The recent decision of the High Court of Leighton Contractors v Fox (the Leighton decision) provides some clarity on the common law duty of care of various contractors to other contractors.

Leighton was contracted to carry out works on the Hilton Hotel in Sydney (the construction site). Leighton contracted Downview Pty Ltd (Downview) to carry out the concreting work, and Downview sub-contracted the supply of concrete pump trucks to Shark Shire Pumping (Shark). Shark contracted with Aggforce Concrete Pty Ltd (Aggforce) who provided labour to the concrete pumping industry. On the day of the accident, Aggforce contracted Brian Fox (Fox) and Warren Stewart (Stewart) of Warren Stewart Pty Ltd (Warren Stewart), as independent contractors to provide labour.

The contract between Leighton and Downview provided that all persons engaged at the site must attend an OHS induction program conducted by Leighton, and Downview would provide Leighton with written details of any subcontractors who were to be engaged at the worksite. The contract also provided that the induction conducted by Leighton did not relieve Downview of its obligation to properly induct persons who performed work at the site and to ensure that appropriate policies and procedures relevant to that work were undertaken. Stewart was primarily responsible for the clean out operation, which required that the pipe be cleaned out by forcing an object through it with compressed air. A large bin was located at the end of the pipe to collect all the concrete debris. The end of the pipe was not secured to the bin. Prior to the clean out operation, Stewart told Fox to “step aside”. Fox was injured when the unsecured bottom end of the pipe, whiplashed and struck him on the head.

Fox alleged that Leighton (and Downview) were negligent in failing to ensure that safe work practices were adopted. In particular Fox alleged that Leighton breached its common law duty of care by failing to adhere to both:

  • the New South Wales Occupational Health and Safety Regulations 2007 which require that a principal contractor for a construction project must not allow another person to conduct work on a construction site unless that person has undergone OHS induction training, and
  • the relevant Code of Practice in relation to the safe cleaning of lines.

District Court Decision

Fox issued proceedings in the NSW District Court against Leighton, Downview and Warren Stewart.

The trial judge dismissed the claims against Leighton and Downview finding that there was no relevant breach of duty. Fox’s allegation that Leighton had a non-delegable duty of care similar to that of employer and employee was rejected. The trial judge stated that “to import a duty akin to that of an employer to retain a degree of control over the work would be inconsistent with the relationship between principal and independent contractor.”

Judgement of $472,562 was awarded against Stewart. Since the determination, Stewart has been deregistered.

The New South Wales Court of Appeal

Fox appealed against the dismissal of his claims against Leighton and Downview in the New South Wales Court of Appeal.

The Court of Appeal found that both Leighton and Downview had breached their general duty of care to Fox by failing to take reasonable steps to ensure persons coming onto the site had undertaken induction training. The Court of Appeal entered judgement against Leighton of $472,562 on the basis that:

  • it did not ensure that Fox and Stewart had received OHS induction training prior to commencing work at the construction site, and
  • any induction training would most likely have included training in relation to pipe cleaning in accordance with the relevant Code of Practice. Consequently, it could be inferred that had Stewart received appropriate training, he would have properly secured the end of the pipe so that it would not “whiplash” causing the hazard which resulted in Fox’s injury.

Downview were held to be liable for 80% of the judgement sum.

The High Court

Both Leighton and Downview appealed the New South Wales Court of Appeal’s decision to the High Court on the basis that their common law duty of care did not extend to Fox as he was not an independent contractor directly engaged by them.

The High Court determined that, at common law, principal contractors who organise activities are under a duty to use reasonable care to avoid or minimise risks of injury which may arise from that activity. It is not a duty to retain control of working systems where competent independent contractors are engaged to control their systems of work without the supervision of the independent contractor.

The High Court found that:

  • Leighton need only be satisfied that persons working on the site had received OHS Induction training in general OHS topics – it was not required to provide the training itself, and
  • although Leighton, as the occupier of the construction site, owed a duty to persons on the site, there was nothing to say that Leighton owed a duty to Fox to prevent an injury on the site as a result of the negligent activity of Stewart.

The Court found “The relationship between principal and independent contractor is not one which, of itself, gives rise to a common law duty of care, much less to the special duty resting on employers to ensure that care is taken.”

Further, “while it is true that obligations under statutory or other enactments have relevance to determining the existence and scope of a duty, it is necessary to exercise caution in translating the obligations imposed on employers, principal contractors and others under the OHS Act and the Regulation into a duty of care at common law.” The Court found that to place a duty on Leighton to provi

de training in the safe method of carrying out every trade or activity on a construction site is too onerous and there was “no reason in principle to impose a duty having this scope on a principal contractor.” In any event, the topic of line cleaning in accordance with the relevant Code of Practice would have been one of many topics covered in OHS induction training.

In relation to Downview, the High Court confirmed that where a person engages an experienced and competent contractor to undertake a specialised activity, it is not subject to the standard of duty which would normally arise if the person was engaging contractors to perform work that would ordinarily be performed by employees.