When a worker ignores the designated site entry, takes a shortcut to avoid a COVID-19 queue, and is seriously injured – who is to blame? The recent decision in Stathakis v Richard Crookes Constructions Pty Ltd [2026] NSWSC 1113 answered that question plainly, finding the head contractor had not breached its duty of care and confirming that clear and consistently communicated site access procedures can be decisive in defeating a negligence claim.
What happened in Stathakis v Richard Crookes Constructions Pty Ltd?
The plaintiff was an employee of Grantee Pty Ltd (Grantee), which was subcontracted to complete painting works by Richard Crookes Constructions Pty Ltd (the defendant), the head contractor for a multi-building development in Arncliffe, NSW (the site). On 7 May 2020, just before 6am, the plaintiff arrived at the site and rather than using the designated Princes Highway pedestrian entrance, approached the Townsend Lane gate designated for vehicle use and asked the night security guard, employed by Armor Security Pty Ltd (Armor Security), to let him in. The guard, whose shift was due to finish at 6am, opened the gate to allow the plaintiff to enter while he moved his own vehicle out of the site.
After helping the guard close the gate, the plaintiff walked through the vehicle entryway towards the ramp leading to the Lower Ground Level. He was carrying a work bag, a cup of coffee and a motorcycle helmet when he tripped over a sheet of light grade steel reinforcing mesh lying on the concrete floor. The plaintiff fell forward onto his elbows, fracturing both elbows.
The plaintiff alleged that the defendant head contractor owed him a duty to take reasonable care for his safety. He alleged the defendant had failed to keep the incident area clear of potential trip hazards, along with inadequate lighting.
The designated entry
A key issue concerned the chain of communication by which the site access requirement for pedestrians to use the Princes Highway entrance reached the plaintiff.
The Court framed the inquiry around two related questions, being whether the:
(a) defendant notified its subcontractor, Grantee, that all workers attending the site were to enter only through the Princes Highway gate; and
(b) plaintiff was so informed, either by the defendant or by Grantee.1
On the first question, the Court had little difficulty. Site manager Mr Wesley Ward and Grantee supervisor, Mr Emmanuel Filipakis gave evidence confirming site instructions had repeatedly and unambiguously designated the Princes Highway entry as the mandatory pedestrian access point for all workers.2 Mr Filipakis confirmed all workers were advised of the site access requirements at the defendant’s toolbox meetings, the requirements were reiterated at subsequent meetings, and he had reinforced it in his own meetings with Grantee’s workers – and the plaintiff had attended those talks.3 Further, the requirement to access the site via Princes Highway was not a late or informal addition to the site’s safety regime – it reflected the physical reality of the site from no later than August 2019, when construction commenced on the Townsend Lane building and the Townsend Lane gate was reconfigured exclusively for delivery vehicle access.4 Grantee had been operating on the project throughout that period and, on the Court’s findings, was well aware of the requirement.5
The second question was more sharply contested. The plaintiff denied receiving any instruction at toolbox meetings on the designated entrance and argued the pedestrian access rules had been relaxed by May 2020, and that multiple gate entrances were in practice permitted.6 The Court rejected those propositions, noting in ‘giving evidence the plaintiff was astute to the interests of his own case. With knowledge that no toolbox meeting records had been tendered, he was emboldened to deny that he and other workers were consistently instructed to enter the site only from Princes Highway’.7 The Court also had regard to the plaintiff’s admission that in April 2020 his supervisor had orally instructed him to enter via Princes Highway to undergo mandatory COVID-19 temperature checks and sign in.8 The Court accepted Mr Ward’s evidence the COVID-19 testing regime, which commenced on 20 April 2020, was still operating on 7 May 2020 and continued for at least some weeks thereafter.9 The plaintiff’s text message to his supervisor at 2:48pm on the day of the fall – stating that he had entered via Townsend Lane “so I can go in instead of walking up n wait on the side of the road next to the traffic” – indicated that he had chosen to circumvent the designated entry to avoid the queues and remained aware of the requirement to undergo COVID-19 testing.10 The court found that in doing so, the plaintiff knew he was contravening explicit site rules issued by both the defendant and his own employer.11
Against that background, the Court resolved the notification issues in the defendant’s favour. The system was in place, it had been communicated down the contractual chain, and it had reached the plaintiff.12
Did the head contractor breach its duty of care?
The defendant accepted that it owed the plaintiff a duty to take reasonable care to avoid physical injury, which led the court to consider whether that duty was breached.13
The defendant’s answer turned on the correct formulation of the risk. Drawing on Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42 and Tapp v Australian Bushmen’s Campdraft & Rodeo Assn Ltd [2022] HCA 11, the defendant contended the risk was properly characterised as the risk the plaintiff, by entering the site early through the Townsend Lane gate, might injure himself by tripping on building materials left on the floor of that entryway.14 That formulation was significant, as the defendant pleaded because pedestrian access through Townsend Lane was prohibited, the risk of a worker tripping there was not a foreseeable risk.15 Alternatively, if foreseeability could be established, the defendant argued no precautions were required beyond designating Princes Highway as the sole pedestrian entry and communicating that requirement throughout the site.16
The defendant also argued the risk of tripping over construction materials in the area was an obvious risk under section 5F of the Civil Liability Act 2002 (NSW) (CLA), the plaintiff was presumed to have been aware of that risk under section 5G, and that there was therefore no duty to warn him of it under section 5H.17 Further, the plaintiff had failed to take reasonable care for his own safety and his contributory negligence caused or contributed to his injury under ss 5R and 5S of the CLA.18
The court held the defendant had fully discharged its duty through three measures: directing all subcontractors, including Grantee, that workers were required to enter only via Princes Highway; informing the plaintiff directly of that mandatory requirement; and taking reasonable care to keep the access ways between Princes Highway entrance and the subcontractors’ working areas clear of trip hazards.19 The defendant’s duty did not extend to keeping the Townsend Lane vehicle entry clear of potential pedestrian trip hazards.20 That area was a construction zone used for vehicle movements and material deliveries – no worker was supposed to be there, and the defendant ‘had taken reasonable care to ensure that that area would not be traversed on foot by workers entering the site’. 21
Defendant’s cross-claim against Armor Security
The defendant cross-claimed against Armor Security, alleging its night guard had breached the security contract by admitting the plaintiff through the Townsend Lane vehicle gate.22 Armor Security disputed it had ever been instructed that its night guard could only admit workers through the Princes Highway entrance.23 The Court accepted that argument.24 Although the defendant’s site manager had told security personnel the pedestrian gate was for pedestrians and the other one was for deliveries, Fagan J found this was not sufficient to communicate that pedestrian access through Townsend Lane was prohibited or to impose a contractual obligation on Armor Security to enforce that restriction.25
The alternative claim for contribution or indemnity also failed.26 Neither Armor Security nor the night guard owed the plaintiff a duty of care in relation to the condition of the premises inside the gate, and there was no evidence that either knew or ought to have known that allowing the plaintiff to enter would expose him to a risk of tripping.27
What does Stathakis mean for head contractors?
The court ultimately found the defendant had not breached its duty of care to the plaintiff and dismissed the cross-claim against Armor Security.
Stathakis demonstrates that a head contractor’s duty to provide a safe system of entry and access does not necessarily extend to areas of a construction site that workers have been instructed not to use for pedestrian access. A head contractor is not required to anticipate and guard against every hazard that a worker might encounter by departing from the system that has been established for their protection. For those advising head contractors, Stathakis underscores the practical importance of clear and consistent communication of site access requirements – through toolbox talks, subcontractor briefings, and direct instructions to workers – and of maintaining records capable of establishing that those communications were made and received.
FAQs
Find quick answers to common questions about this topic.
Can a head contractor be held liable for injuries sustained in an area workers were prohibited from entering?
Not where the head contractor has clearly communicated the prohibition and provided a designated safe alternative entry route. In Stathakis, the NSW Supreme Court found the head contractor’s duty of care did not extend to keeping the vehicle access area safe for pedestrian use because workers had been repeatedly and unambiguously instructed not to use that gate.
What steps should a head contractor take to protect itself from liability for site access incidents?
Head contractors should designate pedestrian entry points clearly, communicate those requirements at toolbox talks and subcontractor briefings, ensure instructions reach individual workers through the subcontractor chain of command, and maintain records – including attendance records and meeting minutes – capable of proving that those communications were made and received.
What is the significance of toolbox talk records in construction liability claims?
Toolbox talk records can be decisive evidence. In Stathakis, the court noted that the absence of written records emboldened the plaintiff to deny having received site access instructions. Head contractors who keep comprehensive records of toolbox talks, inductions, and subcontractor safety briefings are significantly better placed to establish that their duty of care was discharged.
1 Stathakis v Richard Crookes Constructions Pty Ltd [2026] NSWSC 1113 at [15].
2 Ibid [20], [23].
3 Ibid [23].
4 Ibid [20]-[21].
5 Ibid [23]-[25].
6 Ibid [27], [29], [31].
7 Ibid [28].
8 Ibid [32].
9 Ibid [34].
10 Ibid [39]-[40].
11 Ibid [34].
12 Ibid [61].
13 Ibid [11].
14 Ibid [11].
15 Ibid [12].
16 Ibid [12].
17 Ibid [13].
18 Ibid [14].
19 Ibid [61].
20 Ibid [61].
21 Ibid [61].
22 Ibid [16].
23 Ibid [16].
24 Ibid [62].
25 Ibid [53]-[54].
26 Ibid [62]-[63].
27 Ibid [63].
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The material contained in this publication is in the nature of general comment only, and neither purports nor is intended to be advice on any particular matter. No reader should act on the basis of any matter contained in this publication without considering, and if necessary, taking appropriate professional advice upon their own particular circumstances.
