In our October 2009 edition of Insurable Interest we reported on the High Court decision in Leighton Contractors Pty Limited v Fox, which established that there is no common law duty requiring a principal contractor to train a sub-contractor in the safe methods of carrying out his own specialised task. The New South Wales Court of Appeal recently had cause to consider that decision in the matter of Pacific Steel Constructions Pty Ltd v Barahona.

Luis Barahona (Barahona) fractured his vertebrae and ruptured five disks in his back when he fell from a ladder whilst working at a construction site. He brought proceedings against his employer, Pacific Steel Constructions Pty Ltd fractured his vertebrae and ruptured five disks in his back when he fell from a ladder whilst working at a construction site. He brought proceedings against his employer, Pacific Steel Constructions Pty Ltd (Pacific), and the principal contractor, Jigsaw Property Group Pty Limited (Jigsaw) seeking damages in respect of his injuries.

Barahona's case against Jigsaw was that it failed in its duty to co-ordinate activities on site (as outlined in its OHS&R Management Plan), many of which were dangerous. As against Pacific, Barahona's case was essentially that his employer failed to provide him with a safe system of work and appropriate equipment.

Barahona gave evidence that on the day of his fall, he arrived at the work site and was directed by an agent of Jigsaw to raise a steel beam to first floor level. He was given no direction as to the manner in which this was supposed to be done. He then set about completing the job using a ladder which he borrowed from another worker on site. Expert evidence was given that the task being performed by Barahona should have been done using scaffolding rather than a ladder.

As between the defendants, the trial judge found Jigsaw 80% liable for the plaintiff's injury and Pacific 20% liable. Barahona's claim was reduced by 15% by reason of his contributory negligence.

On appeal, however, Jigsaw was found to have no liability to the plaintiff. The court stated that whilst a principal contractor does owe a duty to use reasonable care in co-ordinating and organising the activities on-site to avoid the risk of injury to contractors, Barahona's injury did not involve the co-ordination of activities between contractors. Barahona's injury arose due to a failure of his system of work and, applying the decision in Leighton Contractors v Fox, Jigsaw owed no duty to Barahona to dictate or supervise the manner in which an experienced contractor performed his task.

In relation to the employer, the court thought it abundantly clear that Pacific had breached its non-delegable duty of care to Barahona by requiring him to undertake work on a building site without tools, equipment or direction. The primary judge's finding of 15% contributory negligence by Barahona was upheld, particularly in view of the extent of Pacific's wrongdoing in abandoning him to the work site with no proper system of work.

This case highlights the marked difference between the scope of an employer's and a principal contractor's duty of care to workers on construction sites. It also confirms that whilst a principal contractor's duty to sub-contractors is limited, it does owe a duty to independent contractors to prevent injuries arising from a failure in the co-ordination of dangerous activities.