Host employer liable for failure to supervise even though work system safe Host employer liable for failure to supervise even though work system safe

Host employer liable for failure to supervise even though work system safe

29 September 2016 | Public & Product Liability

In Issue

  • Host employer’s liability forinjuries sustained by worker whilst lifting 25kg bags of product into a hopper
  • Liability of employer and host employer

The Background

The respondent alleged that she sustained personal injuries whilst working as a labour hire employee at the appellant’s veterinary supplies manufacturing business.  The respondent was lifting 25kg bags of product into a hopper, via an adjustable trolley / lift, when she sustained a back injury. In dispute was the reasonableness of the system of work devised by the appellant for this particular task, whether the respondent followed that system and whether the appellant properly supervised that system of work. The exposure of the respondent’s employer was also in issue, together with quantum.

The Decision at Trial

The trial judge found that whilst the appellant had devised a safe system of work for the moving and emptying of the bags, particularly with the use of an adjustable trolley / lift, it failed to properly supervise that system. The respondent was awarded damages in the sum of $588,515.

The Issues on Appeal  

The appellant contested the trial judge’s findings on breach of duty and on contributory negligence. Quantum was also in dispute.

The Decision on Appeal  

The majority of the Court of Appeal was satisfied that whilst the respondent had been trained in the safe system of work, she routinely did not carry out the task in the manner in which she had originally been instructed and instead improperly lifted the bag to empty it. The Court of Appeal noted that the unsafe practice adopted by the appellant continued without modification or correction by the appellant.

The Court of Appeal upheld the finding that there was insufficient supervision of the system of work and observed that even a low level of supervision would have exposed the incorrect method that the respondent had adopted, and enabled it to be corrected. That failure to supervise was therefore causative of the respondent’s injuries.

The Court of Appeal reviewed the evidence relating to contributory negligence and determined that since the respondent’s co-worker (who was responsible for originally training her) was present in the same room as the respondent was working, and failed to ensure that the correct procedure was adopted, it was open to the respondent to conclude that she was carrying out the task properly. The finding of no contributory negligence was upheld.

The Court of Appeal rejected the argument that the respondent’s employer (who was not a party to the proceedings) faced liability on the basis that reasonable care on the part of the employer did not extend to supervision of the appellant’s supervisory regime.

The Court of Appeal did not  disturb the trial judge’s finding on damages.

Implications For You 

This decision confirms that it is incumbent upon a host employer to ensure that its host employees are properly supervised in undertaking the host employer’s safe work systems. This decision also confirms that a labour hire employer will not necessarily be held liable if the host employer does not properly supervise the host employee.

Jurox Pty Ltd v Fullick [2016] NSWCA 180

Amy Lucas

Amy Lucas

Senior Associate