Australia: Verdict for Boral in claim by employee of haulage contractor – Court of Appeal rejects argument that a principal owes a duty to provide a safe system of work to an employee of a subcontractor
Despite Boral supplying the equipment, the Plaintiff making
complaints about the equipment, and having the right to direct the
Plaintiff, the claim failed.
Although a principal contractor potentially owes a duty to an
employee of a subcontractor, this duty is delegable and does not
extend to providing a safe system of work.
A general complaint about equipment will not usually assist a
Plaintiff to establish liability unless the complaint is about a
The Plaintiff was employed as the driver of a prime mover owned
by GMG, a company of which he was the sole director. GMG had a
contract with Boral to haul bricks to building sites with Boral
having responsibility to provide a "serviceable body" and
trailer installation for the prime mover.
Although the exact mechanism of injury was contentious, the
Court of Appeal found that the Plaintiff suffered a serious
shoulder injury as a consequence of attempting to slam a gate shut
on the trailer which had a distorted post. The equipment was
designed by a company the court found was a "large
organisation with a strong reputation" and in any event the
Plaintiff's expert conceded that the gate posts not negligently
The Plaintiff had made complaints about the distorted posts and
on instructions from Boral they were repaired by another company on
two occasions. In fact, at the time of the incident the gates were
booked in to be repaired but it was determined the problem was not
sufficiently serious to escalate the booking.
In unanimously rejecting the Plaintiff's appeal, the court
rejected the primary trial judge's finding that the Plaintiff
and Boral were effectively in an employer/employee relationship.
Instead, the court found that despite its power to direct, it owed
the Plaintiff a much lower delegable duty to
provide gates "that would not subject experienced, adult
users, taking reasonable care for their own safety, to an
unreasonable risk of injury".
The following findings were crucial to the court's decision
that Boral had not breached that duty:
There was no indication that the companies Boral delegated the
design, manufacture and maintenance of the gates to were anything
other than competent, or indeed that the work they performed was
Although the Plaintiff had complained about the gates, he was
an experienced truck driver and had not complained that the state
of the gates gave rise to a safety issue. In the circumstances
Boral was entitled to assume that the issue was one of
inconvenience and delay rather than safety.
This case demonstrates that courts will continue to be cautious
about applying high employment like duties on principal
contractors. Further, that in the absence of a relevant complaint
about safety, a principal contractor need not take urgent action in
respect of maintenance.
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