McColl JA delivered the judgment with whom Tobias AJA and Basten JA concurred. It is an example of a ‘ladder case’ where the plaintiff/respondent fell when transferring his position on a ladder accessing the cabin of a Caterpillar 785B rear dump truck at the Wambo Coal Mine in the Hunter Valley. It was no surprise in circumstances where the “3 points of contact” rule could not be maintained, which was an identified risk, together with the ladder did not meeting the Australian Standards, and the cost of rectification works was relatively inexpensive that the appeal was dismissed, with breach and causation being satisfied.
Of interest however, is the discussion of the duty of care in circumstances where the plaintiff/respondent was a labour hire worker and whether it was the same as that of an employer/employee:
62. I would record, however, that insofar as the content of Roche’s duty of care is concerned, the primary judge was correct, in my view, in adopting Brennan J’s formulation in Stevens v Brodribb Sawmilling Co Pty Ltd (at 47 – 48) (at ) in terms of a duty “to take reasonable care to avoid unnecessary risks of injury and to minimise other risks of injury”. This is a less stringent duty than that owed by an employer to employees: Leighton Contractors Pty Ltd v Fox; Calliden Insurance Ltd v Fox  HCA 35; (2009) 240 CLR 1 (at ); see generally, Pacific Steel Constructions Pty Ltd v Barahona; Jigsaw Property Group Pty Ltd v Barahona  NSWCA 406 (at  ff). It recognises, among other matters, Roche’s role in operating Wambo, its responsibilities under the CR Act, its control of the system of work and its ownership of the plant the respondent was required by Roche to operate.
63. Further, his Honour stated (at ), correctly in my respectful view, that the content of the duty of care had to be determined by reference to the facts: see Modbury Triangle Shopping Centre Pty Ltd v Anzil  HCA 61; (2005) 205 CLR 254 (at ) per Hayne J. It is necessary, of course, to guard against the danger of allowing the cause of the injury to determine the content of the duty without focussing on all relevant circumstances, including the relationship between the parties: see Kuhl v Financial Services Australia Ltd  HCA 11; (2011) 276 ALR 375 (at  – ) per French CJ and Gummow J and the cases their Honours cited. Bearing those principles in mind, in my view the primary judge did not err in formulating (at ) the content of Roche’s duty of care as being to provide the respondent with a safe system of work and safe plant with which to carry out his work.
(There was no appeal in respect of the apportionment of 20% for the labour hire company.)
Further, there was consideration of whether the design fault in the ladder was a latent defect affording the appellant a defence:
65. Roche also submitted that the primary judge erred in failing to find it was not liable for a defect in the original design of the Cat 785B which caused the respondent’s injury. In deference to the primary judge’s reasons it should be recorded that Roche did not advance this submission at trial – at least not by reference to Davie v New Merton Board Mills and not with the clarity with which the point was expressed in Roche’s written submissions on appeal .
66. The respondent did not object to Davie v New Merton Board Mills being raised on appeal but contended that the principle for which it stands is subject to the qualification that the purchaser “has made any inspection which a reasonable employer would make”. The respondent submitted that an inspection would have revealed that the Cat 785B did not meet the Australian Standards and that it had inherent design weaknesses.
67. In Davie v New Merton Board Mills an employee suffered injury to his eye as the result of a latent defect (excessive hardness of the steel due to negligent heat treatment) in a tool – a drift – provided by his employer. The drift was a tapered bar of metal about one foot long that was struck by a hammer. The drift was apparently in good condition, but because of its excessive hardness it was, in the circumstances, a dangerous tool. The negligent manufacture had been undertaken by reputable makers who had sold it to a reputable firm of suppliers who in turn had sold it to the employer. The employer’s system of maintenance and inspection was not at fault. The House of Lords held that the employer’s duty was a duty to take reasonable care to provide a reasonably safe tool and that such duty had been discharged by buying from a reputable source a tool whose latent defect it had no means of discovering.
68. It is plain from this recitation of Davie v New Merton Board Mills that it cannot apply in this case. The primary judge concluded that Roche’s negligence lay in its failure to devise a safe system of work having regard to its knowledge that those having access to the Cat 785Bs were exposed to a real risk of injury. Davie v New Merton Board Mills concerned a situation of a latent defect. The respondent in this case was exposed to a patent defect against which Roche failed to take, on the primary judge’s findings, reasonable precautions to protect him.
69. This conclusion accords with TNT Australia Pty Ltd v Christie  NSWCA 47; (2003) 65 NSWLR 1 where Mason P held that, consistently with Davie v New Merton Board Mills , it was not enough for the plaintiff in that case to show that his injury was due to some latent or inherent defect in a pallet jack with which he was required to work, even a defect which was the result of negligence on the part of its manufacturer. However, the plaintiff could recover if it was established that his injury was the result of negligence in regard to the maintenance and repair of the equipment by a person for whose conduct his employer was vicariously liable: TNT Australia Pty Ltd v Christie (at  – ) per Mason P; (at ) per Foster AJA; Galea v Bagtrans Pty Limited  NSWCA 350 (at  –  per Hodgson JA (Allsop P and Macfarlan JA agreeing).
Brisbane Barrister – David Cormack