Some contractor liability case studies

This article gives a brief summary of three cases related to contractor liability. See also the accompanying post (Liability for safety of independent contractors)

Waco Kwikform v Perigo, 2014

A scaffolder (Mr Perigo) was employed by BTSS who was engaged by Waco Kwikfokrm to erect and dismantle scaffolding. Following an incident involving BTSS workers at another site, Waco stepped in on 5 May 2006 and assumed control and supervision of BTSS’s system of work. Before that time, Waco had not involved itself in BTSS’s work methods. On 16 May, Mr Perigo fell from the scaffolding and was seriously injured.

The Court found that, prior to 5 May, while Waco retained a high-level supervisory function, it was not under a duty to prescribe and enforce a safe system of work for dismantling the scaffolding. However, after 5 May, Waco assumed responsibility of ensuring the system of work adopted by BTSS was safe, and the Court found against Waco.

Shae McCartney from Clayton Utz Lawyers concludes (from the case): “There are serious implications if a principal attempts to address safety concerns by directing how the contractor should carry out work. … the principal [can] assume responsibility for the safety of the contractor’s employees.”
(Full Clayton Utz summary)

McGlashan v QBE Insurance, 2014

Mr McGlashan was a roofing contractor. Lidoran (the head contractor) engaged Mr McGlashan (the subcontractor) for roofing labour services. Mr McGlashan was injured when a gust of wind blew over the ladder he was using to descend from a roof while fixing leaks. This should have been a two-man job but Mr McGlashan was working alone. Mr McGlashan argued that Lidoran did not provide another worker to assist him when it should have and he was “vulnerable” in the sense that he was unable to protect himself from the consequences of Lidoran’s decision.

The court found that Mr McGlashan was experienced in the roofing industry and was prepared to do the work on his own. Lidoran was entitled to leave it to the judgment of Mr McGlashan as to whether a particular job could be undertaken safely by him. The court found in favour of the head contractor.

Paul Garnon and Yasmin Bell from Curwoods Lawyers conclude (from the case): “The court’s decision has confirmed that in circumstances where a head contractor engages a subcontractor to perform work, and the subcontractor is subsequently in control of the system of work used, the head contractor will not owe the subcontractor a duty of care in respect of the method of work.”

(Full Curwoods summary)

Baiada Poultry v R, 2012

Baiada Poultry, a chicken processing business, engaged an independent contractors, DMP Azzopardi to catch chickens, pack them into crates, and transport the crates to a processing plant. During the operation, the forklift driver dislodged a steel pallet which fell on a killed the truck driver.

Baiada was charged with breaching s.21(1) of the OHS Act by failing to provide and maintain, so far as was reasonably practicable, a safe working environment. Baiada pleaded not guilty, arguing that it did not have the right to control how the forklift was used because the forklift was within the control of DMP, and that Baiada was entitled to rely on DMP, as a competent and experienced contractor, to carry out the work that Baiada could not do itself.

The case went to the high court of Australia and Baiada’s earlier conviction was overturned.

Corrs Lawyers concluded (from the case):

• “a duty to do that which is ‘reasonably practicable’ does not require a person to take every possible step that could be taken;

• a mere contractual right to give directions in relation to health and safety matters is not sufficient to demonstrate that a specific step was a reasonably practicable step to be taken to achieve the result of providing a safe working environment;

• in some circumstances, the engagement of a skilled subcontractor may be adequate to discharge a duty holder’s general duties. This will [depend] on the degree of control the duty holder has in respect of the relevant activity.”

(High Court Australia Judgement Summary)

If you wish to read further, here are links to 6 more relevant case summaries:

Sweeney v Boylan Nominees, 2006 (Summary from McCabe Curwood)

Leighton v Fox, 2009 (Curwoods summary)

Blackwood v Nichols, 2007 (Curwoods summary)

Vella’s Plant Hire v Mistranch, 2012 (Supreme Court of Queensland Summary)

Unilever v Pahi & Anor, 2010 (Curwoods summary)

Fortescue Metals, 2012 (High Court of Australia Judgement Summary)

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