Accident on public road leading to building site - whether an occupier/builder owes a duty of care to the contract delivery driver

Judgment date: 20 April 2012

Miljus v Watpow Constructions Pty Ltd [2012] NSWCA 96

NSW Court of Appeal1

In Brief

This case reinforces the principles in Stevens v Brodribb Sawmilling Co Pty Ltd2(Brodribb), that an occupier "who organizes an activity involving a risk of injury to those engaged in it is under a duty to use reasonable care in organizing the activity to avoid or minimize that risk"3, and the occupier is not liable for damage caused by a negligent failure of an independent contractor to adopt or follow a safe system of work within their area of responsibility. Regulation 73(2) of the Construction Safety Regulations (1950) (NSW) (the Regulations) which obliges a builder/occupier to "provide and maintain safe means of access to every place at which any person has to work at any time", does not have any operation in relation to a delivery vehicle's passage along a public road as it makes its way to the construction site. This case followed the decision in Leighton Contractors Pty Ltd v Fox4, (Leighton) that the statutory obligations contained in the Construction Safety Act 1912 (NSW) (the Act) and the Regulations are not simply transposed into the duty to exercise reasonable care. Liability does not attach in any civil or criminal proceedings for breach of a Code of Practice pursuant to s 46(2) of the Occupational Health & Safety Act 2000 (NSW). Background

Mr Miljus (plaintiff) was employed by a company called Edensor Transport Pty Ltd (Edensor), of which he was also a director and shareholder. Edensor was in the business of concrete delivery and had its own vehicle suitable for that purpose.

The defendant, Watpow Constructions Pty Ltd (Watpow), was a building company and was engaged by the owner of a residential property at Rignold Street, Seaforth, to carry out a major building redevelopment (building site).

Watpow contracted with CSR Ltd (CSR), a prominent building products supplier, for concrete to be supplied to the building site. CSR subcontracted Edensor, one of its contract drivers, to transport the concrete from its depot in Brookvale to the site.

Watpow also contracted with Pump Force Concrete Pumping (Pump Force) who was experienced in relation to concrete pours on building sites and provided the "Hopper" into which the concrete was poured and subsequently pumped towards the building site. Pump Force's "Hopper" was located on Rignold Street itself, adjacent to the building site.

Rignold Street had a continuous downhill slope with a fairly steep embankment on the right hand side of the road. The width of the road was not much greater than the plaintiff's truck.

On 20 March 2001, the plaintiff was directed by CSR to deliver 5 cubic metres of concrete to the building site. This was CSR's second delivery to the building site that morning, though the plaintiff had never been to the site before. As he had difficultly locating Rignold Street the plaintiff was directed by CSR's Brookvale depot to speak with the driver who made the earlier delivery that morning. The CSR driver advised the plaintiff to stick to the upper side of the street.

Before entering Rignold Street the plaintiff climbed out of his truck, walked down the street and observed its condition and topography. The plaintiff formed the view that, although there were difficulties, he was capable of successfully reversing...