New South Wales District Court CITATION: Elphick v Westfield Shopping Centre Management Co Pty Ltd [2010] NSWDC 152 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 8 - 11 June 2010 and 2 July 2010 JUDGMENT DATE: 30 July 2010 JURISDICTION: Civil JUDGMENT OF: Hungerford ADCJ 1. The plaintiff is entitled to a verdict against the second defendant on the claim in the amount of $525,658. 2. The first defendant is entitled to a verdict against the plaintiff on the claim. 3. The first defendant/cross - claimant is entitled to a verdict against the second defendant/ first cross - defendant on the first cross-claim for indemnity against any loss of costs incurred in defending the plaintiff's action against it; otherwise as against the second defendant/ first cross - defendant the first cross-claim is to be dismissed. DECISION: 4. The second cross - defendant is entitled to a verdict against the first defendant/cross - claimant on the first cross-claim. 5. The second defendant/cross - claimant is entitled to a verdict against the cross - defendant on the second cross-claim for indemnity against the damages and any costs payable to the plaintiff on his claim; otherwise the second cross-claim is to be dismissed. 6. Parties to be heard on interest and on the costs of the proceedings and to prepare short minutes of order to give effect to this decision. 7. Note that the workers compensation payback amount is $119,372. CATCHWORDS: TORTS - Negligence - Duty of care - Breach of duty - Accident in the workplace of a shopping centre complex - Whether occupier liable for injury to employee of an independant contractor - Circumstances of the occurrence leading to injury - Contractual relationship between the defendants - Contributory negligence - Indemnity by contractor in favour of occupier for any loss in relation to personal injury arising from or out of any negligence of the contractor - Indemnity by workers compensation insurer in favour of negligent employer defendant - Assessment of damages - Interest - Costs Civil Liability Act 2002, ss 5C, 5D, 5R and 16(2) Law Reform (Miscellaneous Provisions) Act 1946, s 5(1) LEGISLATION CITED: Occupational Health and Safety Act 2000 Occupational Health and Safety Regulation 2001 Div 1 of Pt 4.2 in Ch 4 Workers Compensation Act 1987, ss 151A(1), 151B, 151G, 151H, 151Z(1)(b) and 151Z(2)(c) Workers Compensation Legislation Further Amendment Act 2001 Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479 Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258 Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500 Erect Safe Scaffolding (Australia) Pty Ltd v Sutton [2008] NSWCA 114; (2008) 72 NSWLR 1 Fennell v Supervision and Engineering Services Holdings Pty Ltd (1988) 47 SASR 6 Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614 Leighton Contractors Pty Ltd v Fox [2009] HCA 35; (2009) 258 ALR 673 CASES CITED: Leighton Contractors Pty Ltd v Smith [2000] NSWCA 55 New South Wales v Tempo Services Ltd [2004] NSWCA 4 Nicol v Allyacht Spars Pty Ltd (1987) 163 CLR 611 Pacific Steel Constructions Pty Ltd v Barahona [2009] NSWCA 406 Roads and Traffic Authority v Dederer [2007] HCA 42; (2007) 234 CLR 330 Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16 Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424 Sydney Water Corporation v Abramovic [2007] NSWCA 248 TNT Australia Pty Ltd v Christie [2003] NSWCA 47; (2003) 65 NSWLR 1 Unilever Australia Ltd v Pahi; Cold Storage Pty Ltd v Pahi [2010] NSWCA 149 Ross Lovell Elphick - Plaintiff Westfield Shopping Centre Management Co Pty Ltd - First Defendant/Cross - claimant to first cross-claim PARTIES: All Cleaning and Security Pty Ltd - Second Defendant/ First Cross - defendant to first cross - claim/Cross - claimant to second cross - claim Atlantic Cleaning and Security Pty Ltd - Second Cross - defendant to first cross - claim Employers Mutual (NSW) Ltd - Second Defendant's workers compensation insurer/Cross - defendant to second cross -claim FILE NUMBER(S): 00320244 of 2008 Mr BJ Gross QC and Mr V Jurisich for Plaintiff COUNSEL: Mr TGR Parker SC and Mr LG Morgan for First Defendant/Cross - claimant to first cross - claim Mr JW Catsanos for Second Defendant in right of its workers compensation insurer by way of subrogation/ Cross - defendant to second cross claim Mt TJ Morahan for Second Defendant/ First Cross - defendant to first cross - claim/ Second Cross - defendant to first cross claim/Cross - claimant to second cross - claim PK Simpson & Co for Plaintiff SOLICITORS: Piper Alderman for First Defendant/Cross - claimant to first cross- claim Stephen Lee Legal for Second Defendant in right of its workers compensation insurer by way of subrogation/ Cross - defendant to second cross - claim Swaab Attorneys for Second Defendant/ First Cross - defendant to first cross - claim/ Second Cross - defendant to first cross - claim/ Cross - claimant to second cross - claim JUDGMENT 1 On 21 July 2006 the plaintiff, Ross Lovell Elphick, sustained an injury to his lower back during the course of his employment as a cleaner by All Cleaning and Security Pty Limited (ACS) at the Westfield Shopping Centre at Tuggerah on the Central Coast of the State. The shopping centre was owned and operated by Westfield Shopping Centre Management Co Pty Limited (Westfield) which contracted with ACS to provide cleaning services at the centre. The claim, defences and cross-claims 2 The plaintiff brought the present action against both Westfield as the first defendant and ACS as the second defendant in negligence, for breaches of their respective duties of care owed to him, and claimed damages, interest and costs. Although the plaintiff pleaded in the alternative breaches of certain statutory duties under the Occupational Health and Safety Act 2000 and of the Occupational Health and Safety Regulation 2001, those counts were not relied upon as separate counts but merely as evidence of elements in the overall negligence case. The defendants wholly resisted the claims as to liability and damages. Contributory negligence pursuant to s 5R of the Civil Liability Act 2002 was relied upon by the defendants in that the plaintiff failed to take care for his own safety in what was an obvious risk. 3 Specifically as to Westfield, it pleaded the discharge of its alleged duty of care to the plaintiff by engaging ACS as a competent cleaning contractor under a detailed and comprehensive contract. In addition, the Civil Liability Act in ss 5C(c) (taking of subsequent action to avoid risk of harm) and 5D (elements of negligence) were pleaded as defences and s 151Z(2)(c) of the Workers Compensation Act 1987 was called in aid to reduce the quantum of any damages which may be awarded to recognise the degree of contribution by ACS as the employer. 4 As to ACS, it had made payments to the plaintiff of workers compensation benefits and pleaded s 151B of the Workers Compensation Act as a defence so that any compensation paid in respect of the injury was to be deducted from any damages recovered from the employer and repaid. However, as I understand it, and so much was accepted by the parties' counsel, s 151B was repealed with effect from 27 November 2001 by the Workers Compensation Legislation Further Amendment Act 2001 – the pleading was therefore inaccurate. Even so, s 151A(1) was also then amended with effect from 27 November 2001 to provide in similar terms to the former s 151B but only for the repayment of weekly payments of compensation where damages were awarded against the employer. Of course, if damages be allowed against a person other than the employer then s 151Z(1)(b) operates to require the repayment of the compensation paid for all elements, including as to weekly benefits, medical expenses and lump sum compensation. Those changes clearly arose to enable consistency with the new terms of s 151G, effective also from 27 November 2001, that the only damages that may be awarded against the employer were for economic loss due to past and future loss of earnings. Here, I mention for completeness that it was agreed the amounts for workers compensation payback, depending upon whether damages be awarded against the second defendant only (a s 151A situation) or against the first defendant as well (a s 151Z(1)(b) situation), were $119,372 for weekly benefits, $89,410 for medical expenses and $54,125 lump sum compensation. In any case, any relevant compensation already paid is not strictly a "defence" to a claim but is to be deducted from the damages awarded by the Court by administrative action on the authority of the statute. 5 ACS expressly pleaded reliance on s 151G to limit any damages awarded against it to economic loss as to earnings. There was no issue that the plaintiff had a degree of permanent impairment resulting from the injury of at least 15 per cent so that s 151H of the Workers Compensation Act did not operate to preclude an award of damages. 6 Westfield made a cross-claim against ACS as the first cross-defendant to the first cross-claim and against Atlantic Cleaning and Security Pty Limited (Atlantic) as the second cross-defendant to the first cross-claim. Apparently, Atlantic was an associated company in the same corporate group with ACS and Westfield pleaded that in July 2008 the cleaning contract was, with its consent, assigned by ACS to Atlantic. The assignment was, in terms, that Atlantic would indemnify Westfield against all claims, judgments, costs, losses and expenses it incurred in relation to any personal injury arising from the negligence of ACS or Atlantic or from any breach of the cleaning contract. Thus, indemnity was sought by Westfield from ACS and Atlantic against any liability it incurred to the plaintiff by reason of ACS's negligence and/or breach of the cleaning contract. Further, Westfield sought indemnity and/or contribution from ACS against any liability found for the plaintiff pursuant to s 5(1) of the Law Reform (Miscellaneous Provisions) Act 1946. 7 ACS made a cross-claim against Employers Mutual (NSW) Limited (EML) as the cross-defendant to the second cross-claim. \EML was the workers compensation insurer of ACS as to its employees, including the plaintiff, providing cleaning services at Westfield's shopping centre at Tuggerah. Following the subject injury to the plaintiff, EML received a claim for workers compensation benefits and admitted liability in October 2006. ACS sought indemnity from EML against damages it may be found liable for in the proceedings. EML in its defence admitted liability to indemnify ACS for any damages payable to the plaintiff under the Workers Compensation Act and any contribution payable to Westfield under the Law Reform (Miscellaneous Provisions) Act. However, EML denied any liability to indemnify ACS in respect of any damages payable by it for contractual breach or otherwise. Plaintiff's background 8 At the date of the subject accident in July 2006 the plaintiff was 33 years of age and 37 years at the time of the trial. Upon leaving secondary school at the end of Year 10 in 1988 then aged 15 years, the plaintiff worked as a farm hand in Western Australia for about one year and thereafter engaged in various manual jobs servicing motor vehicles and tree-cutting until he commenced in 1990 an apprenticeship as a butcher at an abattoir in Gunnedah and then in a butcher's shop in Toowoomba where the apprenticeship was completed in 1993. After moving to Tamworth, the plaintiff was employed as a flagman with the Roads and Traffic Authority for a couple of years and then as a boner and slicer at the Tamworth Abattoir. From 1994 to 1996, on moving to Sydney, he worked in the security industry inspecting trains and providing security in nightclubs until 1997 when, with his de facto wife Kylie Jessop, residence was taken up in Wyong. Again, manual work was obtained with Wyong City Council for three years in the construction and repair of roadways followed by three years as a packer of chicken meat. In September 2004 employment as a cleaner was commenced with ACS at the Tuggerah shopping centre. 9 The plaintiff's cleaning duties covered the inspection of all floor areas in the centre and the removal of spillages, rubbish and the cleaning of toilets; the work required him to be on his feet throughout the working day. Included in the work was the plaintiff's duty to collect from shopkeepers in the centre scrap cardboard placed in metal storage cages for removal to a loading dock where the cardboard was unloaded from the cages and placed in a compactor for baling; the cardboard bales were then removed for disposal. 10 The cleaning job was described by the plaintiff as "the easiest job I've ever had so it was actually a good job" and "I really enjoyed it…I would probably have stayed there." He got on well with those persons he worked with and was enjoying life "very well." Up to the time of the July 2006 accident at work, the plaintiff described his general health as "good" with no prior emotional problems of any significance and where he engaged in various sporting, recreational and social activities on a regular basis, such as football, fishing, motorcycle riding and family pursuits. He and Ms Jessop have two children, a daughter 16 years of age and a son age 14 years. A prior motorcycle accident in 1994 caused an injury to his shoulder and he had sustained in the meat industry a number of lacerations to his left arm, wrist and finger – those injuries, however, had since resolved after treatment and did not prevent him from working. 11 It is plain from the plaintiff's evidence that the whole of his working life has been in manual activities which have depended upon his physical abilities to do them. Work of a sedentary or administrative nature, particularly the handling of paperwork and the use of computers, has not been within his experience and he admitted to not being a "real inside person, I've always had jobs outside." Circumstances of the July 2006 accident and injury 12 The circumstances in which the subject accident occurred may be relatively shortly stated. The ACS cleaning supervisor was Lina Snape; the second-in-charge (known as C1) was Trevor Boyden; and then there was Alison Bailey (known as C2) – the plaintiff was under that supervisory group. The accident took place in the eastern wing of the centre in one of five undercover loading docks which all had slightly sloping concrete floors to enable cleaning, usually by C1, by using a water hose. The process seemed to be that metal cages owned by Westfield were made available by it to shopkeepers in which to place discarded cardboard boxes for disposal as refuse. The cages when filled were then transported to the dock area by the dockmaster, an employee of ACS, using a golf cart type four-wheel drive vehicle owned by ACS. In the dock area there was a metal bollard near a compactor to enable the dockmaster to place a tie-loop of baling twine over to hold the cage steady as the cardboard boxes were unloaded by the dockmaster or one of the cleaners, such as the plaintiff, and placed in the nearby compactor for baling. Interestingly, apart from the dock where the accident occurred the system in the four other docks was to fix the cages before unloading to stop them from rolling other than by the use of twine. The cages themselves were quite sizeable being approximately 2.4 metres long, 1.5 metres wide and 2.0 metres high with steel wire mesh walls; they were open at the top to enable boxes to be thrown into; they had a mesh floor; and a mesh door on one side which fully opened to enable the boxes to be retrieved. Relevantly also, the cages had three wheels – two fixed wheels 200 millimetres in diameter at the rear and a rotating 200 millimetre wheel in the centre front so that the cage sat about 250 millimetres above the floor; none of the wheels had a braking device fitted and there was no other device for securing or chocking the wheels. Thus, the stability of the cage during the unloading process depended upon the placement of the baling twine over the bollard, otherwise it was free to roll on its unlocked wheels over the sloping floor. It ought be mentioned that the golf cart had a fixed towing ball to attach the cage which, if left connected during the unloading process secured the cage and kept it stable. However, that connection was not maintained once the cage was placed in the dock because, of course, the cart had to be used elsewhere by ACS. Thus, reliance for the stability of the cage was the use of the baling twine over the bollard. 13 The unloading of the boxes from the cage was done manually by simply using the hands to remove them and place in the compactor. Perhaps obviously, this meant stepping into the cage due to its dimensions to get all of the boxes and, sometimes, it was rather difficult to remove those boxes which had become caught in the mesh floor of the cage. Cages had to be unloaded every 20 to 45 minutes during the day. 14 The plaintiff said that on starting the job in the centre he was informed of his duties by the supervisor, Ms Snape. As to any training or warning by anyone about the risks of injury potentially arising from climbing into the cage, he said – "No, none at all. We just got showed how to do it and they walk off and you're just left to your own devices." He added this evidence as to the method used: "Q. You've already described the method of securing as being putting the tie loop over the bollard located nearby, but, when that loop was placed over, was there still a distance between the, as it were, the end of the loop and where the back of the cage was? A. They used to be about half a foot down, that's why they used to push it right up against the bollard, throw it over, and the cage would just roll anyway to the length of actual baling twine. Q. So, roll, that's having regard to the slope you've just explained? A. Yes. Q. Now, in terms of getting the cardboard out of the cage, would you have to get inside, or get a foot inside every time, or was it only dependent upon how much cardboard was in the far reaches of the cage? A. It all depends how much cardboard was at the back of the cage. Normally you can just reach in and pull it out, most of it will fall out at your feet. Q. Did you have any way of doing the work other than the way you've just described? A. No. … Q. So that, if you put your foot onto this cage would it stay still? What would happen, just tell us something about what it felt like to put your foot into the cage? A. It would either move forward, or it would rock…. It would tip on you." 15 As to the presence of Westfield employees in the loading dock area, the plaintiff said the manager of the centre and occupational health and safety persons were seen by him four or five times a day as "they just walk around and check everything, just make sure everything's being done correctly." 16 At about 1:30pm on Friday 21 July 2006 the plaintiff was in the loading dock area in the process of removing cardboard boxes from a cage following the usual procedure as described above. He said what then occurred was: "So, as I put my right foot in the cage, the cage just rolled a bit and its just twisted my right hip…. I've put my foot that way and its rolled that way…My actual body went with it… my legs actually stayed where it was, my left leg, and my right leg just twist." 17 The mechanics of the accident as described by the plaintiff were accepted by the parties. It need be made clear that ACS employees, usually the dockmaster, drove the golf cart towing a cage and were responsible for positioning the cage, including putting the loop of twine over the bollard to secure it. On the occasion of the accident, the plaintiff said he was in too much of a hurry to check whether the twine was in place before stepping into the cage but then added "No it was in place yes. It was connected to the bollard." On it being suggested to him that the accident happened because the twine was not in fact over the bollard, he maintained "it was already over the bollard…No the twine was over the bollard." He explained that when he stepped into the cage it moved laterally and then rolled on the sloping floor about six inches to one foot – it rolled no further because the baling twine held it. 18 On being injured, the plaintiff that day reported the incident to Mr Boyden of ACS as the C1 supervisor. He felt not "too bad at the time" but with pain in his right hip down through the right buttocks. He continued to work for the remainder of the day but then felt "very sore…right across the lower back, and mainly down the right leg." Although rostered to work over the weekend on 22 and 23 July 2006, the plaintiff did not do so because he said "I could hardly move"; he was rostered off duty on the Monday and Tuesday but the problems from the injury continued. On Wednesday 26 July 2006 he consulted his general practitioner, Dr H Oxley at the Wyong Medical Centre, and was certified unfit for work for one month until returning to light duties on 28 August 2006 for four hours a day/five days a week then gradually increasing to full working hours. In the meantime, and continuing attendance on Dr Oxley, the plaintiff had physiotherapy on his injured back which improved it and underwent x-rays and a CT scan by Dr Gordon Melville of Kanwal Radiology on 17 August 2006. Those scans relevantly showed broadbased disc bulging at two levels, L4/5 and L5/S1, with nerve root decompression. However, the plaintiff said his back pain worsened as the days wore on, requiring occasional days off work, until about 30 November 2006 when he ceased work and has not since resumed. 19 Again as to the involvement of Westfield, I interpose that it seems ACS did not report the plaintiff's accident and Westfield first became aware of what occurred on 20 August 2006 when Heidi de Haas, its Risk Management Co-ordinator at the centre, saw him walking awkwardly in the mall and asked what had happened. In the company of Tony Dutton of ACS, and after later speaking to Kaylene Transley, the ACS Human Resources and Occupational Health and Safety Manager, Ms de Haas went to the loading dock concerned to view the cause of the plaintiff's injury. Westfield's incident detail report stated: "We then discussed how we could fix the problem. We decided we would make a hook from metal for the cleaners to reach for cardboard in the corners to eliminate the hazard of then stepping into the cage. We also placed a warning sign on the cage door advising that they are not to stand in the cage. I then approached the cleaning supervisor Lina Snape to ensure that she reported any incidents in the centre to Centre Management in future. I also raised the point with several cleaners that they are reporting hazards so we can fix any issues, as they operate in our back of house areas the most and see a lot more behind the scenes than we do." 20 Apart from the changes made as stated by Ms de Haas, the plaintiff noticed further changes to the facilities when he returned to the site with Dr Brian Emerson, a safety engineer, on 30 April 2009 – two extension or drop bolts were fitted to the front corners of the cage to allow insertion into holes in the concrete floor for stability, a metal chain replaced the twine for connection to the bollard and a carpet floor was inserted into the cage. 21 Alison May Bailey was a cleaner with ACS at the Tuggerah centre from March 2003 until she left in June 2006 at which time she was the supervisor C2 and the dockmaster reporting to Ms Snape who was the supervisor C1. Part of her duties involved emptying the cardboard boxes from the cage into the compactor for baling. The use of the twine to attach the cage to the bollard for stability of the cage, a process said by Ms Bailey to be done by the relevant ACS employee and without any involvement of Westfield staff, was the system in place when she commenced work at the site and she simply continued the system. Even so, Ms Bailey said the cage could "tip up a little bit" depending on where one stood in reaching for the cardboard boxes and that was because the cage was on three wheels only and had a tendency to shift sideways. She said she had experienced the cage moving when being unloaded and had reported that to Ms Snape on two occasions in a six-month period but no action was taken. Importantly, she agreed it was the responsibility of ACS, without any involvement of Westfield, to transport the cages, position them in the loading dock and use the twine loop to ensure the cage was secured to the bollard. Also, Ms Bailey agreed that the presence of Westfield staff in the loading dock area was for them to go about their own business, such as maintenance, but with no connection to the work being done by ACS employees. 22 Casiniro Chrul gave evidence. He commenced employment in 1999 as a cleaner with ACS at the Westfield centre at Tuggerah until about June 2009. Although not at work on 21 July 2006, Mr Chrul became aware the plaintiff suffered an accident that day in the loading dock area while unloading cardboard boxes from a cage. He said he had had quite a bit of experience in unloading the cages and confirmed the process as described earlier by the plaintiff and Ms Bailey. When the number of boxes reduced during the loading a problem arose as the cage would tilt when stepping into it — he said the cage used to "rock and roll a bit…not very secure." As to the use of twine over the bollard, Mr Chrul said he did not know who placed it there, but it was always there, and it was replaced by someone when it broke; even then, he said the cage still moved sideways and back and forth. He said he told Ms Snape the cage was "very dangerous" because it had only three wheels and the placement of the twine had the potential to stop the cage from moving back and forth but not from the rocking and rolling described; the length of twine fitted conditioned the distance the cage could move. 23 Interestingly, Mr Chrul said he told maintenance employees of Westfield (known to him as Leo and Glen) who were working in the loading dock area on two occasions before the plaintiff's injury that the cage was not safe, and he demonstrated the problem to them, because of the "rock and roll", even though attached to the bollard, and was informed they would have the problem fixed; but it was not. 24 On the evidence as to the circumstances of the accident and injury to the plaintiff I make the following findings: (1) The accident occurred in the manner described by the plaintiff. (2) The system of work for unloading the cardboard boxes from the cage and their placement in the compactors in the loading dock area was as stated by the plaintiff, Ms Bailey and Mr Chrul; the system had been in place for some years before the incident occurred. (3) Westfield probably owned the cage and the compactor but certainly made them available to ACS for use in the cleaning process. (4) ACS probably owned and supplied the golf cart to tow the cage filled with cardboard boxes from the retail areas of the centre to the loading dock for unloading and compacting of the boxes into bales. (5) The positioning of the cage in the loading dock and its unloading was performed exclusively by employees of ACS, including the use of baling twine looped over a bollard intended to secure and stabilise the cage during the unloading phase. (6) Even though attached by twine to the bollard, the cage was unstable and moved laterally and back and forth during unloading, particularly as a person stepped inside it to retrieve cardboard boxes. (7) The plaintiff received no training or instruction in the unloading of the cage, other than being told what had to be achieved, and specifically was not informed of any potential safety risks. (8) The plaintiff was not provided with any tools or other devices to extract the boxes from the cage so that he had to use his bare hands which required stepping into the cage. (9) The plaintiff sustained injury to his low back in stepping into the cage while unloading boxes from it at about 1:30pm on Friday 21 July 2006. (10) The plaintiff reported the accident and injury to his ACS supervisor the day it occurred. (11) Although his back was not too bad on the day the accident took place, the pain gradually worsened requiring absence from work for about one month before returning on light duties on reduced working hours. (12) After requiring the occasional day off work, the plaintiff's back pain meant he ceased work altogether on 30 November 2006 and has since been unable to resume his normal duties as a cleaner. (13) On learning on 20 August of the accident, Westfield made and provided to the ACS cleaners a metal hook to reach and extract the cardboard boxes in the cage to eliminate the hazard of stepping into the cage. (14) Westfield placed a warning sign in the dock area that cleaners were not to stand in the cage. (15) Other changes were made, namely the fitting of metal drop bolts to secure the cage to the concrete floor, a metal chain to replace the twine loop for placement over the bollard and a carpet placed over the wire mesh floor to avoid boxes becoming stuck – when and by whom such changes were made was not clear but probably Westfield initiated them because they involved modifications to its property. Consequences of injury for the plaintiff 25 Since 30 November 2006 the plaintiff has not been in employment. ACS through its insurer, EML, allowed workers compensation benefits to the plaintiff and such benefits are continuing. In addition, EML in August 2006 arranged for The ORS Group to assess the plaintiff and to provide occupational rehabilitation assistance. In that respect, and about which there was no issue, the plaintiff fully co-operated and was in regular contact with ORS over the following years in making himself available for assessment and in responding to proposals for suitable employment. In addition, the plaintiff himself applied for jobs within his capacity. However, those combined efforts were unsuccessful and the plaintiff remained unable to obtain employment. It ought be mentioned that he displayed a keen desire to re-enter the workforce, in a suitable role having in mind his continuing incapacities, and his motivation to do so could not be doubted. 26 At the time of ceasing work in November 2006 the plaintiff said his back was constantly very sore with the pain radiating down the right thigh into the leg; pain started to be experienced in the left leg as well. On referral by his solicitor, the plaintiff was examined by Dr Avtar Sachdev, an orthopaedic specialist, on 22 January 2007 who concluded he suffered from disc disease of the lumbar spine at the levels of L4/5 and L5/S1 with mild right-sided nerve root irritation as a result of the 21 July 2006 accident at work. Although Dr Sachdev thought conservative treatment had improved the symptoms, persistence of them may require the need for further investigation and surgery in the form of a laminectomy and discectomy. At the time, Dr Sachdev found the plaintiff unfit for any work requiring heavy lifting, undue bending and sitting or standing for prolonged periods; whole person impairment was then assessed at 12 per cent. 27 Dr Oxley referred the plaintiff to Dr Peter Spittaler, a consultant neurosurgeon, who saw him on 20 February 2007 and though that if an MRI scan confirmed a compressed nerve root and there was continuing pain then a discectomy would be helpful. Dr Spittaler duly reviewed the plaintiff in March, April and July 2007 and on 31 July 2007 he performed a right L4/5 microdiscectomy and foraminotomy – a very hard and calcified disc bulge was encountered. On review by Dr Spittaler on 13 September 2007, the sciatica had ceased but the lower back pain continued. In a report of 11 October 2007, Dr Spittaler said the plaintiff would be fit to do suitable duties with restrictions on bending and lifting more than 10 kilograms so that there would be a difficulty in returning to pre-injury duties; permanently modified duties were needed. In the meantime, EML had the plaintiff examined by Dr JM Matheson, a consultant neurosurgeon, on 29 May 2007 who expressed agreement with the diagnosis and approach of Dr Spittaler to deal with it. 28 However, a couple of months after the surgery, albeit with some improvement, the plaintiff said his condition reverted to what it was beforehand – lower back pain and increased pain in both legs. He was reviewed by Dr Spittaler on a few occasions in late-2007/early-2008 and on 12 December 2007 an MRI of the lumbar spine by Dr Gregory Solomons disclosed broad-based posterior disc bulging at the L4/5 and L5/S1 levels with nerve root decompression at L5/S1. Dr Oxley thereupon referred the plaintiff to Professor YAE Ghabrial, an orthopaedic and spinal surgeon, who on 6 March 2008 recommended further surgery to be done in conjunction with Dr Spittaler. The diagnosis was made of disc protrusion at L4/5 and L5/S1 levels. In the meantime, on 2 April 2008 Dr John Grant, a consultant neurosurgeon, and Dr Peter Giblin, an orthopaedic surgeon, reviewed the plaintiff. Then, on 24 June 2008, Dr Spittaler performed an L4/5 and L5/S1 laminectomy and Professor Ghabrial performed an L4-S1 fusion with instrumentation inserted into the back and a back brace to be worn for three months. The plaintiff was reviewed by Professor Ghabrial for management in the post-operative period, including hydrotherapy and medications. On review on 14 January 2009, Professor Ghabrial assessed whole person impairment regarding the lumbar spine at 22 per cent and considered recovery at that stage to be satisfactory but with continued restrictions as to lifting, excessive bending, excessive twisting and prolonged sitting, standing or travelling for more than 30 minutes at a time. Intensive rehabilitation was seen as necessary prior to return to any part-time suitable duties. 29 On 9 December 2008 ACS terminated the employment of the plaintiff. 30 At the request of Westfield, the plaintiff was examined by Dr R Mellick, a neurologist, on 25 February 2009 but privilege was claimed over his report and it was never served on the plaintiff. 31 The plaintiff subsequently saw a number of other doctors for review and assessment – an orthopaedic surgeon Dr Kim Ostinga on 5 March 2009, an occupational physician Dr Elias Matalani on 6 March 2009, an occupational therapist Dr Horace Ting on 17 June 2009 and a consultant psychiatrist Dr Thomas Newlyn on 16 June 2009. 32 For himself, the plaintiff said since the two operations he has had constant pain in his back which at night, when he lies down, goes into both legs but only mildly so. Prolonged sitting and standing resulted in discomfort in the back with aching and prolonged walking made him feel worse. Although the plaintiff said "I can do most things it just really hurts", his overall evidence showed a person adversely affected by the injuries so that now he has had to stop the social and sporting activities earlier done and, emotionally, the changes in his ordinary and working life were "very hard to get on with it because I've been so active." Ms Jessop, as the plaintiff's partner, confirmed that there had been "dramatic changes" in his behaviour as he was now "depressed, he's in pain, he's irritable, he's cranky ... he would be lucky to leave the house once a day … His friends don't visit him anymore … he's just not nice to be around." Ms Jessop spoke of the problems in the familial relationships due to the plaintiff's affected condition and the plaintiff himself seemed distressed with these problems to the point where Ms Jessop commented – "I believe we're extremely lucky to still be together…his self esteem has been lowered." 33 Domestically, the plaintiff is now unable to do the gardening, lawn mowing and home maintenance he did before the accident and depends on Ms Jessop for those things. 34 The plaintiff presented as a credible and impressive witness as to the nature of his injury and its consequences on his working and ordinary lifestyle. Indeed, he displayed a somewhat stoic attitude to his developed condition and with a desire to improve things. Regrettably, efforts to gain employment, even with the assistance of The ORS Group, have been unsuccessful but there can be no doubting the persistence of the plaintiff in co-operating with the rehabilitation measures and in seeking employment. He accepted some jobs were of interest to him but his physical limitations to do them were of concern. 35 A real issue in the case was the plaintiff's future capacity for work and much evidence was presented by ACS from The ORS Group as to a vocational assessment. In a report dated 25 February 2009, a rehabilitation consultant, Liz Law, noted the plaintiff's inability to return to his previous employment of cleaner due to the physical restrictions and suggested vocational options in sedentary jobs or jobs with light physical requirements such as security officer, sales assistant and process worker. However, and as the report of Ms Law confirmed, once the plaintiff disclosed his injury to prospective employers they advised that they could not employ him as he was a safety risk. Also, Ms Law noted that many of the plaintiff's skills and abilities were non-transferable so that further training may be required to assist in gaining employment. For the vocational options considered suitable for the plaintiff, but for him perhaps on a part-time basis, the range of average weekly gross earnings for a full-time position was from $503.00 to $1,384.00 as at August 2007. It was agreed that as a cleaner with ACS his present net weekly earnings were $700.00, that is, about $18.50 per hour. After a home assessment on 20 March 2009 by two occupational therapists for The ORS Group, a recommendation was made that the plaintiff be provided with three hours per week of domestic assistance and one hour per week for yard assistance. Certain modifications to the home facilities were recommended and made. Medical evidence 36 I have referred earlier to the medical practitioners consulted by the plaintiff. There was no real issue between the parties that the plaintiff sustained injury in the accident and that he had suffered a real and permanent disability. The only issue was the extent to which he was thereby incapacitated for work. Overall, the medical evidence recognised this position, including a causal connection with the accident, and was to the effect that the plaintiff with restrictions was able to perform suitable jobs, albeit on a reduced hours or part-time basis. It is necessary for present purposes to refer to only some of that evidence. 37 A consultant occupational physician, Dr Elias Matalani, saw the plaintiff on 6 March 2009 and reviewed him on 19 May 2010 on a medico-legal basis. Dr Matalani in a report dated 19 May 2010 dealt with the plaintiff's fitness for work and earning capacity impairment by making the following main points – - The plaintiff was unsuitable for work requiring repetitive bending and twisting of the spine, prolonged uninterrupted sitting, prolonged walking and standing and heavy manual handling activities. - He would be unable to return to the pre-injury cleaning duties and, as his occupational history was primarily in physical and labouring jobs, there would be significant difficulties in obtaining suitable employment in the open labour market. - He was fit for permanently modified duties within the restrictions stated. - Working in sedentary employment may be acceptable although he has no skills, experience or qualifications in office work and no training in computer work. - He is likely to be vulnerable to exacerbations and would therefore require intermittent time off work. 38 On 16 June 2009, the plaintiff was seen by Dr Thomas Newlyn, a psychiatrist, as to his emotional condition after the accident. Dr Newlyn responded on 22 June 2009 in a very comprehensive report. He commented that the plaintiff said he felt depressed after the second operation because he was stuck at home all day. Dr Newlyn considered the plaintiff had mild symptoms of depression and some difficulty in social and occupational functioning, but he was a generally functioning pretty well and had some meaningful interpersonal relationships. As to the plaintiff's capacity for employment due to any psychological condition, Dr Newlyn considered there was no impediment for him to perform his full-time pre-injury cleaning job although his present feelings were caused by the subject accident at work. 39 In a report of 5 March 2009, Dr Kim Ostinga expressed an orthopaedic opinion on the plaintiff's condition. Given that there was then no further benefit from any form of physical treatment, Dr Ostinga said the plaintiff had reached the point of "maximum medical improvement" and he was suffering permanent whole person impairment from his injured back of 25 per cent. 40 On the basis of the medical evidence, I find that confirmation existed for the plaintiff's own complaints of his condition. It emerges that he has a reduced capacity for employment but only in suitable positions with restrictions and even then on a part-time basis. The degree of permanent whole person impairment in the expressed range of 22 to 25 per cent is not insignificant. In addition, there is the difficulty on the open labour market of obtaining suitable work, presently not achieved, and that was so notwithstanding the efforts of The ORS Group. In the result, and on balance, I would assess the plaintiff's retained capacity to earn in the open labour market at marginally less than one-third. Expert evidence as to assessment of safety risks 41 Qualified for the plaintiff were two safety engineers, Dr Brian Emerson and Mr David Dubos. 42 Dr Emerson carried out a site inspection at Westfield's Tuggerah shopping centre on 30 April 2009 with the plaintiff and viewed the steel mesh cage concerned in the loading dock area. Helpfully, Dr Emerson took coloured photographs showing the actual work location and the plaintiff demonstrating his actions in stepping into the cage at the time of injury; the features of the cage were plainly visible, including the cardboard boxes in it. The previous method of securing the cage with twine over the bollard and the new method using a metal chain were also shown in the photographs. The system of work was described by Dr Emerson, in a manner consistent with the plaintiff's evidence, and he concluded that a "system of work that required cleaners to climb onto an unstable container existed at material times due to the failure to provide chains, brakes, stands, etc along with training and supervision … the plaintiff's suffered injury is … a direct consequence of the fact that the elevated work station was at the time of the plaintiff's accident unsafe. The plaintiff was at foreseeable risk of injury." 43 Dr Emerson considered that precautionary measures should have been taken for safety reasons, namely, a chain to secure the cage to the bollard, drop props (bolts) at the front of the cage to prevent lateral movement, a hook one metre long to extract cardboard without the need to step into the cage, a sign stating not to enter the cage, kick-down brakes attached to the wheels to prevent movement and other measures as to training and supervision. 44 The report by Dr Emerson, admitted into evidence, was seriously contested by Westfield but he could not be tested on it as he died before the trial commenced. For that reason, the plaintiff obtained a report from Mr Dubos who was cross-examined. 45 Mr Dubos did not inspect the site but he had the benefit of a conference with the plaintiff and access to the report of Dr Emerson. Like Dr Emerson, Mr Dubos focused on the condition of the cage and the fact it was provided by Westfield for use as part of the system of work in disposing of the cardboard boxes. He considered that the cage constituted a "clear safety hazard, particularly when manual handling was being carried out." He stated: "The cage in question should have been stabilised by various methods. The fitting of four wheels to the cage with brakes fitted is one method of stabilising the cage. Other methods involved what was carried out, ie bolting of the cage into the floor surface. The use of signage warning workers not to enter the cage…" 46 During cross-examination by senior counsel for Westfield, Mr Dubos gave this evidence: "Q. …this accident happened either because there was no twine, or it wasn't engaged at all, or the looped twine on the particular occasion allowed too much play. Correct? A. Correct. Although…I don't think the method of securing the cage was an effective method of securing the cage at all. So, but as you say…the twine may not have been there or it may have had a lot of play in it, you know, 8 inches. … Q …you were asked to assume, and you have given your opinions on the assumption that it did not rock and that what caused the problem was a lateral movement of 8 inches? A. That's true. … Q. …You said the twine was unsatisfactory. First, the twine didn't prevent rocking? A. Yes, that's my understanding, yes. … Q. And you also think the twine is unsatisfactory because you don't think it's strong enough, although in this particular case there's no suggestion that its strength was inadequate? A. No. Yes. … Q. Those particular deficiencies didn't play any part in the cause of Mr Elphick's accident? A. Not on my instructions, no. Q. … if the ACS staff had ensured that the twine was looped around the bollard and that it did not allow eight inches of play, but instead allowed only a couple of inches of play that this accident to Mr Elphick would not have happened? A. I'm not sure of that because of the possibility at any moment that the cage may rock or the twine may break and my information, … is that it moved eight inches. So I think the speculation that the accident would not have occurred is simply that, unfounded speculation." 47 Counsel for ACS cross-examined Mr Dubos to this effect: "Q. From an occupational health and safety perspective, you said in your report that you regarded both of the defendants as having an obligation to have done certain things to ensure the health and safety of people in and about that particular area? A. Yes. … Q. Things that Westfield could and should have done to promote safety of people using their equipment? A. Yes. Q. You see it's significant… that it is their cage? A. I do, I do. Q. Why do you? A. Because Westfield were in a position to attach various bolts to the cage, for example, to secure it far better than piece of twine given that they own the cage they could have fitted four wheels rather than three. I don't believe that … ACS could have carried those things out given that it was Westfield's property and Westfield's stock. … Q. Would you regard that(use of twine to fix cage to bollard) as representing an unacceptable risk of potential injury? A. Yes, yes. Q. Why? A. Given that the cage had three wheels and that it was sort of inherently unstable, then to affix it to a bollard with a piece of twine that could be of varying lengths and may break is an ineffective way of making it stable or attempting to make it stable, and if people … were required to enter it and it may move while they're attempting to handle cardboard out of it, then given the foothold there may be injuries and significant injuries coming out of that." 48 The defendants did not lead any expert evidence to counter that of Dr Emerson or Mr Dubos. Relationship between the defendants 49 On 29 June 2006, Westfield and ACS made a written agreement (the Agreement) under which Westfield, as the manager of the subject shopping centre at Tuggerah on behalf of the owner PT Limited as trustee of the Westfield Tuggerah Trust, engaged ACS as the contractor to provide cleaning contract services at the centre. The terms and conditions were those specified in the Agreement. The centre was of quite sizeable proportions, being about one kilometre in length and with three levels of retail shops, service areas, administration and car parking facilities. The Agreement was for a period of three years for a contract price of nearly $5.0 million plus annual storeroom rental of just in excess of $20,000. 50 In presently relevant respects, the Agreement contained the following provisions — + ACS was to supply the service in accordance with the specification set out in the Agreement which, as to refuse removal, required strict adherence to Westfield's Waste Management Principles including mall bins to be emptied by ACS only into the compactors: cl 3.1(a) and para 1.5.4 of Sch 2. + ACS was to act in a good and workmanlike manner and in conformity with all reasonable directions from Westfield: cl 3.1(b). + ACS was to act in strict compliance with all applicable laws: cl 3.1(c). + ACS was to furnish all labour, materials, supplies, equipment, services, machinery, tools and other facilities required for the prompt and efficient supply of the service: cl 3.3. + Where ACS was required to provide or utilise equipment, such equipment was to be suitable for the service and was to be maintained by it in good, safe and working condition in accordance with the highest industry standards: cl 3.4. + ACS warranted that it and its employees were competent with the necessary skills and had received all necessary training to provide the service to the highest industry standards: cl 3.5. + The contract price included all labour, materials and equipment furnished by ACS for the supply of the service: cl 5.2(a). + Where any breach of the Agreement by ACS threatened the health or safety of any person, Westfield may take all action reasonably necessary to rectify the breach: cl 7.8. + ACS agreed to indemnify Westfield from and against "all claims, demands, writs, summons, actions, suits, proceedings, judgments, orders, decrees, costs, losses and expenses of any nature … in relation to any … personal injury … arising from or out of any act, omission or negligence of [ACS], or any of its employees, … including any breach of this Agreement …": cl 9. + As to environmental, health and safety requirements (EH&S), ACS was to ensure no risk to all persons employed by it in connection with its activities at the centre: cl 14.1(a). + ACS was to comply with the EH&S requirements set out in Sch 5 to the Agreement: cl 14.1(c). + ACS, even though Westfield would co-ordinate the overall activities relating to the Centre, had the EH&S responsibility relating to its personnel by its act or omission or arising from the works and was to exercise all necessary precautions for the protection of all persons at the workplace: paras 1.1 and 1.2 of Sch 5. + ACS was to lay down EH&S procedures for the instruction and training of its employees and provide supervision to ensure workplace safety: para 3.1 of Sch 5. + ACS was to ensure its employees did not undertake work activities detrimental to their health, safety or welfare: para 4.1 of Sch 5. + ACS was to design and construct means for carrying out the works sufficient in all respects to support the working load on the equipment used: para 4.2 of Sch 5. + ACS was to ensure that any plant and/or equipment complies with the relevant requirements (see para 2.1 of Sch 5) and is fit for the intended use: para 4.3 of Sch 5. + If an event occurs at the workplace which temporarily or permanently alters a person's future, ACS was to immediately provide Westfield with a description of the events and details of injuries to any person, including a written report within 24 hours: paras 8.1 and 8.2of Sch 5. + ACS was to ensure its employees completed training in and were conversant with the safe and correct use, handling and operation of materials and equipment: para 10.1 of Sch 5. + ACS was to indemnify Westfield against "all costs, losses, damages or penalties … as a result of a civil claim … arising out of or in connection with a breach by ACS of any of its obligations: para 14.2(b). + The Agreement was personal to ACS and ACS was not to assign its rights and interest thereunder without the prior written consent of Westfield: cl 15.1. 51 It is plain that the Agreement imposed on ACS quite comprehensive and stringent conditions in the carrying out of its contract in respect of workplace safety, including the utilisation of equipment (such as the wire mesh cage here) supplied by Westfield. Westfield, as will appear, relied on those provisions to wholly impose liability on ACS for what occurred to the plaintiff and, in any event, to provide indemnity to Westfield for any losses it incurred by reason of ACS's negligent conduct towards the plaintiff. Whether that is the true effect of the provisions concerned or a matter going only to apportionment of any liability to the plaintiff as between Westfield and ACS is an issue which arises for determination. 52 Relevant to Westfield's cross-claim against ACS and Atlantic for indemnity against any liability of it found for the plaintiff, including associated costs, it is necessary to consider the status of Atlantic. It was not a party to the original June 2006 cleaning services agreement. By an email dated 28 May 2008 from Judy Phillips of ACS Integrated Service Provider to Sue O'Malley, Westfield's General Manager Facilities and Operations, an accompanying letter was attached regarding a proposed change in the invoicing company for ACS. That letter, on ACS letterhead from its Chief Executive Officer Warren Hughes, advised a change in the company structure and proposed that Atlantic acquire the cleaning contract for the shopping centre at Tuggerah as from 1 July 2008. It seems, from the public liability and workers compensation certificates of then current insurances, that both ACS and Atlantic were part of the ACS Group of companies. 53 There then occurred certain discussions and correspondence between Ms O'Malley and Ms Phillips. On 25 June 2008, Paul Collins as Chief Executive Officer of the ACS Group emailed Ms O'Malley indicating the benefits to the ACS Group of the changes and suggested an alternative proposal for Atlantic to purchase ACS. Then, on 7 July 2008 Ms O'Malley emailed Mr Collins advising a letter was on its way "to consent to the change subject to receiving indemnities from ACS". 54 The letter of consent from Westfield dated 8 July 2008 under the signature of Ms O'Malley was sent to Mr Collins at ACS but not to ACS Integrated Service Provider. Even so, the letter required Mr Collins to acknowledge the conditions by signing and returning to Westfield, which he duly did, the duplicate copy of the letter. The letter referred to the subject contract dated "29 May 2006", whereas in fact the contract was made on 29 June 2006, and stated that "Westfield consents to the assignment of the contract to Atlantic Cleaning & Security Pty Ltd". It then added: "You confirm that in accordance with clause 9 of the Contract, you will indemnify Westfield and the owners of the relevant centres against all claims, demands, writs, summons, actions, suits, proceedings, judgments, orders, decrees, costs, losses, and expenses of any nature which they may suffer or incur in relation to any loss of life, personal injury or damage to property arising from or out of any negligent act or omission or wilful default of All Cleaning & Security Pty Ltd, Atlantic Cleaning & Security Pty Ltd or any of their employees, agents or subcontractors, or any breach of this Agreement and any failure by All Cleaning & Security Pty Ltd or Atlantic Cleaning & Security Pty Ltd to pay all remuneration payable to their employees, agents or subcontractors." 55 It was argued for Westfield that as the letter was addressed to Mr Collins, who was the Chief Executive Officer of ACS Integrated Service Provider which included ACS and Atlantic in the ACS Group, that therefore the word "You" in the letter comprehended both ACS and Atlantic so that both were subject to the indemnity. That was the only view of what the position was to give commercial sense to the proposed change. For Atlantic, it was argued that the word only covered ACS, as that was the identity to whom the letter was addressed, and, in any event, there was no actual assignment of the contract from ACS to Atlantic in evidence even though Westfield consented to such an assignment. Therefore, Atlantic submitted, it was not liable to indemnify Westfield, particularly as to events (as here) taking place beforehand; ACS accepted a continuation of it being subject to the indemnity but, as will later appear, only where Westfield was found not to be negligent towards the plaintiff. I will deal later with the position of Atlantic when considering the cross-claim by Westfield. Duty of care 56 I do not understand Westfield, as the occupier of the shopping centre with its overall care, management and control, resisted a finding that it had a duty of care to the plaintiff to take reasonable care to avoid a foreseeable risk of injury. I think that position is correct: see Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479 at 488 and Hackshaw & Shaw [1984] HCA 84; (1984) 155 CLR 614 at 662-663. Rather, as Mr TGR Parker SC, who appeared with Mr L Morgan of counsel for Westfield, put the issue was whether the particular circumstances of this case gave rise to such a duty. Senior counsel said they did not and relied on the following passage from Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16 at 48 per Brennan J: "… 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." 57 As to the position of ACS as the employer, I think it to be well established that it owed a duty of care to the plaintiff of a non-delegable nature being a duty of an independent obligation of a comprehensive kind to ensure that reasonable care is taken: see Nicol v Allyacht Spars Pty Ltd (1987) 163 CLR 611 and TNT Australia Pty Ltd v Christie [2003] NSWCA 47; (2003) 65 NSWLR 1. The duty is that of a reasonably prudent employer to take reasonable care to avoid exposing the employee to unnecessary risk of injury: Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 307-308. Mr J Catsanos of counsel, who appeared for ACS in right of EML as the workers compensation insurer by way of subrogation, did not submit to the contrary. I find such a duty existed here to the plaintiff by ACS. 58 Mr B J Gross QC, who appeared with Mr V Jurisich of counsel for the plaintiff, maintained, of course, an indisputable duty of care owed to the plaintiff by ACS. Mr Gross submitted that similarly Westfield owed a duty of care to the plaintiff which did not differ in any relevant respect from that owed by an employer to an employee. Senior counsel in support cited what Mason J said in Stevens v Brodribb Sawmilling (at 31), namely: "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." 59 I should interpose that in Leighton Contractors Pty Ltd v Fox [2009] HCA 35; (2009) 258 ALR 673 the High Court confirmed (at [20]; 679) the principle as explained by Brennan J in Stevens v Brodribb Sawmilling and confirmed also (at [62]; 691) what was there said by Mason J. That approach was followed and applied by the Court of Appeal (Allsop ACJ, Beazley and Giles JJA) in Pacific Steel Constructions Pty Ltd v Barahona [2009] NSWCA 406 at [91] and where their Honours added the observation from Leighton Contractors v Fox (at [24]; 680) 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." The principles stated in Leighton Contractors v Fox were found to be prevalent. 60 In Pacific Steel Constructions v Barahona (at [90]), their Honours dealt with the criteria identified by Basten JA, with whom Mason P agreed, albeit perhaps as a guide and not a precise checklist (see Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258 per Basten JA), in Sydney Water Corporation v Abramovic [2007] NSWCA 248 at [98] as follows: "[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 co-ordination 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." 61 Mr Gross identified the nature of Westfield's duty of care here as the occupier and controller of the centre and the fact that it owned the equipment, being the cage, provided to ACS for use by the plaintiff, and other cleaners, in disposing of the cardboard boxes. Senior counsel submitted that the duty extended to ensuring that the cage so provided was safe and as being reasonably fit for the purpose of its intended use. Senior counsel put it this way: "The work of the Plaintiff at the First Defendant's (Westfield's) premises involved him using equipment supplied and installed by the First Defendant, in the course of carrying out a system of work that was devised by the First Defendant. Such work was also supervised by the First Defendant, even though that supervision through its management and in particular its OH&S Manager, involved, in part, holding the Second Defendant (ACS) to its contractual obligations as the contract cleaner. In those circumstances, the First Defendant was under a duty to workers in the position of the plaintiff to take reasonable care for his safety. The obligation to take reasonable care in an industrial setting is commonly explained by propositions such as the duty to provide a safe system of work and the duty to provide safe plant and equipment, but each of these modes of analysis of whether reasonable care has been exercised are merely aspects of the same duty, that is one to take reasonable care for the safety of workers in performing their work." 62 As to the existence of the requirements imposed on ACS by the Agreement, as set out earlier and as extensive and stringent as they are, Mr Gross put the simple proposition that they did not materially alter the scope of the duty owed by Westfield. I agree. If Westfield in the circumstances otherwise had a duty of care then I do not see how it could unilaterally contract itself out of obligations imposed by the general common law. Of course, those contractual obligations would form part of the relevant circumstances in which a duty of care came to be considered but not, as Mr Parker seemed to suggest, to deny the existence of a duty of care in Westfield. 63 Further, Mr Gross relied upon certain provisions of the Occupational Health and Safety Regulation 2001 specifically as to risk management at workplaces in Ch 2 and the general duties of controllers of premises in Div 1 of Pt 4.2 in Ch 4. The reliance on such provisions was not as supporting separate counts of breach of statutory duty but rather as showing additional elements of any negligence. That, in my view, is plainly a permissible approach having in mind the comments of the High Court in Leighton Contractors v Fox (at [49]; 687) in terms that "the Regulation, while not founding an action for breach of statutory duty, is central to the Court of Appeal's conclusion that a common law duty existed … [but] it is necessary to exercise caution … because, as Gummow J explained in Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42 at [43]; (2007) 234 CLR 330, 'whatever their scope, all duties of care are to be discharged by the exercise of reasonable care. They do not impose a more stringent or onerous burden'." 64 Mr Gross' submissions on the liability of Westfield to the plaintiff were supported by Mr Catsanos for ACS. 65 It is plain, it seems to me, that the approach by Mr Gross to Westfield's liability depended upon it as the owner of the cage providing the cage to ACS for use as part of the system of work in retrieving the cardboard boxes from retailers, transporting them to the loading dock and the involvement of Westfield in the process of then emptying the cage by placing the boxes in the compactor. In that respect, it was put that thereby Westfield assumed a responsibility to see that the cage was suitable for the purpose and was safe to use. However, beyond providing the cage there was no evidence that connected Westfield to the work system followed in the dock area of unloading the boxes from the cage — that was a system performed exclusively by employees of ACS, like the plaintiff, and subject to oversight by the ACS supervisory team such as the dockmaster, the cleaning supervisor and C1 and C2. It is true, as the Agreement in para 1.1 of Sch 5 stated, that Westfield had the responsibility to co-ordinate the overall activities at the centre but ACS had responsibility for formulating and implementing a safe system of work, including the equipment it utilised, as set out in Cl 14 of and in Sch 5 to the Agreement. 66 There may be no doubt that the accident occurred in the manner described by the plaintiff as he stepped into the cage to unload the boxes and the cage at that time was neither secure nor stable in its position. However, my view is that at that stage of the process the condition of the cage was a matter for ACS to address having in mind how it proposed to unload the boxes. The method of stepping into the cage to do so was something the plaintiff simply followed on being told by ACS supervision what was to be done — I do not see any involvement of Westfield in that as it left it to ACS to perform as part of its contractual obligations. That was a reasonable course to adopt. For instance, it was well open for ACS to provide a rake to pull the boxes from the cage thus avoiding the need to step into the cage and to provide a metal chain or other satisfactory device to attach the cage to the bollard for stability. Up to that point, of course, there was no question the cage provided by Westfield was unsuitable or in some way unsafe as the means to collect the boxes and transport them to the dock area. It was the unloading process itself where the vice was created — as I have said, that process was reasonably within ACS's responsibility and not as involving Westfield. 67 I have to say that the submissions of Mr Gross as to Westfield's involvement in and supervision of the system of work followed were cast far too highly in a situation, on my view of the supporting evidence, where Westfield simply left it to ACS to organise and manage. As Brennan J commented in Stevens v Brobribb Sawmilling (at 47-48): "… The duty to use reasonable care in organising 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 minimise 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 organised 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." (emphasis added). 68 It has long been the settled position that in determining the existence of a duty of care the content is to be identified by reference to the circumstances of the injury: see Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424 at 487 per Brennan J. In the present case, my view is that those circumstances concerned the unloading process itself and as to which it was reasonable for Westfield to have engaged ACS to perform. Once organised and placed in the hands of ACS to operate, Westfield bore no liability for the negligence of ACS in it carrying out its responsibilities under the Agreement. Certainly, I do not consider that any of the guides as to a duty of care in Westfield as formulated by Basten JA in Sydney Water v Abramovic (at [98]) were engaged. 69 After reserving the decision in this matter and having prepared draft reasons, the solicitors for Westfield, with the consent of the other parties, advised me of a decision of the Court of Appeal in Unilever Australia Ltd v Pahi; Swire Cold Storage Pty Ltd v Pahi [2010] NSWCA 149 given on 5 July 2010. The case concerned, as here, the issue of the duty of care owed by a principal to employees of independent contractors and reasoned it by reference to authorities cited in the proceedings before me and repeated in these reasons, particularly that of Leighton Contractors v Fox which affirmed the approach of Brennan J in Stevens v Brodribb Sawmilling and was followed in Pacific Steel v Barahona. As Beazley JA (with whom Allsop P and Giles JA agreed) commented in Unilever v Pahi (at [50]), that in "Leighton v Fox the High Court stressed that the duty of care owed by a principal was not co-extensive with that of an employer". For himself, Allsop P added (at [2]) that the High Court "made it clear that the legal and juridical significance of the place of both the employment relationship and the corporate form is to be maintained in the assessment of the existence of any duty of care in a workplace context — whether complex or simple". In reaching a finding in the present case, I have had those concepts in mind. 70 I conclude that Westfield owed no relevant duty of care to the plaintiff. Breach of duty of care 71 No question of a breach of duty by Westfield can arise because there was no duty in the circumstances as found. 72 As to ACS at the employer, Mr Catsanos, very fairly and properly, acknowledged that it was a tortfeasor. On the evidence, I think the concession made by Mr Catsanos was correct. As I have reasoned earlier, the injury to the plaintiff occurred during the unloading of the cage as he stepped into it to remove the cardboard boxes by hand. Essentially, that system of work adopted by ACS was unsafe and provided a foreseeable risk of injury in that the cage, whether because the dockmaster failed to place the twine loop over the bollard or inadequately did so, was unstable. The particular failures by ACS in this system were not providing a rake to avoid stepping into the cage and in not stabilising the cage as it was being unloaded by some appropriate means — the evidence of both Dr Emerson and Mr Dubos was to this effect and, if I may say so, the risk to safety from such failures was manifest, particularly the use of such a crude device as baling twine to steady a heavy metal cage. Such failures, in my view, were negligent. The consequence for the plaintiff of injury arose directly from such failures by ACS, as the medical evidence showed, and were in breach of its duty of care to the plaintiff. Contributory negligence 73 Although pleaded as a defence, contributory negligence by the plaintiff for what occurred was not pursued. In any case, I see no contributory negligence. The plaintiff was simply following the system of work laid down and using the equipment with which he was provided. At most, the plaintiff may have misjudged his footing as he stepped into the cage, but, as Mason, Wilson and Dawson JJ said in Bankstown Foundry v Braistina (at 310), the question is whether "the conduct [of the plaintiff] amounted to mere inadvertence, inattention or misjudgement or to negligence rendering him responsible in part for the damage." In Fennell v Supervision and Engineering Services Holdings Pty Ltd (1988) 47 SASR 6 at 12, King CJ observed that "misjudgement is not contributory negligence". 74. The defence of contributory negligence is dismissed. Apportionment of liability and contribution 75 As Westfield has been found not liable to the plaintiff then the issue argued of apportionment of liability does not arise. However, in the event my finding on Westfield's liability be wrong then it is desirable to say something about it. 76 Westfield supplied the cage for use by ACS. It was suitable as part of the overall system of work as a receptacle for the boxes and in transporting them to the loading dock area. However, unlike the cages in the other docks which were fixed in position, the subject cage was freestanding while being unloaded on a slightly sloping floor — it did not have brakes on the wheels, there were only three wheels with the single wheel fully rotatable and it had a steel mesh floor. To the extent those features were Westfield's responsibility, but which I have found not to be the cause of what occurred to the plaintiff, then Westfield would have to bear exposure to some apportionment. Against that, ACS never raised with Westfield the unsuitability of the cage and it did not seek any modifications to cure the apparent defects. Also, and most significantly in the circumstances as to the direct cause of the plaintiff's injuries, ACS had the responsibility for the unloading process itself and failed to appropriately stabilise the cage in the dock area and did not provide any means to unload the boxes without the need to step into the cage. 77 I consider, on that analysis, that ACS bore by far the major share for what occurred. Mr Gross and Mr Catsanos suggested apportionment of liability would be 65 per cent for Westfield and 35 per cent for ACS. Mr Parker, of course, said any apportionment for Westfield should be zero but, in any case, senior counsel settled on 10 per cent or perhaps 20 per cent at the most for Westfield. 78 In my view, if apportionment fell to be determined, I would assess 25 per cent for Westfield and 75 per cent for ACS. Damages 79 Before the accident the plaintiff experienced good health but since then his injuries have resulted in a significant change in lifestyle in his personal, family and working situations. He has undergone two major operations to his back with residual problems of a continuing nature. There was no real issue taken as to the serious consequences he has suffered. 80 The plaintiff's work capacity was the major area of dispute but, even then, the parties were not that far apart in their respective assessments. Indeed, very many of the heads of damage were agreed and it only remained for the Court to determine non-economic loss, future economic loss (including superannuation) and future paid domestic assistance. 81 Although strictly unnecessary to assess damages against Westfield in light of the liability finding in its favour, it is appropriate to do so in the event I be wrong in that respect. I will do so. It is to be noted that ACS, unlike its support for the plaintiff on liability, supported the submissions of Westfield on the quantum of damages. 82 Non-economic loss: The plaintiff claimed 35 per cent of a most extreme case; the defendants suggested a figure of 30 per cent. Both figures, in my view, are within the appropriate range. I would assess non-economic loss of 33 per cent of a most extreme case, for which the maximum under s16(2) of the Civil Liability Act is $473,500, that is, an amount of $156,500. 83 Past economic loss: This was agreed in the amount of $124,200. 84 Past superannuation: This was agreed in the amount of $13,662. 85 Fox v Wood element: This was agreed in the amount of $12,000. 86 Future economic loss: It was agreed that the plaintiff's present earnings but for the injury would be $700 per week net. For the plaintiff, a future incapacity to engage in work of 75 per cent was claimed resulting in future wages loss based on $525 per week; for the defendants, a figure of $450 was suggested being a future incapacity of 65 per cent. 87 Consistent with my earlier finding of a work capacity of about one-third, I assess a future wages loss of $500 per week net. That results for this element in an amount of $338,555 ($500 x 796.6 multiplier x 85% for contingencies). 88 Future superannuation: Agreed at 11 per cent of future economic loss, the amount for this element is $37,241. 89 Past medical expenses: This was agreed in the amount of $89,410. 90 Future medical expenses: This was agreed in the amount of $22,000. 91 Future commercial domestic assistance: The plaintiff sought one hour per week at $35 per hour for a life expectancy of 48 years whereas the defendants conceded half an hour each week at $30 per hour calculated to age 75 years being a future period of 38 years. 92 I accept the need for the plaintiff to have commercial domestic assistance in his garden and for lawn mowing of one hour per week. A commercial rate of $30 is not unreasonable. The question is whether it should continue for his expected life or to age 75 years only when, the defendants said, he would need such assistance regardless of the effects of the injuries. I see nothing unusual in this element being allowed for life and there was no suggestion in the medical evidence he otherwise faced a shorter life-span. Certainly, there was no evidence to support the age 75 years theory. 93 That results for this element of loss in an amount of $29,001 ($30 x 966.7 multiplier). 94 Summary of damages against Westfield: The damages assessed against Westfield as the occupier of the centre under the Civil Liability Act are non-economic loss of $156,500; past economic loss of $124,200; past superannuation of $13,662; Fox v Wood element of $12,000; future economic loss of $338,555; future superannuation of $37,241; past medical expenses of $89,410; future medical expenses of $22,000; and future commercial domestic assistance of $29,001. The total amount is $822,569. 95 Summary of damages against ACS: The damages to be allowed against ACS as the employer under s 151G of the Workers Compensation Act are past economic loss of $124,200; past superannuation of $13,662; Fox v Wood element of $12,000; future economic loss of $338,555; and future superannuation of $37,241. The total is $525,658 96 Adjustment of damages against Westfield: Pursuant to s 151Z(2)(c) of the Workers Compensation Act the amount of $822,569 assessed against Westfield is to be statutorily reduced to recognise the apportionment of fault in ACS as the employer for what occurred to the plaintiff. That has been determined at 75 per cent so that the damages against Westfield become a modified amount of $599,886. 97 Workers compensation payback amount: The parties agreed this comprised a total amount of $262,907 made up of $119,372 for weekly payments, $89,410 for medical expenses and $54,125 lump sum benefits to be paid back according to whether, as I said earlier, s 151A(1)(b) or s 151Z(1)(b) applies. Here, in light of my finding in favour of Westfield, s 151A(1)(b) is the applicable provision so that the payback amount is $119,372. Cross-claim by Westfield against ACS and Atlantic 98 Westfield sought indemnity from both ACS and Atlantic against any liability found against it for the plaintiff as to damages and costs. The indemnity from ACS was based on cll 9 and 14.2(b) of the Agreement as referred to earlier in these reasons. As to ACS only, indemnity or contribution was sought as a joint tortfeasor pursuant to s 5(1) of the Law Reform (Miscellaneous Provisions) Act. The claims were resisted. 99 In view of the finding in favour of Westfield that it had no liability to the plaintiff in the absence of a relevant duty of care, the cross-claim for indemnity as to damages does not arise and neither does the claim for contribution. Although those aspects were fully argued, as they involve a question of law only as to the proper construction of the Agreement I do not consider it appropriate, or of any utility, to deal with them. Any view of mine would be advisory only and in the event they require later determination that could readily be done without my consideration of the law. There is no factual issue involved. It need only be mentioned that the argument centred around the key cases of Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500, Leighton Contractors Pty Ltd v Smith [2000] NSWCA 55 and Erect Safe Scaffolding (Australia) Pty Ltd v Sutton [2008] NSWCA 114; (2008) 72 NSWLR 1. 100 However, what does remain of the cross-claim is the question of Westfield being indemnified for any non-recoverable costs and the liability of ACS and Atlantic to do so. Also, the position of Atlantic being liable to so indemnify in any case was an issue. 101 Mr T J Morahan of counsel, for ACS and Atlantic, conceded a liability in ACS under cl 9 of the Agreement to indemnify Westfield for costs if Westfield be found not negligent but provided ACS be found liable to the plaintiff (the position found here). I accept the correctness of this concession. Plainly, in my view, the terms of cl 9, earlier cited, support the concession made. In relevant respects the clause indemnifies Westfield "against all claims, … costs … which … [Westfield] … may suffer or incur in relation to any … personal injury … arising from or out of any act, omission or negligence of [ACS] …". Such an indemnity provision, I am satisfied, is wide enough to cover Westfield's costs incurred in this action either as "claims" or "costs" arising from ACS's negligence: see State of NSW v Tempo Services Ltd [2004] NSWCA 4. 102 It remains to deal with the position of Atlantic. Mr Morahan resisted any liability of it to indemnify Westfield. I have earlier in these reasons outlined the factual context in which Atlantic came to be involved. I will not repeat it. Suffice it to say that Westfield's claim was based on an alleged assignment of the Agreement, pursuant to a request by ACS, from ACS to Atlantic effective 1 July 2008. On 7 July 2008, in an email, Westfield indicated consent to the assignment "subject to receiving indemnities from ACS". The consent was set out in a letter of 8 July 2008 from Westfield addressed to ACS and, importantly, stated "You confirm that in accordance with clause 9 of the Contract, you will indemnify Westfield …". Mr Parker submitted the word "You" referred to both ACS and Atlantic to make both subject to the indemnity, whereas Mr Morahan said it referred to ACS only so as to limit liability to ACS 103 Apart from the letter of 8 July 2008 there was no evidence an actual assignment had been effected and what its terms and conditions were. Mr Parker argued commercial sense dictated that an assignment of the Agreement to Atlantic made Atlantic subject to the cl 9 indemnity. I do not agree. The absence of an assignment itself, in my view, creates real doubt in subjecting Atlantic to such a serious issue of an indemnity and, in particular, where the indemnity was sought to be utilised in relation to events occurring two years before the alleged assignment. No doubt parties could agree to such a position, but, I think, only where it is done expressly so. Here, the available documents are most ambiguous. For instance, the email of 7 July 2008 indicated consent subject to an indemnity from ACS and not, I emphasise, from ACS and Atlantic. Further, the letter of 8 July 2008 in referring to "You" is to be seen where it was addressed to ACS. In any event, of quite some importance in determining this issue is that cl 15.1 of the Agreement permitted assignment, with Westfield's consent, of ACS's "rights and interest under this Agreement" and not, I add, its liabilities; at least arguably, therefore, and certainly without more, the indemnity obligation was not assignable. 104 I find that Westfield's cross-claim against Atlantic must fail in that Atlantic has not been shown to be subject to the cl 9 indemnity. As to ACS, the concession by Mr Morahan should be given effect to make ACS liable to indemnify Westfield against any costs incurred in the proceedings which are not otherwise recoverable by it. Cross-claim by ACS against EML 105 ACS sought indemnity from its workers compensation insurer EML, for whom Mr Catsanos appeared, for any damages payable to the plaintiff under the Workers Compensation Act plus costs. In its defence, EML admitted it was liable to so indemnify ACS. Therefore, ACS should have a verdict against EML on the cross-claim; costs of the cross-claim are yet to be argued. 106 The relief sought in the cross-claim for indemnity against any contribution payable by ACS to Westfield pursuant to the Law Reform (Miscellaneous Provisions) Act does not arise in view of Westfield's avoidance of liability to the plaintiff. Conclusions 107 For the foregoing reasons, I reach the following conclusions — (1) The plaintiff is entitled to a verdict against ACS on the claim in the amount of $525,658. (2) Westfield is entitled to a verdict against the plaintiff on the claim. (3) Westfield is entitled to a verdict against ACS on the first cross-claim for indemnity against any loss of costs incurred in defending the plaintiff's action against it; otherwise as against ACS the first cross-claim is to be dismissed. (4) Atlantic is entitled to a verdict against Westfield on the first cross-claim. (5) ACS is entitled to a verdict against EML on the second cross-claim for indemnity against the damages and any costs payable to the plaintiff on his claim; otherwise the second cross-claim is to be dismissed. (6) As presently advised, but subject to the parties being heard, there seems to be no reason why costs of the proceedings should not follow the respective events. (7) Note that the workers compensation payback amount is $119,372. Order 108 The parties are directed to confer on the form of orders to give effect to this decision, including as to interest and costs, and to bring into court short minutes of order at a time to be arranged. Final Order and Costs 109 Make orders in accordance with the following terms — (1) Judgment for the Plaintiff against the Second Defendant in the amount of $525,658. (2) As between the Plaintiff and the Second Defendant, each party is to bear their own costs of the Plaintiff's claim. (3) Judgment in favour of the First Defendant against the Plaintiff (4) Plaintiff to pay the First Defendant's costs. (5) On the first Cross-Claim: (a) Pursuant to its contractual liability the Second Defendant/First Cross-Defendant to the First Cross-Claim to indemnify the First Defendant/Cross Claimant in respect of any costs incurred by the First Defendant/Cross-Claimant in defending the Plaintiff's action against it. (b) Otherwise the First Cross-Claim is dismissed against the Second Defendant/First Cross-Defendant to the First Cross-Claim. (c) Judgment in favour of the Second Cross-Defendant to the First Cross-Claim against the First Defendant/Cross-Claimant. (d) The Second Defendant/First Cross-Defendant to the First Cross-Claim to pay the First Defendant/Cross-Claimant's costs of the First Cross-Claim so far as these costs relate to the claim for contractual indemnity. (6) On the Second Cross-Claim: (a) The Cross-Defendant to the Second Cross-Claim to indemnify the Second Defendant/Cross-Claimant in respect of any damages and costs payable to the Plaintiff by the Second Defendant/Cross-Claimant. (b) Otherwise the Second Cross-Claim is dismissed. (c) No order as to costs on the Second Cross-Claim. (7) Noted workers compensation payback at the date of trial was $119,372 with payments continuing. 04/08/2010 - Typographical error in Catchwords. - Paragraph(s) 4 16/08/2010 - Final Short Minutes of Orders entered. - Paragraph(s) Paragraph(s) 109 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.