Dear Colleagues;
The High Court of Australia handed down a judgement today in Leighton Contractors Pty Ltd v Fox; Calliden Insurance Limited v Fox [2009] HCA 35 (2 September 2009) http://www.austlii.edu.au/au/cases/cth/HCA/2009/35.html dealing with the question whether a duty of care is owed by a principal to contractors or the employees of contractors on a building site. Mr Fox was the injured worker. He had been engaged to help with the pumping of some concrete on a building site, by two gentlemen named Still and Cook who had been contracted by Downview Pty Ltd, who were working under a contract with Leighton, who were in charge of the whole project. Mr Fox was injured when, after he and a colleague named Stewart had poured some concrete, they were cleaning out a pipe used for the purpose by compressed air, and the end of the pipe (which was unsecured) whipped around and struck him.
The NSW CA had previously held that both Leighton and Downview owed a general duty of care to contractors working on the site, the "scope" of which included seeing that the contractors had received proper training in concrete pumping. There was a "Code of Practice" dealing with the task which had some statutory force as an "industry code of practice" under the Occupational Health and Safety Act 2000 (NSW) (the OHS Act), and if it had been followed the accident could have been avoided.
The HC in a joint single judgement (French CJ, Gummow, Hayne, Heydon & Bell JJ) overturned the decision on duty of care and held that no duty was owed by either of the "head contractors". There is a restatement at [20]ff of the general principle that principals do not owe the same duty of care to contractors as employers do to employees.
There is an unfortunately complex mix of issues created by the statutory obligations owed under the OHS Act and the OHS Regulations 2001 made under the Act. Sadly the CA had made what the HC correctly identifies as an error in interpreting the provisions of the Regulations requiring training to be provided by head contractors. As they note at [30] clause 213 requires a principal contractor in charge of construction work to see that people who work on the site have had "OHS induction training". But the CA had read a reference to a "Code of Practice" in reg 217 governing this training to import a need to provide training in the Concrete Pumping Code of Practice. In fact the definitions in the Regulations refer to another "Code of Practice" which refers in a more general way to induction training. Hence there was no need for Leighton to provide the specific Concrete Pumping training to all its contractors. In the end the only statutory obligation they had was to see that people working on the site had the general induction training, and some site specific training relating to the hazards on the particular site- see the summary at [36].
As a result it seems fairly clear that there was no breach of the OHS Regulation by Leighton or Downview. Hence there was no basis for an action based on the tort of breach of statutory duty.
(Sadly the High Court's comments on this issue, while technically correct, are a bit misleading. They do note correctly at [42] that the OHS Act 2000 does contain a provision, s 32(1), which means that a breach of the "general duties" to ensure safety under the Act does not give rise to a civil action. But they fail to note that s 32(2) of the same Act assumes that a civil action may be based on a breach of the OHS Regulation 2001 , and there are now a number of cases decided in NSW assuming that the regulations are civilly actionable. The confusion is then likely to be further compounded at para [49], where in passing the Court states: "The obligation imposed on Leighton under the Regulation, while not founding an action for breach of statutory duty, is central to the Court of Appeal's conclusion that a common law duty existed". The fact is that the only reason the obligation under the Regulation did not found a BSD claim is that no obligation under the Regulation was breached. But a casual reader may mistake the Court to be saying that breaches of the Regulations, like breaches of the Act, do not form the basis of civil liability.)
On the common law claim, the Court concludes that effectively it would be unrealistic to impose a duty of care on the head contractor of a building site to themselves provide appropriate training to all contractors and employees of contractors who enter the site. At [52]:
"a duty to provide training in the safe method of carrying out the contractor's 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 contractors".
This seems like a reasonable limitation on duty of care. The CA with respect seems to have gone a bit too far in laying responsibility for ensuring training on the head contractor (as opposed to taking reasonable steps to see that contractors engaged have done the training by requiring evidence of training certificates, etc.) Still, as Harold Luntz has just commented on another list, the decision does not really forward the protection of workers on construction sites, and it would have been nice to have heard what former Justice Kirby would have said about the issues!
Regards
Neil F
Neil Foster
Senior Lecturer, LLB Program Convenor
Newcastle Law School
Faculty of Business & Law
MC158, McMullin Building
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931