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Instructions: a direction or mere request?

Vella's Plant Hire Pty Ltd v Mistranch Pty Ltd & Ors [2012] QSC 77
McMeekin J29 March 2012

Background

On 23 April 2007 the injured worker was employed as a plant operator who was clearing long grass with a bulldozer. The site had a steep slope. The worker had worked on this site before but used an excavator rather than a bulldozer. Whilst clearing the top of the slope (at the request of the second defendant), he misjudged the edge and the bulldozer rolled over the edge and down the slope. He sustained very serious injuries as a result of the incident.

The Facts

The matter was settled with worker but proceeded to trial for contribution from the Principal Contractor, Mistranch Pty Ltd, who was hired by the two neighbouring land owners, Dreamtea Ply Ltd and Houwings.

Judgment

The court found the employer was a well established dozer hire company who employed competent operators of its equipment. The worker was found to be an experienced and competent operator, was well familiar with the machine in question, was well aware that steep banks existed on the land and well aware that the de-grassing of that land was to be performed by an excavator, and not a dozer.

The workers superior was present on site, was well aware of the danger presented by the steep batter, spoke to the worker about it earlier, but made no arrangements to identify the location of the batter or otherwise keep his worker safe from going over the edge of the batter as he thought the worker was well able to look out for himself. The principal contractor was not shown to have any qualifications or experience as a dozer operator.

The judge found there was a conversation between the worker and Principal Contractor to the extent the worker was asked to clear an area in the close proximity to a pink flag that was tied to a fence identifying the presence of infrastructure that was not to be damaged and the presence of a steep slope. WorkCover therefore considered the principal contractor had exercised direction and control by placing the tape and directing the worker to clear to the tape.

The worker who had indicated he did not wish to go into the area without the digger indicated he only went in to try and help out the principal contractor.

The case law relating to respective responsibilities of Principal and Contractor find the cases show the totality of the circumstances must be considered and the central matters of importance include the presence or extent of the power to direct or control on the part of the principal, any obvious reliance on the principal and the vulnerability of the employee.

His honour found the worker did not suggest that the placing of the pink tape misled him or made him think the batter was not nearby, the worker's superior was in a position to assess risk as an experienced operator of heavy machinery, that the principal contractor did not direct the manner of performance of the work but at its highest he made a request of the worker to clear an area and that it was open for the worker to refuse the request.

The claim against the principal contractor was dismissed.