The importance of hiring competent subcontractors

In Australia two recent decisions have emphasised that a head contractor does not have a duty to ensure a subcontractor’s system of work are adequate where the subcontractor is competent and employed for a specialty task. This principal was set out by the Australian High Court in Leighton Contractors Pty Ltd v Fox [2009] HCA 35 and has been applied in two recent Australian decisions; both were claims brought against the head contractor by employees of a subcontractor:

Waco Kwikform Ltd v Perigo [2014] NSWCA 140

A scaffolder was injured when he fell while dismantling scaffolding. The subcontractor was employed on a labour only basis, specifically to assemble and dismantle scaffolding. There were two relevant periods of the subcontractor’s engagement and different duties applied during each period:

  • Period One – An initial period where the subcontractor has full control over their own system of work.
  • Period Two – Due to past health and safety issues with the subcontractor, the head contractor had assumed control over the subcontractors systems of work.

The court found that during Period One the head contractor was required to supply safe equipment and methods of work around the equipment supplied. But because the head contractor has no control over, or responsibility to supervise, the subcontractors work systems, a duty of care was not owed to the subcontractor’s workers.

During Period Two the head contractor had assumed control over the subcontractors system of work and therefore assumed a duty to the subcontractor’s workers in relation to systems of work.

McGlashan v QBE Insurance (Australia) Ltd (No 2) [2014] NSWSC 486

This case involved a one-man roofing company who was employed for roofing labour services. When descending a ladder Mr McGlashan was blown over in a strong gust of wind. The job should have been a two man job, however Mr McGlashan was working by himself. He brought proceedings against the head contractor.

The Court found that the head contractor did not owe a duty of care because Mr McGlashan was experienced in the roofing industry and had decided to work alone.

Although these are Australian cases, the principle of employing competent subcontractors is relevant to all jurisdictions. In addition, those who hold themselves out as specialist subcontractors should ensure they have adequate systems of work in place for the particular job.

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