Australia: Duty Of Care Owed By A Head Contractor To An Employee Of A Sub-Contractor - Assessment Of Damages In Respect Of A Subsequent Accident

Last Updated: 20 August 2008
Article by Nicholas Gordon

Tolhurst v Cleary Bros (Bombo) Pty Limited & Anor [2008] NSWCA 181

Beazley JA, Giles JA and Tobias JA

In Brief

  • The Court of Appeal considered the circumstances in which a head contractor can be liable for negligence causing damage to employees of independent contractors.
  • Where there is a subsequent accident the question to be answered is whether the damage sustained is greater because of aggravation of the earlier injury rather than seeking to establish if the initial incident was a substantial and independent cause of the plaintiff's long term problems.

Background Circumstances

  • The plaintiff was employed by a plant operated by Cleary Bros (Bombo) Pty Limited ("Cleary"), the first defendant. Cleary supplied and operated earth moving equipment and other heavy machinery at a colliery owned and operated by Endeavour Coal Pty Limited ("Endeavour"), the second defendant.
  • In early November 2001 the plaintiff was using a front end loader to take coal from a stock pile at the colliery in preparation for loading into trucks. The face of the stock pile collapsed, forcing the loader backwards. The plaintiff was thrown forward across the steering wheel and his head was thrown forward and jerked back, and he suffered injury to his chest and neck.

District Court

  • Both defendants were found liable to the plaintiff, and Phegan DCJ ordered that there be verdicts and judgments for the plaintiff against Cleary for $35,966 and against Endeavour for $55,000. His Honour found that there should be equal contribution between Cleary and Endeavour.

Court of Appeal

  • The plaintiff appealed on quantum, in substance against the trial judge's findings as to causation of his present condition in respect of which he claimed compensation. Cleary did not appeal on quantum, but appealed against the trial judge's finding that the plaintiff had not been contributorily negligent. Endeavour appealed against the findings that it was liable to the plaintiff and that the plaintiff had not been contributorily negligent.
  • In relation to Endeavour's liability, Giles JA, who wrote the leading judgment, noted the trial judge's findings that the use of loaders at Endeavour's premises had not been developed in any formal manner, or recorded in any kind of manual for management of the stock piles. The plaintiff was not given instructions when he began the stockpile work, but learned by watching what other operators did. The procedure was known to be dangerous, as acknowledged by Cleary's senior plant operator.
  • Endeavour submitted at trial and on appeal that it neither owed a duty of care to the plaintiff, nor breached a duty of care, because it engaged Cleary for the loading operations amongst other earth moving and like activities, and it was entitled to leave a safe procedure for the loading to Cleary. It particularly relied on the case of Kolodziejczyk v Grandview Pty Limited [2002] NSWCA 267 where it was held that the need to secure a ladder could be left to an experienced tradesman engaged in installing roof cladding.
  • Giles JA noted the trial judge's findings that, unlike in Grandview, Endeavour was the occupier of the premises and contributed to the danger which caused the plaintiff's injury.
  • Giles JA noted that in Stevens v Brodribb Sawmilling Co Pty Limited (1985) 160 CLR 16 it was held that a sawmiller owed a duty of care to a trucker who was injured by the negligence of a snigger, both the trucker and the snigger being independent contractors, because although the fellers, sniggers and truckers were responsible for their own safety in carrying out their own functions, they had to rely on the care and skill of the sawmiller and any arrangements it made for the disposition of their work and on the care and skill of the persons engaged by the sawmiller in the execution of the work. In that case Mason J stated:

"Although the obligation to provide a safe system of work has been regarded as one attaching to an employer, there is no reason why it should be so confined. If an entrepreneur engages independent contractors to do work which might as readily be done by employees in circumstances where there is a risk to them of injury arising from the nature of the work and where there is a need for him to give directions as to when and where the work is to be done and to co-ordinate the various activities, he has an obligation to prescribe a safe system of work. The fact that they are not employees, or that he does not retain a right to control them in the manner in which they carry out their work, should not affect the existence of an obligation to prescribe a safe system."

  • In that same case Brennan J stated as follows:

"The entrepreneur's duty arises simply because he is creating the risk (Sutherland Shire Council v Heyman) and his duty is more limited than the duty owed by an employer to an employee. The duty to use reasonable care in organising an activity does not import a duty to avoid any risk of injury; it imports a duty to use reasonable care to avoid unnecessary risks of injury and to minimise other risks of injury. It does not import a duty to retain control of working systems if it is reasonable to engage the services of independent contractors who are competent themselves to control their system of work without supervision by the entrepreneur. The circumstances may make it necessary for the entrepreneur to retain and exercise a supervisory power or to prescribe the respective areas of responsibility of independent contractors if confusion about those areas involves a risk of injury. Once an activity has been organised and its operation is in the hands of independent contractors, liability for negligence by them within the area of their responsibility is not borne vicariously by the entrepreneur. If there is no failure to take reasonable care in the employment of independent contractors competent to control their own systems of work, or in not retaining a supervisory power or in leaving undefined the contractors' respective areas of responsibility, the entrepreneur is not liable for damage caused merely by a negligent failure of an independent contractor to adopt or follow a safe system of work either within his area of responsibility or in an area of shared responsibility".

  • Giles JA stated that:

"At the heart of this is the need to take care that there is a safe system of work in the exercise of the entrepreneur's overall control of the operations. The need to take care may be in the selection of competent contractors, retaining a power to control the activities, in co-ordinating their activities or in other ways, including in relation to the conditions in which the contractors must do their work."

  • Giles JA noted that it was said by Heydon JA in Grandview that the duty recognised by Mason J in Stevens v Brodribb Sawmilling Co Pty Limited

"only arises in the category of cases discussed by Mason J, namely where there is a need for directions to be given as to when and where the work is to be done and for the co-ordination of various activities". In Giles JA's opinion "that was an adequate statement of the facts of that case, but, with respect, the need to take care that there is a safe system of work may call for something more, and so there may be a duty of care beyond the category of cases involving co-ordination of activities."

  • Giles JA also relied on the case of Rockdale Beef Pty Limited v Carey [2003] NSWCA where Ipp JA, with whom Mason P and McColl JA agreed, stated:

"The judgments of Wilson and Dawson JJ and Deane J in Stevens are authority for the proposition that an entrepreneur may owe a duty of care to an independent contractor when, according to the general law of negligence, the circumstances are such that a duty arises. The existence of the duty is not conditional on the existence of any particular factual element ... in my opinion, nothing said by Mason J or Brennan J in Stevens, or Heydon JA in Kolodziejczyk prevents the general law of negligence imposing on an entrepreneur a duty of care owed to an independent contractor. Such a duty may arise in circumstances where there is no need for the entrepreneur to give directions as to when and where the work is to be done and to co-ordinate the various activities, but where, for other reasons, reasonable care on the part of the entrepreneur affects the way in which the work is to be undertaken and the safety of the worksite, and where other considerations (not applicable in Stevens and Kolodziejczyk) such as vulnerability, inequality of bargaining power, control and the other manifold factors that the law recognises as being relevant to the existence of a duty of care, are present".

  • Based on the above authorities Giles JA affirmed the trial judge's decision that Endeavour did owe the plaintiff a duty of care, and based on the trial judge's findings upheld the finding that the duty of care was breached.
  • The Court of Appeal also upheld the trial judge's findings that there should be no contributory negligence found against the plaintiff. In this regard Giles JA referred to the High Court case of McLean v Tedman (1984) 155 CLR 306 which determined that, in considering whether there was contributory negligence by the employee in a case in which the employer has failed to provide a safe system of work, "the circumstances and conditions in which he had to do his work must be taken into account".
  • Giles JA noted s 5R of the Civil Liability Act provides that the principles applicable in determining whether a person has been negligent also apply in determining contributory negligence. S 5R(2) provides that the standard of care is that of a reasonable person "in the position of that person", that is, a reasonable person in the plaintiff's position: Waverley Council v Ferreira (2005) NSWCA 418.
  • In relation to damages, the substance of the plaintiff's submissions was that the trial judge had misdirected himself in declining to find causation between the subject accident and his condition at the time of trial. The plaintiff had preexisting injuries and also suffered a subsequent injury at work on 4 July 2002 to his neck.
  • The trial judge found that:

"what the evidence fails to establish is that the incident was a substantial and independent cause of his long term problems, physical and psychological, the disruption of his full-time employment while he remained in the employee of the first defendant, for any long term loss of earning capacity."

  • Giles JA stated that the defendants:

"took Mr Tolhurst as they found him, and if the November 2001 incident aggravated existing neck and chest deficits the damages compensated for the whole. But if the existing neck and chest deficits would have impaired Mr Tolhurst's functioning and that brought reduction in earning capacity quite apart from the November 2001 incident, and if Cleary and Endeavour discharged an evidentiary burden of disentangling their effect from the effect of the November 2001 incident the damages would not compensate for the whole Watts v Rake (1960) 100 CLR 158; Purkiss v Crittenden [1965] 114 CLR 764; Shorey v PT Limited [2003] HCA 27".

  • In relation to the subsequent accident Giles JA noted that the relevant principles were stated in the case of State Government Insurance Commission v Oakley (1990) Australian Torts Report 81-003, relevantly:

"2. where the further injury results from a subsequent accident, which would have occurred had the plaintiff been in normal health, but the damage sustained is greater because of aggravation of the earlier injury, the additional damage resulting from the aggravated injury should be treated as caused by the defendant's negligence; and

3. where the further injury results from a subsequent accident which would have occurred had the plaintiff been in normal health and the damage sustained includes no element of aggravation of the earlier injury, the subsequent accident and further injury should be regarded as causally independent of the first".

  • Giles JA noted that the trial judge did not find that the plaintiff had recovered entirely from the effects of the November 2001 incident. Giles JA found that the trial judge erred in calculating damages as the plaintiff did not have to prove that the November 2001 incident was an independent cause of his present condition; it could be a cause by aggravation of a pre-existing condition or together with aggravation by a subsequent event.
  • Beazley JA also separately found that the trial judge erred in determining that the question to be answered was whether the accident was a substantial and independent cause of the plaintiff's problems, when the question to be answered was whether the accident was a cause of his on-going problems.
  • Accordingly the Court of Appeal found that his Honour had erred in relation to causation in relation to the award of damages and that that issue must be remitted for the District Court for reconsideration. Whilst Giles JA would have remitted the whole matter back to the District Court for a new trial, Beazley JA and Tobias JA, whilst otherwise agreeing with Giles JA, determined that the matter should be remitted on the issue of causation in relation to damages only.


  • The decision affirms the principle, most recently affirmed in Rockdale Beef Pty Limited v Carey, that an entrepreneur or head contractor may owe a duty of care to an independent contractor (including their employees), depending on the circumstances of each case.
  • Such a duty may still arise in circumstances where there is no need for the entrepreneur or head contractor to give directions as to when and where the work is to be done and to co-ordinate the various activities, but where, for other reasons, reasonable care on the part of the entrepreneur or head contractor affects the way in which the work is to be undertaken and the safety of the work site.
  • In relation to damages where causation is in issue due to subsequent injuries, the decision confirms that the question to be answered is whether the accident was a cause of the plaintiff's on-going problems, not whether the accident was a substantial and independent cause of the plaintiff's problems.

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

Click to Login as an existing user or Register so you can print this article.

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”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
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).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.