Synergy Scaffolding Services Pty Ltd v Alelaimat

In the New South Wales Court of Appeal, Synergy Scaffolding Services Pty Ltd (the appellant) appealed against a decision concerning a claim brought by Mr. Alelaimat (the first respondent). Mr. Alelaimat, an employee of a labour-hire company, suffered injuries while working on a construction site managed by the appellant. The dispute centred on whether the appellant owed Mr. Alelaimat a non-delegable duty of care, and if so, whether it had breached that duty. The case also involved complex issues relating to workers compensation recovery and contribution between tortfeasors.

The primary legal issues before the Court of Appeal were: (1) whether the appellant, as a principal contractor, owed a non-delegable duty of care to Mr. Alelaimat, an employee of a labour-hire company engaged by a subcontractor; (2) if such a duty existed, whether the appellant had breached it by failing to ensure a safe system of work; (3) the application of section 151Z of the *Workers Compensation Act 1987* (NSW) concerning the adjustment of damages and the employer's right to recover compensation payments from a third-party tortfeasor, particularly where the employer might also be a tortfeasor; and (4) whether the appellant's claim for contribution against Mr. Alelaimat's employer was valid. Additionally, the court considered whether Mr. Alelaimat's common law claim was out of time under the *Limitation Act 1969* (NSW), specifically whether he had discovered the facts constituting his cause of action within the relevant period.

The Court of Appeal found that the appellant did owe Mr. Alelaimat a non-delegable duty of care. It reasoned that the appellant, as the principal contractor with overall control of the site, had a responsibility to ensure the safety of all workers on that site, including those provided by subcontractors. The court held that the appellant had breached this duty by failing to take adequate steps to ensure that the subcontractor had implemented a safe system of work, despite having the opportunity to intervene and prevent the injury. Regarding the *Workers Compensation Act*, the court addressed the complexities of recovery and contribution, ultimately finding that the appellant had not established a right to contribution from Mr. Alelaimat's employer. The court also considered the limitation period, examining the discoverability of Mr. Alelaimat's cause of action and the knowledge required to trigger the limitation period.

The Court of Appeal directed the appellant and the second respondent to notify the State Insurance Regulatory Authority of the reasons and proposed orders within three days of publication. The parties were also directed to provide any further submissions by 29 September 2023, with other orders to be advised subsequently.