The HSE Act does not prescribe exactly what steps employers are
required to take in order to comply with their obligations.
But a case in which Duncan Cotterill was involved clarifies the
health and safety obligations of principals and head contractors
and is relevant to all contracting companies who engage contractors
The case concerned a construction company which was prosecuted
by the Department of Labour over an accident caused by the
negligence of one of its subcontractors. The judge dismissed the
charge against the construction company as head contractor for
failing to adequately monitor its subcontractor. The subcontractor
had been convicted and fined earlier, having entered a guilty
Duncan Cotterill's Health & Safety team defended the
head contractor in this case.
The decision will also have implications for project management
offices (PMOs) involved in the Christchurch rebuild as recent cases
indicate that the Ministry of Businesss, Innovation and Employment
(formerly the Department of Labour) intends to apply duties owed by
principals (and head contractors) to project managers.
In the case, a construction company was engaged as head
contractor to replace two railway bridges for the client. It
subcontracted a piling specialist to help with a variety of tasks
including building two temporary platforms from which work would be
done on the main bridge. The piles on the second temporary platform
were inadequate, causing the platform to collapse and the crane on
it to topple and fall into the water. Fortunately, no-one was
The evidence was clear that the platform failed because the
piling methodology used by the subcontractor was inadequate.
The Court found that a principal or head contractor is clearly
responsible for having overall control and management of the
construction project, for monitoring health and safety issues and
having a clear policy in place.
But the head contractor is not required to oversee the technical
aspects of the work that it has contracted out, particularly if it
has no expertise in that work, and those matters are within the
role and expertise of the subcontractor.
The construction company was found not to have breached the
Health and Safety in Employment Act 1992 and accordingly the charge
against it was dismissed.
The decision confirms that the head contractor is responsible
for checking the competence of subcontractors it engages and, once
the project starts, for general safety onsite, but its obligations
do not extend to "insuring" the subcontractor's
workmanship. Where a subcontractor is negligent, responsibility for
that safety issue must lie with the subcontractor itself.
The Court agreed that while the head contractor will not
necessarily need to be onsite at all times, they must regularly
communicate with their subcontractors and have adequate site
contact to be able to effectively monitor health and safety
MBIE has appealed the decision and the High Court will hear the
appeal in April 2013.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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