Erect Safe Scaffolding (Australia) Pty Ltd v Sutton

Erect Safe Scaffolding (Australia) Pty Ltd appealed to the Court of Appeal of New South Wales against a judgment of the Supreme Court of New South Wales that found it liable for injuries sustained by Mr. Sutton, a worker employed by a subcontractor. The dispute arose from a workplace injury that occurred on a large and complex construction site, where Erect Safe Scaffolding was the head contractor. Mr. Sutton's injury was attributed to a defect that had allegedly not been reported or rectified.

The Court of Appeal was required to determine several key legal issues. These included whether Erect Safe Scaffolding, as the head contractor, owed a non-delegable duty of care to Mr. Sutton, and if so, whether it had breached that duty by failing to ensure the rectification of the defect. The court also considered whether Erect Safe Scaffolding was entitled to rely on the site's work safety committee to address the defect. Furthermore, the appeal involved questions concerning indemnity and insurance clauses within the subcontract, specifically whether the subcontractor was obliged to indemnify the head contractor, whether the head contractor's liability arose from the performance of the subcontract works, and whether the subcontractor was required to obtain insurance covering the independent negligence of the head contractor. Finally, the court reviewed the quantum of damages awarded to Mr. Sutton, including calculations for non-economic loss and past and future economic loss, as well as the calculation of the award under section 151Z(2) of the *Workers Compensation Act 1987*.

The Court of Appeal reasoned that a head contractor owes a non-delegable duty of care to workers on a construction site, even if those workers are employed by subcontractors. This duty extends to taking reasonable steps to ensure the safety of the site and the work being performed. The court found that Erect Safe Scaffolding had failed to discharge this duty, as there was evidence suggesting a lack of adequate supervision and a failure to ensure that reported defects were properly addressed. The court also examined the indemnity and insurance provisions, concluding that the subcontractor's obligations did not extend to indemnifying the head contractor for its own independent negligence, nor did the insurance requirements mandate coverage for such negligence. The court upheld the finding of liability against Erect Safe Scaffolding but considered the quantum of damages.

The court ordered that short minutes be delivered to give effect to its reasons, with liberty to apply in the event of disagreement.