Australia: Delegating The Duty To Ensure Safety

Last Updated: 19 February 2009
Article by Scott Alden and Dean Wright

Safety is a significant part of all construction projects. Questions often arise over the nature of the various duties owed in relation to safety and whether such duties are delegable. Another key consideration is the effect of the various contractual relationships on safety and the duties owed. These issues were considered in the recent case of Transfield Services (Australia) v Hall; Hall v QBE Insurance (Australia) [2008] NSWCA 294.

The Facts

In 2002, Mr Hall was employed by the Royal Australian Navy as a member of the Reserve Service. He worked as a facilitator and maintainer at a physical fitness facility at HMAS Stirling in Western Australia. There was a ropes course at the facility on which participants carried out various physical activities. Mr Hall was responsible for conducting periodic safety inspections of the ropes course. On one of these inspections, the rope broke, causing Mr Hall to fall a height of 10 metres and sustain significant injuries.

Transfield was responsible for maintaining the ropes course under a plant and equipment maintenance contract with the Commonwealth. Adventure Training Systems Pty Limited (ATS) was one of Transfield's subcontractors and inspected the ropes course in December 2001. At the time of the inspection, the ropes course was closed because of concerns about its safety. Following the inspection, ATS issued Transfield with a report dated 17 December 2001 that said:

'An inspection was carried out on all elements and found to be in safe working order. On each element all cables, eye bolts (and nuts), strand-vices, wire rope grips, stays and belay pulleys were checked and found to be ok. Belay wire rope lines and belay pulleys are 20 months old at time of this report.'

The part of the steel that broke, leading to the injury, was covered with a plastic shrink wrap material (similar to electrical tape but opaque).

It was realised after the accident that the wire rope underneath the shrink wrap was badly corroded. In addition, the engineering evidence put forward, which was uncontested at the trial, stated that corrosion underneath the shrink wrap was foreseeable given that the ropes course was in an open-air environment approximately 100 metres from the sea.

Decision At First Instance

The trial judge found that Mr Hall had adopted the correct abseiling checking procedure and damages were assessed at $1,457,711.91. In addition it was held that Transfield was liable for the negligence of ATS because Transfield owed a non-delegable duty of care to users of the ropes course. This was despite the fact ATS was an independent contractor engaged by Transfield.

Issues On Appeal

  • Did Transfield owe a non-delegable duty of care to Mr Hall?
  • Is Transfield vicariously liable for the negligence of its subcontractor, ATS?

Court Of Appeal Decision

In the Court of Appeal the trial judge's decision was overturned and the appeal was allowed finding that Transfield:

  • Did not owe a non-delegable duty to the respondent.
  • Was not vicariously liable for the negligence of ATS.

Reasons For Decision

Non-Delegable Duty Of Care

The trial judge recognised that a non-delegable duty of care arises when any one or more of the following circumstances exist:

  • The relationship between the plaintiff and defendant evidences elements of control by the defendant.
  • There is special dependence or vulnerability on the part of the plaintiff.
  • The activity being carried out by the defendant's independent contractor is sufficiently dangerous, or alternatively a substance associated with the activity being carried out by the defendant's independent contractor is sufficiently dangerous.

It is the third category which the trial judge referred to in this case when finding that a non-delegable duty of care arose.

In the appeal, the Court stated that nothing in recent decisions of the High Court provides reason to believe that the law has changed from that stated in Stevens v Brodribb Sawmilling Company Pty Ltd [1986] HCA 1. That case found that the effect of employing an independent contractor to carry out extra hazardous activities is not sufficient to impose on the principal a non-delegable duty of care concerning the carrying out of those activities.

In Stevens v Brodribb, four of the five judges expressly rejected the proposition that a person has a non-delegable duty to ensure that reasonable care is taken by an independent contractor employed to engage in an extra hazardous activity.

The Stevens v Brodribb case followed the Full Court of the New South Wales Supreme Court in Torette House Pty Limited v Berkman [1939]. In that case, the Court recognised that there were some categories of relationship in which one party owed the other a non-delegable duty of care. In relation to a person who engaged an independent contractor to carry out work, the Court held:

'Although he is liable for all consequences of the results contracted for, he is not as a general rule responsible for damage occasioned by negligence on the part of the contractor in applying the methods selected by the contractor for achieving those results, these methods and their application being matters over which the employer has no control, and not being methods which must necessarily be used and from which damage must necessarily result.'

This case also noted the English Court of Appeal decision of Honeywheel & Stein Limited v Larkin Bros [1934] concerning the act of the independent contractor regarding the work the contractor was engaged to do:

'If the work was lawful in itself and of such character that if executed with due care involve no injury as a consequence to others there was no special or particular hazard in the work which the plumber was employed to execute.'

The Transfield v Hall judgment states at paragraph 107 that the doctrine of extra hazardous activity related only to 'an act which in its very nature involves in the eyes of the law a special danger to others'. On that doctrine, the only thing that could even arguably be said to be extra hazardous, or inherently dangerous, about the activity of inspecting the wire ropes, is the fact that the person doing the inspection is working at a height. That is, it is not a 'special danger to others', it is a special danger to the contractor himself.

Vicarious Liability

Transfield was not held vicariously liable in relation to the acts of ATS (its subcontractor), because it had not directed ATS to do something specific, which in turn causes damage. Transfield did not specifically direct ATS to visually survey the extremities of the cable. Transfield merely directed ATS to inspect the course for safety.

Even if part of the task that Transfield required ATS to do was to visually survey the extremities of the cables, and surveying the extremities of the cables would necessarily involve removal of the shrink wrap, that does not bring the case within the principle of vicarious liability. That principle is concerned with a situation where a person directs an independent contractor to perform some act, and the doing of the very act that is directed to be performed causes damage. That was not the case here.

Implications For Principals

This case makes it clear that the duty of care in relation to injury to others is not of itself non-delegable. This is particularly the case where the activity being carried out is not extra hazardous. In addition, both principals and principal contractors will not be vicariously liable for independent contractors' actions unless those actions are specifically directed by them.

Accordingly, it is important that principals consider when contractors and subcontractors may be carrying out extra hazardous work or activities, as in such cases the duty of care is non-delegable.

Principals should also take care not to direct the work of contractors or subcontractors because in such circumstances they become vicariously liable.

Finally where the duty is delegable, and the principal does not direct the work, it is important to ensure contracts clearly set out what is being done by whom, and who is responsible for safety and in what circumstances.

Phillips Fox has changed its name to DLA Phillips Fox because the firm entered into an exclusive alliance with DLA Piper, one of the largest legal services organisations in the world. We will retain our offices in every major commercial centre in Australia and New Zealand, with no operational change to your relationship with the firm. DLA Phillips Fox can now take your business one step further − by connecting you to a global network of legal experience, talent and knowledge.

This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances and no liability will be accepted for any losses incurred by those relying solely on this publication.

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)
Related Video
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.