The Queen v A.C.R Roofing Pt Ltd [2004] VSCA 215
Keywords: Reasonably Practicable; Control; Expertise; Contractor Safety Management; Engaged by a principal
In my last Safety Case(s) article, Stratton v Van Driel, I suggested expertise is a relevant factor when considering the extent to which a principal has control over the work a contractor does. In this case, ACR Roofing, the court expressly spoke about the relevance of expertise.
The Case
In 1999, Peter Gibson Developments Pty Ltd (Gibson) was constructing an extension to an existing commercial building. As part of the project Gibson engaged ACR Roofing (ACR) to install the roof including internal access to the roof, roof safety mesh, insulation box guttering and associated flashings and roof plumbing, for a fixed price of $22,000.
After the roof beams and purlins had been installed and some but not all of the safety mesh had been secured in place, ACR contracted Associated Rigging Pty Ltd (Associated Rigging), a crane company, to lift packs of new steel roof sheets onto the roof so ACR could install them.
Associated Rigging did not have enough men and machines to do the work and so it contracted with James Cranes Pty Ltd (James Cranes) to provide a 20 tonne crane with a crane operator and dogman.
During the work, the crane touched overhead powerlines while the dogman was handling a pack of roof sheets suspended from the crane and the dogman was electrocuted and fell to the concrete floor below.
Medical evidence established that the cause of death was electrocution.
ACR was charged under Victorian health and safety legislation, with:
being an employer it failed to provide and maintain so far as practicable for employees a working environment that was safe and without risks to health, in that it failed to provide and maintain plant and systems of work that were so far as practicable safe and without risks to health. [7]
ACR was convicted of the charge and appealed.
The Findings
There was some discussion in the case about whether James Cranes, was “engaged” by ACR, given they were a subcontractor to Associated Rigging.
The Court said the idea of “engagement” under the health and safety legislation was broader than “privity of contract”. In other words, just because a party was not in a contractual relationship with a principal, did not mean they were not engaged by the principal. Having regard for the purpose of health and safety legislation, the Court said “engaged by” was not limited to contractual relationships and should be extended to matters over which the principal had control. On this basis, James Cranes was relevantly engaged by ACR:
I consider that it would make little sense to interpret “engaged by” so as to restrict the operation of the section to contractors with whom the employer is in contractual relations. It does, however, make evident sense, and in my view it was intended that the expression include the engagement of any contractor in relation to matters over which the employer has control …
…
… a contractor could just as well be regarded as engaged by the employer in relation to matters over which the employer has control if the contractor were engaged directly by the employer under a contract with the employer, or by another contractor under a sub-contract, or by a sub-contractor under a sub, sub-contract, or under a sub, sub, sub-contract or some remoter species of sub-contract; regardless of the layers of contractual relations that might separate the contractor from the employer. [54]
When it came to the question of control, ACR argued they relied on an expert crane company to carry out tasks in which ACR had no expertise. Further, ACR argued it was industry practice:
… for the crane crew to take control of the site once they arrive, the dogman is invariably in control of the lift, it was thus up to the dogman as to whether the lift would proceed and how the lift was to proceed and, if the dogman had determined that it was not safe to proceed, A.C.R. would have to have abided by that determination. [66]
However, one of the alleged breaches was the failure to install safety mesh on the roof, and in relation to this, the Court said:
Whatever might be said about other aspects of the lift, there can be no doubt upon the evidence that A.C.R. did have control over the erection of safety mesh.
…
A.C.R. owed that duty as much to the employees of contractors as to its own employees. A.C.R. could have used its own employees to lift up the sheets from the ground to the roof, if necessary one by one. Had it done so, it would have been bound to do what was practicable to ensure that the mesh was in place or else that the employees were fitted with individual restraints. The fact that A.C.R. chose a crane company instead of employees to lift up the sheets can in principle make no difference. A.C.R. owed to the employees of contractors engaged upon the roof the same duty as it owed to its own employees to do what was practicable to guard against a fall from the roof. In the circumstances that meant doing what was practicable to ensure that safety mesh was installed before the work proceeded or else doing what was practicable to ensure the use of individual restraints. [67] (my emphasis added)
The Court did explain how expertise might impact on the question of control, and distinguished between the installation of the mesh and setting up the crane:
For example it could hardly be said that A.C.R. had control over the siting of the crane or the method of lifting or that it was practicable for A.C.R. to do much if anything about either of those matters. Prima facie those things were so much within the sphere of the contractor’s expertise and beyond that of A.C.R. as to mean that A.C.R.’s obligations in respect of those activities could well have been discharged by warning the contractor of any special danger of which A.C.R. knew or should have known. [68]
But the erection of the safety mesh was a matter of a different order. The need for it was well known to A.C.R. and in any event was obvious. The evidence shows that it could have been installed before the work began and indeed that it would have been installed before work began, were it not for the fact that one of the scissor lifts was out of service. A.C.R. recognised that it had a duty to its employees to ensure that the mesh was installed before work began. [The legislation] dictates that it owed the same duty to the employees of contractors engaged to work on the roof. A.C.R. could not have absolved itself of its duty to its employees by leaving it up to them to decide whether they were willing to take the risk. In the same way A.C.R. could not absolve itself of its duty to employees of contractors engaged to work on the roof by leaving it up to them to decide whether they were willing to take the risk. It could perhaps have absolved itself of responsibility by doing whatever was practicable to ensure that any workers on the roof were fitted with individual restraint systems. But the evidence shows that in this case it did nothing of the kind. [69] (my emphasis added)
Comments
In the end, ACR’s appeal was unsuccessful and their conviction stood.
There were several legal arguments in the ACR case which did not directly impact on principles relevant for health and safety managers. For example, there was a lot of discussion about the concept of “agency” which was raised in the first decision, when ACR was convicted. On appeal, the Court said that the primary judge made an error in relation to its directions about agency, but that error did not cause any substantial miscarriage of justice, and there was no reason to overturn the initial decision.
From health and safety management perspective, however, there are a number of interesting points to come out of the case. They are:
The idea of “engaging” another party under health and safety legislation is broader than a contractual relationship.
Matters over which a principal might have control are likely to extend to hazards which are well-known and obvious, even where the principal is not directly managing that work.
Matters over which a principal might have control are unlikely to include hazards, or systems of work, where the principal has no knowledge, understanding or expertise. In that sense, a principal is not generally responsible for the way that an expert contract that performs work within their area of expertise.
Of course, just because a contractor has control does not mean it is legally liable. The question still has to be asked, what reasonably practicable steps a principal has to take in relation to matters over which might have control? In some cases, a principal might have to do nothing more than confirm contractor has a system in place to manage the hazard.
Another interesting aspect of the case, which was not discussed (at least on appeal), was the notion of causation. The cause of death in this case was electrocution, but a number of the particulars of the charge related to safety mesh and fall protection – none of which "caused" the death.
One of the characteristics of health and safety legislation is that an alleged breach of the legislation does not have to cause an accident or incident for there to be legal liability. Indeed there does not even have to be an accident for there to be legal liability.These are concepts we will explore in later cases in the series.
You can read more articles in the Safety Case(s) series HERE.
This article represents a general discussion about legal principles. It is not specific advice, and you should seek your own legal advice in relation to your specific circumstances.