A trial judge cannot find negligence based on 'common experience' where the question involves competing considerations requiring expert evidence, such as whether safety matting would reduce or increase risk during physical training exercises. An employer who engages an expert independent contractor to conduct training is not independently negligent merely because a supervisor occasionally 'looks in' on the training. Where an employer's liability rests solely on its non-delegable duty of care and the negligence is entirely that of the independent contractor, the contractor must fully indemnify the employer under s 5(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW).
The full text is available to signed-in members, including the 1 later case that cites this judgment.