Untangling the web between occupier’s and employer’s obligations Untangling the web between occupier’s and employer’s obligations

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Untangling the web between occupier’s and employer’s obligations

13 March 2019 | Contractors' & Host Employers' Liability

Apportionment of liability between an occupier and an employer.

In Issue

Breach of occupier’s and employer’s duties and apportionment of contribution between them.

The Background

David Ford (worker) was employed by Elmore Haulage Pty Ltd (employer) as a truck driver. His duties involved driving B-Double trucks to transport livestock between farms, saleyards and abattoirs throughout Australia.

In March 2014 the worker was using a wash bay at a saleyard to clean animal waste from his trailer when the fitting at the end of the hose blew off and struck him in the face, causing him to lose his left eye (incident).

The saleyard was owned and occupied by Snowy Monaro Council (council). The council had exclusive control of the pump and the wash bay system. The employer had control over the equipment the worker used, including the hose fitting.

The worker alleged that a new wash bay pump installed in February 2014 produced increased water pressure which was a cause of the incident.

The worker issued Supreme Court proceedings against the employer and the council.

The matter was heard by Justice Keogh in a seven day trial from 20 November 2018.

The employer admitted liability, however, the council defended the claim on the basis that the ill-fitting clamp used by the worker (which was supplied by the employer) was the real cause of the risk and that there was no history of prior accidents or injuries of this nature at the saleyards.

The Decision at Trial

His Honour accepted the incident occurred as a result of the significantly higher water pressure achieved by the new pump when used in combination with the worker’s equipment.

His Honour accepted it was reasonably foreseeable that a truck driver whose equipment failed might suffer catastrophic injury and that a reasonable person in the council’s position, having made a material alteration to the wash bay system which resulted in an increase in pressure, would have taken precautions against the risk of harm created by the change it implemented.

His Honour concluded the council breached the duty it owed the worker by failing to inform transport companies and drivers what equipment was safe to use at the wash bays, failing to warn transport companies and drivers of the risk of high water pressure and of the use of incompatible equipment, and failing to repair the faulty tap.

His Honour also concluded a reasonable employer would have anticipated that conditions such as water pressure might vary between different saleyard wash bays, or over time at a particular saleyard, and would have implemented a system to provide equipment compatible with different conditions which its drivers might encounter.

His Honour ultimately found the employer and the council had breached their respective duties to the worker, and assessed contribution equally between them. His Honour made no finding of contributory negligence against the worker.

Implications for you

This decision is a reminder that employers and occupiers can have separate and distinct obligations to a worker, and that care must always be taken when analysing which party’s breach has caused a worker’s injuries. This is particularly so when an employer’s equipment is being used in conjunction with infrastructure provided by an occupier.

Ford v Elmore Haulage & Anor; VWA v Snowy Monaro [2019] VSC 58

Jacob Luca

Jacob Luca

Senior Associate