Stevens v. Brodribb Sawmilling Company Pty Ltd

160 CLR 16
63 ALR 513

(Judgment by: WILSON J, DAWSON J)

Between: STEVENS
And: BRODRIBB SAWMILLING COMPANY PTY LTD

Court:
High Court of Australia

Judges: Mason J.

Wilson J.
Brennan J.
Deane J.

Dawson J.

Subject References:
Negligence

Judgment date: 13 February 1986

Canberra


Judgment by:
WILSON J

DAWSON J

The respondent in both of these appeals is Brodribb Sawmilling Company Pty Ltd ("Brodribb"), a company which operates a large sawmill at Brodribb River near Orbost in the State of Victoria. At the relevant time it obtained timber for its sawmill under licence from the Forests Commission of Victoria pursuant to the Forests Act 1958 (Vict.). The licence designated a forest area from which Brodribb had the exclusive right to get timber and, together with certain regulations, it laid down the conditions which Brodribb was required to observe. In particular, Brodribb was required to ensure that all operations were conducted in the locations specified from time to time by a forest officer, to fell only trees branded for the purpose and to obey the directions of the forest officer with regard to the removal of the forest produce of any tree or timber.

For its own purposes, Brodribb divided its licence area into compartments. In relation to each compartment it engaged a tree feller, a snigger and trucks to remove the timber from the logging area to the mill. The feller felled the trees and the snigger snigged the logs, either by pushing or pulling them with a tractor fitted with a blade, to a landing from which he loaded them on to a truck. The snigger also constructed the landing which consisted of a sloping ramp upon which were two pairs of logs laid longitudinally to act as skids for logs being pushed up the ramp by the tractor. The feller, the snigger and the truck driver were all paid according to the cubic measurements of the timber delivered to the mill, but at different rates.

Brodribb engaged Stevens, the appellant in the first appeal and the plaintiff in the action, to cart logs to the mill from a logging area on the Errinundra Plateau over which its licence extended. For this purpose Stevens was to use his own truck. Brodribb also engaged Gray, the appellant in the second appeal and a co-defendant with Brodribb in the action, to snig and load logs in the same area. For this purpose Gray was to use his own tractor. It so happened that Gray also owned a truck which was driven by his son and at the same time Gray was engaged by Brodribb to cart logs using the truck. Both Stevens and Gray had extensive experience in the timber industry and had worked for Brodribb during previous logging seasons.

Logging operations on the plateau were carried out under the supervision of a bush boss employed by Brodribb. It was his task to co-ordinate the work of the fellers, sniggers and truck drivers in order to ensure that there was a steady flow of timber from the plateau to the mill. It was also his task to determine the location of roads and ramps and to see that the men engaged in the logging operations complied with the requirements of the Forests Commission.

In addition, there was a mill manager, who was stationed at the mill but who from time to time visited the bush operations. His evidence was that he exercised ultimate authority and had the right to terminate the engagement of any person engaged to fell, snig or cart logs who was not carrying out his duties satisfactorily.

On 9 November 1977, Gray was loading logs on to Stevens' truck. Having loaded three logs, he was having difficulty in manoeuvring a fourth log into position. It was a somewhat shorter log than usual and fell between the two pairs of skids. It came up the ramp at an angle so that when it reached the top, one end of it dropped down between the front of the ramp and the side of the load on Stevens' truck. This happened twice and Gray retrieved the log by the use of the blade on his tractor. It happened again and Stevens stopped Gray from using the tractor blade because he thought that damage might be done to equipment on the truck. Stevens obtained a chain from his truck, placed one end around the log and the other around the arms of the tractor blade for the purpose of moving the log. He started to walk to the rear of the tractor but Gray moved the tractor and dislodged the log which rolled down the ramp and pinned Stevens against the tractor. As a result, Stevens suffered the severe injuries for which he claimed damages against both Gray and Brodribb.

The learned trial judge (Beach J.) found that both Stevens and Gray were engaged by Brodribb as its servants and were performing their duties in that capacity on the day in question. He found that Gray acted negligently in moving the tractor in the manner in which he did without giving Stevens any warning or any opportunity to get clear and that this negligence was the cause of the accident and Stevens' injuries. The trial judge also found Brodribb negligent in failing to supervise the loading operations properly, in failing to ensure that safe procedures were adopted and in failing to provide adequate equipment. He found no contributory negligence on the part of Stevens and awarded damages in the sum of $165,000 plus interest in the sum of $15,000, apportioning the total amount between Brodribb and Gray in the proportions of two-thirds and one-third respectively.

Both Brodribb and Gray appealed to the Full Court of the Supreme Court of Victoria which held (Kaye and Brooking JJ., Starke J. dissenting) that Brodribb's appeal should be allowed. Gray's appeal was dismissed. It is against the judgment of the Full Court in favour of Brodribb that these appeals are now brought.

Gray's negligence was not contested before us and the first question which arises is whether Gray was acting as the servant of Brodribb at the time of the accident so as to render Brodribb liable for his negligent behaviour. That question falls to be determined upon the facts found by the learned trial judge. The classic test for determining whether the relationship of master and servant exists has been one of control, the answer depending upon whether the engagement subjects the person engaged to the command of the person engaging him, not only as to what he shall do in the course of his employment but as to how he shall do it: Performing Right Society, Ld. v. Mitchell and Booker (Palais de Danse), Ld. [1924] 1 KB 762 . The modern approach is, however, to have regard to a variety of criteria. This approach is not without its difficulties because not all of the accepted criteria provide a relevant test in all circumstances and none is conclusive. Moreover, the relationship itself remains largely undefined as a legal concept except in terms of the various criteria, the relevance of which may vary according to the circumstances. Thus when Windeyer J. in Marshall v. Whittaker's Building Supply Co. (1963) 109 CLR 210 , at p 217, said that the distinction between a servant and an independent contractor "is rooted fundamentally in the difference between a person who serves his employer in his, the employer's, business, and a person who carries on a trade or business of his own", he was really posing the ultimate question in a different way rather than offering a definition which could be applied for the purpose of providing an answer. So too when Denning L.J. in Bank voor Handel en Scheepvaart N.V. v. Slatford [1953] 1 QB 248 , at p 295, observed that the test of being a servant does not rest nowadays on submission to orders but "depends on whether the person is part and parcel of the organization". As a restatement of the problem, this observation may place a different emphasis upon the tests to be applied but of itself offers no new test for the solution of the problem, although a submission to the contrary was made on behalf of Stevens in this case. See also Stevenson Jordan and Harrison, Ltd. v. Macdonald and Evans (1952) 1 TLR 101 , at p 111 per Denning L.J.; Ready Mixed Concrete (South East) Ltd. v. Minister of Pensions and National Insurance [1968] 2 QB 497 , at p 524 per MacKenna J. We would be doing no more ourselves if we were to suggest that the question is whether the degree of independence overall is sufficient to establish that a person is working on his own behalf rather than acting as the servant of another, but putting it that way does at least indicate that the question is one of degree for which there is no exclusive measure.

In many, if not most, cases it is still appropriate to apply the control test in the first instance because it remains the surest guide to whether a person is contracting independently or serving as an employee. That is not now a sufficient or even an appropriate test in its traditional form in all cases because in modern conditions a person may exercise personal skills so as to prevent control over the manner of doing his work and yet nevertheless be a servant: Montreal v. Montreal Locomotive Works (1947) 1 DLR 161, at p 169. This has led to the observation that it is the right to control rather than its actual exercise which is the important thing (Zuijs v. Wirth Brothers Pty. Ltd. (1955) 93 CLR 561 , at p 571) but in some circumstances it may even be a mistake to treat as decisive a reservation of control over the manner in which work is performed for another. That was made clear in Queensland Stations Pty. Ltd. v. Federal Commissioner of Taxation (1945) 70 CLR 539 , a case involving a droving contract in which Dixon J. observed, at p 552, that the reservation of a right to direct or superintend the performance of the task cannot transform into a contract of service what in essence is an independent contract.

The other indicia of the nature of the relationship have been variously stated and have been added to from time to time. Those suggesting a contract of service rather than a contract for services include the right to have a particular person do the work, the right to suspend or dismiss the person engaged, the right to the exclusive services of the person engaged and the right to dictate the place of work, hours of work and the like. Those which indicate a contract for services include work involving a profession, trade or distinct calling on the part of the person engaged, the provision by him of his own place of work or of his own equipment, the creation by him of goodwill or saleable assets in the course of his work, the payment by him from his remuneration of business expenses of any significant proportion and the payment to him of remuneration without deduction for income tax. None of these leads to any necessary inference, however, and the actual terms and terminology of the contract will always be of considerable importance.

Having said that, we should point out that any attempt to list the relevant matters, however incompletely, may mislead because they can be no more than a guide to the existence of the relationship of master and servant. The ultimate question will always be whether a person is acting as the servant of another or on his own behalf and the answer to that question may be indicated in ways which are not always the same and which do not always have the same significance. That is best illustrated by turning to the circumstances of this case and in particular to those circumstances which were suggested as indicating that Gray was the servant of Brodribb.

In the first place reliance was placed upon the control exercised by Brodribb, primarily through the bush boss and ultimately by the supervision of the mill manager. The evidence establishes clearly enough that the bush boss determined, together with the Forests Commission officer, where ramps were to be built although the job of constructing the ramps was left to Gray and the other sniggers. The bush boss located the access roads, but again the construction of the roads was a matter for the sniggers. Gray himself accepted that he was obliged to obey the directions of the bush boss but the occasions upon which any directions were given appear to have been limited. Upon the evidence, they were restricted to the location of the ramps and roads which we have already mentioned and to the exercise of quality control by requiring certain types of logs to be pulled out. In addition, if the weather was bad the bush boss would decide whether to suspend work. The supervision of the mill manager was even more remote and seems to have been theoretical rather than actual, being restricted to the final resolution of any dispute about the performance of duties, if necessary by ending the engagement of a feller, snigger or carter. All of this falls short, in our view, of the type of supervision or right to control which indicates the relationship of master and servant. Rather, it is consistent with the reservation of a right to direct or superintend the performance of the task which does not impair the essential independence of the person performing that task, of which Dixon J. spoke in Queensland Stations Pty. Ltd. v. Federal Commissioner of Taxation. Even the most independent of independent contractors is subject to some direction in the performance of his work and some circumstances will justify the termination of the engagement. This leads to a consideration of the other factors which are relevant to determine the nature of the relationship.

The preponderance of those other factors points clearly to the independence of Gray and to the absence of a master-servant relationship. How he did his work, including the building of ramps and roads and the loading of logs, was a matter for his decision. He used his own tractor and paid his own expenses. Since the performance of the work by Gray was as much dependent upon the provision of mechanized power as it was upon the provision of his own labour, the case resembles that of Humberstone v. Northern Timber Mills (1949) 79 CLR 389 where the most important part of the work to be performed consisted in the operation of a motor truck supplied by the person engaged to do the work. That was held to establish an independent contract. Gray was paid by reference to the volume of timber which he snigged and loaded and it does not appear that any deductions were made for income tax. He was engaged to snig and load a fixed quantity of timber for the relevant season, but his hours were his own.

In addition to the tractor which he used for snigging and loading, Gray's truck, driven by his son, was used by Brodribb to cart logs. Payment for the logs hauled was made to Gray and the inference is that he paid his son. The truck was not necessarily employed to haul logs snigged and loaded by Gray, but could be deployed by Brodribb to other landings. Payment for logs snigged and loaded and for logs carted, the rate for each operation being different, was made by single cheque to Gray. Whether or not Gray had one contract with Brodribb or two separate contracts, one for snigging and loading and one for carting, is a question which does not seem to have arisen and it is enough, we think, to say that there does not appear to have been any sharp contrast between the position of Gray as a carter and his position as a snigger and loader. There is some significance in this because there does not seem to be much doubt that in his carting operation Gray was acting as an independent contractor. Apart from anything else, Gray was able to employ his son in the actual performance of his cartage operations. An unlimited power of delegation of this kind was viewed as being almost conclusive against the contract being a contract of service in A.M.P Society v. Chaplin (1978) 18 ALR 385 , at p 391. It is, we think, unnecessary to decide whether the same power of delegation existed so far as snigging and loading were concerned, but the evidence does disclose that on Saturdays the appellant Stevens used to operate Gray's tractor for him whilst he, Gray, was having a day off. On these days Stevens loaded his own truck, Gray's truck and that of another carter. It is sufficient to point to the fact, as we have already done, that no one seems to have thought that there was any significant difference in the relationship between Gray and Brodribb according to whether Gray was engaged in carting or in snigging or loading.

The whole of the circumstances in our view point to the fact that, as a snigger and loader, Gray was acting as an independent contractor.

It is convenient at this point to deal also with the relationship between Brodribb and Stevens. Little needs to be added because the operation of carting the logs appears to have been carried out upon similar terms. The evidence in relation to control presents no different picture. Carters might be directed to a particular landing and sometimes they might be told which type of log should be brought to the mill first. Otherwise a carter could select the logs he was to carry and he would determine for himself the size of the load to be carried. There was no guarantee of work carting logs. If work was not available, carters could work for another mill. Disputes would be settled by the bush boss with ultimate authority being exercised by the mill manager if necessary. Carters were paid by the volume of timber hauled and no deductions for income tax were made. They provided their own trucks and paid their own expenses. In Stevens' case, the deductions which he made each year for expenses in his profit and loss accounts amounted to some seventy per cent of his gross income (cf. A.M.P Society v. Chaplin, at p 394). Not all the carters drove their own trucks and some of them operated through husband and wife partnerships. Although the contractual arrangements do not appear to have been formalized, the carters were generally referred to as log cartage contractors and the plaintiff, Stevens, referred to himself in that way. He was, we think, clearly an independent contractor.

The conclusion that both Gray and Stevens were employed by Brodribb as independent contractors and not as servants disposes of the question of Brodribb's vicarious liability for Gray's negligence. It also disposes of any question of a breach of a duty of care on the part of Brodribb to provide its servants with proper plant and a safe place and system of work. However, Brodribb was also said to be liable for the injuries received by Stevens because they were sustained as the result of the extra-hazardous operations in which Stevens and Gray were engaged at the time of the accident. In these circumstances, it was said, Brodribb was under a duty to take special precautions to safeguard Stevens against injury and it was a duty which could not be delegated by the employment of independent contractors.

We should say immediately that whatever activities might be regarded as extra-hazardous, we doubt whether logging operations can be so categorized. It is, of course, one of the difficulties with the notion that there is some sort of strict liability for extra-hazardous acts that it is practically impossible to define them in any satisfactory way. Clearly enough they cannot be activities which inevitably result in harm; it must be possible to avoid harm by taking proper precautions because it would otherwise be wrong to undertake them at all. See Matania v. National Provincial Bank [1936] 2 All ER 633 per Slesser L.J. at p 646. But that, of course, involves the proposition that the activities are not hazardous if the proper precautions are taken. However, it is convenient to regard logging operations as being extra-hazardous for the purposes of argument.

The proposition that the employer of an independent contractor will be liable for damage caused by extra-hazardous acts on the part of the latter during the course of carrying out the work which he is engaged to do has its recent origin in the case of Honeywill and Stein, Ld. v. Larkin Brothers, Ld. [1934] 1 KB 191 . In that case the plaintiff was held to have been liable for the act of an independent contractor engaged by it to take photographs of the interior of a cinema owned by someone else. The act consisted of using flashlight created by the ignition of magnesium powder in a metal tray. This ignited the stage curtain and the consequent fire damaged the cinema. At pp 199-200 the principle was expressed to be that:

" ... if a man does work on or near another's property which involves danger to that property unless proper care is taken, he is liable to the owners of the property for damage resulting to it from the failure to take proper care, and is equally liable if, instead of doing the work himself, he procures another, whether agent, servant or otherwise, to do it for him."

The principle was said to arise from cases such as Bower v. Peate (1876) 1 QBD 321, Black v. Christchurch Finance Co. (1894) AC 48, Hughes v. Percival (1883) 8 App.Cas. 443 and Hardaker v. Idle District Council [1896] 1 QB 335 . But as was pointed out by Jordan C.J. in Torette House Pty. Ltd. v. Berkman (1939) 39 SR (NSW) 156, at pp 166-167, none of those cases supports a proposition of such width or, indeed, is inconsistent with the ordinary principles regarding vicarious liability and liability for the acts of independent contractors. Those principles were expounded by Jordan C.J. at p 170 where, in delivering a judgment with which the rest of the Court agreed, he said:

"A person who procures the doing of an act is liable for its actual consequences and for anything necessarily involved in its being done whomsoever he may have procured to do it. He is liable for the acts of any agent of his acting within the scope of his employment. For the actual breach of any duty owed by himself he is responsible whatever steps he may have taken or agency he may have employed to endeavour to prevent a breach. In certain special circumstances, if he causes an act to be done he incurs a liability to see that care is used to prevent injury from being caused by methods incidentally used to produce the result, whomsoever he may employ to produce it."

Jordan C.J. went on to express the view:

"But there is no general rule that if a person employs an independent contractor to do an inherently lawful act, he incurs liability for injury to others occasioned by the methods incidentally employed by the contractor in the course of its performance (these not being methods necessarily involved in the doing of the act and necessarily injurious), by reason only of the fact that the act is 'dangerous,' 'hazardous,' or 'extra hazardous'."

The principle laid down in Honeywill and Stein, Ld. v. Larkin Brothers, Ld. has, however, obtained some foothold in England: Matania v. National Provincial Bank; Brooke v. Bool [1928] 2 KB 578 ; The Pass of Ballater (1942) P 112; Salsbury v. Woodland [1970] 1 QB 324 , at pp 336-337, 338 and 347-348. It seems to be established in the United States where the Restatement replaces the word "ultrahazardous", which was initially used, with the term "abnormally dangerous": Restatement, Second, Torts, vol 3 (1977), s 519. It is also accepted in Scotland and in Canada: Stewart v. Adams (1920) SC 129; City of St. John v. Donald (1926) 2 DLR 185; Peters et al. v. North Star Oil Ltd. (1965) 54 DLR (2d) 364.

On the other hand, support for the view taken by Jordan C.J. is to be found in Rainham Chemical Works, Ld. v. Belvedere Fish Guano Co. [1921] 2 AC 465 , where Lord Buckmaster, at pp 476-477 and Lord Parmoor, at pp 490-491, rejected the notion advanced by Atkin L.J. in the Court of Appeal that a person employing an independent contractor to do works of a kind likely to cause danger to others is under a duty to take all reasonable precautions against such danger and that he does not escape from liability for the discharge of that duty by employing the contractor if the latter does not take precautions. Moreover, some time previously in Hughes v. Percival, at pp 446-447, Lord Blackburn restricted liability for the acts of an independent contractor to circumstances where a duty exists on the part of the person employing the contractor which cannot be discharged by the employment of someone else. Clearly he did not regard the dangerous nature of the work to be done as of itself giving rise to such a duty. Then there is the decision in Daniel v. Directors, & c. of Metropolitan Railway Co. (1871) LR 5 HL 45 where the House of Lords accepted that the respondents were not liable for the negligence of their independent contractor in the performance of what, on any view, was an inherently dangerous operation of slinging iron girders over a railway line. Lord Westbury, at p 61, in pointing out that the duty to take care fell upon the contractor and not his employer, who had a right to rely upon the contractor for the performance of that duty, said:

" ... the ordinary business of life could not go on if we had not a right to rely upon things being properly done when we have committed and entrusted them to persons whose duty it is to do things of that nature, and who are selected for the purpose with prudence and care, as being experienced in the matter, and are held responsible for the execution of the work."

And in Read v. J. Lyons & Co., Ld. (1947) AC 156, the House of Lords decisively rejected any general doctrine of strict liability for hazardous activities. As Lord Simonds said, at pp.181-182:

" ... I would reject the idea that, if a man carries on a so-called ultra-hazardous activity on his premises, the line must be drawn so as to bring him within the limit of strict liability for its consequences to all men everywhere. On the contrary I would say that his obligation to those lawfully upon his premises is to be ultra-cautious in carrying on his ultra-hazardous activity, but that it will still be the task of the injured person to show that the defendant owed to him a duty of care and did not fulfil it."

The direction taken in this Court has also been away from strict liability for tortious behaviour. There is a preference for a view which is more in harmony with the ordinary principles governing liability for negligence, namely, that the extent of a duty of care will depend upon the magnitude of the risk involved and its degree of probability: Adelaide Chemical and Fertilizer Co. Ltd. v. Carlyle (1940) 64 CLR 514 , at pp 522-523; Swinton v. The China Mutual Steam Navigation Co. Ltd. (1951) 83 CLR 553 , at pp 566-567; Thompson v. Bankstown Corporation (1953) 87 CLR 619 , at p 645. Thus the standard of response required is that of a reasonable man placed in the relevant circumstances. See Wyong Shire Council v. Shirt (1980) 146 CLR 40 , at pp 47-48. If that means, in the words of Lord Simonds, an ultra-cautious response to an ultra-hazardous operation, it nevertheless falls short of the imposition of strict liability. In our view it would be inconsistent with this approach to follow the decision in Honeywill and Stein, Ld. v. Larkin Brothers, Ld. and the view of Jordan C.J. in Torette House Pty. Ltd. v. Berkman is to be preferred.

It is possible then to start with the general proposition laid down in 1840 in Quarman v. Burnett (1840) 6 M & W 499 (151 ER 509) that a person will not be liable for the acts or omissions of another unless that other is his servant acting in the course of his employment. He will not, therefore, be liable for the acts or omissions of a competent independent contractor employed by him. To that general proposition there are certain exceptions or qualifications.

Where an independent contractor is employed to do the very thing which, if done by the employer himself, would constitute a breach of duty on his part, then the employer will nevertheless be liable for any consequent loss or damage. Moreover, where precautions can be taken against loss or damage and the failure of an employer to ensure that his independent contractor takes those precautions amounts to an authorization of the act or omission causing the harm, then the employer will also be liable. That is the explanation of cases such as Bower v. Peate and Dalton v. Angus (1881) 6 App Cas 740. With them may be contrasted a case such as Stoneman v. Lyons (1975) 133 CLR 550 . In that case an owner of land employed a builder to carry out work which required the wall of an adjoining building to be underpinned. The builder, without consulting the owner or his architect, dug a trench along the whole of the wall and excavated pockets under the wall so that when rain fell the wall collapsed. The owner was held to be not liable for the damage but the result would have been different if the owner had required the builder to do what he did or had countenanced it by failing to require underpinning. As it was, the builder was guilty of what Lord Blackburn in Dalton v . Angus, at p 829, called "collateral negligence", for which the owner was not liable.

Then again, a duty may be of such a kind that it is not possible to discharge it or transfer it by the employment of a competent contractor. The origin of this qualification to the general principle that an employer is not liable for the acts or omissions of his independent contractor is to be seen in cases such as Pickard v. Smith (1861) 10 CB (NS) 470 (142 ER 535 ), although it is said (per Williams J. delivering the judgment of the Court at p 480 of CB (N.S.); p 539 of E.R.) to be derived "by a parity of reasoning" from those cases "in which the act which occasions the injury is one which the contractor was employed to do". This explanation may not be wholly satisfactory, but it is clear that the qualification does exist. The most obvious example is where a duty is imposed by statute which cannot be met by the employment of someone else. In that case there is an analogy with a duty imposed by contract which cannot be discharged by entry into a subcontract. But the qualification goes beyond duties statutorily imposed and extends to some duties at common law. The difficulty is in identifying those cases in which such a non-delegable duty arises. An effort was made to do so by Mason J. in Kondis v. State Transport Authority (1984) 154 CLR 672 , at p 687, where he said that such a duty arose from "some element in the relationship between the parties that makes it appropriate to impose on the defendant a duty to ensure that reasonable care and skill is taken for the safety of the persons to whom the duty is owed". The most important example is probably the duty of care of an employer at common law to provide adequate plant and equipment, a safe place of work and a safe system of work for his employees. That is a duty which cannot be delegated to an independent contractor and the duty to take care becomes a duty to ensure that reasonable care is taken. Other examples are the duty of care owed by a hospital to its patients or by a school authority to its pupils. In such cases at least it would seem that liability for the acts or omissions of a contractor is personal rather than vicarious, but that aspect of the matter is not beyond debate. See Atiyah, Vicarious Liability in the Law of Torts, (1967), pp.338-339.

Apart from a submission based upon the hazardous nature of the logging operations, a submission was also made on behalf of Stevens that there was a non-delegable duty of care owed by Brodribb to Stevens arising from the general supervisory functions exercised by Brodribb in its licence area. There were, of course, other teams of fellers, sniggers and loaders and carters operating within the area and the co-ordination of all their functions was said to be the responsibility of Brodribb and to involve a duty on its part to take reasonable steps to see that the whole operation was safely carried out. The obligation said to be imposed upon Brodribb, which in the case of servants would be part of its duty to provide a proper place of work, proper plant and equipment and a safe system of work, was said to arise upon the ordinary principle that in the absence of such provision it was foreseeable that harm would be done to persons, such as the plaintiff Stevens, working in the area where the logging operations were being carried on. Reliance was placed upon the decision in McArdle v. Andmac Roofing Co. (1967) 1 WLR 356 ; [1967] 1 All ER 583 which held that the employment of a contractor to do certain roofing work did not displace the overriding responsibility of the employer to take precautions for the safety of subcontractors working together in close proximity in circumstances of obvious danger. It is true that the decision in that case resulted from the application of the familiar concepts of proximity and foreseeability in the law of negligence and may be said to support the appellants' submissions in these cases. There is no reason why those same concepts should not provide a basis upon which it might be found that Brodribb was under a duty of care towards Stevens and we are prepared to assume that it was under such a duty of care, although it seems to us that the extent of the duty would have to take account of the independent functions of the contractors and be something less than that owed by an employer to his employees. To equate the duty with that owed by an employer to his employees would be to give no weight to the very circumstance which differentiates the contractors from employees. For reasons which will appear, it is unnecessary to pursue that aspect of the matter to finality.

Such as the alleged duty was, it is said, apparently in reliance upon the analogy with the duty of care owed by an employer to his employees, that it was non-delegable. We think that such a duty in this case was non-delegable, although for reasons which can be expressed more simply and in a different way. Any such duty was, in effect, a duty to exercise care in the co-ordination of the activities of the various contractors. No question arises of the delegation of that function to any separate contractor and it can hardly have been delegated to them all merely by reason of their having been engaged as independent contractors. In that event the duty would have been negated and have ceased to exist. Put another way, the duty of co -ordinating the activities of the contractors can hardly have been performed by returning that responsibility to them. In our view, it is for this reason, rather than any special element in the relationship between Brodribb and its contractors, that no question arises of the delegation of any duty which it might have owed to them.

Assuming the existence of a duty of care on the part of Brodribb towards Stevens, we nevertheless do not think that want of due care on the part of Brodbribb can be made out on the evidence. The breach of duty which is alleged is three-fold: the use of an unsafe ramp and the failure to require the use of a forklift carrier or a tractor equipped with a grab to load logs, failure to give instructions that no log was to be moved on the ramp whilst anyone was on it, and failure to supervise the loading operation.

The ramp was, however, constructed according to established practice and, although the distance between the skids made it difficult to load shorter logs, the space was necessary to enable the tractor to move between the skids. The evidence concerning the use of a forklift or a tractor with mechanical grabs was scanty and it would, in our view, provide an insufficient basis upon which to conclude that such equipment constituted a reasonable alternative for the loading of logs in the bush. It is plain enough that such equipment was not in use and had never been in use in Brodribb's logging operations in the bush, nor, for that matter, does the evidence show that it had ever been used in similar operations by others. However effective it might have been in loading logs (and the evidence merely suggests that it would have been more effective to prevent the skidding or rolling of logs), there is no evidence of its feasibility in other respects. In the case of the forklift, the very size of the machine required would suggest its impracticability. Assuming a duty of care on the part of Brodribb, we are unable to conclude that there was any breach of that duty by reason of its failure to use machinery of the type suggested.

Nor does the evidence suggest to us that due care required Brodribb to give instructions that no log was to be moved during loading operations whilst a man was on the ramp. Gray was, as the other sniggers and loaders also appear to have been, an experienced operator of his equipment, skilled in the task which he was performing. Stevens was, upon the evidence, no less skilled. There was no evidence of any previous accident of the kind which happened to Stevens. The danger to which he was exposed was an obvious danger and it is unlikely that any instruction of the kind suggested would have avoided the accident.

Similarly, supervision of the loading operations would, in the absence of previous accidents suggesting a particular danger, have been unlikely to have avoided the accident which occurred. Such supervision would have required a man on each loading ramp, of which there were nine, and the evidence does not reveal that it would have achieved anything more than the employment of skilled operators ought to have done. Apart from the particular incident, the evidence does not suggest that the system of loading which was in use and which had apparently been in use for years, was defective.

Accordingly, in our view, no want of care on the part of Brodribb was established on the evidence.

For all of these reasons, the appeals should be dismissed.