A recent decision from the District Court of New South Wales has highlighted the importance of a host employer’s duty of care to any labour-hire worker it engages where the work directions and conditions are within the host employer’s knowledge and control.
In Castillo v Premist Framework Contractors Pty Ltd [2019] NSWC DC 6, a labour-hire worker successfully established that a host employer’s negligence caused him to sustain an injury to his left knee.
The labour-hire worker was engaged by the host employer (through the labour-hire worker’s actual employer) to erect plywood formwork for an elevator shaft ahead of a scheduled concrete pour the next day. The plywood sheets being used for the task had been saturated due to exposure to rainwater and ranged in weight from 20 kilograms to 40 kilograms. The labour-hire worker was required to manipulate and secure the heavy plywood sheets inside a part of the elevator shaft, whilst standing on scaffolding that was approximately one-metre off the ground.
The labour-hire worker had asked the host employer for better lighting in the location he was directed to work and for assistance with the heavy plywood required for the task. The host employer failed to accommodate either of these requests.
In the course of completing the work, the labour-hire worker was attempting to manoeuvre a sheet of the plywood when he lost his balance and fell, hitting his head, backside, left leg and left knee inside the elevator shaft.
The labour-hire worker felt ongoing pain in his left leg and left knee as the result of a complex tear of the medial meniscus sustained as a result of the fall.
In its defence, the host-employer argued that the labour-hire worker was contributorily negligent and contributed to his own injury because he didn’t have regard for his own safety, he had failed to observe his surroundings and failed to exercise the necessary degree of caution in the circumstances.
The Court rejected this argument, noting,
At best, if the plaintiff was negligent, which I do not accept, it was a casual act in compliance with a work directive in a flawed work system not of his making and not under his control. (at para. [102])
The host employer also claimed that any damages it was ordered to pay to the labour-hire worker should be reduced because the labour-hire worker’s actual employer should be jointly liable.
The Court rejected this argument too on the basis that the labour-hire worker was assigned to carry out work under the supervision of the host employer’s foreman in an environment with conditions known to the host-employer but not to the actual employer. The Court noted that the dynamic nature of the risks to the labour-hire worker were “within the particular knowledge” of the host employer and arose on an ad hoc basis.
The Court award the labour-hire worker a total of $138,515.06 in damages plus costs.
Lessons for employers
Employers that utilise labour-hire workers must be alive to their duty of care to those workers.
A host employer is often the party responsible for the day-to-day allocation of tasks and supervision of a labour-hire worker and is usually the party in control of the environment and conditions in which the labour-hire worker performs work.
Despite not being the worker’s actual employer, a host employer still has obligations to a labour-hire worker, including a duty of care to provide a safe working environment.
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