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The Supreme Court decision of Kabic v Workers Compensation Nominal Insurer (No 3) [2017] NSWSC 1281 has provided useful guidance on considerations that are likely to be important in determining the liability of various parties on a construction site, including injured workers, for accidents that occur. In doing so, the case highlights the precautions employers, labour hire companies and contractors should exercise to minimise or avoid exposure to liability claims and reminds workers of their responsibilities for their own safety.

Background

The Plaintiff, Mr Kabic, was a formwork labourer employed by a labour hire company, Caringbah Formwork Pty Limited (Caringbah). His labour was lent to Calcono Pty Ltd (Calcono), which was sub-contracted to undertake formworks as part of the redevelopment of the Redfern RSL. The principal contractor for the works was Deicorp Pty Ltd (Deicorp).

On 26 May 2011, the Plaintiff fell from a raised wooden platform on the construction site. He contended that the platform was exposed to the elements, was slippery when wet and did not have appropriate cross-braces that he could have grabbed onto when he slipped to prevent his fall. While these factual matters were contested, Justice Button ultimately accepted Mr Kabic's evidence on these issues.  

Liability for negligence

The Plaintiff sued Caringbah, Calcono and Deicorp, alleging that each was liable in negligence. He succeeded only against the host employer Calcono, which directly controlled the Plaintiff's work and which the Court found should have appreciated the hazards associated with the tasks it required Mr Kabic to undertake on the day of the accident.

Caringbah, the Plaintiff's actual employer, was not liable for the following reasons:

  • it had no control over the actual working conditions on the site, either generally or on the particular day of the accident
  • it was entitled to rely on what it knew of the appropriate safety procedures at the site put in place by both Calcono and Deicorp, and
  • regular inspections by Caringbah of the site or enquiries by Caringbah of its workers about the conditions on site would not have revealed any problems-the Plaintiff's accident was "highly specific to a particular time and place".

The principal contractor, Deicorp was also not considered liable because:

  • its subcontract with Calcono required the latter to fulfil a number of important roles with regard to the safety of its workers
  • it retained some supervisory role over site safety by, for example, providing site safety rules and reviewing Calcono's safe work method statements
  • Calcono, rather than Deicorp, largely controlled the Plaintiff's activities and had directed him to work at the particular location where the fall occurred. Indeed, the hazards involved with formwork meant the area in which the Plaintiff was working was fenced off and otherwise isolated and restricted in a number of ways.

Apportionment of liability

Although succeeding in his claim against Calcono, a finding of 33.3% contributory negligence was made. Justice Button found Mr Kabic knew from common sense and experience at other building sites that he should not work in the rain and his own responsibilities with regard to work safety had been emphasised by Deicorp and Calcono. His Honour acknowledged that workers can be reluctant to effectively refuse to work but suggested the Plaintiff did not need to take such a drastic step to look after his own safety. Rather, his Honour found that he could have drawn his foreman's attention to the state of the wood and proposed that he undertake other work until it dried, proposed an extra break with a later finishing time, requested a towel be provided so he could wipe down the platform or taken "some other reasonably practicable ameliorative step". Although discretionary considerations inform the apportionment of liability, many might consider the extent of the contributory negligence found in this case to be quite harsh on the Plaintiff. 

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