Body For Hire - Assessing An Employer´s Contribution Under S 151Z In Labour Hire

Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99

NSW Court of Appeal

Mason P, Beazley JA and McColl JA

In Brief

• The Court considered the non-delegable duty of care owed by an employer to its employees in the labour-hire industry. Confirming the decisions in TNT Australia Pty Limited v Christie and Dalma Formwork (Australia) Pty Limited v Maricic, the Court of Appeal held that determining the notional liability of an employer is a discretionary exercise.

Background Circumstances

• Mr Pollard, the plaintiff, was a concrete agitator truck driver who was injured when he slipped and fell on the surface of a wash bay while cleaning the tyres of his truck after making a delivery of concrete to the M5 east motorway project.

• He was employed by Dependable Personnel Pty Ltd ("Dependable"), a labour hire company, who in turn, hired out his labour to Pioneer Construction Materials Pty Ltd. The defendant's, Baulderstone Hornibrook Engineering Pty Limited and Bilfinger Berger AG were the head contractors for that project.

District Court Proceedings

• Hislop J found that the defendant's had the care and control and were the occupiers of the truck wheel wash bay where the plaintiff was injured. His Honour found that the defendant's were negligent because the grid in the wash bay exposed the plaintiff to a risk of injury which was foreseeable and which could have been obviated by reasonably practicable precaution.

• After finding that the defendant's were negligent, his Honour turned to the defendant's argument that the plaintiff was guilty of contributory negligence because he attempted to wash the wheels of the truck on the grid knowing that the area was wet, muddy and slippery.

• His Honour held that the onus of proving contributory negligence lies with the defendant. His Honour found that Mr Pollard should have taken particular care in moving on the grid. He stepped backwards in wet and muddy conditions without looking. As a result, he assessed Mr Pollard's contributory negligence at 10% for the purposes of s 5R of the Civil Liability Act 2002.

• In relation to the defendant's s 151Z(2)(c) argument, his Honour assessed Dependable's contribution at 20%. As to Dependable's liability, his Honour held: " Dependable had no direct involvement in this site or the wash bay nor was it involved in the plaintiff's day to day work. However it was the plaintiff's employer and as such owed to him a non-delegable duty of care. "

• This had the effect of reducing the plaintiff's damages by the same percentage.

Court of Appeal Decision

• The appeal was allowed in part by Mason P, Beazley JA and McColl JA., who delivered the unanimous judgment.

• The plaintiff submitted that there was no contributory negligence and that the plaintiff was only guilty of nothing more than momentary inattention, which was not a sufficient base for a finding of contributory negligence.

• The defendant's argued that the plaintiff's conduct was deliberate and that he walked backwards without looking where he was going.

• The Court of Appeal referred to the High Court decision of Joslyn v Berryman [2003] HCA 34 where the High Court held at common law a plaintiff is guilty of contributory negligence when the plaintiff exposes him or herself to a risk of injury which might reasonably have been foreseen and avoided and suffers an injury within the class of risk to which he or she was exposed.

• The court noted, as the primary judge recognised, the issue of contributory negligence was governed by s 5R of the Civil Liability Act.

• It was held that the plaintiff's conduct in taking a step backwards in circumstances where he could have looked to see where he was stepping but was not paying particular attention to the structure of the grid did not amount to a failure to take reasonable care for his own safety. The evidence did not reveal anything unusual about the step that he took immediately prior to his fall. In these circumstances, the Court of Appeal found that the plaintiff was not guilty of any contributory negligence.

• In relation to s 151Z(2) the plaintiff argued that the primary judge should have assessed Dependable's negligence in the 5% to 10% range. The defendant's submitted that 20% was consistent with the court's general approach to the liability of employer's involved in the labour hire industry, referring to the decisions in Maricic v Dalma Formwork (Australia) Pty Limited [2006] NSWCA174 and TNT Australia Pty Limited v Christie [2003] NSWCA47.

• As the plaintiff brought proceedings against the defendant's only and not the employer, the defendant's bore the onus approving the elements set out in s 151Z(2)(c) in order to obtain any reduction of damages.

• The Court of Appeal confirmed that an employer's duty to their employees is a non-delegable one and it is not modified because employees are sent to work for a client. In such circumstances, it was held that the employer may be required to adopt additional measures by way of warning or training in order to discharge its continuing duty of care towards employees.

• The Court of Appeal considered a long line of labour hire cases, many of which concerned an employee sent to work at another's premises where there was an opportunity for the labour hire firm to ascertain the system of work. TNT and Maricic are examples of single-site cases, that is where the employee was sent to work at one site. In these situations the employer had an opportunity to inspect the premises to which it had assigned its employee.

• In an attempt to diminish the notional responsibility of Dependable, the plaintiff argued that the M5 east motorway project was one of many destinations to which the plaintiff was required to deliver concrete. It was argued that it would be impracticable for the employer to be aware of conditions at every site its employees attended.

• The Court of Appeal confirmed that the question of whether an employer's non-delegable duty had been discharged when an employee was working on a third party's premises depends upon a number of matters including:

1. the employer's opportunity to inspect the premises;

2. the length of time the employer had put his employees to work on the premises;

3. the awareness in the employer of the danger, and

4. any capacity to shield employees from the danger and various other factors.

• Although the defendant's submitted that the primary judge's assessment of the employer's notional liability at 20% was consistent with the court's general approach to liability of an employer engaged in the labour hire industry, McColl JA confirmed that it should not be treated as a standard and the liability of the employer must be assessed on the facts of each case.

• The Court of Appeal concluded that the employer had to ensure that a reasonably safe of system of work was devised which ensured the plaintiff could carry out work of an ambulatory nature with safety. The fact that the plaintiff was required to visit a number of construction sites exposed him to a variety of hazards at each site and underlined the necessity of the employer to provide him with instructions and guidance about what to do when he encountered such conditions. In order to discharge its non-delegable duty, McColl JA found that Dependable had to adopt measures by way of both warning and/or training to require persons such as the plaintiff to report dangerous conditions and to seek instructions as to what to do in these circumstances. This was consistent with the approach adopted by Mason P in Christie.

Implications

• This decision does not depart from the principles set out in Christie and Maricic, that is, that an employer owes a non-delegable duty of care to its employees. However each case is dependant on its own facts. For example, in Harrison v Melhem (2008) NSWCA 67, the Court of Appeal found no negligence rested with the employer where a plaintiff was injured on a three day job at a building site when he was requested to assist in attaching a trailer to a tipper truck which was outside the course of his usual duties on the site. The Court of Appeal noted this was not a case of a body hire employer sending an employee out to perform a task under another's supervision.

• The fact that an employer engaged in the labour hire industry sends its employees to multiple sites does not extinguish the non-delegable duty it owes to its employees. Each case must be determined on its own facts.

• The Court of Appeal was prepared to overturn a modest finding of contributory negligence on the part of the plaintiff when he stepped backwards on a wet and slippery surface without looking. He did what a reasonable person would do in the circumstances.

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