Working With Friends: A complimentary dish or a recipe for disaster

A married couple have been ordered to pay more than $1.1 million in damages to a friend who fell from a ladder while working with friends on their roof.

The accident occurred after the couple engaged their friend as a paid contractor to replace the roof of their home.  The husband provided and erected the ladder in the “A position” in front of the carport roof.  The top of the ladder was about 40cms lower than the roofline.  Their friend fell from the ladder while descending it frontwards, hitting his head and suffering other injuries.

In a decision of Hendrex v Keating [2016] Tas SC 20 (13 April 2016), the Tasmanian Supreme Court found that the husband failed to eliminate the foreseeable risk of a person falling from the ladder in failing to erect the ladder in an extended position instead of the A position or secure it with a rope to the carport roof.  The couple breached their duty of care to their injured friend as they had a duty to protect him from harm while travelling up and down from the carport roof; that his capacity to take care for his own safety did not alter this duty; and that the accident was reasonably foreseeable.

The case is a timely reminder of the problems that a householder can encounter when a group of friends are engaged to work on their home.  Here, the husband arranged to pay the friend for his work; the other friends volunteered to work without payment.  The husband provided a ladder and was present at all times controlling the work project.

There was a finding of contributory negligence against the friend as he increased the level of danger to himself by using the ladder when it was not in the extended position, using the ladder when it was not secured, and coming down the ladder frontwards with nothing to hold onto.  The Court considered that the friend’s negligence was greater than the husband’s and the damages ($2.6 million) were reduced by 60% because of contributory negligence.  The Court regarded the friend as an experienced tradesman working irregularly, mainly doing tiling and roofing work and was engaged, at the time of the accident, as an independent contractor.

It is important that a householder is aware of the liability risks when friends are engaged to perform work on their home.  The householder should always consider the risks associated with the work when making decisions about who will undertake the work.  A risk assessment should be conducted in relation to all facets of a work project so a decision can be made whether to engage experienced or licensed professionals to undertake specific work.  Only involve friends if the overall health and safety risk is very low and, if in doubt, always seek assistance from a licensed professional.  When you engage a tradesman, your home should become their workplace.  These tradesmen should provide their equipment to perform the work and be responsible for their own occupational health and safety issues.

If you engage a domestic worker such as gardener or cleaner, you could be liable to pay compensation if they are injured.  While your home and contents insurance may have public liability cover, this does not necessarily mean that this will include cover should a worker be injured on your property.

This is because public liability insurance does not normally apply if the person injured is considered an “employee” under the terms of the policy or generally at law.  It does not matter if you believed you had engaged your gardener or cleaner as an independent contractor and not as an employee – if the terms and conditions of their engagement indicate that they are an “employee” at law, then they will be entitled to bring a workers’ compensation claim and possibly sue for common law damages for their injury.

Although there is no national code for workers compensation, each state and territory has a Fund that will meet such claims under workers’ compensation legislation.  The Fund will have the right to seek recovery of those claim costs from you, having a devastating impact on you and your family.

There are three key factors to be considered, although individually each one would not be definitive:

  • Is the individual under your direction and control? Do they come every week at a set time and do what you tell them to do?  Do you supply the tools and products when performing the work?  If this is the case, they may be deemed an employee.
  • Do they work for half a dozen other people in a similar capacity? If so, then they may be more likely to be an independent contractor.
  • How are they paid? If it is by the hour, there is a higher possibility they fall into the employee category.  If they are paid by the job, they may be more likely deemed a contractor.

As a contractor, the onus is on this individual to have insurance, although if you were found to be negligent, then you might want to have extra cover to protect yourself against this risk.

If you are planning on having a worker on your property to undertake some work, then in the first instance you should ask them whether they have their own insurance – ask to see proof.  The insurance should cover:

  • any bodily injury or property damage that the worker causes to you, your family, and your property;
  • workers compensation for injuries the individual cause to themselves;
  • accidents involving the worker’s own equipment, such as falling off a ladder (a worker using your ladder could claim it was your faulty equipment, not their clumsiness, leading to an insurance battle and a law suit. The bottom line…don’t provide the worker with anything more dangerous than a pencil).

It can be expensive for a worker to obtain this contractor liability insurance – this will be reflected in the invoice for their work.  If an uninsured worker hurts themself on your property, you’ll find a lawyer’s hand in your pocket pretty quickly.

While it may not be necessary for you to take out insurance to cover domestic help in your home, it is certainly worth your while to check the policy.  If you are uncertain, you should approach your insurer to see if you are covered through your home and contents insurance policy.

Remember that insurance is an essential protection.

Written by Bill McCarthy, Special Counsel, Insurance. To learn more about liability for working with friends, contact us.