Principal loses appeal in long-running damages, safety case

18 September 2018

An appeals court has confirmed that a principal contractor is 40 per cent liable for a worker’s fall through a roof, in a long-running case involving multiple safety prosecutions and damages claims.

Background

In 2013 proceedings, principal Mallon Company Pty Ltd, trading as Frontline Roofing (Frontline), the worker’s employer Terry’s Crane Hire Pty Ltd (TCH) and their directors were convicted and fined a total of $171,000 over the September 2010 incident, where the TCH worker inadvertently walked on a damaged skylight and fell 3.3 metres to the ground, sustaining serious injuries.

Frontline had been contracted to repair a manufacturing business’s workshop roof. It engaged Debri Pty Ltd (Debri) to perform the re-roofing work and TCH to provide crane services but did not perform any work itself at the site.

In March last year, Western Australian District Court Judge Michael Bowden found Frontline was 40 per cent liable for the damages that TCH agreed to pay the injured worker, finding Frontline had a duty to minimise the risk of injury to contractors engaged in activities it organised. He found Frontline was aware of the damaged skylights and could have foreseen that the worker, as a dogman, and others might inadvertently walk on them.

Appeal

In the current proceedings, CGU Insurance Ltd, on behalf of the now-deregistered Frontline, argued it wasn’t foreseeable that TCH workers would work on the roof and Judge Bowden erred in finding it breached its duty of care by failing to “retain and exercise a supervisory power” over Debri, which controlled the roof work.

But the Court of Appeal found it was clearly foreseeable that the TCH dogman would go onto the roof to sling loads and agreed with Judge Bowden that Frontline had a supervisory duty to prevent the foreseeable and not insignificant risk of a person falling through the skylights by covering them with mesh.

They found that while the duty Frontline owed to the workers was less stringent than those owed by the workers’ direct employers, it still should have considered the risk of workers on the roof coming into inadvertent contact with the skylight and falling through it.

Frontline was organising for two different trades – a roofing team and a crane team – to perform the work. Neither team controlled the others’ activities or had the right to direct the other as to how work was to be performed,” they found.

Frontline had primary responsibility for the state of the premises, while TCH had primary responsibility for ensuring that [the worker] carried out his tasks at the site in a safe manner,” they said in dismissing the appeal.

Learnings

Principal contractors need to be aware that they cannot obviate their duty of care by transferring it to second or third parties – it is non-delegable. A principal’s duty under OHS law applies to an independent contractor and the employees of that contractor.