Updated: Oct 11, 2018
Kenneth Peter Stratton v Van Driel  VSC 75
Keywords: Reasonably Practicable; Control; Contractor Safety Management
On 15 September 1995, a roofing plumber employed by roofing contractors Signal & Hobbs, slipped and fell when climbing down a ladder on a building site and suffered serious injuries. The accident occurred on the building site where the roofing contractors had been engaged by Van Driel Ltd, to supply and fix roofing and associated work.
Van Driel was charged under Victorian health and safety legislation, based on allegations they did not comply with the Code of Practice for Safe Working on Roofs, insofar as the work was done by the roofing plumber without a safety mesh or harness or any other protective equipment required under the Code of Practice.
At first instance, the magistrate dismissed all charges against Van Driel, finding there was no case to answer. On appeal, the key issues before the Court was whether Van Driel:
Was a deemed employer of the contractor under health and safety legislation; and
Had “control” for the purposes of health and safety legislation.
It was accepted the roofing plumber was an employee of the roofing contractor, not Van Driel.
Like most health and safety legislation in Australia at the time, the relevant Victorian legislation provided that a principal owes the same duty to their contractors as they owe to their employees, but the duty exists only in relation to matters over which the person has control or would have had control but for an agreement to the contrary.
At first instance, the magistrate found that Van Driel did not have relevant control of the work.
On appeal, Van Driel argued:
... roofing work is a specialist activity conducted by experts and that the performance of that work is, naturally enough left to those experts. In this sense, it was not under the control of [Van Driel]. 
The Court acknowledged:
The difficult question is to identify what precisely is the nature of this control and what it is over which control must exist in order to attract this extended duty. 
The Court identified that the relevant “matter” was the way the plumber went about his work on the roof without protection from the risk of injury should he fall. The Court said the question to be decided is in what circumstances, if any, it might be said that this activity was under the control of Van Driel when they gave no directions to their contractor about the activity.
The Court said control in the circumstances could arise in two ways. First, if Van Driel had a legal right to direct the contractor "not perform the work how they were".
Second, even if Van Driel did not have such a legal right, whether it was within their authority to give such a direction and, importantly, the worker would accept it and act upon it.
The Court started by illustrating some different circumstances relevant to control:
If a contractor lets an air-conditioning contract, for example, to an independent contractor and that independent contractor undertakes the manufacture of the air conditioning plant off-site, I cannot suppose that [the legislation] would apply so as to make the employer potentially in breach if, due to some unsafe work practice in the sub-contractor’s factory, a worker employed by the independent contractor is injured. The position may be otherwise if the injury was suffered on the building site in the course of the installation of the plant where, under the terms of the sub-contract or the practice of the site or by some rule of law, safety was the responsibility of the contractor. 
The Court identified several contractual matters that seemed to indicate relevant control. They were:
The contractor had to give Van Driel a “description of intended method for safe system of working”; and
The contractor had to carry out the work as directed from time to time by Van Driel
More importantly, however there was considerable evidence about the actual working relationship between the contractor and Van Driel which was indicative of control.
The plumber said he would have complied if Van Driel had asked him to stop work for safety reasons.
The contractor’s leading hand on the site said he was responsible to his supervisor, but also to Van Driel’s general foreman on the site. The leading hand said if he received an instruction from Van Driel's foreman he would contact his supervisor, but he would comply with the direction and leave the supervisor and the foreman to sort out the consequences.
One of the contractor’s directors gave evidence which included the statement that, the manner of performance of its contract was generally left to the roofing contractor, but that “if there was something odd” Van Driel would give an instruction to do the job properly or in accordance with the regulations.
Van Driel's foreman also said if he saw unsafe work practices on site, it was part of his role to give a verbal warning or a written warning, which the Court interpreted as:
… presumably to the effect that the subcontractor should desist from these practices. 
In this case, the Court did not have to decide whether Van Driel was guilty, but rather whether they had a case to answer because the magistrate had dismissed the initial charges on the basis Van Driel had no case to answer.
The technical outcome of the case was the appeal was allowed and the charges were sent back to the Magistrates’ Court for another hearing.
However, the case is instructive because it provides examples of the factors a Court might consider in determining whether a contractor has relevant control in relation to the work being conducted by principal. Those factors include the terms of the contract and the actual conduct between the parties.
Where a principal, in practice, gives directions to a contractor about how to perform their work and more specifically, how to manage the health and safety hazards associated with their work, it is far more likely the principal will be found to have relevant control.
Something that was not considered in this case but is relevant in contracting cases is the level of “expertise” between the parties. Although it was not expressly discussed, working at heights is a commonly understood hazard in the building industry and is not something solely within the expertise of the contractor. It is likely that working at heights and the means to control the hazard was something within the expertise of Van Driel and this may have had some influence in deciding whether the company had a case to answer.
This article represents a general discussion about legal principles. It is not specific advice, and you should seek your own legal advice in relation to your specific circumstances.