Labour Hire Lessons for WA: a Pain in the Neck?


The Queensland Supreme Court recently ruled on an interesting personal injury negligence claim which importantly also shines a light on the OH&S policies of principals and their implications for labour hire contractors, in the case of Marc Jacob Love v North Goonyella Coal Mines Pty Ltd ACN 010 912 526 and Wilson Mining Services Pty Limited ACN 003 948 605 [2017] QSC 140.

Background

On 12 August 2010, while working at the Goonyella Mines site in Central Queensland, the worker was struck in the back of the head by a piece of falling machinery. He sustained a severe neck injury as a result.

For the purposes of the Coal Mining Safety and Health Act 1999 (Qld) Goonyella Mines (Goonyella) was the occupier and operator of the mine where the accident occurred.

The worker and a co-worker (Mr Saliba) were labourers, performing roof bolting work on the site. They were employees of Wilson Mining, a sub-contractor to Goonyella exchanged as a labour hire provider.

The worker and Mr Saliba had been performing roof bolting work pursuant to a plan made by Goonyella and using equipment supplied by it. They had used two types of roof bolting machines prior to the date of the accident. Those machines were unavailable at the time of the accident, and a third machine was used that day. This machine required a supply of water to flush the drill hole and a constant supply of compressed air to drive the pneumatic drill motor and leg extensions.

As the worker and Mr Saliba were repositioning the machine, the air pressure dropped causing the machine to fall and strike the worker who was standing below.

Mr Saliba subsequently spoke to a worker in a Goonyella uniform who had disconnected the compressed air supply for reasons unknown. Somewhat oddly this person was never identified.

To complicate matters, evidence was given that, for “team building” purposes, Goonyella had provided some contractors with their uniform (ie not everyone wearing a Goonyella uniform was a direct employee).

Legal issues

One of the key issues in this case was the extent of any duty of care owed by Goonyella to the worker (an employee of a contractor).

Another, was whether the unidentified worker had been negligent by disconnecting the air supply without checking.

Findings

McMeekin J found that the unidentified worker had been negligent, noting that the area had been taped off to warn that Wilson Mining employees were working in the vicinity and considered the disconnection of the air supply carried an obvious risk of harm on the mine site.

McMeekin J also found that there was a no risk management process in place to prevent the sudden disconnection of an air supply, despite drilling and roof bolting being fundamental activities on the mine site.

On the question of duty of care, His Honour referred to the authority of Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16.  In Stevens it was held that a defendant who engages independent contractors to do the same work as the principal’s employees, where there is a risk of injury from the nature of the work and where there is a need for the defendant to give directions about the work to be done and the co-ordination of various activities, the defendant has an obligation to implement a safe system of work.  The duty of the defendant arises because it has created the risk.

McMeekin J noted there were a number of independent contractors on the mine site and this gave rise to the duty of care recognised in Stevens.

His Honour further considered that the duty in the present case was even more extensive and analogous to the duty owed by an employer, in view of the labour hire agreement between Goonyella and Wilson Mining. The evidence was that Goonyella exercised complete control over the worker, including where he worked, the tasks he performed and the equipment used. This control was indistinguishable from that usually exercised by the employer and justified imposing a more extensive duty of care.

Finally, His Honour considered the duty owed was personal and non-delegable given the control exercised over the worker by Goonyella Mines, effectively as a host employer.

Damages

In finding for the Applicant, His Honour awarded damages totalling $1,356,976.87.

Implication for employers and contractors

Clearly whilst primarily a decision in tort, it also serves as a salient reminder to employers whether principal or contractor of the importance of their observance of relevant Occupational Health and Safety (OH&S) policies and procedures.

For the contractor be it labour hire company or another entity providing a service to the principal, fully understanding the OH&S policies in place in the workplace is a first tier issue.   As important however is how the contractor rolls out the OH&S policies of the principal in the knowledge that its employees are bound by these policies and as a result, it is the contractor who is liable in the event of a breach.

Similarly the lesson for principals is to review and ‘double down’ on their existing policies to ensure they are both fit for purpose and fully understood by all employees and contractors bound by them. This was a very serious accident which would clearly be defined as a ‘near miss’, so serious in fact that, in these circumstances Principals ought to give very serious consideration to halting production and conducting concentrated safety training across all aspects of the business, to minimise the possibility of a similar accident reoccurring on site.

The information published in this paper is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.