Abramovic v Brambles Australia Ltd and Ors [2005] NSWDDT 30

Published 05 Oct 2015

The legal principle affirmed in this case is that an entrepreneur owes a duty of care to the employees of its subcontractors. 

Facts:
The Plaintiff (Mr Ante Abramovic) working as a labourer in tunneling and excavation between 1964 and 1973. The Plaintiff became incapacitated in 1973 due to cancer caused by the inhalation of silica in the course of his employment. The Plaintiff sues the following defendants:

  • Brambles Australia Ltd trading as Brambles Industrial Services;
  • Sydney Water Corporation as heir of the liabilities of the Metropolitan Water Sewerage and Draining Board (Water Board);
  • Con Drake
  • Workcover Authority of New South Wales; and
  • QBE Insurance Australia (Limited)

All the Defendants denied that they were liable for the Plaintiffs medical condition

Issue:
The issue in this case was liability, specifically:

  • whether the Plaintiffs injuries was a result of inhalation of silica,
  • Whether those injuries were foreseeable and
  • Could have been prevented by the exercise of reasonable care on the part of each defendant.

Decision:
His Honour, Curtis J tried the Defendants separately on the issue of liability. His Honour found every Defendant liable to the Plaintiff.

Reasoning:

Brambles
The Defendant argued that they were not liable as the Plaintiff failed to prove his employment by their company. The Plaintiff asserted that the Defendant had employed him for 3 months to perform excavation work at a site near Broadway. His Honour, found the Plaintiff to be a credible witness and his account of employment was consistent with the information given to the Dust Disease Board. His Honour held that Brambles employed the Plaintiff and that they were liable.

Workcover Authority of New South Wales
A man known as Arthur Alex employed the Plaintiff at various times between 1970 and 1972 . Mr. Alex was insured by Associated General Contractors Insurance Company Limited (in liquidation) during some periods of the Plaintiffs employment. His Honour found that by statutory imposition, WorkCover was heir to the liabilities of Mr. Alex during those periods of insurance. His Honour held that the Plaintiff was entitled to a verdict on the questions of liability generally against Workcover. However the extent of that liability was to be determined in the trial for damages.

Con Drake
The Plaintiff was employed by the Defendant for a period between one to two months in 1969. His Honour did not find it necessary to determine the exact length of the period, as the medical evidence indicated that all exposure to silica dust was contributory to the Plaintiff’s constellation of diseases. His Honour held that the Defendant was liable to the Plaintiff.

QBE Insurance (Australia) Limited
A verdict was made for the Defendant as there was no evidence presented against the company. His Honour did not make any order for costs.

Sydney Water Corporation

The Defendant conceded that the Plaintiff’s injuries were foreseeable and preventable by the Water Board.

The Defendant argued the:
A.    Plaintiff failed to prove he laboured on sites having any connection to the Water Board; and
B.    Water Board did not owe him a duty of care and thus could not be liable for its failure to take any steps to protect the Plaintiff from foreseeable harm. The question turned on determining whether an entrepreneur owes a duty of care to the employees of its subcontractors

A. Location of Sites.
His Honour found that the Plaintiffs description of work was consistent with the plan of works commissioned by the Water Board. His Honour held that the work completed by the Plaintiff was performed pursuant to a contract between the Plaintiff’s employers and the Water Board. Accordingly, the Plaintiff had worked on sites that were connected to the Water Board.

B. Does an entrepreneur owes a duty of care to the employees of its subcontractors?
His Honour stated that there were established categories where some care must be taken to prevent foreseeable injury to an individual. 

The duty of an entrepreneur to take reasonable care for the safety of persons engaged upon its works extends to employees of subcontractors (McArdle v Andmac Roofing Company (1967) 1 WLR 356)). 

Where an individual is injured by another’s failure to take precautions, recognition of a duty of care does not necessarily entitle that individual to succeed in a claim. A duty consists of a legal obligation to do or refrain from doing a particular act. The relationship between the parties is only indicative of whether any duty arises. Accordingly, while the relationship may require that some precaution be taken, the failure to take such precaution may not necessarily result in injury.

His Honour found that the Plaintiff’s employer was subcontracted by the Water Board to undertake certain work. The Plaintiff’s work was supervised by the Water Board. The Water Board had access to specialised knowledge concerning the latent dangers of inhaling microscopic silica particles. These dangers were not immediately apparent to laymen, such as the Plaintiff.
The Water Board also controlled the Plaintiff’s work and the manner in which that work was to be carried out. Accordingly, the Plaintiff was in no position to control the circumstances of his work.

The Water Board might reasonably have required that the employers contract to complete the work in a particular manner so as to obviate the risk, however this did not occur. Accordingly, the injury was a direct result of failure to exercise control by contractual stipulation to the Plaintiff’s employers by the Water Board.

Additionally, the Water Board carried out concurrent excavation activities within the metropolitan area using its own employees. Any duty owed to the Plaintiff co-extended with those owed to direct employees.

His Honour found the duty of the Water Board extended to ensuring by contractual stipulation that the work undertaken by the Plaintiff was carried out with water dampening. The Water Board had breached this duty. The Water Board was liable to the Plaintiff, however this duty is of limited content.

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