Miles v Zurich Australia Insurance Limited; Ace-Semi
Trailer Sales Pty Ltd v Zurich Australia Insurance Limited 
This is an interesting New South Wales Supreme Court decision
which considers many issues that typically arise in the average
WorkCover claim today.
On 10 July 2002, the Plaintiff was rendered a paraplegic when a
trailer upon which he was working fell onto him. The total agreed
damages were in excess of $4m. The matter proceeded on the issue of
The Plaintiff brought proceedings against Zurich Australia
Insurance limited (Zurich), which was the public liability insurer
of PJS Fabrications Pty Ltd (PJS). Zurich cross-claimed against
Ace-Semi Trailer Sales Pty Ltd (Ace), which was the Plaintiff's
Mr Beeck was the managing director and owner of Ace. He was
primarily concerned with obtaining business for the company and
sales. Mr Scott's company was PJS, and he was taken on as a
sub-contractor to Ace. Mr Scott performed the function of a
workshop manager for Ace, which involved day to day running of the
On the day of the accident, Mr Scott directed the Plaintiff to
perform service and repair work on a trailer. The Plaintiff argued
that Mr Scott's capacity as workshop manager gave rise to PJS
owing him a duty of care. That duty was breached when PJS set up an
unsafe system of work, which caused the accident.
The Plaintiff's evidence was preferred over Mr Scott's
evidence in relation to the circumstances of the accident, as he
was found to be a reliable and truthful witness due to his
willingness to give evidence against his interest.
The Court accepted that PJS, through its servant Mr Scott, owed
the Plaintiff a duty of care, which was breached. Based on the
non-delegable nature of the duty of care owed by Ace to the
Plaintiff, the negligence of PJS became the negligence of Ace.
Accordingly, liability was established against both Ace and
It was found that Mr Beeck had no direct knowledge of the system
of work and the actual danger to which the Plaintiff was exposed.
Due to Mr Scott's position of advantage and the fact that he
devised and implemented the system of work, the Court held that
greater culpability should be attributed to him, and therefore to
PJS, for the Plaintiff's injuries. The Court apportioned
responsibility for the Plaintiff's injuries, 65% against PJS
and 35% against Ace.
The Court did not consider it was one of those cases where a
worker had been injured by an act of carelessness for their own
safety that was incidental to the performance of his duties.
Accordingly, contributory negligence was not established, despite
the Plaintiff's knowledge that the system of work was
This decision is an important reminder about the non-delegable
duty of care which will inevitably expose an employer to liability,
even where it has little to no involvement in the employment
relationship. It is also important to be aware of the consequences
for a party who has direct knowledge of, and participates in, the
implementation of a defective system of work.
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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Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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