A worker has been successful in his claim for damages against both his employer and the principal contractor in the District Court of WA. This case explores the scope of duty of care of a principal contractor to an independent contractor’s employee and also apportionment of liability between a principal contractor and an independent contractor.
The relevant issues at trial were as follows:
- Whether MBC as principal contractor owed Mr Ciesla, an employee of an independent contractor, a duty of care and, if so, whether that duty was breached.
- Whether DGA as Mr Ciesla’s employer breached its duty of care owed to him.
- Whether Mr Ciesla was contributorily negligent.
- If both MBC and DGA were liable in negligence to Mr Ciesla, the apportionment of liability between them.
Mosman Bay Construction Pty Ltd (MBC) was the principal contractor responsible for the construction of 2 adjacent 4-storey homes in South Perth. MBC engaged various contractors to undertake the construction works including DGA Windows Australasia (DGA) who performed glazing work. Mr Ciesla was an employee of DGA. An express term of DGA’s quote for the glazing works was that MBC would supply and erect scaffolding required on site to enable DGA’s employees to undertake the glazing work. MBC did employ a scaffolder to erect, dismantle and move scaffolding. On 15 May 2017, while working as a glazier at one of the homes, Mr Ciesla fell from a 4.5 metre ladder and sustained serious injuries.
Mr Ciesla sought damages for negligence from both MBC and DGA. Mr Ciesla alleged that MBC failed to provide scaffolding to enable him to undertake his work safely. Mr Ciesla alleged that DGA failed to provide him with a safe system and place of work because DGA failed to ensure scaffolding was in place to enable Mr Ciesla to undertake his work safely. MBC and DGA both made contribution claims against each other.
The decision at trial
The court found that MBC owed a duty of care in co-ordinating the activities of independent contractors (including scaffolders and glaziers) to use reasonable care to avoid, not all risk of injury, but unnecessary risk of injury or to minimise the risk of injury to independent contractors and their employees (including Mr Ciesla) engaged in the construction of the homes. The court found that MBC breached its duty of care by failing to co-ordinate the work of the scaffolders on the site so that scaffolding was available and in place for contractors and their employees who needed to work at heights on the site. The court found that if there was insufficient scaffolding at the site, then MBC breached its duty of care by failing to have in place a process so that instructions were given to contractors visiting the site that they must first report to the site manager, explain to them the tasks to be conducted and await instructions from them as to when the relevant works could commence.
The court also found that DGA breached its non-delegable duty of care to Mr Ciesla by failing to provide and erect scaffolding at the site for use by Mr Ciesla or alternatively by failing to cause MBC to provide and erect such scaffolding. Further, DGA was also in breach of duty by failing to provide Mr Ciesla with supervision at the site or to appropriately instruct him so as to prevent him from commencing the task of performing glazing work until scaffolding was provided and erected.
The court found that Mr Ciesla was 25% contributorily negligent on the basis that he was aware of the risks of working from the top of an unsecured ladder and the risk of the ladder falling.
The court apportioned liability 40% to MBC and 60% to DGA.
The court assessed Mr Ciesla’s damages in the sum of approximately $930,000.
Implications for you
This decision highlights the scope of the duty of care owed by a principal contractor to an independent contractor’s employees at a construction site. It is important that principal contractors understand their obligations to co-ordinate activities and sequence works at a construction site.