Justice Hislop of the NSW Supreme Court has awarded a plaintiff,
who sustained injury whilst operating a jack hammer above his head
for prolonged periods, $533,220 in damages, and in doing so held
that the labour hire agency with whom he was directly employed
should be fully indemnified by the host employer.
The plaintiff was employed by the second defendant, Adecco Pty
Limited, a labour hire agency. At the time of the accident his
services had been hired to the first defendant, CSR Limited, a
building materials manufacturer.
The first defendant directed the plaintiff to remove, by a
process known as 'de-dagging', solidified concrete from the
barrel attached to one of its concrete agitator trucks. To perform
the task, the plaintiff was required to stand inside the barrel and
operate a jack hammer, weighing approximately 25kg, above his head
for around five to six hours. As he did so, he developed pain in
his neck and left shoulder, and was eventually diagnosed as having
suffered a disc prolapse with associated nerve root
Both defendants denied liability to the plaintiff and alleged
contributory negligence in the alternative. The defendants also
cross claimed against each other seeking indemnity and
Hislop J accepted the plaintiff's evidence that the jack
hammer weighed approximately 25kgs and found that in all the
circumstances, requiring the plaintiff to use such a piece of
equipment above his head for five to six hours, amounted to a
breach of the first defendant's duty of care.
In discussing the liability of the second defendant, Hislop J
referred to the High Court's decision in Czatyrko v Edith
Cowen University, and in particular the Court's statement
'An employer owes a
non-delegable duty of care to its employees to take reasonable care
to avoid exposing them to unnecessary risks of injury. If there is
a real risk of an injury to an employee in the performance of a
task in a workplace, the employer must take reasonable care to
avoid the risk by devising a method of operation for the
performance of the task that eliminates the risk, or by the
provision of adequate safeguards..'
His Honour then remarked that the relevant authorities made it
clear that a person subject to a non-delegable duty could not
escape liability of the duty if the delegated duty was not properly
performed, and on this basis found the second defendant liable to
the plaintiff for a breach of its non-delegable duty of care.
However, it is His Honour's findings in respect of
apportionment between the defendants which is of particular
interest. The first defendant had submitted that the second
defendant should bear 35% of any liability to the plaintiff. By
contrast, the second defendant and plaintiff contended that there
should be no apportionment or, if apportionment was to be made, it
should not exceed 10% to 15%.
In reaching his decision, Hislop J confirmed that the second
defendant had breached its non-delegable duty of care, but found
that, as there was no direct breach of duty by the second defendant
which materially contributed to the plaintiff's injury, there
should be no apportionment and the second defendant was entitled to
a full indemnity from the host employer, including an indemnity in
respect of any payments made pursuant to the Workers
Compensation Act 1987 (NSW). His Honour's reasons for this
were as follows:
The second defendant had no direct involvement at the site or
in the plaintiff's day-to-day activities, and was not aware
that a full-sized jack hammer was being used to de-dag trucks
Although the second defendant had been supplying the plaintiffs
labour for three to four years, de-dagging was only performed
intermittently and on dates which were unpredictable, meaning that
the second defendant would have been unlikely to have observed the
de-dagging being performed during site inspections
Even if the second defendant had observed de-dagging being
performed prior to the theft of the first defendant's smaller
jack hammer, it would have observed the work being carried out
using appropriate equipment
The first defendant generally hired smaller jack hammers,
meaning that even reasonable inspection or inquiry by the second
defendant at any time prior to the day of the plaintiffs injury may
not have revealed an unsafe system of work
The plaintiff was experienced
The second defendant had provided the plaintiff with a safety
handbook which directed the plaintiff to notify the second
defendant of any hazardous or potentially hazardous situations
identified and not to undertake tasks that were unsafe.
Since the NSW Court of Appeal's decision in TNT v
Christie in 2003, the rule of thumb in claims such as this has
been that the labour hire firm will be liable for 25% of the
plaintiff's damages (paid by the labour hire firm's workers
compensation insurer), with the host employer responsible for the
other 75% (generally paid by their public liability insurer).
However, this case serves as a timely reminder for both labour
hire agencies and host employers, and those representing their
interests, that apportionment in such cases is not fixed, and it is
always important to assess apportionment with reference to the
particular facts of each case.
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
The failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn in accordance with Jones v Dunkel (1959) 101 CLR 298. An unfavourable inference is drawn only if evidence otherwise provides a basis on which that unfavourable inference can be drawn.
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”
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).