Kelly v Humanis Group Limited [2014] WADC 43 (3 April 2014)

Main issue: Labour-hire companies’ duty of care

Background:

In November 2009, a labour-hire worker was working as an excavator operator at the BHP-owned Yarrie mine when he dropped a bucket of iron ore into a dump truck, causing it to “shake violently”, injuring the driver’s neck and back.  The driver, Kelly was an employee of Ngarda Mining and Civil Pty Ltd (Ngarda).

Kelly made a claim for damages against the labour-hire companies, Humanis Group Ltd and TSS Recruitment Pty Ltd (Humanis/TSS), alleging that they had failed to ensure that the labour-hire worker was adequately trained, experienced or qualified.

Humanis/TSS argued that Ngarda had control of the work conditions at the site and did not owe a duty of care to Kelly.

Outcome:

The District Court held that Ngarda had a non-delegable duty of care to Kelly, had control of the risk of injury and safety and assumed responsibility for preventing injury to Kelly, not Humanis/TSS.