Fox v Leighton Contractors Pty Limited Ors  NSWCA23 Court Of Appeal NSW
Giles, McColl and Basten JJA
Occupational Health & Safety Negligence Contributory Negligence Contribution between Tortfeasors Duty of Care of Principal Contractor to Sub-Contractors Building & Construction Work Duty of Principal Contractor to Maintain a Safe Workplace Duty to take Reasonable Care to ensure safety of Sub-Contractor Whether Non-Delegable Duty Failure to ensure Sub-Contractor underwent Safety Induction Training Extent of Direct Supervision of Sub-Contractors
The decision confirms the obligation of a principal contractor to provide a reasonable level of safety for sub-contractors entering onto a building site. The obligation to ensure that induction training is provided should properly be seen as a part of a principal contractor's general law duty of care to sub-contractors and others coming onto a construction site within its control.
It confirms a head contractor does NOT owe a non-delegable duty to sub-contractors coming on its site as per previous decisions of Stevens v Brodribb Sawmilling Co Pty Limited1, Hollis v Vabu Pty Ltd2 and Leichhardt Municipal Council v. Montgomery3.
Section 39A of the OH & S Act 2000 is designed to preclude a separate cause of action for breach of statutory duty. However, the provision is relevant when considering the scope of a common law duty.
On 7 March 2003 the appellant (Fox) was injured on the site of major building works at the Hilton Hotel in Sydney.
The head contractor carrying out the works was Leighton Contractors Pty Limited (Leighton). Leighton had contracted with Downview Pty Limited (Downview) to carry out concreting work. Downview engaged a business known as Aggforce Concrete, which supplied a pump truck with a driver and an offsider to operate it. The driver was Mr Warren Stewart, and the offsider was the appellant, Mr Brian Fox. The Contract between Leighton and Downview required that all persons engaged in work at the site must attend an induction which was to be conducted by Leighton.
The appellant was injured during the cleaning of pipes which had been used to pump cement. The appellant brought proceedings in the District Court against Leighton, Downview and Warren Stewart Pty Limited, the company which had supplied the services of Mr Stewart. The appellant was successful against Warren Stewart but unsuccessful against Leighton and Downview.
Mr Fox appealed.
The issues for determination were:
- whether Leighton was liable for the injury to the appellant;
- whether Downview was liable for the injury to the appellant;
- whether the appellant was contributorily negligent;
- whether Downview should be liable for contribution to Leighton;
The facts established that the appellant did not undergo any safety induction training prior to commencing work on site. The Court of Appeal held the head contractor Leightons was liable for the injury to the appellant: The obligation of a head contractor to provide a reasonable level of safety for sub-contractors is now well recognised. A head contractor in control of a construction site may owe a duty of care to persons coming on site and must take reasonable steps to ensure their safety. The obligation to ensure that induction training is provided should properly be seen as a part of a head contractor's general law duty of care to sub-contractors and others coming onto a construction site within its control.
Head Contractor's Duty
The Court of Appeal held that the trial judge should have found that Leighton as head contractor owed Fox a duty of care and that by allowing him to work on site without having undergone induction training was in breach of its duty of care.
The factual issue considered by the Court of Appeal was whether Leighton as head contractor took all reasonable care to ensure persons coming onto site did undergo induction training and consideration of the extent to which Leighton as head contractor was required to exercise direct supervision over sub-contractors to maintain a safe workplace.
The Court found that the level of control Leightons had over the site (issuing green cards, certifying access through a gate-keeper, requiring sub-contractors to be inducted) was sufficient to give rise to a duty of care which was breached by failing to induct Fox.
The law is well established and there was no basis for importing what is in effect an obligation akin to that of the employer to retain a degree of control which is inherently inconsistent with the relationship between a principal and an independent contractor. Accordingly, Leighton was not liable on that basis.
In so finding the Court re-affirmed a head contractor does not have a non-delegable duty of care. The continuing obligations of a head contractor are reflected in the Occupational Health & Safety Regulations and general law4, whether the head contractor has delegated the duty will depend on the circumstances of each case.
Per Basten JA (Giles and McColl JJA agreeing):
"the obligation to ensure that safety induction training was provided was part of the respondent's general law duty of care to sub-contractors and others coming onto the construction site within the respondent's control. The NSW District Court should have found the respondent owed the appellant a duty of care and that by allowing the appellant to work on the site without having undergone induction training Leighton was in breach of its duty. Induction training would have addressed cleaning out operations in relation to concrete pumping and failure to provide this training contributed to the accident."
The Court of Appeal held pursuant to the Occupational Health & Safety Act 2000, (the "Act") Leighton had statutory responsibilities in addition to any duty of care arising under the general law. Those duties extended beyond employment relationships.
Significantly, the Court of Appeal found that s 39A did not provide support for Leighton to delegate their responsibility under this section to sub-contractors by way of contractual provisions in the sub-contracts.
Whilst the Court of Appeal affirmed that Occupational Health & Safety Regulations are designed to preclude a separate cause of action for breach of statutory duty, it does not follow that such provisions are irrelevant when considering the scope of a common law duty. The continuing obligations of a head contractor, even where the work to be performed has been largely or totally subcontracted, are reflected in the Occupational Health & Safety Regulations as well as in the general law.
The Court of Appeal determined that the failure to provide induction training by Leighton contributed to the accident was an inference properly available on the evidence and one which should have been drawn.
The Court of Appeal found there was no reason on the facts to suppose that sub-contracting the concrete pumping services was in any way unreasonable. They found that as a sub-contractor, the liability of Downview was more readily established than that of Leighton as head contractor on the relevant facts.
The fact that Downview had sub-contracted the concrete pouring, including the pumping of the concrete to Aggforce caused Downview a further difficulty in that whilst they had quite precise and constraining obligations under their contract with Leighton, their failure to obtain similar conditions in the contract with the entity to which they sub-contracted (Aggforce) rendered Downview at risk of any departure from the obligations it had undertaken with Leighton. In particular, Downview did not tell Mr Cook and Mr Steel as sub-contractors that they were required to undergo induction training by Leighton prior to working on site, that Downview required five days notice of the identity of any persons working on site for provision to Leightons and that Downview was obliged to ensure that any persons coming on site completed induction training.
The Court of Appeal inferred that the haphazard manner in which Downview undertook its operations were directly responsible for the failure of Stewart and Fox to be given induction training. The opportunity to instruct Stewart and Fox on appropriate safety requirements and practices which should have been adopted on the site was lost as a direct result of Downview's ineffective administration of its contractual obligations.
The Court of Appeal held that Downview had a general law obligation to those participating in carrying out its contracting work to conduct operations safely and that to do that it was obliged to contract with competent and properly trained operators. By leaving it to its own sub-contractors to engage other labour and equipment, it effectively abandoned its responsibilities in that respect.
The Court of Appeal considered apportionment between Downview and Leighton. Having found that the failure to provide appropriate induction training to Fox was substantially a result of Downview's failure to organise its sub-contractors in a manner required by its contract with Leighton, the Court of Appeal apportioned a far higher level of responsibility to Downview, apportioning 80% of the damages payable by the respondents to Downview with the remaining 20% to Leightons.
The Court of Appeal was also asked to consider the degree of contribution the worker had for his own injuries. It was submitted that Fox was experienced in working with concrete pumping trucks and on building sites although not large multi-storey buildings. His inexperience with large multi-storey buildings, it was argued, should have led him to seek further instructions prior to entering on site.
Giles and McColl JJA held in the circumstances, reasonable care for his own safety did not require the appellant to raise the necessity for induction before he went onto the site, nor to decline to take on the work because he did not have a green card. Leighton and Downview did not establish that the appellant's conduct constituted a departure from the standard of care of a reasonable worker in the circumstances.
Basten JA dissented on the basis that knowing that he should have had induction training on the site in relation to health and safety issues, the appellant's omission to make any inquiries in that regard involved a degree of failure on his part to take reasonable steps for his own safety. His Honour held a just and equitable proportion of responsibility to the appellant would be 15%.
- The decision confirms the longstanding principal that a head contractor owes a duty of care to persons coming on to site for their safety. Whether or not this duty can be delegated will turn on the facts of each case.
- The extent of a head contractor's duty of care will be measured against the degree of control and supervision it exercises over the site. The significant implications from this decision for a head contractor is the emphasis on its obligations under the Occupational Health & Safety Act to ensure induction training is provided and this obligation remains with the head contractor, notwithstanding a specific requirement in a sub-contract for a subcontractor to carry out induction for its own employees or subcontractors. It is part of a head contractor's general law duty of care to sub-contractors and others coming on to a site within its control.
- A head contractor should firstly require sub-contractors to be contractually bound to ensure their personnel and any sub-subcontractors undergo induction training and secondly, that there is compliance with the provisions of the Occupational Health & Safety Regulations when carrying out the induction. Allowing persons to work on site without being inducted is indicative of a breach of duty of care.
1. (1986) 160 CLA
2.  HCA 44
3.  HCA 6
4. Marcic v Dalmer Formwork (Australia) Pty Ltd  NSWCA 174 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 Leichhardt Municipal Council v Montgomery  HCA 39
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