One might say, rightly, that the law governing when a principal might owe an employee of an independent contractor a duty of care is well settled.1

WorkCover however sought to test the waters yet again in the recent decision of McKenzie v. Vella’s Plant Hire Pty Ltd.2

McMeekin J thought it was important to clarify the principle in McKenzie.

Facts

The plaintiff’s claim

The plaintiff was injured on 23 April 2007 when the machinery he was operating rolled over during the course of his employment with Vella’s Plant Hire Pty Ltd (Vella’s).

The plaintiff perused Vella’s only in a master/servant claim.

Vella’s, however, perused a contribution claim against the principal contractor arguing that entity beared some responsibility for payment of the plaintiff’s award of damages.

WorkCover settled the plaintiff’s claim, with no contribution from the principal contractor, and elected to go to trial with respect to its claim for contribution.

The contribution claim

Vella's was engaged by Mistranch to clear two adjacent parcels of land to enable surveyors to carry out work preparatory to the subdivision of the land. Klenowski acted as an agent of Mistranch.

Klenowski's involvement in the work was limited to the placing of pink tape in certain locations around the field to mark infrastructure sites and the boundaries of the land.

Klenowski's argued his only role was to ensure that the grass was not pushed into areas where it was not wanted. He had placed pink tape on a fence near the embankment shortly before the incident.

The plaintiff testified that Klenowski instructed him to clear the grass up to the pink tape. It was alleged that Klenowski placed the pink tape so as to lead the plaintiff to believe it was safe for him to push grass on to the areas in which he got into difficulties.

However, Vella's knew of the steep embankment and had advised the plaintiff of its existence, but had not taken any further preventative action in relation to the risk it posed.

The issue for determination for His Honour was whether, in the circumstances, the principal contractor owed a duty of care to an employee of an independent contractor.

Findings

McMeekin J simply said no, dismissing WorkCover’s claim for contribution against the principal contractor.

His Honour ultimately ruled that the principal contractor did not owe a duty of care to the plaintiff, nor did it owe a duty of care to an employee of an independent contractor, in the circumstances of this case.

That is not to say a principal contractor cannot owe a duty of care to an employee of an independent contractor; it can. However, the mere fact a principal engages a subcontractor to perform work is not a basis to give rise to a duty of care.

The High Court has considered this issue on a number of occasions,3 but more in Leighton Contractors Pty Ltd v. Fox.

The principles set down in those cases were applied by His Honour, namely:

  • a common law duty of care does not arise between a principal contractor and an employee of an independent contractor simply by virtue of the contractual relationship between the two;
  • a principal contractor, on a busy construction site, is not liable to ensure the safety of the work methods employed by an independent contractor for its employees coming onto its site providing the subcontractor is competent, and the work was placed in the contractors hands. The rationale for this principle stems from the principal’s obvious lack of specialist knowledge pertinent to the trades conducted on site; which is why it engages a subcontractor in the first place. Specialised knowledge of a subcontractor’s works solely rested with the subcontractor; and
  • any alleged duty imposed on principal contractors in respect of its obligations to an employee of an independent contractor posed a “formidable obstacle”, as the law unequivocally seeks to maintain a distinction between an employer’s duty on the one hand, and the duty of a principal contractor on the other;
  • relating specifically to the circumstances of this case, McMeekin J held that the control exercised, or capable of being exercised by the principal contractor, any reliance placed upon the principal contractor, or the vulnerability of the plaintiff, did not warrant the imposition of a duty of care in this instance.

Conclusion and Implications

The case of McKenzie provides us with an interesting analysis of the law when a duty of care might be imposed upon a principal contractor to an employee of an independent contractor.

Whilst no duty was found to be owed in this case, it must be remembered each case will be considered on its facts, and that the cases are clear that there may be circumstances when a duty of care will be imposed. Bearing that in mind:

“… once the activity has been organised and its operation is in the hands of independent contractors, liability for negligence by them within the area of their responsibility is not borne vicariously by the entrepreneur. If there is no failure to take reasonable care and the employment of independent contractors competent to control their own systems of work, or in not retaining a supervisory power or in leaving undefined the contractors respective areas of responsibility, the entrepreneur is not liable for damage caused merely by negligent failure of an independent contractor to adopt or follow a safe system of work either within his area of responsibility or in an area of shared responsibility”.4

One thing is clear, the legal test for an independent contractor looking to apportion liability to a principal contractor for an injury to one of its employees, is a difficult one to satisfy.

Even if the principal has some involvement in the work which is to be carried out, does not necessarily mean a duty of care will be owed.

Providing the contractor was competent, and the activity was placed in the contractor’s hands, a principal contractor will not be subject to an ongoing general obligation with respect to the independent work methods employed by the contractor.