Australia: Parlin v Choiceone Pty Ltd [2012]: contributory negligence

Last Updated: 29 February 2012
Article by Claude Armeli

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 Appeal

The WA Court of Appeal held that:

  1. 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.
  2. 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.
  3. 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.
  4. 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 [2010] 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.

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.

Kott Gunning is a proud member of

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.