Author: Renee Magee
Judgment date: 17 March 2020
Citation: Hallmark Construction Pty Ltd v Brett Harford  NSWCA 41
Jurisdiction: NSW Court of Appeal
Hallmark Construction Pty Ltd (Hallmark) was the head contractor of the site and subcontracted bricklayers, Copeland Building Services Pty Ltd (Copeland), to construct the walls of the townhouses. ANM Building Services Pty Ltd (ANM) was a labour hire company that supplied a site supervisor, Mr Isaia, to Copeland. Copeland ordered building supplies which were delivered by Harford Transport Pty Ltd (Harford), the plaintiff's company of which he was the sole employee, and Mr Isaia directed the plaintiff in where to unload the supplies.
Liability was only in issue at the hearing. Damages were agreed at $1.6 million.
In relation to the contribution of the plaintiff and his company, it was held that Harford had adopted a safe system of work in delivering the goods to the site and could not have reasonably been expected to encounter a retention pit on site. There was no prompt to put the plaintiff on enquiry as to a possible danger underneath the pallet. As such, there was no contribution to Hartford or the plaintiff.
The Supreme Court reaffirmed that an assessment of breach of duty for a sole employee company is not a question of what the individual ought to have done in the circumstances but rather a prospective and objective assessment of what a reasonable employer would have done.
Hallmark and Copeland appealed the decision challenging the findings of liability against ANM, Hartford and the plaintiff and apportionment between the parties.
As to the issue of vicarious liability, the Court of Appeal applied Day v The Ocean Beach Hotel Shellharbour Pty Ltd (2013) 85 NSWLR 335;  NSWCA 250 in refusing to recognise dual vicarious liability in circumstances where two different entities had legal control over a tortfeasor. Copeland's conferral of authority onto Mr Isaia was exemplified in his control of the site. The supervisor directed where the Plaintiff was to unload his truck as a representative of Copeland, not ANM who merely provided the employee contract. Accordingly, the finding in favour of ANM was upheld.
The findings of no liability against Hartford and no contributory negligence by the plaintiff were also upheld. In his judgment, Justice Basten noted "there is a danger in assessing the company's obligation through the lens of the plaintiff's conduct" and warned of equating the care an individual takes for his own safety with the steps an employer ought to take in devising a safe system of work. His Honour stressed the correct approach requires standing back and providing an objective assessment of whether or not an employer had breached its duty to provide a safe system of work.
1 Fagan J
2 Basten JA; Meagher JA & Emmet JA agreeing