Australia: Court Of Appeal Determines That Employer Is Not Liable For Employee´s Injury Where Employer Had No Control Over System Of Work

Last Updated: 12 August 2009
Article by Todd Kirchner and Andrew Spearritt

DIB Group Pty Ltd t/as Hill & Co v Cole [2009] NSWCA 210

Court of Appeal1

In Brief

The Court of Appeal determined an employer's duty to provide and maintain a safe system of work and to provide proper plant and equipment, will operate differently on premises and in circumstances over which it has full control, as opposed to those which are under the control of others.


Mr Cole (the plaintiff) was employed by Finemore Transport (the employer) to deliver fuel to the premises of DIB Group Pty Ltd (the appellant). Whilst at the appellant's premises and during the course of his duties, the plaintiff stepped on a covered inspection pit.

The general area was covered in gravel, and the cover was surrounded by sections of pine log raised approximately four inches above the gravel surface. At some point in time, the edges of the concrete rim on which the cover rested had been chipped away so as to grant easier access to the pit. When the plaintiff trod on the pit cover it moved, resulting in him falling into the pit and suffering a fracture of the left ankle.

The plaintiff brought proceedings against the appellant in the District Court, where Goldring DCJ awarded him damages for an injury arising out of the appellant's negligence.

At the trial, the plaintiff called Ms Joanne Skelly, the occupational health and safety manager with the employer. She gave evidence that she had attended at the appellant's premises on the day after the accident, but had not conducted a risk assessment on site. Counsel for the appellant cross-examined Ms Skelly as to what she might have done had she gone to the appellant's premises to carry out a safety check before the accident. That evidence included her acceptance of the proposition that if she had carried out a risk assessment, she would have told the truck drivers not to walk over the pit, and ensured that the pit lid was safe and secure.

His Honour found that such an inspection would not have, on the probabilities, revealed the risk arising from the unstable pit cover. To achieve that, it would have been necessary to take a further step which must at least have included questioning staff of the appellant as to their knowledge of risks arising from use of the depot. The defendant could not establish that there was any causal relationship between any breach of duty by the employer and the plaintiff's injury.

Court Of Appeal

The appellant appealed to the Court of Appeal against his Honour's findings as to contributory negligence and employer's liability. The leading judgment was declined by Basten JA, with whom Beazley and McColl JJA agreed. The issues for determination by the Court of Appeal were as follows:

  1. whether the plaintiff had been contributorily negligent; and
  2. whether the plaintiff's employer was also liable in negligence, and would, if sued by the plaintiff, have been liable for contribution to the appellant.

At first instance, Goldring DCJ dealt with the suggestion of contributory negligence briefly, noting the provisions of ss 5R, 5B and 5C of the Civil Liability Act 2002. The Court of Appeal agreed with his Honour that the risk of injury which materialised was not one of which the plaintiff was aware or ought reasonably to have been aware. Stepping on metal pit covers is an everyday experience and does not, or should not, carry with it any significant degree of risk. This ground of appeal was rejected.

In turning to the question of whether the employer was liable for contribution, the Court of Appeal noted the High Court judgment of Mason J in Kondis v State Transport Authority2 in which the plaintiff's claim against his employer was upheld on the basis that the employer had allowed the independent contractor to adopt a system of work and was directly liable in circumstances where the contractor had failed to adopt a safe system.

In TNT Australia Pty Ltd v Christie3, the liability of the employer (Manpower) as a labour hire company and that of the business for which the employee was working, TNT, was examined in respect of an injury caused by a moveable pallet jack. The jack was owned by Crown Equipment Pty Ltd ("Crown"), which leased it to TNT Australia, but remained responsible for maintenance and repair. Both Manpower and TNT sought to rely upon the latter's engagement of Crown as a skilled and reputable servicing company. Mason P concluded at [92]:

"The finding that Crown was negligently at fault in failing to detect and/or repair the cause of the problem reported to it is sufficient to render TNT and Manpower liable, in light of the non-delegable duties each owed to the plaintiff. There was a want of care in the maintenance of the plant which employees were directed to use at the workplace."

However, the relevant question for the present case was the extent to which the personal duty of the employer extended to premises over which it had limited or no control. Basten JA noted at 54:

"Where the safety of premises is at stake, as in this case, it is appropriate to ask quite specific questions with respect to what may be expected of an employer exercising reasonable care for the safety of its employees. For example, is it reasonable for the employer to request or require access to premises to carry out its own safety inspection? Is it necessary (and sufficient) if the employer inquires of the occupier what steps it has taken to conduct such an assessment? Is it necessary (and sufficient) for the employer to inquire in specific terms of its own employees as to the nature of the conditions they encounter at other premises?"

In referring to the evidence of Ms Skully, the Court of Appeal noted that there was no evidence that she had authority to make admissions on behalf of the employer and that her evidence should be properly treated as evidence of her views, formed after the event, but giving weight to her role as an OH&S officer.

The duty of the plaintiff's employer included an obligation to carry out a site inspection, however a reasonable inspection would not have disclosed the risk of injury, and thus there was no causal connection between the breach of the duty by the employer and the injury suffered by the plaintiff.

The Court of Appeal concluded that the appellant's attempt to rely upon a non-delegable duty of care imposed on the employer was conceptually unsound. To the extent that the employer did have a duty to its employee, whilst working on the premises of the appellant, its case in respect of breach was limited to the failure to carry out a site inspection or to warn the drivers not to step on pit covers. As a factual matter, liability of the employer was not established.

The Appeal was dismissed.


This case has created an avenue in which employers may reduce their "non-delegable" common law duty in circumstances where they do not have control of the system or manner in which their employees carry out their duties.

However, the concept of control is multi-faceted; evidence of control may impose liability on a non-employer, whilst absence of control need not justify removing liability from an employer. It is appropriate to ask quite specific questions as to what may be expected of any employer in such circumstances.

In light of the Court of Appeal's decision, it is important for labour hire companies and employers who do not have control of the systems of work or the premises upon which their employees conduct their duties, to inspect the premises and systems of work in order to minimise or resist common law claims founded in negligence.


1. Beazley JA, McColl JA, Basten JA

2. [1984] HCA 61

3. [2003] NSWCA 47

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.

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