Construction sites are dangerous places, even for people who are only there briefly. A person might be injured while making a delivery, attending a site meeting, inspecting work, visiting as a client, walking near the site, or entering for another lawful reason.
When that person is not an employee, it is not always obvious who is responsible.
The answer usually depends on who controlled the site, who controlled the hazard, and whether reasonable steps were taken to keep people safe.
Safety Duties Are Not Only Owed to Employees
A construction business does not only have safety duties to its direct workers. Under the Work Health and Safety Act 2011 (NSW), a person conducting a business or undertaking, often called a PCBU, must make sure, so far as reasonably practicable, that the health and safety of other people is not put at risk by the work being carried out.
That means a builder, contractor, developer or site operator may need to consider the safety of more than just their own employees. Their duties may also extend to visitors, delivery drivers, consultants, customers, neighbours, pedestrians and other people affected by the work.
SafeWork NSW also states that businesses have primary responsibility for the health and safety of everyone in the workplace, including visitors.
For example, if a delivery driver is directed onto a construction site, the site should have safe access arrangements. That may include clear instructions, marked paths, separation from moving machinery, and someone available to manage the delivery safely.
Liability Usually Depends on Control
People often assume the landowner is automatically responsible if someone is injured on a construction site. Sometimes the owner may be liable, but that is not always the case. The more important question is usually: who had control over the risk that caused the injury?
That could be:
- the principal contractor
- the site occupier
- a subcontractor
- the developer
- a traffic control company
- a scaffolding contractor
- a company managing access to the site
- more than one party at the same time
For example, if a visitor trips over loose temporary flooring near the site office, the responsible party may be the person or company managing that area. If someone is struck by moving machinery, liability may involve the contractor operating the machinery, the company responsible for traffic management, or the principal contractor responsible for site coordination.
Construction sites often involve several businesses working at once. Because of this, responsibility can be shared.
A Visitor’s Role Still Matters
Not every visitor is in the same position. A courier making a delivery is different from a client attending a site walk-through. A consultant inspecting works is different from a neighbour injured by debris near the boundary. A pedestrian injured outside the site may have a different claim again. The visitor’s role may affect what precautions should have been in place.
For example, a consultant who regularly attends worksites may be expected to understand basic site rules. A member of the public walking past the site should not be expected to understand construction hazards. A delivery driver may need clear instructions because they are entering the site temporarily and may not know the layout.
Even so, the main question remains the same: did someone fail to take reasonable care for that person’s safety?
Examples of Site Hazards That May Lead to a Compensation Claim
A visitor injury may raise legal issues where the site had hazards that should have been controlled.
Examples may include:
- open trenches or uncovered voids
- poor lighting around access paths
- missing or unclear warning signs
- unsafe temporary stairs or ramps
- falling objects
- loose materials in walkways
- vehicles and pedestrians using the same space
- poor traffic control
- unsafe scaffolding access
- wet, muddy or unstable ground
- lack of induction or visitor instructions
For example, if a client is invited to inspect progress and falls through an uncovered opening, the issue may be whether the opening should have been covered, fenced, marked or otherwise controlled.
If a delivery driver is hit by reversing machinery, the issue may be whether the site had proper traffic management, spotters, exclusion zones or safe delivery procedures.
Visitors Also Have Responsibilities
A visitor’s own behaviour can still matter. SafeWork NSW says visitors must take reasonable care for their own health and safety and follow reasonable instructions, policies and procedures.
For example, a visitor may be criticised if they ignored clear warning signs, entered a restricted area without permission, removed protective equipment, or failed to follow instructions from site staff.
In a compensation claim, this may be raised as contributory negligence. That means the injured person may still have a claim, but their compensation could be reduced if they are found partly responsible for what happened.
For example, if a visitor was told to stay within a marked walkway but stepped into a machinery zone without permission, the site operator may argue that the visitor contributed to the accident.
But that does not automatically remove the site operator’s responsibility. Construction sites are known to be hazardous, so those in control of the site are still expected to manage foreseeable risks.
How Negligence Is Usually Assessed
A public liability claim generally looks at whether someone failed to take reasonable care.
The Civil Liability Act 2002 (NSW) sets out the general negligence framework in NSW. In broad terms, the court may consider whether the risk was foreseeable, whether it was significant enough to require precautions, and what a reasonable person or business would have done in the circumstances.
For construction site injuries, that may involve questions such as:
- Was the danger obvious?
- Was the visitor expected to be in that area?
- Were warning signs used?
- Was access properly controlled?
- Were visitors inducted or supervised?
- Were pedestrians separated from vehicles?
- Was the hazard created by a contractor?
- Could the injury have been prevented by simple precautions?
The answer depends heavily on the facts. A small uneven surface in a clearly marked construction area may be viewed differently from an unguarded hole in a visitor walkway.
Evidence Can Be Very Important
Construction site injury claims can become complicated quickly because several companies may be involved. Early evidence can make a major difference.
Useful evidence may include:
- photographs or video of the hazard
- CCTV footage
- incident reports
- site induction records
- visitor sign-in records
- traffic management plans
- Safe Work Method Statements
- site maps
- witness statements
- emails or text messages arranging the site visit
- records showing who controlled the area
- medical records showing the injury and treatment
The contract chain can also matter. A subcontractor may have created the hazard, while another company may have been responsible for supervising the area or controlling access.
Who May Be Responsible?
Depending on the facts, responsibility may sit with one party or several parties.
Possible responsible parties may include the principal contractor, the occupier of the site, the company managing the work area, the subcontractor that created the hazard, the company controlling traffic or access, or another business involved in the work.
For an injured visitor, the better question is often not “who owns the land?”
The better question is: who had the power to prevent the injury?
That question often helps identify who owed the duty and whether the site was being managed safely.
Getting Advice Can Help Identify the Right Claim
If a non-employee is injured on a construction site, the claim may involve public liability law, work health and safety duties, negligence principles and several possible defendants.
A visitor may not always have the same workers compensation rights as an employee. But they may still have a claim if their injury was caused by unsafe premises, poor site management, lack of warning, poor access control or another failure to manage risk.
Law Advice assists injured people in assessing whether they may have a public liability claim, what evidence is needed, and who may be legally responsible.
If you have been injured while visiting a construction site, one of our public liability lawyers can help review what happened and explain your options.