Labour hire firm negligent in failing to require its client to conduct safety inspection of drilling rig before employee started work – whether client entitled to contribution from labour hire firm to damages payable to employee - trial judged erred in finding that labour hire firm's breach of duty was not causative of the injury –– contribution of 20% ordered.
Mr Tyson Barns was an employee of a labour hire company (the respondent) when on 5 December 2003, he was injured during the course of his duties with the appellant, a drilling contractor. His injuries were sustained when the hydraulic fluid of the operating drilling rig ignited causing a fireball which engulfed the drilling rig and caused Mr Barns to suffer burns to 60% of his body.
The appellant paid Mr Barns the sum of $1,013,498.50 plus $30,000 agreed costs in settlement of his claim. The appeal concerns a claim for contribution by the appellant against the respondent.
The primary judge found that the respondent breached the duty of care owed to Mr Barns by sending him to work on the drilling rig without requiring a complete safety inspection of the rig and without satisfying itself that the appellant had appropriate safety procedures in place to ensure Mr Barns' safety. However, the primary judge found that the respondent's failure to require a complete safety inspection of the rig was not causative of the accident and that its liability arose solely because the appellant did not have in place an adequate system for the inspection of the high pressure hydraulic hose, which had its covering been removed, the defects in the hose would have been ascertainable upon inspection. On that basis, the primary judge found that it was not just and equitable that the respondent be required to contribute to the damages payable to Mr Barns.
The WA Court of Appeal held that:
- The primary judge reached a conclusion on an assumption that had the respondent required a complete safety inspection of the drilling rig, the appellant would have satisfied the respondent that the drilling rig was safe and that all appropriate safety measures were taken.
- The appellant court however considered that the primary judge's finding was not one which could reasonably be made on the evidence. The evidence available being that the most recent safety inspection had been carried out in July 2003 by the owner of the site for its own purposes when the drilling rig arrived on site. A representative of the appellant was not present for the inspection and the appellant was not informed of the nature and findings of the inspection. Furthermore the inspection report appeared to concern itself with the condition of the truck on which the drilling rig was mounted and not with the components of the drilling rig itself. Consequently, had the respondent required such an inspection of the drilling rig, there must have been a real prospect that the accident would not have occurred.
- The primary judge failed to give proper weight to the degree of the respondent's culpability. Mr Barns was sent by the respondent to work with a defacto employer with equipment which was known to be very dangerous and which the safety practices of the defacto employer was not known by the respondent, in circumstances where, in the exercise of reasonable care the respondent should have required, as a condition of Mr Barns' placement that the appellant undertake a complete safety inspection of the rig and had failed to do so.
- The appellant accepted that it was more blameworthy because it had control of the drilling rig and it was in a much better position to take steps to avoid injury to Mr Barns but for its part the respondent did not take reasonable steps to ensure that appropriate care was taken for Mr Barns' safety and the respondent's contribution is 20%.
This was very much a decision of fact based on findings relating to causation. The outcome was different in two recent decisions of the NSW Court of Appeal.
In DIBB Group Pty Ltd t/as Hill & Co v Cole (2009) NSWCA 210, the Court of Appeal upheld the decision of the trial judge which had been made on a similar basis to the decision at first instance in this case. He had found that although there was a breach of duty by the employer, it had not been the cause of the injury.
In Hodge v CSR Ltd  NSWSC 27 (on which the primary judge had placed considerable reliance) it was again found that the labour hire company should bear no responsibility in apportionment proceedings, as there was no direct evidence that negligence of the labour hire company had contributed to the plaintiff's injury.
Both of these decisions differ from the present case where it could not be said that the respondent's direct breaches lacked any "causative potency". On the contrary there must have at least been a real prospect that had the respondent raised the issue, the appellant's safety procedures would have been examined and the potential cause of the injury detected.
The message of significance that can be taken from all of these cases is that liability will not be apportioned against a labour hire company unless there is evidence that the company was in fact negligent, and that the negligence was a material contributing cause of the injury.
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