A recent decision in the Western Australia Court of Appeal will
be an important case in matters involving negligent acts of labour
hire employees. Here, Solicitor Melissa McGarrity and Senior
Associate Jacqi Marshall discuss the decision of Kelly v Bluestone
Global Ltd and Anor  WASCA 90, upholding the decision of the
Western Australia Supreme Court and dismissing the claim made by
The Plaintiff was employed by Ngarda Mining and Civil Pty Ltd
(Ngarda) at the BHP Billiton owned Yarrie mine.
During the course of his employment, the Plaintiff reversed a
dump truck to an area directly underneath the fully loaded
excavator bucket driven by Mr Scanlan. Mr Scanlan dropped the fully
loaded bucket onto the tray of the appellant's dump truck
causing the dump truck to shake violently which in turn resulted in
neck and back injuries to the Plaintiff.
Mr Scanlan was employed by TSS Recruitment Pty Ltd (a labour
hire company) and worked for Ngarda. The Plaintiff claimed that the
labour hire company was vicariously liable for the actions of Mr
The Plaintiff was unsuccessful at first instance and the
subsequent appeal against the defendants in relation to liability
failed for two reasons:
Mr Scanlan operated the excavator within the usual and accepted
practice to which he was appropriately trained. Accordingly the
Plaintiff failed to establish that Mr Scanlan breached his duty of
care to the Plaintiff; and
Control over Mr Scanlan was completely transferred to Ngarda
and, accordingly, the labour hire company could not be found
vicariously liable for Mr Scanlan's negligence (if any).
Complete transfer of control
Ngarda provided all inductions and training, coordinated all
works, conducted safety inspections and arranged transport and on
site accommodation for Mr Scanlan. Further, the terms of the
contract between the labour hire company and Mr Scanlan identified
his obligations to submit to the directions of Ngarda. The labour
hire company had no involvement in the day to day operations on
It was noted that no differentiation between labour hire
employees and Ngarda employees existed, nor were any labour hire
company workers employed in supervisory roles. In fact, most
workers supplied by the labour hire employer were made permanent
Ngarda employees after three months.
It was determined that the labour hire employer had no control
or authority over Mr Scanlan as their role was confined to paying
of wages only. The court also found that rather than characterising
the defendant as a "labour hire" company, its role was
more akin to that of a HR function, as the hired worker was
retained by Ngarda following an initial trial period.
Justice Mitchell disagreed with the majority regarding the
complete transfer of control of Mr Scanlan. While he noted that the
Plaintiff failed in establishing primary liability and it was
unnecessary to determine the transfer of vicarious liability, he
stated that the burden on an employer who seeks to transfer control
is a heavy one and should only be done in exceptional
Justice Mitchell was of the opinion that, in this matter, that
burden was not discharged.
Take away points
A distinction must be drawn between the liability of a labour
hire employer for the actions of their employees and the
non-delegable duty of care owed by labour hire employers to their
Each matter will turn on its facts, particularly with respect
to the level of control of workers and the history of the
relationship between the parties.
An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
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