Plaintiff’s claim against principal contractor dismissed

CLARK -v- SCHNEIDER ELECTRIC (AUSTRALIA) PTY LTD [2021] WADC 11

Introduction

In December 2014, the plaintiff was employed by a company called Mineworks when he suffered a back injury whilst working as a painter and sandblaster at the Australian Marine Complex (AMC).

This case was a separate tort claim against the defendant, Schneider Electric (Australia) Pty Ltd (Schneider).

The job to be completed was the construction of switch rooms (rooms) for Chevron Australia Pty Ltd (Chevron).

Chevron had given the contract for the construction of the rooms to Schneider. Schneider then engaged a subcontractor called HVLV Pty Ltd (HVLV). HVLV then engaged Mineworks to supply workers to complete certain of the painting work. Mineworks had no presence on the work site and merely provided workers, of which the plaintiff was one. Schneider controlled the worksite.

The Plaintiff worked beneath the switch room structures, which were mounted on concrete filled drums and stood approximately 1.5 m above the ground. The Plaintiff was 1.76 m tall and was required to work 10-hour days, Monday to Friday, and five hours on Saturday. He was therefore required to either stoop or sit and work above his head for extended periods. As a result, he experienced severe lower back pain extending into his buttocks. This was later identified as disc protrusions at the L3/4, L4/5 and L5/S1 levels.

Negligence based tort actions generally have four primary components, namely duty of care, breach of that duty, causation, and finally damage.

The Plaintiff thus sought to show that Schneider owed him a duty of care, which they breached, and finally that this caused the damage or injury which he had sustained.

Duty of Care

The plaintiff alleged that as an occupier of AMC, or as the head contractor at AMC, Schneider owed him a duty of care. He argued that there were three possible sources for that duty of care:

1. a common law duty;
2. a duty pursuant to s 5 of the Occupiers’ Liability Act 1985 (WA); and
3. a duty pursuant to s 22 of the Occupational Safety and Health Act 1984 (WA).

The court indicated that the common law duty in Western Australia had been superseded by a duty pursuant to Civil Liability Act 2002 (WA). The alleged common law duty was that Schneider should have provided a place of work, or system of work which did not unreasonably expose the plaintiff to the risk of harm. This would be the same as a duty under the Civil Liability Act.

S 5 of the Occupiers’ Liability Act 1985 (WA) provides that an occupier of premises has a reasonable duty towards a person entering onto a premises to see that that person will not suffer injury or damage by reason the state of the premises or to anything done or omitted to be done on the premises and for which the occupier is by law responsible. This may, in certain circumstances, be extended, restricted, modified, or excluded by agreement.

s22 of the Occupational Safety and Health Act 1984 (WA) provides a person that has control of a workplace where persons who are not employees of that person work shall take such measures as are practicable to ensure that persons who are at the workplace are not exposed to hazards.

s5B of the Civil Liability Act 2002 (WA) provides that a person is not liable for harm caused by that person’s fault in failing to take precautions against a risk of harm unless the risk was foreseeable, that is, it is a risk of which the person knew or ought to have known and that the risk was not insignificant and that, in the circumstances, a reasonable person in the defendant’s position would have taken precautions. Further, that in determining whether a reasonable person would have taken precautions against a risk of harm, the court is to balance the following:

1. the probability that the harm would occur if care were not taken.
2. the likely seriousness of the harm.
3. the burden of taking precautions to avoid the risk of harm.
4. the social utility of the activity that creates the risk of harm.

The court then turned to principles governing the duty of principal contractors to the workers of independent contractors, and relied on three cases:

1. Leighton Contractors Pty Ltd v Fox [2009] HCA 35; (2009) 240 CLR 1: A principal contractor, who employs subcontractors, owes a duty to the employees of the subcontractors to take reasonable care when co-ordinating the activities of trades at the worksite to avoid unnecessary risks of injury or minimise the risk of injury to those engaged in the activity it organised.
2. Stevens v Brodribb Sawmilling Co Pp Ltd (1986) 160 CLR 16: This is an exception to the rule in the Leighton case where the court held that if a principal contractor has engaged independent contractors to do work that might readily have been done by its own employees, in circumstances in which there is a risk to them of injury arising from the nature of the work, then there is a duty to direct and coordinate of the activities being undertaken.
3. CGU Insurance Limited v Coote (by his Next Friend Stephen Desmond Coote) [2018] WASCA 117: Leighton and the Stevens exception are not exhaustive of the circumstances in which liability may be found on the part of a principal or head contractor. The nature and extent of the duty of care must be established by a reference to the general law of negligence. A duty may arise in circumstances where, “reasonable care on the part of the contractor affects the way in which the work is to be undertaken and the safety of the work site, and where other considerations such as vulnerability, inequality of bargaining power, control, and the other manifold factors that the law recognises as being relevant to the existence of a duty of care, are present”.

The court then turned to the facts of this case and more particularly the relationship between Schneider and HVLV (the intermediate sub-contractor). The contract between Schneider and HVLV provided that HVLV “was responsible for the performance of the subcontract work, relevantly the painting and sandblasting of the switch room structures, was responsible for organising the way in which the work was performed and was responsible for the employment or hiring of workers to perform the work. Further, HVLV maintained ‘complete control and responsibility over its employees’ in the way in which they performed their work duties. The subcontract agreement did not give Schneider the right to control and direct the employees of HVLV as to the manner in which they were to perform their work duties, trades, and activities on site. Schneider did not have the right, nor the responsibility, by the subcontract to control and direct how subcontractor employees ought to perform their work duties.”

Thus, the court held there was no duty owed by Schneider to the plaintiff.

Causation

The court raised two issues in relation to causation. The first was that there was no evidence that clearly linked the conditions of work to the final injuries. The second was that there was no evidence that even if Schneider had taken the steps that the plaintiff had put forward (inter alia, a roster-based rotational system of work and a different chair) that these would have avoided or reduced the risk of injury to Mr Clark.

Thus, the court held that even if it was wrong on the issue of duty of care, Schneider was still not liable because causation was absent.

Conclusion

The plaintiff’s action was therefore dismissed.

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