The NSW Court of Appeal recently considered an occupying builder's liability to provide a safe work-site for visitors, including tradespeople and other sub-contractors, reaffirming that the duty owed by a builder to contractors on-site is not akin to the non-delegate duty of care owed by an employer to an employee.
Facts
Mr Milan Sijuk was an experienced brick-cleaner. He was employed by his wife who carried out her business as Rosa's Cleaning Service.
While working on a building site in the possession of Ilvariy Pty Limited (Ilvariy) trading as Craftsmen Homes, Mr Sijuk injured himself when he fell through a hole in scaffolding.
The primary judge, Hall J, found that an unknown person had moved a piece of scaffolding, thereby leaving a gap or hole in the scaffolding. The site was not secure from public access. Mr Sijuk's evidence was that prior to climbing on the scaffolding, he had seen a notice placed on the scaffolding by its erector that it was safe. His Honour concluded that both Rosa's Cleaning Service (Mr Sijuk's employer) and Ilvariy, the occupier of the site, had breached the duties of care they owed to Mr Sijuk, causing his injuries.
Appeal
Ilvariy appealed on several grounds, including:
- it did not owe a duty of care to Mr Sijuk
- if it did owe a duty, the duty was not breached
- if it did owe a duty and the duty was breached, the breach was not causative of the loss.
Ilvariy argued that the primary judge had erred by characterising the duty owed to Mr Sijuk in terms akin to the non-delegable duty owed to an employee by an employer, contrary to the well-settled principles established in Stevens v Brodribb Sawmilling Co Pty Limited [1986]; Leighton Contractors Pty Limited v Fox [2009]; Andar Transport Pty Limited v Brambles Limited [2004].
Ilvariy submitted that its only duty was to co-ordinate trades and, since the question of trade co-ordination had nothing to do with Mr Sijuk's accident, there was no duty, breach or possible causal link. In an effort to prove that hypothesis, Ilvariy relied on the following comments of Brennan and Dawson JJ in Papatonakis v Australian Telecommunications Commissioner [1985]:
"...where an independent contractor carrying on a particular trade is engaged by an occupier to work on his premises, the occupier is not under a duty to give warning of a defect in the premises if tradesmen of that class are accustomed to meeting and safeguarding themselves against defects of that kind."
Decision
Ilvariy's submissions on the question of duty were rejected by Allsop P. Hodgson and Whealy JJA agreed with Allsop P's decision. Referring to the appellant's extrapolation of the principle enunciated in Papatonakis v Australian Telecommunications Commissioner, his Honour held that:
"This way of putting the matter transforms contributory negligence into a complete defence to the claim."
There are circumstances, his Honour conceded, where an occupier is entitled to expect that a tradesperson will address (independently of the occupier) dangers and defects on site, particularly where the occupier is a non-technical occupier. However, his Honour was quick to warn:
"That does not mean that a builder is free not to exercise any reasonable care about the safety of the building site of which it has possession."
His Honour went on to say:
"No doubt in some respects, a person who retains an independent contractor can expect the latter to decide how to do the task and what safeguards to put in place. This does not include leaving it to the contractor to find the danger in scaffolding at a building site that reasonable care by the builder/occupier would have found and eliminated."
Hall J had made a deduction of 15 per cent for contributory negligence and a further 10 per cent deduction for the notional liability of the plaintiff's employer, Rosa's Cleaning Service, pursuant to section 151Z of the Workers Compensation Act 1987. The Court accepted that while his Honour's assessment was low, it was not out of the range. Similarly, the Court of Appeal was not prepared to disturb the primary judge's assessment of the employer's notional liability.
Implications
There is a duty owed to exercise reasonable care to avoid exposing site visitors, including trades and sub-contractors, to a risk of injury caused by dangerous site conditions. To this extent, the situation in Sijuk's case is distinguishable from Leighton v Fox [2009] which essentially deals with issues relating to safe work practices, not safe work sites. The Court has acknowledged that the principle in Papatonakis v Australian Telecommunications Commissioner, while not applicable to Mr Sijuk's circumstances, is still good law.
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