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High Court Of Australia Reconsiders The Question Whether Principals Should Be Liable For The Negligent Acts Of Independent Contractors.

Article Excerpt
Judgment date: 2 September 2009

Leighton Contractors Pty Limited v Fox; Calliden Insurance Limited v Fox [2009] HCA 35 High Court of Australia1

In Brief The High Court was asked to reconsider the question of whether a principal should be liable for the negligent acts of independent contractors engaged by them.

The High Court upheld the decision in Stevens v Brodribb Sawmilling Co Pty Ltd2 which found that:

"The [principal's] duty arises simply because he is creating the risk and his duty is more limited than the duty owed by an employer to an employee...it imposes a duty to use reasonable care to avoid unnecessary risks of injury and to minimise other risks of injury...if there is no failure to take reasonable care in the employment of independent contractors competent to control their own systems of work, the [principal] is not liable for damage caused merely by the negligent failure of an independent contractor to adopt or follow a safe system of work either within his area of responsibility or in an area of shared responsibility".

In this case, the High Court overturned a decision by the NSW Court of Appeal that a principal was negligent for failing to provide OH&S induction training and held that the proper question was to ask whether the principal had implemented a reasonable system for ensuring that workers had undertaken relevant induction training.

The High Court also stated that it was necessary to exercise caution in translating obligations imposed under statutes, such as the OH&S Act, into a duty of care at common law. It emphasised that "whatever their scope, all duties of care are to be discharged by the exercise of reasonable care. They do not impose a more stringent or onerous burden".

Background On 7 March 2003, Brian Fox (Fox), the first respondent in each of the appeals, suffered severe injury in the course of working at a construction site. Leighton Contractors Pty Limited (Leighton), the appellant in the first appeal was the primary contractor for the project.

Leighton had contracted with Downview Pty Limited (Downview) to carry out the concreting, who in...

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