McGlashan v QBE Insurance (Australia) Ltd (No 2) [2014] NSWSC 486

In another of a string of recent New South Wales decisions testing the level of comfort afforded to principal contractors by the seminal High Court decisions of Leighton Contractors v Fox and Stevens v Brodribb Saw Milling comes the 2014 decision of McGlashan v QBE Insurance (Australia) Ltd (No 2) [2014] NSWSC 486.

Background

The plaintiff, Mr McGlashan (“the plaintiff”), a roofing carpenter by trade, responded to a newspaper advertisement by Liordan Pty Ltd (“the defendant”) offering sub-contract work to experienced roofers. After being interviewed, the defendant began allocating work to the plaintiff on 1 May 2006.

Essentially, the plaintiff (who was working in a partnership with his son) lent their labour at an hourly rate of $35 each, providing their own hand tools, though the defendant quoted the jobs, provided all materials and any large pieces of equipment required for each job (ie. elevated working platforms).

On the morning of the incident date, the defendant’s production manager, Mr Keen, telephoned the plaintiff and called off allocated roofing work due to wet weather, but shortly thereafter asked the plaintiff to undertake maintenance work fixing leaks. The plaintiff’s son had made other plans so the plaintiff embarked on the maintenance work alone (though there was some controversy as to this as the plaintiff contended that Mr Keen had assured him that he would assist him with the work).

The Incident

There were two competing theories surrounding how the plaintiff had fallen 3-4 metres whilst working on a roof, landing on his feet and sustaining severe injuries to his heels:

  1. the plaintiff contended that the only mechanism of securing the ladder that he was using was to lash it to the roof at its top end- and that as he was descending the ladder after untying it, a sudden gust of wind blew the unsecured ladder over and he had jumped as it fell; whilst
  2. the defendant contended that the plaintiff had jumped from the roof in an attempt to get down after the ladder had blown over, after climbing partially from the roof.

His Honour Cambell J accepted that determining the actual mechanism of incident boiled down to a question of credit. His Honour accepted the plaintiff’s account on the issue, noting that the defendant’s account was constructed through ‘Chinese whispers’ and that climbing partially from the roof as described by the defendant would have involved “a feat of considerable acrobatic ability”.

Duty of Care?

His Honour said (at [28]):

The relevant relationship between [the defendant] and [the plaintiff] was that of principal and sub- contractor. However, although he was a skilled and experienced tradesman, viewed from the standpoint of [the defendant] he was not the supplier of specialist services. Rather he provided labour for the performance of [the defendant’s] core activities of roof fixing, and repair. He did not supply specialist equipment like the concrete-pumping independent contractor in Leighton Contractors Pty Ltd v Fox…”

His Honour considered Leighton Contractors and Stevens v Brodribb Saw Milling at length and noted that, provided the contractor was competent and that the activity they were engaged for was placed in the contractor’s hands, the principal contractor was not subject to an ongoing general law obligation with respect to the work methods adopted by the contractor.

The plaintiff accepted that he was a competent contractor though contested that the activity of repairing the leaks had not been placed in his hands as Mr Keen had undertaken to assist the plaintiff in carrying out the maintenance work. This claim was hotly contested by the defendant. His Honour noted that if the plaintiff was able to establish that Mr Keen had assumed responsibility to assist with the work, such a ‘salient feature’ would extend the Stevens v Brodribb duty to meet the circumstances of the plaintiff’s case, notwithstanding that he was an independent contractor.

However, his Honour accepted Mr Keen’s version of events over the plaintiff’s in that he did not assist the plaintiff in performing maintenance work and never offered to do so on the day of the incident as he expected the plaintiff would be working with his son as usual. However his Honour also accepted that Mr Keen had the expectation that the work would be a two-man job but said:

“…if [the plaintiff] was prepared to do the work on his own, Mr Keen was content to let him do it. And [the plaintiff] was so prepared.

His Honour also accepted expert evidence that (at [43]):

Its common ground that accepted safe practice in the roof-fixing industry involving work done, or accessed, from a ladder required either tying the ladder to the building, or a second person “footing” the ladderAn unaided tradesman would need to tie the ladder to appropriate anchor points, whichcould be reached from ground level, before he ascended…”

His Honour said that it was therefore clearly foreseeable that the plaintiff would access the roof to repair the leak using a long extension ladder, whilst working alone (contrary to the industry practice). His Honour did not accept a proposition from the plaintiff that he could not have refused the work once he knew he would be working alone for fear of losing future work.

His Honour said that the question to be tried was whether the plaintiff was competent to control his own system of work without supervision given that it was known that he proposed to work alone, contrary to the common industry practice. To this, his Honour said, at [68]:

I have not found the question of duty in this case easy to resolve. In the end, however, I have decided that extending the principal’s duty to an independent contractor beyond [that recognized in Stevens v Brodribb Saw Milling] is unwarranted, even accepting that the categories are not closed.”

On the basis that:

“[The defendant] was entitled to leave it to the judgment of an experienced tradesman, like [the plaintiff] as to whether a particular job could be undertaken safely by him. [The plaintiff] was entitled to decide not to perform a particular repair if he judged it required a second man, even if only for the purpose of “footing” a long  extension ladder, notwithstanding the expectation of Liordan to the contrary… [the defendant] put the whole task of repairing the leaks in [the plaintiff’s] hands as a competent independent contractor.

Conclusion

This is undoubtedly a win for principal contractors and is a decision that detracts from the recent tendency of the courts to widen the scope of the duty owed by principal contractors to subcontractors. It is indeed interesting to note that the Court was prepared to find against the plaintiff even when it was established that the principal contractor was prepared to allow the plaintiff to carry out work in a manner that was potentially unsafe.

As this is a decision of the Trial Division of the Supreme Court, it will be interesting to see whether the plaintiff appeals in light of the recent authorities of Ilvariy and Parkview Constructions, though they of course concerned pre-existing hazards on a work site other than hazards created by the claimant himself.