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
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
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
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
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
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.
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.
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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