Elphick vs Westfield

In 2008 a cleaning contractor engaged by Westfield Shopping Centre at Tuggerah was injured during the course of his shift performing cleaning duties. The case covers occupier’s liability and to a lesser extent the employer/employee relationship.

The contractor suffered back injuries when removing cardboard refuse from a metal cage and moving it into a compactor. Westfield was the owner of the cage and the occupier of the shopping centre.

Under the relevant act, which at the time was the Occupational Health and Safety Act 2000 (NSW) (OHS Act), employers have a duty to employees to:

• Ensure that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used;[1] and
• Ensure that systems of work and the working environment of the employees are safe and without risks to health.[2]

The OHS Act defines an employee as ‘an individual who works under a contract of employment or apprenticeship’. Within this definition the above duties would not be applied to a contractor who has been engaged under a contract for services. However,  employers also  have a duty (so far as is reasonably practicable) to ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employers undertaking while they are at the employer’s place of work.[3]

In order to properly understand the obligations of both parties and the employer/contractor relationship it is important to review the original written agreement entered into by Westfield and the cleaning contractor on 1 June 2006.

The contract specifically stated that ‘ACS’ (cleaning contractor) was engaged as a contractor to provide cleaning services at the centre. The contract goes on to mention, amongst other things, that ACS would:

Furnish all labour, materials, supplies, equipment, services, machinery, tools and other facilities required for the prompt efficient supply of the service; and

Ensure its employees did not undertake work activities detrimental to their health, safety of welfare, including a provision to ensure adequate instruction and training was provided.

The contract also specifically stated it would indemnify Westfield

from and against all claims, demands, writs, summons, actions, suits, proceedings, judgments, orders, decrees, costs, losses and expenses of any nature…in relation to any…personal injury…arising out of any act, omission or negligence of [ACS], or any of its employees,…including any breach of this agreement… (Curswood Lawyers, 2011)

Elphick brought proceedings in the District Court of New South Wales alleging ACS and Westfield were negligent resulting in personal injury.[4]

When addressing the scope of the Duty of Care owed by Westfield the trial judge relied on the following passage of the judgment of Brennan J in Stevens v Brodribb Sawmilling Co Pty Ltd[5]:

The duty to use reasonable care in organising an activity does not import a duty to avoid any risk of injury; it imports a duty to use reasonable care to avoid unnecessary risks of injury and to minimise other risks of injury…once the activity has been organised and its operation is in the hands of independent contractors, liability for negligence by them within the area of their responsibility is not borne vicariously by the entrepreneur.

Whilst the cage was provided by Westfield it in itself was not unsuitable or unsafe, it was the system for unloading the cage that resulted in injury. The unloading process did not involve Westfield and the trial judge found ACS was responsible for the way the work was completed. The trial judge referred to the criteria set out in Sydney Water Corporation v Abramovic[6] when determining whether Westfield owed a duty to a worker who was an employee of an independent contractor, finding that Westfield did not owe Elphick a duty.

The criteria used in Sydney Water Corporation v Abramovic is set out below:

(a) the principal directs the manner of the performance of the work;

(b) the work requires the co ordination of the activities of different contractors;
(c) the principal has or ought to have knowledge of the risk and the employer does not and cannot reasonably be expected to have such knowledge;

(d) the principal has the means to alleviate the risk and the employer cannot reasonably be expected to do so;

(e) although the employer has or should have the relevant knowledge and can be expected reasonably to take steps to alleviate the risk, it does not, to the knowledge of the principal, do so.

Elphick appealed the findings in the New South Wales Court of Appeal, in respect of whether Westfield had a liability to him. Elphick argued that the duty of Westfield was akin to the duty of an employer to his employee and were responsible for the system of work as well as ACS. Elphick also argued that as Westfield owned the cage it was responsible for the manner in which it was used.

In the New South Wales Court of Appeal a unanimous judgement of the Court was delivered. The Court stated that the duty of care owed by Westfield was only to take reasonable care for Elphick’s safety as an entrant upon the premises.

Within section 10 (Duties of controllers of work premises, plant or substances) of the OHS Act Westfield who has control of premises used by people as a place of work must, so far as is reasonable practicable, ensure that the premises are safe and without risks to health. Westfield fulfilled this duty in regard to Elphick’s safety.

While a principal can owe a duty of care to an employee of an independent contractor this case demonstrates that just being an occupier of a workplace where work is undertaken is not sufficient in itself to create a duty of care. In my opinion this case confirms the need for obligations and duties of both parties to be made clear in contractual agreements in order to determine each parties duty of care. I believe, as demonstrated in this case, a well written and clear contract can have a significant impact when determining responsibilities following a workplace incident and in this case afforded Westfield with necessary protection and indemnity resulting in Elphick and ACS becoming responsible for reimbursing Westfield for the costs involved in the Appeal.

Articles/Books/Reports

Curswood Lawyers. (2011, December 02). Why Westfield escaped liability and obtained an indemnity costs order from its independent contractor. Retrieved May 21, 2012, from Curswood Lawyers: http://www.mondaq.com/australia/x/155968/Personal+Injury/Why+Westfield+escaped+liability+and+obtained+an+indemnity+costs+order+from+its+independent+contractor

Case Law

Elphick v Westfield Shopping Centre Management Company Pty Ltd (2011) NSWCA 356

Stevens v Brodribb Sawmilling Co Pty Ltd (1986) HCA

Sydney Water Corporation v Abramovic (2007) NSWCA

Legislation

Occupational Health and Safety Act 2000 (NSW)

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