High court clarifies duty of a principal contractor to an employee of a sub-contractor injured in a work accident.
Leighton Contractors was the principal contractor for the Hilton Hotel project in Sydney. Leighton in turn sub-contracted the concreting work to Downview Pty Ltd, who in turn employed a Mr Still and Mr Cook, who in turn engaged Mr Brian Fox to work on the site. Fox was injured while cleaning the concrete delivery pipes with compressed air. He sued Still and Cook, and in addition he sued Downview and Leighton. The Court at first instance found Still and Stewart liable in negligence, but rejected the claim against Downview and Leighton. Fox appealed the decision to the NSW Court of Appeal. The NSW Court of Appeal allowed Fox’ appeal and held both Leighton and Downview liable to Mr Fox for a breach of duty of care. Both Leighton and Downview appealed that decision to the High Court.
The High Court overturned the decision of the NSW Court of Appeal, holding that Leighton was not subject to a duty of care requiring that it provide training to sub-contractors in the safe methods of carrying out the sub-contractors’ specialised work. The High Court confirmed the long established principle (deemed to be Bodribb Sawmilling) that a principal is not automatically liable for the negligent act of an independent contractor with regard to its conduct vis-a-vis an employee. It held that there was no common law duty requiring a principal contractor to provide a sub-contractor and its employees with training in the safe methods of carrying out that sub-contractors specialised work. Insofar as Leighton and Downview had employed competent independent contractors to do the concreting, their duty had been discharged.
The significance of this case for workers in actions against principal contractors is that a worker will have to establish that the principal contractor failed to determine that the sub-contractor was sufficiently skilled in its work at the time of entering into the contract.