Does a principal contractor have a responsibility to train a sub-contractor   

September 2009

On 7 March 2003, an employee working on the construction site at the Hilton Hotel, Sydney, suffered a severe injury.   

The employee, Mr Fox, brought proceedings in the New South Wales District Court in negligence against the principal contractor, Leighton Contractors Ltd (Leighton) , Warren Stewart Pty Ltd, which employed Warren Stewart, and Downview Pty Ltd (Downview).   

The central issue in this case was whether a principal contractor for construction work owes a duty to provide, or be satisfied of the prior provision of, training in safe work methods to independent contractors working on a construction site.    

Leighton had contracted with Downview to carry out the concreting. Downview had subcontracted the concrete pumping to Quentin Still and Jason Cook. Mr Fox and Warren Stewart were engaged in connection with the concrete pumping for a pour scheduled to take place on 7 March. After the pour was completed, Mr Still, Mr Stewart and Mr Fox commenced to cleaning the concrete delivery pipes. Due to the negligent manner in which this was done a pipe swung around and struck Mr Fox on the head.  

Giibb DCJ found that the accident was caused by the negligent conduct of Mr Still and Mr Stewart.  She dismissed the claims against Leighton and Downview, holding that there was no relevant breach of duty by either of them.  She gave judgment for Mr Fox against Warren Stewart Pty Ltd, but unfortunately for Mr Fox it has since been de-registered.    

Mr Fox appealed to the Court of Appeal against the dismissal of his claims against Leighton and Downview. The Court of Appeal allowed the appeal, holding that Leighton and Downview were each subject to a common law duty of care for the benefit of Mr Fox and that each was in breach of that duty.  Leighton and Downview appealed by special leave from the orders of the Court of Appeal.  They contended that the imposition on each of them of a common law duty of care owed to Mr Fox, an independent contractor, involves an unwarranted extension of the liability principles for the negligent acts of independent contractors engaged by them.   

In the joint judgment of French CJ, Gummow, Hayne, Heydon and Bell JJ, it was accepted that Leighton, as the occupier of the site, owed a duty to persons coming onto it to use reasonable care to avoid physical injury to them.  However, this said nothing about whether Leighton owed a duty to Mr Fox to take reasonable care to prevent him suffering injury on the site as the result of the negligent conduct of Mr Stewart.  It was found that the relationship between principal contractor and independent contractor is not one which, of itself, gives rise to a common law duty of care, much less to the special duty resting on employers to ensure that care is taken.  

In the joint judgment, it was noted that a duty to provide training in the safe method of carrying out the contractor’s specialised task upholding is inconsistent with the distinction the common law draws between the obligations of employers to their employees and of principals to independent contractors.  

This High Court decision confirms that principal contractors do not owe independent contractors the same duty of care imposed by common law that they owe their employees. In some circumstances however, a principal will come under a duty to use reasonable care to ensure a safe system of work for independent contractors.  

See also the case of Baida Chickens.