Third parties to provide insurance

This case demonstrates

• Third parties may have to provide insurance for employees when it can be shown the injury was caused by a change to the system of work that could not be detected on inspection of the premises prior to injury by the employer.

Background

The plaintiff was employed by Adecco, a labour hire company, which hired out the plaintiff's services to building materials manufacturer CSR. The plaintiff obtained employment with Adecco in 2000. His services were hired principally to a concrete company and CSR.

The plaintiff usually worked as a driver of concrete agitator trucks. However, the plaintiff was required by CSR to remove solidified concrete from the inside of a concrete barrel using a jackhammer; a process called de-dagging. This task was normally undertaken when the weather was wet and the trucks could not make deliveries.

CSR provided the plaintiff with a Kanga jackhammer to de-dag, which weighed 10 to 15 kilograms. The claimant had no problems de-dagging with this jackhammer.

The Kanga jackhammer was stolen so CSR hired another jackhammer for the plaintiff to use. This jackhammer weighed 25 kilograms.

It was when using the heavier jackhammer on the premises of CSR that the plaintiff sustained his injury. The plaintiff was standing inside the barrel of a concrete truck holding the jackhammer above his head to remove the hardened concrete that had attached to the inner aspect of the concrete barrel. The plaintiff stated he held the jackhammer above his head rather than at below waist level at a downwards angle, so he could see any concrete falling and because his site boss instructed him not to do it that way (at waist level).

His injuries were to his cervical spine. The plaintiff sustained his injury in June 2002 and in September 2002 the plaintiff had surgery on his cervical spine.

Judgement

The court found that Adecco had breached its non-delegable duty of care (as an employer). This means an employer owes a non delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. However, the court ruled that Adecco did not breach any direct duty of care to the plaintiff and so was entitled to complete indemnity from CSR because:

1. Adecco had no direct involvement in the site.
2. Adecco had no control over the site.
3. Adecco did not have a supervisor on site.
4. Adecco was not involved in the claimant's day to day work.
5. There was no evidence Adecco was aware of the use of a full sized jackhammer to de-dag trucks.
6. Adecco had been supplying labour to CSR for at least three to four years and the court assumed Adecco was aware that de-dagging of the barrels of concrete agitator trucks was carried out from time to time.
7. De-dagging was performed intermittently and on dates which were not predictable. It was unlikely Adecco would have observed de-dagging being performed had it carried out a site inspection.
8. Had Adecco observed de-dagging being performed prior to the theft of the first Kanga jackhammer it would have observed the work being carried out using appropriate equipment and as part of a safe system of work.
9. Any reasonable inspection or inquiry by Adecco at any time prior to the day before the plaintiff's injury would not have revealed any breach of the duty of care.
10. The claimant was experienced in the job.
11. The plaintiff had been provided by Adecco with a safety handbook prior to injury that set out safety procedures to be followed and to notify Adecco of any hazardous or potentially hazardous situations identified and not to undertake tasks that were unsafe.

There were no contractual issues (e.g. breach of contract or indemnity) raised in this case.

The Judge assessed damages against CSR at $533 220 including $206 612 for future economic loss. Damages against Adecco were at $260 901.41.