Wormleaton v Thomas & Coffey Limited (No 4) [2015] NSWSC 260.

In similar circumstances to the New South Wales Court of Appeal decision of Darling Shire Council v Sweeney, the New South Wales Supreme Court Bench Division recently considered the application of a number of ‘high profile’ principal contractor and employer-employee decisions in the decision of Wormleaton v Thomas & Coffey Limited (No 4) [2015] NSWSC 260.

BACKGROUND

The plaintiff, Mr Wormleaton (“the Plaintiff”), suffered a significant leg injury that required surgical amputation below the knee on 30 March 2009 during the course of his employment as a dogman withy Allstate Labour Hire Pty Ltd (“the Employer”).

Bluescope engaged Transfield Services Engineering Group Pty Ltd (“Transfield”) to upgrade its site. Transfield then subcontracted the dismantling and relocation of a sinter cooler to Thomas & Coffey Ltd (“T&C”).1 Transfield also subcontracted craning work for that task to the Employer, which included the provision of two dogmen (of which the Plaintiff was one). The process was complex and required a number of subcontractors to undertake separate tasks together.

It was accepted that T&C had undertaken to provide all labour, materials and equipment necessary for the disassembly of the sinter cooler and, under the direction of Transfield, were the main sub-contractor in undertaking that ‘complex task’.

It was conceded by all parties that nothing turned on the terms of the various contracts between the respondents and liability was to be resolved at common law (as modified by the NSW CLA legislation).

THE INCIDENT

The Plaintiff was injured when one of the sinter cooler’s beams that he and the other dogman were rigging fell towards him and, as he attempted to escape the falling object, was struck and pinned to the ground by his right leg. The claimant’s right leg was amputated below the knee four days later after unsuccessful attempts to save the limb.

The incident was found to have been caused by two of T&C’s employees prematurely removing bolts that held the subject frame in place prior to it being rigged by the Plaintiff and lifted by the employer’s crane. The act of T&C’s employees removed the only remaining means by which the beam was held in a fixed, upright position and was not in accordance with the steps of the disassembly system.

DUTY OF CARE AND BREACH

Interestingly, Transfield and T&C (who had common representation at the trial) admitted breaching their respective duties of care to the Plaintiff prior to trial. The Employer disputed its liability, however.

Accordingly, his Honour Campbell J considered the liability of Transfield and T&C firstly and then the liability of the Employer.

Principal Contractor-Transfield

His Honour said that Transfield, as the principal contractor, owed a duty of care as described by the High Court decisions of Stevens v Brodribb Sawmilling Company Pty Ltd [1986] 160 CLR 16 and Leighton Contractors Pty Ltd v Fox [2009] 240 CLR 1 in it had a duty to use reasonable care to avoid unnecessary risks of injury and to ensure that the system of work for independent contractors that it engaged was safe.

His Honour said (at [39]):-

“In my judgment, the circumstances of the case including the complexity of the job and the need to co-ordinate the activities of T&C and [the Employer] made it necessary for Transfield to retain and exercise a supervisory power over the operations. It is clear from the evidence that I have recounted that it purported [to]. This is not a case where having organized the activity, Transfield was content to leave “its operation in the hand of independent contractors”.”2

His Honour continued at [40]:-

“Moreover, the language employed by the Court in Leighton Contractors, “to use reasonable care to ensure that the system of work… is safe” bespeaks a personal non-delegable duty which may be taken to arise out of the principal contractors assumption of continuing care, supervision or control for the safety of the system of work…

It is axiomatic that Transfield is not vicariously liable for the casual negligence of the employees of T&C: Sweeney v Boylan Nominees…”

His Honour applied s5B of the Civil Liability Act 2002 (NSW) and held that Transfield were negligent for failing to take the reasonable precaution of:-

i.implementing and adhering to a system that required the sinter cooler’s beams to be rigged before loosening/removing the securing bolts of same;

ii.providing the relevant direction to all workers engaged in the process (ie. employees of subcontractors, ie. The Plaintiff) by way of a written safe work method statement or specific oral direction; and

iii.failing to coordinate the work of its two subcontractors, the Employer and T&C.

The Primary Subcontractor- T&C

His Honour held that T&C were in charge of the disassembly work being done at the time and that its negligence was two-fold in that:-

i.failing to implement and maintain a safe system of work for the removal of the subject sinter cooler beam when it had the means available to do so; and

ii.it was vicariously liable for its employees removing the bolts fixing the beam in a safe position prior to it being rigged (noting that Counsel for T&C admitted that prior to trial) in circumstances where doing so presented an obvious risk of injury.

The Employer

His Honour said that at the outset that the Employer was not negligent simply on the basis that liability had been established against Transfield and T&C and to say that was the case “is not the correct approach” (at [74]).

His Honour also said that where an employee is performing a system of work devised by a principal contractor, the employer’s duty is an “independent obligation to satisfy itself of the safety of the system”.3

His Honour said (at [76]):-

“The expression “system of work” is usually taken as suggesting an ongoing series of similar of (sic) somewhat similar operations… The obligation, however, extends to the provision of a safe system of work in relation to a single isolated operation, at least when the circumstances are such that it is not reasonable to leave the matter in the hands of an experienced tradesman: Speed v Thomas Swift & Co (1943) KB 557.”

His Honour also cited, with apparent approval, an extract for Glass, McHugh and Douglas’ text, The Liability of Employers at p 23:-

“Simple uncomplicated operations such as the method of using his tools of trade by a tradesman could not reasonably require the provision of a system by the employer. Nor will there be much scope for alleging the necessity for a system in the case of casual or isolated tasks of a simple character which do not involve any real risk if ordinary care is exercised.”

In saying this, His Honour accepted that the facts of the decision could not be considered as ‘uncomplicated’.

His Honour held that the employer had not breached its non-delegable duty to the Plaintiff because:-

i.the premises and system of work in disassembling the sinter cooler were not under the Employer’s control and it had no control over T&C’s employees; and

ii.the safety of the system of work was not the issue, but rather its implementation, which was Transfield and T&C’s responsibility and outside of the employer’s control.

CONTRIBUTORY NEGLIGENCE?

The respondents argued contributory negligence on the basis that the Plaintiff failed to make a proper inspection to ascertain the stability of the beam prior to attempting to rig it.

His Honour was not persuaded by that argument and said that, in the absence of some indication that the bolts had been removed by T&C’s employees prematurely, it was not unreasonable for the Plaintiff to act on the basis that the prescribed system for disassembly was being adhered to. In dismissing the argument his Honour said (at [69]):-

“The touchstone of reasonableness does not require one tradesman to check that another tradesman is following this system unless some fact has come to the attention of the former giving him reason so suspect something has gone awry.”

CONCLUSION

Campbell J awarded judgment to the Plaintiff against Transfield and T&C in the sum of $2,286,832.00.

This case is an example of the rare circumstances in which an employer will escape liability for an injury to one of its employees. It is undoubtedly a win for employer’s and their insurers who will take comfort in the fact that the Court has said that an employer’s duty does not extend to overseeing the implementation of an otherwise reasonable system of work that is in the control of a principal contractor (or principal subcontractor) and has subsequently broken down.

The decision stresses the importance for principal contractors of ensuring that safe systems of work are implemented in tasks and sites under their control, particularly for complicated tasks that involve the coordination of subcontractors.