By Dr Laura Sowden, Partner and Anna Ly, Senior Associate
Case name: SafeWork NSW v Tattam Express Pty Ltd [2025] NSWIC 7
The injured worker was a truck driver involved in a forklift incident at a subcontractor’s premise located at Batemans Bay in October 2022.
The truck driver was employed by Freight Specialists Pty Ltd (Freight Specialists). Freight Specialists subcontracted Tattam Express Pty Ltd (Defendant) to perform part of its work.
The Court explored the issue of whether Tattam owed a primary duty of care to the injured worker under s 19(1) Work Health and Safety Act 2011 (NSW) (WHS Act) if the injured worker was an employee of another company.
19 Primary duty of care
(1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of—
(a) workers engaged, or caused to be engaged by the person, and
(b) workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking.
(2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.
The Court held the Defendant did not owe a duty to the worker under s 19(1) of the WHS Act and this was because the injured worker did not fall under the meaning within s 19(1)(a) or (b) of the WHS Act.
The Court held “to fall within the ambit of a s 19(1) worker, it is apparent that the person to whom the duty is owed must, in some capacity, be carrying out work for the PCBU duty holder while at work in their business or undertaking”. [1]
The Defendant relied on the decision of Justice Scotting in SafeWork NSW v Poletti Corporation Pty Ltd [2019] NSWDC 491 to establish a circumstance of when a section 19(1) duty is owed to a person:
“The section 19(1) duty is owed to persons that can satisfy 3 requirements:
(1) they are a ‘worker’ as defined by section 7 of the Act; and
(2) either:
(i) they have been engaged (or caused to be engaged) by the PCBU; and/or
(ii) their work is controlled or influenced by the PCBU; and
(3) they are at work in the business or undertaking.”[2]
The Court held:
“to attend the defendant’s yard to deliver palletised goods and to facilitate delivery by removing curtains and removing or rolling up straps to enable the defendant’s forklift to collect the palletised goods.”
“The fact that he was performing work at the yard and able to be influenced or directed by the defendant in the conduct of its business was not sufficient to bring him within the scope of the s 19(1) duty.”[3]
The Court explained that despite the Defendant having influence over the work activities, that is not sufficient to meet the definition of a worker under the WHS Act. Therefore, the injured worker was not a worker to whom the Defendant owed a duty to under s 19(1).
This case provides an insightful evaluation of a PCBU’s duties to its workers particularly when there is a principal contractor and subcontractor involved. A principal contractor, like the Defendant here, will not always be responsible for the workers of the subcontractors on its site – this is because those workers are not sufficiently influenced or directed by the principal contractor to be a worker under the WHS Act.
[1] SafeWork NSW v Tattam Express Pty Ltd [2025] NSWIC 7 [82]
[2] SafeWork NSW v Poletti Corporation Pty Ltd [2019] NSWDC 491 [98]
[3] [2025] NSWIC 7 [45]
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