Australia: Apportioning liability for a work injury between the labour hire employer and the host employer

A recent case before the NSW Court of Appeal highlights the relative duties of care owed to workers by a labour hire employer and a host employer.

Macpherson was an employee of APS Pacific Pty Limited (APS) (the labour hire employer). His services were hired to Clarence Valley Council (Council) (the host employer) for the purposes of weed reduction. APS did not give Macpherson any training, and left it to the Council to control the work undertaken by him. Unbeknownst to APS, the Council on the day in question tasked Macpherson with drilling holes in trees. It issued him with a chainsaw rigged for drilling, but which did not have a clutch fitted. During drilling operations the drill snagged and the chainsaw twisted. Macpherson's wrist was badly injured.

Macpherson sued the Council and APS for compensation for his injuries. In evidence, the Council's engineer stated that the Australian standard and relevant regulations did not require a clutch to be fitted to a chainsaw. But he agreed that it was usual practice for a clutch to be fitted, that a clutch would have prevented the injury to Macpherson's wrist, and that it was foreseeable that injury could result if one was not fitted.

The trial judge found that the Council was liable for 85% of the damage suffered and APS liable for 15%. The Council appealed but the Court of Appeal upheld the findings. The Court of Appeal held that the relevant consideration is what the employer knows or ought to have known is unsafe, not necessarily what workplace law or industry standards prescribe.

The Court of Appeal also confirmed that the immediate and substantial cause of Macpherson's injuries was the Council's failure to provide safe equipment. However, APS still owed Macpherson a non-delegable duty as his employer and therefore the apportionment of 15% liability to APS was upheld.

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