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HG Insurance Alert: A loaded question – is a principal liable for a subcontractor’s injury? – 16 October 2014

In the case of Gary Bennett v Baiada Poultry Pty Limited [2014] NSWDC 144, a principal was found liable for a subcontracted delivery driver’s injury, in circumstances where the driver knowingly performed unsafe work, later telling the court he felt “pressured” to do so.

In this Alert, Senior Associate Brooke Jacobs and Solicitor Elizabeth Harvey discuss the implications of this case for those employing subcontractors.

The facts

The plaintiff was both a director and an employee of G&D Bennett Transport Pty Limited (the corporation).  The corporation had contracted with the defendant, Baiada Poultry Pty Limited (Baiada) to deliver fresh poultry products. Baiada was not the plaintiff’s employer, but rather was his principal.

The plaintiff alleged that he sustained injury to his lower back on 13 March 2010 when unloading pallets of chicken from his delivery truck.  He alleged that the unsafe loading of the truck by the principal Baiada, was responsible for his injury.

Baiada’s employees were responsible for loading the plaintiff’s truck with pallets of chicken overnight. The plaintiff only had the opportunity to inspect the load after he had driven his delivery truck over a weighbridge.

The plaintiff inspected the load on the morning of the incident.  He identified that it had not been properly packed by Baiada’s employees.  He gave evidence that, in spite of identifying the unsafe packing of the load, he did not consider returning to the distribution centre to have the load repacked, as he felt pressured to get on with the job.  He said he feared being accused of refusing work and of jeopardising his contract with Baiada.

The plaintiff brought a claim for damages against Baiada under the Civil Liability Act (NSW), alleging that its negligent loading of his delivery truck caused his injury.

Decision

Judge Mahony SC accepted that Baiada owed the plaintiff a duty to take reasonable care to pack his delivery truck in such a way as to avoid unnecessary risk of injury in the unloading process.  This was because Baiada had complete control over the loading process and had knowledge that the plaintiff would unload the chicken manually.

Baiada’s transport manager acknowledged that the chicken should not have been loaded in the way that it was.  However, Baiada in denying liability argued that:

  1. any damage suffered by the plaintiff was caused by the negligence of his employer, the corporation; and
  2. the plaintiff, in unloading the truck after identifying that it had not been packed safely, was guilty of contributory negligence.

His Honour instead found that Baiada’s negligence in loading the plaintiff’s delivery truck in an unsafe manner was solely responsible for the plaintiff’s injury.  He rejected any suggestion that the corporation or the plaintiff had contributed to the injury on the basis that there was no evidence that the pallet jack used or the system of unloading the truck was unsafe.

In rejecting Baiada’s argument that the plaintiff’s own negligence caused or contributed to the injury, His Honour found that returning to Baiada’s loading dock was not a realistic option available to the plaintiff, who in so doing may have jeopardised his contract with Baiada.  His Honour further found that, as an experienced delivery driver, the plaintiff was justified in proceeding to deliver the load and in utilising a system of work which had been in place for a long time without occasioning injury.

Key points

  • In the seminal case of Fox v Leighton Contractors, the High Court held that a principal contractor would not be liable for work performed by a subcontractor within that subcontractor’s sphere of expertise.
  • A principal may still be liable for a subcontractor’s injury, even if suffered within the sphere of that subcontractor’s expertise, in circumstances where the principal has “control” over the system of work.
  • A court may be forgiving of a subcontractor’s complicity in his/her own injury, in circumstances where it accepts they were under some financial pressure to knowingly perform unsafe work.
  • The case may have had a different outcome for the principal if the plaintiff’s employer was an insured party to the action. 

For more information on Insurance and Risk matters, please contact HopgoodGanim’s Insurance and Risk team.

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