Principal contractor held to not be liable
Sawyer v Steeplechase Pty Ltd [2024] QSC 142
24 July 2024
Background
The worker, Luke Sawyer, brought an action in negligence to recover damages from the defendants in respect of personal injuries he says he sustained whilst working as a concreter for Cretek Concreting (Cretek). His claim involved two events, a specific lifting incident on 22 August 2016 and an alleged over period of time injury.
By way of summary, the two events are as follows:
- On 22 August 2016, when the worker was at a job site conducting concreting work. The first defendant’s construction business, Steeplechase Pty Ltd t/as SWConstructions (SWC) was the principal contractor for the construction project and the occupier of the property. SWC had engaged Cretek to undertake some of the concreting works. Cretek was run by the second defendant at the time.
While performing his duties at the site, the worker was required to lift, carry and lay concreting mesh of a significant weight (105kg). The worker alleged he sustained a lower back injury and consequential psychiatric injury as a result of undertaking this task.
- Over a period of time between 22 August 2016 and 3 July 2017: the worker alleged he suffered an aggravation of his lower back injury and consequential psychiatric injury whilst undertaking concreting duties for Cretek. Cretek was run by the second defendant and third defendant during this period.
Cretek had admitted breach of duty in respect to the 22 August 2016 injury, with the substance of its arguments focussing on medical causation and assessment of quantum. This involved detailed assessment by his Honour of the medical evidence and credibility of witnesses.
The worker was successful in establishing that his lower back and subsequent psychological injury was caused by the events on 22 August 2016. The over period of time claim against Cretek was dismissed.
Liability of principal contractor
The worker alleged that SWC was also liable (along with Cretek) for the injuries sustained on 22 August 2016 as it breached its duty of care to ensure a safe system of work and not expose the worker to unnecessary risks.
SWC denied it owed any duty of care as it was the Principal Contractor.
Justice Crowley reviewed the legal principles for determining whether SWC owed the worker a duty of care in its capacity as principal contractor, starting with Leighton Contractors v Fox and working through Stevens v Brodribb Sawmilling Co Pty Ltd, Caltex Refineries (Qld) Pty Ltd v Stavor and Kerle v BM Alliance Coal Operations Pty Ltd, then touching on Thomson v Woolworths (QLD) Pty Ltd, in the context of the worker’s occupier’s liability argument against SWC.
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.
In this claim, Justice Crowley found the circumstances did not give rise to a duty of the kind and scope pleaded by the worker. He discusses in detail the relevant factors, which included the contractual relationship, the nature of the activities being undertaken by the parties, the specialised nature of the work and the control and responsibilities of the parties over the system of work and operations (See paragraphs 127 - 143 of the judgement). Of note, was the fact that: Cretek supplied their own labour, was responsible for how the task would be carried out; the work Cretek was doing was self-contained and did not require co-ordination with other onsite activities; Cretek had knowledge of the requirements of the job including the use of the heavier mesh.
Justice Crowley found that it was not necessary for SWC to retain and exercise supervisory power over Cretek’s system of work with respect to the manual handling of the mesh sheets. SWC was held to not be liable for any injury, loss or damage to the worker.
Discussions and implications
- 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 circumstances of the arrangement including the degree of control the sub-contractor has over their own activities.
- In assessing the credibility and reliability of a witness, the court will consider the honesty of the witness, the consistency of their evidence with contemporaneous documents and the clarity and detail of their recollection.
- Justice Crowley found that despite the complexity of his injuries, the worker had some capacity to work at least two to three days per week in a sedentary to light work role. Accordingly, this was taken into account when assessing future economic loss.