Stevens v. Brodribb Sawmilling Company Pty Ltd
160 CLR 1663 ALR 513
(Judgment by: DEANE J)
Between: STEVENS
And: BRODRIBB SAWMILLING COMPANY PTY LTD
Judges:
Mason J.
Wilson J.
Brennan J.
Deane J.Dawson J.
Subject References:
Negligence
Judgment date: 13 February 1986
Canberra
Judgment by:
DEANE J
The equal division of opinion between four members of the Victorian Supreme Court in the present case demonstrates how finely balanced is the question whether the injured truck driver (the appellant Roy Albert Stevens to whom I shall refer as "Stevens") and the negligent "snigger" (the appellant Stanley Gray to whom I shall refer as "Gray") were, in all the circumstances, employees of the respondent Brodribb Sawmilling Company Pty. Ltd. ("the Brodribb Company") or independent contractors. For my part, I have come to the conclusion that, on balance, the preferable view is that both Stevens and Gray were independent contractors and not employees. I agree with the reasons for that conclusion which are set out in the judgment of Mason J.
The distinction between "employee" and "independent contractor" has become an increasingly amorphous one as the single test of the presence or absence of control has been submerged in a circumfluence of competing criteria and indicia. Where that distinction is relevant, it is, nonetheless, commonly decisive of the existence of vicarious liability. It is so in the present case where the conclusion that Gray was not an employee of the Brodribb Company involves the consequence that his negligent acts were not, in law, the acts of that company. On the other hand, the general principles of the law of negligence which are applicable to determine the existence and content of a common law duty of care are concerned essentially with matters of substance. In the application of those principles, technical and marginal considerations which may be decisive of characterization as an "independent contractor" or as an "employee" in a borderline case are, of themselves, unlikely to be of critical importance. Thus, the conclusion that the relationship between the Brodribb Company and Stevens should be characterized as being that between independent contractors rather than that of employer and employee is, in the present case, not of decisive significance for the purpose of the question whether that company owed a relevant common law duty of care to Stevens. What is decisive of that question is the substantive content, rather than the technical characterization, of that relationship. It is to that substantive content that regard must be had in determining whether the relationship possessed the degree of proximity necessary to give rise to a relevant duty of care.
Where a duty of care exists under the common law of negligence, it requires the taking of reasonable care to avoid a reasonably foreseeable and real risk of injury. That being so, a relevant duty of care will have existed in a particular case only if there was reasonable foreseeability of a real risk that injury of the kind sustained would be sustained by a member or members of a class which included the particular plaintiff. If the common law duty of care were an unqualified one owed to the world at large, reasonable foreseeability of injury of the kind sustained by a plaintiff would be the sole determinant of the existence of a relevant duty of care: it would be both a sufficient and the exclusive criterion of whether a particular defendant owed a relevant duty of care to a particular plaintiff. It is, however, plain that that is not, and has never been, the common law. Some effective additional limit or "control mechanism" must be recognized as applying to at least some categories of case (see Caltex Oil (Australia) Pty. Ltd. v. The Dredge "Willemstad" (1976) 136 CLR 529 , at p 574; Jaensch v. Coffey (1984) 58 ALJR 426, at pp 428 and 441; Candlewood Navigation Corporation Ltd. v. Mitsui Osk Lines Ltd. (1985) 59 ALJR 763, at p 769).
The test of reasonable foreseeability of injury which was explained by Lord Atkin in Donoghue v. Stevenson (1932) AC 562, at pp 580-582 was expressly derived from the celebrated passage in the judgment of Lord Esher (then Brett M.R.) in Heaven v. Pender (1883) 11 QBD 503, at p 509:
"The proposition which these recognised cases suggest, and which is, therefore, to be deduced from them, is that whenever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who did think would at once recognise that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger".
The reference to "every one ... would" and "at once" made Lord Esher's formulation at least as demanding as Lord Atkin's test of reasonable foreseeability: it is scarcely feasible that Lord Atkin, whose dislike of Humpty Dumpty's approach to words is well documented, used the words "can reasonably foresee would be likely to injure" (Donoghue v. Stevenson, at p 580) in a sense which would not include a case where "every one of ordinary sense who did think would at once recognise" the danger of injury. Yet Lord Atkin was at pains to emphasize that even Lord Esher's formulation would be "expressed in too general terms" unless it was limited by the "necessary qualification" of proximity of relationship (see Donoghue v. Stevenson, at p 582). That being so, his Lordship recognized (Donoghue v. Stevenson, at pp 580-582) that the duty to "take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely" to cause injury must necessarily be restricted by some overriding control. The overriding control which he recognized was that the duty was owed only to a "neighbour" in the sense of a person who was, for relevant purposes, in a relationship of proximity.
The requirement of a relationship of proximity as a general overriding control of the test of reasonable foreseeability has been expressly or impliedly recognized in a series of recent judgments in this Court including, it would seem, the judgments of four of the five members of the Court in Sutherland Shire Council v. Heyman (1985) 59 ALJR 564, at pp 570 (Gibbs C.J.), 579 (Mason J.), 583 (Wilson J.) and 594-595 (Deane J.). The notion of such a general and distinct requirement has been subjected to criticism by some eminent authorities (see Candlewood, at p 769; Leigh and Sillivan Ltd. v. Aliakmon Ltd. (1985) 2 WLR 289 , at pp 326-327; Sir Robert Goff, "The Search for Principle", Proceedings of the British Academy, vol 69 (1983), 169, at pp.178-179). It must be acknowledged that such criticism would have undoubted force if the requirement of proximity of relationship had been propounded as some rigid formula which could be automatically applied as part of the syllogism of formal logic to determine whether a duty of care arises under the common law of negligence in a particular category of case. The "general conception" of proximity of relationship was, however, neither propounded by Lord Atkin nor accepted in judgments in this Court in that sense. Its acceptance involved neither question-begging nor the introduction of undesirable uncertainty into the common law. To the contrary, it flowed from the perception of a consistent jurisprudence of common law negligence in which the notion of proximity can be discerned as a unifying theme explaining why a duty to take reasonable care to avoid a reasonably foreseeable risk of injury has been recognized as arising in particular categories of case and assisting in the determination, by the ordinary legal processes of analogy, induction and deduction, of the question whether the common law should adjudge that such a duty of care is owed in a new category of case. In that regard, recognition of the requirement of proximity as a general prerequisite of a duty of care neither precludes nor dispenses with the need, in the interests of certainty, for particular rules or tests for determining whether the requirement is satisfied in the circumstances of a particular category of case (see, for example, the judgment of Gibbs C.J., in Jaensch v. Coffey, at pp 428-429 and the judgment of Mason J. in Heyman, at pp 579ff.). Indeed, once one accepts - as I think one must - that, under the law of this country, reasonable foreseeability of injury is not of itself a sufficient determinant of the existence of a duty of care in all categories of case, there would seem to be but two alternatives to acceptance of Lord Atkin's overriding requirement of neighbourhood or proximity. The first alternative is to distort the notion of reasonable foreseeability so as to exclude, in some categories of case, injury to another which is obviously foreseeable by "every one of ordinary sense". The second is to reduce the common law of negligence to a miscellany of disparate and largely unrelated rules under which a duty to take reasonable care to avoid a reasonably foreseeable risk of injury may or may not arise (cf. Candlewood, at p 769). I find both equally unacceptable.
I have, in Jaensch v. Coffey (at pp 441-442) and Heyman (at p 595), endeavoured to explain what I see as the essential content of the requirement of neighbourhood or proximity which Lord Atkin formulated as an overriding control of the test of reasonable foreseeability. So understood, the requirement can, as Lord Atkin pointed out (Donoghue v. Stevenson, at p 581), be traced to the judgments of Lord Esher M.R. and A.L. Smith L.J. in Le Lievre v. Gould [1893] 1 QB 491 , at pp 497 and 504. In my view, that requirement remains the general conceptual determinant and the unifying theme of the categories of case in which the common law of negligence recognizes the existence of a duty to take reasonable care to avoid a reasonably foreseeable risk of injury to another. In Lord Atkin's own words, it is the "general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances" (Donoghue v. Stevenson, at p 580; and see per Fullagar J. Commissioner for Railways (NSW) v. Cardy (1960) 104 CLR 274 , at p 294). As such, that requirement of proximity of relationship sustains the underlying unity of principle and lack of chaos in the common law of negligence of this country.
I agree with Mason J. that, for the reasons which he gives, there existed in the relationship between the Brodribb Company and Stevens the requisite element of proximity to give rise to a relevant duty of care. With due respect to those who see the matter differently however, it appears to me that the Brodribb Company failed to discharge that duty. At its heart, there lay the obligation to take reasonable care to provide a safe system of work at least in those fields of operation in which the Brodribb Company required interaction between the activities of the various "fellers", "sniggers" and truck drivers whom it retained and assigned and whose activities it organized for the felling, loading and carrying of timber from its licensed areas of forest for cutting and treatment in its Orbost sawmill. One such field of operation was that involving the loading of logs on the trucks. There, the truck driver's functions and the snigger's functions necessarily overlapped to an extent that obviously required co-ordination and co-operation between the two. This was particularly so in the cases where the length of timber being loaded was shorter than the distance between the two pairs of skids on the ramp and where the ordinarily obvious method of pushing the logs up the two pairs of skids was plainly inappropriate. It may well be that the approach which was finally adopted by Gray in the present case - manipulation by bulldozer combined with the use of a supporting chain - was capable of providing the basis of an acceptable solution to one of the problems involved in loading the shorter logs in that way. To be acceptable however, the method would have to have been adopted as part of some rational system under which the respective roles and responsibilities of truck driver and snigger were identified and integrated. In fact, the evidence leads to the conclusion that the Brodribb Company provided no system at all to deal with the problem of loading the shorter logs. It simply left the problem which they posed to be dealt with on an ad hoc basis. The consequence was that a truck driver was unnecessarily exposed to any danger involved in the unplanned and unexpected. It was this absence of any settled system for the loading of the shorter logs which led to the lack of co-ordination between Gray and Stevens in the present case. In failing to provide such a system, the Brodribb Company was in breach of the duty to take reasonable care which it owed to Stevens. The injuries which Stevens sustained were of a kind which was reasonably foreseeable and were caused by that breach of duty.
I would allow both appeals and restore the judgment of the learned trial judge.