The plaintiff was a subcontractor on a building site who alleged he was injured when a ladder he was descending fell over in high winds.  He said that on the day in question he was approached by the site’s production manager and asked to perform overtime work and repair spot leaks at the building site after a wet day.  The plaintiff said that he agreed to perform the work under the supervision of the production manager.  Proceedings were issued directly against the insurer of the builder.

The builder denied liability on the basis that the plaintiff had not, in fact, fallen off the ladder as alleged.  The builder’s case was that after the plaintiff’s ladder fell over in the wind, the plaintiff attempted to vault off a light fixture in an attempt to climb to the ground and suffered injuries after falling from a significant height.  The Supreme Court of New South Wales did not accept this explanation, finding that the plaintiff, an experienced tradesman, would not attempt such a risky manoeuvre in order to reach the ground. 

Alternatively the builder denied that it owed the plaintiff a duty of care on the basis that the plaintiff was an independent contractor.  The Court considered relevant High Court authorities which establish that a principal contractor is under a duty to use reasonable care in organising an activity to avoid or minimise the risk of injury to subcontractors.  However, it held that unless the builder or its employees assumed responsibility to supervise the subcontractor as to how the work was performed, it did not owe a duty of care to supervise.

Although the Court accepted that it was industry practice for two persons to carry out the work performed by the plaintiff, it noted that the builder was entitled to rely on the plaintiff’s judgement as to how the work should be performed.  The Court rejected the plaintiff’s allegation that the builder’s production manager had assumed responsibility to assist the plaintiff in his duties on the day in question by being the ‘second man’ for the repairs.  The plaintiff, as an experienced independent contractor, had a choice to refuse the relevant work, or to carry it out in a manner that he saw fit.  No duty of care was owed by the builder in those circumstances. 

McGlashan v QBE Insurance (Australia) Ltd (No 2)

A principal contractor has a duty to minimise the risk of injury to subcontractors on a building site.  However the duty of care does not extend to supervising a competent subcontractor who is performing work within the subcontractor’s experience.