Nature of duty – non-delegability
Love v North Goonyella Coal Mines Pty Ltd [2017] QSC 140
MARC JACOB LOVE v NORTH GOONYELLA COAL MINES PTY LTD [2017] QSC 140; BC201705173
49] Each of the parties referred me to my own decision in Kerle v BM Alliance Coal Operations Pty Limited & Ors15 where I held that there was a duty of care owed to an employee of a labour hire company.by the mine operator that was not non-delegable. Neither argued that my decision was wrong, but rather that there were distinguishing features in this case that should lead to a different result. I agree that the result here is different.
[50] It is necessary to repeat some of what I said in Kerle. The starting point is that the mere fact of that relationship of principal and independent contractor does not of itself give rise to a common law duty of care: Leighton Contractors Pty Ltd v Fox.16 However there may be special features of the relationship between the parties justifying the imposition of a duty of care. So much was held in Stevens v Brodribb Sawmilling Co Pty Ltd17where it was said:
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.18
[51] Precisely what those features are is still being worked out case by case. What is clear, is that the duty can be owed not only to the contractor but to the contractor’s employees: Tolhurst v Cleary Bros (Bombo) Pty Ltd;19 Sydney Water Corporation v Abramovic.20
[52] The risk of personal injury in Stevens arose at the worksite and out of the potential for confusion in the organising of activities between multiple contractors. It was held that the entrepreneur who had engaged the various contractors owed a duty of care akin to, but more limited than, that of an employer. Mason J said:
“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 …”21
[53] Brennan J said:
“… 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 (Sutherland Shire Council v Heyman) 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.”22
[54] The continuing authority of these statements was recognised in Leighton Contractors Pty Ltd v Fox.23
[55] Here there were a number of independent contractors on the site. Just how independent some of those contractors were is debateable given the evidence from Mr Carter that North Goonyella even controlled the uniforms they wore. But the fact of the presence of multiple contractors on site gives rise to precisely the duty of care recognised in Stevens. Hence North Goonyella owed a duty to Mr Love to have in place safe systems of work as Mason J described in Stevens.
[56] But I think that the duty here is more extensive than that discussed in Stevens and analogous to the duty owed by an employer. Here the relationship between North Goonyella and Wilson Mining is not simply that of principal and independent contractor. The pleadings,24 as well as the evidence, indicate that Wilson Mining was a labour hire company providing labour to North Goonyella. The evidence of Mr Love and Mr Saliba is that North Goonyella exercised virtually complete control over them. Where people worked, what tasks they performed, what equipment they used, and indeed how they carried out their tasks all came under the control of North Goonyella or the people the company had put in charge.
[57] North Goonyella submitted that the evidence showed this was not a labour hire arrangement. It submitted that Wilson Mining were providing specialist expertise, equipment pertinent to that, and supervisors. It is true that Wilson Mining were engaged to deal with emergency response and long wall recovery after roof collapses. But that is not what these men were doing. They were engaged in what they called secondary response, namely roof bolting. That is simply labouring work. There is no great expertise involved. The only equipment identified as supplied by Wilson Mining was a passing reference to a pump used in relation to the recovery work, not roof bolting. The submission that Wilson Mining controlled the manner in which the work was done25 ignores completely the fact that North Goonyella took away the alternative roof bolting machines and supplied (and so directed that it be used) the Rambor machine. I have mentioned the limited involvement of Mr Rodriguez who is said to be the supervisor. In all relevant respects this was a labour hire arrangement.
[58] While I am conscious that one must be wary of labels, it has long been held that host employers can owe a duty of care to employees of labour hire companies analogous to that of the employer: TNT Australia Pty Ltd v Christie.26 That comes about because the degree of control exercised over the workforce, the workplace, and the systems of work by the host employer is indistinguishable from that usually exercised by the employer. There is no doubt that North Goonyella exercised that significant control here. In my view that feature justifies the imposition of the more extensive duty of care here.
[59] The remaining question is whether the duty owed was personal and non-delegable. The duty that arises out of various relationships has that characteristic. That owed by an employer, is one such relationship. In Kondis v State Transport Authority27 the employer was held liable for the negligence of its independent contractor (a crane operator) in failing to adopt a safe system of work. Mason J there described the duty as a personal duty to ensure that reasonable care is taken28 and said29:
The foreseeability of injury is not in itself enough to generate the special duty. Before the special duty arises there must exist in the relationship between the parties an element of the kind already discussed.
[60] Mason P and Foster AJA held that the duty owed by the host employer in TNT v Christie also had that characteristic.30 In my view the duty owed here has that same characteristic and for the same reasons identified by Mason P.
[61] The relevant distinction between the situation here and that in Kerle (where I held that the mine operator did not owe a personal and non-delegable duty31) is that in Kerle the mine operator (there BMA) did not have that day to day contact and control which it is evident existed in the relationship between North Goonyella and Mr Love.
[62] The significance of that finding is that is not enough for North Goonyella to say it has acted reasonably. It was required to ensure that others — such as the unidentified Eimco driver or Mr Saliba or Wilson Mining — exercised reasonable care as well.
Vicarious Liability