In Stathakis v Richard Crookes Constructions Pty Ltd [2026] NSWSC 1113, the NSW Supreme Court entered a verdict and judgment for the defendant against the plaintiff’s unsuccessful negligence claim finding that the defendant, as the head contractor of the site on which the plaintiff sustained injury, did discharge the duty of care it owed.
In issue
The New South Wales Supreme Court was tasked with determining a head contractor’s liability to the plaintiff, who was an employee of a sub-contractor, in circumstances where the head contractor asserted that it had instructed the plaintiff that a certain access point was the only permitted pedestrian entry point and there was therefore no occasion for the plaintiff to have walked in the area where the subject incident occurred. The critical focus of the Court in determining the head contractor’s liability in negligence then became:
- whether the head contractor notified its subcontractor (and the plaintiff’s employer) that all workers attending the site were to enter only through a certain gate (the Princes Highway gate), and
- whether the plaintiff was so informed, either by his employer or the head contractor.
The background
The defendant, Richard Crookes Constructions Pty Ltd, was the head contractor for a multi-building development at 213 Princes Highway, Arncliffe. The plaintiff was employed as a tradesman painter by Grantee Pty Ltd, a subcontractor engaged to perform works at the site.
On 7 May 2020, the plaintiff entered the site through an unauthorised gate on Townsend Lane which, according to the defendant, was designated for vehicle access only. He tripped over a piece of steel reinforcing mesh and fell, fracturing both elbows. The plaintiff claimed that the defendant was negligent in failing to ensure the area was free of hazards and adequately lit. The plaintiff’s evidence was contradictory at trial, albeit in cross-examination he denied receiving any instruction in toolbox meetings to the effect that workers should only use the Princes Highway gate to access the site.
The defendant maintained that workers were instructed to use a designated pedestrian gate on Princes Highway and that the plaintiff's use of the Townsend Lane gate was unauthorised. The defendant also argued that the risk of tripping over construction materials was an obvious risk under the Civil Liability Act 2002 (NSW).
The defendant also filed a cross-claim against its contracted security company, Armor Security. The defendant asserted that at all material times, it had instructed Armor Security that the Princes Highway gate was the designated access point and that, by unlocking the Townsend Lane gate and allowing the plaintiff to enter via that unauthorised route, the night security guard’s conduct constituted a breach of contract.
The decision at trial
The Court had regard to evidence provided by Mr Wesley Ward, the site manager and an employee of the defendant, as well as that of Mr Emmanuel Filipkis, the principal of Grantee. The Court accepted Mr Filipakis’ evidence about receiving instruction from the defendant that all workers were to enter and exit the site only through the Princes Highway gate and that in turn, this was repeatedly passed on to Grantee’s employees, including the plaintiff.
The Court found, contrary to the plaintiff’s evidence, that he was aware of the instruction to use the Princes Highway gate and knowingly contravened it by entering through the Townsend Lane gate.
The Court ultimately found that the defendant had discharged the duty of care it owed to the plaintiff by implementing reasonable measures to ensure safe access to the site. These measures included directing all subcontractors, including Grantee, that they were to require their employees only to enter the site through the Princes Highway gate, informing the plaintiff directly of this requirement and taking reasonable care to keep access ways between the designated pedestrian gate and the subcontractors’ working areas free of hazards.
The Court held that the defendant was not required to ensure the safety of the Townsend Lane gate area, as it was not intended for pedestrian use. The Court dismissed the plaintiff's claim and ordered him to pay the defendant's costs.
With respect to the cross-claim, the Court found that the defendant had not provided clear contractual instructions to the security company to prohibit pedestrian access through the Townsend Lane gate. As a result, had the Court found the defendant liable to the plaintiff in negligence, the security company would not have been liable for breach of contract. The Court dismissed the cross-claim and directed the parties to resolve the issue of costs.
Implications for you
A head contractor owes a duty to all workers to exercise reasonable care in the way it organises its site and to implement a safe system of entry and safe access through the site. This decision emphasises the importance of clear communication and the documentation of safety instructions and contractual obligations on construction sites.
The decision also reiterates that a defendant will not be found liable in negligence in circumstances where the evidence establishes that it discharged the duty of care owed to the plaintiff. To that end, the plaintiff’s contention that the defendant neglected to exercise reasonable care for his safety was proven wrong.
Stathakis v Richard Crookes Constructions Pty Ltd [2026] NSWSC 1113
