Taylor Woodrow Homes Builders Pty Ltd v Chitarra

[1995] HCATrans 115

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P3 of 1995

B e t w e e n -

TAYLOR WOODROW HOMES
BUILDERS PTY LTD trading as TAYLOR WOODROW HOMES

Applicant

and

SIMON MATTHEW CHITARRA

First Respondent

PETER ANTULOV

Second Respondent

Application for special leave to appeal

BRENNAN CJ
TOOHEY J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 5 MAY 1995, AT 11.45 AM

Copyright in the High Court of Australia

MR J.E. MACONACHIE, QC:   If your Honours please, I appear with my learned friend, MR G.J. PYNT, who is in Western Australia, for the applicant.  (instructed by Mallesons Stephen Jaques)

MR L.W. ROBERTS-SMITH, QC:   If the Court pleases, I appear with my learned friend, MR M.L. SEGLER, for the first respondent, Chitarra.  (instructed by E.N. Stamatiou & Co)

MR R.L. LE MIERE, QC:   If the Court pleases, I appear with my learned friend, MS M. FISHER, for the second respondent.  (instructed by Bannerman Ziatas)

BRENNAN CJ:   Thank you.

MR MACONACHIE:   Your Honours, the central question in this application is whether or not, in the circumstances of this case, there was a duty of care and, in particular, whether or not the circumstances gave rise to a relationship of proximity sufficient to support a duty of care.  My learned friends in their written submissions have attacked the proposition in paragraph 1 of my summary of argument to the effect that this is not a system case.  With respect, it is.  It can be stated in a number of ways.  For example, if one wants to turn it around, does the supply of materials to the contractor by a principal for use in the contractor’s system of work give rise to a relationship of proximity between the principal and the contractor’s employees with respect to those materials?

We submit that nothing that was said in the Brodribb Case can have anything to do with the situation that occurred in this case.  Secondly, general principles of proximity and foreseeability cannot give rise to a duty of care.  All that occurred was that a principal sought to devolve upon a contractor the whole of one part of an operation - that is the erection of roofing timbers.  It was a matter entirely for the roofing contractor, Mr Antulov, as to the manner in which he went about achieving the result that was sought to be achieved.

GUMMOW J:   You say Mr Justice Franklyn got the law right and the facts right?

MR MACONACHIE:   Yes.

GUMMOW J:   And the other two members of the court may have got the law right but it was not the relevant law to the relevant facts?

MR MACONACHIE:   Yes.  Shortly put, your Honours, what we, with respect, say Mr Justice Rowland and Mr Justice Nicholson did was to try to feed these facts, bend these facts, into the way in which this Court decided the Brodribb Case.  But, that was an entirely different case where there were a number of contractors engaged in complex and dangerous activities, and in respect of which the sawmilling contractor had retained, or alternatively by reason of the nature of the task had to retain, and could not devolve from himself the control of those various operations.

What the Chief Justice said in the Brodribb Case, we say is a complete answer to the problem in this case.  In the Brodribb Case (1985) 160 CLR 16, relevantly at page 47, your Honour the Chief Justice said this at about point 8 on the page:

The circumstances may make it necessary for the entrepreneur to retain and exercise a supervisory power or to prescribe the respective areas of responsibility of independent contractors if confusion about those areas involves a risk of injury. But once the activity has been organized and its operation is in the hands of independent contractors, liability for negligence by them within the area of their responsibility is not born vicariously by the entrepreneur.  If there is no failure to take reasonable care in the employment of independent contractors -

can I interpolate here there was no suggestion but that Mr Antulov was a competent and experienced roofing contractor -

competent to control their own systems of work, or in not retaining a supervisory power -

Could I again interpolate here some submission about the question of supervision.  It is said, both by their Honours in the Full Court and in answer to our case that there was a supervisor, Mr Milton, who attended a couple of times a week or thereabouts to supervise or inspect.  All Mr Milton was doing was no more than a reasonably careful businessman would do in the circumstances - he was attending to ensure that the work that he, or his company, had contracted to have done was being done in accordance with specification.  The learned trial judge, and indeed Mr Justice Rowland and Mr Justice Franklyn, found that there was no basis for Taylor Woodrow, the principal, to interfere with the system of work of Mr Antulov, so far as Mr Chitarra was concerned.  I go on if I may:

or in leaving undefined the contractors’ respective areas of responsibility -

and that is not a situation here, despite Mr Justice Rowland saying that Taylor Woodrow had contracted to have houses build on all the sites.  The only relevant one was the one at which the plaintiff was injured.  Mr Antulov and his crew of workmen were given complete and unfettered access to that site without any other contractor or person being in any way involved.  It was entirely unlike the Brodribb case, where you had an interaction of activities and a need for co-ordination.  This was an independent contractor, responsible for supplying labour, responsible for his work practices, given over a site to do a job, to produce a result and, in those circumstances we submit that the supply of material, different from that which had previously been supplied, is neither here nor there.

BRENNAN J:   Well that is what you say.  I mean, the passage that you have cited really does not take you anywhere, because it ends up that the entrepreneur is not liable for damage caused merely by the negligent failure of an independent contractor to adopt or follow a safe system of work, and that is not the case that is made against you.  The case that is made against you is that you have provided these spars, and they were different from what they were before, and you should have done something about it.

MR MACONACHIE:   But, your Honour, what we should have done about it was, as their Honours Mr Justice Rowland and Mr Justice Nicholson recognise in their judgments, was to interfere with the system of work of Mr Antulov by warning Mr Chitarra.  Not by going to Mr Antulov and saying, “Now look, I am introducing a different form of timber here.  Mind you, you can already see, Mr Antulov, that it is slimmer, it is of a different kind of timber, and you know that it is less sturdy.”  And they were findings made by the court.  But what their Honours in the majority in the Full Court say is that it was the obligation of the principal to go to the employee and to inform him; to inform him of something of which he must have known and which Mr Justice Rowland and the learned trial judge find he knew.  That is, that it was less sturdy, that it was of different dimensions, that it was a different kind of timber, and he had been working with it for some six months or so before this accident occurred - cutting it up, nailing it, working with it. 

What their Honours found in the Full Court amounts to a significant change from the passage, and the law as it was understood in the passage that I have read from your Honour’s judgment in Brodribb, and that is that it is for the contractor to determine what is a safe and proper system of work to achieve the result that he has engaged to produce, and if one were to permit of a situation where the principal was required by law to intervene with the employees of the contractor, confusion could reign, safe work practices could be denigrated, not encouraged, because the man required to undertake the task of fixing roofing timbers above ground level would, in effect, be required to follow the commands of two masters.

BRENNAN J:   But is this the real analysis of the case?  I mean, take the situation, not of a principal but of a supplier of goods and let us assume, in order to make the case clear, containers of sulphuric acid which had always had a screw on the top which opened in a clockwise direction, and employees to whom it was delivered always unscrewed it with the screw on the top going in a clockwise direction.  The manufacturer changes it so it goes in an anti-clockwise direction, and that presents a real risk of employees who are used to the old system burning themselves.  Your proposition is that the supplier does not have any duty to the employee to whom he delivers it to say, “We have changed the direction of the thread”.

MR MACONACHIE:   It is a somewhat different case, your Honour, because in this case there was no finding that there was any defect in the material.  There was no finding that this accident would not have occurred if jarrah was employed instead of pine.  All that was proved.  All that is demonstrated is that a different kind of timber for a legitimate commercial purpose, a well‑known kind of timber, there to be observed and seen by whoever was going to work with it - it was pine; it was of lesser dimensions than the jarrah; it was plainly a different kind of timber, both of which are well known certainly in Western Australia.

BRENNAN CJ:   One can see the argument on fact very clearly, Mr Maconachie, but that is not going to get you special leave.  The problem really is whether or not on the facts some issue of principle has arisen and is the principle no more than this, that in the factual situation here a duty of care was owed by the principal who supplied the goods to the person who is going to work with them.

MR MACONACHIE:   We would submit not, your Honour, that the duty of care was one that was owed by Mr Antulov to Mr Chitarra.

BRENNAN CJ:   That can be accepted.  There was a duty of care.

MR MACONACHIE:   Because it was essentially a question of how Mr Chitarra did his work.  It was no more and no less than that.  There was nothing that required Mr Antulov to do the work in any given way.  Certainly he was using a well‑known and common method of achieving the result that he was engaged to achieve, but it was entirely within his province as to how it was done.  There were findings by the trial judge and findings by Mr Justice Rowland and Mr Justice Franklyn to the effect that it was just not open to Taylor Woodrow to interfere with the system of work, but the relationship of proximity which gives rise to the duty of care found by the majority out of which springs the scope of the duty of care and which is therefore necessarily relevant to the question of breach assumes that there is not only an opportunity or a power but an obligation upon the principal to instruct, warn, cajole the employee of the principal.  It is, we would respectfully submit, illogical and that does give rise to the ‑ ‑ ‑

TOOHEY J:   But it did not go any further than a duty to warn.  Is that not the way in which Mr Justice Rowland saw it?

MR MACONACHIE:   But, with respect, your Honour, that really begs the question.  It was a duty to warn in respect of the manner in which the system of work should be employed.  A duty to warn of what?  A duty to warn that there were different qualities in the timber.  But, that was something that was intrinsically bound up in the system of work; how it was to be employed; what were the risks involved.  Whose obligation was it?  It was the employer’s obligation.  There was no obligation, we would submit, on any of the cases or principles thus far decided by this Court.

Brodribb is an entirely different case, an entirely different situation because of the interaction of dangerous activities.  Not so this case.  It was just a giving over of a site to an experienced and competent contractor who was told, “Produce a result and here’s the material”.  The material which is incriminated by the finding of the majority in the Full Court was Australian standard F5 specification pine and it was used for the perfectly legitimate reason that it produced fewer cracks in cornices and the like than did jarrah.

All that was done was that perfectly ordinary timber of a particular kind was supplied to someone and he was told to build with it.  He was a competent man;  he employed Mr Chitarra.  It was within his province and no one else’s to lay out the system of work and the relationship found to support the duty of care depends upon a negligent act of which is, in effect, interfering with the system of work.  But, if that were the law, if that was the requirement of the principal contractor, every time a new kind of nail was used, every time a new kind of timber was used, every time the contractor engaged new employees, there is this obligation upon the principal contractor to warn.  Warn of what?  It can only be to warn, give advice about, interfere with, the system of work. 

But that is the employer’s responsibility and if that is not retained as being a clear and precise line of distinction between the obligations of contractors and the obligations of those who employ them, there is the

opportunity, the recipe, for people being required to follow the commands of two masters.  But, I have said that, your Honours.

BRENNAN CJ:   Yes.  Mr Maconachie, the real problem is this, is it not, that there is no question about the employer having a duty of care to the employee.  The question is whether the existence of that duty negatives the possibility of an existence of a duty owed by the principal.  Now, that seems to me to turn - first of all, as a proposition of law it is untenable.  Obviously a duty may exist between A and B whether or not they are in a position of principal and employee of an independent contractor or not.  So, if it is a question of whether, in the circumstances of this case, a duty was owed by the principal to this particular plaintiff, where does one spell out from that an issue of principle.

MR MACONACHIE:   The principle, your Honour, we submit is this:  in order to determine the question of duty, one has to look at whether or not there is a relationship of proximity between the duty ower and the duty owee with respect to the negligent act which it is said was causative of the harm.  The negligent act which is said to be causative of the harm here is a failure to warn about something that it was not within the province of the principal to be involved in, that is the system of work, on the findings of fact made in this case.

So as a matter of principle, we would submit, what their Honours in the Full Court have done is to say even if, on the facts of a particular case, you cannot interfere in any way, the law will still impose upon you a duty of care because there is erected, as it were, out of nowhere this obligation to interfere.  It is, I accept, the difficult question of the reference of the relationship between the alleged duty of care and the relationship between the duty ower and the person to whom the duty is owed.  That is where the question of principle arises, we would submit.

BRENNAN CJ:   Yes.

MR MACONACHIE:   And the questions of  the scope of the duty and breach necessarily are interrelated and, we would say further, that the question of causation goes with it and accordingly we would submit that there ought be a grant of leave.

BRENNAN CJ:   Thank you, Mr Maconachie.  We need not trouble you, Mr Roberts-Smith, nor you, Mr Le Miere. 

The facts of this case do not give rise to a question of legal principle of general public importance.  Whether the Court below was right to hold that a duty of care rested on the applicant depends on the view taken by the Court of the relationship between the applicant and the first respondent.  That is not a question which warrants a grant of special leave.  Accordingly, special leave is refused.

MR ROBERTS-SMITH:   If Your Honours please, I move for orders accordingly and seek an order that the applicant pay the first respondent’s costs.

BRENNAN CJ:   Yes.  Mr Le Miere?

MR LE MIERE:   May it please the Court, I seek an order that the applicant pay the second respondent’s costs.

BRENNAN CJ:   Do you have anything to say, Mr Maconachie?

MR MACONACHIE:   No, your Honour.

BRENNAN CJ:   Special leave will be refused with costs in favour of both respondents.

AT 12.10 PM THE MATTER WAS CONCLUDED