Bettergrow Pty Limited v NSW Electricity Networks Operations Pty Ltd as trustee for NSW Electricity Networks Operations Trust t/as TransGrid (No 2) [2018] NSWSC 514
In this decision, the Court (Ball J) dismissed all of Bettergrow’s negligence claims against a suite of corporate defendants, including a claim against the first defendant (Transgrid) for allegedly breaching its non-delegable duty of care to Bettergrow and a separate breach of contract claim against the fourth defendant (On-Line).
Facts
Bettergrow owned a drill mud processing facility west of Sydney. It was not licensed to receive asbestos contaminated waste. However, asbestos contaminated waste was delivered to its site in the course of works being performed to upgrade an electricity substation owned by Transgrid. As a result, Bettergrow closed its facility for 7 weeks for decontamination. It claimed the costs of decontamination and lost profits.
The Defendants were related by a series of subcontracts. Transgrid (Defendant 1) owned the electricity substation that was being upgraded. It entered into a contract with PowerCor (Defendant 2) to undertake the refurbishment. Powerco engaged TTR Construction (Defendant 3) to perform works (TTR went into liquidation so there was no claim against it). TTR Construction engaged On-Line (Defendant 4) to perform digging works at the substation and to deliver the waste materials to the premises owned by Bettergrow.
Analysis
The decision offers helpful (and detailed) analysis in relation to the application of the doctrine of non-delegable duty of care as well as the ordinary duty of care in the context of a relationship defined by a series of subcontracts and where particulars of negligence include a “failure to supervise”.
The decision referred to two recent decisions of the United Kingdom in respect of the non-delegable duty of care (Armes v Nottinghamshire County Council [2017] UKSC 60; Woodland v Essex County Council [2014] AC 537). It notes that unlike in the United Kingdom, in Australia, the categorisation of cases involving a non-delegable duty of care has not yet been adopted by the High Court. Instead, the leading authority in Australia remains Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 which referred to he judgment of Mason J (with whom Deane and Dawson JJ agreed) in Kondis v State Transport Authority (1984) 154 CLR 672 at 687 said:
In most, though conceivably not all, of such categories of case [that is, cases where a non-delegable duty arises], the common “element in the relationship between the parties which generates [the] special responsibility or duty to see that care is taken” is that “the person on whom [the duty] is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised”. It will be convenient to refer to that common element as “the central element of control”. Viewed from the perspective of the person to whom the duty is owed, the relationship of proximity giving rise to the non-delegable duty of care in such cases is marked by special dependence or vulnerability on the part of that person.
What next?
There is an appetite for clarification of the ambit of non-delegable duty of care in Australia. Whether aspects of this decision will create such an opportunity for higher courts to determine the matter remains to be seen.
Read the decision in full
Link to decision.