The NSW Court of Appeal recently considered an occupying
builder's liability to provide a safe work-site for visitors,
including tradespeople and other sub-contractors, reaffirming that
the duty owed by a builder to contractors on-site is not akin to
the non-delegate duty of care owed by an employer to an
Mr Milan Sijuk was an experienced brick-cleaner. He was employed
by his wife who carried out her business as Rosa's Cleaning
While working on a building site in the possession of Ilvariy
Pty Limited (Ilvariy) trading as Craftsmen Homes, Mr Sijuk injured
himself when he fell through a hole in scaffolding.
The primary judge, Hall J, found that an unknown person had
moved a piece of scaffolding, thereby leaving a gap or hole in the
scaffolding. The site was not secure from public access. Mr
Sijuk's evidence was that prior to climbing on the scaffolding,
he had seen a notice placed on the scaffolding by its erector that
it was safe. His Honour concluded that both Rosa's Cleaning
Service (Mr Sijuk's employer) and Ilvariy, the occupier of the
site, had breached the duties of care they owed to Mr Sijuk,
causing his injuries.
Ilvariy appealed on several grounds, including:
it did not owe a duty of care to Mr Sijuk
if it did owe a duty, the duty was not breached
if it did owe a duty and the duty was breached, the breach was
not causative of the loss.
Ilvariy argued that the primary judge had erred by
characterising the duty owed to Mr Sijuk in terms akin to the
non-delegable duty owed to an employee by an employer, contrary to
the well-settled principles established in Stevens v Brodribb
Sawmilling Co Pty Limited ; Leighton Contractors Pty
Limited v Fox ; Andar Transport Pty Limited v
Brambles Limited .
Ilvariy submitted that its only duty was to co-ordinate trades
and, since the question of trade co-ordination had nothing to do
with Mr Sijuk's accident, there was no duty, breach or possible
causal link. In an effort to prove that hypothesis, Ilvariy relied
on the following comments of Brennan and Dawson JJ in
Papatonakis v Australian Telecommunications Commissioner
"...where an independent contractor carrying on a
particular trade is engaged by an occupier to work on his premises,
the occupier is not under a duty to give warning of a defect in the
premises if tradesmen of that class are accustomed to meeting and
safeguarding themselves against defects of that
Ilvariy's submissions on the question of duty were rejected
by Allsop P. Hodgson and Whealy JJA agreed with Allsop P's
decision. Referring to the appellant's extrapolation of the
principle enunciated in Papatonakis v Australian
Telecommunications Commissioner, his Honour held that:
"This way of putting the matter transforms contributory
negligence into a complete defence to the claim."
There are circumstances, his Honour conceded, where an occupier
is entitled to expect that a tradesperson will address
(independently of the occupier) dangers and defects on site,
particularly where the occupier is a non-technical occupier.
However, his Honour was quick to warn:
"That does not mean that a builder is free not to
exercise any reasonable care about the safety of the building site
of which it has possession."
His Honour went on to say:
"No doubt in some respects, a person who retains an
independent contractor can expect the latter to decide how to do
the task and what safeguards to put in place. This does not include
leaving it to the contractor to find the danger in scaffolding at a
building site that reasonable care by the builder/occupier would
have found and eliminated."
Hall J had made a deduction of 15 per cent for contributory
negligence and a further 10 per cent deduction for the notional
liability of the plaintiff's employer, Rosa's Cleaning
Service, pursuant to section 151Z of the Workers Compensation
Act 1987. The Court accepted that while his Honour's
assessment was low, it was not out of the range. Similarly, the
Court of Appeal was not prepared to disturb the primary judge's
assessment of the employer's notional liability.
There is a duty owed to exercise reasonable care to avoid
exposing site visitors, including trades and sub-contractors, to a
risk of injury caused by dangerous site conditions. To this extent,
the situation in Sijuk's case is distinguishable from
Leighton v Fox  which essentially deals with issues
relating to safe work practices, not safe work sites. The Court has
acknowledged that the principle in Papatonakis v Australian
Telecommunications Commissioner, while not applicable to Mr
Sijuk's circumstances, is still good law.
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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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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