Mt Owen Pty Ltd v Parkes

1. [1]

   BRERETON JA: I have had the benefit of reading in draft the judgment to be delivered by Basten AJA, which relieves me of the need to recite the relevant facts save to the extent that they are specifically mentioned below. I agree that Mt Owen’s appeal should be dismissed, for the reasons his Honour gives. However, I have reached a different view as to the outcome of Titan’s cross-appeal. For the reasons that follow, in my opinion, the cross-appeal should be allowed, and the judgment against Titan should be set aside.

2. [2]

   The trial judge held that in addition to Mr Kemp’s negligence, for which Mt Owen was vicariously liable, Mt Owen and Titan were directly in breach of duties of care owed by them to Mr Parkes. His Honour apportioned liability 60% to Mr Kemp (and thus vicariously to Mt Owen), and the remaining 40% equally between Mt Owen and Titan, with the result that as between Mt Owen and Titan the former ultimately bore 80% and the latter 20%.

3. [3]

   The finding of negligence against Titan was based on the supposed inadequacy of the Mt Owen Job Safety Analysis form (“JSA”) which was completed and signed off by Mr Wallace on behalf of Mt Owen before the crew (comprising Mr Kemp, Mr Colby and Mr Parkes) commenced the service of the bulldozer. The trial judge first found that Mt Owen was negligent in failing to have the JSA spell out a requirement that implement movement should occur only while the other tradesmen are beyond the footprint of the bulldozer: [1]

4. [4]

   His Honour then held that Titan was liable on the same basis: [2]

5. [5]

   First, Titan challenged those conclusions. Ground 1 of Titan’s cross-appeal was that:

6. [6]

   This challenge was repeated in Titan’s written submissions: [3]

7. [7]

   It was elaborated in the following paragraphs of Titan’s written submissions, in which Titan submitted, first, that the JSA was not defective, [4] and secondly, that any deficiency in the JSA was not causative of the accident and thus injury to Mr Parkes. [5]

8. [8]

   Next, while accepting that, if Mt Owen was negligent in respect of the JSA, then, on the authority of TNT Australia Pty Ltd v Christie, [6] and DIB Group Pty Ltd v Cole, [7] it necessarily followed that Titan was technically in breach of its non-delegable duty of care to Mr Parkes, [8] Titan further submitted that it did not follow that some percentage of the liability for that negligence must be apportioned to it, referring to Top Hut Banoon Pastoral Co Pty Ltd v Walker, [9] in which the dismissal of a host employer’s cross-claim for contribution from the ‘legal’ employer – in effect an apportionment of 0% against the ‘legal’ employer and 100% to the host employer – was upheld, and in particular the statement of Gleeson JA (with whom Preston CJ of LEC and Stevenson J agreed) that: [10]

Was the JSA deficient?

1. [9]

   The JSA stipulated, in respect of the step “Carry out Maintenance Live Testing task”, that the potential hazards included “unplanned movement” and “personnel and equipment interaction”. The relevant “controls” specified included:

2. [10]

   Before work commenced, Mr Kemp took the crew through the JSA. Each member of the crew acknowledged these (and other) requirements by placing their initials on the relevant pages of the JSA, which was subsequently approved by Mr Wallace as supervisor on behalf of Mt Owen before the commencement of the work.

3. [11]

   In their joint report, both experts, Mr Underwood and Professor Hebblewhite, accepted that the Live Testing Procedure in the JSA specified that standing on the tracks of the dozer was not permitted during movement of the dozer or of the dozer parts. Professor Hebblewhite said:

4. [12]

   Mr Underwood said:

5. [13]

   Both agreed that the requirement in the JSA that the person in charge of live testing confirm that all persons are out of the machine footprint and clear of any hazard before any equipment movement is undertaken was appropriate. In response to the question whether Mt Owen should have prepared and enforced a JSA specific to the task of oil sampling while live testing was being undertaken, Professor Hebblewhite said:

6. [14]

   Mr Underwood responded:

7. [15]

   The high point of this evidence is that a specific oil-testing procedure might have “restated” the requirement that personnel other than the operator must be clear of the machine footprint while any machine function was likely to be engaged – in other words, the same prohibition that already appeared in the extant JSA.

8. [16]

   The JSA plainly stipulates that the “Person in charge of live testing is to confirm all persons are out of the machine footprint before any equipment movement is undertaken”. As his Honour noted, the experts were of the view that the JSA sufficiently made clear that “equipment movement” in the JSA included movement or operation of the implements attached to the dozer. As his Honour also noted, more than once, counsel were also content to proceed on the basis that “equipment movement” included movement or operation of the implements. No member of the crew suggested that they did not so understand it, and in the context in which it appears that is how a reasonable worker would understand it, all the more so bearing in mind that the context is one of experienced workers, such that it may be reasonable to leave the safe performance of the work to the personnel to whom it is entrusted. [11] In my opinion, contrary to the trial judge’s conclusion, no more was required to bring home to Maintenance Crew B what had to be done, than the clear requirement stipulated in the JSA, which none suggested they did not understand.

9. [17]

   In that context, in my opinion, reasonable care did not require that the JSA specifically restate, specifically for oil-testing, a requirement which was already adequately stated in a procedure applicable to the task, that there be no equipment movement while personnel were within the footprint. Notably, Mt Owen did not develop any submission in defence of the trial judge’s conclusion in this respect. Nor for that matter did Mr Parkes, who adopted Titan’s submissions. [12] In my opinion, the JSA was not deficient; it sufficiently covered the situation.

Was any deficiency in the JSA causative?

1. [18]

   Having found that the JSA was deficient, the trial judge did not expressly address the question of causation.

2. [19]

   As has been noted, the crew members, including Mr Wallace, were taken through the JSA by Mr Kemp, before work commenced. [13] They must all be taken to have been aware of its requirements. No-one suggested that they were not. According to his Honour’s findings, each member of the crew was an experienced tradesman and knew the correct procedure. [14] Moreover, in accordance with those procedures, Mr Kemp gave hand signals to Mr Colby to indicate that the implements were about to be moved, which Mr Colby acknowledged with a “thumbs up” once he had moved clear of the track. [15] For some unknown reason, Mr Kemp failed to do so in respect of Mr Parkes.

3. [20]

   As has been noted, Professor Hebblewhite and Mr Underwood agreed that had the extant JSA been complied with, the accident would not have occurred. Given that Mr Kemp was required by the extant JSA to ensure that others were clear of the footprint before moving the implements, and was aware of the correct process, but for some reason overlooked the requirement in the case of Mr Parkes (though not in the case of Mr Colby) – perhaps, as Titan’s submissions posit, because he did not see where Mr Parkes was, and incorrectly assumed he was kneeling on the step rather than standing on the tracks – it is not apparent how a further statement of the procedure in a specific “oil testing” JSA would have made any difference. Indeed, as Mt Owen submitted, “[t]he practical reality is that Kemp did just as he pleased in the execution of that work at the time, without reference to the requirements of either Mt Owen or Titan”. [16]

4. [21]

   Again, neither Mt Owen (let alone Mr Parkes, who adopted Titan’s submissions) developed any submission in defence of the trial judge’s conclusion in this respect. [17]

5. [22]

   In my opinion, if (contrary to my opinion) the JSA was deficient in failing to stipulate that implement movement should occur only while the other tradesmen are beyond the footprint of the bulldozer, any such deficiency was not causative; such a stipulation would not have prevented the performance of a “blade drop” with Mr Parkes in the danger zone, in circumstances where Mr Kemp knew he should not do it but for some reason did not advert to Mr Parkes’ presence. In my opinion, it was not proved that but for the omission of further specification of the correct procedure for oil testing, the accident would not have occurred.

Apportionment

1. [23]

   As in my opinion Titan did not incur liability to Mr Parkes, it is unnecessary to consider the question of apportionment and somewhat artificial to do so, save to observe that on the hypothesis that the JSA was deficient and that deficiency was causative, it seems to me that while the initial apportionment of 60/40 was within the generous ambit of the trial judge’s discretion, the subsequent apportionment of the 40% equally between Mt Owen and Titan miscarried, by failure to have regard to the circumstances that the JSA was Mt Owen’s document, prepared for a procedure required to be performed by Mt Owen on Mt Owen’s site and equipment and under Mt Owen’s ultimate direction and control. I do not see how in those circumstances Titan’s ultimate share should be more than a distinctly minority share of the 40%, and in circumstances where Mr Parkes’ employment had, like Mr Kemp’s, been transferred to Mt Owen, there is much to be said for the argument that, as in Top Hut Banoon, it should be assessed at nil.

Conclusion

1. [24]

   In my opinion, the appeal should be dismissed and the cross-appeal should be allowed. The judgment against Titan should be set aside, and in lieu thereof, there should be judgment for Titan on the claim against it. The declaration that Mt Owen is entitled to contribution from Titan should likewise be set aside. The order that Mt Owen and Titan pay Mr Parkes’ costs of the proceedings should be varied by omitting the reference to Titan. In circumstances where, if Mr Parkes were required to pay Titan’s costs of his claim against it at first instance, there should be a Bullock order against Mt Owen, and in any event Mt Owen would be required to pay Titan’s costs of its cross-claim, the preferable course is simply to order that Mt Owen pay Titan’s costs of the proceedings at first instance. Mt Owen must pay Titan’s and Mr Parkes’ costs of the appeal and the cross-appeal.

2. [25]

   KIRK JA: I agree with Basten AJA that the appeal should be dismissed for the reasons his Honour gives. As for the cross-appeal, Mt Owen sought to support Titan’s liability on the basis that “it was not Mt Owen’s breach of duty that rendered Titan liable to Parkes but Titan’s own failure to ensure its employees (including Kemp and Parkes) were warned and trained to avoid the relevant risk of injury”. For the reasons given by Brereton JA, I agree that no direct breach of duty by Titan itself was made out, nor was causation established. I do not express a view as to what apportionment would have been appropriate if Titan had been liable to Mr Parkes. I agree with the orders proposed by Brereton JA.

3. [26]

   BASTEN AJA: In July 2017, the appellant, Mt Owen Pty Ltd owned and operated Glendell, an opencut coal mine in the upper Hunter Valley, New South Wales. Amongst the equipment used to operate the mine was a Caterpillar D10 bulldozer. The appellant employed a team to maintain its fleet of heavy machinery, but also contracted with the second respondent, Titan Technicians Enterprise Pty Ltd (“Titan”) for the supply of qualified mechanics to work on heavy machinery.

4. [27]

   On 29 July 2017, a team of three mechanics were carrying out routine maintenance on a bulldozer in the course of which Glen Parkes (the plaintiff below and first respondent) was injured. The injury occurred when another member of the team, Mitchell Kemp, dropped the blade of the bulldozer suddenly causing the track on which Mr Parkes was standing to flick up and crush his right leg between the track and the edge of the access platform beside the cabin of the bulldozer.

5. [28]

   There was no dispute that the action taken by Mr Kemp was negligent and that it caused the injury to Mr Parkes. The issue on the appeal was whether the appellant was vicariously liable for Mr Kemp’s negligence. The appellant contended that only one party could be vicariously liable and that that party was Mr Kemp’s employer, Titan.

6. [29]

   The trial judge, Campbell J, found that the appellant was vicariously liable and awarded damages against it in an amount of $2,050,953. [18] The judge also found Titan liable, and dismissed a claim of contributory negligence on the part of Mr Parkes. The last finding was not challenged on the appeal, but Titan challenged the finding as to its liability by way of a cross-appeal. The notice of appeal filed on 7 October 2022 identified 19 grounds, but all were in substance directed to the single question as to whether the judge erred in finding that the appellant was vicariously liable for the negligence of Mr Kemp. The other grounds (in particular, grounds 2-4, 6, 9-11, 16 and 17) identified passages in the judge’s reasoning which, the appellant asserted, gave too much (or too little) weight to particular aspects of the relationship between the parties.

7. [30]

   The issue raised by this case is not novel. As noted by Jordan CJ in McDonald v The Commonwealth: [19]

8. [31]

   As the present case illustrated, the answer to the question will often turn upon fine factual distinctions, rather than issues of legal principle. Further, language used in past cases, sometimes relied upon as expressing a legal principle, may amount to no more than an attempt by courts to provide some element of predictability and certainty to the resolution of similar cases. Nevertheless, as Jordan CJ also observed in McDonald, “neat phrases like these, though they may serve as convenient reminders of the nature of the problem, afford little or no help to its solution”. [20] However, the appellant challenged (grounds 5, 8 and 12-14) the principles applied by the trial judge. It is necessary, therefore, to commence by addressing the appropriate legal framework for considering the facts.

Legal principles - appeal

1. [32]

   Underlying the correct approach to the appeal were two legal principles, with suggestions as to a third. The first principle is that there can be no dual vicarious liability in two principals for the act of a negligent individual. As explained by Leeming JA in Day v The Ocean Beach Hotel Shellharbour Pty Ltd, [21] that proposition derives from the reasoning of the majority of the High Court in Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd. [22] The result in Oceanic Crest was that a statute imposing liability for the negligence of a pilot on the master or owner of a ship under pilotage, effectively removed vicariously liability from the pilot’s employer. That did not mean that the employer might not be liable for loss resulting from its own negligence, as was found with respect to Titan in the present case.

2. [33]

   The second principle of the general law is that an employer is vicariously liable for the negligent act of an employee undertaken within the scope of his or her employment. [23] The employer is not vicariously liable for the acts of independent contractors. The operation of the second principle leaves open the question as to who is the employer. It has long been recognised that the contract of employment may not be determinative in circumstances where the services of an employee have been transferred to a third party so that, while the first principle precludes both a third party and the employer being vicariously liable for the acts of an employee, the third party, sometimes referred to as the “host employer” or the “employer pro hac vice” may be held vicariously liable in place of the “general employer”. The central issue in the present case was when such a transfer is effective to render the host vicariously liable for the negligence of the transferred worker.

3. [34]

   The third principle, which arose only incidentally, is, supposedly, that an employer may not be liable for the acts of an employee who is executing an independent duty requiring the exercise of discretion and responsibility and therefore not subject to the control of the employer. Because the issue of “control” is central to the question of a transfer of employment, some weight was placed by the appellant on the fact that Titan’s workers were required to exercise their own independent skills and judgment in carrying out the specialised maintenance work on the heavy machinery.

4. [35]

   In Deutz Australia Pty Ltd v Skilled Engineering Ltd [24] Ashley J identified a number of relevant principles, the second of which stated that “transfer will less readily be inferred where the general employer provides man and machine; probably also where the general employer provides a skilled worker”. [25] The first limb of that proposition is not presently relevant; the second limb derives from the proposition that a skilled worker is unlikely to be controlled in relation to the manner of performance of particular tasks.

5. [36]

   As was noted in Day, factors relevant to whether a worker is an employee or an independent contractor, and the circumstances in which an employee is to be treated as an employee of a third party, involve common elements. The decision in Zuijs v Wirth Brothers Pty Ltd [26] concerned a trapeze artist who was injured whilst working for Wirth Brothers’ circus. The question was whether he was entitled to workers compensation. As explained in the joint reasons of Dixon CJ, Williams, Webb and Taylor JJ: [27]

6. [37]

   The trial judge applied that statement to discredit the submission that, as a skilled tradesperson, Mr Kemp was not subject to control by the appellant. If his skill did not prevent him being an employee, it did not prevent him being an employee pro hac vice of the appellant.

7. [38]

   As the trial judge further held, correctly, the test of legal authority to control was sufficient without requiring actual exercise of that authority. In support of that proposition, the trial judge observed that Lord Uthwatt had stated in Mersey Docks and Harbour Board v Coggins and Griffith (Liverpool) Ltd: [28]

8. [39]

   That principle must be correct, otherwise the third party could, negligently, avoid vicarious liability by not giving a direction which it should have given. (Whether it would incur personal liability is immaterial.) In any event control was exercised over the manner of carrying out the work in the present case.

Transfer of employment

1. [40]

   The concept of transfer was dealt with, perhaps incidentally, in Oceanic Crest, where Gibbs CJ observed: [30]

2. [41]

   As Wilson J noted in Oceanic Crest, the opinions in Mersey Docks posited a need for “exceptional circumstances” for the transfer of the service and control of an employee from a general employer to a particular employer. [32] That constraint did not arise in Oceanic Crest because the transfer was effected by statute. However, the appellant submitted that no “exceptional circumstances” arose in the present case, to warrant the conclusion of transfer reached by the trial judge.

3. [42]

   The appellant placed weight upon these statements of principle, submitting that the onus lay on Titan to demonstrate that its employees had, in the relevant sense, been transferred to Mt Owen and that there is a presumption that the general employer, being the party with whom the worker has a contract of employment, will remain liable.

4. [43]

   Titan, on the other hand, challenged the view that the statement from Mersey Docks, and in particular a legal obligation to find exceptional circumstances, was a complete and adequate statement of the law in Australia. It had not, Titan submitted, been applied in Hallmark Construction Pty Ltd v Brett Harford. [33]

5. [44]

   The reasoning in Hallmark is of relevance for present purposes, but the facts concerned a worker who had been employed by the relevant third party before it restructured its operations so as to transfer his employment to a labour hire firm. The worker continued to carry on the same work as he had been doing before his contract of employment was transferred to the labour hire firm. His continued employment was found to depend on the decision of the host, and not on which entity actually employed him.

6. [45]

   On the other hand, the present circumstances also differed from those in Oceanic Crest. In that case the employer routinely transferred the services of its pilots to ships entering and leaving the harbour as required. The transfers were, in each case short-lived and appropriately described as “temporary”. In any event, the application of the principle in Mersey Docks had no significance because the effect of the statute was to resolve the issue of vicarious liability.

7. [46]

   In Day v Ocean Beach Hotel the issue was whether there had been a transfer of the employment of a security guard, whose employer had provided him to undertake security work at the hotel, to the hotel management. This Court held that it had not. However, Leeming JA stated the applicable principle in terms which drew upon the distinction between an employee and an independent contractor, in the following passages:

8. [47]

   In Kondis v State Transport Authority [34] Brennan J stated:

9. [48]

   This language did not, significantly, adopt an exceptional circumstances criterion. Two further observations should be made in response to the appellant’s reliance on this phrase. First, Mersey Docks was undoubtedly a case of a temporary transfer, of both a worker and machinery. The present case concerned a worker who had worked with the appellant for three years before the accident. In that sense the facts were closer to Hallmark than to Mersey Docks. Secondly, industrial arrangements in New South Wales in 2023 do not necessarily mirror those in the UK in 1947. The extensive use of labour hire firms, the primary function of which is to employ staff to work for other businesses, which often have fluctuating needs for labour, [35] might itself have been viewed as an exceptional circumstance 76 years ago. Further, modern workplace health and safety requirements necessitate a degree of control over the operation of any workforce which would not have been envisaged in 1947, and certainly not as other than exceptional. The legal test was clearly articulated in Kondis, and its application will turn on the facts established on the evidence.

10. [49]

    Nevertheless, the transfer of control will not usually be sufficient to shift vicarious liability to the host for whom the work is done unless that party is also in control of the manner in which the work is undertaken. The relevant factors are frequently found in the following considerations:

Background circumstances

1. [50]

   The injury to Mr Parkes occurred whilst he was working on a nightshift in winter, namely on 29 July 2017. He was working with a group identified as “maintenance crew B” under the supervision of a Mt Owen employee, Cameron Wallace. The intention was to carry out a 1,000-hour service on the bulldozer. Of the three Titan employees assigned to the task, Mr Kemp had been designated by Mr Wallace as the person in charge of the operation. The task being undertaken at the material time was to obtain hydraulic and engine oil samples from the machine (referred to as “scheduled oil samples” or “SOS”). There were two methods of obtaining such samples. One method was to use a vacuum pump with the motor off; the alternative method was to take samples by bleeding pipes containing circulating oil while the motor was running. The latter course was adopted. Further, apparently in order to warm and lower the viscosity of the oil, Mr Kemp was in the cabin of the bulldozer and operated the hydraulic system so as to raise and lower the attached implements.

2. [51]

   As described by the trial judge:

3. [52]

   Whether the blade was dropped accidentally or deliberately did not, as the judge noted, matter: either way it was a negligent act. The reason the judge was unable to determine exactly how it happened was that Mr Kemp did not give evidence.

4. [53]

   The terms of the contract of employment between Titan and Mr Kemp were not treated as determinative. [36] That is likely to be so, unless the contractual obligations and entitlements are expressly assigned to the third party: there must be such a contract for the question of “transfer” to arise. However, the terms of the contract of employment may still be relevant. They may reflect the contractual arrangement between the employer and the third party. There was no evidence of a written contract of employment between Titan and Mr Kemp, although there were in evidence a number of documents on Titan letterhead identifying Mr Kemp’s areas of competence, accompanied by appropriate certificates. It appeared, however, that Mr Kemp, who had been working at Glendell for three years prior to the accident, was not employed by Titan throughout that time. In a letter of competency dated 2 May 2017, Titan noted that Mr Kemp “has recently been employed as a Heavy Vehicle Mechanic at Titan”. It also noted that Mr Kemp had “over 9 years’ experience as a Heavy Vehicle Mechanic with 4 and a half years mine site experience working at Bulga and Glendell and MTW for [other companies]”.

5. [54]

   Stewart Thrift, a Titan employee who described himself as both “compliance and training officer” and “operations manager”, gave evidence that “all labour arrangements between Glencore [the parent of Mt Owen] and Titan were through purchase orders”. He annexed a copy of a purchase order relating to the employment of the plaintiff.

6. [55]

   Mark Robinson, who described himself as “purchasing and supply coordinator” employed by Glencore Coal Asset Pty Ltd annexed a series of documents relating to a purchase order dated 14 July 2017. Purchase orders appear to have been issued on a weekly basis for a particular mine identifying an item and quantity of labour, with a “delivery date”. No individual was identified, nor were the skills or other requirements of the positions. The second page of the purchase order stated that an attached set of terms and conditions applied, unless there was a separate contract in existence in respect of the “goods and/or services that are the subject of this purchase order”. The terms and conditions were generic and many, which applied to both goods and services indiscriminately, would have required a degree of manipulation to have any relevant effect. However, relevantly for present purposes, clause 5 was headed “[p]erformance of the services” and read as follows:

7. [56]

   Titan submitted that pars (b)(ii) and (iii) conferred on the appellant authority to give directions and orders to workers provided by Titan. That submission must be accepted: the relevant language of cl 5.1 patently conferred that authority.

8. [57]

   The appellant relied upon these arrangements to demonstrate that Mr Kemp was at best a temporary employee working with Mt Owen on a week-by-week basis. However, the evidence contained in the Titan documents supported the finding that Mr Kemp had been working for a period of three years at the Glendell mine prior to the accident. The innominate purchase orders and the terms and conditions attached to them did nothing to contradict that proposition.

9. [58]

   The appellant relied upon cl 2.5 in the terms and conditions which required that “services must be performed by appropriately qualified, competent, skilled, experienced and professional personnel and must be rendered with due care and skill”. Counsel submitted that “a pure labour hire contract … would not contain such a clause”. [37] That proposition depended on the principle that a skilled and experienced worker would not be the subject of instruction as to the manner in which tasks were carried out. For reasons already explained, the legal premise underlying that submission should not be accepted. Further, however, the factual inference should not be drawn. The evidence included documents prepared by the appellant which involved, for each activity, a “job safety analysis (JSA)”. The JSA for the activities undertaken on 29 July 2017 was in evidence. It identified Mr Kemp as the “Person In Charge of Live Testing”. [38] It was signed by him. Each box on a check list was ticked and one referring to the provision of “two-way communication equipment” was changed in his handwriting to state that “verbal communication equipment” had been provided to all live-testing personnel.

10. [59]

    This evidence demonstrated that (i) Mr Kemp’s employment could not aptly be described as temporary; (ii) that he was subject to direction by the appellant’s supervisors as to the tasks to be performed, when they were to be performed and their manner of performance; (iii) the appellant imposed detailed safety requirements on their manner of performance, and (iv) the purchase orders confirmed the appellant’s authority to undertake all these functions.

11. [60]

    It was also relevant to consider Titan’s arrangements with its employees. The judge referred to the fact that Titan had its own occupational health and safety policies, which it required its employees to follow, unless the policies of the host were to the same or a higher standard. Titan’s document, “Employee Induction – General Information” stated: [39]

12. [61]

    The trial judge accepted that Titan’s occupational health and safety policies were “not mere matters of compliance by a corporation working in the coal mining industry”. [40] He also concluded that these policies did not interfere with the practical performance of Mr Kemp’s work, nor did they impinge on the capacity of the appellant to control it. Titan’s policies recognised the authority of the host to set safety standards, and conceded their application, if of a sufficient standard.

13. [62]

    Mt Owen’s supervisor, Mr Wallace, gave the following evidence by way of a statement admitted at trial:

14. [63]

    Mr Wallace also gave evidence of checking and signing the JSA prior to the work being undertaken. The JSA was detailed. It covered some eleven pages of which six had four columns headed “Critical steps in activity”, “Potential hazards”, “Control” and “Responsibility for controls (signature)”. On page 7, for example, under the first heading was the step, “carry out maintenance live testing task”. It is not necessary to note the potential hazards, but ten were identified including “unplanned movement”, “pinch or crush” and “unclear communications”. Under the heading “Control” the following points appeared:

15. [64]

    There was an additional aspect to the JSA which was significant in relation to the finding of negligence. Each of the first five of the six pages with columns contained three initials against each item. The sixth page [41] had a further “critical step” added in handwriting namely “live samples – blade move”, the potential hazard was identified as “blade movement” and the added control was “stand clear when obtaining hyd oil sample as blade moves”. This item was signed (not initialled) by Mr Kemp and Mr Parkes. Mr Parkes gave evidence that he was asked by Mr Kemp to sign it after the accident had occurred but before it had been reported. Understandably, the trial judge drew the inference that Mr Kemp had made this handwritten addition to the typed document after the accident in an attempt to exonerate himself. However, the point for present purposes is that the JSA was a document required and prepared by the appellant, containing detailed direction and control of the steps to be undertaken in the course of carrying out the maintenance on the bulldozer.

16. [65]

    The conclusion to be derived from the documentary material was supported by the evidence given by the appellant’s supervisor, Mr Wallace. In the course of his evidence in chief, the following exchanges occurred: [42]

17. [66]

    With respect to the JSA, Mr Wallace gave the following evidence during cross- examination by senior counsel for Titan: [43]

18. [67]

    Thereafter, Mr Wallace was taken to his statement: [44]

19. [68]

    The judge concluded, on the basis of this evidence, that “Mr Wallace in his capacity as a Mt Owen supervisor obviously was of the view that he was ‘entitled to tell the employee the way in which he is to do the work’: Mersey Docks at 17”. [45] Although the judge held that it was not necessary to do so, he concluded that “Mt Owen actually exercised the relevant control”, as well as having the legal authority to do so. [46] Those findings were not shown to be erroneous in any respect.

Cross-appeal – Titan

1. [69]

   Having determined Mr Kemp’s negligence, the judge deferred the question of vicarious liability for that negligence until after he had considered whether either Mt Owen or Titan breached duties of care which they owed to Mr Parkes.

2. [70]

   There was some awkwardness in approaching the matter in this fashion: with respect to vicarious liability, the question was, as noted above, whether Mr Kemp could be characterised as an employee pro hac vice of Mt Owen as the host employer. It is apparent that this characterisation was at the heart of the dispute as to liability. However, in dealing with the position of Mr Parkes, the same conclusion did not necessarily apply. On the other hand, it did not need to apply. As the occupier and operator of the premises, Mt Owen undoubtedly owed Mr Parkes a duty of care. Nevertheless, the submissions for the plaintiff, identified by the trial judge at [63], appeared to assume that Mt Owen was a host employer with respect to Mr Parkes. The trial judge, however, was alert to this issue. Referring to submissions of counsel for Mt Owen that Messrs Kemp, Colby and Parkes were operating as a “Titan team” whom it was reasonable for Mt Owen “to leave to their own devices”, [47] the judge noted that Mr Kemp was a long-term “fulltime equivalent” worker in Mt Owen’s workforce and had been for about three years prior to the incident. On the other hand, Mr Parkes and Mr Colby were newer, especially Mr Colby, and were accepted as “supplementary workers to take the place of Mt Owen’s direct employees who were then on strike”. [48] The judge accepted, however, that they worked under the supervision of Mr Wallace, a fulltime senior employee of Mt Owen, and were required to follow the system of work set out in Mt Owen’s JSA and risk assessment. The finding that they were part of Mt Owen’s Maintenance Crew B was not challenged for the purpose of the cross-appeal: in effect Mt Owen relied upon the same matters raised with respect to its submissions as to vicarious liability in relation to the incorporation of the Titan employees into its workforce. Mt Owen’s written submissions on the cross-appeal concluded that the trial judge did not err in apportioning liability to Titan on the basis found, or in finding that such primary liability should be divided equally between Titan and Mt Owen. [49]

3. [71]

   The basis upon which the trial judge found direct liability on the part of Mt Owen was the failure to spell out in the JSA the requirement that no implement movement should occur while tradesmen were within the footprint of the bulldozer. [50] That finding was not challenged by Mt Owen. However, Titan challenged both that finding and the finding that “Titan, as the legal employer, is negligent on the same basis”. [51] The judge further stated:

4. [72]

   In its written reply, Titan submitted that Mt Owen in its submissions (and by implication the trial judge) had ignored both the JSA and its implications, and the presence of Mr Wallace, a supervisor employed by Mt Owen, and his evidence to the effect that he had power to control how the task was to be performed. That was true, but was in part explicable by the fact that Mt Owen did not challenge the finding as to its primary liability. Titan also relied upon the proposition that there was “an absence of evidence that Titan ever attempted to interfere, or had cause to interfere, in the performance of work tasks at the premises of Mt Owen and in particular live testing”. [52]

5. [73]

   To the extent that that was true, it might have been thought that such a position was equally consistent with Titan’s negligence as its non-negligence. It was only consistent with an absence of negligence to the extent that it demonstrated that Titan had no power to interfere. The evidence did not support that conclusion. Mt Owen had tendered against Titan an evidentiary statement of Matthew Thrift, Titan’s operations manager who was responsible for overseeing the labour coordinator, WHS officer and recruitment consultant. Mr Thrift stated: [53]

6. [74]

   The relevant legal principles relied on by the trial judge, not challenged on the appeal, were those set out by Mason P in TNT Australia Pty Ltd v Christie. [54] As Mason P explained at [41], each of the host employer (TNT) and the legal employer (Manpower) owed a non-delegable duty of care to the worker, Mr Christie. The circumstances were summarised by Mason P in the following terms:

7. [75]

   Apart from the lack of skill, that description applies to the present circumstances. It was of course expressed in relation to the duty of the host employer, a matter which is not presently relevantly. However, it was significant that the degree of control exercised by the host employer in Christie did not derogate from the general duty of care imposed on the legal employer. In TNT, the plaintiff was injured by a negligently serviced or maintained jack. Mason P held:

8. [76]

   Having found negligence on the part of Crown, Mason P further held:

9. [77]

   As the trial judge noted, the High Court in Leighton Contractors Pty Ltd v Fox [55] stated:

10. [78]

    There is no doubt that the content of the employer’s duty of care is variable and may depend upon the circumstances in which it is said to be engaged. Thus, the employer of a tanker driver will not ordinarily be responsible for road hazards negligently created by road authorities or other road users. Similarly, the circumstances in which an employer will be liable for the condition of premises at which a driver delivers goods may also be limited. As this Court held in DIB Group Pty Ltd t/as Hill & Co v Cole, [56] the employer of a tanker driver who fell through the cover over of an inspection pit whilst returning to his truck after adjusting valves which were required to be opened to discharge fuel, was found not to be liable for the injury suffered by the driver.

11. [79]

    Further, as Ipp JA stated in Estate of the Late M T Mutton v Howard Haulage Pty Ltd: [57]

12. [80]

    A similar approach was adopted in Top Hut Banoon Pastoral Co Pty Ltd t/as Trustee for the Wakefield Family Trust v Walker, [58] where Gleeson JA held that a shearing contractor was not liable for an injury suffered by an employee in using a timber step into an accommodation hut which came away from the stumps on which it had been placed (and to which it was apparently affixed). The shearing contractor, which travelled from station to station was found not to owe a duty to its employees to have its principal attend every station in advance of the arrival of the employees and conduct an inspection of the accommodation, shearing shed and surrounds. [59]

13. [81]

    Although Spigelman CJ dissented in Estate of Mutton, the conclusions reached on the facts in each of these cases may be accepted but they provide no assistance in resolving the present case. In each case the assessment of the content of the duty of care turned on the level of control which it was reasonably practicable for the employer to exercise. In the present case, the ability to exercise control was established. This was not a case where the plaintiff was working at premises, the conditions of which were unknown to the employer, and of which the employer should not reasonably have been aware. Nor was this a case in which the plaintiff suffered injuries as a result of the defective condition of the premises. Rather, it was a case in which the injury resulted from the activities undertaken by other members of the team who were also subject to potential control by the employer. Accordingly, this case must be determined on its own facts.

14. [82]

    Although Titan was not vicariously liable for the negligence of Mr Kemp, Mr Kemp, like Mr Parkes, was an employee of Titan. It therefore had greater control over Mr Kemp than did Mr Christie’s employer, including steps which it might have taken to ensure compliance with safety protocols; Mr Kemp was not as beyond the control of Titan as an independent contractor might have been. Focusing, however, on the “special duty that it owes to its employees”, Titan was obliged to ensure that reasonable care be taken for the safety of Mr Parkes. As Titan submitted, the JSA was not its document; however, that did not absolve it from responsibility.

15. [83]

    The judge provided a careful analysis, including consideration of the opinions of the experts, in concluding that the JSA failed to make sufficiently clear to those undertaking the maintenance work that the controls it imposed with respect to movement of the equipment extended to movement of the implements. [60] Given that, as it appears, none of the three men working on the machine took the view that they had to stand clear of its footprint whilst the implements were manoeuvred, that finding should be accepted.

16. [84]

    Titan had accepted its responsibility to take steps to ensure a safe working environment for its employees and, as has been noted, formulated extensive safety protocols which were to apply unless those of the host employer were of an equal or more demanding standard. In order to ensure that that standard was fulfilled, Titan should have been alert to imprecision, ambiguity or uncertainty in the JSA. Accordingly, there was no error on the part of the trial judge in finding Titan liable.

17. [85]

    Since both Titan and Mt Owen had the relevant legal authority to impose constraints on the activities of Titan’s workers, in circumstances where Titan was able to take appropriate steps to carry out that function, there was no error in attributing equal responsibility to the host employer (Mt Owen) and the legal employer (Titan) for the injury to the plaintiff. Their proportionate liability was relatively low, reflecting the primary culpability of Mr Kemp.

18. [86]

    Accordingly, the cross-appeal should be dismissed.

Conclusions

1. [87]

   The trial judge identified and applied the correct legal principles in determining that Mr Kemp was operating as a de facto employee of the appellant at the time of the injury to Mr Parkes. Further, the judge was satisfied on the evidence that the appellant, as host employer, both had the authority to exercise control, not merely as to the specific tasks to be carried out, but as to the manner in which they were to be carried out, and in fact did so. No error has been shown in reaching those conclusions. Accordingly, the judge was correct to find that the appellant, and not Titan, was vicariously liable for the injury caused to the plaintiff by the negligence of Mr Kemp.

2. [88]

   For these reasons, the appeal must be dismissed.

3. [89]

   The appellant must pay the costs of the second respondent, Titan, as the party primarily responsive to the appellant’s challenge. The first respondent, the injured worker, supported Titan and was entitled to do so as he stood to suffer a diminution in the damages he could recover if limited to a claim against his employer, in accordance with Pt 5, Div 5 of the Workers Compensation Act 1987 (NSW). Accordingly, the appellant must pay the costs of both respondents.

4. [90]

   The Court should make the following orders:

   1. (1)

      Dismiss the appeal from the judgment in the Common Law Division;

   2. (2)

      Order that the appellant pay the costs of the respondents of the appeal.

   3. (3)

      Dismiss the cross-appeal.

   4. (4)

      Order that Titan pay Mt Owen’s costs of the cross-appeal.