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 care.
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 [2008], 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 [2010] NSWSC 27
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