Mt Owen Pty Ltd v Parkes - [2023] NSWCA 77 - NSWCA 2023 case summary — Zoe

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Mt Owen Pty Ltd v Parkes

[2023] NSWCA 77

Court of Appeal (NSW)|2023-03-03|Before: Brereton JA, Kirk JA, Campbell J

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At a glance

Source facts

Court

Court of Appeal (NSW)

Decision date

2023-03-03

Before

Brereton JA, Kirk JA, Campbell J

Catchwords

[2013] NSWCA 250 Deutz Australia Pty Ltd v Skilled Engineering Ltd (2001) 162 FLR 173
[2001] VSC 194 DIB Group Pty Ltd t/as Hill & Co v Cole [2009] NSWCA 210
[1984] HCA 61 Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1
[1954] HCA 11 Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626

Source

Original judgment source is linked above.

Catchwords

[2013] NSWCA 250 Deutz Australia Pty Ltd v Skilled Engineering Ltd (2001) 162 FLR 173[2001] VSC 194 DIB Group Pty Ltd t/as Hill & Co v Cole [2009] NSWCA 210[1984] HCA 61 Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1[1954] HCA 11 Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626[1986] HCA 34 State of New South Wales v Lepore (2003) 212 CLR 511[2003] HCA 4 TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1[2003] NSWCA 47 Top Hut Banoon Pastoral Co Pty Ltd v Walker [2021] NSWCA 296 Zuijs v Wirth Brothers Pty Ltd (1955) 93 CLR 561

Judgment (10 paragraphs)

[1]

Background circumstances

The injury to Mr Parkes occurred whilst he was working on a nightshift in winter, namely on 29 July 2017. He was working with a group identified as "maintenance crew B" under the supervision of a Mt Owen employee, Cameron Wallace. The intention was to carry out a 1,000-hour service on the bulldozer. Of the three Titan employees assigned to the task, Mr Kemp had been designated by Mr Wallace as the person in charge of the operation. The task being undertaken at the material time was to obtain hydraulic and engine oil samples from the machine (referred to as "scheduled oil samples" or "SOS"). There were two methods of obtaining such samples. One method was to use a vacuum pump with the motor off; the alternative method was to take samples by bleeding pipes containing circulating oil while the motor was running. The latter course was adopted. Further, apparently in order to warm and lower the viscosity of the oil, Mr Kemp was in the cabin of the bulldozer and operated the hydraulic system so as to raise and lower the attached implements.

[3]

Contractual arrangements: Titan - Mt Owen

Stewart Thrift, a Titan employee who described himself as both "compliance and training officer" and "operations manager", gave evidence that "all labour arrangements between Glencore [the parent of Mt Owen] and Titan were through purchase orders". He annexed a copy of a purchase order relating to the employment of the plaintiff.
Mark Robinson, who described himself as "purchasing and supply coordinator" employed by Glencore Coal Asset Pty Ltd annexed a series of documents relating to a purchase order dated 14 July 2017. Purchase orders appear to have been issued on a weekly basis for a particular mine identifying an item and quantity of labour, with a "delivery date". No individual was identified, nor were the skills or other requirements of the positions. The second page of the purchase order stated that an attached set of terms and conditions applied, unless there was a separate contract in existence in respect of the "goods and/or services that are the subject of this purchase order". The terms and conditions were generic and many, which applied to both goods and services indiscriminately, would have required a degree of manipulation to have any relevant effect. However, relevantly for present purposes, clause 5 was headed "[p]erformance of the services" and read as follows: "5.1 You [Titan] must, in performing the services: (a) use your best endeavours not to interfere with any of our activities, or the activities of any other person, on our premises; (b) comply with, and ensure that your employees, agents, contractors and subcontractors comply with: (i) all applicable laws, regulations and industrial awards and agreements; (ii) all safety, health and environment guidelines, rules and procedures provided to you by us; and (iii) all directions and orders given by our representative; and (c) ensure that our premises are left secure, clean, orderly and fit for immediate use."
Titan submitted that pars (b)(ii) and (iii) conferred on the appellant authority to give directions and orders to workers provided by Titan. That submission must be accepted: the relevant language of cl 5.1 patently conferred that authority.
The appellant relied upon these arrangements to demonstrate that Mr Kemp was at best a temporary employee working with Mt Owen on a week-by-week basis. However, the evidence contained in the Titan documents supported the finding that Mr Kemp had been working for a period of three years at the Glendell mine prior to the accident. The innominate purchase orders and the terms and conditions attached to them did nothing to contradict that proposition.
The appellant relied upon cl 2.5 in the terms and conditions which required that "services must be performed by appropriately qualified, competent, skilled, experienced and professional personnel and must be rendered with due care and skill". Counsel submitted that "a pure labour hire contract … would not contain such a clause". [37] That proposition depended on the principle that a skilled and experienced worker would not be the subject of instruction as to the manner in which tasks were carried out. For reasons already explained, the legal premise underlying that submission should not be accepted. Further, however, the factual inference should not be drawn. The evidence included documents prepared by the appellant which involved, for each activity, a "job safety analysis (JSA)". The JSA for the activities undertaken on 29 July 2017 was in evidence. It identified Mr Kemp as the "Person In Charge of Live Testing". [38] It was signed by him. Each box on a check list was ticked and one referring to the provision of "two-way communication equipment" was changed in his handwriting to state that "verbal communication equipment" had been provided to all live-testing personnel.
This evidence demonstrated that (i) Mr Kemp's employment could not aptly be described as temporary; (ii) that he was subject to direction by the appellant's supervisors as to the tasks to be performed, when they were to be performed and their manner of performance; (iii) the appellant imposed detailed safety requirements on their manner of performance, and (iv) the purchase orders confirmed the appellant's authority to undertake all these functions.
It was also relevant to consider Titan's arrangements with its employees. The judge referred to the fact that Titan had its own occupational health and safety policies, which it required its employees to follow, unless the policies of the host were to the same or a higher standard. Titan's document, "Employee Induction - General Information" stated: [39] "As a general rule employees working on Host Company premises are expected to comply with the Host Company's management systems, standards and appropriate permits unless they afford a lower level of protection to that provided by the TTE Management Systems and Standards in which case they should comply with the relevant TTE Policy, System or Standard."
The trial judge accepted that Titan's occupational health and safety policies were "not mere matters of compliance by a corporation working in the coal mining industry". [40] He also concluded that these policies did not interfere with the practical performance of Mr Kemp's work, nor did they impinge on the capacity of the appellant to control it. Titan's policies recognised the authority of the host to set safety standards, and conceded their application, if of a sufficient standard.

[4]

Circumstances surrounding the maintenance work

Mt Owen's supervisor, Mr Wallace, gave the following evidence by way of a statement admitted at trial: "7 Titan employees were not trained by Mt Owen in the trade specifics of how to do their job, including live testing and commissioning tasks. That is to say, they were not taught the work of a fitter by Mt Owen or shown the step by step process of extracting live oil samples and the like. This was assumed knowledge for a qualified maintenance fitter supplied by Titan. Mt Owen did arrange Titan employees to undergo Commissioning and Live Testing Competency Assessment though, to check that qualified maintenance fitters could comply with the Commissioning and Live Testing safety procedure in use at the Mine. 8 At the beginning of the nightshift on 29 July 2017, during a prestart meeting, I assigned three fitters employed by Titan to the 10:00pm servicing task of [the bulldozer], which included live testing work. The Titan employees were Mitchell Kemp (Mitch), Glen [Parkes] and Timothy Colby (Tim). 9 At the prestart meeting I also assigned Mitch as the service leader and person in charge of the live testing of the bulldozer."
Mr Wallace also gave evidence of checking and signing the JSA prior to the work being undertaken. The JSA was detailed. It covered some eleven pages of which six had four columns headed "Critical steps in activity", "Potential hazards", "Control" and "Responsibility for controls (signature)". On page 7, for example, under the first heading was the step, "carry out maintenance live testing task". It is not necessary to note the potential hazards, but ten were identified including "unplanned movement", "pinch or crush" and "unclear communications". Under the heading "Control" the following points appeared: "• designated person in charge of live testing to manage all activities; • plant and equipment is parked fundamentally stable; • personal locks placed onto live testing sandwich board; • isolation and removal of external energy sources that are not directly involved with live testing; • establish exclusion zone next to operating excavator or dozer tracks; • live testing leader, tradesman and operator in place to complete tasks; • follow the relevant operating/maintenance procedures; • person in charge of live testing is to confirm all persons are out of the machine footprint before any equipment movement is undertaken; • positive communications; • PPE - hearing protection and gloves."
There was an additional aspect to the JSA which was significant in relation to the finding of negligence. Each of the first five of the six pages with columns contained three initials against each item. The sixth page [41] had a further "critical step" added in handwriting namely "live samples - blade move", the potential hazard was identified as "blade movement" and the added control was "stand clear when obtaining hyd oil sample as blade moves". This item was signed (not initialled) by Mr Kemp and Mr Parkes. Mr Parkes gave evidence that he was asked by Mr Kemp to sign it after the accident had occurred but before it had been reported. Understandably, the trial judge drew the inference that Mr Kemp had made this handwritten addition to the typed document after the accident in an attempt to exonerate himself. However, the point for present purposes is that the JSA was a document required and prepared by the appellant, containing detailed direction and control of the steps to be undertaken in the course of carrying out the maintenance on the bulldozer.
The conclusion to be derived from the documentary material was supported by the evidence given by the appellant's supervisor, Mr Wallace. In the course of his evidence in chief, the following exchanges occurred: [42] "Q. Mr Wallace, in the course of your supervision of personnel carrying out maintenance work on bulldozers, and, in particular, taking oil samples, did you see any other fitters standing on the track to do so as distinct from the deck next to the driver's cabin? A. No. … … Q. And had you seen any other fitters standing on the track to obtain an oil sample instead of the deck, what would you have done? A. I would have … intervened. Q. In what way? A. I probably would have stopped what they were doing. Had a bit of a conversation with them about the line of fire, where they were positioning themselves, especially during live testing itself. Possibly suggested just to - to [stand] on the deck as opposed to in a position where they possibly could be in harm."
With respect to the JSA, Mr Wallace gave the following evidence during cross- examination by senior counsel for Titan: [43] "Q. And we know that a JSA was completed for this task during which Mr Parkes was injured, don't we? A. That's correct. Q. And it was your job to look at it and say whether it was satisfactory or not? A. That's correct. Q. And if you'd been unhappy with it and thought it needed to be tightened up and made better, you would have stepped in and done that, wouldn't you? A. That's correct. Q. And you'd do that in relation to any JSA that was required for a particular task, wouldn't you? A. Yes, I do."
Thereafter, Mr Wallace was taken to his statement: [44] "Q In paragraph 22, Mr Wallace, your second sentence is 'had I noticed that on the JSA at the time I would have asked Mitch if he really needed to use the blade, and otherwise suggested he use the ripper to produce oil pressure', what I want to ask you is if you step back and consider what you've said there don't you agree with me that you haven't put it firmly enough, and that the real position is that if you had seen on the JSA that Mr Kemp was intending to use the blade you'd have said, 'Don't do that'? A. Yeah, that's right. Q. And you've expected that he would do what he was told? A. Yes. Q. … You say that you visited the job during the initial phases and you were satisfied with the way the task was being undertaken, and you didn't notice Titan's crew doing anything contrary to the JSA. Again, if you had noticed something being done contrary to the JSA you'd have intervened, wouldn't you? A. Yeah, I would have. Q. And you don't deal specifically there with seeing somebody positioned on tracks, and if you had seen somebody on the tracks during live testing you'd have intervened very firmly, wouldn't you? A. Yeah, that's correct. … Q. … you say you didn't consider any continual supervision of Titan's crew to be required and that Mr Kemp is the nominated person in charge who was responsible to dictate how the work was being carried out, but again even though you nominated him as the person in charge, if you came by and saw something being done wrongly you'd have intervened? A. Yeah, absolutely. Q. And you would have overridden Mr Kemp if he'd argued with you, wouldn't you? A. Yeah, that's correct."
The judge concluded, on the basis of this evidence, that "Mr Wallace in his capacity as a Mt Owen supervisor obviously was of the view that he was 'entitled to tell the employee the way in which he is to do the work': Mersey Docks at 17". [45] Although the judge held that it was not necessary to do so, he concluded that "Mt Owen actually exercised the relevant control", as well as having the legal authority to do so. [46] Those findings were not shown to be erroneous in any respect.

[5]

Findings as to Titan' liability

Having determined Mr Kemp's negligence, the judge deferred the question of vicarious liability for that negligence until after he had considered whether either Mt Owen or Titan breached duties of care which they owed to Mr Parkes.
There was some awkwardness in approaching the matter in this fashion: with respect to vicarious liability, the question was, as noted above, whether Mr Kemp could be characterised as an employee pro hac vice of Mt Owen as the host employer. It is apparent that this characterisation was at the heart of the dispute as to liability. However, in dealing with the position of Mr Parkes, the same conclusion did not necessarily apply. On the other hand, it did not need to apply. As the occupier and operator of the premises, Mt Owen undoubtedly owed Mr Parkes a duty of care. Nevertheless, the submissions for the plaintiff, identified by the trial judge at [63], appeared to assume that Mt Owen was a host employer with respect to Mr Parkes. The trial judge, however, was alert to this issue. Referring to submissions of counsel for Mt Owen that Messrs Kemp, Colby and Parkes were operating as a "Titan team" whom it was reasonable for Mt Owen "to leave to their own devices", [47] the judge noted that Mr Kemp was a long-term "fulltime equivalent" worker in Mt Owen's workforce and had been for about three years prior to the incident. On the other hand, Mr Parkes and Mr Colby were newer, especially Mr Colby, and were accepted as "supplementary workers to take the place of Mt Owen's direct employees who were then on strike". [48] The judge accepted, however, that they worked under the supervision of Mr Wallace, a fulltime senior employee of Mt Owen, and were required to follow the system of work set out in Mt Owen's JSA and risk assessment. The finding that they were part of Mt Owen's Maintenance Crew B was not challenged for the purpose of the cross-appeal: in effect Mt Owen relied upon the same matters raised with respect to its submissions as to vicarious liability in relation to the incorporation of the Titan employees into its workforce. Mt Owen's written submissions on the cross-appeal concluded that the trial judge did not err in apportioning liability to Titan on the basis found, or in finding that such primary liability should be divided equally between Titan and Mt Owen. [49]
The basis upon which the trial judge found direct liability on the part of Mt Owen was the failure to spell out in the JSA the requirement that no implement movement should occur while tradesmen were within the footprint of the bulldozer. [50] That finding was not challenged by Mt Owen. However, Titan challenged both that finding and the finding that "Titan, as the legal employer, is negligent on the same basis". [51] The judge further stated: "77 As an employer of, inter alia, diesel mechanics within the mining industry, Titan would be aware of the matters relevant to my decision about foreseeability, significance of risk and available precautions that I have set out above dealing with the liability of Mt Owen. On the same basis I am of the view that Titan is negligent."

[6]

Evidence as to Titan's role

In its written reply, Titan submitted that Mt Owen in its submissions (and by implication the trial judge) had ignored both the JSA and its implications, and the presence of Mr Wallace, a supervisor employed by Mt Owen, and his evidence to the effect that he had power to control how the task was to be performed. That was true, but was in part explicable by the fact that Mt Owen did not challenge the finding as to its primary liability. Titan also relied upon the proposition that there was "an absence of evidence that Titan ever attempted to interfere, or had cause to interfere, in the performance of work tasks at the premises of Mt Owen and in particular live testing". [52]
To the extent that that was true, it might have been thought that such a position was equally consistent with Titan's negligence as its non-negligence. It was only consistent with an absence of negligence to the extent that it demonstrated that Titan had no power to interfere. The evidence did not support that conclusion. Mt Owen had tendered against Titan an evidentiary statement of Matthew Thrift, Titan's operations manager who was responsible for overseeing the labour coordinator, WHS officer and recruitment consultant. Mr Thrift stated: [53] "Titan management carry out regular inspections of all customer sites, including the Mt Owen site. At the time of 29 July 2017, these inspections were carried out by me, Mr Stephen Freeman, managing director and Mr Stuart Thrift, WHS officer. The inspections were generally carried out twice a week, depending on the number of Titan employees at Mt Owen at the time. We performed these inspections for routine visible leadership, to complete safety inspections and to discuss any concerns with Titan employees as well as the Mt Owen supervisors, superintendents and the contract manager. The inspections took place on the job after approval was sought from the Mt Owen maintenance supervisor. Glencore employees would on occasion attend the inspections with Titan, but generally it would just be attended by the Titan senior representative and the Titan employee(s). Titan employees viewed the live testing procedures during routine site visits."

[7]

Legal principles: liability of employer

The relevant legal principles relied on by the trial judge, not challenged on the appeal, were those set out by Mason P in TNT Australia Pty Ltd v Christie. [54] As Mason P explained at [41], each of the host employer (TNT) and the legal employer (Manpower) owed a non-delegable duty of care to the worker, Mr Christie. The circumstances were summarised by Mason P in the following terms: "It can be seen that the plaintiff and TNT placed themselves in a relationship day in and day out, indistinguishable from that of employee and employer. I am not saying that every client of an employment bureau will assume such a relationship with the person at whose workplace he or she attends. But here the plaintiff had for months been under the daily control of TNT and its managerial staff at the brewery. He was a relatively unskilled labourer. He reported daily to the brewery and everything that he did there was done under the full control of TNT. TNT's relationship was more than that of an occupier of the factory. In all respects relevant to the imposition of a duty of care the plaintiff was in an identical position to that of the four TNT employees with whom he worked."
Apart from the lack of skill, that description applies to the present circumstances. It was of course expressed in relation to the duty of the host employer, a matter which is not presently relevantly. However, it was significant that the degree of control exercised by the host employer in Christie did not derogate from the general duty of care imposed on the legal employer. In TNT, the plaintiff was injured by a negligently serviced or maintained jack. Mason P held: "61 … An employer's duty of care with respect to plant and equipment extends to the exercise of reasonable care in its maintenance and repair. Here the employer (Manpower) chose to delegate the responsibility to TNT and TNT chose to delegate this responsibility to an independent contractor, that is, Crown. But such conduct could not relieve Manpower or TNT of legal responsibility if it could be shown that the plaintiff employee's injury was the result of negligence in regard to the maintenance and repair of the equipment."
Having found negligence on the part of Crown, Mason P further held: "97 Manpower seeks a full indemnity from TNT on the basis of TNT's exclusive control of the system of work. It also invokes … the argument … that Manpower did not have a primary liability to the plaintiff because it did not have the employer's non-delegable duty of care notwithstanding its status as the plaintiff's employer. I have already rejected the latter proposition. And I can see no basis for disturbing the primary judge's apportionment as between the two 'employer' tortfeasors."
As the trial judge noted, the High Court in Leighton Contractors Pty Ltd v Fox [55] stated: "An employer owes a personal, non-delegable, duty of care to its employees requiring that reasonable care is taken. This a more stringent obligation than a duty to take reasonable care to avoid foreseeable risk of injury to a person to whom a duty is owed. While an employer is not vicariously liable for the negligent conduct of an independent contractor, it may incur liability where the negligent conduct occasions injury to its employee. This is because it will have failed to discharge the special duty that it owes to its employees to ensure that reasonable care be taken, whether by itself, its employees or its independent contractors, for the safety of its injured employee."
There is no doubt that the content of the employer's duty of care is variable and may depend upon the circumstances in which it is said to be engaged. Thus, the employer of a tanker driver will not ordinarily be responsible for road hazards negligently created by road authorities or other road users. Similarly, the circumstances in which an employer will be liable for the condition of premises at which a driver delivers goods may also be limited. As this Court held in DIB Group Pty Ltd t/as Hill & Co v Cole, [56] the employer of a tanker driver who fell through the cover over of an inspection pit whilst returning to his truck after adjusting valves which were required to be opened to discharge fuel, was found not to be liable for the injury suffered by the driver.
Further, as Ipp JA stated in Estate of the Late M T Mutton v Howard Haulage Pty Ltd: [57] "Devising and implementing a safe system of work would ordinarily not be an overly difficult task where the worker is working in the employer's own premises. The situation is different where the employee delivers materials over vast distances to several different farms where workplaces, work conditions and equipment differ from farm to farm and where changes can be made at any time by the farmers concerned. In the latter situation, the employer has no real control over the circumstances in which each delivery is made. Due regard must be had to this absence of control when determining what amounts to the taking of reasonable care to avoid exposing employees to unnecessary risks of injury, and what amounts to a safe system of work."
A similar approach was adopted in Top Hut Banoon Pastoral Co Pty Ltd t/as Trustee for the Wakefield Family Trust v Walker, [58] where Gleeson JA held that a shearing contractor was not liable for an injury suffered by an employee in using a timber step into an accommodation hut which came away from the stumps on which it had been placed (and to which it was apparently affixed). The shearing contractor, which travelled from station to station was found not to owe a duty to its employees to have its principal attend every station in advance of the arrival of the employees and conduct an inspection of the accommodation, shearing shed and surrounds. [59]
Although Spigelman CJ dissented in Estate of Mutton, the conclusions reached on the facts in each of these cases may be accepted but they provide no assistance in resolving the present case. In each case the assessment of the content of the duty of care turned on the level of control which it was reasonably practicable for the employer to exercise. In the present case, the ability to exercise control was established. This was not a case where the plaintiff was working at premises, the conditions of which were unknown to the employer, and of which the employer should not reasonably have been aware. Nor was this a case in which the plaintiff suffered injuries as a result of the defective condition of the premises. Rather, it was a case in which the injury resulted from the activities undertaken by other members of the team who were also subject to potential control by the employer. Accordingly, this case must be determined on its own facts.

[8]

Application of principles

Although Titan was not vicariously liable for the negligence of Mr Kemp, Mr Kemp, like Mr Parkes, was an employee of Titan. It therefore had greater control over Mr Kemp than did Mr Christie's employer, including steps which it might have taken to ensure compliance with safety protocols; Mr Kemp was not as beyond the control of Titan as an independent contractor might have been. Focusing, however, on the "special duty that it owes to its employees", Titan was obliged to ensure that reasonable care be taken for the safety of Mr Parkes. As Titan submitted, the JSA was not its document; however, that did not absolve it from responsibility.
The judge provided a careful analysis, including consideration of the opinions of the experts, in concluding that the JSA failed to make sufficiently clear to those undertaking the maintenance work that the controls it imposed with respect to movement of the equipment extended to movement of the implements. [60] Given that, as it appears, none of the three men working on the machine took the view that they had to stand clear of its footprint whilst the implements were manoeuvred, that finding should be accepted.
Titan had accepted its responsibility to take steps to ensure a safe working environment for its employees and, as has been noted, formulated extensive safety protocols which were to apply unless those of the host employer were of an equal or more demanding standard. In order to ensure that that standard was fulfilled, Titan should have been alert to imprecision, ambiguity or uncertainty in the JSA. Accordingly, there was no error on the part of the trial judge in finding Titan liable.
Since both Titan and Mt Owen had the relevant legal authority to impose constraints on the activities of Titan's workers, in circumstances where Titan was able to take appropriate steps to carry out that function, there was no error in attributing equal responsibility to the host employer (Mt Owen) and the legal employer (Titan) for the injury to the plaintiff. Their proportionate liability was relatively low, reflecting the primary culpability of Mr Kemp.
Accordingly, the cross-appeal should be dismissed.

[10]

Endnotes

Primary judgment at [71].
Primary judgment at [76].
Cross-appellant's submissions at [7].
Cross-appellant's submissions at [8] - [20].
Cross-appellant's submissions at [21] - [26].
(2003) 65 NSWLR 1; [2003] NSWCA 47.
[2009] NSWCA 210 at [51]-[54].
Cross-appellant's submissions at [32].
[2021] NSWCA 296.
[2021] NSWCA 296 at [30].
O'Connor v Commissioner for Government Transport (1954) 100 CLR 225; [1954] HCA 11.
First cross-respondent's submissions at [1].
Primary judgment at [5].
Primary judgment at [34].
Primary judgment at [43].
Second cross-respondent's submissions at [9].
First cross-respondent's submissions at [1].
Parkes v Mt Owen Pty Ltd [2022] NSWSC 909 (Parkes).
(1945) 46 SR (NSW) 129 at 131.
McDonald at 132.
(2013) 85 NSWLR 335; [2013] NSWCA 250 at [23]-[33] (Meagher and Emmett JJA agreeing).
(1986) 160 CLR 626; [1986] HCA 34.
State of New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4 at [40] (Gleeson CJ); [106] (Gaudron J); [196] (Gummow and Hayne JJ); [307]-[308] (Kirby J).
(2001) 162 FLR 173; [2001] VSC 194.
Deutz at [110] (footnotes omitted).
(1955) 93 CLR 561; [1955] HCA 73.
Zuijs at 571.
[1947] AC 1 at 23.
Parkes at [84].
Oceanic Crest at 641.
Mersey Docks at 13.
Oceanic Crest at 646.
[2020] NSWCA 41 at [83]-[84].
(1984) 154 CLR 672 at 692; [1984] HCA 61.
Hallmark at [84].
Parkes at [88].
Tcpt, 03/03/32, p 11(3).
JSA, 29/07/17, p 2 (Live Testing Checklist).
Version 1, 19/12/2016, p 4.
Parkes at [101].
JSA, p 9.
Tcpt, 22/06/21, p 131(15)-(40).
Tcpt, p 135(16)-(29).
Tcpt, pp 136(23)-137(11).
Parkes at [99].
Parkes at [101].
Parkes at [65].
Parkes at [66].
Second respondent's submissions on cross-appeal, 23/12/22, par 24.
Parkes at [71].
Parkes at [66].
Submissions in reply, 3 February 2023, par 8(iii).
Evidentiary statement, filed 19 February 2021, par 17.
(2003) 65 NSWLR 1; [2003] NSWCA 47.
(2009) 240 CLR 1; [2009] HCA 35 at [21] (French CJ, Gummow, Hayne, Heydon and Bell JJ).
[2009] NSWCA 210; [2009] Aust Torts Rep 82-022.
[2007] NSWCA 340 at [146] (Hodgson JA agreeing, Spigelman CJ dissenting).
[2021] NSWCA 296.
Top Hut at [23] (Preston CJ of LEC and Stevenson J agreeing).
Parkes at [73]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 April 2023

Parties

Applicant/Plaintiff:

Mt Owen Pty Ltd

Respondent/Defendant:

Parkes

Legislation Cited (1)

Workers Compensation Act 1987(NSW)

Cases Cited (26)

Solicitors: Sparke Helmore Lawyers (Appellant) Denniston & Day Lawyers (First Respondent) Hickson Lawyers (Second Respondent) File Number(s): 2022/00229896 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: [2022] NSWSC 909 Date of Decision: 7 July 2022 Before: Campbell J File Number(s): 2019/133481

HEADNOTE [This headnote is not to be read as part of the judgment] On 29 July 2017, Mitchell Kemp, Glen Parkes and a third worker were undertaking maintenance on a Caterpillar D10 bulldozer at the Glendell coal mine, owned and operated by Mt Owen Pty Ltd (Mt Owen). All three men were employed by Titan Technicians Enterprise Pty Ltd (Titan), but working at the premises of Mt Owen. During the work Mr Parkes was injured when Mr Kemp dropped the blade of the bulldozer suddenly, causing the track on which Mr Parkes 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. Mr Parkes claimed damages against Mt Owen and Titan. Neither party disputed that Mr Kemp's act had been negligent. Mr Parkes 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 Mr Parkes. Mt Owen asserted that Titan (as Mr Kemp's employer) was vicariously liable for his negligent act, and that Titan (as Mr Parkes' employer) breached its duty of care to him and was at least partly responsible for any damages payable to Mr Parkes. Campbell J found that at all material times Mr Kemp was the employee of Mt Owen pro hac vice 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 Mr Parkes. He apportioned liability as to 60% for Mr Kemp's negligence (for which 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. Mt Owen appealed the findings that it was liable; Titan cross-appealed the attribution of liability ascribed to it. The primary issues on appeal were whether the trial judge was correct to find that: (i) Mt Owen was vicariously liable for the negligence of Mr Kemp; and (ii) Titan, as Mr Parkes' legal employer, breached its duty of care to him. The Court held, dismissing the appeal and (by majority) upholding the cross- appeal: As to issue (i) - vicarious liability of host employer By Basten AJA (Brereton and Kirk JJA agreeing): The trial judge correctly accepted that there can be no dual vicarious liability in two principals for the acts of a negligent individual. The judge also correctly held that while an employer is vicariously liable for the negligent act of an employee undertaken within the scope of his or her employment, the employer may not be the legal employer of the worker: [32], [33]. Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626; [1986] HCA 34; State of New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4 applied. Where a worker is undertaking work on the premises of, and under direction from another party, the transfer of control may lead to a shift of liability from the legal employer to the "host employer". While such a transfer has been said to arise only under "exceptional circumstances", modern labour hire arrangements and the statutory regulation of workplace safety may more readily lead to such a finding, depending on the nature and extent of control over a worker: [41], [48]. Mersey Docks [1947] AC 1 considered; Kondis v State Transport Authority (1984) 154 CLR 672; [1984] HCA 61 applied. Mt Owen's authority to give directions and orders to workers provided by Titan conferred by cl 5.1 of the purchase orders issued for labour hire, the detailed safety requirements set out in Mt Owen's "job safety analysis" (JSA), and evidence that Mr Kemp was subject to direction by Mt Owen's supervisors, demonstrated a transfer of control to Mt Owen. Further, Titan required its employees to follow the workplace health and safety policies of the host employer where they were equal to or of a higher standard than Titan's requirements: [56], [58] - [61]. As to issue (ii) - cross-appeal By Brereton JA (Kirk JA agreeing): The finding of negligence against Titan was based on the supposed inadequacy of Mt Owen's JSA which was completed and signed off by Mr Wallace on behalf of Mt Owen before Mr Kemp and the crew commenced work on the bulldozer. Reasonable care did not require that the JSA specifically restate, for oil-testing, a requirement which was already adequately stated in a procedure applicable to the task, that there be no equipment movement while personnel were within the footprint: [17]. If the JSA were deficient in failing to stipulate that implement movement should occur only while the other tradesmen are beyond the footprint of the bulldozer, the deficiency was not causative. It was not proved that, but for the omission of further specification of the correct procedure for oil testing, the accident would not have occurred: [22]. By Basten AJA (dissenting): The legal employer owed a non-delegable duty of care to the worker, the content of which is variable and dependent upon the circumstances in which it is engaged: [74]-[81]. Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; [2009] HCA 35; TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1; [2003] NSWCA 47; DIB Group Pty Ltd t/as Hill & Co v Cole [2009] NSWCA 210 followed; Estate of the Late M T Mutton v Howard Haulage Pty Ltd [2007] NSWCA 340; Top Hut Banoon Pastoral Co Pty Ltd v Walker [2021] NSWCA 296 distinguished. The finding that the JSA failed to make sufficiently clear that the controls with respect to movement of the equipment extended to movement of the implements should be accepted. Titan accepted its responsibility to take steps to ensure a safe working environment for its employees and had extensive safety protocols which were to apply unless those of the host employer were of an equal or more demanding standard. To ensure that their standard was fulfilled, Titan should have been alert to errors and/or omissions in the JSA. Accordingly, there was no error on the part of the trial judge in finding Titan liable: [84]. Since both Titan and Mt Owen had the relevant legal authority to impose constraints on the activities of Titan's workers there was no error in attributing equal responsibility to the host employer (Mt Owen) and the legal employer (Titan) for the injury to the plaintiff: [85].

[2001] VSC 194

[1984] HCA 61

(2013) 85 NSWLR 335

(2001) 162 FLR 173

(1984) 154 CLR 672

(2009) 240 CLR 1

(1954) 100 CLR 225

(1986) 160 CLR 626

(2003) 212 CLR 511

(2003) 65 NSWLR 1

(1955) 93 CLR 561

(1975) 133 CLR 550