The Court found that a head contractor does not owe a duty of care to a subcontractor in respect to the safety of work methods, in circumstances where:
(a) the contractor was competent; and
(b) the activity was placed in the contractor’s hands.
The claim related to an incident in which the plaintiff fell off a ladder in the course of undertaking roof repair work for Lidoran Roofing Pty Ltd (Lidoran). The plaintiff was a subcontractor of Lidoran and was working alone at the time of the incident.
The plaintiff alleged that Jarred Keen, an employee of Lidoran, offered to provide assistance to the plaintiff with the leaking roof work. Mr Keen denied this.
- 1. Duty of Care to a Subcontractor
The essential question the Court was required to determine was whether Lidoran owed the plaintiff a duty of care.
The Court found that although the plaintiff was a skilled and experienced tradesman, viewed from the standpoint of Lidoran he was not the supplier of specialist services. Rather, he provided labour for the performance of Lidoran’s core activities of roof fixing and repair.
The plaintiff provided:
(a) experienced labour;
(b) personal hand tools usual to its trade;
(c) his own transport;
(d) ladders for the performance of roofing work.
The Court noted that he was not legally obliged to accept work offered and was entitled to reject it. He was required to provide his own insurances including sickness and accident insurance and public liability insurance.
The Court referred to the decision of Leighton Contractors Pty Limited v Fox  (Leighton) which considered the duty of care to an independent subcontractor. The Court in Leighton said that where an independent contractor was engaged to perform work, provided the contractor was competent and provided that the activity was placed in the contractor’s hands, the principal was not subject to an ongoing general law obligation with respect to the safety of the work methods employed by the contractor.
His Honour noted that the question was whether the plaintiff was competent to control his own system of work, given that it was known to Lidoran that he proposed to work alone, contrary to the common practice in the industry.
The Court considered whether, in the circumstances, Lidoran was either bound to withhold the work from the plaintiff or provide assistance.
The Court found that Lidoran put the whole task of repairing the leaks in the plaintiff’s hands as an experienced contractor. As a result, it was held that Lidoran did not owe the plaintiff a duty of care in the performance of the roofing work.
His Honour noted that, legally, Lidoran and the plaintiff were entitled to make a contract that the plaintiff would undertake leak repair work alone. Lidoran was entitled to leave it to the judgement of an experience tradesman, like the plaintiff, as to whether a particular job could be undertaken safely by him. The plaintiff was entitled to decide not to perform a particular repair if he judged that it required a second man. The Court noted that a decision not to perform a particular repair might have commercial ramifications, but this did not make the plaintiff vulnerable in the legal sense, or warrant imposing a duty of care.
The case illustrates that the principles established in Leighton in relation to a duty of care to an independent subcontractor are now firmly established and being applied in New South Wales courts.
The Supreme Court’s decision has confirmed that in circumstances where a head contractor engages a subcontractor to perform work, and the subcontractor is subsequently in control of the system of work used, the head contractor will not owe the subcontractor a duty of care in respect of the method of work.
It is now common practice in the construction industry for head contractors to make use of subcontractors to perform work, and this decision is a reminder to subcontractors that they are responsible for their own system of work and own safety. The decision is a favourable one for defendants and insurers.
However, the existence or absence of a duty of care will depend on assessing the facts and circumstances of each case. Where the head contractor is heavily involved in dictating the methods of work used, a duty of care is likely to exist. Each claim, therefore, must be assessed on a case‑by‑case basis.
- Campbell J
-  HCA35 (Leighton)