This article highlights the
Facts of the case
The Plaintiff in Parkes v
The Plaintiff was an employee of the second defendant,
On
The Plaintiff was working with two other labour hire employees in obtaining scheduled oil samples ('SOS').
The Plaintiff was standing on a raised tread component on the track, with another worker (
It is then inferred that in the process of lifting and lowering the dozer blade,
There was no dispute that
The Decision
The key issue related to whether (or, which) one of the defendants was vicariously liable for
It is important to note - common law in
The Court rejected Mt Owen's argument that only an employer (in this case, Titan) can be personally liable for a breach of a non-delegable duty owed to the Plaintiff as its employee.
Citing
Mt Owen argued that this was not a case to which TNT could apply, as Titan had:
-
maintained comprehensive occupational health and safety policies,
- conducted risk assessments and had supervisors on site, and
- employed workers who are capable of working independently.
Mr Kemp had effectively been absorbed into Mt Owen's workforce, having been in a position equivalent to the full-time employee for three years.- Mt Owen's risk assessment and job safety analysis had controlled both the allocation and performance of work involving the SOS.
- Mt Owen was entitled (and had the capacity) to direct both what labour hire employees do, and how that work is to be done.
- It was not shown in the evidence that the safety policies developed by Titan had any practical impact on either the performance of the work, or the capacity of the host employer to control it.
- CFMMEU v
Personnel Contracting Pty Ltd [2022] HCA 1,
The Court rejected this argument, indicating that
Weight was also placed on the fact that the workers were supervised by a senior employee of Mt Owen, and that the risk assessment and system of work policies to be followed at the mine were those of Mt Owen (not Titan).
It was ultimately decided that Mt Owen was vicariously liable for the negligence of
Key Findings
The following factual findings were relevant to the decision:
This did not mean that Titan was not liable, though.
The Court also decided that as the employer of diesel mechanics in the mining industry, Titan's comments regarding foreseeability, risk of harm and available precautions are similarly applicable.
As such, apportionment was determined at 80% Mt Owen and 20% Titan.
Key takeaways
The decision in Parkes v
A host employer is not secured by the fact that they have hired skilled labour capable of working independently, when in reality they are actually supervised and directed in their work.
This decision also affirms the principle that vicarious liability is not dependent on contractual arrangements, but rather on a question of fact. The finding on vicarious liability does not appear to set a deeming principle whereby the negligent worker becomes a legal employee of a host employer.
The decision in Parkes v
both of which reinstate the objective interpretation of the contract as being determinative of an employee-employer relationship. In this case, Titan remained the legal and general employer of the negligent worker,
Footnote
1 [2022] NSWSC 909 citing Oceanic Crest Shipping Co v
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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