STRINGER & OR v WESTFIELD SHOPPING CENTRE MANAGEMENT CO (SA) PTY LTD [2017] SASCFC 138

Discharged a delegable duty (Ground 2)

2            The duty of an occupier in the circumstances of the respondent may be discharged by the exercise of reasonable care and skill in engaging someone else to keep the premises safe.[1]  In Bevillesta Pty Ltd v Liberty International Insurance Co,[2] the Court of Appeal of New South Wales held:

[53]              There is no doubt also that this occupier’s duty of care is ‘delegable’, in the sense that it may be discharged in whole or in part by the occupier’s exercise of reasonable skill and care in engaging someone else to take steps to keep the property safe either generally or in particular respects. Discharge of the duty in this way requires reasonable skill and care in the selection of the other person, in arranging the terms of engagement of that person, and in confirming that the person does take appropriate steps. If it is reasonable for an occupier to seek to discharge or partly discharge the occupier’s duty in this way, and the occupier does exercise reasonable skill and care in all these respects, then if a person coming on to the property is injured due to the failure of the other person engaged to exercise reasonable skill and care to keep the property safe, the occupier may escape liability.

3            The last sentence speaks of an occupier escaping liability if reasonable care is exercised in the selection, stipulation of terms and monitoring of a contractor.  However, the failure to exercise care in those respects does not, of itself, make the occupier liable.  In particular, it should not be thought that the omission of any reference to causation in the last sentence of that passage means that it is not necessary to prove that the injury in some way resulted from the occupier’s negligence in the process of contracting out the tasks in question.

6. The general principle as to the discharge of a duty by the engagement of an independent contractor is correctly described in Clerk & Lindsell on Torts:[4]

Introduction   If the employer has employed an independent contractor to do work on his behalf the general rule is that the employer is not responsible for any tort committed by the contractor in the course of the execution of the work.  Furthermore, since the employees of the contractor, whilst acting as such, stand in the same position as their employer, it is equally the case that the employer of the contractor is not liable for the torts committed by the contractor’s employees.  Of course, even though the damage complained of may have been caused may also be attributable to the negligence or other personal fault of the employer.  If, for example, he has negligently selected an incompetent contractor, or if he has employed an insufficient number of men, or has himself so interfered with the manner of carrying out the work that damage results, he will himself have committed a tort for which he can be held liable.  Again if the employer has authorised or ratified the independent contractor’s tort then, on normal principles, he will be jointly liable for that tort.