Head contractor liable for injuries of contractor 'lending a hand'

20 December 2022

The NSWCA found the head contractor wholly liable for injuries sustained by a contractor enlisted to help move and lift a door on a building site where the head contractor was responsible for orchestrating, directing and supervising the activity.

The background

The first respondent, Alan Monahan (Monahan) was working as a sub-contracted carpenter on a residential building site for the appellant and head contractor, Bellevarde Constructions (Bellevarde). The second respondent and cross appellant, L’Officina by Vincenzo Australia (L’Officina) was responsible for the manufacture, supply and installation of a heavy metal clad door weighing 200kg. Monahan was asked by a tradesperson of Bellevarde to assist with moving and lifting the door from the site as it was not ready to be installed. He suffered an injury to his lumbar spine as a result.

Monahan sued Bellevarde and L’Officina for negligence in the District Court.

The decision at trial

Levy DCJ found that Bellevarde, through its employee, initiated and directed the process of shifting the door and loading it onto a truck, which led to Monahan’s injury. His Honour found that Bellevarde was in control of the site and was responsible for the system of work and therefore it should bear the greater responsibility. Whilst L’Officina’s truck driver participated in the loading of the door, L’Officina’s role was minor. In the circumstances, Levy DCJ apportioned liability 80% to Bellevarde and 20% to L’Officina. Monahan was awarded damages of $750,000 inclusive of interest.

The issues on appeal

The issue on appeal was the apportionment of liability between Bellevarde and L’Officina. In determining L’Officina’s liability, the Court of Appeal had to consider whether L’Officina owed any relevant duty of care to Monahan.

The decision on appeal

In dismissing Bellevarde’s appeal, the Court of Appeal held that the activity arose from Bellevarde’s failure to have adequate footings and space on site for the installation of the door. Further, the lifting of the door was instigated by Bellevarde, under the direction and supervision of its employee, on a site controlled by Bellevarde. The Court of Appeal allowed L’Officina’s cross-appeal, finding that it did not owe any duty of care to Monahan because L’Officina did not invite Monahan to lift the door and was not involved in planning or directing the activity. It did nothing more than provide the truck driver, who may have been recruited by Bellevarde to assist in the lift. Consequently, Bellevarde was ordered to pay the judgment sum and costs awarded against the plaintiff and L’Officina’s costs of both cross-claims.

Implications for you

It is not uncommon for a contractor to lend a hand temporarily to another contractor on a building site. Ultimately however, the party responsible for enlisting the third party to assist with the task owes them a duty to take reasonable care for their safety. That includes planning the activity and ensuring there is a safe system of work and adequate supervision.

Bellevarde Constructions Pty Ltd v L’Officina by Vincenzo Australia Pty Limited [2022] NSWCA 246

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