Leighton v Fox (HCA) independent contractor test applied by NSWCA

A helpful summary of the High Court’s decision in Leighton v Fox [2009] 35 and the appropriate test has been applied by their Honours Allsop P, Beazley JA and Giles JA in Pacific Steel Constructions Pty Limited v Barahona; Jigsaw Property Group Pty Limited v Barahona [2009] NSWCA 406:

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:

“An entrepreneur who organizes an activity involving a risk of injury to those engaged in it is under a duty to use reasonable care in organizing the activity to avoid or minimize that risk, and that duty is imposed whether or not the entrepreneur is under a further duty of care to servants employed by him to carry out that activity. The entrepreneur’s duty arises simply because he is creating the risk and his duty is more limited than the duty owed by an employer to an employee. The duty to use reasonable care in organizing an activity does not import a duty to avoid any risk of injury; it imports a duty to use reasonable care to avoid unnecessary risks of injury and to minimize other risks of injury. It does not import a duty to retain control of working systems if it is reasonable to engage the services of independent contractors who are competent themselves to control their system of work without supervision by the entrepreneur. 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 borne vicariously by the entrepreneur. If there is no failure to take reasonable care in the employment of independent contractors competent to control their own systems of work, or in not retaining a supervisory power or in leaving undefined the contractors’ respective areas of responsibility, the entrepreneur is not liable for damage caused merely by a negligent failure of an independent contractor to adopt or follow a safe system of work either within his area of responsibility or in an area of shared responsibility.”
(citations omitted)

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:

“[98] However, the principal may also owe a duty to a worker who is an employee of an independent contractor. The legal question is to identify the criteria which must be satisfied to give rise to such a duty of care. The cases suggest that satisfaction of one of the following criteria may give rise to such a duty:

(a) the principal directs the manner of performance of the work;
(b) the work requires the coordination of the activities of different contractors;
(c) the principal has or ought to have knowledge of the risk and the employer does not and cannot reasonably be expected to have such knowledge;
(d) the principal has the means to alleviate the risk and the employer cannot reasonably be expected to do so;
(e) although the employer has or should have the relevant knowledge and can be expected reasonably to take steps to alleviate the risk, it does not, to the knowledge of the principal, do so.”

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?

93 The circumstances were, essentially, that Mr Barahona was employed by a specialist contractor on site; as now considered in more detail, he was told he was to follow the instructions and was under the supervision of the site foreman, Mr Barber; on the day of the accident he was required to perform a task to which he was directed by Mr Barber; and that task was within the scope of Pacific’s contracted works on site.

126 Pacific contended that it should not have been found to have breached its non-delegable duty of care to Mr Barahona. It relied on the various matters argued by Jigsaw. Its position otherwise was that it had discharged its non-delegable duty by the reasonable care exhibited by Jigsaw.

127 There was little oral argument on the appeal as to whether Pacific had breached its duty of care. Pacific placed reliance on its written submissions and the oral submissions of Jigsaw. Pacific’s submissions tended to rest its liability to Mr Barahona upon liability of Jigsaw to Mr Barahona. It was submitted that Pacific had been found to be in breach of its duty of care owed to Mr Barahona because the breach of duty by Jigsaw was a breach of Pacific’s non-delegable duty, and that if Jigsaw succeeded in its appeal then Pacific’s appeal should also succeed.

128 In our opinion, however, the evidence of Mr Cowling made it abundantly clear that Pacific had breached its duty of care. Pacific required Mr Barahona to undertake work on a building site without tools, equipment or direction. It abandoned him to the site. He was required to undertake work which was dangerous and for which equipment should have been provided to ensure that he would not fall from a height. This was not a case such as the labour hire cases where the employer has no input into the manner in which work is to be undertaken. Pacific must be taken to know that rectification work may be undertaken at heights as the original steel works had been performed at heights. The work Mr Barahona was undertaking was part of the steel works that Pacific had contracted to do. Pacific did not take adequate steps to ensure that Mr Barahona was provided with a safe method of work, adequate directions, a safe place of work, or with the tools and equipment reasonably necessary to safely carry out the work which he was directed to do. In our opinion, Pacific breached its non-delegable duty of care to Mr Barahona.

129 The submissions of Pacific failed to distinguish between owing a duty of care and breach of a duty of care. If, as we consider to be the case, Jigsaw’s appeal succeeds because it did not owe a relevant duty of care to Mr Barahona, that does not carry with it success in Pacific’s appeal. There is no doubt that Pacific owed a non-delegable of care to Mr Barahona, and for the reasons we have given it was in breach of that duty.

Brisbane Barrister – David Cormack

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