Leighton Contractors Pty Ltd v Fox; Calliden Insurance Limited v Fox [2009] HCA 35
On 2 September a joint decision of the High Court (comprising Chief Justice French and Justices Gummow, Hayne, Heydon and Bell) was handed down which serves to clarify further the legal liability of principal contractors to employees of sub-contractors in terms of occupational health and safety education and training.
Background
On 7 March 2003 Brian Fox suffered severe injury in the course of working at the construction site of the Hilton Hotel in Sydney. Leighton Contractors Pty Limited (Leighton) was the principal contractor for the project. Leighton had contracted with Downview Pty Limited (Downview) to carry out the concreting. Downview had subcontracted the concrete pumping to Quentin Steel and Jason Cook. Brian Fox and Warren Stewart were engaged by Quentin Steel and Jason Cook in connection with pumping for a concrete pour that was scheduled for 7 March 2003.
After the concrete pour was completed, Mr Steel, Mr Stewart and Mr Fox started cleaning the concrete delivery pipes which involved blowing an object through the pipes with compressed air. In the negligent manner in which this was done the end of the pipe swung around and struck Mr Fox on the head.
NSW District Court Proceedings
Mr Fox brought proceedings in the New South Wales District Court in negligence against Leighton, Warren Stewart Pty Ltd (which employed Warren Stewart), and Downview. District Court Judge Gibbs found that the accident was caused by the negligent conduct of Mr Steel and Mr Stewart and dismissed the claims against Leighton and Downview, holding that there was no relevant breach of duty by either of them. She gave judgment for Mr Fox in the amount of $472,561.95 against Warren Stewart Pty Limited. Warren Stewart Pty Ltd did not appeal the judgment and unfortunately for Mr Fox, was subsequently deregistered.
NSW Court of Appeal
Mr Fox appealed against the dismissal of the claims against Leighton and Downview. The Court of Appeal (Justices Giles, McColl and Basten) considered that the primary judge was correct to reject Mr Fox’s case that Leighton was subject to a duty requiring that it supervised the concrete pumping and line cleaning. The Court rejected the submission that Leighton had a non-delegable duty of care owed to persons coming on to the site to take care for their safety. It observed 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.
However the Court of Appeal found that Leighton was subject to a general law duty of care to subcontractors and others coming on to a construction site within its control, the scope of which included “training in matters of safety to subcontractors”. Discharge of the duty required that Leighton take reasonable steps to ensure that persons coming on to the site to work had undergone the relevant induction training.
The Court of Appeal inferred from the Occupational Health & Safety Regulation 2001 that it was probable that OHS induction training for persons engaged in concrete pumping would have included training in relation to line cleaning and the matters addressed in clause 3.18 of the Pumping Code. The Court found that Leighton was negligent in its failure to take steps to ensure that both Mr Stewart and Mr Fox undertook the relevant induction training. The Court considered that the evidential basis for finding of causation was “sparse, ” however, given the evidence that Mr Stewart had taken the precaution of directing Mr Fox to stand clear before attempting to clear the blockage in the line, the inference should be drawn that had he received training and the need to tie the end of the pipe to the waste bin he would have done so. The failure to give instructions in this regard was a cause of the accident for which Leighton was liable.
High Court Proceedings
Leighton appealed to the High Court, making the argument that notwithstanding the Court of Appeal’s recognition of the distinction that the common law draws between principals in relation to the independent contractors they engage and employers in relation to their employees, the Court nonetheless imposed upon it a duty in scope that is akin to the duty to which an employer is subject with respect to training its employees in matters of work safety.
The High Court noted that common law does not impose a duty of care on principals for the benefit of independent contractors engaged by them, of the kind which they in turn owe to their employees. However, it is recognised that in some circumstances a principal will come under a duty to use reasonable care to ensure that a system of work for one or more independent contractors is safe.
It found that the Court of Appeal was correct in understanding that the content of OHS induction training for a person in a concrete pumping industry should include, inter alia, training in the health and safety topics contained in the Pumping Code. This formed part of the course content for the work activity based OHS induction training under clause 218 as specified in the code of practice.
However the High Court found that Leighton’s obligation under clause 213(1) of the Regulation, reflected in its works contract with Downview, was to be satisfied that a person carrying out construction work on the site had undergone OHS induction training rather than providing that training itself. The relevant obligations of Leighton would require only that it be satisfied that the person had completed OHS induction training in general health and safety topics and work activity based health and safety topics, or that the person had carried out relevant construction work in the course of employment within the period of two years immediately preceding1 April 1999, and completion of the site specific OHS induction training.
Leighton was required by the regulation to ensure that each subcontractor provided it with a written safe work method statement in respect of the work to be carried out. It was obliged to ensure that Downview was directed to comply with the safety work method statement and the requirements of the OHS Act and the regulation, and to ensure Downview’s activities were monitored to the extent necessary to determine whether it was complying with each of these requirements. These obligations were reflected in Leighton’s works contract with Downview, which required Downview to establish its own health and safety plan. It required Downview to supply work method statements and detailing the processes to be employed by Downview and their related risks and hazards and describing how Downview intended to control these risks and hazards.
The obligation imposed on Leighton under the Regulation, whilst not founding an action for breach of statutory duty, was central to the Court of Appeal’s conclusion that a common law duty existed. 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 when 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.
If Leighton owed a duty to Mr Fox and Mr Stewart to provide induction training to them in the safe method of concrete line cleaning, it must owe a duty to provide training in the safe method of carrying on every trade and conducting every specialised activity carried out on the site to every worker on the site. The High Court expressly rejected this proposition finding no reason in principle to impose a duty having such broad scope on a principal contractor. The latter is unlikely to possess detailed knowledge of safe work methods across the spectrum of trades involved in construction work. And further, a duty to provide training in the safe method of carrying out the contractors specialised task is inconsistent with maintenance of the distinction that the common law draws between the obligations of employers to their employees and of principals to independent contractor's.
The obligation on the principal contractor created by clause 213(1) of the Regulation, to be satisfied that a person coming onto the site has undergone general and work activity based OHS induction training, would ordinarily be discharged by obtaining a copy of the worker’s statement of satisfactory completion of the general and work activity based components of the training.
The Court found the Works Contract between Leighton and Downview, which recognised the statutory duties to which each were subject with respect to health and safety on the construction site, did not impose on Downview a duty of care requiring for its discharge that Downview provide work activity based OHS induction training to independent contractors coming onto the site.
Had Downview failed to engage a competent contractor it may not have avoided liability for the negligent failure of the contractor to take reasonable care to adopt a safe system of work. Provided that the contractor was competent, and provided that the activity of concrete pumping was properly placed in a contractor’s hands, Downview was not subject to an ongoing general law obligation with respect to the safety of the work methods employed by the contractor or those with whom the contractor had in turn subcontracted.
