Leighton Contractors P/L v Fox; Calliden Insurance Limited
v Fox  HCA 35 (02/09/09)
For many years there has been tension between the legal
principles governing the relationship between an employer and
employee and those principles which govern the relationship between
a principal and independent contractor.
This tension is particularly evident in large construction
projects where the legal relationship between parties can often
become blurred. This High Court decision, whilst not resolving that
tension, should provide some comfort to principals.
The case arose out of the large scale re-development of the
Sydney Hilton in 2003. Leighton Contractors (Leighton) was the
principal contractor. It engaged the services of Downview P/L
(Downview) to undertake certain concreting services. Downview in
turn engaged two individuals, Cook and Still, to undertake concrete
pumping who in turn engaged the injured claimant and one Stewart.
One might say a typical construction site.
The claimant was injured when he was negligently struck by a
pipe during a cleaning operation carried out jointly by the
claimant, Still and Stewart. Neither Leighton nor Downview had
representatives present directing the activity. Leighton did not
know the claimant was on site.
The claimant sought damages against Leighton and Downview
arguing each had breached a common law duty of care owed to him to
ensure he had received proper training. He also argued Downview
should have prescribed a safe system of work and further, by
allowing its own sub-contractors to engage other labour, it was not
meeting its obligation to engage competent contractors.
It was not disputed that Leighton and Downview owed obligations
under the NSW equivalent of the Workplace Health and Safety Act
1995 (Qld) to ensure that those coming onto the site had
received general safety training. The claimant however did not
allege a breach of those statutory duties (or indeed legally
could). The claimant did allege that such statutory obligations
should inform the common law duty and dictated that Leighton and
Downview should provide activity based specific safety training and
ongoing supervision of the particular activity. The High Court
The Court found that the activity of concrete pumping was a
highly specialised but self contained one which it was appropriate
to assign to an independent contractor. It followed that neither
Leighton nor Downview had an obligation to provide activity based
safety training in an area where both entities were unlikely to
have the requisite skills to provide such training.
The Court found that, to impose such training obligations would
be inconsistent with maintenance of the distinction between the
duty of an employer to an employee and the duty of a principal to
an independent contractor. Given the self contained nature of the
activity, co-ordination by each principal was found
Downview's only obligation was to engage an ostensibly
competent contractor and was not subject to an ongoing common law
obligation with respect to the safety of the work methods employed
by the contractor or those with whom the contractor
The following principles emerge from the judgment:
Generally, a principal will not owe a duty of care for the
benefit of an independent contractor.
A principal will come under a duty of care to an independent
contractor if the circumstances dictate that there should be
co-ordination and direction of activities performed by more than
one party on site to avoid injury.
A principal is obliged to engage competent contractors and,
provided that is done, the principal will generally have no ongoing
obligation to monitor their compliance with safe work methods
employed by the contractor or those engaged by the contractor.
If the activity undertaken by the independent contractor
involves specialised knowledge then the principal has no obligation
to provide activity based training.
Obligations under the OHS laws will be relevant to defining the
existence and scope of the common law duty of care, but should not
be translated into that duty of care.
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.
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