By Nica Manosca, Lawyer and David Slatyer, Partner

On 7 August 2024, Mr Sawyer appealed the judgment of the Supreme Court of Queensland. The appeal was heard before Bowskill CJ, Boddice JA and Bradley J on 15 November 2024.

On 24 January 2025, the Queensland Court of Appeal dismissed Mr Sawyer’s appeal against a principal contractor, regarding a back injury he suffered while performing concreting work for a subcontractor.

The Court of Appeal affirmed the decision of the trial judge, thereby dismissing the appeal of Mr Sawyer.

Application to the High Court

On 21 February 2025, the Applicant, Mr Sawyer, filed an application for special leave to the High Court to appeal from the judgment of the Court of Appeal of the Supreme Court of Queensland given on 24 January 2025. The application was based on the following grounds:

1. The Court of Appeal erred in failing to find that the Respondent as a principal building contractor owed a duty of care to the Applicant as an employee of a subcontractor.
2. The Court of Appeal erred in failing to apply the salient features test as articulated in Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649 to assess the existence of a duty of care.
3. The Court of Appeal erred in failing to find that the Respondent as a principal building contractor breached a duty of care owed to the Applicant as an employee of a sub-contractor.

The Applicant sought orders that the appeal be allowed and that the Orders of the Court of Appeal be set aside, and in their place orders be made that:

1. the appeal to the Court of Appeal be allowed;
2. the orders made by the Supreme Court of Queensland on 10 July 2024 dismissing the Applicant’s claim against the Respondent with costs be set aside, and in their place judgment be entered for the Applicant in the amount of $1,157,654.05, as assessed by the Supreme Court of Queensland;
3. the Respondent pay the Applicant’s costs of the appeal and the trial;
4. the Respondent pay the Applicant’s costs of the application for special leave to appeal and the appeal to this Court.

The Applicant argued in its application that:

• In recent years there have been statutory requirements to ensure safe building practices. How these statutory requirements should be used when determining the existence of a common law duty of care is unclear. Although statutory requirements do not give rise to civil liability, to ignore them when considering the existence of a common law duty of care detracts from the purpose of the statutory duty which is to ensure safe building practices.
• The Safe Work Method Statement (SWMS) was deficient as it dealt with lighter mesh, and there was no documentary evidence that the Applicant’s employer was aware of the unusual nature of the work to be performed, that is the use of unusually heavy mesh.
• In Caltex Refineries (Qld) Pty Ltd v Stavar, the New South Wales Court of Appeal developed 17 “salient features” which are to be considered when determining the existence of a duty of care owed by a principal contractor, even in a non-novel situation. A similar exercise was not conducted by the Queensland Court of Appeal in this case.
• The High Court has not considered whether those 17 salient features as used by the New South Wales Court of Appeal are correct or how a duty of care may arise out of established categories when there is no novelty.
• It would be beneficial and in the public interest for the High Court to expand on the interplay between statutory workplace health and safety obligations and common law duty of care.

Our client, the Respondent, in its Response to the Application, argued that:

• The Respondent did not control the system of work of Cretek (the employer of the Applicant). It was not the responsibility of the Respondent to review the SWMS and point out that it did not expressly address the need to lift the heavier mesh in circumstances where the Primary Judge found Cretek had sufficient workers on site to safely perform the task of lifting and handling the mesh or it could have instructed them to cut it into smaller manageable sizes.
• The Applicant did not challenge the factual findings made by the Primary Judge save for the finding that the work Cretek was engaged to carry out (preparing and pouring a polished concrete floor) was specialised. It also did not challenge the factual findings:
  1. that Cretek was aware that the foundation preparation work it was required to undertake involved the laying of heavier than usual SL81 mesh sheets;
  2. that Cretek sent four men to the job site because its director, Quillan, knew the SL81 mesh was heavier mesh;
  3. Quillan acknowledged that if workers found a piece of mesh too heavy, they could cut it into a smaller, lighter size and then tie it into position.
• Specifically, the Applicant did not argue in the Court of Appeal that the Primary Judge failed to appropriately consider the dicta of Allsop P in Stavar. Further, in the Court of Appeal, the Applicant did not challenge the legal principles which applied to the determination of whether a duty of care is owed by a principal contractor to an independent contractor.

The Applicant’s special leave questions and the Respondent’s responses are as follows:

• Does a principal building contractor owe a duty of care to an employee of a subcontractor if it fails to comply with workplace health and safety laws?

The Respondent’s response: In the Court of Appeal, the applicant did not dispute the applicable legal principles as summarised and applied by the Primary Judge.

• Does a principal building contractor who is provided with a defective Safe Work Method Statement by a sub-contractor, breach a duty of care owed to an employee of a sub-contractor if it fails to require the statement to be corrected?

The Respondent’s response: The expression ‘defective Safe Work Method Statement’ does not reflect the findings of Primary Judge. The Court of Appeal confirmed the findings of the Primary Judge that there was no reason for the respondent to intervene in the particular circumstances of the case.

• Does a principal building contractor breach a duty of care owed to an employee of a sub-contractor if it observes an unsafe task being performed and fails to intervene?

The Respondent’s response: The Primary Judge found that the respondent did not observe any unsafe tasks and therefore the question does not arise.

• Is the test as to whether a principal contractor is required to intervene that of a ‘casual observer’, ‘ or should it be that of a reasonable person in the position of a principal building contractor?

The Respondent’s response: The use by the Primary Judge of the expression “casual observer” was no more than an acknowledgement that the respondent’s leading hand, Timothy Hall, involved in his own work on site, had left the specialized concreting work to a competent contractor, and had no reason to monitor, supervise or to intervene in its work.

The High Court considered the material submitted by the parties on the papers and found that:

1. the proposed appeal would enjoy insufficient prospects of success to warrant the grant of special leave to appeal; and
2. the proposed appeal also raises no issue of principle or general importance.

The High Court therefore made an order refusing the Applicant’s application for special leave to appeal to the High Court, with costs.

Therefore, it remains the determination that our client, the principal contractor, was not liable for the injury to the employee of its subcontractor, during the performance of his work on site.