On May 26, 2011, 39-year-old Milan Kabic suffered injury after falling from a raised platform when performing formwork on the redevelopment of the Redfern RSL building in Sydney.
Kabic had been employed by labour hire company Caringbah Formwork Pty Ltd to work for Calcono Pty Ltd, which had been appointed by head contractor Deicorp to perform formwork for the site on a subcontract basis. Whilst working alongside another formworker, he fell from a raised platform on a metal frame that was indoors on the second level. The platform was under cover as a result of a recently poured concrete third floor above.
According to Kabic’s claim, he slipped on a piece of plywood which was slippery because of heavy rain; the third floor, whilst covered by concrete, was exposed due to gaps in the concrete and he had been directed to work despite the plywood being wet. In addition, he claimed there were no cross-braces on the upper level of the metal frames to prevent him from falling.
Both Deicorp and Calcono disputed these latter facts, though Caringbah did not. The two defendants said it had not been raining, the area was not wet and there were cross braces on the upper level of the frames.
There was also dispute about the degree of injury suffered.
Following his injuries, Kabic launched a Supreme Court negligence claim against the labour hire company (Caringbah), subcontractor/host employer Calcono and head contractor Deicorp.
The claim against Calcono succeeded. The host employer, the court said, should have appreciated the hazards associated with the tasks on the day.
Neither labour hirer Caringbah nor principal contractor Deicorp, however, were deemed liable.
Caringbah, the court said, had no control over working conditions on the site, was entitled to rely on what it knew about safety procedures put in place by Calcono and Deicorp, and would not have uncovered the problems in respect of Kabic’s injury even with regular inspections as the injury was specific to a particular time and place.
Deicorp, for its part, required Calcono under its subcontract to fulfil numerous safety roles and retained some overall supervisory role through site safety rules and review of Calcono’s safe work method statements. Moreover, it was Calcono rather than Deicorp that controlled Kabic’s activities and directed his work. Indeed, due to the inherent hazards associated with formwork, the area in which Kabic had been working had been isolated and fenced off.
Moreover, Kabic himself was found to be one-third responsible because of ‘contributory negligence.’ Experience and common sense should have taught him not to work in the rain and his own safety responsibilities had been emphasised by both Calcono and Deicorp, the court said. Whilst acknowledging the difficulty in workers refusing to accept dangerous conditions, Justice Button said Kabic could have at least drawn his foreman’s attention to the state of the wood, proposed that he undertake other work until the area had dried, taken an extended break with a later finishing time, or requested a towel so that he could wipe down the platform.
Accordingly, Calcono was responsible for two-thirds of the damages whilst Kabic himself was deemed to have contributed one-third to his own injuries.
This raises questions about who is exposed to injured worker negligence claims and how different parties can protect themselves.
This discussion deals with New South Wales, and laws may differ elsewhere.
First, it is important to be clear about employee rights to workers compensation under WHS law and their right to sue for common law damages.
Under the NSW workers compensation scheme, injured workers are entitled to payments in respect of items such as medical expenses and lost earnings in respect of their injuries. This is not ‘fault based’ and workers do not have to prove that their employer or anyone else was at fault – only that they sustained an injury arising out of or in the course of their employment and that their employment was a substantial contributing factor. This scheme operates under the Workers Compensation Act 1987, the Workplace Injury Management and Workers Compensations Act 1998 and the Workers Compensation Regulation 2010.
Separately, workers can sue for common law damages. These are awarded where the injury results partially or fully out of negligence.
As opposed to the case with workers compensation, common law damages can be applied against any party whose actions or negligence contributes toward the injury. As well as the immediate employer, this can include head contractors, labour hire companies or other contractors on site.
Workers can still sue for common law damages even where they receive workers compensation. Nevertheless, those who receive damages are required to repay any compensation received up to the amount of damages awarded. Thus workers only take action where damages awarded are likely to exceed workers comp payments.
According to Carolyn Coventry, an insurance litigator at Sparke Helmore Lawyers, common law liability for injuries could fall among several parties.
First – as demonstrated in Kabic – workers themselves can have findings of contributory negligence against them where their own actions contribute toward their injuries.
Often, however, Coventry says the portion of injury attributed to workers is not as high as was the case in Kabic. This is because individual workers, whilst able to control their own actions, have little influence over the work environment and prevention of dangerous situations and liability is apportioned by considering each wrongdoer’s degree of culpability and the relevance importance of their acts and omissions in causing the injury.
Arguably the most readily exposed are employers, whom Coventry says hold a non-delegable duty of care to take reasonable actions to ensure their workers are not exposed to foreseeable danger.
An interesting situation arises in labour hire arrangements where the legal employer (the labour hire company) is separate from the host employer (in Kabic’s case, the subcontractor).
According to Coventry, it is relatively common for labour hire companies to be apportioned between 20 and 25 per cent of the liability where they have failed to undertake sufficient measures to ensure sites to which they send workers are safe. These measures could include initial and ongoing site visits and assessments.
Labour hire companies will only be held liable, however, where proven negligence on their part is shown to contribute toward the injury. As demonstrated through Kabic, labour hire companies will not always be liable despite being the legal employer of the worker concerned.
Host employers, Coventry says, often face a large share of liability despite not being the legal employer. As the party which typically performs toolbox talks, prepares safe work method statements and exercises principal control over the worker, Coventry says host employers effectively control what happens with workers on site.
Next, there are principal contractors. These could be exposed where poor site management overall contributes to the accident, such as where inadequate traffic management contributes toward a worker being struck by a vehicle.
Principal contractors may also be expected to view safe work method statements and satisfy themselves of their subcontractor’s safety approach.
Nevertheless, head contractors may escape liability for injuries which occur in a context specific to specialised subcontract work. An electrical accident which happened whilst electrical subcontractors performed electrical work may not be the head contractor’s responsibility, Coventry says.
Finally, Coventry says, there are others on site. Those who erect scaffolding, for example, could find themselves in hot water in respect to injuries suffered because of poorly erected scaffolding.
Bottom line, Coventry says exposure rests with those who have control over potential hazards and fail to take preventative measures.
“You are really looking at who has created the risk of injury or who could have taken precautions against the risk of injury and did not,” she said.
In terms of strategies, Coventry says parties can take steps to protect themselves.
Workers themselves should be aware of their surroundings and raise concerns with suitable people, she says.
Labour hire companies should train workers in areas such as manual handling and risk identification and take steps to ensure that sites to which they send personnel are safe. The latter could include initial site visits and assessments as well as ongoing visits and employee contract.
Host employers should undertake similar measures to what they might with direct employees. This could include safe work method statements, job risk assessments, ongoing safety audits and potentially sitting on site safety committees. Host employers should also ensure workers are suitably trained, instructed, and supervised.
Head contractors should take steps to ensure subcontractors will operate safely on site. This might include reviewing safe work method statements to ensure these identify risks and include control measures. Principal contractors should also assume responsibility for overall site safety. This might include site safety walks and site safety committee meetings. Finally, head contractors should coordinate trades and assume responsibility for parts of the work site which are not under the direct control of one of their subcontractors.
When it comes to injuries, several parties could be exposed to negligence claims.
By taking simple steps, parties can protect themselves and make work sites safer for everyone.