By Gaby Grammeno Contributor
The worker, an experienced concreter, was employed by a labour hire company that had contracted his services to a large concrete placement company.
In April 2018 he was working at a building site in Sydney’s CBD. He and another worker were directed to move a concrete hose from one area of the site to another, closer to the concrete boom. The ‘concrete hose’ was a pipe weighing in the region of 50 kg.
Describing the incident, the worker said his co-worker ‘picked up the concrete hose and began walking at a fast pace before I was ready. I was jerked forward and made to walk before I had a proper hold of the hose and before I had stood up properly’.
He immediately felt pain in his lower back, was in tears and nauseous and found it hard to breathe.
The other worker’s failure to co-ordinate the lift properly had resulted in sudden force which damaged the discs in the concreter’s lower back.
The injury left him with chronic, severe pain, and because of this, together with his inability to continue with his pre-injury work, he developed a psychiatric condition – an adjustment disorder with depression.
The identify of the co-worker involved in the lift was not clear. He may or may not have been an employee of the labour-hire company, but he was working as if he was an employee of the host employer – the concrete placement company.
The injured worker claimed that his injuries were caused by a casual act of negligence by the unidentified worker, alleging that the concrete placement company (the first defendant) was vicariously liable for the negligence of his partner in the team lift. The injured worker’s direct employer – the labour hire company – had also breached its duty of care to him, he claimed, but it was no longer registered, so the Workers Compensation Nominal Insurer became the second defendant.
Both defendants denied liability, and the case was heard in the Supreme Court of New South Wales.
In court
The worker did not allege that the concrete placement company’s system of work was deficient, but rather that the company was vicariously liable for the co-worker’s failure to properly coordinate the movement of the pipe such that the lift could be performed safely.
He claimed damages for non-economic loss, past and future economic loss (including lost superannuation benefits and reimbursement for income tax paid on workers comp benefits previously received), past and future medical and equipment needs, and past and future domestic assistance.
Both defendants challenged the worker’s claims about the nature and extent of his injuries.
By the completion of the evidence, however, the concrete placement company recognised the futility of the case based on the evidence of its witnesses, and conceded the worker’s version of what happened could not be challenged.
On any controversial matter, Justice Michael Elkaim unequivocally accepted the worker’s evidence. He said this was not only a reflection of the plaintiff being an impressive and credible witness, but more ‘because the defendant’s witnesses were unimpressive and probably have no, or at most a very small, recollection of the relevant events’.
Justice Elkaim found that because the unidentified co-worker was acting under the supervision of the host employer and in obedience to a specific direction from the host employer, ‘then I think the step to negligence has been made’.
The labour-hire company had transferred the authority to control the injured man’s work activities to the host employer – the concrete placement company.
Justice Elkaim found that the concrete placement company was vicariously liable for the casual act of negligence of the other worker as he was performing the lift.
In calculating the damages payable, the court had to consider whether the worker’s pre-existing pathology would have affected his earning capacity. The medical experts agreed that the pre-existing pathology would have affected his function after 12 years, which meant that damages awarded for his future economic loss were reduced to take account of the likely reduction in his income after 12 years.
Justice Elkaim awarded damages under all the heads mentioned in the worker’s claim. The concrete placement company was ordered to pay the worker $2,597,187, with the second defendant required to cover 10 percent of the sum.
What it means for employers
If workers, including labour-hire workers, are acting under the supervision and direction of the host employer, the host employer may be vicariously liable for an injury to a worker on the site.
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