Waco Kwikform Ltd v Perigo and Workers Compensation Nominal Insurer

The appeal concerned negligence claims brought by an employee of an independent sub-contractor against his employer and the principal sub-contractor. The employee sustained injuries while dismantling birdcage scaffolding. The central dispute revolved around the scope of the principal sub-contractor's duty of care, particularly where it had assumed responsibility for devising and supervising a safe system of work for the employees of independent sub-contractors. The court was required to determine whether the evidence supported a finding that the principal sub-contractor had breached this duty of care.

The court considered the legal principles governing the duty of care owed by a principal sub-contractor to employees of an independent sub-contractor, especially when the principal has taken on responsibility for safety systems. It examined whether the principal's actions or omissions in devising and supervising the scaffolding dismantling process fell below the standard of care expected of a reasonable and prudent principal sub-contractor in those circumstances. The court also assessed issues of causation and contributory negligence, including whether the employee's inadvertence and inattention were compatible with the conduct of a reasonable worker, taking into account the potentially repetitive and tedious nature of the work.

The appeal and cross-appeal were allowed in part, leading to the setting aside of certain orders made by the primary judge. The court entered judgments for the injured employee against both the principal sub-contractor and his employer, and also made orders for judgments between the principal sub-contractor and the employer. Costs orders were made, with the appellant being ordered to pay 90 per cent of the first respondent's costs of the appeal, and the second respondent paying 90 per cent of the appellant's costs of the cross-appeal. Provisions were also made for parties to lodge written submissions regarding any application to vary the primary judge's costs orders.