Principal not liable for injuries to subcontractor’s employee Principal not liable for injuries to subcontractor’s employee

Principal not liable for injuries to subcontractor’s employee

13 October 2016 | Employer's Liability

In Issue

  • The duty owed by a principal to its sub-contractor

The Background

Mr Gulic (the appellant) was employed by GMG Transport Pty Ltd (GMG) as the driver of a prime mover owned by GMG.  GMG had sub-contracted to cart bricks and other items for Boral Transport Ltd (Boral).  The agreement required GMG to provide a prime mover for which Boral was obliged to provide a ‘serviceable body’ (trailer).  Boral retained ownership of the trailer body and GMG was expressly precluded from altering or modifying it under the agreement.

Boral had arranged for the trailer to be fitted with a series of horizontal gates that hinged downwards.  The appellant experienced difficulty locking the gates due to poor alignment.  The trailer had therefore been taken to a contractor for repairs at Boral’s direction on two separate occasions. 

On 4 February 2010 the appellant suffered a serious injury to his shoulder when a gate fell on him whist he was trying to secure it shut.

The Decision at Trial

The appellant failed at first instance.  He gave evidence that he first experienced pain in his shoulder whilst holding the gate above his head, trying to align the gate.  That pain caused him to drop the gate which in turn struck him on his shoulder.  There being no identified cause (or negligent cause) for the original shoulder pain, the appellant failed on causation.

The Decision on Appeal

Boral conceded that it owed the appellant a duty formulated as ‘a duty to take reasonable care to provide gates that would not subject experienced, adult users, taking reasonable care for their own safety, to an unreasonable risk of injury when using the gates’.  The Court of Appeal accepted this formulation of the duty.

The Court of Appeal rejected the appellant’s claim that the either the design of the trailer or the method of manufacture were defective.  It similarly rejected any allegation that the repairs (or attempted repairs) had been negligently performed. Boral was entitled to delegate responsibility for the design, manufacture and repair of the trailer to competent entities and it had done so. 

Whilst the appellant had told Boral that there were issues with the alignment of the posts and gates that required repair, he had not at any time indicated that this caused a safety issue, or that there was any other need for the pending further repairs to be performed urgently.  In the circumstances, the risk of injury was not reasonably foreseeable.

Implications For You

This case provides a stark illustration of the difference between the non-delegable duty of care owed by an employer, and the duty owed by a principal contractor to its sub-contractors.

A duty appropriately delegated by a principal contractor to a competent sub-contractor will relieve the principal contractor of liability, even where the relationship between the principal contractor and sub-contractor has similar elements to a relationship of employer and employee.

Gulic v Boral Transport Ltd [2016] NSWCA 269