Employer found vicariously liable for negligence of non-employee on a construction site

In the recent decision of Bartlett v De Martin & Gasparini Pty Ltd, [2024] NSWSC 1172, the Supreme Court of New South Wales revisited the principles for when vicarious liability may attach to an employer for the actions of a non-employee.

Background

On 26 April 2018, the plaintiff was working at a construction site at Martin Place in Sydney as a concreter. The plaintiff was an experienced concreter employed by the Second Defendant, Sura Labour Hire (the labour hire employer), and his services were contracted to the first defendant, De Martin & Gasparini (the host employer) under a labour hire arrangement.

The Plaintiff was instructed by the host employer to move an empty concreting hose to a different location on a jobsite with a co-worker. The hose weighed approximately 50kg and was 10m long. Before the Plaintiff was ready, without forewarning, the co-worker picked up the hose and began walking quickly, causing the Plaintiff to be jolted forward and suffer immediate pain in his lower back.

The Plaintiff attended the first aid office at the jobsite shortly after the incident. Over the following years, he underwent a number of surgeries and injections to treat the injury with limited success. The Plaintiff issued proceedings against the labour hire employer and the host employer for negligence.

Trial Outcome

The Court strongly preferred the Plaintiff’s evidence on the basis that he was an impressive witness in stark contrast to the host employer’s witnesses who were described by the Court as having no, or at most, very little recollection of the relevant events.

Another notable feature of the evidence was that the errant co-worker was never identified, either as a labour hire worker or as a direct employee of the host employer. However, the Court considered this distinction did not matter on the basis that the plaintiff’s evidence established:

1. the plaintiff and the co-worker were both directed to move the hose by the host employer;
2. the injury was a result of the errant co-worker’s actions; and
3. the weight of the rubber, being approximately 50kg, was too heavy for just one person to lift.

The Court noted that, where two people are involved in a lift of this magnitude, there is a need for coordination. In this instance, the errant co-worker failed to properly consider the lift with the Plaintiff before he started to move the pipe in circumstances where his omission lead to the Plaintiff’s injury and constituted a causal act of negligence.

Judgment was entered for the plaintiff against both defendants

Does vicarious liability attach?

Even though the identity of the errant co-worker was not determined, the Court was prepared to hold the host employer vicariously liable for that co-worker’s negligent act because, at the time of the injury, the co-worker was working as part of a team under the guidance of the host employer. This guidance extended to the act of moving the hose.

In those circumstances, the trial judge was satisfied that the unidentified co-worker was a person acting as if he was an employee of the host employer and as such, vicarious liability should attach to the host employer for his negligence in failing to coordinate the lift of the pipe prior to his attempting to move it.

It was not necessary for the trial judge to consider the respective culpabilities of the labour hire employer and the host employer at length because both defendants had reached a prior agreement regarding their crossclaims that, if liability was found in favour of the Plaintiff, 90% of liability would be apportioned to the host employer, and 10% to the labour hire employer. The trial judge was content to accept this apportionment which aligned with other cases in recent years where courts assigned minimal liability to labour hire employers when accidents involving a labour hire employee occur largely beyond their control.¹

Implications

The outcome in this case, whilst somewhat novel, is not unprecedented in that Courts have shown some readiness to attach vicarious liability to employers for non-employers’ negligent acts in recent years.

For instance, in Mt Owen v Parkes [2023] NSWCA 77, the NSW Court of Appeal confirmed a trial judge’s finding that a host employer was vicariously liable for a labour hire employer’s negligence by virtue of the host employer having the authority to direct and supervise its labour hire employees who were required to work at the host employer’s premises in accordance with its safety policies, rendering the host employer to be the employer pro hoc vice.

Situations where vicarious liability attaches to a principal or host employer occur only in exceptional circumstances, but the propensity for such situations to arise is increasing in contemporary labour hire arrangements where the PAYG employer’s role with respect to the labour worker’s employment is essentially administrative and the host has control over the worker’s day-to-day duties and their workplace health and safety.

¹See Kabic v Workers Compensation Nominal Insurer (N.3) (2017) NSWSC 1281; Castillo v Premist Formwork Contractors Pty Ltd (2019) NSWDC 6 and Marketform v Ashcroft Supa IGA Orange (2020) NSWCA 36.