In a recent Queensland Supreme Court decision, a host employer was found to be 75% liable for failing to implement and enforce a safe system of work after a labour hire employee fractured his elbow when attempting to dodge a wasp and then falling over a bag of rubbish.
This case serves as an important reminder to both host employers and labour hire companies to ensure proper systems of work are not only in place but are actively enforced.
Background
In the case of Carey-Schofield v Hays & Civeo [2024] QSC 60, Mr Carey-Schofield was employed by Hays Specialist Recruitment (Australia) Pty Ltd (the labour hire employer) as a casual facilities worker and was labour-hired to Civeo Pty Ltd (the host employer) to work at Civeo's accommodation village at Dysart.
Just nine days after beginning work at the Dysart village, Mr Carey-Schofield injured his left elbow. The incident occurred while Mr Carey-Schofield was emptying wheelie bins. Mr Carey-Schofield alleged that he removed the bag from the first bin but found it to be too heavy to lift into the utility, so he placed it on the ground and began removing the bag from the second bin.
While it was disputed by Civeo, the Court accepted that Mr Carey-Schofield then yelled out to a co-worker and requested assistance lifting the first bin bag into the utility. The co-worker tried to lift a bag up but also found it to be too heavy and advised Mr Carey-Schofield that they would pick them up on the way back.
Mr Carey-Schofield alleged that, as he attempted to remove another bin bag, a wasp flew towards him, causing him to step back and fall over one of the bin bags he had already removed.
System of work
The Court accepted that, when Mr Carey-Schofield had started work at the Dysart village and after a generic site induction with Civeo, he was placed with a buddy for a practical demonstration of how to carry out his duties. Mr Carey-Schofield alleged that his buddy instructed him to drive a work utility to the area where the bins were located, open the lid of the bin, tie the top of the bin liner, lift the bin liner out of the bin and put it down on the ground, put the new liner in the bin and then go to the next available bin until each of the bin liners have been removed. To save time, once all the bags removed, they would all be loaded into the utility (rather than walking back and forth with each bag).
This practical training was contradictory to Civeo's safe system of work, which required bin bags to be placed in the utility straight away, so as to avoid creating a tripping hazard. His Honour found that there was no evidence to contradict Mr Carey-Schofield's description of his training, which was consistent with Civeo's written instructions for the task of waste and rubbish disposal. If a bin liner was too heavy to lift out of the bin, Mr Carey-Schofield was instructed to lie the wheelie bin down and the drag the bin liner out on its side. If it was too heavy to lift into the tray of the utility, he was to call for assistance.
Hays contested Mr Carey-Schofield's version of events and highlighted several inconsistencies in his reporting of the incident. However, Justice Crow found Mr Carey-Schofield to be a generally honest and mostly reliable witness. His Honour accepted Mr Carey-Schofield's version of events, finding that Mr Carey-Schofield had not been trained to perform rubbish disposal in accordance with Civeo's safe system of work as he was not trained to immediately place full bags of rubbish into the rear of the work utility so as to avoid trip hazards.
Risk
Hays and Civeo argued that the risk to Mr Carey-Schofield of tripping on a bag that he had only just, and temporarily, placed upon the ground was not a significant risk. His Honour disagreed with this and found that emptying bins was a frequent task, which Mr Carey-Schofield was trained to do by leaving bin bags all about the place. This system created hundreds of potential tripping risks. His Honour found that Mr Carey-Schofield had been trained by his buddy that it was acceptable to leave full bin bags on the ground before loading them into the utility.
It was accepted that, while the appearance of the wasp was the event that exposed Mr Carey-Schofield to the risk, the risk itself was the risk of tripping on a bin bag. If the bin bags had not been placed on the floor, Mr Carey-Schofield would not have tripped when stepping back to avoid the wasp.
Breach and apportionment
His Honour found that Civeo breached their duty to Mr Carey-Schofield by failing to:
- provide adequate manual handling assistance (either through mechanical aids or additional workers) to assist with this task
- direct or instruct him to place bin bags immediately into the utility,
and, thereby, had failed to direct or instruct him to ensure the floor was free of potential trip hazards.
Hays, as the labour hire employer, argued that it should not be found liable for any portion of the breach. However, Justice Crow held that Hays had breached its non-delegable duty to Mr Carey-Schofield by failing, despite conducting inspections, to detect the anomalies and deficiencies in Civeo's system of work that allowed bin bags to be left on the ground. Justice Crow found that Hays visited the site from time to time and performed checks on the works being performed. Accordingly, Hays had the ability to review Civeo's system of work and point out anomalies and had failed to do so. Nevertheless, Justice Crow held that Civeo, as the host employer, was predominantly liable as it was responsible for the design, implementation and enforcement of the system of work.
Justice Crow found in favour of Mr Carey-Schofield against Hays and Civeo and awarded $503,595.51 (clear of the refund to Workcover) against Hays and $873,014.08 against Civeo. Damages were apportioned at 75% against Civeo and 25% against Hays.
Conclusion
Courts will not alleviate labour hire employers of their non-delegable duty on the basis that they simply weren't aware of the system of work in place or that they didn't have control of those systems. In this case, the labour hire employer was found to have directly breached its duty by failing to detect the anomalies and deficiencies in the host employer's system of work. Nonetheless, the Court elected not to increase the labour hire employer's exposure higher than the standard 25% and the host employer was found to be the major tortfeasor.
Civeo was essentially stung twice, with both an unfavourable liability and apportionment result.
(We are aware that the decision is the subject of an appeal.)
Cooper Grace Ward is a leading Australian law firm based in Brisbane.
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