Lee v Wickham Freight Lines Pty Ltd  NSWCA
A principal is not vicariously liable for the acts of their
The law does not generally impose a duty of care on a principal
with respect to employees of its subcontractors.
Although there may be particular circumstances in which a
principal does owe a duty, the content of this duty is far lower
than the duty owed by an employer to an employee.
The Plaintiff suffered a back injury while manoeuvring boxes of
soft drink that had become loose in the back of a semi-trailer
owned by his employer. In an almost eight year journey between
commencing proceedings and the verdict, the Plaintiff had
discontinued proceedings against Coca Cola Amatil who had
pre-packaged the pallets with the boxes and Woolworths who had
loaded them onto the truck at its distribution centre.
The Plaintiff proceeded to trial solely against Wickham Freight
Lines (WFL) who had subcontracted delivery of the goods to the
Plaintiff's employer. There was little doubt the manner by
which the Plaintiff was required to manoeuvre the boxes was unsafe.
However, presumably because of the restrictions under New South
Wales workers' compensation legislation, the Plaintiff did not
pursue a claim against his employer.
In one of the clearest in a long line of decisions involving the
liability of principals for injuries suffered by employees of their
sub-contractors, the Court of Appeal unanimously dismissed the
Plaintiff's claim. In doing so the court endorsed the basic
proposition that a principal is not vicariously liable for the acts
of its subcontractor. Further, that absent "particular
circumstances" a principal does not generally owe a duty of
care to an employee of a subcontractor.
Applying the factors from the leading case of Sydney Water
Corporation v Abramovic to determine whether "particular
circumstances" existed in this case, the court made the
following key findings:
Although WFL had a presence at the depot where the incident
occurred it was not the occupier and hence had no particular
control over the premises.
The fact that the exercise of unloading involved a transhipment
from the truck of one subcontractor to vehicles operated by another
subcontractor did not involve any active
coordination by WFL.
Further, WFL did not exercise any day-to-day control over the
activities of the subcontractor or its employee.
The fact that WFL had directed that the broken boxes be
transported to the customer did not assist the Plaintiff because,
the risk of boxes breaking was well understood and the worker had
the right to contact his employer. Accordingly it was not WFL's
responsibility to ensure the task was completed safely.
With the significant restriction of common law claims against
employers in New South Wales and other jurisdictions, Plaintiffs
will continue to search for other defendants whose involvement in
the incident will usually be more remote than the employer. For
companies that subcontract their duties to others, this case is a
refreshing reminder that where the principal genuinely has little
to do with directing how the work is performed courts will be slow
to acquiesce in these attempts.
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
CASA is reducing the entry requirements for flying very small (under 2kg) drones commercially.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).