By Nica Manosca, Solicitor and David Slatyer, Partner

Mills Oakley previously successfully defended the personal injury claim by Mr Luke Sawyer in the Supreme Court of Queensland; Sawyer v. Steeplechase Pty Ltd [2024] QSC 142.

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

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

Facts

Mr Sawyer was a concreter, employed by Cretek Concreting (Cretek).  He claimed damages against Steeplechase Pty Ltd, trading as SW Constructions (SWC), as the principal contractor, and against his employer, Cretek.

Mr Sawyer’s claim involved two alleged incidents. The first incident allegedly occurred on 22 August 2016 on a job site at a residential property in Ascot, wherein SWC was the principal contactor for the project and engaged Cretek to undertake some of the concreting works. The injury allegedly occurred while lifting and carrying sheets of reinforcing steel mesh, to lay in the concrete foundation / slab.

(Mr Sawyer alleged the second incident occurred on 3 July 2017, when he was working for Cretek at another job site.)

Mr Sawyer’s primary case was that his injuries are all attributable to the first incident, for which SWC and Cretek are liable. Alternatively, he alleged that he sustained initial injuries as a result of the first incident, which were then aggravated or exacerbated over a period of time culminating in the second incident.

Key Findings of the Court of Appeal

• Mr Sawyer’s claim against Cretek succeeded. However, the trial judge dismissed his claim against SWC, on the basis that no duty of care was owed.
• Mr Sawyer appealed that part of the trial judge’s decision, on the basis that the learned primary judge erred:
• in finding that SWC did not owe a duty of care to Mr Sawyer; and
• in failing to determine that SWC breached the duty of care which it owed to Mr Sawyer.

Mr Sawyer challenged the finding of the trial judge that the work Cretek was engaged to carry out – preparing and pouring (or installing) a polished concrete floor – was specialised, and not a job for which SWC had the requisite knowledge or expertise.

In challenging the trial judge’s application of the law to the facts of this case, Mr Sawyer submitted that the trial judge erred by failing to find that SWC breached its duty of care:

• by failing to ensure that Cretek was competent to perform the required task in a safe way; and
• by failing to intervene, when its leading hand who was on-site observed “dangerous activity”, and direct that the task cease being performed.

The Court of Appeal found that:

1. The evidence was clear, that this type of work, which involved installing the concrete slab for a polished concrete floor is specialised, in particular, it was said to require extra care and attention, in terms of placing the mesh and concrete, because of the importance of ensuring it does not crack. SWC was “not licensed and not skilled to do slabs”. Cretek was both licensed and skilled to perform such things.
2. The evidence at trial also well-supported the finding that Cretek was competent to devise and control its own system of work.
3. It was reasonable for SWC to assume Cretek was aware of the particular mesh required to be used for the job – because SWC had provided the engineer’s plans to Cretek to obtain a quote. Further, Cretek gave evidence that the reason there were four men sent to the job site was because he knew SL81 mesh was a heavier mesh. Cretek also accepted that, if the workers on-site found a piece of mesh was too heavy, they could cut it into a smaller, lighter, size and then later tie it into position.
4. In circumstances where SWC regarded Cretek as a reputable, experienced and competent concreter and where SWC had provided the engineering plans – specifying the SL81 mesh – to Cretek, before obtaining its quote, Bowskill CJ could see no error in the trial judge’s conclusion that it was not necessary for SWC to provide any further written or oral warning to Cretek that heavier than usual mesh sheets were to be used.
5. The content of Cretek’s Safe Work Method Statement does not alter the conclusion directly above. SWC engaged a competent specialist to perform a particular job. It was reasonable for SWC to do so and there was nothing about the circumstances which made it necessary for SWC to retain and exercise a supervisory power over Cretek’s system of work, or prescribe how it should go about performing the work it had been engaged to perform.
6. The mere fact of the presence of SWC’s leading hand and worker on the site on the same day as Cretek was performing its work, under the contract, does not alter the legal analysis having regard to the totality of the circumstances.
7. As the trial judge correctly found, SWC did not control Cretek’s system of work, which was the correct conclusion, as a matter of law. Once that point is reached, it cannot be said that SWC was required to review Cretek’s Safe Work Method Statement and point out to Cretek that it did not expressly address the need to lift the heavier mesh.
8. As to whether SWC’s leading hand had a duty to intervene when he observed “dangerous activity”, there was no evidence that Mr Hall did observe any such activity.

Bowskill CJ therefore made orders to dismiss Mr Sawyer’s appeal. Boddice JA and Bradley J agreed with the orders made by and the reasons of Bowskill CJ.

Conclusion 

This decision of the Court of Appeal reaffirms the principles established in the leading High Court decision of Leighton Contractors Pty Ltd v. Fox & Ors that a principal contractor will not generally be liable for an injury sustained by an employee of an independent contractor that occurs when the employee is performing work solely under the direction and control of the independent contractor, and within the independent contractor’s area of expertise.