Contractor Safety Management – Who Has Control?

On 6 October 2016, Mr Sanders, a bricklayer employed by NeoWest Building Co Ltd (NeoWest) an independent contractor working on the Perth Stadium construction project engaged by Multiplex was injured when he began the process of removing two overhead steel purlins (not part of this job as a bricklayer) that were in the way of his laying one of the walls to a toilet block. One of the purlins struck him on the arm, and his left biceps tendon – where it adjoined the bone around the elbow – was torn through, a serious injury which eventually ended his ability to work as a bricklayer.

Mr. Sanders claimed that he had been instructed to remove the purlins by his Supervisor and a Supervisor from Multiplex and claimed that Multiplex had failed to to ensure his health and safety, and as a result was entitled to damages.

Mr. Sanders argued that Multiplex has breached its duties under common law and under statute including;

1. Civil Liability Act 2002 (WA)
2. Occupational Safety and Health Act 1984 (WA), s 19, s 21, s 21B, s 22, s 23D
3. Occupiers’ Liability Act 1985 (WA), s 5

The judgement clearly sets out why Mr. Sanders’s case was dismissed, and clearly explains why there had been no failure either at common law or under applicable statute entitling Mr. Sanders, as an independent contractor, to damages from Multiplex.

“The duty of care was that described in Stevens v Brodribb Sawmilling Co Pty Ltd, and the court was to assess what precautions a reasonable person in the position of the defendants, prior to the accident occurring and without the wisdom of hindsight, would have taken to avoid the risk of harm, considering those factors set out in s 5B(2)”

“On any complicated and enormous building site, where hundreds of tradesmen from multiple different trades utilise their varying skills, coordination of those trades is critical to the project finishing efficiently and safely for everyone on-site. Any principal contractor would foresee – and the first defendant did foresee – the need to clearly define the scope of works for each individual subcontractor and to task each subcontractor with the responsibility for completing its own works, over which it had specialised knowledge, in a safe manner.”

“there was a need for clear delineation of the boundaries between the various contractors, by a clear delineation of the scope of works for each trade. That was required at the contractual stage. Second, and as part of the same process, the contracts needed to emphasise the need for each subcontractor to take responsibility for its own works and its own employees to ensure its people completed the works in a safe manner”

“The first defendant did clearly delineate the scope of works for each contractor. The scope of works for NeoWest was highly detailed. The contractual provisions obliged NeoWest to complete that scope of works utilising only suitably qualified and experienced personnel for each facet and aspect of the works. Significantly, NeoWest was contractually prohibited from doing any work outside its scope of work without prior permission.”

“I do not consider that a reasonable person in the position of the first defendant directly or through its agent, the second defendant, would have supervised the setting out by NeoWest of its own works”

“NeoWest was contractually responsible for setting out its own works, including the survey of the site to comply with the plans, and erecting its own scaffolding. It was up to NeoWest as to how it completed its own works.”

“NeoWest was contractually prohibited from interfering with the work of another subcontractor without prior permission”
The duty as claimed goes beyond what a reasonable person would have done to identify the risk of harm and ‘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’.”

In fact if Multiplex HAD instructed Sanders to remove the purlins it WOULD have been negligent.

“the deemed relationship of employer toward subcontractor and the subcontractor’s employees is limited to those matters ‘over which the principal has the capacity to exercise control’”

“The meaning of capacity to exercise control is not necessarily limited by areas within the knowledge or expertise of the principal contractor. Nevertheless, that factor remains relevant to the question of what is ‘reasonably practicable’.”

“The question of control may be very relevant to what is reasonably practicable. In most cases the employer/principal has no control over how a competent or expert contractor does the work. It is one of the reasons why he employs such a person – that he has the skill and expertise, including knowledge of appropriate safety precautions which he himself may not have. Reilly v Devcon (Reilly v Devcon Australia Pty Ltd [2008] WASCA 84”

“Here, the personal duty imposed upon the employer is, as I have said, that of providing a safe workplace, so far as is practicable. If that, in turn, requires the employer to call upon expertise which it does not itself have then there is no reason why it should not do so and, indeed, every reason why it should.” Hamersley Iron Pty Ltd v Robertson (unreported, WASC, Lib no 980573, 2 October 1998)

“Pursuant to its contract, NeoWest had autonomy in how it was to complete the works and it was the appropriate body to provide the training and induction within its specialised area and to specify the methods to be used in performing the tasks required of its workers.”

“This was over and above the contractual obligation on NeoWest to analyse the risks to its own workers and to instruct in the safe method of completing their work.”

There was no breach of this duty. Sadly his honour did not explore his reasoning respect of the application of s 21 (2).

Section 22 again involves the concept of ‘practicable’, in the sense of practicable measures to ensure workers are not exposed to hazards, and ‘practicable’, by definition in the Act, again means reasonably practicable.

While the section applied to the first defendant, on the basis that it had control of the workplace, there was nothing presented by s 22 that warrants additional findings or analysis. Again, the high point of the plaintiff’s case for alleged breach of statutory duty was in relation to s 23D and the extended operation of s 19. In light of the findings made, there was nothing presented by s 22 that advanced the plaintiff’s case further.