Host employer of negligent driver employee not liable for injuries - liability transferred pro hac vice to injured worker’s employer.
In issue
- Whether WorkPac was vicariously liable for its employee’s negligence, or whether liability was transferred to Illawarra Coal pro hac vice.
The background
David Ward (the plaintiff) sustained a severe injury to his left elbow whilst he was travelling as a passenger in a Specialised Mining Vehicle (SMV) at the Appin Colliery on 20 May 2021. The SMV was being driven by Adam Carroll, an employee of WorkPac Mining Pty Limited (WorkPac) who had been placed at the mine pursuant to a labour hire agreement.
The plaintiff pursued a claim against the mine operator and his employer, Illawarra Coal Holdings Pty Limited (Illawarra Coal), and WorkPac.
The decision at trial
The Court found that the incident occurred when the SMV passed too closely to a piece of equipment (the salter) stored in a cut-through, causing the plaintiff’s elbow (which was protruding from the SMV) to be crushed between the salter and the SMV. The Court found that Mr Carroll was negligent because he failed to ensure that there was sufficient distance between the salter and the SMV.
The question, then, was which entity was vicariously liable for Mr Carroll’s negligence. The Court found that Mr Carroll’s direct employer, WorkPac, was not vicariously liable for Mr Carroll’s negligence. Rather, WorkPac had transferred to Illawarra Coal effective control of the manner in which the work was done. At the time the incident occurred and having regard to the work Mr Carroll was performing at the time the incident occurred, Illawarra Coal was Mr Carroll’s employer pro hac vice. The Court noted that Illawarra Coal:
- Developed the systems and training for the driving of SMVs and developed the rules which determined how the SMVs should be driven.
- Provided all on-site training, instruction and supervision, including training workers to drive the SMVs safely.
- In respect of the specific task being performed at the time of the incident, assigned the plaintiff and Mr Carroll to that task and assigned Mr Carroll to drive the SMV.
As WorkPac was not vicariously liable for Mr Carroll’s conduct, the plaintiff’s claim against WorkPac failed.
In addition to being vicariously liable for Mr Carroll, the Court found Illawarra Coal negligent in failing to train Mr Carroll to inspect a cut-through before driving through it, and failing to instruct Mr Carroll not to drive very close to the salter.
The Court rejected the defendants’ claim of contributory negligence. Although the plaintiff’s elbow was protruding outside the cabin of the SMV, contrary to the plaintiff’s training, the Court found that the defendants had failed to establish that the plaintiff was engaged in a deliberate course of conduct, taking a risk while allowing his elbow to protrude outside of the cabin.
Implications for you
For host employers and their insurers, this decision is a timely reminder that the exercise of practical control over workers can attract liability, regardless of who employs the workers. Contractual provisions (such as indemnities and obligations to insure) can be of assistance to host employers seeking to minimise their risk exposure. For underwriters, it is important to fully understand the exact nature of the business being underwritten, including the extent to which labour hire personnel are utilised and associated contractual arrangements.
