A plaintiff, injured whilst performing manual work in a host employment situation, has succeeded despite concerns about credit and medical causation. Both the host employer and employer were liable, on a 90/10 apportionment split.

In Issue

  • Liability for injury sustained as a result of repetitive, heavy, manual work.

The Background

The plaintiff was employed by Staff Innovations Pty Ltd (the employer). His labour was hired to Rail Corporation of New South Wales (host employer) to replace railway sleepers. The plaintiff alleged that between May and June 2008 he sustained a L5/S1 disc protrusion. The plaintiff alleged that he performed heavy work jackhammering old sleepers out of place, and associated work to put the new sleepers in place. All aspects of liability and the majority of quantum issues were in dispute.

The Decision at Trial

The host employer trained workers in a system with a requirement for task rotation and breaks after 20 minutes. The plaintiff’s co-worker refused to undertake jackhammering, and the plaintiff had to perform all the jackhammering. The system of work was not therefore found to have not been enforced by the host employer. Whilst some aspects of the “over a period of time” incidents were not accepted by the trial judge, due to adverse credit findings about the evidence of the plaintiff and a witness, there was sufficient evidence that the work caused the back injury and the host employer was liable. The employer breached its duty because it had the power to discover whether the system was implemented.

As to apportionment, the trial judge noted that the host employer was overwhelmingly in control of all of the relevant activities underpinning negligence. However, as the employer had frequent contact with supervisors at the work site, it was within the employer’s power to enquire whether the system of work was being enforced, specifically in relation to the plaintiff, rather than the general enforcement of systems across the workforce. As a result of the host employer’s vastly superior control of the system of work compared with the employer, the degree of causal potency and negligence of the host employer, liability was apportioned 90% to the host employer and 10% to the employer. There was no reduction for contributory negligence because a reasonable person in the position of the plaintiff was not required to regulate his own work by seeking further assistance, or implementing additional breaks.

The plaintiff was awarded $1,132,579 despite some exaggeration of his disabilities.

The Issues on Appeal

  • Whether the employer and host employer had breached their duties, having regard to factual findings about the implementation of the system of work.
  • Causation.

The Decision on Appeal to the New South Wales Court of Appeal

Despite overturning some of the inferential factual findings about heavy work the plaintiff allegedly performed, the trial judge’s findings about the plaintiff being required to perform heavy work alone, rather than with two workers as the system required, was upheld. The work created a risk that was not insignificant. The trial judge did not err in accepting the evidence of one of the medical experts that the work caused the disc protrusion. The findings of liability against both defendants were upheld. Apportionment between the defendants was not in issue on appeal.

Implications for you

A system of work should be enforced beyond initial training, through close supervision by both direct employers and host employers.

Rail Corporation New South Wales v Donald; Staff Innovations Pty Ltd t/as Bamford Family Trust [2018] NSWCA 82