Does a principal / head contractor have a general common law duty in relation to safety to train and supervise the employees of independent contractors in undertaking specialist work?
Facts
Leighton Contractors Pty Ltd was appointed as the head contractor for the Hilton Hotel refurbishment project in Sydney. Leighton Contractors subcontracted the concreting works to Downview Pty Ltd. Downview then subcontracted the concrete pumping to Quentin Still and Jason Cook, who in turn engaged Brian Fox along with Warren Stewart to assist with the works. During the process of cleaning the pipes of the concrete pumping equipment used for the works, Mr Fox was injured.
Leighton had provided occupational health and safety inductions that all workers were required to attend before commencing work. Leighton also required Downview to provide work method statements that addressed potential hazards associated with concrete pumping and the control measures that would be adopted to address those hazards. However, neither Leighton nor Downview provided specific training in safe methods of cleaning concrete pumping lines.
At the first instance, the New South Wales District Court found that the accident was caused by the negligent conduct of Warren Stewart Pty Ltd, the company that supplied the services of Mr Stewart. Claims against Leighton and Downview were dismissed on the basis that there was no relevant breach of duty by either party. Fox appealed against the dismissal of his claims against Leighton and Downview.
Court of Appeal decision
The Court of Appeal allowed Fox's appeal and held that Leighton and Downview owed a common law duty of care to Fox and each was in breach of that duty. In short, it found that Leighton, as the head contractor, had breached its duty by failing to provide the required safety induction training to its subcontractors.
The Court of Appeal also found that the training ought to have extended to cover activity based training relating to each subcontractor's specific work, which in the case would include training regarding the safe operation and cleaning of concrete pumping equipment.
The High Court decision
Leighton and Downview appealed by special leave from the orders of the Court of Appeal and contended that the imposition of a common law duty of care owed to Fox, an independent contractor, involved an unwarranted extension of the liability of principals for the negligent acts of other independent contractors engaged by them.
The High Court determined that the Court of Appeal should not have found an obligation upon Leighton to ensure that Fox was properly trained and supervised in the tasks he was performing on the building site. The High Court noted that if Leighton was found to owe a duty to Mr Fox and Mr Stewart to provide induction training in the safe method of line cleaning, it would owe a duty to provide training in the safe method of carrying on every trade and conducting every specialised activity on the site to every worker, where it was unlikely to have detailed knowledge of safe work methods across the spectrum of trades involved in the project.
The High Court also found that Downview ought not to be held responsible for ensuring the proper training of staff employed by a qualified independent contractor, stating:
"...provided that the contractor was competent, and provided that the activity of concrete pumping was placed in the contractor's hands, Downview was not subject to an ongoing general law obligation with respect to the safety of the work methods employed by the contractor or those with whom the contractor subcontracted. "
The High Court noted that had Downview failed to engage a competent contractor, it may not have avoided liability for the negligent failure of the contractor to take reasonable care to adopt a safe system of work.
Application
If it can be demonstrated that a subcontractor was reputable and possessed a specialised knowledge or skill for which it was engaged, no duty arises for a principal / head contractor to provide specific training to and/or supervision of the employees of specialist independent subcontractors. It is thus vital that the principal / head contractor ensures that independent contractors are both reputable and properly qualified to carry out the specialised tasks for which they are engaged.
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