A 32-year-old worker injured his back during the course of his employment in May and June 2008. At that time he was performing labouring work which involved jack-hammering, manhandling railway sleepers and moving bags of rubble. The worker sued the host employer, Rail Corporation New South Wales and his direct employer, Staff Innovations Pty Ltd, in the Supreme Court of New South Wales.

Rail Corp led evidence that its labourers were required to work in teams of two so that they could alternate the jackhammer work with other tasks. Staff Innovations maintained that whilst it owed the plaintiff a non-delegable duty of care, it was not in a position to exercise any control over the work that the worker was performing for Rail Corp. Staff Innovations relied on the fact that Rail Corp was in possession of the worksite and in control of the work and had devised the system of work. It asserted that any injury suffered by the worker as a result of departure from the system prescribed was not the materialisation of a risk of harm reasonably foreseeable by an employer in its position.

The trial judge referred to Rail Corp’s duty of care as being analogous to the duty owed by an employer to an employee, which was consistent with the NSW Court of Appeal’s decision in TNT Australia Pty Limited v Christie. His Honour was ultimately satisfied that there was a breach of the duty of care by both defendants.

On the issue of apportionment between the defendants, His Honour considered that the overwhelming responsibility lay with Rail Corp (90%), given its ‘vastly superior control’ of the premises and the tasks being performed. The employer was liable for the remaining 10%.

Donald v Rail Corporation (NSW) (no 11) [2016] NSWC 1897

His Honour’s decision follows the recent trend for courts in NSW to deviate from the 75:25 apportionment between host employers and employers as determined in the NSW Court of appeal decision in TNT v Christie. The facts of each case will be determinative. The greater the host employer’s level of control, supervision and responsibility for implementing and maintaining the system of work at a worksite, the greater the liability of the host employer.