By Nica Manosca solicitor and David Slatyer Partner

Mills Oakley successfully defended a personal injury claim in the Supreme Court of Queensland against a principal contractor; Sawyer v. Steeplechase Pty Ltd [2024] QSC 142.

Facts

The plaintiff claimed damages against Steeplechase Pty Ltd, as the principal contractor, and against his employer, Cretek Concreting.

The plaintiff’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. The owner of the residence was undertaking substantial renovations of the property, worth more than $1 million. Steeplechase was the principal contactor for the project and engaged Cretek to undertake some of the concreting works.

The engineer’s plans for the renovations specified that a particular type of steel mesh was required to be laid for the building’s foundation, known as ‘SL81’, which was a 6m x 2.4m square grid patterned product, with each sheet weighing approximately 105kg.

On the incident date, there were four Cretek workers on site, including the plaintiff. Two workers from Steeplechase were also onsite attending to other jobs.

The plaintiff and another Cretek worker, Mr McMath, were directed by Mr Stewart (Cretek supervisor) to complete the slab preparations. In total, the plaintiff and Mr McMath were required to lay and fix about two dozen of the SL81 steel mesh sheets over the previously prepared footings. In order to do so, they had to pick up the sheets from the pile at the front of the property, one at a time, and then carry each one to the required location under the house and to fix them in place.

The plaintiff claims that it was while squatting and reaching out with one of the mesh sheets above his head that he felt a ‘click’ in his lower back (first incident).  The plaintiff alleged that the first incident, and his resultant injuries, were caused by Steeplechase and Cretek breaching the duty of care they each owed him to ensure a safe system of work and to not expose him to unnecessary risks of injury.

The plaintiff alleged the second incident occurred on 3 July 2017, when he was working for Cretek at another job site. The plaintiff claims that he exacerbated or aggravated his initial back injury during the second incident, when he bent over to get a drink during a work break.

Subsequent medical investigations revealed that the plaintiff had sustained a prolapsed vertebral disc in his lumbo-sacral spine.

The plaintiff also alleged that he sustained an aggravation of a pre-existing depressive condition, as a consequence of his physical injury sustained in both the first and second incidents.

The plaintiff was off work for a time. He submitted a claim for, and subsequently received, workers compensation benefits. He commenced rehabilitation and later returned to work for a few weeks, but eventually ceased working for Cretek, allegedly due to severe back pain. Despite subsequent surgery and treatment, the plaintiff claimed that the symptoms caused by his prolapsed disc worsened. At the time of trial, he was on a disability support pension and was unemployed.

The plaintiff’s primary case was that his injuries are all attributable to the first incident, for which the first and second defendants 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

Justice Crowley of the Supreme Court of Queensland found that there were four major liability issues to consider in this case, these being:

1. the scope of any duty of care owed to the plaintiff by Steeplechase in its capacity as the principal contractor in occupation and control of the job site at the time of the first incident;
2. when and how the plaintiff sustained a prolapsed L5/S1 disc;
3. the plaintiff’s alternative case against the Cretek defendants and the alleged over period of time injury he claims he sustained; and
4. the extent of Steeplechase’s liability for the first incident, in the event that it was held to be liable.

As to the first issue, Crowley J. found that Steeplechase, as the principal contractor for the construction site at the time of the first incident, did not owe a duty of care to the plaintiff of the kind and scope pleaded by the plaintiff. As such, the claim against the first defendant was dismissed.

His Honour found that Steeplechase had engaged Cretek to perform a particular job. Cretek was competent to devise and control its own system of work. Steeplechase did not retain control over Cretek’s work systems, just because of its status as an occupier of the site or because of its duties under Workplace Health and Safety legislation, Australian Standards, or contractual duty.  Although Steeplechase was the occupier of the site, this was not a case where it had established and maintained a system for performing a particular activity with which Cretek and its employees were to conform. Steeplechase did not direct or prescribe how the SL81 mesh sheets were to be handled, and was not obliged to.

His Honour also did not consider that Steeplechase was required to undertake a risk assessment of the task the plaintiff was performing. That was Cretek’s responsibility. Cretek, as a competent independent contractor, knew the nature of the particular tasks to be carried out on the incident date and knew, or ought to have known, of the risks involved. It had sufficient workers onsite to safely lift, carry and lay the SL81 mesh. It could have directed all four workers to perform that task. Alternatively, it could have instructed its workers to cut the mesh sheets, which could easily have been done, before handling them. It was ultimately Cretek’s duty and responsibility to ensure that the work its employees were to perform would be carried out safely.

The plaintiff relied on expert evidence from Mr Donald Dixon, building industry consultant, and Mr Justin O’Sullivan, ergonomist, in support of his case. Mr Dixon gave evidence that the task the plaintiff was performing on the incident date was a ‘hazardous manual task’ and that site safety is first and foremost the responsibility of the principal contractor, who was required to identify the hazardous manual tasks, examine and assess the risks of musculoskeletal disorders and to implement control measures to eliminate or minimise the risk. Mr Justin O’Sullivan (ergonomist) stated that in his opinion Steeplechase, as the head contractor, retained an obligation to ensure that the system of work of its contractor Cretek was performed in a reasonably safe manner.

Crowley J. rejected the plaintiff’s expert evidence and found that in the circumstances of this case, Steeplechase was not required to take steps to ensure that its independent concreting subcontractor had complied with workplace health and safety regulations or guidelines.

As Crowley J. found that Steeplechase was not liable, it was not necessary for him to determine contribution between the defendants for the first incident. However, if Crowley J. was required to determine apportionment between the defendants, he would have assessed Steeplechase’s liability to be at only 10%.

The defendants denied that Mr Sawyer sustained the prolapsed L5/S1 disc, or any other significant injury, to his lower back as a result of the first incident, and that any injury he may have then suffered was minor and resolved in a short time. They further alleged that the plaintiff had a pre-existing degenerative condition in his spine, and it was that condition or some other independent cause, and not any breach of a duty they may have owed, that likely caused the plaintiff’s prolapsed disc.

Whilst His Honour expressed some doubts regarding the plaintiff’s evidence about the extent of his pain symptoms and its impacts upon his level of functioning in the period between the occurrence of the first and second incidents, His Honour ultimately found that, on the balance of probabilities, the initial disc injury which the plaintiff sustained on 22 August 2016 in the course of performing his work duties at the Ascot job site on 22 August 2016 was a significant injury and that it was the substantial cause of his subsequent disc prolapse on 3 July 2017. His Honour further found that the subsequent development of his prolapsed L5/S1 disc condition, his continuing lower back and nerve pain and associated symptoms and complications, and his current back complaints have all been caused by the injury he sustained on 22 August 2016.

His Honour found that had Cretek taken the measures identified by the plaintiff, the first incident would not have occurred, and the plaintiff would not have sustained his injuries. His Honour also found that it is appropriate for the scope of Cretek’s liability to extend to each of the injuries its breach of duty has caused. Accordingly, Cretek was determined to be liable.

His Honour therefore made orders that judgment be made against Cretek for the amount $781,082.09, but that the plaintiff’s claims against Steeplechase be dismissed.

Conclusion

This decision confirms 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.