Love v North Goonyella Coal Mines Pty Ltd [2017] QSC140

WorkerFACTS

Mr. Love (the Plaintiff) was an employee for Wilson Mining Services who had hired their labour out to North Goonyella Coal Mines (the Defendant).

Wilson Mining were not the only contractors at the site.  There were approximately 120 people on site some working for the Defendant and some not. The Defendant had exercised strict controls over who had entered the site as well as who had entered the underground mine. Mr. Carter, the supervisor of the underground mine directed the employees of the various contractors to wear similar uniforms for “team building purposes.”

In fact, the underground supervisor was not employed by the Defendant but the Defendant was a subsidiary of the company he was working for as other companies were also subsidiaries. The Defendant controlled where people worked, what tasks they performed, what equipment they used, and indeed how they carried out their tasks all came under the control of North Goonyella or the people the company had put in charge.

The Plaintiff and another more senior contractor from Wilson Mining were working in the underground section of the mine in the act of “roof bolting” when a 40-48kg tool fell a few metres onto the Plaintiffs’ neck causing him to lose consciousness.  It is found that the cause of this tool falling onto the Plaintiff was due to an unidentified employee (possibly of another contractor) working in the underground mine had interfered with an air hose supplying compressed air the tool used.

LIABILITY FINDINGS AND CONCLUSIONS

The Defendant had sought to blame the Wilson Mining employee who was operating the tool as negligent and cause of the tool falling.  This was rejected as other evidence pointed to another person interfering with the air supply, which was found to be the cause of the incident, and not operator error.

In the circumstances, the cause was another negligent co-worker, who was either employed by the defendant directly, or closely supervised by them.  There was also criticism of the failure to “tag out” the equipment to show it was in use.

A duty of care was argued on basis of control of the site and all workers, and identical to that of an employer of all workers.  Further, vicarious liability for the negligent co-worker was contended for.  Lastly, the duty was sought to be imposed by virtue of the Coal Mining Safety and Health Act 1999.

His Honour Justice McMeekin found in favour of a duty of care as if the defendant was the employer of the plaintiff, and so did not need to decide the other grounds for the duty.  However, it seems clear from the judgment a duty would have been found to cover liability for negligent workers employed as independent contractors (vicarious liability) and under statute.

The conclusion on employer’s duty of care argument is set out below:

“[58] While I am conscious that one must be wary of labels, it has long been held that host employers can owe a duty of care to employees of labour hire companies analogous to that of the employer: TNT Australia Pty Ltd v Christie. 26 That comes about because the degree of control exercised over the workforce, the workplace, and the systems of work by the host employer is indistinguishable from that usually exercised by the employer. There is no doubt that North Goonyella exercised that significant control here. In my view that feature justifies the imposition of the more extensive duty of care here.”

The duty of care was found to be personal to the defendant because of the systems of work put in place at their workplace.  Therefore no delegation of the duty was permitted.

On the vicarious liability point, it was concluded:

“[81] In my view it is strongly arguable that North Goonyella should be held responsible for the negligent acts of these third party employees. The statutory obligation cast on North Goonyella to exercise control over the mine (s 41 CMSHA) at least supports that 44 (2001) 207 CLR 21. 45 Citations omitted. 46 Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ. 47 (2006) 226 CLR 161 at 167 [13]. 21 imposition. However, given my views in relation to the nature of the relationship between the parties it is unnecessary to say any more or to decide the point.”

On the issue of a private right of action based on statute, it was said:

“[85] I will not repeat all that I said in Kerle. Given my earlier findings I do not see it necessary here to decide an issue that is not without its difficulties. I will merely observe that an obligation confined to subsections 41(1) (a), (f) and (g) CMSHA is not so different to those obligations which have been found to afford a private right of action in the past in the context of employee safety: see Rogers v Brambles; 49Schiliro v Peppercorn Childcare Centres Pty Ltd; 50Bourk v Power Serve P/L & Anor. 51 And, as senior counsel for Mr Love contends, the fact that the legislature has seen fit not to amend the legislation to deny any private right of action, as it has done with the Work Health & Safety Act 2011 (Qld) (see s 267) is some indication that an inference is available that a private right of action is conferred.”

Given the duty of care imposed, and findings of fact about how the incident occurred, there was little doubt a breach occurred which caused the injury, as was found as follows:

“[89] In my view North Goonyella breached its duty to provide a safe system of work in failing to have in place, and enforcing, a system of tagging out of the air supply valve when in use such that permission to interfere with the hoses had to be first obtained from the users, and instructing all those in the mine that air hoses were not to be used unless and until the permission of those using them had been obtained. No argument was led of any expense, difficulty or inconvenience in adopting such a measure. Rather the argument was that it was Wilson Mining’s duty, not North Goonyella’s duty, to ensure such tagging occurred.

 [90] My findings in relation to the non-delegable nature of the duty owed by North Goonyella makes the submissions concerning Mr Saliba’s alleged negligence and Wilson Mining’s responsibilities irrelevant. I observe however that I cannot see how Mr Saliba was negligent given his understanding of the way the machine worked. In fact what is striking is the absence of any evidence from North Goonyella given its criticisms of the conduct of Mr Saliba and Mr Love.”

Contributory negligence was not found.

Liability of the employer was earlier ordered to be at a separate trial.

Damages were assessed at $1,356,976.87.

A separate piece will be written concerning the damages findings.

COMMENT

Given the prevalence of host employment relationships, where the level of control of individual workers becomes so blurred that to an outsider all workers appear to be acting as workers for the host employer, there should not be surprise when a Court finds the duty of care to that of an employer.

This has important insurance implications for host employers.  Their usual workers’ compensation insurance policy will not presently cover independent contractors and their employees (although this is being reviewed and may be added as an option in near future).  Likewise, any business public liability insurance usually also excludes contractors on site unless special cover is purchased.  To ensure the host employer is not without insurance coverage, it is recommended that cover be taken for these workers on their sites.

Peter Matus | Special Counsel, Compensation Claims