In Samways v WorkCover Queensland & Ors
 QSC 127, Justice Applegarth of the Supreme Court of
Queensland considered the liability and duty of care owed to
workers on a construction site.
The Plaintiff brought a claim for damages in negligence against
his employer (First Defendant), the principal contractor (Second
Defendant) and its subcontractor (Third Defendant). The First
Defendant went into liquidation and WorkCover took carriage of the
The Plaintiff was employed by the First Defendant, Tessman, on a
construction site under the control of De Luca, the Second
On 6 December 2005, the Plaintiff injured his left shoulder by
walking into the raised bucket of a bobcat parked close to the
His Honour made the following findings:
Lynsha (Subcontractor – Third Defendant)
Leaving the bucket of the bobcat in a raised position on a
worksite gave rise to a clearly foreseeable risk of injury. The
third defendant therefore owed a duty of care to the Plaintiff and
other workers in the vicinity of the bobcat.
Justice Applegarth stated that "[g]iven the risk of serious
injury, the degree of probability of its occurrence and the minimal
inconvenience that would have been occasioned in moving the bobcat
after it had been repaired", the bobcat driver breached his
duty of care and his employer (the Third Defendant) was vicariously
liable for his negligence.
De Luca (Principal contractor – Second
De Luca, owed the Plaintiff a duty to take reasonable care as he
was in control of the worksite. Justice Applegarth followed the
decision of the High Court in Leighton Contractors v Fox  HCA
35 noting that:
"in some circumstances a principal will come under a duty to
use reasonable care to ensure that a system of work for one or more
independent contractors is safe."
His Honour found that the Second Defendant should have directed
the bobcat driver to move the bobcat to a safer location or direct
that it be fenced off. The failure to take steps to remove or
reduce the risk amounted to negligence.
Tessman (Employer – First Defendant)
The First Defendant owed a nondelegable duty to take reasonable
care to avoid foreseeable risk of injury to the Plaintiff. The risk
of injury was found to be reasonably foreseeable. The question was
whether the First Defendant could have taken steps to remove the
risk and the failure to take such steps was unreasonable.
The foreman of the First Defendant, had informed the workers
including the Plaintiff that the bobcat was there, that it posed a
risk and instructed the workers to "try to avoid" it. His
Honour concluded that it was not reasonable simply to warn the
workers of the danger. The workers should have been excluded from
the area in which the bobcat was situated until it was moved or
barricaded. In failing to exclude the workers from the area in
which the bobcat was situated until it was moved or barricaded, the
First Defendant was found to be negligent.
The Plaintiff failed to pay sufficient attention to the bobcat
and failed to have regard to his own safety when moving around the
construction site. As his failure could not be described as
"mere inadvertence, inattention or mismanagement", the
damages awarded were reduced on account of contributory
Justice Applegarth upheld the indemnity the Third Defendant
sought from the Second Defendant pursuant to the terms of the
bobcat hire contract, making the following points:
an indemnity clause falls to be construed strictly, and any
doubt regarding construction should be resolved in favour of the
a court has no mandate to rewrite a provision to avoid what it
retrospectively perceives as commercial unfairness or lack of
as the Third Defendant ceded control over the operator and the
Second Defendant assumed that control, the clause should be
construed to extend to claims for liability for personal injury
where the Third Defendant is vicariously liable for the negligence
of its employee.
The following points can be taken from this decision:
a verbal warning to avoid a foreseeable risk will not be
sufficient to discharge an employer's duty of care
parties in control of a worksite should use reasonable care to
ensure that the system of work for independent contractors is
a negligent party can be indemnified against their own
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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