It is a reminder that there is a clear distinction between the content of the duty owed by employers and that of principals/contractors. It’s also a useful discussion of the decisions of:
- Sydney Water Corporation v Abramovic  NSWCA 248;
- Caltex Refineries (Qld) Pty Ltd v Stavar  NSWCA 258;
- Crimmins v Stevedoring Industry Finance Committee  HCA 59; (1999) 200 CLR 1;
- Ferraloro v Preston Timber Pty Ltd (1982) 56 ALJR 872;
- Kondis v State Transport Authority  HCA 61; (1984) 154 CLR 672;
- Leighton Contractors Pty Ltd v Fox & Ors (2009) 240 CLR 1;  HCA 35 .
A claim for contribution was made under ss 6 and 7 of the Law Reform Act 1995 (Qld) by the first defendant who was the plaintiff’s employer against the independent contractor and third parties. The plaintiff’s claim settled for $775,000.00. McMeekin J found in this instance there was no duty of care owed by the contractor/third parties and gave judgment to the independent contractor and third parties.
McMeekin J concludes:
 In summary what the cases do show is that the totality of the circumstances must be considered and that the central matters of importance include the presence or extent of the power to direct or control on the part of the principal, any obvious reliance on the principal, and the vulnerability of the employee.
 Of the 17 “salient features’ identified by Allsop P in Stavar Mr Morton urged the following as relevant here: (1) the foreseeability of harm; (2) the degree and nature of control able to be exercised by the defendant to avoid harm; (3) the degree of vulnerability of the plaintiff to harm from the defendant’s conduct, including the capacity and reasonable expectation of a plaintiff to take steps to protect itself; (4) the degree of reliance by the plaintiff upon the defendant; (5) any assumption of responsibility by the defendant; (6) the proximity or nearness in a physical, temporal or relational sense of the plaintiff to the defendant; (7) the nature or the degree of the hazard or danger liable to be caused by the defendant’s conduct or the activity or substance controlled by the defendant; (8) knowledge (either actual or constructive) by the defendant that the conduct will cause harm to the plaintiff. While I accept that those features are relevant the second, third, fourth, and fifth matters count against and not for the first defendant‘s claim. And it is putting the case too high to assert that Mr Klenowski knew that his conduct in requesting that Mr McKenzie go to the area and in not putting up a barrier of some sort would cause him harm.
 Finally I would comment that here, to adapt the words of Brennan J in Stevens quoted above, there has been no failure to take reasonable care in the employment of independent contractors competent to control their own systems of work, nor any failure in not retaining a supervisory power, nor any scope to argue that the principal has left undefined the contractor’s areas of responsibility. That is so because, consistently with the reasoning in Leighton Contractors, the principal was not subject to an ongoing general law obligation with respect to the safety of the work methods employed by the contractor provided the principal engaged a competent contractor and there is nothing unreasonable about contracting out the work of land clearing as “[i]t is an activity that requires specialised equipment and which lends itself to being carried out by independent contractors.”
 To the extent that the decided cases provide any principled guidance it seems to me that they are against the imposition of the duty. I can see nothing special in the circumstances that would justify the imposition of the duty contended for and many that go against it.
 In my opinion no duty of care of the kind suggested came on to the defendants and hence they are not liable to make any contribution to the damage suffered by Mr McKenzie.
Brisbane Barrister – David Cormack