In a recent decision by the Western Cape Division of the High Court in Albertino Lorenzo Bennet v Prima Toys and Leisure Trading (Pty) Ltd and Focus Asbestos Removal Services CC (4420/2017) ZAWCHC 515 (7 November 2025), the court reaffirmed that a principal is not vicariously liable for the conduct of an independent contractor. The principal would only be held liable where it was also personally negligent.
In this case, the High Court held both Prima Toys (PT) (the employer/principal contractor) and Focus Asbestos Removal Services (FA) (the independent contractor) jointly and severally liable for 60% of the damages sustained by Mr Albertino Lorenzo Bennet. Mr Bennet, an FA employee, fell through a skylight while cleaning the roof of PT's warehouse, where FA had been appointed to carry out the work.
The incident occurred in March 2014. At the time of the incident, Bennet was not wearing a fall arrest safety harness.
The evidence showed that prior to the incident, Mr Bennet and his colleagues had received training on the necessity and importance of wearing a safety harness while working on the roof. They had also been provided with safety harnesses to wear while performing work at PT's premises. However, the safety equipment was removed from the site two days before the incident. There was also no safety line onto which the safety harness could be hooked. On the day of the incident, Mr Bennet was not wearing a safety harness.
The court concluded that PT and FA owed different legal duties to Mr Bennet. PT owed a duty to provide a health and safety plan, which would have identified roof hazards presented by the skylights and the need for fall protection. This duty could not be substituted to FA by entering a mandatory agreement. On the other hand, FA owed a duty to provide fall protection equipment and to ensure that safety lines were installed on the roof. On the evidence, the court found that both PT and FA had negligently breached their respective duties. In addition, the court found that despite knowing the risks of working at heights and having received safety briefings in previous projects, including the one during which he was injured, Mr Bennet nevertheless proceeded to work on the roof without the necessary protective gear. The court held that this conduct was also negligent and causally contributed to the harm suffered, leading to a 60/40 apportionment of liability in Mr Bennet's favour.
The judgment reinforces the position that the mere fact that a principal has appointed an independent contractor who has signed a mandator agreement does not necessarily absolve the principal from liability for breach of duties owed by the principal to an injured plaintiff. To escape liability, the principal may have to demonstrate that it was not personally negligent.
