Mt Owen Pty Ltd v Parkes [2023] NSWCA 77
Background
The Plaintiff, Mr Glen Parkes, brought a claim for damages for injuries suffered whilst employed by Titan Technicians Enterprises Pty Ltd (Titan) and working at the Glendale Coal Mine (the Mine), which was owned and operated by Mt Owen Pty Ltd (Mt Owen). Titan was a labour hire company that specialised in mining services.
On 29 July 2017, the Plaintiff was performing maintenance on a Caterpillar D10 bulldozer in the Mine as part of a 3-man nightshift crew under the supervision of a Mt Owen supervisor, Mr Wallace. All three tradesmen were employed by Titan. One of the tradesmen, Mr Kemp, was appointed by Mr Wallace as the lead in charge of the operation.
The Plaintiff was injured when Mr Kemp dropped the blade of the bulldozer suddenly, causing the track on which the Plaintiff was standing to flick up and crush his right leg between the track and the edge of the access platform beside the cabin of the bulldozer.
First Instance
At first instance, the matter was heard in the Supreme Court of NSW. The Plaintiff claimed damages against Mt Owen and Titan. Neither Defendant disputed that Mr Kemp’s act had been negligent.
The Plaintiff claimed that Mt Owen (and not Titan) was vicariously responsible for Mr Kemp’s negligence and that Mt Owen breached its own duty of care to the Plaintiff.
Mt Owen asserted that Titan (as the employer) was vicariously liable for Mr Kemp’s negligent act, and that Titan (as the employer) breached its duty of care and was at least partly responsible for any damages payable to the Plaintiff.
Campbell J found that at all material times Mr Kemp was the employee of Mt Owen pro hac vice (on this occasion only) and that it was therefore vicariously liable for Mr Kemp’s negligence.
The judge also found that both Mt Owen and Titan breached their own duties of care to the Plaintiff. He apportioned liability as to 60% for Mr Kemp’s negligence (for which it was found that Mt Owen was responsible) and as to 40% to be shared equally by Mt Owen and Titan. A claim for contributory negligence was dismissed and not challenged on appeal.
On Appeal
The primary issues on appeal were whether the trial judge was correct to find that:
- Mt Owen was vicariously liable for the negligence of Mr Kemp
The Court was satisfied that Mt Owen had the authority to exercise control over the way Mr Kemp performed his work. The authority extended not merely to the specific tasks to be carried out, but as to the manner in which they were to be carried out.
Additionally, the detailed safety requirements set out in a Job Safety Analysis (JSA), and evidence that Mr Kemp was subject to direction by Mt Owen’s supervisors, demonstrated a transfer of control to from Titan to Mt Owen.
The Court determined that Mt Owen breached its direct duty of care to the Plaintiff and found that the trial judge identified and correctly applied the pro hac vice principle, that Mr Kemp was operating as a de facto employee of Mt Owen at the time of the injury to the Plaintiff.
2. Titan, as the Plaintiff’s employer, breached its duty of care to him.
The finding of negligence against Titan at first instance was based on the assessed inadequacy of the Mt Owen Job Safety Analysis (JSA). Brereton JA, in the leading judgement on the cross appeal, found as follows:
- Upon consideration of the expert evidence and the evidence of the individual crew members, the JSA need not have stipulated any further instructions.
- Even if the JSA was deficient, it was a Mt Owen document, prepared for a procedure required to be performed by Mt Owen, on Mt Owen’s site and equipment under the direction and control of Mr Owen.
Mt Owen’s appeal was dismissed with costs. Titan’s cross-appeal was upheld by majority and Titan did not incur further liability to the Plaintiff.
Conclusions
The use of labour hire companies is very common in a range of industries. This case highlights the complexities of the modern labour hire environment and, depending upon how arrangements are structured, these findings may have important implications for host employers.
Paramount in these implications is that a host employer is not secured by the fact that they have hired skilled labour capable of working independently, when in reality they are actually supervised and directed in their work.
The employer may not be deemed liable despite the fact that it owes a non-delegable duty of care. If it can be shown that the employer has no say at all in how the work site operates, despite policies and procedures being set in place, then the employer may reduce, or nullify, their liability.