Home » Employer, Labour Hirer and Independent Contractor All Liable for Death

Emoleum (Aust) Pty Ltd v Cecil Henry Bond & Ors [2004] NSWCA 352: The NSW Supreme Court of Appeal has ordered a labour hire company, the company it hired labour to and an independent contractor to pay damages in respect of the death an employee of the labour hire company.

Employment Labour Services Pty Ltd (In Liq) (ELS), hired out one of its employees to Emoleum (Aust) Pty Ltd (EAPL) to conduct traffic control duties at major roadworks being undertaken by EAPL. The death of the employee occurred when a truck, owned and operated by an independent contractor (Barker) ran over the employee while reversing along a stretch of the roadworks. There was evidence that Barker had been specifically instructed to reverse along the route by one of EAPL’s employees.

The trial judge initially found EAPL owed a duty provide a safe system of work, similar to that falling upon an employer, and had breached that duty. The trial judge concluded that EAPL was 60% responsible for the death and was liable for 60% of the damages. The Court of Appeal agreed that EAPL’s owed such a duty and had breached that duty but on the facts considered it should only be 40% responsible.

In relation to ELS, the trial judge and the Court of Appeal agreed that it’s obligations in favour of the employee were personal to ELS and non-delegable. The obligation to take reasonable care for the employee in the course of his employment could not be transferred to a third party. Accordingly both also agreed that ELS was 20% responsible.

In relation to Barker, it was never doubted by the trial judge that he owed a general duty of care to the employee. The trial judge concluded that he had been negligent and initially ordered he was 20% responsible. The Court of Appeal subsequently increased this percentage to 40%.

This case illustrates the various parties that may owe a duty of care to a person who is ‘hired out’. It highlights the obligations of labour hire companies to their employees notwithstanding that such employees are hired out to other workplaces. It reinforces the importance of maintaining safe systems of work and that this obligation extends to people beyond your employees. It also shows that persons who hire labour owe duties towards those people which are similar to those duties owed to employees.