A question often asked by businesses is ‘am I liable if a contractor gets injured while on my premises?’
In the recent decision of D'Arcy v Caltex Australia Petroleum Pty Limited [2019] ACTCA 27, the ACT Court of Appeal contains some useful guidance about this, exploring how far an ‘occupier's’ duty of care extends in relation to contractors working on their site.
The facts around D'Arcy v Caltex Australia Petroleum Pty Limited
A worker was injured while carrying out fuel tank relining work at a Caltex service station, sustaining burns to 35% of his body. The worker was employed by Fuel-Sys Installations Pty Limited (Fuel-Sys), which had been engaged by Evangelista Pty Ltd (Evangelista). Evangelista held a Crown lease over the property and sub-leased the property to Caltex Australia Petroleum Pty Limited (Caltex), which operated the service station.
The injured worker made an unsuccessful damages claim against Caltex (and a successful damages claim against Fuel-Sys), where the trial judge found, among other things, that Caltex did not have a duty of care as an occupier to the injured worker. The injured worker appealed the decision.
Key issues considered by the Court of Appeal
A key issue considered by the Court of Appeal included whether or not Caltex owed to the injured worker a duty of care which extended to taking measures which would have prevented him from being injured in the accident. Another issues is ' whether that common law duty of care is affected by Caltex's statutory WHS duties.
These issues were considered in the context of the injured worker's claim, including that Caltex:
- Was negligent in its failure to provide appropriate training and personal protective equipment to him;
- Owed him a duty of care because it was the occupier of the premises; and
- Breached its duty of care by failing to satisfy itself that:
- The maintenance and repair of underground fuel tanks was carried out in accordance with an appropriate 'Safe Work Method Statements' (SWMS); and
- The contractor (Fuel-Sys) had adequate personnel, training, systems and equipment in place which would, on the balance of probability, enable the SWMSs to be complied with.
The decision that Caltex did not breach its duty
The Court of Appeal found that as the occupier of the premises, Caltex did in fact owe the employee a duty of care, but that it did not breach its duty, including in the following circumstances:
- It would not be reasonable for an occupier in the position of Caltex to anticipate each possible way in which an employee of a subcontracting company may be injured during the carrying out of specialised work, nor test the robustness of each of the measures necessary to prevent any anticipated injury and the likelihood of their implementation prior to the commencement of work;
- Caltex was not directing the carrying out of the work;
- Caltex did not engage the employee or cause the employee to be engaged, having not engaged or required the contractor to undertake the repair work; and
- Having regard to the scope of Caltex's business and limited role in relation to the contractor's works, the Court of Appeal found that Caltex was not in breach of its duty of care and that Caltex's statutory WHS duties did not affect this conclusion.
Lessons from D'Arcy v Caltex Australia Petroleum Pty Limited
This decision confirms that an occupier (or manager/controller) of a premises does have a common law duty of care to workers carrying out work at the premises, even if the workers are engaged by a third party. However, the extent of the duty, and what WHS systems are appropriate to manage the duty, will depend on the particular circumstances, including the occupier's role in the work being carried out and whether it is directing or influencing the work.
Please get in touch with Harriet Eager if would you like to discuss any of the material in this article.
