that this provision might add something more, I consider that it has not been shown that the design fails to ensure so far as reasonably practicable that the structure is designed so that persons who are required to erect it are safe from injury. Deciding what is reasonably practicable must involve balancing the likelihood of injury, and the severity of an injury that might ensue, against the availability of protective measures and their effectiveness and cost. The evidence in the present case is that the design was safe, and there is no evidence to suggest that the fabrication work and erection work was not to be carried out by a competent contractor. In my opinion the designer of the structure could reasonably expect that the extent to which the cell floor plate overlapped the supporting structures would be checked when the plate was put in position and before it was moved. That in itself does not excuse the designer from considering the risk of injury. While the conclusion that the design was itself safe is not necessarily the end of the matter, there is no evidence here to suggest a risk of injury that would have caused a designer to embark upon the further measures suggested by Mr Fowlie, bearing in mind the designer’s reasonable expectation that fabrication and erection would be carried out by competent persons.

I add, although it is hardly necessary, that as designer Lurgi was not responsible for the actual process by which the cell plate was put in position. The decision whether or not to use a crane and safety-slings was not a decision to be made by the designer. They were decisions to be made, on the spot, by Lucon.
For those reasons I would reject this submission by the appellant.

Lurgi’s duty as occupier

If Lurgi was, at the relevant time, the occupier of the workplace, it had an obligation to ensure so far as is reasonably practicable that the workplace was maintained in a safe condition: 23 of the Act.
Lurgi’s contractual rights under the contract with BHP are such that it could, in the exercise of those rights, become an occupier of the site.
But the trial judge found that the appellant did not establish that Lurgi was in fact an occupier. The evidence indicates that Lucon was in occupation of the site at the time of the accident. That is not inconsistent with a finding that Lurgi was also an occupier of the site. But, in my opinion, Lurgi’s contractual rights do not of themselves establish that Lurgi was an occupier at the relevant time. In the absence of any evidence at all about the part that Lurgi played in the overall project, it cannot be said that the judge was wrong in concluding that Lurgi was not in occupation of the site at the time. In that context it must be borne in mind that it was open to Lurgi, by subcontract, to arrange for the work to be carried out by other parties. This would not enable Lurgi to escape its obligations to BHP, but could mean that for all or much of the time Lurgi was not in occupation of the site.
In this context I should emphasise that there is no finding, and indeed no evidence, that Lurgi knew or, having regard to its contract with Lucon, should have known, that the supporting structure was constructed out of square and not in accordance with the construction drawings.

Lurgi’s duty as head contractor

One of the documents annexed to the contract indicates that Lurgi claimed to BHP to have particular expertise in the design and construction of plant of the type being constructed. Lurgi was, in any event, the head contractor. Its contractual responsibilities included project management. But, as I have already said, there was no evidence at all about the part that Lurgi played in the execution of the contract works, about the extent to which it made use of subcontractors, about controls (if any) that it exercised over them or about its on site involvement. In relation to the contract work the only evidence that the judge had was the contract between BHP and Lurgi, and evidence from the appellant and another worker about the events leading up to the accident.
On appeal, counsel for the appellant placed considerable emphasis upon the contractual obligation that Lurgi undertook in relation to safe working conditions and in relation to site safety. I proceed on the basis that Lurgi did undertake to BHP to be responsible for and to see to site safety and safe working conditions, for its own workers and for subcontractors’ workers. I also bear in mind that Lurgi undertook to supply to BHP the completed filter system.
The submission is that there was an obvious risk of injury to workers if safe working procedures were not adopted. Lurgi had contracted with BHP to ensure that safe working procedures were observed on site. Lurgi had contracted with Lucon, on terms not before the Court, for work and labour to be done and for the supply of component parts of the filter tower. The extent of the work to be done by Lucon was not explained at trial, but clearly the judge has proceeded on the basis that Lucon was fabricating, supplying and installing a substantial part of the tower and filter system. On this basis it is submitted that Lurgi owed a duty to the appellant, to ensure that a safe system of work was followed in erecting the cell floor plates.
There is no evidence that Lucon or its workers in fact looked to or relied upon Lurgi in connection with site safety and safe working conditions. There is no evidence that Lurgi gave any detailed instructions about working procedures or safe working conditions. Lurgi did specify in fairly general terms an erection procedure, but these specifications were not in terms that could reasonably be regarded as having dictated any specific procedure relevant to the occurrence of the accident.
The judge has found, and it is not challenged, that Lucon failed to comply with the construction drawings, and failed to adopt a safe system of work. Although the judge made no finding to this effect, I proceed on the basis that Lurgi was entitled to and did regard Lucon as a contractor with the necessary skill and experience to carry out the work that it contract to perform.
The issue is whether Lurgi owed to the appellant a common law duty to take reasonable care for his safety in connection with the erection of the cell floor plate.
A head contractor is not vicariously liable for the negligence of an independent contractor like Lucon. Sometimes, however, the circumstances are such that a head contractor will owe a duty of care to employees of a subcontractor: Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16. The company was a sawmiller. It engaged, as independent contractors, fellers, sniggers and truck-drivers to fell and to remove timber from forests in which it had exclusive rights to remove timber. These independent contractors had to work as part of a team, and the sawmiller monitored and co-ordinated their operation. In these circumstances the sawmiller was held to owe a duty of care to the independent contractors, and no doubt to any employees of theirs engaged in the work. The basis for that conclusion appears from the following passage taken from the judgment of Mason J (at 31):
“The interdependence of the activities carried out in the forest, the need for co-ordination by Brodribb of those activities and the distinct risk of personal injury to those engaged in the operations, called for the prescription and provision of a safe system by Brodribb. Omission to prescribe and provide such a system would expose the workers to an obvious risk of injury. Although the obligation to provide a safe system of work has been regarded as one attaching to an employer, there is no reason why it should be so confined. If an entrepreneur engages independent contractors to do work which might as readily be done by employees in circumstances where 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, he has an obligation to prescribe a safe system of work. The fact that they are not employees, or that he does not retain a right to control them in the manner in which they carry out their work, should not affect the existence of an obligation to prescribe a safe system. Brodribb’s ability to prescribe such a system was not affected by its inability to direct the contractors as to how they should operate their machines.”
The present case is quite different. Having engaged Lucon as a subcontractor, there was no need for Lurgi to prescribe a system of work to be followed by Lucon’s workers. The very reason for engaging Lucon was, no doubt, that Lucon would undertake that task. Indeed, it is quite possible that Lucon had skills in this area not possessed by Lurgi. There is no evidence that Lurgi in fact exercised control or supervision over the manner in which the relevant work was performed by Lucon employees. No doubt Lurgi had a contractual right to reject the finished product if it did not conform to contractual requirements, or to call for corrective work to be done. And I am prepared to assume that Lurgi had the right to do this while the work was in progress. But that is not the same as giving Lurgi the right to control the manner in which the work was done and, as I have said, there is no evidence that this is what it was doing. Nor is there any evidence to suggest that Lucon or its workers looked to Lurgi for advice or instruction about the erection of the cell floor plates. I do not consider that the reasoning found in this case provides a basis for imposing a duty of care on Lurgi. There was, on the evidence, no reason for Lurgi to give directions about how the work was to be done.
Nor is this a case in which it can be safely inferred, absent any evidence about the contractual relationship between Lurgi and Lucon, that Lurgi of necessity would have exercised control over the work being done by Lucon in erecting the cell floor plates. This appears to be specialised work. There is no reason to rule out the possibility that Lurgi wholly subcontracted this work to Lucon.
This is not a case in which Lurgi had given a particular instruction, in the exercise of contractual powers, or assumed responsibility for a particular state of affairs that carried with it a foreseeable risk of injury to workers. That was the basis upon which an architect was found to be liable for an injury to a worker employed by a builder in Clay v A J Crump & Sons Ltd [1964] 1 QB 533. In that case an architect agreed to plan and supervise the redevelopment of a site on which there were some old buildings. Demolition contractors were instructed to clear the site in accordance with the architect’s plan. At the building owner’s request the demolition contractors left a particular wall standing, but only after the architect had sanctioned them doing so. Although the architect subsequently visited the site, he did not inspect the wall. He had relied entirely on an assurance from the demolition contractor. The wall collapsed and injured a worker. Both the architect and the contractor, who had only examined the wall cursorily, were held liable. It was held that the architect owed a duty of care to the worker. As I read the judgments in that case the architect was liable because the architect involved himself in the decision that the wall should be left standing. The decision was one within the general scope of the architect’s responsibilities. The decision that the architect made was not one that, in the circumstances, the architect could say had reasonably been left to the demolition contractor. The mere fact that the defendant was the architect with overall responsibility for the project was not, of itself, treated as sufficient to give rise to liability.
In my opinion that case would support a finding of liability in the present case only if there was evidence that Lurgi had, in some way, involved itself in establishing the procedures to be followed in the erection and positioning of the cell floor plate. There was no such evidence.
Voli v Inglewood Shire Council (1964) 110 CLR 74 is another case in which an architect was held liable to a person injured by the collapse of a building. But that was a case in which the architect’s design was found to be unsafe. The only issue there was the liability of the architect to a subsequent user of the building. That case is of no relevance to the present case.
More relevant is the decision of the High Court in Florida Hotels Pty Ltd v Mayo (1965) 113 CLR 588. In that case the respondents were retained as architects on the basis that they would provide periodical supervision and inspection as necessary in relation to work to be carried out by tradesmen and labourers engaged by the building owner, the building owner not having engaged a builder to perform the work. The work to be performed was the construction of a swimming pool at a hotel. Reinforcing mesh was wrongly laid by workmen employed by the building owner. The architects had not arranged to be notified of the laying of the mesh, or to be notified before concrete was poured and the work was covered up. The mesh was laid and the concrete poured without the architects inspecting the mesh. Later, when the formwork was removed, part of the concrete slab collapsed, injuring a worker. The worker sued the building owner, who joined the architects as a third party. The architect was held liable to the building owner, having been in breach of the architect’s contractual obligation to supervise the work and to inspect. The finding of breach was made on the basis that the placement of the mesh and the pouring of the concrete was an important stage of the work.
The majority of the High Court also held that the architect owed a duty of care to the worker. The conclusion is stated without any reasons, other than a reference to Voli and to Clay. Windeyer J agreed with the majority in the result, but expressed a reservation about the liability of the architects to the worker. As to that he said (at 603):
“But the situation is different in fact, and it may it seems to me have different consequences in law, when the risk is created by the negligence of a builder in departing from plans and specifications. Whether an architect is then liable to an injured person because he did not detect and correct the builder’s error, as in the performance of his contractual duty to the building owner he should have done, is a question that I prefer to leave aside in this case. The answer to it would, it seems to me, be the same whether the builder be independent contractor or servant of the building owner.”
I have given careful consideration to this decision of the High Court, which was heavily relied upon by counsel for the appellant. In my opinion it is distinguishable. Granted, Lurgi was contractually responsible to BHP for the provision of the finished product. Lurgi also undertook to BHP to see to safety and to safe working practices. But there is nothing in the evidence to support a finding, similar to that made by the High Court, of a general obligation to supervise the progress and execution of the work. Lurgi was not in breach of its contract by subcontracting the relevant work to Lucon. Nor can it be said that Lurgi was in breach of any obligation to BHP in failing to supervise the work done by Lucon. If the state of the work meant that it did not comply with the contractual requirements between BHP and Lurgi, then Lurgi’s breach of contract lay in the failure to provide the required work, not in the failure to supervise Lucon. There is nothing in the evidence to support a conclusion that Lurgi was responsible for the detailed control of the process of erecting and putting in place the cell floor plates. It was open to the judge to conclude that Lucon had accepted sole responsibility for that process, as he appears to have accepted. There is no evidence on the basis of which one could or should conclude the Lurgi had authority to give specific directions to Lucon on matters of detail. There is simply no proof that the relationship between Lucon and Lurgi was the same as, or similar to, the relationship between the architect and the builder in Florida Hotels. The architect in that case had a responsibility in relation to the supervision of the work that is not established to have been borne by Lurgi. Lurgi’s obligation to BHP was in relation to the provision of an appropriate finished product. Granted, Lurgi bound itself to BHP to ensure that safe working practices were observed, but in my opinion that did not preclude Lurgi from delegating that task to apparently competent contractors, although Lurgi could not escape its contractual obligation to BHP if safe working practices were not observed.
Looking at the matter more broadly, I would not hold that Lurgi owed a duty of care to the appellant, on the material before the Court, in relation to the safety of the work practices adopted in erecting the cell floor plate. Lurgi had designed the structure in a manner that was safe, and had adopted a design that could be erected safely. As I have said earlier, there is no evidence that Lurgi was supervising or would have been expected by Lucon or by its workers to supervise the work practices of Lucon. There was no evidence that this part of the work to be done by Lucon carried special risks such that Lurgi should have concerned itself about the safe execution of the work. The relationship of Lurgi to Lucon appears to be simply that of a head contractor to a subcontractor. Of course, it was foreseeable that if the work was not done safely by Lucon, a worker such as the appellant might be injured. But a head contractor does not usually control the work practices of a subcontractor, in particular the work practice of a specialist skilled subcontractor. In my opinion there is no reason in light of one’s general knowledge of construction practices or in light of policy factors to impose a duty of care in this respect on Lurgi. There is no evidence of intervention of the type that seems to have been the basis of the decision in Clay. The contractual obligations of Lurgi to BHP in relation to safety are relevant to, but not decisive of, the existence of a duty of care. The existence of that duty depends upon broader considerations.
Under all the circumstances, I conclude that there was no duty of care owed at common law by Lurgi as the head contractor, and I would reject the appellant’s submissions under that head.
I mention that s4(2) of the Act, and the application of s19 of the Act as affected by s4(2), were not pleaded. Nor were those provisions raised in argument before this Court. Had those provisions been pleaded and relied upon, the trial might have followed a different course. There is no way of telling whether the result would have been any different, but there is no reason to think that it would have been.

Conclusions

In my opinion it follows that the appeal must be dismissed.
BLEBY J. I agree that the appeal should be dismissed for the reasons given by the Chief Justice.
MARTIN J. I agree with the Chief Justice that this appeal should be dismissed for the reasons that he has given.

[1999] SASC 254

18 June 1999