Hybrid employee fails to establish an employer’s duty of care owed by “host” employer, but wins on general duty case.

May 15, 2018

Pocock v Citi-Steel Pty Ltd [2018] QDC 81

 

Link - https://archive.sclqld.org.au/qjudgment/2018/QDC18-081.pdf

 

Facts

Pocock was in his first year of working for a company as a driver / small crane operator.  He almost exclusively worked for the defendant via a labour contract between his employer and the defendant.

Usually a forklift unloaded steel plates, but it was not available for a late in day delivery , so Pocock had to use a small crane to undertake the unload.  Due to how the steel was loaded, it was difficult and required manual effort to slide the steel plates, causing injury to Pocock’s shoulder.

Quantum agreed at $160,000. No employer common law claim was able to be made due to 5% threshold issue.

At issue was whether defendant owed Pocock a duty of care, was it breached and if so, was the breach of it causative of the injury.  Contributory negligence was also claimed.

 

Liability

A general duty of care was found as the defendant was aware of the special circumstances of no forklift being available for the unload and Pocock’s lack of experience using the crane for unloading steel plates.

It was not analogous to an employer duty via an argument the labour hire employer was not on site and the contracting party acted as if it was the employer, as this was distinguished due to the circumstances here of the employer being next door to the contractor and providing all training.  Further the drivers had some control over the manner in which they ordered deliveries.

The defendant alleged it owed a duty to simply ensure the steel was loaded safely.  They did not train the drivers and should be able to assume they knew how to operate the crane.  This was rejected.

The duty owed included in this case included changing the delivery time to when a forklift was available, or if not possible, giving instructions to the driver to minimise the risk of injury.  This arose due to the rare circumstances of steel plates being unloaded by the crane and the limitations that entailed.

 

WHSA

A duty of care under the WHSA was not found to be imposed in these circumstances, as the duties were all encompassed within the general duty.

 

Contributory negligence

Pocock was trained to be aware of the safe use of the crane and directed if he had any difficulties with the unloading to call the supervisor.

Despite his difficulty with reading and limited experience, he did not follow the direction to call the supervisor, so was held 25% contributory negligent for the accident.

 

His damages verdict after the 25% reduction became $120,000.  Costs to be decided separately.

 

Takeaway

This case shows that despite a worker wearing a uniform of the host employer, almost exclusively working for them and needing to follow their directions on deliveries, the host employer will not have the higher employer duty of care where it can show it did not have full control, for example over training or delivery timetabling, as was done here.

A full examination of the relation ship is required.

 

It seems to me it was however, even here, a close argument a higher duty was owed given the almost exclusive use of the worker made by the host employer.  The failure to enquire of their crane training and very short on the job training with co-workers also contributed to fault here.

 

Disclaimer – This article is designed to share knowledge and should not be relied upon as legal advice.

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