Waco Kwikfrom Ltd v Perigo and Workers Compensation Nominal Insurer [2014] NSWCA 140 (6 May 2014)

Main issue: Assumption of control

Background:

Waco Kwikform Ltd (Waco) was contracted by Axis Constructions Pty Ltd (Axis) to supply scaffolding at the Wentworth Park Grandstand in Glebe, Sydney (Project).

Waco contracted BTSS to provide workers to erect and dismantle the scaffolding.

Waco became aware of an incident involving a BTSS worker and rather than terminating BTSS’s involvement in the Project, prepared a revised SWMS to be used by BTSS and supervised their work to ensure that the revised SWMS was being followed.

11 days later, a BTSS worker fell eight metres suffering serious injuries in the course of dismantling the scaffolding and made a claim against BTSS and Waco for failing to take reasonable care for his safety.

At first instance, the Supreme Court held that while Waco was “under no continuing duty to prescribe and enforce a safe system of work for dismantling the scaffold”, Waco had lost confidence in BTSS’s competence following the incident and therefore assumed control of its system of work at the Project from that time, including deciding to revise the SWMS.

Waco appealed the decision arguing that it was Axis that decided to revise the SWMS and that the worker should be held contributorily negligent.

Decision:

The Court of Appeal upheld the decision of the Supreme Court but did agree that the worker should be held 20% liable for his injuries on the basis of contributory negligence.

The Court of Appeal held that following the incident, Waco required a revised SWMS to be prepared, that this was prepared by Waco, and that the work was supervised by Waco to ensure compliance with the revised SWMS and that all of these actions amounted to Waco taking primary responsibility out of the “contractor’s hands”.