William A.J. Higgs PhD
Seminar 6 in the Contract Law Series – Express & Implied Terms.
This is a presentation to unversity-level students in Contract Law by Dr William Higgs, Barrister-at-law, Elizabeth Street Chambers, Sydney, Australia.
This is teaching material. No warranty is given about the accuracy of the information contained. This presentation is updated from time to time.
Seminar 5 in the Contract Law Series – Privity and Express Terms.
This is a presentation to unversity-level students in Contract Law by Dr William Higgs, Barrister-at-law, Elizabeth Street Chambers, Sydney, Australia.
This is teaching material. No warranty is given about the accuracy of the information contained. This presentation is updated from time to time.
Seminar 4 in the Contract Law Series – Intention and Uncertainty.
This is a presentation to unversity-level students in Contract Law by Dr William Higgs, Barrister-at-law, Elizabeth Street Chambers, Sydney, Australia.
This is teaching material. No warranty is given about the accuracy of the information contained. This presentation is updated from time to time.
Seminar 3 in the Contract Law Series – Consideration.
This is a presentation to unversity-level students in Contract Law by Dr William Higgs, Barrister-at-law, Elizabeth Street Chambers, Sydney, Australia.
This is teaching material. No warranty is given about the accuracy of the information contained. This presentation is updated from time to time.
Seminar 2 in the Contract Law Series – Offer and Acceptance.
This is a presentation to unversity-level students in Contract Law by Dr William Higgs, Barrister-at-law, Elizabeth Street Chambers, Sydney, Australia.
This is teaching material. No warranty is given about the accuracy of the information contained. This presentation is updated from time to time.
Seminar 1 in the Contract Law Series – Introduction to Contract Law.
This is a presentation to unversity-level students in Contract Law by Dr William Higgs, Barrister-at-law, Elizabeth Street Chambers, Sydney, Australia.
This is teaching material. No warranty is given about the accuracy of the information contained. This presentation is updated from time to time.
No thanks I’ve had a glass already.
No really…what does it mean ? OK here’s a brief summary.
The scope and effect of the principle of res ipsa loquitur have been decisively settled by the High Court: Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121.
The principle is not a distinct, substantive rule of law, but an application of an inferential reasoning process, and the plaintiff bears the onus of proof of negligence even when the principle is applicable: Schellenberg [at 22].
A plaintiff may rely on res ipsa loquitur even though he or she has also pleaded particular acts or omissions of negligence on the part of the defendant provided the tribunal of fact concludes that:
The principle only applies if it is within the common knowledge and experience of mankind that the occurrence is unlikely to occur without negligence on the part of the party sued. Where the occurrence is outside the experience of the lay person, and the evidence, expert or otherwise, does not establish that such an occurrence ordinarily does not occur without negligence, res ipsa loquitur is inapplicable: Schellenberg [at 41], [at 43].
Lets use an example. Lets say an injury occurred to a person as a result of a collision between that person and another walking in opposite directions down a busy street. Is the collision of such a kind that does not ordinarily occur without negligence? We know that collisions such as this are a regular and common occurrence without negligence. This is thus a positive finding that the occurrence can occur without negligence. Hence, the principle wont apply. This highlights the need for evidence of the circumstances of such collision. It would be a slam dunk for the judge if the tortfeasor wasn’t called to give an account. Be careful of a Jones v Dunkel inference.
Further, it is not sufficient for the facts merely to speak of negligence: the evidence must point to the defendant’s negligence: Schellenberg [at 48].
It is common ground that the principles of construction of a Deed of Release flow from the decision of the High Court in Grant v John Grant & Sons Pty Ltd [1954] HCA 23; 91 CLR 112 at 123 ff.
(a) [F]irst, the common law requires general words in a release to be construed by reference to the subject-matter of the particular dispute(s) which the recitals said the parties had resolved on the terms of the deed. In this way, ‘the general words of a release should be restrained by the particular occasion’. Regard will be had to the background facts known to the parties, to the nature of the claims made (and proceedings commenced) prior to the release being executed, and the particular objective intent of the parties by whom the release is executed. The intention of the parties ascertained from this process will control the operation of general words in a release. The general words should not be permitted to subvert what the parties should be taken to have intended when the release is properly construed in its context;
(b) secondly, Equity operates to achieve an analogous result. An alleged releasor enjoys an equity ‘to have the general words of a release confined to the true purpose of the transaction ascertained from the scope of the instrument and the external circumstances.’ The ‘state of knowledge of the respective parties concerning the existence, character and extent of the liability in question and the actual intention of the releasor’ will be relevant matters in this context. Equity therefore ‘permits an investigation of the circumstances, including consideration of the actual intentions of the parties, in order to determine whether enforcement of the general words of a release would be against conscience’.”
Also relevant are the observations of Pembroke J in The Owners Corporation of Strata Plan 61390 v Multiplex Corporate Agency Pty Ltd (No 2) [2012] NSWSC 322 at [22] and [30] as follows:
“The principle for which Grant v John Grant & Sons (above) stands is sometimes described more widely than is justified. It is not, and never has been, authority for the proposition that the general words of a release can only ever apply to matters then known to the parties.
…
…the joint judgment in Grant v John Grant & Sons (above) also recognised that there will always be cases where, properly characterised, the parties should be taken to have intended that the general words of a release should operate to encompass all conceivable further disputes, whether disclosed or not and whether within the knowledge of a party or both parties, or outside of it… In such a case there is no room for the application of equitable principle. The equitable principle only has a role to play when it appears from the terms or the context or other admissible evidence, that the enforcement of the legal right would, by a literal application of the general words of a release, be against conscience. It would not be against conscience if the court is satisfied that the parties intended ‘upon a particular and solemn composition for peace’ to release uncertain demands and presently unknown claims…”. [Citations omitted]
Pembroke J’s observations were endorsed by the Victoria Court of Appeal in Doggett v Commonwealth Bank of Australia [2015] VSCA 351 at [63] per Whelan JA.
In Tooheys Ltd v Commissioner of Stamp Duties (NSW) [1961] HCA 35; (1961) 105 CLR 602, Taylor J, at 620 said of that phrase:
“.. the expression … is extremely wide but it is also vague and indefinite. Clearly enough it predicates the existence of some kind of relationship but it leaves unspecified the plane upon which the relationship is to be sought and identified. That being so, all that a court can do is to endeavour to seek some precision in the context in which the expression is used.”
His Honour went on to say, at 620, that “relating to” in the context there considered was not the ‘equivalent of “referring to”‘; the relationship between two different things must be based upon some more substantial ground.
In Oceanic Life Ltd v Chief Commissioner of Stamp Duties (NSW) [1999] NSWCA 416; (1999) 168 ALR 211; 154 FLR 129 Fitzgerald JA said, at [56]:
“The width of the phrase ‘relating to’ is undoubted. Lord Macnaghten stated that ‘[t]here is no expression more general or far-reaching’: Commissioner of Inland Revenue v Maple & Co (Paris) Ltd [1908] AC 22 at 26. See also Fountain v Alexander [1982] HCA 16; (1982) 150 CLR 615 at 629; Colakovski v Australian Telecommunications Corporation [1991] FCA 152; (1991) 29 FCR 429; Secretary, Department of Foreign Affairs and Trade v Boswell [1992] FCA 321; (1992) 36 FCR 367; PMT Partners Pty Ltd (In Liq) v Australian National Parks and Wildlife Service [1995] HCA 36; (1995) 184 CLR 301 at 329-330, although the addition of the words ‘or depending on’ was presumably intended to give the combined phrase ‘relating to or depending on’ a wider operation than ‘relating to’. The difficulties of construction presented by such language have also been noted. Taylor J observed that ‘… the expression ‘relating to’ … is … vague and indefinite …’ and ‘… leaves unspecified the plane upon which the relationship is [to be] sought and identified’: Tooheys Ltd v Commissioner of Stamp Duties [1961] HCA 35; (1961) 105 CLR 602 at 620. One area of debate has been whether, in particular legislation, a relationship need or need not be ‘direct’ or ‘direct and immediate’: see, for example, Ausfield Pty Ltd v Leyland Motor Corporation of Australia Ltd (No 2) [1977] FCA 6; (1977) 14 ALR 457 at 460, 462; 30 FLR 477 at 480, 483; Re Dingjan; Ex parte Wagner [1995] HCA 16; (1995) 183 CLR 323 at 364 and 370; Joye v Beach Petroleum NL [1996] FCA 1552; (1996) 67 FCR 275 at 285; see also Perlman v Perlman [1984] HCA 4; (1984) 155 CLR 474. Overall, the position judicially adopted has been that the operation of the phrase ‘relating to’ is determined by the statutory context and purpose: Butler v Johnston [1984] FCA 118; (1984) 4 FCR 83 at 87; Hatfield v Health Insurance Commission (1987) 15 FCR 487 at 491.”
In Black’s Law Dictionary (5th ed.), the meaning of “relates to” includes “to have bearing or concern”, “to pertain” and “to bring into association with or connection”.
(Source: Leighton Contractors Pty Ltd v Fox Calliden Insurance Limited v Fox [2009] HCA 35;
2 September 2009)
It is plain that the common law does not impose a duty of care on principals for the benefit of independent contractors engaged by them of the kind which they owe to their employees (Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16). However, it is recognised that in some circumstances a principal will come under a duty to use reasonable care to ensure that a system of work for one or more independent contractors is safe.
The principles were explained by Brennan J in Stevens v Brodribb Sawmilling Co Pty Ltd ((1986) 160 CLR 16 at 47-48 ):
“An entrepreneur who organises an activity involving a risk of injury to those engaged in it is under a duty to use reasonable care in organising the activity to avoid or minimise that risk, and that duty is imposed whether or not the entrepreneur is under a further duty of care to servants employed by him to carry out that activity. The entrepreneur’s duty arises simply because he is creating the risk and his duty is more limited than the duty owed by an employer to an employee. 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. It does not import a duty to retain control of working systems if it is reasonable to engage the services of independent contractors who are competent themselves to control their system of work without supervision by the entrepreneur. The circumstances may make it necessary for the entrepreneur to retain and exercise a supervisory power or to prescribe the respective areas of responsibility of independent contractors if confusion about those areas involves a risk of injury. But 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. If there is no failure to take reasonable care in the employment of independent contractors competent to control their own systems of work, or in not retaining a supervisory power or in leaving undefined the contractors’ respective areas of responsibility, the entrepreneur is not liable for damage caused merely by a negligent failure of an independent contractor to adopt or follow a safe system of work either within his area of responsibility or in an area of shared responsibility.
It is common in the construction industry for the principal contractor to arrange for the works to be carried out by subcontractors rather than by employing its own labour force.
Among the advantages that accrue to the principal contractor in adopting this model for its undertaking is that it does not incur the obligations that the law imposes on employers. An employer owes a personal, non-delegable, duty of care to its employees requiring that reasonable care is taken.
This is a more stringent obligation than a duty to take reasonable care to avoid foreseeable risk of injury to a person to whom a duty is owed.
While an employer is not vicariously liable for the negligent conduct of an independent contractor, it may incur liability where the negligent conduct occasions injury to its employee.
This is because it will have failed to discharge the special duty that it owes to its employees to ensure that reasonable care be taken, whether by itself, its employees or its independent contractors, for the safety of its injured employee (Kondis v State Transport Authority (1984) 154 CLR 672 at 686-687 per Mason J; [1984] HCA 61; Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; [1994] HCA 13.). In this case, if the pipe had struck the forklift driver, an employee of Leighton, there may be little doubt as to Leighton’s liability in respect of the injury to him.
The distinction that the common law draws between independent contractors and employees has been the subject of criticism (Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 at 366-367 per McHugh J; [1997] HCA 39. See also the discussion in Hollis v Vabu Pty Ltd (2001) 207 CLR 21 at 36 [32] per Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ, 53-58 [84]-[93] per McHugh J; [2001] HCA 44.).
However, as five Justices of this Court observed in Sweeney v Boylan Nominees Pty Ltd ((2006) 226 CLR 161; [2006] HCA 19.), whatever the logical and doctrinal imperfections and difficulties in the origins of the law relating to vicarious liability, the concept of distinguishing between independent contractors and employees is one too deeply rooted to be pulled out (Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161 at 173 [33] per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ.).
In particular, and as was emphasised in Sweeney ( (2006) 226 CLR 161 at 172 [29].), the authorities in the HighCourt do not support any principle that “A is vicariously liable for the conduct of B if B ‘represents’ A (in the sense of B acting for the benefit or advantage of A)”.
Earlier, in Scott v Davis ((2000) 204 CLR 333 at 342 [18], 422-424 [268]-[273], 440 [311], 459-460 [357]-[358]; [2000] HCA 52.) the Court refused to recognise an “agent” in a non-technical sense as an actor attracting principles of vicarious liability.