Sawyer v Steeplechase Pty Ltd

[2025] QCA 2

SUPREME COURT OF QUEENSLAND

CITATION:

Sawyer v Steeplechase Pty Ltd [2025] QCA 2

PARTIES:

LUKE ANDREW SAWYER
(appellant)
v
STEEPLECHASE PTY LTD
ACN 109 392 449
(respondent)

FILE NO/S:

Appeal No 10373 of 2024
SC No 8878 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – [2024] QSC 142 (Crowley J)

DELIVERED ON:

24 January 2025

DELIVERED AT:

Brisbane

HEARING DATE:

15 November 2024

JUDGES:

Bowskill CJ and Boddice JA and Bradley J

ORDERS:

1.   The appeal is dismissed.

2.   The cross-appeal is dismissed.

3.   The appellant pay the respondent’s costs of the appeal; but there be no order as to the costs of the notice of contention (cross-appeal).

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – where the respondent was engaged by the owner of a home to undertake and manage a substantial renovation – where part of the work involved installing a polished concrete slab – where the respondent engaged a concreting company, Cretek, to undertake that work – where the concrete slab was to be constructed in accordance with engineering plans which identified a particular steel mesh to be used for the foundation – where the particular mesh, SL81, was a specialised product, weighed 105kg per sheet and was heavier than mesh usually used for concrete slabs – where the Safe Work Method Statement (SWMS) provided by Cretek to the respondent did not address lifting objects more than 55kg – where the appellant, an employee of Cretek, injured his back while working on the job site and brought a claim against the respondent and Cretek – where the appellant’s claim against Cretek succeeded, but his claim against the respondent was dismissed on the basis that no duty of care was owed – where the appellant submits that, because the SWMS did not address lifting objects more than 55kg, the respondent was put on notice that Cretek had not properly considered the risks associated with the job and, therefore, failed to ensure that Cretek was competent to perform the job in a safe way – where the appellant further submits the respondent breached its duty of care owed to him by failing to intervene, when its leading hand who was on-site at the time the injury occurred is alleged to have observed dangerous activity, and direct that the task cease being performed – whether the trial judge erred in finding that the respondent did not owe a duty of care to the appellant – whether the trial judge erred in failing to determine that the respondent breached the duty of care the appellant submits it owed to him

Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; [2009] HCA 35, cited
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; [1986] HCA 1, cited

COUNSEL:

T A Nielsen, with S B Smith, for the appellant
G A Thompson KC, with M T O’Sullivan, for the respondent

SOLICITORS:

Brighton Langley Law for the appellant
Mills Oakley for the respondent

1. BOWSKILL CJ:  In 2016, the respondent, trading as SW Constructions (SWC), was engaged by the owner of a home in Ascot to undertake and manage a substantial renovation.  Part of the work involved raising the house and installing a polished concrete slab underneath.  SWC engaged Cretek Concreting (Cretek) to undertake that work.  The appellant, Mr Sawyer, was employed by Cretek as a concreter.  He hurt his back while working on the Ascot job site on 22 August 2016.  He brought a claim for damages for his injuries against both SWC and Cretek.  His claim against Cretek succeeded; but his claim against SWC was dismissed, on the basis that no duty of care was owed.[1]  Mr Sawyer appeals that part of the decision, on the basis that the learned primary judge erred:

   (a)in finding that SWC did not owe a duty of care to Mr Sawyer; and

   (b)in failing to determine that SWC breached the duty of care which it owed to Mr Sawyer.

   [1]Sawyer v Steeplechase Pty Ltd [2024] QSC 142. Judgment was entered for Mr Sawyer, as plaintiff, against the second defendant, the entity which operated the Cretek business as at August 2016. There was also a claim against the entity which operated that business after October 2016 (the third defendant), arising from another incident. That claim was dismissed, and there is no appeal from that order.

2. If Mr Sawyer’s appeal succeeds, SWC cross-appeals, seeking to challenge the finding that Mr Sawyer sustained any significant injury to his back as a consequence of working on 22 August 2016.  SWC contends the trial judge overlooked the oral evidence of one of the doctors who gave evidence, which may have altered his Honour’s conclusion in this regard.

3. In my view, the primary judge was correct to conclude that, in the circumstances of this case, no duty was owed by SWC to Mr Sawyer.  I would dismiss the appeal and, as it not necessary to consider, dismiss the cross-appeal also.

4. The injury to Mr Sawyer arose in the following circumstances.  SWC was the principal contractor.  It engaged Cretek as a subcontractor, to install the polished concrete slab.  There was a longstanding relationship between SWC and Cretek; SWC had been “using Cretek as a contractor for about 10 years before August 2016”.  Mr Wehl, the sole director of SWC, considered Cretek to be a “reputable concreter, competent to do the concreting work required”.  He had confidence they could perform the job, and had never had any concerns about safety aspects of their business.[2]  Mr Quillan, of Cretek, likewise agreed that the work Cretek was engaged to do was of a specialist nature.

   [2]Reasons at [74].

5. The slab was to be constructed in accordance with plans prepared by an engineer.  The engineer’s plans specified the materials that were to be used for the foundation of the slab, including the type of steel mesh that was to be used to reinforce the concrete once it was poured.  The particular steel mesh was identified as “SL81”, each “sheet” of which weighed about 105kg.[3]  SL81 mesh was described as a specialised product for a polished concrete slab; and, at 105kg per sheet, was heavier than the steel mesh that was usually used for other concrete slabs.[4]

   [3]Reasons at [23]-[24].

   [4]Reasons at [72], [83] and [95].

6. The engineer’s plans were provided by SWC to Cretek to obtain a quote for the work.[5]  Mr Quillan, of Cretek, confirmed in his evidence that he was aware that heavier mesh was being used.  His evidence, as summarised by the trial judge, was follows:

   “[95]   When cross-examined by counsel for SWC, Mr Quillan agreed that when Cretek had done work for SWC in the past they would normally be emailed the relevant architectural or engineering plans, which would provide information about the type of concrete slab to be constructed and the type of steel mesh for the slab. He agreed that it was necessary to have the plans to be able to assess the scope of the work to be carried out and to provide a quote. He identified a copy of the plans Cretek had received from SWC for the Ascot job. He agreed that when he received the plans he knew that the slab required a polished finish and that SL81 mesh was to be used. He further agreed that he knew SL81 was a heavier mesh and that would have been why four men were onsite on 22 August 2016. He agreed that his normal practice would be to have three or four men to move steel mesh of that kind.

   [96]Mr Quillan agreed that the foundation preparation work to be undertaken by Cretek at the Ascot job site was work of a specialist nature. He agreed that part of the duties of a concreter involved cutting mesh as necessary and moving it and tying it in place into the overall fabric for the slab. He agreed that cutting the mesh before moving it would make it lighter and would allow it to be manoeuvred into position. He did not agree however that mesh would always be cut before moving it to lay it where pipes might be protruding. He said sometimes he would put the sheet against the pipes and cut around it in situ.

   [97]Mr Quillan agreed that Cretek would normally produce the SWMS when doing work for SWC. He agreed that a SWMS would normally be given to the head contractor at the start of a job and the head contractor would then retain it. In terms of working with SWC, Mr Quillan said that Cretek would not always provide a SWMS when they arrived onsite. He identified the Cretek SWMS in evidence as consistent with the type of document Cretek would provide to SWC in 2016. He described the SWMS as a document that ‘covered pretty much everything we did onsite’. He agreed that the SWMS indicated to the head contractor that Cretek had gone through that process of having a safe system of work for its workers. He accepted that it was Cretek’s responsibility to ensure its workers had a safe system of work.”

   [5]Reasons at [75].

7. The quote provided did not mention a polished slab; but it was clear from Mr Quillan’s evidence that it was necessary to have the plans to be able to assess the scope of the work to be carried out and to provide a quote.[6]  The trial judge was satisfied that, in providing the quote, Cretek was aware that the foundation preparation works it would be required to undertake would involve laying the heavier than usual SL81 mesh sheets.[7]

   [6]Reasons at [95] and [100].

   [7]Reasons at [131].

8. SWC did some of the preliminary work for the slab installation, including excavating the ground and installing footings.[8]  Cretek first began its work at the site on about Friday, 19 August 2016, “doing boxing and formwork”.[9]  Then on Monday, 22 August, four Cretek workers – Mr Stewart (the supervisor), Mr McMath, Mr Waho and Mr Sawyer – attended the site at about 6.30 am to complete the preparations for the concrete pour.  Two workers from SWC were also on-site, attending to other jobs.[10]  The Cretek workers were under the house, in the area where the slab was to be constructed; the SWC workers were elsewhere on the block.[11]  As described by the trial judge:

   “At the commencement of the workday on 22 August, Mr Stewart tasked Mr Waho to work with him to complete the formwork and directed Mr Sawyer and Mr McMath to complete the other slab preparations. Their work involved levelling a sand base that had been left on top of the footings, covering it in sections with a plastic membrane, laying the steel mesh sheets on top of those sections, tying adjoining sheets together and then fixing them in place.

   The SL81 mesh sheets were already present on site when the Cretek employees arrived. SWC had earlier ordered them and arranged for their delivery. The sheets were left stacked in a pile out in the open on a driveway area towards the front of the property.

   In total, Mr Sawyer and Mr McMath were required to lay and fix about two dozen of the SL81 steel mesh sheets over the previously prepared footings. …

   It was while performing these duties that Mr Sawyer claims he hurt his back.”[12]

   [8]Reasons at [23] and [26].

   [9]Reasons at [65].

   [10]Reasons at [25].

   [11]Reasons at [65] and [81].

   [12]Reasons at [27]-[30].

9. Although none of the relevant witnesses could recall the details of this precisely,[13] it was accepted that, in accordance with its usual practice, Cretek would have prepared a Safe Work Method Statement (SWMS) and provided it to SWC – either on the Friday, 19 August, or in the morning of Monday, 22 August 2016. A sample SWMS prepared by Cretek, dated August 2016, was in evidence,[14] and it was accepted the SWMS for the Ascot job would have been in these terms.[15]  It may be observed the document describes tasks, risk and “controls” in general, rather than specific terms.

   [13]Reasons at [70], [79] and [97].

   [14]AB 374.

   [15]Mr Quillan at AB 1245.

10. The SWMS noted “High Risk Activities” as including “lift and carry objects between 20 – 55kg…”.  The specified “control” for that task, or risk, was to “[e]nsure staff is trained in proper manual handling techniques and supervised” and “[p]rovide enough staff to conduct lifts…”.[16]

    [16]SWMS at AB 377.

11. SWC left it to Cretek to arrange the way in which it was doing its work.  As summarised by the trial judge, Mr Wehl’s evidence was that:

    “When asked about whether he left it to Cretek to arrange the way in which it was doing its work, Mr Wehl said ‘Yes. They’re a subcontractor. They get paid to do the job. I don’t, you know, want to waste, you know, time and money babysitting them to – to do the job they’re being paid to do.’ When asked about whether he had any expertise in the way in which the mesh sheets were to be cut, laid or tied, Mr Wehl said that he did not and that was a job he was paying Cretek to do, and they would work out the easiest way to do it as they felt fit. Mr Wehl confirmed that he did not give Cretek any directions about their system of work and that the matter was left to Cretek. Similarly, when asked whether he left it to Cretek to control their work site when they were doing their work, he stated ‘That’s right. They’re a subcontractor. … I’m not supervising their inter-crew works.’”[17]

    [17]Reasons at [77].

12. Mr Wehl was on-site on 22 August “for a time”.  He was not watching Cretek do their work, but believed there were three to four workers on-site.  He was not aware of any unsafe work practices being undertaken and he did not see the mesh being lifted by only two workers.[18]  Mr Hall, the leading hand working on the project, was also on-site on 22 August.  He, and another SWC worker, were working “preparing some footings around the perimeter of the property for landscaping blockwork” on this day, and he could not recall having anything to do with the work of the concreters.  He was conscious of the safety issue associated with lifting the heavier mesh,[19] but said he did not notice any unsafe work practices being conducted by Cretek or its employees.[20]

    [18]Reasons at [79].

    [19]Reasons at [72].

    [20]Reasons at [64]-[67].

13. There is no dispute about the applicable legal principles which apply to the determination of whether a duty of care is owed by a principal contractor to an independent contractor.  They were summarised by the primary judge at [109]-[126] of the Reasons.  The appellant does not challenge the factual findings made by the primary judge either, save for the finding that the work Cretek was engaged to carry out – preparing and pouring (or installing) a polished concrete floor – was specialised, and not a job for which SWC had the requisite knowledge or expertise.[21]  Subject to that, the appellant’s argument is that in applying the established principles to the facts as found, the primary judge arrived at the wrong conclusion.

    [21]Reasons at [139].

14. The relevant principles were restated by the High Court in Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1 at 11-12 [20], by reference to the reasons of Brennan J in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 47-48:

    “20The duty of principals to independent contractors. The common law does not impose a duty of care on principals for the benefit of independent contractors engaged by them of the kind which they owe to their employees. However, it is recognised that in some circumstances a principal will come under a duty to use reasonable care to ensure that a system of work for one or more independent contractors is safe. The principles were explained by Brennan J in Stevens v Brodribb Sawmilling Co Pty Ltd:

    ‘An entrepreneur who organises an activity involving a risk of injury to those engaged in it is under a duty to use reasonable care in organising the activity to avoid or minimise that risk, and that duty is imposed whether or not the entrepreneur is under a further duty of care to servants employed by him to carry out that activity. The entrepreneur’s duty arises simply because he is creating the risk and his duty is more limited than the duty owed by an employer to an employee. The duty to use reasonable care in organising an activity does not import a duty to avoid any risk of injury; it imports a duty to use reasonable care to avoid unnecessary risks of injury and to minimise other risks of injury. It does not import a duty to retain control of working systems if it is reasonable to engage the services of independent contractors who are competent themselves to control their system of work without supervision by the entrepreneur. The circumstances may make it necessary for the entrepreneur to retain and exercise a supervisory power or to prescribe the respective areas of responsibility of independent contractors if confusion about those areas involves a risk of injury. But once the activity has been organised and its operation is in the hands of independent contractors, liability for negligence by them within the area of their responsibility is not borne vicariously by the entrepreneur. If there is no failure to take reasonable care in the employment of independent contractors competent to control their own systems of work, or in not retaining a supervisory power or in leaving undefined the contractors’ respective areas of responsibility, the entrepreneur is not liable for damage caused merely by a negligent failure of an independent contractor to adopt or follow a safe system of work either within his area of responsibility or in an area of shared responsibility.’”

15. In challenging the trial judge’s application of the law to the facts of this case, Mr Sawyer submits that the trial judge erred by failing to find that SWC breached its duty of care:

    (a)by failing to ensure that Cretek was competent to perform the required task in a safe way;

    As to this, Mr Sawyer submits that because the SWMS did not expressly address lifting something more than 55kg, SWC was on notice that Cretek had not properly considered the risks associated with the job – involving as it did the heavier mesh – and should have done something about that.  Its failure to do so was a breach of the duty owed to Mr Sawyer.  This argument imports contentions as to the competence of Cretek, as well as the responsibility of SWC to check Cretek’s system of work.

    (b)by failing to intervene, when its leading hand who was on-site observed “dangerous activity”, and direct that the task cease being performed.

    As to this, Mr Sawyer submits that SWC was “in control of the site generally”; the work being performed – identified particularly as carrying the steel mesh – was not “specialised work” but was something within the scope of SWC’s workers’ experience; SWC was on notice that the SWMS was deficient; SWC’s workers who were on the site were proximate to the “dangerous work being performed” and should have intervened.

16. As the trial judge rightly observed, the question whether a duty arises in circumstances such as the present is to be determined by considering the nature of the relationship between the parties and the totality of the circumstances.[22]  The relationship between SWC and Cretek was contractual – SWC engaged Cretek to perform a particular part of the renovation works, namely the installation of a polished concrete slab.[23]  It was also a relevant factor, noted by the trial judge, that whilst the project was substantial for a residential renovation, it was nevertheless conducted on a small site and was not a commercial project.  Both SWC and Cretek were small businesses.[24]

    [22]Reasons at [127].

    [23]Reasons at [129].

    [24]Reasons at [130].

17. The evidence was clear, that this type of work is specialised;[25] installing the concrete slab for a polished concrete floor, in particular, was said to require extra care and attention, in terms of placing the mesh and concrete, because of the importance of ensuring it does not crack.[26]  SWC was “not licensed and not skilled to do slabs”;[27] Cretek was both of those things.  The argument put, on behalf of Mr Sawyer, that the work being undertaken by Cretek was not specialised, involves breaking down the work into its component parts.  Looked at alone, excavating the ground to prepare for the slab, or laying mesh sheets to reinforce the slab, may not be described as specialty work.  But that analysis is artificial, and ignores the evidence in this case that in carrying out the renovation work that it was contracted to perform, SWC, a building company, engaged a number of other subcontractors to do specialised work, one of which was Cretek.  Cretek was engaged to install a polished concrete slab – not merely to provide manual labour for discrete parts of that overall task.  There is no basis to overturn the trial judge’s finding that the work Cretek was engaged to undertake was specialised.

    [25]Mr Quillan’s evidence at AB 1242-1243.

    [26]Mr Quillan’s evidence at AB 1248.

    [27]Mr Wehl’s evidence at AB 1189.27.

1. The evidence at trial also well-supported the finding that Cretek was competent to devise and control its own system of work.[28]  Mr Wehl’s evidence was that he had been using Cretek as a contractor for about 10 years before August 2016, and he considered they were a reputable concreter, competent to do the concreting job he had engaged them for.  He had confidence they could perform the job and had never had any concerns about the safety aspects of their business.[29]

   [28]Reasons at [135].

   [29]Reasons at [74].

2. It was reasonable for SWC to assume Cretek was aware of the particular mesh required to be used for the job – because SWC had provided the engineer’s plans to Cretek to obtain a quote.  In fact, as the trial judge found, Cretek was aware that the foundation preparation works it would be required to undertake would involve laying the heavier than usual SL81 mesh sheets.[30]  Mr Quillan gave evidence that the reason there were four men sent to the job site was because he knew SL81 was a heavier mesh.[31]  He also accepted that, if the workers on-site found a piece of mesh was too heavy, they could cut it into a smaller, lighter, size and then tie it into position.[32]

   [30]Reasons at [131].

   [31]Mr Quillan’s evidence at AB 1242.20.

   [32]Mr Quillan’s evidence at AB 1243.17.

3. In circumstances where SWC, by Mr Wehl, regarded Cretek as a reputable, experienced and competent concreter; and where SWC had provided the engineering plans – specifying the SL81 mesh sheets – to Cretek, before obtaining its quote, I can see no error in the trial judge’s conclusion that it was not necessary for SWC to provide any further written or oral warning to Cretek that heavier than usual mesh sheets were to be used.[33]

   [33]Reasons at [131].

4. The content of the SWMS does not alter that conclusion.  SWC engaged a competent specialist to perform a particular job.  It was reasonable for SWC to do so; and there was nothing about the circumstances which made it necessary for SWC to retain and exercise a supervisory power over Cretek’s system of work, or prescribe how it should go about performing the work it had been engaged to perform.  Counsel for the appellant essentially accepted this, by conceding that if none of SWC’s workers had been on the site on the day Mr Sawyer was injured, his argument in this respect would fail.  His argument is that, because SWC’s leading hand, Mr Hall and another worker were on the site – even though doing other work – there was an obligation on SWC to point out to Cretek that its SWMS did not expressly deal with the risk of lifting an object weighing more than 55kg.

5. The mere fact of the presence of SWC’s leading hand and worker on the site on the same day as Cretek was performing its work, under the contract, does not alter the legal analysis having regard to the totality of the circumstances.  SWC did not control Cretek’s system of work.  As the trial judge correctly found:

   “… the situation was one where SWC had organised the activity but where its operation was then put in the hands of Cretek and it assumed and retained responsibility for devising, implementing and supervising a safe system of work in respect of the tasks its employees would carry out.  The work it was performing on 22 August 2016 was a self-contained activity that did not require co-ordination with other activities onsite.  In my view the existing circumstances did not make it necessary for SWC to retain and exercise a supervisory power over Cretek’s system of work.”[34]

   [34]Reasons at [135].

6. That conclusion was correct, as a matter of law.  Once that point is reached, it cannot be said that SWC was required to review the SWMS and point out to Cretek that it did not expressly address the need to lift the heavier mesh.  As the trial judge also correctly found:

   “That was Cretek’s responsibility. Cretek knew the nature of the particular tasks to be carried out on 22 August 2016. It knew, or ought to have known, of the risks involved. It had sufficient workers onsite to safely lift, carry and lay the SL81 mesh. It could have directed all four workers to perform that task. Alternatively, it could have instructed its workers to cut the mesh sheets, which could easily have been done, before handling them. It was ultimately Cretek’s duty and responsibility to ensure that the work its employees were to perform would be carried out safely.”[35]

   [35]Reasons at [141].

7. As for the second point, that SWC’s leading hand had a duty to intervene when he observed “dangerous activity”, there was no evidence that Mr Hall did observe any such activity.  On the contrary, as the trial judge found, “the SWC personnel onsite did not notice any particular unsafe work practices being undertaken with respect to the handling of the SL81 mesh”.  As his Honour also observed, “[i]n part that was no doubt due to the fact that they were not obliged to monitor and supervise the particular execution of the task by Cretek’s employees and were therefore not concerned about the carrying out of an ordinary onsite activity by other workers that had been specifically engaged to perform that job by another employer”.[36]

   [36]Reasons at [138].

8. No error having been established in the conclusion that, in the circumstances of this case, SWC did not owe the appellant a duty of care, the appeal should be dismissed.  It is therefore unnecessary to address the point raised by SWC in its notice of contention (cross-appeal), that the trial judge failed to deal with the oral evidence of Dr Samy, and it should also be dismissed.

9. I would order:

   (a)The appeal is dismissed.

   (b)The cross-appeal is dismissed.

   (c)The appellant pay the respondent’s costs of the appeal; but there be no order as to the costs of the notice of contention (cross-appeal).

10. BODDICE JA:  I agree with the Chief Justice.

11. BRADLEY J:  I agree with the orders proposed by the Chief Justice and with her Honour’s reasons.