Host employer and legal employer held liable for failing to enforce a safe system of manual handling over a period of time.

In Issue

  • Factual and credit issues regarding the occurrence of a back injury from manual work
  • Whether a safe system of work enforced
  • Contribution between defendants in host employment setting

The Background

The plaintiff was employed by Staff Innovations Pty Ltd (second defendant). His labour was hired to Rail Corporation of New South Wales (first defendant) to replace railway sleepers. The plaintiff alleged that between May and June 2008 he sustained a L5/S1 disc protrusion requiring surgical fusion. The plaintiff alleged that he performed jackhammering of old sleepers out of place, cutting the sleepers with a chainsaw, moving the pieces, cleaning up rubble, moving new polymer sleepers into place, and concreting. The jackhammer weighted 41 kgs, the sections of old sleeper about 30kg, polymer sleepers 20 kgs, and bags of rubble up to 30 kgs. The plaintiff worked in a team of 2. The defendants said that a system of task rotation and breaks was employed.

The plaintiff pleaded that an injury occurred over a period of time but also in 2 specific incidents. On 12 May 2008 the plaintiff was required to undertake jackhammering continuously because his co-worker refused to undertake the task. He obtained a medical certificate and had 1 shift off work. After that time the plaintiff was not required to jackhammer, however, on 12 June 2008 the plaintiff alleged he recommenced jackhammering, causing back pain. The plaintiff received workers’ compensation benefits and the second defendant sought statutory indemnity for those payments pursuant to s 151Z (1) (d) Workers’ Compensation Act 1987 (NSW) (WCA). All aspects of liability and the majority of quantum issues were in dispute.

The Decision at Trial

The plaintiff established that each defendant owed a duty of care that had been breached. Liability was apportioned 90% against the first defendant host employer, and 10% to the direct employer. The trial judge found that the first defendant had a system of training workers in the safe work method statement outlining a requirement for task rotation and breaks after 20 minutes. It was accepted that back symptoms arose on 12 May 2008 due to extended jackhammering undertaken because the co-worker would not undertake the task. The plaintiff’s supervisors knew this to be the case and relied on the plaintiff to implement rest breaks and task rotation, rather than ensuring this occurred in a formalised system. The trial judge did not accept an incident occurred on 12 June 2008 due to adverse credit findings about the evidence of the plaintiff and a witness. This did not preclude a finding that an injury occurred on 12 May 2008. The significant control of the system of work exercised by the first defendant resulted in the majority of apportionment being allocated against it. The trial judge considered that the second defendant could not escape a finding of breach of its non delegable duty of care, as it was within the second defendant’s power to have inquired as to the conditions the plaintiff was working under, and discovered that the plaintiff was not rotating tasks in accordance with the system. The plaintiff was awarded $1,132,579 with associated reductions and refunds under the WCA. The plaintiff was found to be prone to significant exaggeration of his disabilities, however objectively the medical evidence established a significant spinal injury.

Implications for you

In any manual handling case it is important that evidence is available to establish that any foreseeable risk of injury is not only the subject of a safe system of work, but that evidence is available of enforcement of the system. The case also highlights that the 75/25 host employer/direct employer “traditional” split is not precise and will be varied by a Court depending on the factual matrix of each case.

Alan Donald v Rail Corporation of New South Wales (No 11) [2016] NSWSC 1897