The plaintiff suffered personal injuries in August 2013 in the course of employment with the first defendant. The injury arose out of a collision between the tray of a truck operated by the plaintiff and the bucket of an excavator operated by an employee of the second defendant.
The issues for McMeekin J were:
- What was the cause of the incident?
- Was the second defendant vicariously liable for its employee’s act?
- Was the plaintiff contributorily negligent?
- Was the second defendant obliged to indemnify the first defendant?
Relevantly, the defendants argued that the collision occurred due to the plaintiff’s negligence. The plaintiff argued that the collision occurred by the employee of the second defendant, Mr Philips for which the second defendant is vicariously liable, or by an unsafe system of work for which the first defendant is liable.
Determining the cause of the incident, his Honour stated as follows:
 In my view there were three operative causes of the incident. The first was the positioning of the bucket. The second was the presence of spillage of material. The third was the lack of any signal to stop.
 The essential cause of the incident was that Mr Phillips had the bucket of the excavator so located that the truck could collide with it. It should not have been there. That the bucket should be kept clear of the tray of the reversing truck seems a self-evident precaution to take. Mr Paskins’ ability to see the location of the bucket was very limited or non-existent. As I have explained he was obliged to use his side mirrors to position his vehicle relative to the front idler of the excavator. He relied on Mr Phillips to have the bucket clear of the tray. It wasn’t on this occasion.
After examining the safe operating manual, McMeekin J continued:
 Spillage was common place and there was a system in place to deal with it. Either operator could have called for it to be removed before proceeding. But Mr Phillips had the overall control and the better view. Knowing of the presence of the spillage – and so at least the possibility of the truck travelling over it and so rising up to some extent – it was incumbent on Mr Phillips to have his bucket high enough to ensure that there could be no impact with the truck. The possibility of a forceful impact sufficient to cause injury should have been obvious.
 I am satisfied that the incident occurred as a result of an error of judgment by Mr Phillips in assessing the height of the bucket, the likely effect of the mound of spoil on the height of the tray, and in failing to sound a timely signal to Mr Paskins to stop. In my view Mr Phillips’ errors, particularly the first and third, amounted to negligence – he fell below the standard of reasonable care that should be expected of an operator of the excavator.
As to whether there was a breach of duty, his Honour stated:
 I am satisfied that the three pre-conditions set out in section 305B(1) are met. The risk of injury was plainly foreseeable and it would appear from the safe operating procedure, in fact foreseen. The risk was far from insignificant. As senior counsel for Mr Paskins submitted: “The system was one which encouraged ‘efficiency’ and a
procedure which had two large pieces of mining equipment coming together simultaneously. The margin for error was small and had significant consequences given the size of the machinery and weights and forces involved.”
Finding that the plaintiff was acting within the scope of his employment at the time of the incident, his Honour went on to consider the second defendant’s submission that Mr Philips was in effect the employee of the first defendant:
 Workpac seeks to avoid the imposition of liability on it by invoking the concept of a temporary abrogation of the relation of master and servant between itself and Mr Phillips (the pro hac vice concept) … I note that the position is complicated by the fact that Hail Creek had imposed on it statutory obligations under the Coal Mining Safety and Health Act 1999 (Qld). The contractual provisions that provided for Hail Creek to exercise what control it did over Workpac’s operatives … also ensured that it could discharge its statutory obligations.
 … it is the right to control that is crucial. The contract between Workpac and Rio Tinto (under which Mr Phillips’ labour was hired to Hail Creek) expressly preserves Workpac’s ability to exercise control over its employees …
 Thus under the terms of the contract between the parties Workpac is obliged to have a continuing presence on site and to exercise significant controls over its employees. Nonetheless, while relevant, the terms of the contract are not determinative. It is the totality of the relationship that must be considered, the right to exercise relevant control being the important factor.
After discussing the authorities, his Honour concluded that:
 It is clear that the onus lies on the general employer (ie Workpac) to show the transfer of services and that the “burden is a heavy one and can only be discharged in quite exceptional circumstances” …
 I have reached the view that Workpac should be held to the usual incidents of employment and that includes liability to injured third parties for the casual acts of negligence of its employees. In my view the heavy onus the authorities speak of has not been discharged.
As to whether the plaintiff was contributorily negligent, his Honour stated:
 At common law a plaintiff is guilty of contributory negligence when the plaintiff exposes himself or herself to a risk of injury which might reasonably have been foreseen and avoided and suffers an injury within the class of risk to which he or she was exposed … The question is whether, in the circumstances and under the conditions in which the worker was engaged, the worker’s conduct amounted to mere inadvertence, inattention or misjudgement or to negligence rendering him responsible in part for the damage …
For reasons outlined at paragraph  his Honour was not satisfied that contributory negligence was made out. His Honour found, inter alia, that even though the plaintiff was not wearing the seatbelt appropriately, contributory negligence was not made out because it could not be shown what difference it would have made to the plaintiff’s injuries if he was wearing one.
Third party claim
His Honour was satisfied that on the proper construction of the contract, the second defendant was liable to indemnify the first defendant.
Douglas J gave judgement for the plaintiff against the first defendant in the sum of $709,408.26 (indemnified by the second defendant) and as against the second defendant, $966,991.38.
David Cormack – Brisbane Barrister & Mediator