The Supreme Court of Queensland considered whether a Principal Contractor owed a duty to take reasonable care to supervise, monitor and ensure a safe system of work for specialised work by independent contractors. Justice Crowley confirmed that a Principal Contractor will not generally be liable for an injury sustained by an employee of an independent contractor that occurs when the employee is performing work solely under the direction and control of the independent contractor, and within the independent contractor’s area of expertise.
In issue
Whether a Principal Contractor has a duty to take reasonable care to supervise and monitor and ensure a safe system of work for specialised work by independent contractors.
The background
The plaintiff was employed as a concreter by Cretek Concreting (Cretek). Cretek was engaged by Steeplechase Pty Ltd t/as SWConstructions (SWC), the principal contractor, to undertake concreting works at a residential property located in Ascot, Queensland (the site).
The plaintiff alleged that he suffered an injury at the site on 22 August 2016 when he and another Cretek employee were directed to lift, carry and lay concreting mesh of a significant weight (105kg) at the site by a supervisor from Cretek. The plaintiff alleges while he was squatting and reaching out with one of the mesh sheets above his head, he felt a click in his lower back (incident 1).
The plaintiff alleged he suffered a further injury on 3 July 2017 when he was working for Cretek at another site and hurt his back when he bent over to get a drink from his esky during a work break (incident 2).
The plaintiff brought a claim against SWC and Cretek for incident 1, and a claim against Cretek for incident 2.
The plaintiff alleged SWC owed him a duty to take reasonable care to inter alia:
- monitor and maintain workplace health and safety at the site;
- direct him not to engage in unsafe work;
- warn him of any unnecessary risk of injury.
SWC denied it owed any duty of care as alleged by the plaintiff as it was only the Principal Contractor of the site.
The decision at trial
Justice Crowley reviewed the legal principles for determining whether SWC owed the worker a duty of care in its capacity as principal contractor, including the leading High Court decisions of Leighton Contractors v Fox1 and Stevens v Brodribb Sawmilling Co Pty Ltd2, and the decisions of Caltex Refineries (Qld) Pty Ltd v Stavor3 and Kerle v BM Alliance Coal Operations Pty Ltd4.
Justice Crowley considered that these authorities establish that in some circumstances a principal contractor will have a duty to use reasonable care to ensure a safe system of work for independent contractors. Whether such a duty arises is to be determined by considering the nature of the relationship between the parties and the totality of the circumstances.
Justice Crowley found the circumstances did not give rise to a duty of the kind and scope pleaded by the plaintiff. Justice Crowley found that SWC had engaged Cretek as an ostensibly competent contractor to perform a particular job, and Cretek was competent to devise and control its own system of work. SWC did not retain control over Cretek’s work systems, just because of its status as an occupier of the site or because of its duties under Workplace Health and Safety legislation, Australian Standards, or contractual duty. Although SWC was the occupier of the site, this was not a case where it had established and maintained a system for performing a particular activity with which Cretek and its employees were to conform. SWC did not direct or prescribe how the mesh sheets were to be handled and was not obliged to.
Justice Crowley also did not consider that SWC was required to undertake a risk assessment of the task the plaintiff was performing. That was Cretek’s responsibility. Cretek, as a competent independent contractor, knew the nature of the particular tasks to be carried out on the incident date and knew, or ought to have known, of the risks involved. It had sufficient workers onsite to safely lift, carry and lay the mesh. It could have directed all four workers to perform that task. Alternatively, it could have instructed its workers to cut the mesh sheets, which could easily have been done, before handling them. Justice Crowley found Cretek, as the plaintiff’s employer, had breached its duty to the plaintiff and the breach of duty was causative of the plaintiff’s loss.
Implications for you
This case confirms the principles established in the decision of Leighton Contractors v Fox and refutes the position that the obligations owed by a Principal Contractor have changed with the commencement of the model Work Health and Safety laws. Whether a Principal Contractor will owe a duty of care to maintain a safe system of work for the independent sub-contractor, will depend on the contractual relationship, the nature of the activities being undertaken by the parties, the specialised nature of the work and the degree of control the subcontractor has over the system of work and operations.
Sawyer v Steeplechase Pty Ltd [2024] QSC 142
1 Leighton Contractors Pty Ltd v Fox [2009] HCA 35; 240 CLR 1
2 Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; 160 CLR 16
3 Caltex Refineries (Qld) Pty Ltd v Stavor [2009] 75 NSWLR 649
4 Kerle v BM Alliance Coal Operations Pty Ltd [2016] 262 IR 281
