Duty of Care to Subcontractors

Owner builders should remain highly vigilant of their responsibility to duty of care to all who work on their building site, including sub-contractors

When an owner builder is heavily involved in directing the method of work to be undertaken and processes to be used, a duty of care is likely to exist. In other words owner builders who take hands on approach directing, instructing and guiding sub-contractors carry out their work, are placing themselves at greater risk of liability for actions of their sub-contractors.

A recent Supreme Court NSW decision (McGlashan Vs QBE Insurance) triggers a reminder to all owner builders of their duty of care when engaging sub-contractors to work on site. Whilst the case (McGlashan Vs QBE Insurance) refers to principal building contractors and the actions of sub-contractors, the owner builder relevance lies in the judgment detail.
Summary of the situation and judgment as applies to owner builders:

  1. Sub-contractors are engaged as independent businesses. As independent businesses they are deemed skilled and experienced and therefore know or are aware of building site risks and workplace practices;
    2. Sub-contractors bring their own equipment and supplies and therefore are responsible for the upkeep and operational performance of their equipment. They are also responsible for training and supervising younger or inexperienced assists and workers:
    3. An owner builder is entitled to trust their sub-contractors building site safety knowledge because of their experience and accreditations. Owner builders hold an obligation however to verify these experiences and accreditations before they engage or invite any sub-contractor(s) to work on their site;
    4. When an owner builder or principal contractor decides to instruct a sub-contractor on the method and processes to be used on carrying out the tasks then the duty of care swings full pendulum to the owner builder. This situation can easily manifest itself into the sub-contractor acting like an employee of the owner builder and therefore the sub-contractor is not engaged for their trade or skill but labour. As an employee work place rules and obligations are very different, starting out with workers compensation requirements.

Owner builders should remain highly vigilant on their responsibility to duty of work site care. The actual existence or absence of duty of care will depend on assessing the facts and circumstances of each project. Whatever the case, where an owner builder is heavily involved in dictating the method or process of works involved, a duty of care is most likely to exist.