Samways v WorkCover Queensland & Ors 
The Queensland Supreme Court has affirmed that an appropriately
worded contractual indemnity is adequate to effectively transfer
liability in negligence from a tortfeasor to the party granting the
Scott Samways injured his shoulder when he walked into the
raised bucket of a bobcat at a construction site. The bobcat was
not being operated at the time, and the bobcat and bucket were
stationary. The bucket had been left in a raised position because a
hydraulic hose that governed the tilting of the bucket had failed.
However, at the time that the incident occurred, the hydraulic hose
had been repaired and the bucket could have been lowered.
Samways argued that the bucket of the bobcat being left in a
raised position at the site gave rise to a foreseeable risk of
injury. Samways alleged that the injury was due to the negligence
and / or breach of statutory duty of:
His employer, Tessman Concreting Pty Limited
The principal contractor for the site, De Luca Properties Pty
The owner of the forklift, Lynsha Pty Limited, who had hired
the forklift with an employee operator to De Luca.
Samways alleged that Lynsha's operator created the risk (by
leaving the bucket in a raised position at the site) and that De
Luca and Tessman took inadequate steps to remove or reduce the
The defendants all claimed that Samways caused or contributed to
his injury by failing to pay sufficient attention to the position
of the bobcat and by failing to have regard to his own safety.
Despite finding Samways' testimony as a witness
unsatisfactory, the Supreme Court concluded that the injury would
not have occurred, if not for the negligence of:
Lynsha's operator in leaving the bucket in a raised
position, given the risk of injury posed by the bucket being left
in a raised position and the minimal inconvenience that would have
been occasioned to the operator in moving the bobcat after it had
De Luca in failing to either direct Lynsha's operator to
move the bobcat to a safer location or arranging for the bobcat to
be fenced off so that workers at the site could not walk into the
Tessman, who importantly was responsible for supervising
Samways and other Tessman employees' work at the site, in
failing to direct its employees not to work in the vicinity of the
Liability was apportioned between the defendants as follows:
Lynsha – 60%
De Luca – 30%
Tessman – 10%.
The Supreme Court held that as each of the defendants were found
to have been negligent, it was unnecessary to address the alleged
breaches of statutory duty and whether any such breaches gave rise
to a cause of action.
The Supreme Court further held that the plaintiff had failed to
exercise reasonable care for his own safety by failing to look up
from the ground regularly, in order to avoid potential hazards, and
accordingly reduced the plaintiff's award of general damages by
The Supreme Court was then required to consider the application
of an indemnity clause, which Lynsha sought to rely upon. The
indemnity clause was contained within the hire agreement between De
Luca and Lynsha and provided as follows:
'The Hirer (De Luca) shall fully and completely
indemnify the Contractor (Lynsha) in respect of all claims by any
person or party whatsoever for injury to any person or persons and
/ or property caused by or in connection with or arising out of the
use of the plant and in respect of all costs and charges in
connection therewith whether arising under statute or common
The Supreme Court held that:
The words 'arising out of' and 'in connection
with' have a wide meaning. However, in the context of the case
at hand, it was necessary for a 'sufficient nexus' to be
established between the use of the forklift and the injury
Notwithstanding that the bobcat was not in operation at the
time that the incident occurred, the deployment of the bobcat to
the site constituted 'use' for the purposes of the hire
agreement and the indemnity clause.
The Supreme Court concluded that the injury was 'in
connection with' or 'arising out of' the use of the
bobcat and that Lynsha was consequently entitled to a full
indemnity from De Luca with respect to the claim made against it by
This case affirms that a contractual indemnity may be sufficient
to transfer liability in negligence from a tortfeasor to another
party. Accordingly, contracting parties should be vigilant when
considering whether or not to enter into an agreement that requires
them to indemnify another party.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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