Background

On 7 July 2007, the worker seriously injured his right knee while carrying out maintenance work at the Portland Aluminium Smelter plant. 

At the material time the employer, Silcar, was retained by Alcoa to carry out recurrent maintenance works at the smelter.

The worker issued proceedings against Silcar and Alcoa seeking damages for personal injury caused by their negligence and breach of statutory duty.  Both defendants ultimately settled with the worker.

Each defendant had filed and served notices of contribution and indemnity pursuant to s 23B(1) of the Wrongs Act 1958 (Vic). Following settlement with the plaintiff Silcar and Alcoa sought to continue their respective contribution claims pursuant to s 23B(4) and requested that the Court make a determination restricted to apportionment of responsibility for the injury.

Division of responsibility between the defendants

The Court assessed Silcar’s liability at 80% and apportioned the remaining 20% to Alcoa.

In reaching this assessment the Court held as follows:

  • Silcar, as employer, owed the worker a non-delegable duty to provide adequate supervision and instruction as part of a safe system of work regardless of any inadvertence on the part of the worker.
  • Alcoa, as a principal, owed the worker a general duty of care which is more limited than the duty imposed on an employer.  This duty required Alcoa to use reasonable care to avoid unnecessary risks of injury and to minimise other risks of injury.
  • Alcoa retained a supervisory role with respect to the maintenance work in question, particularly the right to formulate the written job instructions, control access to the confined space and provide ongoing supervision on the floor of the smelter while maintenance work was being carried out. 

Further Findings

  • In retaining Silcar to perform the maintenance works, Alcoa could discharge primary responsibility of the implementation of the works to it.  Once a principal transfers control of working systems to an independent contractor they are not held vicariously liable for damage caused by the negligence of the independent contractor within their area of responsibility. 
  • However, Alcoa did owe a duty of care to the worker in respect of the elements of the system of work over which they retained control.
  • The decision provides useful guidance on the respective legal liabilities of employer contractors and principals where injury is caused to a worker at a principal’s workplace and makes clear that a principal will continue to have a legal liability where it retains some control or supervision over the contractor’s work.