Mungis (No.2) Pty Limited v Still  NSWCA 261
Breach of duty of care by "host employer" –
duty of care owed to contractor – tests under the
Civil Liability Act – contributory negligence
Still was an employee of a labour hire company working at the
He sued the appellant as "host employer" for an injury
sustained whilst attempting to clear a build up of plastic waste in
a thermoforming machine. He had noticed that the waste compartment
was overflowing and attempted to force open the compartment door in
order to clear it. He managed to do so, but was injured as the door
burst open due to a build up of pressure inside.
Still had in fact opened the compartment door earlier that day
to clear a blockage. In doing so, he had set a lever into a
position that enabled the task to be performed safely. However, he
failed to reset the lever, so that when he returned to open the
compartment, the door was under pressure. In forcing the door, he
had overlooked his earlier failure to reset the lever.
The primary judge found that the appellant had breached its duty
of care to Still by failing to automate the function he had omitted
to perform. Furthermore, it had failed to warn him of the risks of
opening the compartment without first shutting the machine down via
the emergency switch. However, he found that Still had contributed
to the accident by failing to use the emergency switch. He should
have known that it would have rendered the machine safe and avoided
any risk of a build up of pressure.
The host employer appealed against the finding of a breach of
duty of care, arguing that there was no need to automate the
function and that there were adequate safeguards. Still cross
appealed against the trial Judge's finding of 25%
contributory negligence. Both the appeal and the cross-appeal were
The NSW Court of Appeal held that:
The host employer owes a non-delegable duty of care to a
contractor where the host employer controls the system of work, the
machinery used in the manufacturing process or the manufacturing
The primary Judge was correct in finding that Still had
satisfied the preconditions set out in s.5B(1) of the Civil
Liability Act NSW – (which mirror our s.5B(1)
Civil Liability Act 2002 WA);
Automation was a simple and inexpensive means of eliminating
the risk. That step had subsequently been taken and although not
conclusive as to the need for such action to have been taken, it
The host employer did not provide him with instructions or
training to deal with the situation. Had it done so, it was likely
that he would have followed those instructions;
The risk of injury was not remote.
Still's cross-appeal argued that his omission had been
inadvertent or an error of judgment and should not be characterised
Whilst acknowledging that he had not been given instructions and
that, if given, he probably would have followed them, the Court of
Appeal considered that he was sufficiently aware of the operating
system to have appreciated the risk that of his actions. It was
therefore open to the primary judge to find that his conduct was
negligent rather than inadvertent and the 25% apportionment was not
For more information, contact Vidal Hockless or Claude Armeli on
(08) 9321 3755.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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