Construction sites are one of the most dangerous places to work. Yet despite this well-known fact, employers and head builders continually put work place safety and duty of care in construction as a second thought. In our practice we unfortunately see time and time again serious injuries on construction sites which could have been avoided.
A head builder has obligations under the Occupation Health and Safety Act and Regulations to provide a safe work environment as a principle contractor, a controller of the premises and as a person conducting a business.
A head builder also has a common law duty of care to ensure the health and safety of everyone who enters the construction site. This duty of care extends to contractors on the job site such as formworkers, carpenters, electricians, scaffolder, plumbers, painters, renderers, labourers, and all the other trades on site.
Therefore, a head builder must ensure that:
- The work environment is safe, by conducting a risk assessment
- That the equipment is safe and works properly
- That contractors are provided with relevant safety information, induction, instruction, training, and supervision
- That the coordination between trades does not create a risk of injury
- The health of all workers, and the workplace conditions should be monitored on an ongoing basis
- They manage risk of falls
It is important to note that these obligations arise to a worker injured on site who is a contractor and not just an employee of the head builder.
It is very important to consider the liability of non-employers being the head builder or other contractors on site. Often the head contractor may be liable to pay compensation which is usually a much better claim than against the employer. Some lawyers focus only on the employers' duty of care forgetting about the head contractor.
It is very important to consider whether a claim can be brought against a non-employer, such as the principle contractor or other contractors on site, for breaching their duty of care as this will result in significantly more compensation than if an employer alone were sued.
This is because a claim against a non-employer, such as a head builder, is governed by the Civil Liability Act 2002 (NSW) and not the Workers’ Compensation Act 1987 (NSW).
The Civil Liability Act allows those injured to claim compensation for pain and suffering, past and future medical expenses, past and future loss of income, and past and future care and assistance.
If an injured worker sues their employer under the Workers Compensation Act they will only be compensated for past and future loss of income.
As the amount of compensation when suing non-employers, such as principle contractors, is much greater than suing the employer alone it is important that the injured worker investigate whether they can bring a claim against the head builder, or other non-employers such as other contractors on site for breach of their duty of care.
Note: there is a three-year statutory time limit (from the date of discoverability) when making a compensation claims again a non-employer, such as a head builder.
If you think you have a duty of care claim in the construction field, the Garling & Co team can help you. Contact us via the following:
- Ph: (02) 8518 1120
- Email: firstname.lastname@example.org
- Or complete our FREE Confidential Case Assessment here
GARLING AND CO 2018