Liability for safety of independent contractors

Do organisations owe independent contractors the same duty of care as they owe the organisation’s own employees? No they don’t says Law Courts across Australia.

Let me start by defining an “independent contractor” – it is a contractor with specialist expertise, engaged to work without direct control of their work-method by the organisation that engaged them.

Numerous court cases over the past few years in WA, NSW, Victoria and the High Court of Australia have created a series of highly influential and consistent precedents. Three of these cases are briefly described in a separate post.

The general implications of these cases are (see the separate post for more details):

• Where a principal engages a contractor to perform work, and the contractor is subsequently in control of the system of work used, the principal will not owe the contractor a duty of care in respect of the method of work [McGlashan v QBE Insurance].

• The words “reasonably practicable” mean that an organisation does not have to do all that is physically feasible to ensure safety (eg. it can stop short of interfering with contractors’ safety arrangements, even if the organisation has the authority to do so) [Baiada vs R]

• In some cases, the employment of independent contractors may be the only reasonably practicable way of ensuring and maintaining a safe working environment, and so may discharge (satisfy) its general duties [Baiada vs R]

In fact, an organisation who trains or issues safety instructions to an independent contractor may inadvertently assume shared responsibility for contractor safety and increase its liability [Waco Kwikform v Perigo].

• Define and document the work they are engaged to do
• (where appropriate) Document that the organisation is not in control of the contractor’s work and it is relying on the contractor’s specialist expertise to work safely
• Establish that the independent contractor is competent to do the work, eg. via licensing or professional membership
• In consultation with the contractor, assess any hazards arising from the site layout and ensure those hazards are controlled
• Ask to see evidence of the contractor’s onsite risk assessment and their safe system of work (typically a SWMS or equivalent)
• Ensure their work will not pose a risk to the organisation’s employees or others onsite
• Ensure all contractors receive adequate site inductions (including incident response) before starting work
• Comply with mandatory incident reporting obligations, including contractor incidents.

A note of caution – an organisation’s liability for any contractor injuries will depend on many factors so, especially for high-risk work, seek legal advice.

See also an accompanying post (Some Contractor Liability Case Studies).

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