In Samways v WorkCover Queensland & Ors [2010] 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 action.
Background
The Plaintiff was employed by the First Defendant, Tessman, on a construction site under the control of De Luca, the Second Defendant.
On 6 December 2005, the Plaintiff injured his left shoulder by walking into the raised bucket of a bobcat parked close to the Plaintiff's worksite.
Judgment
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 Defendant)
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 [2009] HCA 35 noting that:
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.
Contributory negligence
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 negligence.
Indemnity clauses
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 indemnifier
- a court has no mandate to rewrite a provision to avoid what it retrospectively perceives as commercial unfairness or lack of balance
- 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.
Implications
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 safe
- a negligent party can be indemnified against their own negligence.
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