The NSW Supreme Court has again reaffirmed that employers owe
non-delegable duties of care to employees notwithstanding the
employer was a labour hire company, though it did note that the
absence of a direct breach of the duty of care by the labour hire
company is relevant to a claim for apportioning of other
parties' liability. The worker brought a claim in negligence
for injuries sustained at his workplace against his employer, who
was a labour hire company, as well as the occupier of the premises
where the worker worked and sustained his injuries
(CSR). The Court held that both the employer and
the occupier of the premises were liable in negligence for damages
to the worker.
The worker was tasked by CSR to remove solidified concrete from
a concrete barrel attached to a truck. Ordinarily, CSR would
provide the worker with a jackhammer weighing 10-15 kilograms for
such a task. However, prior to this task being undertaken, the CSR
jackhammer was stolen, so CSR hired another, but this weighed 25
kilograms. The worker used the 25 kilogram jackhammer between eye
and waist level to attack the concrete for a full day. The worker
alleged that he sustained injuries to his cervical spine as a
result of this task.
The worker was not able to state the specific date that he
undertook this task. However, Hislop J found that the date of
injury did "not appear to be of particular significance"
because what happened on the day is what matters.
Hislop J found that by requiring the worker to undertake the
task with such a heavy jackhammer, CSR had breached its duty of
care owed to the worker. His Honour also found that the employer
had a non-delegable duty of care owing to the worker to provide a
safe system of work and had failed to do so. He found that the
employer could not escape liability simply because it delegated its
duty of care to CSR and CSR had not properly fulfilled that duty of
Both defendants argued that the worker contributed to his own
negligence by using the jackhammer between waist and eye height as
he should have used it at thigh height to prevent the injury. The
worker gave evidence that he did not use the jackhammer at thigh
height because he did not know what would fall on his head if he
did so and because he had been instructed by CSR to not do so.
Neither defendants challenged this evidence. His Honour held that
the defendants bore the onus of establishing contributory
negligence and had failed to do so.
CSR sought to reduce its liability to the worker pursuant to
section 151Z(2) of the Workers Compensation Act 1987 (NSW) (the
Act) by apportioning 35 per cent of its liability to the employer.
However, His Honour held that according to the rationale in
Pollard v Baulderstone Hornibrook Engineering Pty Ltd
, a direct breach of the duty of care was required in
order for liability to be apportioned. His Honour held that the
employer did not directly breach its duty of care and as such no
apportionment could be made. He held that there was no direct
breach by the employer because (among other things) it had no
direct involvement at the CSR site, if it had inspected CSR's
site prior to the incident and the worker had been using a
jackhammer weighing 10-15 kilograms there would have been no issue,
the worker was experienced and the employer had provided the worker
with a handbook of safety instructions.
The employer also made a cross claim against CSR under section
151Z(1)(d) of the Act. His Honour found that the circumstances in
which the worker's injury had occurred had been caused by CSR
and accordingly the employer was entitled to recover an indemnity
from CSR for all payments made to, for, or on behalf of the worker
pursuant to the Act.
Hodge v CSR Ltd  NSWSC 27
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Whereas most insurance policies exclude liability arising under contract, insurers can
positively benefit where an insured has limited or excluded its liability under contract.
This usually arises where the insured's contract has a limitation or exclusion of liability clause in the insured's favour.
The failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn in accordance with Jones v Dunkel (1959) 101 CLR 298. An unfavourable inference is drawn only if evidence otherwise provides a basis on which that unfavourable inference can be drawn.
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