Introduction
A recurring theme in construction injury claims is whether or not a principal contractor’s duty extends to a subcontractor’s system of work. Despite the law being reasonably settled in this area, principal contractors are regularly dragged into litigation when, in the authors’ opinion, the circumstances do not justify this.
The Queensland Court of Appeal recently considered the scope of the duty of care owed by a principal contractor in the decision of Sawyer v Steeplechase1. This decision is a timely reminder that a principal contractor’s duty of care ordinarily does not extend to a subcontractor’s system of work.
The Parties
SW Constructions (SWC) was the principal contractor for the construction of a residential property in Ascot (the site). SWC engaged Cretek Concreting (Cretek) to undertake some of the concreting works on the project. The plaintiff, Mr Luke Sawyer, was employed by Cretek as a concreter.
The Claim
Mr Sawyer’s claim involved two incidents. The first occurred on 22 August 2016 when he was lifting sheets of mesh on the project. The second allegedly occurred on 3 July 2017 when he was bending over to get a drink during a work break. The second incident occurred on a different site while still working for Cretek.
In relation to the first incident, part of the building work to be carried out involved raising the existing house and installing a polished concrete slab underneath. Mr Sawyer and another Cretek employee were tasked by their supervisor, Dwaine Stewart, to complete the foundation preparations for the concrete slab. In performing that task, they had to lift, carry and lay steel mesh sheets.
The sheets had been ordered by SWC, who arranged for their delivery. The sheets were left stacked in a pile out in the open on a driveway area towards the front of the property. Mr Sawyer alleged he was not given any instructions by Mr Stewart about putting the mesh sheets in place, who was not on site at the time of the incident.
In total, Mr Sawyer and his coworker were required to lay and fix about two dozen of the mesh sheets. He said it was about when they were laying the fourteenth sheet that the incident occurred. The sheet being laid at the time of the incident was described as being more difficult than the rest due to numerous plumbing pipes protruding from the ground in the area. Mr Sawyer described his left arm had been above his head supporting the top of the sheet and his right arm had been fully extended to the right side of his body and as he squatted and reached out to get the sheet to balance on top of the pipes, he felt a ‘click’ and pain in his lower back.
At the time of the first incident, there were two workers from SWC who were also on site attending to other jobs.
The second incident happened on 3 July 2017. Mr Sawyer referred to it as one of the occasions he experienced a ‘flare-up’ of his back pain. He explained that on that day he was at a job for Cretek and had gone to get a drink. As he bent over to pick up the drink, he felt severe lower back pain. He sought medical treatment the next day. The second incident did not involve SWC.
Decision at First Instance
The Supreme Court decision was handed down 10 July 2024.
Justice Crowley considered there were a number of liability issues to consider, including the scope of any duty of care owed to Mr Sawyer by SWC as the principal contractor.
The Arguments
Mr Sawyer submitted that, in respect of the first incident, SWC owed him a duty to take reasonable care to:
- monitor and maintain workplace health and safety at the site;
- direct him not to engage in unsafe work;
- warn him of any unnecessary risk of injury; and
- avoid reasonably foreseeable but unnecessary risks of injury.
Mr Sawyer claimed that SWC knew, or ought to have known, of the subject risk and relied, amongst other things, upon the fact that SWC was a person conducting a business or involved in the management or control of a workplace, within the meaning of Work Health and Safety Act 2011 (Qld) (WHSA),
In response, SWC principally relied on the fact that Mr Sawyer was an employee of Cretek and that its relationship with Cretek was one as between a head contractor and an independent contractor. It further submitted that it had no control over the way Cretek completed the concreting work and no obligation to monitor or supervise the works carried out by Cretek’s employee.
Legal Principles
The Court considered the legal principles for determining whether SWC owed Mr Sawyer a duty of care in its capacity as principal contractor. The Court first considered Leighton Contractors v Fox,2 in which the High Court stated:
The common law does not impose a duty of care on principals for the benefit of independent contractors engaged by them of the kind which they owe to their employees. However, it is recognised that in some circumstances a principal will come under a duty to use reasonable care to ensure that a system of work for one or more independent contractors is safe.3
The Court also considered Stevens v Brodribb Sawmilling Co Pty Ltd,4 and cited the following passage from Mason J’s separate judgment:
Although the obligation to provide a safe system of work has been regarded as one attaching to an employer, there is no reason why it should be so confined. If an entrepreneur engages independent contractors to do work which might as readily be done by employees in circumstances where there is a risk to them of injury arising from the nature of the work and where there is a need for him to give directions as to when and where the work is to be done and to co-ordinate the various activities, he has an obligation to prescribe a safe system of work. The fact that they are not employees, or that he does not retain a right to control them in the manner in which they carry out their work, should not affect the existence of an obligation to prescribe a safe system…
Justice Crowley also referred to the decision of McMeekin J in Kerle v BM Alliance Coal Operations Pty Ltd,5 who considered the principles stated in Brodribb and Leighton were not restricted in their application simply to cases where a principal had a role in co-ordinating the activities of independent contractors, and the question of whether a principal owed a duty to the plaintiff was to be determined having regard to the totality of the relationship between the parties.
Did SWC owe a duty of care?
While Justice Crowley considered that the above authorities establish that, in some circumstances, a principal contractor will have a duty to use reasonable care to ensure a safe system of work for contractors, whether the duty arises is dependant on the nature of the relationship and the circumstances of the incident. Justice Crowley was not satisfied the circumstances gave rise to a duty of the kind and scope pleaded by Mr Sawyer. This was because, among other things:
- SWC had engaged Cretek to perform a particular job and Cretek was competent to devise and control its own system of work. Justice Crowley considered that how the activity was done was a matter for Cretek.
- SWC was also not responsible for supervising Cretek’s system of work because the activity being performed was self-contained and did not require co-ordination with other activities onsite.
Importantly, Justice Crowley considered ‘the situation was one where SWC had organised the activity but where its operation was then put in the hands of Cretek and [Cretek] assumed and retained responsibility for devising, implementing and supervising a safe system of work’.
On Appeal
Mr Sawyer appealed the decision on the basis that the learned primary judge erred:
- In finding that SWC did not owe a duty of care to Mr Sawyer; and
- In failing to determine that SWC breached the duty of care which it owed to Mr Sawyer.
The Court of Appeal dismissed Mr Sawyer’s appeal and considered the primary judge was correct to conclude that, in the circumstances of the case, no duty was owed by SWC to Mr Sawyer.
There was no dispute regarding the applicable legal principles which apply to the determination of whether a duty of care is owed by a principal contractor to an independent contractor, as identified above. Mr Sawyer argued that in applying the established principals, the primary judge arrived at the wrong conclusion. Mr Sawyer submitted that the trial judge erred by failing to find that SWC breached its duty of care:
- by failing to ensure that Cretek was competent to perform the required task in a safe way; and
- by failing to intervene when SWC’s leading hand, who was on-site, observed “dangerous activity”, and direct that the task cease being performed.
The Court agreed with the trial judge’s observation that the question of whether a duty arises in circumstances such as the present is to be determined by considering the nature of the relationship between the parties and the totality of circumstances. In this respect, the relationship between SWC and Cretek was contractual, in that Cretek was engaged to perform a particular part of the renovation works.
The evidence at trial also supported the finding that Cretek was competent to devise and control its own system of work.
The Court of Appeal found that in circumstances where SWC regarded Cretek as a reputable, experienced and competent concreter, and where SWC had provided the engineering plans to Cretek, there was no error in the trial judge’s conclusion that it was not necessary for SWC to provide any further written or oral warning to Cretek that heavier than usual mesh sheets were to be used.
One of the issues concerned the fact Cretek’s safe work method statement (SWMS) did not address the subject risk. On this issue, the Court of Appeal stated:6
The content of the SWMS does not alter that conclusion. SWC engaged a competent specialist to perform a particular job. It was reasonable for SWC to do so; and there was nothing about the circumstances which made it necessary for SWC to retain and exercise a supervisory power over Cretek’s system of work, or prescribe how it should go about performing the work it had been engaged to perform.
As to the presence of SWC’s supervisor, the Court stated, ‘The mere fact of the presence of SWC’s leading hand and worker on the site on the same day as Cretek was performing its work, under the contract, does not alter the legal analysis having regard to the totality of the circumstances.’7
Conclusion
This case reaffirms that a principal contractor’s duty of care will ordinarily be limited to taking reasonable care to engage subcontractors competent to manage their own systems of work. While the courts have identified circumstances in which the duty may extend to a subcontractor’s system of work, Sawyer confirms that such circumstances as a principal ordering materials for use by the subcontractor, or the principal having a supervisor on site, or the subject risk not being identified in the subcontractor’s SWMS, are not circumstances which, in themselves, result in the broadening of the duty.
1 [2025] QCA 2.
2 [2009] HCA 35.
3 Ibid, 11–12 [20].
4 (1986) 160 CLR 16 at [31].
5 (2016) 262 IR 381
6 Sawyer v Steeplechase Pty Ltd [2025] QCA 2, at [21].
7 Ibid at [22].
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The material contained in this publication is in the nature of general comment only, and neither purports nor is intended to be advice on any particular matter. No reader should act on the basis of any matter contained in this publication without considering, and if necessary, taking appropriate professional advice upon their own particular circumstances.
