Excavator sues principal contractor as a result of injury on Eraring Power Station site and awarded substantial damages

PUBLISHED 09 Feb 2016

Our client was employed as an excavator/plant operator to work on the Eraring power station site.

There were various contracts and subcontracts between a number of parties to carryout work on the site.

Our client was performing further excavation for at the power station site pursuant to the control and instructions of a number of contractors. His employer had sent him there.

In the course excavating a foundation our client operating an excavator with a hydrologic hammer attachment. It subsequently failed whilst operating it. As a result our client laid/reversed the excavator a short distance to lay the hydrologic hammer attachment on the pavement.

In the course of walking to the front of the excavator, our client fell into an exposed excavation and suffered serious injuries.

He suffered a serious injury to his left leg, left ankle, left foot and fractures of the metacarpals of the left foot.

Our client sued the occupier of the site and the controller/supervisor of the work being carried out at the job site. It was alleged that there was a failure to provide a safe place of work, adequate lighting, appropriate risk assessments and failure to put any form of barrier to cover over the exposed excavation area.

A liability experts report was obtained which opined that the principle construction contractor failed in his duties to carry out the risk management process to control risks to safety on their construction site. Furthermore, the contractor who was directing the supervision on the jobsite had also failed in their duty of care and there was ineffective consultation between the principle contractor and the contractor and our client in respect of the nature of the work and activities of the work at the time of our client’s accident.  

Both defendants denied our clients injuries, loss and damage. They specifically took issue whether they were negligent and submitted that our client was at fault for the accident and that his employer that sent him to the jobsite to undertake the work was also negligence.

It was telling that both defendants did not serve any liability expert evidence in reply. In our view that was the knockout punch for our clients claim. He was going to succeed on the issue of liability, either against one of both defendants.

Our client was medically examined and assessed on behalf of a number of doctors to be able to assess the nature and extent of his damages and permanent impairment.

A claim was submitted against the defendants for permanent impairment pain and suffering, past and future medical expenses, past and future loss of wages, past and future loss of superannuation and past and future care.

The proceedings were listed for a 5 day hearing on the liability for negligence and also the damages in respect of his injuries.

Ultimately, both defendants accepted 50% responsibility in respect of our client’s permanent injuries, loss and damage. Our client’s liability expert evidence was quite decisive in both defendants accepting equal responsibility in respect of our client’s accident.

As a result of the liability expert evidence, the parties were able to negotiate a settlement of the claim and our client received a substantial award for damages arising from his injury, including future loss of wages.

The case is a timely reminder as to the duty of care that principle contractors and contractors have to all workers even independent contractors whilst working on a jobsite. The occupier of the site, the controller and supervisor of the work that is being carried out owe a duty of care to all workers who are performing work on the jobsite just as our client did when he was injured.


If you are an employee or an independent contractor who was engaged by one or more companies to undertake work on a jobsite and you suffer an injury during the course of undertaking that work, you are still owed a duty of care whilst performing the work on the premises. Proper communication needs to be undertaken between principle contractors and contractors for workers who are contracted to undertake work on a jobsite including risk management assessments and occupational health and safety so as to avoid accidents and injuries.

For a free no obligation consultation, please contact us on our toll free number, 1800 004 878 so that an appointment can be arranged for you attend to protect your legal rights in the matter. 

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