Pro hac vice: Host employer found vicariously liable for worker’s negligence

06 September 2022

Pursuant to the pro hac vice principle, the occupier of a mine was found vicariously liable for the negligence of a worker engaged at the mine.

In Issue

  • Was the occupier / host employer liable in negligence to the plaintiff?
  • Was the labour hire employer liable in negligence to the plaintiff?
  • Was the plaintiff contributorily negligent for the harm?
  • Who is vicariously liable for the worker’s negligence?
  • How should liability be apportioned between the tortfeasors?

The background

Mr Parkes (plaintiff) was working at a mine in the Hunter Valley as a diesel mechanic. The first defendant, Mt Owen Pty Ltd (Mt Owen) was the proprietor and occupier of the mine. The plaintiff was employed by Titan Technicians Enterprises Pty Ltd (Titan), a mining services and labour hire provider that was engaged by Mt Owen to provide labour at the mine.

On 29 July 2017, the plaintiff was working a nightshift at the mine under the supervision of a Mt Owen supervisor, Mr Wallace. The plaintiff was tasked with obtaining a hydraulic oil sample from a bulldozer, while a Mr Kemp (another tradesman employed by Titan) was appointed as the person in charge of the operation. Mr Kemp was in the cab of the bulldozer, operating it and its attached equipment.

In order to obtain the sample, the plaintiff stood on the grouser plate of the dozer track. Though Mr Kemp ought to have seen the plaintiff, he proceeded to operate the bulldozer equipment such that the plaintiff’s right leg was crushed between the track and the edge of an inspection platform.

The plaintiff claimed damages against Mt Owen and Titan. Titan brought a cross-claim against Mt Owen for statutory contribution and indemnity. Titan argued that while it was the employer of Mr Kemp, Mr Kemp’s employment had been transferred to Mt Owen on a pro hac vice (“for this occasion only”) basis.

The decision

Was Mt Owen liable in negligence to the plaintiff?

Mt Owen denied that it had breached its duty of care to the plaintiff, relying on both:

  • a risk assessment procedure requiring the operator of the vehicle to communicate an intention to initiate vehicle movement, and ensure that movement was not initiated until the area was clear; and
  • a job safety analysis (JSA) signed by both the plaintiff and Mr Kemp which identified 'unplanned movement' as a hazard.

The Court was satisfied that Mt Owen was negligent, finding that the JSA was deficient in that it should have spelt out the procedure to be followed if it were necessary to operate a hydraulically driven implement to obtain an oil sample; and should have clarified that movement should only occur while other tradesmen were beyond the footprint of the bulldozer.

Was Titan liable in negligence to the plaintiff?

As an employer of diesel mechanics within the mining industry, the court held that Titan would have been aware of the foreseeability of the accident, the significance of the risk and the precautions available. It therefore found Titan negligent on the same basis as Mt Owen.

Was the plaintiff contributorily negligent?

The Court found there was no evidence that the plaintiff initiated the dozer movement, and the plaintiff hadn’t been instructed not to stand on the track of the bulldozer to perform work. There was no contributory negligence.

Who is vicariously liable for Mr Kemp’s negligence?

While Titan was Mr Kemp’s employer, it argued that Mt Owen should be vicariously liable for Mr Kemp’s negligence on a pro hac vice basis. While the Court acknowledged that the pro hac vice principle was rarely employed, it accepted the submissions of Titan, finding that the principle applied on this occasion because Mr Kemp had been on the Mt Owen site for over three years, and Mt Owen exercised power and authority over the way Mr Kemp performed his work – requiring Mr Kemp to follow Mt Owen’s training requirements and JSA, and to follow the authority of Mr Wallace, who supervised his work and could have intervened, but didn’t. Furthermore, Titan did not retain any control over the work tasks allocated to Mr Kemp.

How should liability be apportioned between the tortfeasors?

The Court apportioned liability as follows:

  • 60% to Mr Kemp (for which Mt Owen was vicariously liable pro hac vice);
  • 20% to Mt Owen; and
  • 20% to Titan%.

Implications for you

The conventional view is that where there is a well-established basis for vicarious liability (such as the employee/employer relationship), vicarious liability should not be imputed to a third party. In a similar vein, the concept of dual vicarious liability has been rejected in Australia.

Against this background, the court’s decision is relatively novel, and is likely to result in an increase in pro hac vice contribution claims by labour hire employers against host employers. The decision will be of interest to parties conducting business through labour hire, and liability insurers.

Updated 9 May 2023: On 26 April 2023, the NSW Court of Appeal dismissed an appeal by Mt Owen against the finding that it was the employer of the injured pro hac vice, and also dismissed a cross appeal by the injured worker’s legal employer as to the attribution of liability ascribed to it.

Parkes v Mt Owen Pty Ltd & Anor [2022] NSWSC 909

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