The recent decision of the New South Wales Court of Appeal in South Sydney Junior Rugby League Club v Gazis involved a plaintiff who was a labour hire employee supplied to the Sydney club as an armed security guard. The plaintiff, Mr Gazis, at first instance, was successful in convincing the Supreme Court of New South Wales that despite the movement of trolleys used to transport poker machine takings was not an aspect of his duties as a security guard, the occupier and the employer were liable for spinal injuries sustained when he lost grip of the handle of the trolley and fell backwards. The Supreme Court apportioned liability 75% to the club and 25% to the employer.

The club, as occupier, and the plaintiff’s employer appealed the decision.

The Court of Appeal specifically pointed to the fact that there was no actual knowledge on the part of any person in a supervisory role within the club that the plaintiff moved trolleys in the course of his employment. There was no practical necessity for the plaintiff to move the trolleys and was adopted by him voluntarily. The club never asked the plaintiff to undertake this task.

The trial Judge had accepted that although the manager of the club did not have direct knowledge that the plaintiff moved trolleys on a daily basis, employees of the club did. However, the Court of Appeal found it was incorrect to conclude that the knowledge of every employee of the club, as to the activities of an independent contractor on the club’s premises, becomes the knowledge of the club. In the absence of knowledge by the club’s supervisor that the plaintiff was moving trolleys, it was held that the duty of care owed to the plaintiff by the occupier did not extend to giving directions not to move the trolleys. The risk involved in moving the trolley was obvious and likely to occur. The club’s procedural guidelines for movement of the trolleys did not consider losing grip of the handle and falling backwards as an identified risk.

In relation to the employer, the Court of Appeal held that whilst the employer owed a non-delegable duty of care and was in breach of it as it took no reasonable steps to investigate the work environment in which it placed its worker, the breach was not causative of the harm because the risk nonetheless would not have been identified during a reasonable inspection. The employer was not liable for the worker’s injury.


The case is relevant to host employment scenarios where an occupier allows a labour hire employee on site. If duties are performed outside the scope of their employment, labour hire employees will face difficulties establishing liability against the occupier and the employer. The case distinguishes the relatively hard line approach of the High Court in Thompson v Woolworths which involved an obvious risk where it was held the occupier was liable for breach of duty.