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Principal contractor found liable for sub-contractors injured employee

A principal contractor has been found liable for injuries to one of its subcontractor’s employees after the principal contractor took over a higher level of responsibility for the safe systems of work to be undertaken by the subcontractor.

The employee of the subcontractor was engaged to dismantle scaffolding and fell 8 metres onto a concrete concourse and was seriously injured.  The injured employee sued his employer and the principal contractor.

Justice McCallum, at first instance, held that both the principal contractor and the employee’s employer were negligent and that there was no contributory negligence on the part of the employee.  Importantly, her Honour held that ‘…following a serious accident involving another employee [of the employer] at a different site, the [principal contractor] had assumed responsibility for devising and supervising the system of work to be followed by [the employer’s] employees when dismantling the scaffold’.

In the appeal before the NSW Court of Appeal, the Full Court held that the principal contractor’s decision to assume primary responsibility for the systems of work on-site had extended its duty to exercise reasonable care for the employer’s workers and to ensure that the systems of work adopted by the employer for dismantling the scaffolding were safe.  The Full Court also found that the actions of the injured employee were not consistent with the conduct of a ‘prudent and reasonable scaffolder’ and therefore determined that there had been some contributory negligence on the part of the injured employer.  The Full Court made a 20% allowance for this contributory negligence.

Implications: Where a principal contractor takes on greater responsibility for the systems of work and the performance of the work by its subcontractors, the principal contractor may find itself liable for a significant portion of a claim in relation to any injury sustained by those workers, despite those workers not being directly engaged by the principal.  In this case, the principal contractor was deemed responsible for 75% of the apportioned liability, being a claim of in excess of $1,000,000.

Lisa Aitken is an accredited specialist in workplace relations law and the principal of Aitken Legal, a law firm specialising in employment law for employers. The information in this column is intended as a guide only.  Liability limited by a scheme approved under professional standards legislation.

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