Courts clarify your duty of care as a principal contractor to workers employed by subcontractors performing work on your site

In the recent case of Clark v Schneider Electric (Australia) Pty Ltd, the District Court of Western Australia assessed whether under the common law and Western Australian statute, a principal contractor of a building site owes a duty of care to an employee of a subcontractor, in circumstances where the principal contractor was the occupier of the building site.

The case concerned the liability for a back injury sustained by Mr Clark, an employee of Mineworks, a company who had been subcontracted by HVLV Pty Ltd to perform work for Schneider Electric (Australia) Pty Ltd. Schneider Electric was the principal contractor on the site. Mr Clark alleged that, as the site was under the management and control of Schneider Electric, it had a duty of care to him which it failed to discharge, resulting in Mr Clark sustaining a back injury when he was performing work at the site.

Mr Clark maintained that Schneider Electric had a specific duty of care to him, as a principal contractor, which required it to:

• take steps to ensure that the way in which Mineworks required Mr Clark to perform work on the site was safe; and
• ensure that Mineworks had implemented a safe system of work for its employees who were performing work at the site.

In this case, Mineworks had no presence at the site. Its workers were working to assist HVLV complete the services HVLV was contracted to perform for Schneider.

The Court dismissed Mr Clark’s claim finding that Schneider Electric, in their capacity as the principal contractor, did not owe a direct duty to take reasonable care over Mr Clark’s safety either under the common law, the Occupiers’ Liability Act 1985 (WA), or Occupations Safety and Health Act 1984 (WA).

It found that it was Mr Clark’s employer, Mineworks, that held that duty of care to him and that this was a non-delegable duty of care.

In dismissing the claim, the Court clarified the scope of a principal contractor’s duty of care over a subcontractor’s employee.

The Court identified that the relevant duty of care bestowed upon principal contractors was to take reasonable care when coordinating the activities of trades at a site so it would avoid unnecessary risks of injury, or to minimise the risk of injury, for those engaged in the activity it organised.

Importantly, the Court recognised that such a duty of care is less stringent than an ordinary employer’s duty to take reasonable care to ensure the safety of all employees. Thus, a subcontractor’s inability to provide a safe work environment for its employees did not automatically render the principal contractor liable for negligence.

Consequently, Schneider Electrical did not have a duty to specifically direct HVLV or Mineworks as to how their employees should perform their duties. However, the Court did recognise that in certain circumstances there may be times where principal contractors may adopt this duty of care through its contractual obligations.

Schneider Electrical was able to establish that it had successfully discharged its duty by requiring all workers who attended the work site to complete an induction session and assessment.

While principal contractors do not have a duty of care over the direct safety of their subcontractors’ employees at common law or statute, they should be aware that they can, in certain circumstances, adopt a duty of care through contractual agreements. In those circumstances, an employer will still maintain its primary duty but other comparable duties may also arise for a principal contractor.

Similarly, while principal contractors do not hold a primary duty of care to a contractor’s worker, they still hold duties to workers and others under workplace health and safety laws. This case demonstrates that, at a minimum, to discharge their duties, principal contractors should endeavour to take reasonable care to avoid unnecessary risks of injury when it coordinates the activities that are required to be undertaken on a project. However, there is no duty that requires a principal contractor to retain control of the working systems if it is reasonable to engage the service of contractors who are competent themselves to control their systems of work, without the supervision of the principal contractor.

Queensland Workplace Health and Safety laws impose similar obligations on both principal contractors/contractors and employers towards workers performing work on multi-employer sites.

If your business is engaged to perform work as a principal contractor or to work under sub-contractor arrangements, it is important that you understand:

• what your specific duty of care is to those workers performing work on a work site; and
• whether you have any contractual obligations in place which may be extending those duties.

If you have questions about whether you are discharging your duty of care to workers on multi-employer worksites, please contact Gemma Sharp or our workplace relations and safety team.