Judgment date: 11 December 2009
Pacific Steel Construction Pty Limited v Barahona; Jigsaw Property Group Pty Limited v Barahona  NSWCA 406
NSW Court of Appeal1
- A principal contractor does not owe its independent contractor a non-delegable duty of care. If a principal engages a competent contractor the principal is not subject to an ongoing duty of care with respect to the safety of the work methods used by the contractor. The duty owed is one to alleviate the risk of injury by co-ordinating and directing activities. The duty is to use reasonable care to avoid unnecessary risks of injury. It is not a duty to avoid any risk of injury.
- An employer owes its employees a personal non-delegable duty of care which may be breached because of a failure to provide a safe method of work, adequate directions, or tools and equipment reasonably necessary for an employee to safely carry out work they are directed to undertake.
- An experienced tradesperson is still entitled to be provided with a safe system of work from his or her employer or any other party who owes a duty in the circumstances.
The plaintiff, Luis Barahona, was injured when he fell from a ladder at the construction site of the Strathfield Library on 20 January 2004. He suffered serious orthopaedic injuries, including crush fractures to the L1 and L2 vertebrae.
The plaintiff brought proceedings against the following:
- Jigsaw Property Group Pty Limited (Jigsaw) which was the principal contractor for the construction of the Strathfield Library.
- Pacific Steel Construction Pty Limited (Pacific), the plaintiff's employer and to whom Jigsaw had subcontracted the steel works to.
- Hays Specialist Recruitment (Australia) Pty Limited (Hays) as the employer of Christopher Barber, the site foreman.
The plaintiff was employed by Pacific as a boilermaker/welder and had some 30 years experience in this trade.
On the day of the accident he was directed by the site foreman, Mr Barber, to raise a beam to the floor level. Mr Barber did not give the plaintiff any instructions as to how to raise the beam nor how to gain access to it. The plaintiff tied a length of rope to a column on the floor above the head of the ladder and intended to secure the head of the ladder with the rope. It was the plaintiff's intention to elevate the beam using a wedge and hammer whilst standing on the ladder after it had been secured with the rope. The plaintiff placed the feet of the ladder in a planter box which was empty and checked that the ladder was stable. There was nothing to which he could tie the base of the ladder. The plaintiff proceeded up the ladder and stretched his arm to try and grab the rope which was hanging from the first floor when he fell.
District Court Proceedings
Her Honour could not determine precisely how the plaintiff fell as there was no evidence of this other than that the plaintiff had stretched his arm out and tried to grab the rope.
Truss DCJ found that Jigsaw and Pacific should have provided the plaintiff with an alternative and safe method to undertake the job which he was engaged in at the time of accident. Her Honour considered that Pacific should have prepared a Safe Work Method Statement (SWMS) for the task undertaken by the plaintiff, and in the absence of such, a SWMS should have been prepared by Mr Barber, or the plaintiff sent away until one was prepared.
Her Honour apportioned liability between Jigsaw and Pacific at 80:20.
Her Honour found 15% contributory negligence on the part of the plaintiff.
Court of Appeal
Jigsaw appealed in respect of the following matters:
- The primary judge erred in finding Jigsaw to be negligent.
- The primary judge failed to give consideration to whether Jigsaw owed a duty of care to the plaintiff, and if it did, the content of that duty.
- The primary judge erred in finding Jigsaw vicariously liable for the foreman's actions.
- The contribution of Jigsaw at 80% was too high.
- The contributory negligence of the plaintiff at 15% was too low.
That Jigsaw owed the plaintiff a duty of care was not in dispute, but the content of the duty owed was. Jigsaw submitted that the content of the duty was limited to it exercising due care in organising and co-ordinating the various contractors on site and their employees. It was submitted that the responsibility to provide a safe system of work rested with each relevant trade and each relevant employer. Jigsaw submitted that it was Pacific, the plaintiff's employer, who was responsible for the safety of its own workers, including providing a safe system of work. As the plaintiff's accident was most likely to have been caused by an unsafe system of work, Jigsaw submitted that it was not liable to the plaintiff in negligence.
Furthermore, Jigsaw submitted that the plaintiff was an experienced tradesman who was used to climbing ladders and who was responsible for devising his own method of work in carrying out the task which he was engaged in at the time of the accident.
In respect of breach, Jigsaw submitted that the plaintiff had not pleaded a failure by Mr Barber to prepare a SWMS for the task which the plaintiff was engaged in. It further argued that Jigsaw should not have had to prepare a SWMS when Pacific had prepared its own SWMS as it was contractually required to do so.
As to its vicarious liability for the actions of Mr Barber, Jigsaw submitted that Hays, the third defendant, was Mr Barber's employer and not Jigsaw. The primary judge dealt with this by finding that Jigsaw was responsible for Mr Barber based on contractual arrangements between Jigsaw and Hays. On appeal, Jigsaw sought to raise the fact that it was not vicariously liable for Mr Barber because Mr Barber had his own company, Barber Earthworks Pty Limited, which it contended was his employer. As this argument was not run at trial it could not be ventilated on appeal.
In respect of Jigsaw's liability, the Court of Appeal held that the High Court's decision in Leighton Contractors Pty Ltd v Fox2 affirmed that Jigsaw did not owe the plaintiff a duty of the kind it owed to its employees. Jigsaw owed the plaintiff a duty by virtue of its need to direct and co-ordinate activities on site, but the duty was limited to alleviating the risk of injury arising from this alone. The Court of Appeal held that the task which the plaintiff was engaged in was a discrete one and the evidence did not show that it related to other activities being conducted on site.
On the day of the accident the plaintiff was required to perform a task which he was directed to do so by Mr Barber and which was within the scope of Pacific's contracted works on site. Mr Barber owed an obligation to his employer to ensure that all trades had adequately and competently carried out their work. Although Mr Barber was not an employee of Jigsaw, he was Jigsaw's agent for the purposes of carrying out his responsibilities as foreman and Jigsaw was vicariously liable for Mr Barber's negligence. The plaintiff submitted that Mr Barber was the person under whose direction and supervision he was to perform his work and that Jigsaw, through Mr Barber, owed a duty not to expose the plaintiff to a foreseeable risk of injury.
Unless the evidence revealed that Mr Barber assumed a responsibility to supervise the plaintiff as to how he performed his work, the Court of Appeal held that there was no foundation for the existence of a duty owed to the plaintiff. As Mr Barber did not take on the role of supervising the plaintiff, who was a skilled and experienced tradesman, Jigsaw could not owe a duty.
As his employer, Pacific, owed the plaintiff a non-delegable duty of care. Under its contract with Jigsaw, Pacific was required to submit a SWMS which provided a framework for the provision of a safe work method. However, the Court of Appeal held that the requirements of the SWMS would not satisfy or in any way qualify the non-delegable duty owed by Pacific at common law.
Pacific was found to be in breach of its duty of care by requiring the plaintiff to undertake work on a building site without tools, equipment or direction. It was held that Pacific did not take adequate steps to ensure that the plaintiff was provided with a safe method of work.
In respect of the apportionment of liability between Jigsaw and Pacific, Jigsaw submitted that the primary judge underestimated Pacific's responsibility on site, in particular, its responsibility to prepare a SWMS under the terms of its contract with Jigsaw. The primary judge assessed contribution at 80% to Jigsaw and 20% to Pacific. This question did not arise on appeal as the Court found that Jigsaw did not owe the plaintiff a duty of care.
However, if wrong about the question of Jigsaw's liability, the Court of Appeal held that the trial judge erred in her apportionment of liability between Jigsaw and Pacific in that insufficient weight was given to Pacific's non-delegable duty of care. Pacific also had the primary responsibility for preparing an SWMS for dangerous tasks on site. Pacific's failure to ensure that there were proper systems in place to ensure that whatever work the plaintiff was directed to do could be done so safely, was of such an order that it should have borne more than 20 per cent of the liability for the plaintiff's accident. The Court of Appeal hypothetically assessed Jigsaw's and Pacific's respective liabilities at 50:50.
Jigsaw and Pacific alleged that the plaintiff was guilty of contributory negligence on the basis that he was an experienced tradesman and that he devised the method of the particular task in which he was engaged when he fell. The trial judge found that the plaintiff departed from the standard of care of a reasonable man and assessed the degree of his contributory negligence at 15%. Both Jigsaw and Pacific appealed against this assessment. They submitted that the plaintiff could have utilised the assistance of another worker on site, Mr Neubauer, and secondly, that the plaintiff could have telephoned his employer to arrange help. They submitted that if the plaintiff had taken these steps, the accident would have been prevented and that therefore the plaintiff's contributory negligence should have been assessed in the order of 60%. On appeal it was held that the major contributing cause of the accident was the failure to have in place a SWMS and not the fact that the plaintiff could have sought assistance from his colleague or telephoned for assistance. There was no error shown in respect of the trial judge's assessment of contributory negligence and the finding of 15% contributory negligence was not overturned.
The duty of care owed by a principal contractor may be discharged by engaging a competent independent contractor. However, in these circumstances the principal still owes a duty to avoid the risk of injury flowing from co-ordinating and directing activities on site.
There is no duty on a principal contractor to ensure safe work practices and to take reasonable steps to ensure that those working on the site are properly trained once an activity has been organised and its operation is in the hands of independent contractors.
The circumstances where a principal contractor owes a duty of care is governed by the principle stated by Mason J in Stevens v Brodribb Sawmilling Company Pty Limited3 that
1 Allsop P, Beazley JA and Giles JA
2  HCA 35
3 HCA 1
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