The Supreme Court of New South Wales (NSWSC) has awarded $604,159 in damages to a plaintiff for injuries sustained whilst working as an independent contractor.

On 17 September 2007 the plaintiff, an independent contractor, was repairing the fuel tank of a Volvo loader which was owned and operated by the defendant, Australian Native Landscapes Pty Ltd (ANL). In the course of attempting to remove a 200 kilogram bash plate (so as to gain access to the fuel tank); the bash plate fell onto the plaintiff’s arm, causing serious injuries.

The plaintiff commenced proceedings in the NSWSC claiming damages for negligence from ANL on the bases that they had permitted him to work on a loader which they knew was defective and that there had been a failure to provide a safe place of work and the relevant resources to complete the job safely. In turn, ANL joined the plaintiff’s employer, Pitlane Mechanics Pty Ltd (Pitlane), of which the plaintiff and his wife were the sole directors and shareholders, by way of a cross-claim for breach of contract, indemnity and contribution. Pitlane cross-claimed against ANL seeking indemnity for payments made pursuant to section 151Z(1)(d) of the Workers Compensation Act 1987 (NSW).

Justice Latham found that no duty of care was owed by ANL in their supervisory role in directing the plaintiff to work on machinery according to schedules for service. The plaintiff had control over the repair and maintenance of the machinery and consequently, he was responsible for the condition of the machinery used to complete the job and had the requisite expertise and knowledge of the methods by which the bash plate could be supported. Therefore, the plaintiff’s argument that there had been a failure to provide the various resources to safely complete the job failed.

However, Justice Latham found that ANL was responsible for the condition of the loader, particularly the existence of what was supposed to have been a temporary tack weld holding the bash plate when they instructed the plaintiff to service the loader. Her Honour found that ANL were responsible for rectifying any known defect that would expose the plaintiff to risk of serious injury in carrying out the maintenance or repair works. Her Honour determined that but for ANL’s failure to rectify the weld promptly, the plate would not have fallen and injured the plaintiff.

Justice Latham assessed the plaintiff’s contributory negligence at 40%, having regard to his personal responsibility for his own safety and his knowledge and experience of the way ANL utilised heavy machinery and his prior experience of working on heavy machinery. The assessment was based significantly on the plaintiff’s failure to conduct a proper visual inspection of the loader and his decision to lie underneath the machinery without first supporting the bash plate.

ANL’s cross-claim against Pitlane was dismissed by her Honour, who held that whilst Pitlane, as the plaintiff’s employer, owed a non-delegable duty of care to the plaintiff, that duty is not absolute. As Pitlane could not have known about the failure to rectify the weld, it did not know and could not have foreseen the risk of harm to the plaintiff. However, Pitlane’s cross-claim against ANL was successful, with ANL’s negligence entitling Pitlane to indemnity pursuant to section 151Z(1)(d).

Implications

A duty of care does not arise solely because a principal exercises a supervisory role in directing an independent contractor to perform specific works, in circumstances where the independent contractor has control over those specific works and specialised knowledge and expertise in performing them. However, a duty of care will arise where the principal knows of a defect that has not been rectified but nevertheless directs the independent contractor to carry out works which could foreseeably be affected by the defect.

This decision also reinforces that the non-delegable duty to avoid exposing employees to unnecessary risk of injury is not absolute. An employer must be in a position to know the risks that are occurring or are likely to occur before it can be held to have known or foreseen the risk of harm to its employee.

Tsoromokos v Australian Native Landscapes Pty Ltd [2018] NSWSC 321