Narrow is the way that leadeth to liability: Miljus v Watpow Constructions Pty Ltd [2012] NSWCA 96

Introduction

In the recent decision of Miljus v Watpow Constructions Pty Ltd [2012] NSWCA 96 (Miljus) the Court of Appeal had occasion to consider whether an occupier of a building site owed a duty to provide a safe means of access along a public road to the subcontractor of one of the occupier's independent contractors.

In doing so, the Court of Appeal took the opportunity to clarify the relevance that industry codes of practice and statutory regulations have in determining whether a common law duty of care exists.

Facts

Watpow Constructions Pty Ltd (Watpow) was the head contractor of a residential building project in Seaforth. Watpow retained CSR Ltd (CSR) to provide concrete to the project. To transport the concrete from its depot to the project site, CSR engaged Edensor Transport Pty Ltd (Edensor), a concrete delivery company. Edensor was one of a number of concrete delivery contractors engaged by CSR to transport concrete to the project. Damien Miljus (the plaintiff) and his father were shareholders and directors of Edensor and Edensor employed the plaintiff as a truck driver. Importantly for the later proceedings, Watpow did not engage Edensor or the plaintiff directly.

The project site in Seaforth was only accessible via a narrow road through bushland. The road followed a slight incline up to the project site and in parts was not much wider than the plaintiff's truck. Once at the project site, the concrete was poured into a hopper and pumped up to the project by Pump Force Concrete Pumping (Pump Force). Pump Force used a concrete pump positioned on the road adjacent to the project site to pump the concrete to the site.

Prior to 20 March 2001, work on the project had been underway for several months and many concrete trucks had delivered concrete to the site without incident. However, on 20 March 2001 it was the plaintiff's first time to the site. Accordingly, when the plaintiff reached the road leading to the site, he got out of his truck and checked the surroundings to make sure that he was capable of backing into the road. The plaintiff's father who had accompanied the plaintiff in the truck then got out and gave directions as the plaintiff began reversing along the road. As the plaintiff did so, he lost control of the truck and it fell into an adjacent gully. Again, importantly for the later proceedings, the accident occurred on a public road outside the project site.

Trial

The plaintiff sued Watpow and CSR in negligence in the NS...