Appeal Outcome: Special leave refused with costs by the High Court - 14 December 2007 New South Wales Court of Appeal CITATION: J Blackwood & Son Steel & Metals Pty Ltd v Nichols & Anor [2007] NSWCA 157 HEARING DATE(S): 12 June 2007 JUDGMENT DATE: 4 July 2007 JUDGMENT OF: Mason P at 1; Tobias JA at 2; Handley AJA at 92 DECISION: (a) Appeal allowed; (b) Set aside the judgment in favour of the first respondent against the appellant entered by Acting Judge McGrowdie on 19 September 2006 and in lieu thereof enter judgment for the appellant against the first respondent; (c) Set aside the judgment entered by Acting Judge McGrowdie on 19 September 2006 in favour of the appellant against the second respondent on the appellant's cross-claim and in lieu thereof order that that cross-claim be dismissed with costs; (d) The first respondent to pay the appellant's costs of the proceedings in the District Court and of the appeal against the judgment in favour of the first respondent but with respect to the latter to have a certificate under the Suitor's Fund Act, 1951 if otherwise qualified; (e) The appellant to pay the second respondent's costs of the appeal CATCHWORDS: NEGLIGENCE - Duty of Care - Liability of principal for employee of contractor - Failure to provide a safe system of work - Where manner of performing a task left to the contractor - Safe access to place of work - meaning of "place of work" - Occupational Health & Safety Regulation 2001 cl 39 LEGISLATION CITED: Law Reform (Miscellaneous Provisions) Act 1946 Occupational Health & Safety Regulation 2001 Australian Iron & Steel Pty Ltd v Luna (1969) 123 CLR 305 Electric Power Transmission Pty Ltd v Cuiuli (1961) 104 CLR 177 Humberstone v Northern Timber Mills (1949) 79 CLR 389 ICI ANZ v Murphy (1973) 47 ALJR 122 National Transport Insurance Ltd v Chalker [2005] NSWCA 62 CASES CITED: Pack-Tainers Pty Ltd v Moore [2005] NSWCA 43 Rockdale Beef Pty Ltd v Carey [2003] NSWCA 132 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234 TNT Australia Pty Ltd v Christie [2003] NSWCA 47; (2003) 65 NSWLR 1 Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 J Blackwood & Son Steel & mwetals Pty Ltd t/as Horans Steel PARTIES: Jon Leslie Nichols D&R Boyle Enterprise Pty Ltd FILE NUMBER(S): CA 40649/06 A: S G Campbell SC / D A Priestley COUNSEL: 1R: M Williams SC / T McKenzie / D B Beukes 2R: L King SC / M Snell A: Wotton & Kearney, Sydney SOLICITORS: 1R: J A O'Brien & Co, East Maitland 2R: Goldbergs, Sydney LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 10/05 LOWER COURT JUDICIAL OFFICER: McGrowdie DCJ LOWER COURT DATE OF DECISION: 19 September 2006 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40649/06 DC 10/05 MASON P TOBIAS JA HANDLEY AJA Wednesday 4 July 2007 J BLACKWOOD & SON STEEL & METALS PTY LTD t/as HORANS STEEL v JON LESLIE NICHOLS & ANOR Judgment 1 MASON P: I agree with Tobias JA. 2 TOBIAS JA: At the time of the accident which led to the present litigation Jon Leslie Nichols, the first respondent, was an experienced driver of prime movers and trailers and had been employed in that capacity by DNR Boyle Enterprise Pty Ltd, the second respondent, for some six years. 3 On 15 April 2002 the first respondent was standing on a load of steel on his trailer in order to tighten a chain lashed across the trailer from one side of his load to the other by using a device known as a "fixed level chain load binder" (called a "dog"). When the load moved under his feet, he lost his balance and fell, sustaining serious injuries. 4 The accident occurred at the premises of J Blackwood & Sons Steel & Metals Pty Ltd t/as Horans Steel (the appellant) with whom the second respondent had entered into a contract to provide a prime mover, trailer and driver for the purpose of transporting and delivering the appellant's steel products to its customers between its Carrington yard in Newcastle and its Wetherill Park yard in Sydney. In this respect, the first respondent was engaged in such work on behalf of the appellant for the whole of the six years that he had been employed by the second respondent before the accident. 5 After sustaining his injuries, the first respondent received workers compensation payments from the second respondent's workers compensation insurer. It appears that he elected not to claim personal injury damages from his employer but only from the appellant upon whose premises he was injured. 6 Accordingly, on 16 March 2005 he commenced proceedings in the District Court by way of Ordinary Statement of Claim seeking damages from the appellant. He alleged that in the course of loading the trailer he was required to stand on top of the load to tighten the chains used for securing the load and that in the course of doing this, the chain slipped and loosened resulting in the load moving thereby causing him to lose his balance and fall to the ground. He alleged that the appellant was negligent in some 12 respects – of which, at least on the hearing of the appeal, the only allegation pursued was the alleged failure of the appellant to provide him with an alternative work platform so that he was not required to stand on top of the load while tensioning the chains. 7 The proceedings were heard by Acting Judge McGrowdie who on 19 September 2006 concluded that the appellant owed the first respondent a duty of care to take reasonable steps to provide him with a safe system of work upon its premises and that it had failed to do so knowing that there existed a risk of injury to the first respondent as in fact had materialised. His Honour assessed damages and entered judgment for the first respondent against the appellant in the sum of $510,571. 8 The appellant had pleaded contributory negligence on the part of the first respondent, but his Honour declined to find that he had negligently contributed to his injuries. 9 The appellant cross-claimed against the second respondent in its capacity as the first respondent's employer claiming contribution pursuant to s 5(1) of the Law Reform (Miscellaneous Provisions) Act 1946. The primary judge concluded that the second respondent had also failed in its duty of care to the first respondent as a consequence whereof the appellant was entitled to succeed on its cross-claim. He assessed the second respondent's contribution at 20%. 10 The appellant appeals to this Court against the primary judge's finding that it owed the first respondent a duty of care or, if it did, that it had breached that duty or, if it had, that the breach was causative of the first respondent's injuries. It also appeals against the primary judge's rejection of its claim that the first respondent was guilty of contributory negligence and against his Honour' assessment of the second respondent's liability to contribute to the first respondent's damages at only 20%. During the course of the hearing the first respondent was granted leave to file a notice of contention alleging that the appellant's liability to him should be upheld upon the ground that his Honour should have found as a particular of negligence that the appellant, as controller of the relevant premises, had failed to ensure that safe access was provided to all parts of the place of work to which the first respondent required access and from which he might fall, thereby breaching cl 39(a) of the Occupational Health & Safety Regulation 2001 (the Regulation). The relevant facts 11 The first respondent was, as I have indicated, a driver employed by the second respondent engaged in loading and unloading steel products manufactured by the appellant. Five days per week he would drive his prime mover and trailer to the appellant's Newcastle yard, load his trailer with steel and then drive to Sydney making deliveries on the way, arriving with an empty trailer at the appellant's Sydney yard. Whenever the first respondent stopped to unload at the premises of one of the appellant's customers, he would unchain the load, unload the required product and then rechain the remaining load (unless it was the last load). 12 On arriving at the appellant's Sydney yard the first respondent would attend the office where he would be directed by the appellant's afternoon shift supervisor, Mr George Goodridge, to drive his rig to a marked bay in the warehouse for the purpose of loading up. Once at the appropriate bay, a load of steel would be slung by chain or lifted by forklift onto the first respondent's trailer. This would be performed at the direction of the storeman employed by the appellant to whom the first respondent would defer, although he did become involved in the loading process indicating where the load should be placed upon his trailer. 13 The steel products that constituted a load comprised steel plates, channels, angles, pipes and sheets. Plates were loaded first. Different groups of steel products such as angles were tied together with wire before they were loaded on to the trailer. Timber dunnage, carried by the first respondent on his trailer, was placed between different bundles of steel. When fully loaded the first respondent would chain down the load. He would use up to eight chains for this purpose. The end of each chain had a cleat that was fixed to the gunwale on each side of the trailer. After being fixed it was necessary to tighten the chain using a dog (which involved a ratcheting process) thereby securing the load. 14 Importantly, after anchoring the chain to the gunwale on each side of the trailer and then pulling any slack in the chain down onto one side, the first respondent would then (to use his own words) "I've got up there, put my dog in the middle and pulled the load. That way the load goes in the middle." 15 It was accepted that what the first respondent intended to convey by that evidence was that the reason he tensioned the chain from the middle of the load was so that the centre of gravity of the load would then be positioned in the middle of the trailer. 16 On the day of the accident steel plates had been loaded first on to the trailer by the appellant's storeman. He then deposited other steel products on the top of the steel plates. The top of the load stood approximately two feet above the trailer's tray, the tray of the trailer itself standing approximately four feet off the ground. 17 The first respondent gave evidence that he then took some eight chains, threw them from the left side to the right side of the trailer; hooked them all around the gunwale on one side of the trailer and then went around to the other side and hooked them around the gunwale on that side. He then climbed onto the rear of the trailer via a fixed set of steps welded to the trailer itself, then proceeded to the top of the load where he put his dogs on and commenced to tighten them up. Whilst he was tightening one of the dogs, the steel moved under his feet. This required him to re-tighten the dogs. Whilst carrying out that activity, the load moved again, causing him to lose his balance and fall off the trailer and onto the ground. 18 The first respondent's evidence as accepted by the primary judge, was that neither a representative of the appellant nor the second respondent had ever informed him that it was unsafe to place his dogs on the chains whilst standing on top of his load. This was so notwithstanding that over the years he had, whilst standing on previous loads and trying to secure them by pulling down on the dog, occasionally slipped as a result of the steel shifting under his feet resulting in the chain becoming loose which would then need re-tightening. However, on these occasions he had not sustained any injury. 19 Although there was evidence from the appellant's Operations Manager, Mr Edmonds, that there was a stepladder and an access platform on site and that assistance was available to the first respondent if he required it, the latter indicated that he had been unaware of their availability. Furthermore, on the many occasions when Mr Goodridge had been present when he was tying down his load, he had never said anything to the first respondent concerning the safety or otherwise of his standing on the top of the load for the purpose of tightening or tensioning the chains. 20 When asked whether he would be able to secure the chains using the dogs by standing on the ground alongside the trailer if his load was only six inches high, the first respondent answered: "You probably could if you had something to stand on." 21 After indicating that depending on the size of the load, he would use up to eight chains to secure it, he was asked in chief the following: "Q. And to what extent could you secure the load with the chains whilst standing alongside the trailer on the ground? A. Well I couldn't see if they were tight or not unless I manually jammed them together with a piece of pipe." 22 Later in his evidence in chief, the following exchange occurred: "Q. Was it possible on this day that you can recall to have tightened the load while standing alongside the trailer, that is on the ground level? A. I never, no. … Q. Standing on the load. What I asked you was, to do that tightening procedure on this particular day, could you have done it simply by standing alongside the trailer without having to get up on the trailer? A. No." The witness was not asked to explain why this was so; nor was his answer the subject of challenge in cross-examination. 23 Subsequently in his examination in chief, the first respondent agreed that had he known about the availability of a stepladder or a platform he would have used it. The following exchange then occurred: "Q. But how would you have used a stepladder to do what you had to do? A. Well, it would have given me more height to pull the chain over, the pull the dog over. … Q. As far as the stepladder or any sort of platform is concerned, that would be something that would be positioned alongside the truck? A. Yes. … Q. Just dealing with that, when you say 'if you were high enough' how would that help you? A. I wouldn't have to stand on my load to pull the dog down." 24 In cross-examination on behalf of the appellant, the first respondent agreed that over the years he had performed the task of chaining and unchaining a load thousands of time whilst employed by the second respondent. He was then asked whether he thought it would have been a good idea to have a stepladder to which he responded "A. I don't – I wouldn't feel safe on a stepladder I don't think. Q. If you were on top of a stepladder trying to tighten the dogs on a chain using a cheater pipe and the cheater pipe slipped, you would be likely to fall off the ladder, wouldn't you? A. Yes." 25 In re-examination he was asked why he would have "fallen anyway" to which he responded "A. If it wasn't a steady ladder or someone there holding it I would have fell. Q. Alright. Well, can I ask you this question? If the stepladder was position alongside the truck so that it was stable, that is either, footed so that it couldn't move or someone was holding it, someone from Boyle's was holding it so that the chain moved but the stepladder didn't move, would you have fallen? A. No." 26 When cross-examined on behalf of the second respondent, the appellant agreed that he had had 20 plus years experience in the industry and that he presented himself as a worker who was able to cope with the day-to-day activities of a truck driver and to make decisions about what had to be done. The following exchange then took place: "Q. …and one of those decisions that was part of your day to day work was how to lash down or chain loads, correct? A. Yes. Q. Sir, you didn't need someone to tell you that if you were standing on top of the load, and the load moved that it was possible that you could fall off it, did you? A. No, not really, no. Q. It was pretty obvious. A. Yes. Q. Yes. And you've known that, probably forever, ever since you first worked as a truck driver. A. There's always a chance, isn't there?" Mr Edmonds' evidence 27 Mr Edmonds was the appellant's Operations Manager. He gave evidence that at the time of the first respondent's accident, the appellant had its own team of employed drivers which were supplemented, in the case of absenteeism by their own driver employees, by contract drivers engaged through labour hire companies. Probably about 5% of their transportation team comprised truck hire companies such as the second respondent. However, in terms of the loading of steel products there was no difference in the way that that exercise was performed by the drivers employed by the second respondent and those employed by the appellant. 28 Having said that he had observed the appellant's storeman lifting steel products onto the trailers attached to prime movers on many occasions, Mr Edmonds then gave evidence that the connection between the driver of the prime mover that had been loaded and the storeman who had loaded the products discontinued at that point. In answer to the question as to "what if anything he had observed the drivers to do after the storeman had loaded the trailer", he replied: "The driver's then restrained – would then restrain the load with a dog or a load binder typically called, chain or sling." 29 Having said that he was responsible for what the appellant's employees did on site and that he watched and took an interest in what they did, Mr Edmonds was asked the following: "Q. And were you interested if they were doing something they should not be doing as far as you were concerned? A. Definitely. Q. Were you interested if they were doing something that they should be doing as far as you were concerned? A. Definitely. Q. And would you take action if you thought that they were doing something that they should not be doing? A. I would. Q. Where was the source of your understanding of what they should or should not be doing? A. It's common industry practice." 30 Although there was a great deal of argument associated with the issue, Mr Edmonds was not asked whether he had observed the appellant's own drivers securing their loads by standing on top of them and using dogs on the chains. Subject to one matter, the evidence is silent as to how those drivers carried out that exercise: that matter concerns Exhibit E which was referred to by Mr Edmonds as the appellant's Policies of Procedure Manual and, in particular, a section headed "Loading/Unloading And Load Restraint Guideline – Practices" which was distributed to the appellant's employee drivers and which, in its "Introduction" stated its purpose to be "to document and describe the safest way for Blackwood Horans Steel Delivery Driver to transport, load/unload and securely restrain steel products". 31 Under the heading "Lashing Practices" and the subheading "Chain Systems", the following relevantly appears: "● Wherever possible, load binders should be fitted while standing on the ground. This is to avoid climbing on the load and allows better control while locking down the load binder." 32 Under the heading "Loading/Unloading Practices", the reader is requested to refer to "BHP Transport Safety Guideline – Loading & Unloading of Trucks". 33 The BHP document was in evidence as Exhibit F, Mr Edmonds indicating that BHP was the market leader in steel manufacturing and distribution and that the appellant had adopted the principles outlined in BHP's guidelines to support the loading and unloading restraint practices performed by the appellant's drivers. Under the heading "Falling off Trucks" the following appears in that exhibit: "Be aware that every time you are up on the tray of the truck you are at risk of a fall. Falls off trucks are one of the greatest sources of truck driver injuries. The key issues are: · Avoid being up on the trailer if possible. … · Don't climb up without a safe way of getting down. · Use mobile stairs if available, or · Use truck mounted ladders if fitted." [such a ladder was fitted in the case of the first respondent's vehicle] 34 Further down the page the following also appears: "Dog down chains from ground level wherever possible or standing at the centre of the trailer if necessary, but never whilst standing near the trailer's edge." 35 Exhibit F also contains a section headed "Transport Safety Guidelines Fixed Level Chain Load Binders ("Dogs"). Page 1 of this document has a photograph of a worker standing on the ground purporting to tension a chain with the use of a dog, the dog being attached to the chain just above the tray of the trailer. On page 2 there is a similar photograph next to which is the following text: "2. Stand on the Ground NOT on the Load. · Falling over (and off the truck) is one of the most common accidents when tightening binders ('dogs'). Position the binder so it can be tightened while standing on the ground. · If you absolutely must stand on the load (eg. Steel plate), stand near the centre of the truck and arrange the dog so that if you slip, you don't fall off the trailer. …" 36 Mr Edmonds gave evidence that as far as he was aware these documents were not provided to drivers of trucks belonging to subcontractor transport companies such as the second respondent. However, in the course of his cross-examination he agreed that there was a stepladder or access platform available on site for use by the first respondent although he was unaware of whether or not it had been made available to him. He agreed that after the storeman had deposited the load on the trailer it was then up to the driver to restrain the load and to lash it down with chains and dogs. 37 When asked whether he had given any instructions to the appellant's own drivers as to their responsibilities in connection with the restraining and securing of a load after the steel had been placed on their trailers, Mr Edmonds responded that he had arranged for instructions as per the guidelines for loading and unloading procedures and practices, namely Exhibits E and F, to be given to them. However, he also agreed that no such instructions had been given to the drivers of contractor vehicles. 38 As I have already indicated, Mr Edmonds was never asked whether he had observed the appellant's own drivers securing their load other than by standing on top of it. In other words, the evidence is silent as to whether or not those drivers only ever secured their loads with dogs from the ground. Nor was he asked whether he had ever observed drivers such as the first respondent, securing their load contrary to the BHP Guidelines (Exhibit F) and, if so, whether he had done anything about it. The primary judge's reasoning 39 The primary judge noted the appellant's submission that it did not breach any duty of care that it owed to the first respondent as it did not exercise control over the manner in which the he secured his load. Accordingly, whatever system of work the appellant had in place, it did not extend to the securing of loads by contract drivers that came onto its premises with trucks that did not belong to it. 40 Although his Honour considered that it might be concluded that the first respondent was carrying out independent functions as a contractor, Exhibit F made it clear that the function exercised by the first respondent in securing his load was no different from that of a driver directly employed by the appellant. He thus concluded that there was no difference in the work performed by the first respondent and that performed by the appellant's employed drivers or by drivers hired by it. 41 After referring to Mr Edmonds' evidence that an access platform could have been made available to the first respondent which would have given him more height to pull the dog over so that he would not have had to stand on the load for that purpose and to the first respondent's evidence that if he had something stable to stand on he would not have had to stand on his load, his Honour concluded that had the appellant had in place a system whereby all drivers, including drivers such as the first respondent, were given adequate instruction and provided with a means to secure loads without standing on them, the accident could have been avoided. As it was, his Honour said, the first respondent was given little choice about how to perform that task. 42 As the risk of injury to the first respondent was "readily identifiable" and was a practice which the appellant was in a position to observe on a daily basis (being one admonished in its own safety procedures documentation), the appellant was in a position to control the loading procedures on its site even where drivers such as the first respondent were involved. He said: "The defendant was in a position to control the loading procedures on its site even where drivers such as the plaintiff were involved. The control exercised by the defendant is demonstrated by the defendant directing drivers to the bay or area where the loading was to take place and thereby govern the physical environment in which the loading was to take place. It exercised control over what products were loaded, how they were loaded, in what order they were loaded and, in conjunction with the driver, the placement of the load on the trailer. The fact storemen were directed by the defendant not to secure loads is not particularly relevant to the question of control or absence of control exercised over drivers such as the plaintiff as the direction applied equally to all loads including loads being delivered by drivers directly employed by the defendant in its own trucks. It was the defendant that effectively devised and controlled the operation of dispatching its products from the site for delivery to its customers and it was the defendant's duty to take reasonable steps to conduct this operation safely so as to avoid or minimise the risk of injury. A[t] issue of course is whether this duty was one that the defendant owed to the plaintiff." 43 Accordingly, as the appellant effectively devised and controlled the operation of despatching its products for delivery to its customers, it was therefore under a duty to take reasonable care to conduct this operation safely so as to minimise the risk of injury. 44 The primary judge then referred to a passage from the judgment of Mason J in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 31 cited by Santow JA in Pack-Tainers Pty Ltd v Moore [2005] NSWCA 43. His Honour observed that in Moore the relevant contractor was a highly skilled person doing a solo task and, therefore, did not fall within the principle expounded by Mason J with which the other members of the High Court agreed, in the following passage: "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 is not effected by its inability to direct the contractors as to how they should operate their machines." 45 The primary judge considered that the present case was very different to that in Moore notwithstanding, apparently, that the first respondent was highly experienced in securing his load. His Honour also distinguished the decision of this Court in TNT Australia Pty Ltd v Christie [2003] NSWCA 47; (2003) 65 NSWLR 1 where a worker was assigned by a labour hire company for whom he worked to a brewery operated by TNT. The worker was injured while using a pallet-jack that malfunctioned. It was held that the worker was in a position analogous to an employee of TNT giving rise to a non-delegable duty of care. The plaintiff held TNT negligent in not taking reasonable steps to ensure that the pallet-jack provided by it to the plaintiff was in good order and condition and for failing to implement training procedures for its safe use. In so finding, this Court applied the principle expounded by Mason J in Stevens to which I have referred in the preceding paragraph. 46 In Christie Mason P (at 9 [41] and 10 [43]) concluded that on the facts of that case TNT had assumed employer-like responsibilities to the plaintiff, a relatively unskilled labourer, over whom it had exercised day-to-day control over his work activities. In particular it had the responsibility of taking appropriate steps to provide the plaintiff with reasonably safe working equipment, namely, the pallet-jack. 47 Notwithstanding the obvious factual differences between the present case on the one hand and Stevens and Christie on the other, the primary judge held that the first respondent was required as part of his duties to comply with the system of work provided by the appellant. He said: "In the circumstances, the [first respondent] was not really in a position to determine how he was to perform the task of securing his load. The [appellant] did not effectively implement a system for him to do it any other way. …Nor was the [appellant] forthcoming with equipment in the nature of a stable, mobile platform or stable ladder to enable the lashing down otherwise than by standing on the load. That is, the [first respondent] was given no real alternative other than to adopt the unsafe practice that he did." 48 His Honour then acknowledged that the first respondent was possessed of considerable experience in securing loads on trucks and that he had done so in the same way for many years. Notwithstanding that that fact suggested that the first respondent was possessed of expertise in determining the appropriate method of securing his load, according to his Honour he was really given little choice about how to do so. He had never been given instructions as to how to do it any other way and his education was such that he had not had the opportunity of independently accruing knowledge of developments in safety standards and practices of which the appellant had knowledge. His Honour was thus satisfied that the first respondent would have complied with all reasonable requests made or directions given by the appellant and would have undertaken suitable retraining if he had been instructed to do so. His Honour continued: "It was within the means of the [appellant] to have provided an alternative system of work for the securing of loads by the [first respondent] by providing him with instruction regarding the use for instance of the stable platform to stand on and informing the [first respondent] that such was available so that the dangerous practice of standing on the load, particularly one that might be unstable, could be avoided. I am satisfied that in this regard the [first respondent] has discharged the onus of nominating the existence of a practical alternative." 49 The primary judge thus concluded that the appellant owed a duty of care to the first respondent which it had breached. The submissions on the appeal: did the primary judge err? 50 The first respondent eschewed any reliance upon the decision of the High Court in Stevens. Rather, it submitted that the present case was similar to Christie in that the appellant had daily control over the first respondent's activities. Some 16 so-called indicia of control were identified by the first respondent including control over when and where the first respondent's truck would be allowed into the warehouse, where it would be loaded with steel products, provision of timber dunnage from time to time upon which the load was deposited, control over the product to be loaded upon the first respondent's trailer and the availability of a stepladder and access platform to enable the first respondent to secure the load without standing upon it. 51 On the other hand, the appellant submitted that the only direct control exercised by it was in the placing of the steel products upon the trailer to the prime mover. Thereafter the securing of the load was left in the hands of the first respondent. The present was not a case, such as was Christie, of the appellant providing the first respondent with faulty equipment or otherwise actively providing a system of work which was unsafe but which the first respondent was directed to follow. 52 As I have indicated, the duty of care held to be owed by TNT in Christie was directly based upon the principle expounded by Mason J in Stevens. In the present case, the first respondent expressly eschewed any such reliance submitting that no allegation was made that the appellant was some sort of de facto employer of the first respondent. This concession was properly made as, unlike TNT, the appellant had not exercised daily control over the relevant work activities of the first respondent, namely, the securing of his load; nor had it placed itself in a relationship, day in and day out, indistinguishable from that of employee and employer. 53 Nevertheless, the first respondent submitted that the evidence suggested that it was open to the appellant to direct or instruct the first respondent as to the method he should adopt in securing the load with the dogs and if it had done so the first respondent would have complied with the direction and the accident would have been avoided. 54 Accordingly, it was submitted that in the circumstances there was not only a relationship between the appellant and the first respondent giving rise to a duty of care analogous to that of an employer, but there was also a flagrant breach of that duty leading to the first respondent's injuries. The latter was simply left in a position where he had no knowledge of the recommended safe method of tensioning the chains with the dog or the availability of the appropriate equipment to perform the work safely although it was in the appellant's power to provide both. 55 As the accident occurred on the appellant's premises and as it obviously had control of its own premises, it had a duty to ensure that any work performed by the first respondent on behalf of the appellant should be carried out in a safe manner. 56 The appellant relied upon the following passage from the judgment of Brennan J in Stevens (at [47[) who expressed general agreement with the reasons of Mason J but added, relevantly, the following: "…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." 57 It was submitted that no question of confusion arose in the present case as to the respective areas of responsibility of the appellant on the one hand or the first respondent on the other in terms of the securing of his load. There was no reason for the appellant to exercise some form of supervision over that activity of the first respondent. It was accepted that he was a highly experienced driver who knew how to secure his load with the use of dogs. The present was a case where the appellant could not be liable for injury due to the negligent failure of the first respondent to follow a safe system of work. It was not to the point, so it was submitted, that the first respondent was unaware of the existence of a stepladder or access platform, which might have enabled him to carry out the task of securing his load without standing on top of it. 58 Reference was made to the remarks of Dixon J in Humberstone v Northern Timber Mills (1949) 79 CLR 389 at 404-405, referred to by Mason P in National Transport Insurance Ltd v Chalker [2005] NSWCA 62 at [54] where Dixon J said: "The question is not whether in practice the work was in fact done subject to a direction and control exercised by an actual supervision or whether an actual supervision was possible but whether ultimate authority over the man in the performance of his work resided in the employer that he was subject to the latter's order and directions." 59 It was submitted that in carrying out the particular task of securing his load, the first respondent was not subject to the appellant's supervision or direction. It owed no duty to the first respondent to take reasonable steps to ensure that he carried out the task of securing his load in a manner that would not give rise to a risk of injury to him. 60 Further reliance was placed upon the following passages from the judgment of Mason P in Chalker: "62 The common law nevertheless remains wedded to the neighbour principle embodied in the concept of a duty of care where personal safety is involved, particularly in situations where one party has significant 'control' of a place or enterprise. Many workplace relationships are of this nature. Cases such as Stevens , Christie and Emoleum show the Court giving due acknowledgement to the formal relationships or non-relationships, but nevertheless recognising that (in matters relevant to the imposition of a duty of care) the parties may have so conducted themselves that it remains just to impose a duty of care, at least one whose scope is nuanced to the areas where the defendant truly has some measure of 'control'. In these situations, the common law looks to the substance and not the form of the relationship. If that relationship, though formally distanced from employment, is nevertheless analogous to it in its pith and effect, then it may be just for an analogous duty of care to be recognised. 63. The evidence as to Andrews' minimal instruction in loading techniques bears two faces. The appellant sought to rely upon it as a badge of negligence, assuming a relevant duty of care had been found. Andrews would see it as confirmation of both Chalker's status as an independent contractor as well as some evidence that loading and unloading were seen in the industry as basic tasks that required little or no instruction to otherwise experienced owner drivers." 61 It was submitted in the present case that the appellant did not truly have any measure of "control" over the manner in which the first respondent secured his load and that, accordingly, the relationship between them was not analogous "in its pith and effect" to the relationship of employment. Reliance was placed upon the conclusion of Mason P in Chalker (at [67]) that it was not negligent for Andrews not to have instructed Chalker to be careful when using wet gloves when releasing the tension on the chain securing the load on his truck. His Honour considered that it had not been demonstrated that the sort of technique involved called forth a need for particular instruction. He considered that in the particular industry, namely the loading and unloading of a truck, the techniques employed should be regarded as being the equivalent of climbing a ladder (as in Van der Sluice v Display Craft Pty Ltd [2002] NSWCA 204) or using a tomahawk (as in Electric Power Transmission Pty Ltd v Cuiuli (1961) 104 CLR 177). 62 As in Chalker at [48], so in the present, the appellant submitted that the task of tensioning the chains using a dog was so obviously part of the mental equipment of an experienced driver such as the first respondent as to mean that it was not unreasonable for the appellant, being the person in control of the enterprise, to leave the first respondent to his or her own uninstructed devices. It will be appreciated that in this context the fact that the appellant may have been aware that the method of tightening the chains exposed the first respondent to the risk of the load moving thereby causing him to lose his balance and fall, is not to the point. That would only be relevant if in fact the appellant owed the first respondent a non-delegable duty of care akin to that owed by an employer to its employee. In my opinion it did not. 63 This is because the appellant neither exercised nor purported to exercise any degree of control over the performance of the first respondent of the task of securing his load including the tensioning of the chains by using a dog. Although the first respondent pointed to some 16 indicia of control being exercised by the appellant with respect to the first respondent's movements within its premises, none related to the work of securing his load. That was left to, and was in effect, regarded by Mr Edmonds as being the responsibility of, the first respondent. Thus, when asked whether he gave any instructions to the appellant's storeman as to the role they should take in the securing of the loads after they had loaded the steel onto the trailers, he replied, "They're told not to secure the load". He further said that he did not arrange for any instructions to be given to the drivers of contractor's vehicles with regard to the securing of their loads. 64 This lack of any control, let alone day-to-day control, over the task of securing the loads of the drivers of contractor vehicles takes the present case not only outside of the principle expounded in Christie, but also of that articulated by Mason P in Chalker at [62]. This being so, the primary judge's finding that the appellant "was in a position to control the loading procedures on its site even where drivers such as the [first respondent] were involved" could not rise to a non-delegable duty of care or, for that matter, any duty of care with respect to the securing of the first respondent's load. The fact that it "was in a position" to do so is irrelevant absent an actual exercise of control by the appellant over that activity by the giving of information and directions or in some other way. However, it was not under a duty to exercise any such control over the undertaking by the first respondent as an independent contractor of the task of securing his load: cf: ICI ANZ v Murphy (1973) 47 ALJR 122 at 125, 129. 65 The first respondent also relied upon the following passage from the judgment of Ipp JA, with whom Mason P and McColl JA agreed, in Rockdale Beef Pty Ltd v Carey [2003] NSWCA 132 where at [91] his Honour observed: "A defendant's control over the conduct that gives rise to the risk, a defendant's knowledge of the risk, and the relevant inability of plaintiffs to protect themselves are also important factors in determining whether a duty of care arises." 66 The difficulty with the first respondent's reliance upon this statement of principle is that the appellant did not relevantly have control over the conduct of the first respondent that gave rise to the risk of the load moving so that he lost his balance and fell. It does not follow from the respondent's knowledge of such a risk that it had control over the first respondent's conduct which gave rise to it. 67 Furthermore, it is difficult to appreciate that the first respondent was under some form of disability, let alone inability, to protect himself from that risk. After all, he was fully aware of it and considered it obvious: see [26] above. The fact that he was unaware of the availability of a ladder or platform from which he might be able to carry out the task did not constitute either a disability or inability on his part. 68 Finally, the first respondent relied upon passages from the joint judgment of Gleeson CJ, McHugh, Kirby, Hayne and Heydon JJ in Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234. In that case a contractor engaged to deliver bread to a Woolworths supermarket injured her back whilst attempting to move heavy industrial waste bins obstructing the access to the supermarket's delivery bay for the truck she was driving. It was the task of the supermarket staff to move the bins but the supermarket operator was aware that many delivery drivers moved the bins themselves to save time and of the consequent risk of injury to those drivers. The injured driver sued the supermarket operator in negligence. It was held that as the delivery driver was a permitted entrant to premises in the occupation of Woolworths, the latter owed her a duty to do what was reasonable to avoid the risk of injury to her in attempting to remove the bins unassisted. 69 The principled basis of this finding is clear. Because Woolworths required the driver to conform to a delivery system, its obligation to exercise reasonable care for the safety of those delivering goods to its delivery bay who for that purpose came onto its premises extended to ensuring that that system did not expose those who made such deliveries to an unreasonable risk of physical injury. As the driver was required to unload at a designated place and as Woolworths had established the system to which she was required to conform, its duty of care covered not only the static condition of the premises but also the system of delivery. 70 At 244 [26] their Honours said: "26. Some aspects of what went on were within the independent discretion of the appellant. She was not the respondent's employee. Within a fairly narrow timeframe, she could choose when she made her deliveries. She could choose what kind of delivery vehicle suited her purpose. Decisions about the management of the vehicle, and the method of unloading, were largely left to her." 71 However, a number of aspects of Woolworth's procedures for delivery of goods into its store involved issues of health and safety. Many, perhaps most, of the drivers who made the actual deliveries were outside its organisation and were not subject to the direct control it exerted over its employees. Even so, they were regular visitors to the premises for a mutual commercial purpose and it was reasonable to require Woolworths to contemplate them as people that might be put at risk by its choice of facilities and procedures for delivery. 72 At 247 [38] of the joint judgment, their Honours observed that the question was whether Woolworths had a proper delivery system in place. Such a system should have included arrangements for moving the waste bins left in the laneway by the council workers in order to clear access to the loading dock. The responsibility with respect to the design and implementation of the delivery system operating on its premises belonged to Woolworths alone. In leaving it to the delivery drivers to move the bins which obstructed access to the loading dock in circumstances where it knew that not all drivers were capable of doing so without risk of injury, Woolworths had breached its duty of care of providing a safe system of delivery or access to its loading dock. 73 In my opinion the present case is distinguishable from that in Thompson. There was no system of work provided by the appellant that the first respondent had to follow for the purpose of carrying out the task of securing his load. As I have observed, the present is not a case where the appellant provided defective equipment or facilities to the first respondent for the work he was required to perform. The first respondent's task in securing his load was, in my view, akin to that of climbing a ladder or using a tomahawk in the sense referred to by Mason P in Chalker. 74 It is thus difficult to distinguish the first respondent's conduct in securing his load from Mr Chalker's conduct in adopting a particular unloading technique which Mason P found did not give rise to any breach of duty on the part of Andrews in failing to instruct him to be careful when using wet gloves. 75 In any event, there are three factual aspects which support my conclusion that there was neither a duty of care nor any breach of such a duty on the part of the appellant. First, the transport safety guidelines relied upon by the appellant acknowledged that it might be necessary for the tightening of dogs to occur whilst standing on the load. If this was the case, the worker was required to stand near the truck's centre rather than its side. That is what the first respondent did in the present case. Furthermore, his evidence as to why he placed his dog in the middle therefore requiring him to stand in the middle of his load (see [14] and [15] above) indicated a decision on his part over which the appellant had no control and no right of control. In other words, he adopted the technique of tightening the dogs whilst standing in the centre of his load for what he apparently regarded as good and proper reasons. 76 Second, there is significant doubt on the evidence as to whether, had the first respondent been standing alongside the trailer even with the assistance of a platform, he would have been able to carry out the task in a manner that would have, as he said, put the load "in the middle". Certainly the evidence indicates he would not have been able from his perspective to properly tighten the chain so as to distribute the load appropriately whilst standing on the ground as the transport safety guidelines adopted by the appellant recommended. It is noteworthy that there is nothing in those guidelines that suggest that an alternative to standing on the ground to tighten the dogs was to stand on a ladder or on some other form of raised platform. 77 Accordingly, on one view of it there was nothing in the transport safety guidelines adopted as part of the appellant's procedures in instructing its own drivers which would support the only allegation of negligence, apart from that alleged in the Notice of Contention, relied on by the first respondent on the appeal, namely, the appellant's failure to provide the first respondent with an alternative work platform so that he was not required to stand on the load. As I have indicated, there is nothing in the transport guidelines (being Exhibits E and F) that suggests that such an alternative was recommended. 78 The first respondent also had his own doubts as to whether he could safely carry out his task from a ladder unless it was appropriately stabilised. There was nothing to suggest that the appellant had available or had even offered the first respondent the services of one of its employees to hold a ladder for him while he was carrying out the task of securing his load. 79 Third, and overlapping with the last point, it is doubtful whether the provision of a ladder or other form of access platform would have been sufficient to prevent the first respondent from having to stand on top of his load to ensure that "the load goes in the middle". Accordingly a real issue of causation arises. However, it is unnecessary to proffer any final conclusion on that issue as I am of the opinion that the appellant did not owe any duty of care to the first respondent with respect to the manner in which he secured his load. 80 It follows from the foregoing that it is unnecessary to consider the first respondent's Notice of Contention as it was only advanced as a particular of breach and did not go to the existence or otherwise of a duty of care. Nevertheless, I shall deal with it shortly. 81 Clause 39 of the Regulation relevantly provides: "A controller of premises must ensure that: (a) safe access is provided to all parts of a place of work to which a person may require access and from which the person may fall, …" 82 The duty imposed by cl 39 is confined to the provision and maintenance of safe access to a worker's place of work. It says nothing with respect to the place of work itself once safe access is provided to it. It is therefore necessary to distinguish between a worker who is injured at his place of work and one who is injured while gaining access to it: cf Australian Iron & Steel Pty Ltd v Luna (1969) 123 CLR 305. 83 For the Regulation to be engaged in the present case, it was necessary for there to be a finding that when his load moved and he lost his balance, the first respondent was in the course of accessing his place of work rather than that he was at his place of work. 84 In my opinion, whether or not the appellant breached the Regulation by failing to provide the first respondent with safe access from the ground to the top of his load, his place of work at the time of the accident was the top of his load, which he had already accessed safely. In other words, the accident occurred as a consequence of what happened after he had reached his place of work, being the top of his load. 85 Accordingly, any failure (if there be one) to provide a safe means of access to the top of the load whether by way of a stepladder or some other form of raised platform, did not materially contribute or contribute at all to the load moving which resulted in the first respondent losing his balance and falling to the ground. 86 Accordingly, at the time of the accident the first respondent was not using a means of access to the top of the load but was in fact at the top of his load being his then place of work. It follows at the very least that any breach of the Regulation was not causative of the first respondent's injuries. Conclusion 87 It follows from the foregoing that in my opinion the primary judge erred in finding that the appellant owed a duty of care to the first respondent to provide him with a safe system of work with respect to the securing of his load. The relationship between the appellant and the first respondent was not such as to give rise to any such duty given that the appellant had no control over the manner in which the first respondent, not being an employee of the appellant, carried out a task which he was at all times experienced in performing. 88 Although it is true that the appellant was in a position, if it so wished, to advise the first respondent in the performance of the task in question, it was under no duty of care which could be breached by its failure to do so. 89 In any event even if there was a duty of care there was in my view no breach as the appellant's procedures and policies contemplated occasions when it would be necessary for the chains to be dogged whilst the driver was standing on top of the load in order to ensure, as the first respondent himself volunteered, that the load was concentrated in the middle of the trailer. 90 Accordingly, in my view the appellant was not liable to the first respondent with respect to his injuries with the result that the judgment entered for the first respondent against the appellant by the primary judge must be set aside. In these circumstances, it also follows that the judgment entered by his Honour in favour of the appellant against the second respondent must also be set aside and the cross-claim dismissed. This makes it unnecessary to consider the appellant's appeal against the primary judge's determination that the second respondent was liable to contribute 20% of his assessment of the first respondent's damages. 91 I would therefore propose the following orders: (a) Appeal allowed. (b) Set aside the judgment in favour of the first respondent against the appellant entered by Acting Judge McGrowdie on 19 September 2006 and in lieu thereof enter judgment for the appellant against the first respondent. (c) Set aside the judgment entered by Acting Judge McGrowdie on 19 September 2006 in favour of the appellant against the second respondent on the appellant's cross-claim and in lieu thereof order that that cross-claim be dismissed with costs. (d) The first respondent to pay the appellant's costs of the proceedings in the District Court and of the appeal against the judgment in favour of the first respondent but with respect to the latter to have a certificate under the Suitor's Fund Act , 1951 if otherwise qualified. (e) The appellant to pay the second respondent's costs of the appeal. 92 HANDLEY JA: I agree with Tobias JA. 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.