BORAL ROOF TILES LTD v O'BRIEN; GIO AUSTRALIA LTD v BORAL ROOF TILES LTD and ANOR [NO 2] [1994] NSWCA 32

BORAL ROOF TILES LTD v O'BRIEN; GIO AUSTRALIA LTD vy BORAL ROOF TILES LTD [NO 2]

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY, SHELLER and POWELL JJA 5 December 1994, 15 December 1994

[1994] NSWCA 32

NEGLIGENCE — duty of care — whether company liable to employee of independent contractors;

Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 discussed

The respondent sued Boral Roof Tiles Ltd, the appellant, to recover damages for severe back injury he allegedly sustained in 1984 while manually unloading tiles he was in the course of delivering for Boral. In prior proceedings it had been established that as he was employed by a company (Lasmine Pty Ltd) to undertake this task for Boral. The respondent was not Boral's employee (See Boral Roof Tiles Ltd v O'Brien [No 1] Court of Appeal, 2 December 1994). The respondent had filed a notice of contention in which he argued that even if he was not Boral's employee there was a relationship of such proximity as to give rise to a relevant duty of care. Boral had required that its tiles be unloaded manually and it was alleged that this had caused the respondent's injury. Boral contended that even if such a duty existed breach of that duty was not made out, despite uncontradicted evidence that another tile company used mechanical means to unload their tiles, and that this method had been trialed by Boral but abandoned due to cost.

Held:

(i) The system of work adopted was that of Lasmine. It had contracted to unload the tiles by hand. If a party contracts to perform a service in a particular way there is no basis upon which the party with which it contracts can be held responsible in negligence for injury done to the employees of the first party in performing that service, absent some undisclosed and unexpected hazard (Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 distinguished).