>>Mr Ironside:
Good morning, and welcome to
today’s webinar. Thank you for joining us. Today’s webinar is about
the apportionment of common law claims for
labour hire workers due to third party involvement. We will delve into some
case law to show how certain circumstances mean
different levels of apportionment. My name is Mike Ironside and
I’m your moderator for today. I’ve been with WorkCover
for almost five years, and last two and a half
years of that has been within the labour
hire industry. Before we get into things,
here is a bit of housekeeping. As you can see to the
right of your screen there is a dialogue box. There are three
main parts to this. The first part is
a small red button, use this to hide and
unhide the panel. The second is your
sound source selection, choose between your
telephone or speakers. Lastly there is a section
in which you can write any questions you may have
throughout the webinar. Time permitting, we will
allocate some time at the end to answer some
of these questions. After the webinar, a
recording and presentation will be available
on our website, in about a week or so. If we don’t answer
all the questions, we will collect them and
publish the answers on our website as well. And if you don’t mind,
please at the end can you complete a short survey. Your feedback will help us
improve our webinars and identify potential
topics moving forward. I’ll now introduce
our speakers today. Firstly we’ve got
Robert Tidbury. Robert is a partner at
HopgoodGanim and has 20 years’ experience
in personal injuries litigation, including 14
years as a panel lawyer for WorkCover Queensland. Robert advises local,
national and international clients in workers’
compensation claims, public liability
and retail claims, catastrophic injuries, general
insurance matters and ADR. His claims management
profile includes a particular focus
on complex, multi-party claims
and labour hire. We also have
Claire Bruggemann. Claire is a Senior
Associate at HopgoodGanim Lawyers and has over
10 years’ experience in personal injuries. Prior to joining
HopgoodGanim, Claire was an in-house
lawyer at WorkCover Queensland, and advised
employers in the labour hire industry. Claire’s experience
also includes acting for plaintiffs in a
boutique plaintiff firm. Claire regularly delivers
seminars and presentations to employers and other
lawyers on labour hire, OH&S, and workers’
compensation related topics. Before Robert
kicks things off, here is a brief look at
labour hire common law claims in comparison
to all industries. As you can see, it is
interesting to note that even though claims numbers
have recently decreased, the costs have
increased slightly. Changes to legislation
such as a 5% common law threshold can have an impact
on costs and claims numbers. The costs themselves are
significantly lower than those of other industries,
however that is mainly due to the apportionment
of costs. I will now hand
you over to Robert.>>Mr Tidbury: Good morning
ladies and gentlemen. My name is Robert Tidbury,
and I am the partner for Insurance and Risk
at HopgoodGanim. I will be presenting
today’s seminar with Claire Bruggemann, Senior
Associate at HopgoodGanim. In today’s seminar we will
discuss the following matters. The landmark case on
labour hire apportionment, TNT v Christie, cases
where the labour hire employer has been found
greater than 25% liable, cases where the labour
hire employer has been found less than
25% liable, general principles for
determining liability apportionment, the
labour hire employer’s contractual obligations
and responsibilities, the significance
concerning whether there is a contract for labour
hire or a contract for a whole of service
and, finally, why does the labour hire
and the employer sometimes reach a private agreement
on labour hire apportionment. At law, employers
owe their employees a non-delegable duty of care to
ensure their employees’ safety. This duty of the employer
extends to ensuring that third parties to whom the
employer’s workers are loaned or hired out to
exercise reasonable care for those workers’ safety
during the period of hire. In other words, a labour
hire employer cannot avoid or dispense with its
duty of care owed to its employees simply because
its employees are sent to work for a client. Clients of labour
hire businesses, typically called
the host employer, also owe the labour hire
employees working for them a duty of care. In that regard, cases
such as Blackwood & Son v Skilled Engineering, a
2008 decision of the New South Wales
Court of Appeal, demonstrate that the duty
of care owed by a host to its labour hire workers is
analogous to the duty of care which the host owes
to its own employees. A consequence of both
the employer and the host owing a labour hire worker
a duty of care is that at trial of proceedings
involving a labour hire worker injured at the
host’s premises due to negligence, the court
must make a decision on apportionment of the
liability between the labour hire firm
and its client. The landmark case for
labour hire apportionment in Australia is TNT
Australia v Christie. In that case, a labour
hire firm, Manpower, hired its employee out to work
for a client, TNT Australia. The worker suffered injury
at the client’s premises when he was operating a pallet
jack which malfunctioned. At trial, both the labour
hire employer and the host were found liable, with
each Defendant considered to owe the injured worker
a duty of care consistent with the duty owed in an
employment relationship. This determination
was upheld on appeal. The labour hire firm was
found to have breached its duty by failing to
properly instruct its worker, failing to
provide proper assistance, and significantly, its
failure to provide, inspect, maintain
appropriate equipment for its employees’ use, in
this instance a properly functioning and
maintained pallet jack. Likewise the host, TNT,
was found liable because it failed to properly
train the worker in the safe operation of
the pallet jack, and its concurrent failure
to identify the defect in the pallet jack,
or repair it. Liability was apportioned
by the court at 25% against the labour hire
firm and 75% against the host. The primary reasons
the host employer was determined to bear a
higher proportion of the liability was because it
was in the most proximate or closest position to
exercise supervision and control over the immediate
activity giving rise to the worker’s injury. In that regard, the worker
was working alongside four direct employees of TNT
at the time of injury, and he was treated the
same as them by TNT. This apportionment of
25/75 in the labour hire employer’s favour which
was arrived at in TNT v Christie is considered to
be the general yardstick or rule of thumb for determining
liability apportionment. However, since
this 2003 decision, the courts have shown a
preparedness to determine liability apportionment
in individual cases on the basis of their own facts. This has led to a number
of well-publicised decisions being handed
down by the courts where the labour hire agency’s
share of the liability was found to be
greater than 25%. A prominent example
is Glynn v Challenge Recruitment Australia Ltd,
a 2006 decision of the New South Wales
Court of Appeal. In this case, the
plaintiff was employed as a general labourer. He was sent by his labour
hire employer to clean up a disused warehouse
belonging to the host employer which operated a
concrete demolition business. On the date of the
accident the plaintiff was working alongside two
labourers and a foreman from the host employer. At trial, the evidence
revealed the warehouse was dark, as no electricity
was available. The workers attempted to
raise a roller door at the premises, but they
were unable to do so. The foreman then directed
the plaintiff to climb a six metre ladder in order
to release two metal bolts which were preventing the
roller door from being raised. In the course of
scaling the ladder, which was unsecured,
the plaintiff fell and sustained personal injury. At trial, the labour hire
employer was found liable for the accident on the
basis that it had not properly trained or
instructed the plaintiff in the safe
use of ladders. The labour hire
agency appealed. The Court of Appeal held
that both the cause of the accident and
responsibility for it was multi-factorial. In that regard, the court
accepted there was a flaw in the system of work in
that the ladder should have been secured, and
that this was very much within the control
of the host. However, the Court of
Appeal further held that the incident may not have
occurred had the plaintiff received proper training
and instruction from the labour hire company. The court further observed
that the labour hire employer in this instance
had done nothing to respond to the risk of
injury to the plaintiff and had not, by
way of example, visited the work site to
examine the working conditions. As a result of these
considerations, the Court of Appeal
apportioned liability at 40% to the labour hire
company and 60% to the host. Another labour hire claim
involving a fall from heights, where the labour
hire employer’s share of the liability was
determined to exceed 25%, was Victorian WorkCover
Authority v Carrier Airconditioning Pty Ltd,
a 2006 Victorian decision. In that case, a forklift
driver was hired out to Carrier Airconditioning
Pty Ltd, the host, by Workforce on Tap,
a labour hire firm. The plaintiff worker
sustained injury when he fell whilst descending a
makeshift platform he had erected. Liability was apportioned
by the host at 65% – liability was apportioned
by the court, rather, as 65% to the host, and
35% to the labour hire firm. It was concluded that the
host employer should bear the main responsibility
because it failed to give the plaintiff any relevant
instruction or warning of the task at hand, nor did
the host provide suitable equipment or say anything
to the plaintiff about the availability of
such equipment. However, the labour hire
firm was also considered blameworthy as its efforts
to inquire of the host about the safe work
arrangements in place at the host workplace were
limited to the labour hire firm’s representative
making a telephone inquiry of the host. In particular, the labour
hire employer did not undertake a
site assessment, nor did it inquire as to
what particular work its employee would be required
to undertake, or where, or with what equipment. The court considered
that the labour hire firm should have at least
insisted that the host employer give adequate
instructions to its employees about the duties
he was to perform and the equipment he should use in
performing those duties. The court also held that
the labour hire firm should have insisted that
its employee be fully inducted about the details
of the host’s OHS regime before he commenced
work for the host. A Queensland precedent
where the labour hire employer’s share of the
liability was found to be greater than 25% was
the case of Van Duong v Versacold
Logistics Limited, a 2010 decision of
Queensland’s Supreme Court. In that case, the
plaintiff was operating a ride-on pallet jack at the
host employer’s premises when the handle of the
pallet jack suddenly jerked causing the
plaintiff to lose his balance and fracture
his right arm. The court held that the
most likely explanation for the plaintiff losing
control of the operation of the pallet jack was
because the pallet jack ran over a stray piece
of debris present on the floor of the premises. In apportioning liability
between the labour hire firm and the host, the
court was critical of the lack of evidence from the
host regarding its efforts to ensure the floor of its
premises was kept free of debris. Therefore, the court found
that the system in place at the host premises
was insufficient in the context of the risk posed
to an operator should a pallet jack encounter
debris on the floor. The court also found that
the labour hire employer should have taken more
comprehensive steps to ensure that the host
maintained a sufficient cleaning regime
for its premises. In contrast to the
decision of TNT v Christie discussed earlier, the
labour hire firm in this matter had a presence
at the host site. The court found that the
labour hire firm in Van Duong v Versacold was
aware of a cleaning problem. But notwithstanding that,
it failed to ensure that the host adequately
dealt with it. On this basis, liability
was apportioned by the court at 30% to the labour
hire firm and 70% to the host. This decision of the
court was handed down by Queensland’s former
Chief Justice, the Honourable
Paul de Jersey, and was not the
subject of an appeal. I will now hand
you over to Claire.>>Ms Bruggemann:
Thank you, Robert. Now I am going to discuss
some recent decisions in which the labour hire
employer was not found to be liable, or was found to
be liable to the extent of less than 25%. I will be discussing
nine cases, and in eight of them the
labour hire employer was not found to be liable. There is one Western
Australian decision, and the remainder are
from the New South Wales Supreme Court or
Court of Appeal. There are no recent
Queensland decisions where the employer has been
found liable to the extent of less than 25%. The first case is Dib
Group Pty Ltd trading as Hill & Co v Cole. In that case, the
plaintiff was delivering fuel to the
premises of Dib. When returning
to his truck, after adjusting valves
which were required to be open when the fuel
was being transferred, he stepped on a cover
over an inspection pit. When he stepped on the
cover it moved and he fell into the pit and sustained
a complex fracture to his left ankle. The cover of the pit was
surrounded by sections of pine log raised
approximately four inches above a gravel surface. Over time, employees of
Dib had chipped away the concrete at the corners of
the rim to allow the lid to be more readily lifted
by applying downward pressure on one corner. The pit was required to be
inspected and cleaned on a weekly basis. The plaintiff sued Dib,
who was the occupier of the premises. He did not sue
his employer, Finemore Transport. The trial judge found that
Dib was liable for the plaintiff’s injuries. His Honour held that
it would not have been reasonable for the
plaintiff’s employer to have lifted the pit cover
to see that the corners had been chipped away. Even if there had been
a site inspection, it was beyond any
reasonable expectation that the defect in the
concrete that caused the pit cover to be unstable
would have been discovered on inspection. Dib could not establish
that there was any causal relationship between any
breach of duty by the employer and the
plaintiff’s injury. Dib appealed to the New
South Wales Court of Appeal on the issue of
whether the plaintiff’s employer was also liable
in negligence and would, if sued by the plaintiff,
have been liable for contribution to Dib. The Court of Appeal
dismissed the appeal and held that the employer’s
duty to adopt safe systems 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. The concept of control
is multi-faceted. It is appropriate to ask
quite specific questions as to what may be expected
of any employer in such circumstances. The duty of the
plaintiff’s employer included an obligation
to carry out a site inspection. The plaintiff’s employer
did not carry out a site inspection and therefore
breached its duty of care. However, there was no
causal connection between the breach of duty and
the injury because a reasonable inspection
would not have disclosed the risk of injury. Dib was held liable
to the extent of 100%. The next case is
Hodge v CSR Limited. The plaintiff was
employed by Adecco, and supplied to CSR
Limited to drive concrete agitator trucks. He sustained an injury to
his cervical spine from using a 25 kilogram
jackhammer to remove concrete which had
solidified in the agitator barrel. He was undertaking this
task over a period of approximately three hours. De-dagging was usually
performed using a Kanga jackhammer weighing
approximately 10 to 11 kilograms. However the host
employer’s jackhammer had been stolen and,
subsequently, jackhammers were hired. His Honour Judge Hislop
held that both defendants were liable for the
plaintiff’s injury. The labour hire employer
was liable for breach of the non-delegable
duty of care. However, His Honour held
that the labour hire employer should be fully
indemnified by the host employer for the
following reasons. The labour hire employer
had no direct involvement in the host
employer’s site, it had no control
over the site, it did not have a
supervisor on site, they were not involved in
the plaintiff’s day-to-day work, they were not aware
of the use of a full sized jackhammer to
de-dag trucks. They were aware that
de-dagging was carried out from time to time, and
they were aware that de-dagging was performed
intermittently and on dates which were
not predictable. His Honour said that had
Adecco observed de-dagging being performed prior to
the theft of the Kanga jackhammer, it would have
observed the work being carried out using
appropriate equipment and as part of a safe
system of work. The host employer was
therefore held liable to the extent of 100%. The third case is
Clarence Valley Council v Macpherson. In that case, the
plaintiff was employed by APS and supplied to
Clarence City Council as a spray operator to assist
with eradicating weeds. He sustained a severe
twisting injury to his right wrist and a fracture
of his fourth metacarpal whilst using a chainsaw
with an Auger drill bit attachment. Expert evidence was led
that the chainsaw should have been fitted
with an Auger with a torque-limiting clutch. The injury would have been
avoided if the chainsaw had the clutch attachment. Evidence also confirmed
that the Council had a chainsaw with a
clutch attached, which therefore meant that
it was aware of a real risk of injury to a
person who used a chainsaw without a clutch. APS argued that it did not
breach its duty of care to the plaintiff in providing
a safe system of work and providing safe plant and
equipment because the Council provided the
equipment to the plaintiff in a spur of the moment,
and APS could not have prevented the provision
of the unsafe chainsaw. The reference to ‘spur of
the moment’ was that the system of work was to be
changed from using an axe to using the chainsaw. The change to the system
of work was developed by the Council on the
prior afternoon. Her Honour Judge Flannery
accepted that the plaintiff was provided
with the chainsaw in a spur of the moment fashion
and, as a consequence, it was difficult to see
how APS would or could have prevented the
provision of inappropriate equipment on the
morning of the incident. However, Her Honour
held that APS could not abdicate its continuing
responsibilities to its employees with respect
to the provision of safe plant and equipment and
found APS liable to the extent of 15%. The Court of Appeal was
not prepared to overturn the 15% apportionment, as
decisions on apportionment are discretionary by trial
judges and there was no demonstrable error. The next case is
Shoalhaven City Council v Humphries. The plaintiff in that case
was employed by Campbell Page Labour Hire and was
supplied to Shoalhaven City Council to work for
an arm of the Council responsible for
sewerage maintenance. The plaintiff sustained
injuries to his back and shoulder when he attempted
to manually lift a manhole cover on his own that
weighed between 75 and 85 kilograms. He used a lifting
tool known as a T-bar. The plaintiff was
instructed to carry out the task by
his supervisor. At trial, His Honour Judge
Levy found that Shoalhaven City Council was liable
for the plaintiff’s injuries due to the casual
act of negligence by the plaintiff’s
supervisor, Mr Gillard. Mr Gillard instructed the
plaintiff to manually lift the manhole
with the T-bar, rather than using the
mechanical lifting device which was located on the
rear of the Council truck they were using on the
day of the incident. His Honour found that the
task the plaintiff was required to undertake
was site specific, and given that the
employer’s duty of care was to take reasonable
care and was not absolute, there was nothing it could
have done in a practical sense to avoid the
risk of injury. The plaintiff was under
the instruction and supervision of an
experienced supervisor in circumstances where there
were systems in place for the assessment of the
risk and there was proper lifting equipment
available. The Court of Appeal held
as follows: The employer was aware, or ought
to have been aware, that the plaintiff, if
required to work in a confined space
in a sewer main, would also be required to
remove the manhole cover to the sewer main, and
that such covers were often constructed
of concrete and of considerable weight. The employer should have
ascertained from the Council the system of work
which it had in place to enable its employees,
including the plaintiff, to remove manhole covers
without risk of injury. However, if the employer
did make those inquiries, it would have been
informed that the system of work, or the methods
which the Council had available to enable covers
to be lifted included the use of T-bars by one or
two persons and the use of a mechanical lifting
device attached to the rear of a truck. The choice of method
would depend on the circumstances and
be determined by the supervisor. Any breach on the part of
the employer in failing to make the relevant inquiry
was not causative of the plaintiff’s injury. It is difficult to see how
the employer could be held liable for the casual
act of negligence by the plaintiff’s supervisor. Therefore no apportionment
of liability to the employer was appropriate. An application by the host
employer for special leave to the High Court was
refused in August of 2014. The fifth case is
Wormleaton v Thomas & Coffey Limited. In that case the plaintiff
was employed by Allstate and assigned to work at
Bluescope Steel’s Port Kembla Steelworks. He sustained a severe
crush injury to his right leg, which was later
amputated as a result of the failure of the
system of work. Thomas & Coffey was
engaged by Transfield to dismantle and relocate
a sinter cooler. Part of the sinter cooler
needed to be lifted by crane, and Transfield
engaged Allstate to undertake the crane work. The plaintiff was an
dogman employed by Allstate. His Honour Justice
Campbell held that the incident occurred because
of a failure in the implementation of
the system of work, which would not have
occurred had Transfield fulfilled its obligation
to direct the work and coordinate the activities
of Thomas & Coffey and Allstate. His Honour stated
that, in his view, the risk which
materialised was beyond the scope of the
employer/employee relationship. He further stated that
it could be said that Allstate breached its duty
of care by failing to make any inquiry of Thomas &
Coffey about the system it devised for
lifting the frames. But had that
inquiry been made, and details of the
system to be implemented explained, a reasonable
employer in the position of Allstate would have
been satisfied with the response. If there had been a breach
on the part of Allstate, it was not causative of
the plaintiff’s injury. The next case is Wright by
his tutor Wright v Optus Administration
Pty Limited. The plaintiff suffered
physical injuries to his head, and mental harm from
an assault on the 15th of March 2001 when Nathaniel
George attempted to murder him by throwing him off
a fourth floor balcony at their place of work. The plaintiff was employed
by IPA Personnel and supplied to Optus. He was undertaking a
training course when the attempted murder was
committed by another worker who was employed
by another labour hire agency, but was also at
the premises undertaking the same training course. In dismissing the
claim against IPA, Justice Campbell
held that, pursuant to contract,
Optus was entitled to exercise control and
direction over the plaintiff. Optus controlled
the premises. Optus controlled the
activities of others on the site for the purpose
of its undertaking or business, including
the employees of other agencies and its
own employees. Optus had an obligation to
coordinate the activities of the employees of
different employers working in its business
for its purpose. The circumstances which
had arisen from Mr George’s conduct were
entirely within the control and
management of Optus, and they were entirely
unknown to IPA. The next case is South
Sydney Junior Rugby League Club v Gazis. The plaintiff was employed
by MPS as a security guard. South Sydney Junior Rugby
League Club contracted with Sermacs to provide
security on site. In order to fulfil
its contract, Sermacs obtained the
services of the plaintiff from MPS. The plaintiff was injured
when he attempted to move a trolley which was used
to transport money from poker machines. He lost his grip
on the trolley, fell backwards and
injured his back. This was not part of his
normal duties and he was not instructed nor
required to move trolleys. At trial, the Club was
found 75% liable and MPS was found 25% liable. The trial judge did not
consider Sermacs to be liable. The Court of Appeal
set aside the judgments against both the Club and
MPS as it did not consider either of them to be
liable to the plaintiff. In relation to the
plaintiff’s employer, the Court of Appeal
stated that MPS owed the plaintiff a non-delegable
duty of care to take reasonable care to
avoid exposing him to unnecessary
risks of injury. MPS breached its duty
of care by not taking reasonable steps to
investigate the working environment in which the
plaintiff worked on a semi-permanent basis. The employer did not
attend the Club at all. However, the breach was
not causative of the harm suffered by the plaintiff
because any inspection undertaken by the employer
would not have revealed the risk of injury. Special leave to the High
Court was refused in July of 2016. The next case is Kelly
v Bluestone Global, which is a Western
Australian Court of Appeal case. The plaintiff was employed
by Ngarda at the BHP Billiton owned
Yarrie mine. He sustained neck and back
injuries when the dump truck he was driving shook
violently as a result of another co-worker,
who was Mr Scanlan, dropping a fully loaded
bucket onto the tray. Mr Scanlan was
employed by TSS, a labour hire company,
and worked for Ngarda. The plaintiff claimed that
TSS was vicariously liable for the actions
of Mr Scanlan. At first instance, the
plaintiff was unsuccessful. The trial judge found that
Mr Scanlan operated the excavator within the usual
and accepted practice to which he was
appropriately trained. Accordingly, the plaintiff
failed to establish that Mr Scanlan breached its
duty of care to the plaintiff. On appeal, the plaintiff
was again unsuccessful. The Court of Appeal held
that control over Mr Scanlan was completely
transferred to Ngarda and, accordingly, TSS could
not be found vicariously liable for Mr Scanlan’s
negligence, if any. In relation to control,
the Court of Appeal held that Ngarda provided all
inductions and training, coordinated all works,
conducted safety inspections and arranged
transport and on-site accommodation
for Mr Scanlan. The terms of the contract
between TSS and Mr Scanlan identified his obligations
to submit to the directions of Ngarda. TSS had no involvement in
the day-to-day operations on-site. There was no
differentiation between Ngarda employees and
TSS employees on-site. No TSS employees were
employed in a supervisory role, most workers
supplied by TSS were made permanent Ngarda employees
after three months and the role of TSS was confined
to the paying of wages only. Rather than characterising
TSS as a labour hire company, its role was
more akin to that of a HR function, as the hired
employees were retained by Ngarda following an
initial trial period. In his dissenting
judgment, Justice Mitchell stated
that the burden on an employer who seeks to
transfer control is a heavy one and should only
be done in exceptional circumstances. Justice Mitchell stated
that the burden had not been discharged by TSS in
the circumstances of that case. The last case is Jurox
Pty Ltd v Fullick. The plaintiff was employed
by Integrated and assigned to work at
Jurox’s factory. She was injured when
emptying a 25 kilogram bag of dextrose into a hopper. At first instance, Judge
Mahony found in favour of the plaintiff. The evidence confirmed
that the host employer’s system of work for
emptying the dextrose into the hopper was safe. That system involved
the 25 kilogram bags of dextrose being transported
from a corridor outside the powder room and
stored on pallets. A lifter was provided
which had a platform that would be lowered to the
level of the pallet and the bag slid onto
the platform. The lifter would then be
wheeled into the powder room and placed
adjacent to the hopper. The bag would be placed
on the platform so the operator could split open
the bag and its contents would empty by force of
gravity into the hopper. The plaintiff’s evidence
illustrated that she did not complete the task
as per her training and instruction. Rather, after placing the
bag into position on the hopper, she used her right
hand to grab the end of the bag, slice it open,
after which some of the contents would spill out. Thereafter she would pick
up the bag to empty the remainder of the contents. The court accepted that
she adopted an unsafe work practice and that work
practice continued, uncorrected, until
the day of her injury. After examining the
evidence led at trial, the Court of Appeal was
not satisfied that Jurox had any formalised system
of supervision in place and noted that there was
no person whose role or responsibility it was to
ensure that she understood her training and complied
with that training. In relation to whether
Integrated should have been a joint tortfeasor,
the Court of Appeal upheld the original decision
that the claim against Integrated failed on
causation grounds. The Court of Appeal agreed
that any audit of the system of work undertaken
by Integrated would have revealed the safe
system of work, and not a failure of the
host employer’s supervision. The employer’s duty did
not extend to supervising the host employer’s
supervisory regime.>>Mr Tidbury:
Thank you, Claire. The predominant theme from
the cases just discussed by Claire is
that the courts, particularly in
New South Wales, have demonstrated a
willingness not to find the labour hire employer
liable so long as any breach of duty committed
by it was not causative of the incident. A further theme apparent
from the cases discussed by Claire today, is that
the labour hire employer’s share of the liability
will often be significantly
less than 25%, sometimes even nil where
the evidence reveals that the cause of the labour
hire worker’s injury arose as a result of a sudden,
unexpected departure from the host’s established
system of work, such that the labour hire
employer was not in a position where it could
reasonably intervene to protect its
worker’s safety. In most instances, labour
hire employers may not be found liable for injury
to their employees arising from concealed or very
minor defects at the host’s workplace if a
reasonable system of inspection would not
have revealed it. Whilst the labour hire
employer should always make appropriate inquiries
of the host to ensure it has a safe system of work,
absent prior knowledge of any shortcomings, the
labour hire employer’s duty of care does not
normally extend to addressing the
effectiveness of the measures put in place by
the host to enforce its safe system of work. Now beyond those
considerations where the labour hire employer’s
share of the liability was nil, or well below 25%,
an analysis of the cases discussed today revealed
a number of general principles which offer
guidance in determining liability apportionment
between the labour hire firm and the
host employer. Those factors include
what were the respective degrees of access to
the premises where the incident occurred as
between the labour hire employer and the host, and
what was the labour hire employer’s opportunity to
inspect those premises? For example, if it’s the
case the labour hire firm had a site office at
the employer’s premises, then that consideration
might result in a greater share of the liability being
borne by the labour hire firm. What were the employer
and the host’s respective states of knowledge
of the hazard? For example, if the host
was aware of a particular hazard or reoccurring
issue at its premises in circumstances where it did
not inform the labour hire firm of that hazard, then
that state of affairs may well result in the labour
hire employer bearing a share of the
liability above 75%. How long had the labour
hire employee been working at the host premises? Did the labour hire
employer have an ability independent of the host
to prevent or avoid the hazard by itself or did
it require the consent or approval of the host? This is sometimes called
the employer’s capacity to shield the employee. How long had the relevant
hazard been in existence at the host premises? Had any prior injury or
incidents arisen from the same hazard there? Was the particular hazard
at the host premises a one-off event, or a
constant occurrence? Was the employee injured
in the course of his or her duties, normal duties,
or did those duties being performed at the time of
the incident differ to what was usual for that
employee to perform at the host premises? For example, if a host
employer required a labour hire worker to perform
duties at its premises which materially
differed to the position description supplied to
the labour hire firm at the time of the
worker’s placement, then that state of affairs
may result in the host bearing a portion of
the liability above 75%. Was there any significant
difference in the employee’s ability to
draw the hazard to the attention of the host, as
compared to his or her employer? For example, labour hire
workers placed at a host’s remote area worksite where
there is a lack of mobile coverage, means that the
labour hire employer may not be readily or
immediately contactable in contrast to the host. Who was responsible for
the labour hire worker’s training and instruction? Was the non-delegable duty
owed by the employer one that could be discharged
in circumstances by simply doing nothing at all, such
as a case where a casual or unforeseeable act of
negligence on the part of the host employer gives
rise to the worker’s injury? What were the respective
roles played by the employer and the
host in devising, instituting and
maintaining the system of work that was
found to be unsafe? Which party was in
control of the premises? Which party supplied any
plant or equipment to the employee required for use
in carrying out the work at the time of injury? In its determination of
liability apportionment in a labour hire matter, the
court will typically have regard to the documented
agreement or contract entered into between the
labour hire firm and its client. Often, agreements of
this type may set out the various responsibilities
and obligations of the labour hire firm and the
host in relation to the matters relevant to the
labour hire worker’s safety, such as which
party is responsible for induction training and
supervision of the worker. The agreement may also
deal with rudimentary matters, such as which
party should the labour hire worker approach in
first instance if he or she encounters a hazard or
problem with their duties. It may also deal with
which party is responsible for maintaining and
repairing damaged plant and equipment. The existence of these
types of contractual provisions may have a
significant outcome on the liability apportionment,
and therefore labour hire firms need to be
mindful that they could potentially increase their
exposure to liability if they agree to be
contractually responsible for matters which are
typically within the host employer’s sphere
of control, such as day-to-day
supervision of the worker’s duties at
the host premises, or being responsible for
training the worker in the intricacies of the
host’s system of work, plant and equipment. Labour hire employers
should ensure they are fully aware of the extent
of their contractual obligations, and also
their client’s contractual obligations when it
comes to hiring out their workers and, if
any doubts arise, labour hire firms are
well advised to seek legal advice promptly. Labour hire companies also
need to be mindful of the nature of the service they
are contracting to provide for their clients. In other words, is the
labour hire firm entering into a contract with its
client to provide labour hire services or,
alternatively, is the labour hire firm
contracting to provide additional services to its
clients above and beyond the provision
of labour hire, such that a contract
between subcontractor and principal may arise? This was the scenario for
consideration in Unilever Australia Limited v Pahi,
a 2010 decision of the New South Wales
Court of Appeal. In this case, the injured
worker was employed by a labour hire agency
ESP Tecforce. He was sent to work as a
packer at Swire Cold Storage. That company had
contracted with Streets Ice Cream to repackage
some of its products. The worker developed
carpal tunnel syndrome whilst working on a
production line at Swire’s premises. Now, under the agreement
entered into between ESP and Swire, a portion of
the cold room at Swire’s premises was specifically
designated for ESP workers to carry out their duties. In addition, ESP employed
its own project manager who was based on site
at Swire’s premises on a full-time basis. In first instance, the
trial judge found each of the defendants, Streets,
Swire and ESP negligent, and liability was
apportioned equally between them. On appeal, the decision
of the trial judge on liability was reversed,
and the Court of Appeal found that
neither Streets, nor Swire had breached
their duty of care to the injured worker. In arriving at
its findings, the Court of Appeal
observed, first, having engaged a competent
contractor in ESP, Swire was not obliged to
provide or supervise a safe system of work to
ESP or its employees. Secondly, ESP designed
the system of work and retained supervisory
control over its daily implementation. By contrast, Swire gave
no instructions to ESP’s employees as to how the
work was to be carried out. Having regard to the
above considerations, the court determined that
the worker’s employer here, ESP, should be
entirely responsible for the worker’s injuries
because it provided a whole service to Swire,
rather than simply the supply of labour. It’s quite clear from the
wide ranging authorities discussed today that the
law surrounding liability apportionment is
often complex, and the ultimate findings
on the respective culpabilities of the
labour hire company and the host may well be
influenced by how those parties’ evidence
unfolds at trial. For this reason, to
give greater certainty, and also to minimise
unnecessary costs, it is common for the
workers’ compensation insurer to the labour hire
employer to negotiate a private agreement on
liability apportionment with the host
ahead of trials. This happened in the
case of Thomas v Trades & Labour Hire
Pty Ltd & Anor, a 2015 decision of
Queensland’s Supreme Court. HopgoodGanim’s Insurance
and Risk group acting for WorkCover and the
labour hire employer, were successful in
defending liability in this case. The case is currently
the subject of an appeal. In brief, the plaintiff
suffered a personal injury when a truck’s tailgate
gave way and fell onto his foot. In finding for
both defendants, the court observed that
the plaintiff was – that the manner in which –
the court found that the plaintiff was well-aware
that the manner in which the plaintiff operated the
truck’s tailgate caused its hinge to break. The court also found that
the plaintiff was aware that he should have stayed
well-clear of the broken tailgate but, instead, he
approached it and pushed it, resulting
in the injury. Therefore any breach of
the labour hire employer’s duty in relation to the
provision of a reasonable system of work was not
causative of the injury. In finding for both the
labour hire employer and host in this case, there
was no requirement for the judge to arrive at
any formal decision on liability apportionment
because a private agreement on those matters
had already been entered into between WorkCover
and the host. In addition to enabling
the defendants to work more closely together in
defeating the plaintiff’s claim, considerable
savings in costs and resources were achieved
by virtue of there being a significant reduction of
the number of issues in dispute for consideration
by the court, and a commensurate reduction
in the trial’s duration. Put simply, if the labour
hire company and the host can privately agree on
liability apportionment well ahead of trial, then
they are often able to focus their fire on
the plaintiff’s case by sharing intelligence and
resources so that they are better able to defend or
refute various aspects of the plaintiff’s case. Privately negotiating
liability apportionment, where possible, also
enables the labour hire employer and the host
to limit or curb their exposure, as well as
avoiding the publicity which would otherwise be
generated by the court handing down a decision on
liability apportionment as part of its
public judgment. That ends the formal
part of today’s webinar. Both Claire and myself
would welcome any questions from members
of the audience.>>Mr Ironside: All right, thank
you very much for that, Rob. Okay, so we do have a
couple of questions we will go through. Rob, the first
one is for you, if you could answer
this for us please, and the question is, “For
a long term labour hire assignment, how regularly
should site inspections be carried out?”>>Mr Tidbury: That’s a
great question Michael. As a general
rule of thumb, site inspections should
be carried out at least yearly if not six monthly,
or whenever there is a substantial change to
the host’s premises, their system of work, or
the duties the labour hire worker is required
to perform. Now, it’s important that
these inspections are always contemporaneously
documented and completed and any issues or
requisitions identified in the inspection should be
followed up and attended to. Now if there’s a
significant issue identified in
an inspection, or if a reoccurring
issue is occurring, is happening at the
host’s worksite, then that state of affairs
may well warrant more regular inspections of the
site to be carried out to ensure that the issue has
been properly addressed and rectified. Thank you.>>Mr Ironside: Fantastic,
thanks for that. Claire, I’ll get you to
answer question two if you don’t mind. The question is, “What
should labour hire employers do if they
employ a worker who discloses a medical
condition or injury during the recruitment process?”>>Ms Bruggemann:
Thanks Michael. As soon as a labour hire
employer is aware of an injury or condition that
may impact on a potential candidate’s ability
to safely perform work duties, the duty of care
at law is higher with respect to Workplace
Health and Safety. The labour hire employer
should immediately notify the host employer of the
candidate’s limitations. They should ensure that
the host employer’s system of work enables the
candidate to safely undertake their
work duties. So, for example, they
might require additional assistance from
co-workers, or additional safety aids,
or a change to the system of work might be required. It’s important though that
it can be arguable if the labour hire employer is
aware of a pre-existing medical condition or
injury and does not disclose that to
the host employer, then the labour hire
employer could bear a greater portion
of the liability. So it could go
over that 25% mark.>>Mr Ironside:
Excellent. Thank you. I think what we’ll do
is we’ll have one more question and, Rob,
I’ll go back to you. “Would it make
any difference to apportionment if the
labour hire employee was injured at the host
employer’s premises due to the negligent acts of
another labour hire employee?”>>Mr Tidbury: That’s a
very interesting question, Michael, and it’s one that
we do occasionally see from time to time. So does it make
any difference to apportionment if the
labour hire worker is injured at the host
premises due to negligence by another labour hire
employee employed by the same firm? Well, we would argue that
it potentially may not make a difference. If the host employer
is responsible for the premises, they provide the
equipment involved in the incident, they created
the relevant work systems relevant to the incident,
they exercise control, if they were responsible
for training the negligent labour hire employee then
we would say that the host employer should still be
found liable to a greater extent than the
labour hire employer. I’m aware of at least one
case handed down by the courts in the last five
years where this type of scenario has
occurred, Michael, and that was Pang v
P&M Quality Smallgoods. Now, in that case a labour
hire employee was injured when she was struck from
behind with a heavily loaded trolley being
pushed by another labour hire employee who was
employed by the same labour hire firm. Because the host employer
was responsible for the premises, provided the
equipment involved and trained both employees,
the court found that the host employer was still
ultimately very much in charge of the system of
work and in a position to readily exercise control
over the state of affairs surrounding the accident. For these types
of considerations, liability was apportioned
90% against the host and 10% against the
labour hire employer.>>Mr Ironside: Fantastic. Thanks, Rob. Now, there’s been a few
questions that have just come through recently, but
what we’re going to do is we’ll get those questions
ready for the presentation when we put in on the
website in about a week’s time or so, so each of the
questions that have been asked today we will have
the answers to those. I would like to thank
both Robert and Claire for presenting today. Thank you all for coming
along and I hope you took something out of it. Thank you very much and have a great day.