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Pacific Steel Constructions PL v Barahona; Jigsaw Property Group PL v Barahona [2009] NSWCA 406. Allsop ACJ, Beazley & Giles JJA in a Court judgment. 11.12.09.

­The first respondent boilermaker/welder fell from a ladder at the construction site for Strathfield Library in January 2004, with injuries including vertebral crush fractures and disk ruptures.

Truss DCJ found for the plaintiff against the employer Pacific 20% and 80% to the principal site contractor Jigsaw. A claim against the site foreman’s employer, another sub-contractor to Jigsaw, was dismissed.

In a Court judgment, the appellate Justices gave judgment for Jigsaw against the plaintiff, dismissed consequential cross-claims and costs orders, but ordered Jigsaw pay the plaintiff’s costs of suing the site foreman’s employer. The plaintiff qualified engineer Hugh Cowling, whose was the only construction expertise.

The Court detailed the incident, OHS Regulation 2001 provisions, Jigsaw’s OHS policy, its contract requirements with Pacific, including safe work method statements, SWMS, and Mr Cowling’s opinions.

According to the Justices [80]: “Leighton Contractors v Fox [2009] HCA 35 is a recent affirmation that Jigsaw did not owe to independent contractors engaged to work at the Strathfield Library site a duty of care of the kind owed to its employees.

“The Court … said that, although the distinction in this respect between independent contractors and employees has been criticised, ‘the concept of distinguishing between independent contractors and employees is one too deeply rooted to be pulled out’ …” noting reference to Sweeney v Boylan Nominees PL [2006] HCA 19; 226 CLR 161 at 173 [33].

Then [89], “In a number of decisions of this Court, it has been held that a principal owes to an independent contractor, or to the independent contractor’s employee, a duty beyond the alleviation of risk of injury arising from a need for direction and co-ordination of activities on a site. Examples are Rockdale Beef PL v Carey [2003] NSWCA 132: the configuration of the principal’s work site brought the safety risk; see also the protruding scaffolding in Erect Safe Scaffolding (Aust) PL v Sutton [2008] NSWCA 114, although there was also a failure in coordination of activities; Tolhurst v Cleary Bros (Bombo) PL [2008] NSWCA 181: the principal created the conditions in which there was a risk in the system of work and retained control over it; Bostik Aust PL v Liddiard [2009] NSWCA 167: the principal exercised overall control over the activities on the premises, part of a more extensive collection of relevant matters at [89]. An application for special leave to appeal from the decision in Bostik v Liddiard is pending.”

Their Honours also noted Sydney Water v Abramovic [2007] NSWCA 248, Caltex Refineries (Qld) PL v Stavar [2009] NSWCA 258. Infra [91], “The particular significance is illustrated in the observation in Leighton v Fox at [24] that “to import a duty akin to that of an employer to retain a degree of control over the [concrete pumping] work would be inconsistent with the relationship between principal and independent contractor.”

Later [120], “We do not consider that the OH & S Regs widen the content of the duty to the degree suggested by Mr Barahona. There was no duty owed by Jigsaw to Mr Barahona to exercise the contractual powers in the contract for his benefit. Nor do cl 226 and 227 create or ‘inform’ a duty of care owed to Mr Barahona,” the Justices said.

The employer was liable. “In our opinion, however, the evidence of Mr Cowling made it abundantly clear that Pacific had breached its duty of care. Pacific required Mr Barahona to undertake work on a building site without tools, equipment or direction. It abandoned him to the site. He was required to undertake work which was dangerous and for which equipment should have been provided to ensure that he would not fall from a height. This was not a case such as the labour hire cases where the employer has no input into the manner in which work is to be undertaken. Pacific must be taken to know that rectification work may be undertaken at heights as the original steel works had been performed at heights. The work Mr Barahona was undertaking was part of the steel works that Pacific had contracted to do. Pacific did not take adequate steps to ensure that Mr Barahona was provided with a safe method of work, adequate directions, a safe place of work, or with the tools and equipment reasonably necessary to safely carry out the work which he was directed to do. In our opinion, Pacific breached its non-delegable duty of care to Mr Barahona.” [128]

Pacific: L King SC, M L Snell, inst McCabe Terrill. Jigsaw: R Seton SC, S McCarthy, inst Goldbergs. Worker: B Toomey QC, J Anderson, inst Martin Bell & Co.

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