Meechan v Savco Earth Moving Pty Ltd [2021] QDC 14

by Michael Creedon, Allie Flack, Isabella Impiazzi

Key takeouts

This case is a reminder that, while a principal contractor will not be vicariously liable for all injuries and loss suffered by subcontractors or independent contractors on-site, failure to enforce safety procedures may still constitute a breach of the duty to take reasonable care to avoid unnecessary risk or injury, and to minimise other risks of injury. 

This is a less stringent duty than what a principal contractor owes to its own employees but must still be observed when arranging for works to be carried out by subcontractors or independent contractors. 

Facts

The defendant, Savco Earth Moving Pty Ltd (Savco), carried on the business of excavation and was the principal contractor of a particular job site in Queensland (site).  Savco entered into a subcontract with CD Kerb and Channelling Pty Ltd (CDK) to carry out work around the car park on the site.  The plaintiff, Mr Meechan, was employed as a labourer by a related entity of CDK.

CDK used a heavy kerb and channelling machine which could only be moved around the site by a crane attached to one of CDK’s truck.  The site foreman, Mr Harris, explained to a Savco employee that the kerb machine needed to be moved to another location but that, due to its tight positioning, CDK’s truck and crane could not reach it.  The Savco employee informed Mr Harris that Savco would organise for someone to move the kerb machine using the excavator, rather than the crane, which could only be operated by qualified personnel.  Mr Harris then said he could operate the excavator, despite lacking the requisite qualifications, which the Savco employee allowed.

Mr Meechan rigged the excavator’s chains to the kerb machine, which were secured by heavy shackles, and stood on the back of CDK’s truck to guide Mr Harris as he lifted the kerb machine onto the truck.  Without sufficient warning, Mr Meechan threw a shackle to Mr Harris and, when attempting to grab it, Mr Harris bumped the joy stick causing the excavator to swing to the left, knocking Mr Meechan to the ground.  Mr Meechan suffered personal injury. In the negligence claim brought by Mr Meechan, he said that his loss was caused by Savco because it failed to ensure the excavator was operated by an appropriately qualified operator.  Savco denied liability on the basis that it did not give permission for Mr Harris to use the excavator and only allowed it to be used by appropriately skilled operators

Decision

The court found that Savco was in breach of its duty of care but was ultimately not liable for Mr Meechan’s injury because the accident was caused by Mr Meechan throwing the shackle to Mr Harris without sufficient warning, rather than Savco’s failure to ensure an appropriately qualified person was operating the excavator.

Did Savco, as a principal contractor, owe Mr Meechan a duty of care?

Sheridan DCJ applied the common law rule that a principal contractor does not owe the same duty of care to independent contractors engaged by them as it does to its own employees.  In this case, Savco had a duty to use reasonable care when coordinating work that carries a risk of injury, but this duty did not extend to avoiding any and all risks.  Rather, it was a duty to avoid unnecessary risks and to minimise other risks of injury.  As a principal contractor, Savco did not have a duty to retain control of all working systems if it was reasonable for CDK, being a competent subcontractor, to control and manage the system of work without Savco’s direct supervision.  Savco would not be vicariously liable for damage caused by CDK’s negligent failure to employ safe systems of work.

In this instance, the court found that Savco was in breach of its duty of care because the Savco employee thought it was reasonable to allow Mr Harris to operate the excavator despite being aware of the safety risks and failing to confirm Mr Harris’ qualifications.  Therefore, Savco’s failure to ensure the excavator was exclusively operated by appropriately qualified personnel constituted a failure to exercise reasonable care to avoid unnecessary risks of injury on-site.

Did Savco cause Mr Meechan’s injury?

Sheridan DCJ applied the ‘common sense’ test of causation which required that Savco’s act, in allowing Mr Harris to use the excavator, must have been sufficiently closely connected with Mr Meechan’s accident so it could reasonably be regarded as being responsible for it.  At trial, Mr Meechan acknowledged the danger of standing near the unqualified Mr Harris while he was operating the excavator, which was elevated when he threw the heavy shackle to Mr Harris without sufficient notice.  If Mr Meechan threw the shackle to even an experienced and qualified person in the manner that he did, he still would have suffered the same harm.

Therefore, Sheridan DCJ held that, while Savco was in breach of its basic duty of care by allowing Mr Harris to operate the excavator, it was Mr Meechan’s own actions that caused Mr Harris to lose control of the excavator which led to Mr Meechan’s injury.