Sub-contractor solely liable for injuries to labour hire worker Sub-contractor solely liable for injuries to labour hire worker

Sub-contractor solely liable for injuries to labour hire worker

26 October 2017 | Employer's Liability

This case deals with the issue of apportionment of liability between an employer, principal contractor and sub-contractor when a worker was injured on a building site.

In Issue

  • Apportionment of liability for injuries to a worker on a construction site

The Background

The plaintiff sustained injuries on 26 May 2011 during the course of his employment as a formwork labourer when he slipped from a wooden platform and fell approximately two metres. He was employed by a labour hire company, Caringbah Formwork Pty Limited (Caringbah). His labour was hired to Calcono Pty Ltd (Calcono), who was a sub-contractor on the redevelopment of Redfern RSL (the building site). The principal contractor for the redevelopment project was Deicorp Pty Ltd (Deicorp). The plaintiff sued all three parties in negligence.

The Decision

Although disputed in evidence, the court ultimately accepted that the platform from which the plaintiff slipped had been exposed to the elements. Rain had caused the platform to become wet and posed a slipping hazard. The court accepted that the platform had not been fitted with cross-braces or rails that would have arrested the plaintiff’s fall, and that such safety measures should have been taken.

The plaintiff only succeeded against Calcono. Calcono was found to be the plaintiff’s “de facto” employer who directed and controlled the plaintiff’s work. The court found that an employee of Calcono was aware of the wet conditions in the general area of the accident and failed to appreciate the risk to the plaintiff’s safety by directing him to work in those wet conditions.

The court found that Caringbah was not liable to the plaintiff as it was in no position to control the state of the building site, was not aware that the building site was unsafe and did not conduct its business in any way that contributed to the particular circumstances of the plaintiff’s fall.

The court found that Deicorp was not liable to the plaintiff for a number of reasons including that Calcono had undertaken to fulfil a number of important safety roles on the site, it was Calcono that directed the plaintiff’s work and most importantly, Calcono sectioned off particular areas of the building site for safety reasons while formwork was being performed, leaving Deicorp in no position to exercise direct control over the area in which the plaintiff fell.

The plaintiff’s award of damages was reduced by 33.3% on the basis of contributory negligence in continuing to work in wet conditions in circumstances where he knew of the dangers posed by doing so. The court acknowledged that workers are reluctant to refuse to perform an allotted task for reasons such as rain, but determined that it was open to the plaintiff to draw the hazard to his supervisor’s attention and offer to perform alternate work, take a break and make up the lost time or use a towel to dry the area.

Implications for you

The plaintiff in this case succeeded against his de facto employer only, reaffirming that those in a position to direct and control the activities of workers will be most exposed to liability for injury. The court placed particular emphasis on Calcono having isolated the area for general safety reasons and this was a major consideration in the court’s decision not to hold the principal contractor liable.

Kabic v Workers Compensation Nominal Insurer (No 3) [2017] NSWSC 1281

Matthew Algie

Matthew Algie

Lawyer