Thinking | 17 June 2021

Principal’s duty of care considered: subcontracting work, subcontracting duty of care to workers on site?

By Maree Ferguson, James Fielding and Grace Collis

The District Court of Western Australia recently delivered its decision in favour of Principal Contractor Schneider Electric in the case of Clark v Schneider Electric (Australia) Pty Ltd [2021] WADC 11, refusing to extend Schneider’s duty of care to the systems of work implemented by its subcontractors.

Schneider Electric was a principal contractor tasked to construct switch rooms for an LNG Project. Mr Clark was an employee of Mineworks, an entity subcontracted by HVLV Pty Ltd (HVLV) which was in turn a subcontractor to Schneider. Mr Clark brought an action against Schneider for injuries to his lumbar spine allegedly sustained in December 2014 resulting from Schneider’s negligence, and breaches of the Civil Liability Act and Occupiers Liability Act.

Mr Clark was a sand blaster and alleged that he was required to work at an awkward height for extended periods of time, requiring him to duck, crouch and crawl underneath structures to complete his duties. He claimed that the nature of these duties resulted in a back injury. Mr Clarke claimed that through its responsibility to coordinate contractors Schneider had the authority and responsibility to rotate HVLV’s workers.

Judge Herron found that Mr Clark and his co-workers were required to work at awkward heights, and were not provided with a system of work by which they were rotated to work in less cramped and confined areas. Despite multiple complaints about working in these conditions at daily pre-start meetings, Mineworks, Schneider and HVLV did nothing to implement a system of rotating workers out of these spaces to relieve them from the awkward conditions.

His Honour accepted that Schneider owed workers including Mr Clark a duty of care, but what was in contention was the scope of that duty. He confirmed that in respect of the facts of this case, the risk of harm which had materialised was one suffered in the course of Mr Clark performing his ordinary work duties.

This was not a case where a principal contractor and occupier had failed to coordinate the work of two trades to avoid unnecessary risk of injury. He drew reference to the comments of the High Court in Leighton Contractors Pty Ltd v Fox (2009) 240 CLR, confirming that a Principal contractor is not required to provide ‘training on the safe method of carrying on every trade and conducting every specialised activity carried out on the site to every worker on the site.’ Mr Clark claimed this case should be distinguished from Leighton Contractors, however, Judge Herron ruled there was nothing in the case to extend the duty of care beyond the findings of that case.

Schneider’s duty was ‘to be distinguished from the more stringent non‑delegable duty owed by Mr Clark's employer to him to ensure that reasonable care was taken for his and his fellow employees' safety. Schneider’s duty did not require it to retain control of all working systems of the various trades on site…Schneider’s duty to take reasonable care required it to coordinate the activities of the various trades working at the AMC site to avoid unnecessary or unreasonable risks of injury to the workers engaged in the construction of the switch rooms.’

This case confirms that the duty of care to establish a safe system of remains with an employee’s direct employer. As such, subcontractors should ensure that they have an active presence on any site where they are contracted to perform work and ensure they tailor the system of work to any foreseeable risks at the relevant location. Principals can be reassured that in the absence of any special circumstances otherwise, their duty when subcontracting to specialised trades is limited to co-ordinating the various activities to prevent injuries from subcontractors impacting each other.

Contact

Maree Ferguson

Maree acts for and advises insurers, employers and self-insurers and regularly appears in the District Court and at WorkCover...

James Fielding

With over 14 years’ experience, James has acted for insurers and self-insured clients in large complex claims involving public...

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