“Occupiers liability – labour hire company and hire of labour”: Boral Resources (NSW) Pty Limited -v- Watts [2005] NSWCA 191

Author: Nicholas Gordon

Judgement Date: 17th June, 2005

Citation: Boral Resources (NSW) Pty Limited -v- Watts

Jurisdiction: NSW Court of Appeal[1]

In Brief

  • In this case the plaintiff was injured after rolling a large rock off a roadway at the premises of Boral Resources (“Boral”).  The case considered whether the system of work was unsafe and apportionment of liability between a labour hire company employer and the hirer of labour.  
  • The Court of Appeal held that Boral’s system of work was unsafe and reaffirmed that a trial judge’s findings of fact and credit should not be disturbed unless they were clearly wrong.

Background

  • Boral operated a rock quarry at Peats Ridge.  It obtained labour from Waltron Pty Limited (“Waltron”). The respondent plaintiff was employed by Waltron and hired out to Boral as the driver of a large dump truck carrying rock from the quarry face to a crusher.
  • Rock was blasted out of the quarry face, loaded into dump trucks and taken by the trucks along the roadway to the crusher.  It was not uncommon for rocks to fall from the trucks as they moved along the roadway.  The roadway was mostly only wide enough for one truck, but in places it was wide enough for two trucks to pass. When rocks fell on the roadway, the driver stopped the truck and moved them off the roadway.  The loaders used at the quarry face could be summonsed by radio to move heavy rocks, but there were some black spots for radio communication and a loader was rarely available before 9.00am because it was then usually fully occupied at the quarry face.
  • On 1 December 1998, whilst driving her truck from the crusher to the quarry face at about 7.30 am, the plaintiff saw about five rocks lying in the roadway, two or three feet from its edge. Two of the rocks were quite large, about two feet in all dimensions and although she could have driven around the larger rocks after moving the smaller ones, she nonetheless rolled the larger rocks off the roadway; and injured her back in rolling the second of the larger rocks off the roadway.
  • At first instance, Charteris DCJ was not satisfied that Boral’s system of work was unsafe because rocks fell onto the roadway, or because drivers were required to and did move rocks off the roadway.  His Honour found the breach of duty in failing to instruct workers about whether to move a rock themselves or whether to call in the loader.  His Honour held “the system in place was inadequate in that there should have been clear guidelines as to which rocks were to be moved manually and which required the loader’s intervention.  It cannot be considered a safe system to allow workers to decide without any parameters how they will remove rocks.  Leaving that entirely to the discretion of the driver, in my view, was negligent.”  
  • His Honour was not satisfied that there was contributory negligence on the part of the respondent.  
  • Boral was successful in its cross claim against Waltron to the extent of 40%, including 40% of the respondent’s costs. Boral and Waltron both appealed.

Court of Appeal

  • Boral’s first ground of appeal was that the plaintiff most probably injured her back in picking up and throwing off the roadway two or three bits of rock of house brick size, rather than in rolling larger rocks off the roadway.  Accordingly, they argued that the breach of duty found by the trial judge was inapplicable.  In support of this they relied on the plaintiff’s accident descriptions given to her doctors which suggested that she had suffered injury after throwing the smaller rocks away.  
  • The Court of Appeal, Giles JA delivering the leading judgment, noted that the trial judge was well aware that this was a live issue at the trial and had found that “my view of the plaintiff as regards to those alleged prior inconsistent statements was that she was unlikely to be a person who would be giving great detail as to how an accident happened when being seen by doctors, and she was unlikely, in my view, to be turning her mind to the need for complete accuracy when seeing the doctors”. 
  • The Court of Appeal referred to the High Court decision in Fox v Percy (2003) 214 CLR 118 where it was held that a trial judge’s finding may only be set aside if it is shown to be wrong by incontrovertible facts or uncontested testimony, or if it was glaringly improbable or contrary to the compelling inferences.  
  • The Court of Appeal declined to overturn the trial judge’s findings in this regard as “the judge was alive to the matters on which Boral relied, and accepted Ms Watt’s evidence notwithstanding them.  He had the advantage of seeing and hearing Ms Watts give her evidence, including an extensive cross examination, and his references to truthfulness plainly encompassed the reliability of her recollection.” 
  • Turning to causation, Boral submitted that, because the larger rocks did not block the path of the respondent’s truck, the cause of her injury was her decision to move the rocks rather than any deficiency in the system of work.  It was submitted that the plaintiff could have radioed for a loader; or, if she was in a radio black spot, she would have had radio contact within minutes after driving; or that she could have waited for help from the driver of the next truck.  Boral also submitted that if the instruction was only to move rocks blocking the paths of trucks (which Boral submitted it was), the breach of duty found by the judge was of no relevance to the circumstances in which the plaintiff injured herself. 
  • The Court of Appeal, with reference to the evidence of other workers at the rock quarry, agreed with the trial judge’s finding that “clearing the roadway was understood and acted upon more widely”, even if the plaintiff had sufficient space to drive around the larger rocks after disposing of the smaller rocks.
  • After reviewing the evidence of Mr McLeod, who worked at the quarry, the Court of Appeal found:

“On a proper understanding of Mr McLeod’s evidence, I do not think that rocks could be left on the roadway if the trucks could be steered around them.   Even if they could be steered around, rocks might be run over or scrapped by inattentive driving, and the substance of Mr McLeod’s evidence was that the roadway was to be cleared of spilled rocks so that there was no real possibility of damage to the expensive tyres, injury to workers or break in productivity”

  • Justice Giles did not consider the trial judge erred in finding that the system of work extended to removing rocks from the roadway even if they were blocking the paths of trucks. 
  • Boral also disputed the trial judge’s finding of no contributory negligence. The Court of Appeal quoted the High Court decision in McLean v Tedman (1984) 155 CLR 306 where the High Court had found that in determining whether or not contributory negligence should be found “the question is whether that failure should be characterised as mere inattention or inadvertence or whether it amounts to negligence, there being a well recognised distinction between the two.”  
  • The Court of Appeal found that plaintiff’s attempts to move the larger rocks was brought about by enthusiastic following of the unsafe system of work, and that this was not negligence on the part of the plaintiff.
  • Waltron appealed on the basis that the trial judge was incorrect in finding that it was 40% negligent. Waltron argued that it had no access to assessing Boral’s system of work in greater depth.  The Court of Appeal rejected this submission and found that if Waltron had properly enquired into Boral’s system of work, it would have been told that the loader was not always available to move heavy rocks and that if there were rocks on the road the driver was expected to move them.  The evidence showed that Waltron did not enquire; it left its employee exposed to what, to it, was unknown.
  • The Court of Appeal considered the 40% costs order against Waltron was within the trial judges discretion.  
  • Accordingly, all appeals failed and the original decision remained intact in all respects.

Implications

  • This case demonstrates that an employer who operates a labour hire company does not abdicate its non delegable duty of care simply because its employees are sent to work for a client.  They must ensure that their employees are not being sent to work areas that are unsafe.  
  • There remain onerous obligations on occupiers and employers to ensure that a work place remains safe, and that systems of work be put in place to ensure this.
  • The 40% apportionment finding against the labour hire company contrasts with the 25% finding in TNT v Christie (2003) NSW CA 47 thereby emphasising each case is determined on its own facts.  
  • Appellate courts will not set aside a trial judge’s credit-based findings of fact unless it can be shown that the findings were wrong by incontrovertible facts or uncontested testimony, or if it is glaringly improbable or contrary to compelling inferences.

[1]   Giles JA, Santow JA and Young CJ in Esq