Kelly v Bluestone Global Ltd (in liq)
[2016] WASCA 90
•3 JUNE 2016
KELLY -v- BLUESTONE GLOBAL LTD (IN LIQ) [2016] WASCA 90
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 90 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:50/2014 | 1 APRIL 2016 | |
| Coram: | McLURE P MURPHY JA MITCHELL J | 3/06/16 | |
| 29 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | STEPHEN MONTGOMERY KELLY BLUESTONE GLOBAL LTD (IN LIQ) TSS RECRUITMENT PTY LTD (IN LIQ) |
Catchwords: | Negligence Res ipsa loquitur Breach of duty Jones v Dunkel inference Vicarious liability Whether vicarious liability transferred from employer to third party Availability of dual vicarious liability Future economic loss |
Legislation: | Mines Safety and Inspection Act 1994 (WA) |
Case References: | Bostik Australia Pty Ltd v Liddiard [2009] NSWCA 167 Day v Ocean Beach Hotel Shellharbour Pty Ltd [2013] NSWCA 250; (2013) 85 NSWLR 335 De Domenico v Marshall (1997) 75 IR 182 Denham v Midland Employers Mutual Assurance Ltd [1955] 2 QB 437 Deutz Australia Pty Ltd v Skilled Engineering Ltd [2001] VSC 194; (2001) 162 FLR 173 Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21 Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672 McDonald v Commonwealth (1945) 46 SR (NSW) 129 Mersey Docks and Harbour Board v Coggins & Griffith (Liverpool) Ltd [1947] AC 1 Oceanic Crest Shipping Company v Pilbara Harbour Services Pty Ltd [1986] HCA 34; (1986) 160 CLR 626 Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 CLR 121 State of New South Wales v Lepore [2003] HCA 4; (2003) 212 CLR 511 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 Various Claimants v Catholic Child Welfare Society [2012] 3 WLR 1319 Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2006] QB 510 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : KELLY -v- BLUESTONE GLOBAL LTD (IN LIQ) [2016] WASCA 90 CORAM : McLURE P
- MURPHY JA
MITCHELL J
- Appellant
AND
BLUESTONE GLOBAL LTD (IN LIQ)
First Respondent
TSS RECRUITMENT PTY LTD (IN LIQ)
Second Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : STAVRIANOU DCJ
Citation : KELLY -v- HUMANIS GROUP LIMITED [2014] WADC 43
File No : CIV 2520 of 2011
Catchwords:
Negligence - Res ipsa loquitur - Breach of duty - Jones v Dunkel inference - Vicarious liability - Whether vicarious liability transferred from employer to third party - Availability of dual vicarious liability - Future economic loss
Legislation:
Mines Safety and Inspection Act 1994 (WA)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Ms C F Holyoak-Roberts
First Respondent : Mr G R Hancy
Second Respondent : Mr G R Hancy
Solicitors:
Appellant : Vertannes Georgiou
First Respondent : DLA Piper Australia
Second Respondent : DLA Piper Australia
Case(s) referred to in judgment(s):
Bostik Australia Pty Ltd v Liddiard [2009] NSWCA 167
Day v Ocean Beach Hotel Shellharbour Pty Ltd [2013] NSWCA 250; (2013) 85 NSWLR 335
De Domenico v Marshall (1997) 75 IR 182
Denham v Midland Employers Mutual Assurance Ltd [1955] 2 QB 437
Deutz Australia Pty Ltd v Skilled Engineering Ltd [2001] VSC 194; (2001) 162 FLR 173
Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21
Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672
McDonald v Commonwealth (1945) 46 SR (NSW) 129
Mersey Docks and Harbour Board v Coggins & Griffith (Liverpool) Ltd [1947] AC 1
Oceanic Crest Shipping Company v Pilbara Harbour Services Pty Ltd [1986] HCA 34; (1986) 160 CLR 626
Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 CLR 121
State of New South Wales v Lepore [2003] HCA 4; (2003) 212 CLR 511
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16
Various Claimants v Catholic Child Welfare Society [2012] 3 WLR 1319
Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2006] QB 510
1 McLURE P: The appellant/plaintiff appeals against the order of Stavrianou DCJ dismissing his claim in negligence for injuries he suffered in the course of his employment at the Yarrie mine site in the north of Western Australia.
2 At the material time, the appellant was employed by Ngarda Mining and Civil Pty Ltd (Ngarda), the operator of the BHP Billiton-owned Yarrie mine. The appellant's pleaded claim was that on 16 November 2009 he, in the course of his employment with Ngarda, drove a dump truck to the west pit at the Cattle Gorge section of the Yarrie mine site in readiness for loading by an excavator operated by Mr R Scanlan. The appellant reversed the dump truck to an area directly underneath the fully loaded excavator bucket. Mr Scanlan dropped the fully loaded bucket onto the tray of the appellant's dump truck causing the dump truck to shake violently thereby causing neck and back injuries to the appellant.
3 The respondents carried on a labour hire business. Mr Scanlan was employed by the second respondent [330] to work for Ngarda at the Yarrie mine. At the time of the incident, Mr Scanlan was operating an Hitachi Ex 2500 excavator supplied by Ngarda. Mr Scanlan was not called by any party to give evidence at trial.
4 The appellant claimed at trial that the respondents were liable to him for their own negligence (direct liability) and for the negligence of Mr Scanlan (vicarious liability). The trial judge dismissed both claims. There is no challenge to the dismissal of the direct liability claim. This appeal is confined to the claim that the second respondent is vicariously liable for the negligence of Mr Scanlan.
5 The trial judge found that Mr Scanlan owed the appellant a duty to take all reasonable care for the appellant's safety when performing his employment duties and take all reasonable care not to expose the appellant to the risk of foreseeable injury when performing his employment duties [267]. However, he was not satisfied that Mr Scanlan had breached his duty of care.
6 The trial judge made an adverse credibility assessment of the evidence of the appellant [77] - [79] and did not accept his description of the circumstances of the incident [80], [275] - [282]. There were inconsistencies between the appellant's account of the incident given in evidence, his contemporaneous and other out of court statements and his pleading. The trial judge concluded:
In all the circumstances I am not satisfied that the incident occurred in the way described by the [appellant] in his evidence. I am satisfied that there was an impact between the excavator and the truck in the course of Mr Scanlan operating the excavator on 16 November 2009. So much is admitted by the [respondents]. However, I am not satisfied there was violent shaking as described by the [appellant]. The impact was to the left side of the tray of the truck. It was a minor impact which resulted in a small amount of damage to the truck [284].
7 The trial judge found that Mr Scanlan was an experienced and trained excavator operator who, at the time of the incident, was 'blindside loading' the dump truck in dusty conditions [291]. Blindside loading is a function of the position of the excavator boom on the right side of the cab of the excavator, looking forward. The excavator boom obscures the right side view when it is moved in a clockwise direction [30]. It was no part of the appellant's case that Mr Scanlan ought not to have blindside loaded. The only live issue at trial was whether or not Mr Scanlan was blindside loading. The appellant's case was that he was not. The trial judge also found that impacts between an excavator bucket and a dump truck are a regular or common incident of loading on mine sites, even with experienced and competent operators [285].
8 On the subject of breach by Mr Scanlan, the appellant pleaded that he failed to properly control the bucket of the excavator to ensure that it did not smash into the tray of the truck and failed to keep any or any proper lookout for the location of the appellant's dump truck [35]. The trial judge said there was no evidence from which he was prepared to conclude that Mr Scanlan failed to keep proper control of the excavator or that he failed to keep a proper lookout, there being no expert or other evidence which established such a breach.
9 Moreover, the trial judge concluded that the principle of res ipsa loquitur had no application in the circumstances of this case. The trial judge held that the appellant had failed to establish that Mr Scanlan breached his duty of care to the appellant [298].
10 The trial judge declined to draw a Jones v Dunkel inference from the respondents' failure to call Mr Scanlan as a witness at trial on the basis, inter alia, that the relationship between Mr Scanlan and the respondents was not such as to create an expectation that the respondents would call him to give evidence [223].
11 Notwithstanding the absence of a finding of breach, the trial judge went on to consider the issues of causation, vicarious liability and quantum of damages. He was satisfied that the appellant had discharged the burden in relation to causation [328].
12 The trial judge was not however satisfied that the second respondent was vicariously liable for any negligence of Mr Scanlan. He held that the arrangements and degree of control Ngarda exercised in relation to Mr Scanlan had the effect of transferring his services to Ngarda with consequent responsibility for any negligent acts being transferred to Ngarda [360] - [361].
13 Finally, in calculating future loss of earning capacity, the trial judge was not satisfied that the appellant would have continued working at Yarrie or a similar location to the age of 67. He considered it reasonable to calculate loss of future earning capacity to age 60 [456].
Grounds of appeal
14 The appellant contends, in the following order, that the trial judge erred:
1. in failing to hold that the second respondent was vicariously liable for the actions of Mr Scanlan;
2. in failing to draw an inference of negligence on the basis of the principle of res ipsa loquitur;
3. in failing to find that Mr Scanlan breached his duty of care to the appellant;
4. in calculating future economic loss on the basis that the appellant would retire at age 60 rather than 67;
5. in failing to draw a Jones v Dunkel inference on the issues of res ipsa loquitur and breach from the respondents failure to call Mr Scanlan.
15 The logical order in which to address the grounds of appeal is 2, 3, 5, 1, 4.
Res ipsa loquitur - ground 2
16 The scope and effect of the principle of res ipsa loquitur have been decisively settled by the High Court: Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121. The principle is not a distinct, substantive rule of law, but an application of an inferential reasoning process, and the plaintiff bears the onus of proof of negligence even when the principle is applicable: Schellenberg [22].
17 A plaintiff may rely on res ipsa loquitur even though he or she has also pleaded particular acts or omissions of negligence on the part of the defendant provided the tribunal of fact concludes that:
1. there is an absence of explanation of the occurrence that caused the injury;
2. the occurrence was of such a kind that it does not ordinarily occur without negligence; and
3. the instrument or agency that caused the injury was under the control of the defendant: Schellenberg [25].
18 The principle only applies if it is within the common knowledge and experience of mankind that the occurrence is unlikely to occur without negligence on the part of the party sued. Where the occurrence is outside the experience of the lay person, and the evidence, expert or otherwise, does not establish that such an occurrence ordinarily does not occur without negligence, res ipsa loquitur is inapplicable: Schellenberg [41], [43].
19 Further, it is not sufficient for the facts merely to speak of negligence: the evidence must point to the defendant's negligence: Schellenberg [48].
20 The appellant did not plead res ipsa loquitur. It was raised for the first time after the conclusion of the trial. The 'occurrence' in this case is the excavator bucket hitting and shaking the dump truck. The trial judge rejected the claim:
I do not accept that the incident was 'of such a kind that it does not ordinarily occur without negligence' … A conclusion favourable to the [appellant] cannot be drawn from the common knowledge and experience of mankind [287].
21 The appellant submitted in the appeal that the principle of res ipsa loquitur applied to the occurrence regardless of the circumstances in which it occurred. That submission is unsustainable in view of the unchallenged finding of the trial judge that impacts between an excavator bucket and dump truck are a regular or common incident of loading on mine sites even with experienced and competent operators. That is in substance a positive finding that the occurrence can occur without negligence. The finding was based on the evidence of witnesses (Mr Peter Taylor and Mr Kim Crofts) who were, by virtue of their long experience, experts in the field.
22 In any event, the trial judge was correct to conclude that the occurrence in this case cannot support an inference of negligence because it is not within the common knowledge and experience of mankind. As the occurrence is outside the experience of lay people and the expert evidence does not establish that such an occurrence ordinarily does not occur without negligence, res ipsa loquitur is inapplicable: Schellenberg [43].
23 Further, there is an additional ground for the non-application of the principle of res ipsa loquitur. It is not sufficient for the facts merely to speak of negligence: the evidence must point to the defendant's negligence. A live issue on the appellant's evidence was whether he had reversed into the bucket of the excavator [282]. I would dismiss ground 2.
Breach - ground 3
24 The appellant contends the trial judge erred in finding that Mr Scanlan did not breach his duty of care. The trial judge did not make a positive finding to that effect. Rather, he was not satisfied that the appellant had established the particulars of negligence on which he relied [298].
25 The appellant relies on the trial judge's alleged failure to consider additional evidence in support of the appellant's pleas of breach (failure to keep proper control of the excavator and failure to keep a proper lookout). That is not a claim of an appealable error. The appellant must establish that on all the relevant evidence, the trial judge should have made a positive finding of breach. Such a ground requires the appellant to file and serve a schedule identifying all evidence for and against the finding he seeks in accordance with Practice Direction 7.4. That has not been done. In any event, the 'additional evidence' on which the appellant relies falls short of filling the evidentiary gaps.
26 The appellant relies on three Ngarda investigation reports tendered in evidence at trial. The first is a report dated 18 November 2009 by Mr Kim Crofts, Ngarda's safety and training superintendent at Yarrie. Mr Scanlan had made a statement dated 16 November 2009 in which he admitted that contact was made between the excavator bucket and the rear left hand side of the dump truck's tray causing minor damage. Mr Crofts' report states that at the time Mr Scanlan was blindside loading in dusty conditions and that Mr Scanlan said 'he made an error (misjudgement) and made contact with one of the bucket teeth when slewing over the rear of the tray' (G178). The second is an Incident Summary signed by a Mr Leon Taylor (who did not give evidence) which identifies the major contributing factor to the incident as 'excavator operator judgment error. Dusty conditions. Blindside loading' (G1/184). Finally, a document entitled 'Confidential Event Report' (G1/186) states that 'the Exc Op misjudged the position of the truck (blindside loading and dusty conditions) and clipped the outside rear edge (LHS) of the D/T'.
27 Mr Kim Crofts and Mr Peter Taylor, Ngarda's Mining Superintendent at Yarrie, gave evidence at trial for the respondents. They investigated the incident for Ngarda. It was not put to either of them in cross-examination that their investigation findings were to the effect that Mr Scanlan was negligent. The basis for and meaning of 'judgment error' was not the focus of attention. Rather, they were challenged on their statements that Mr Scanlan was blindside loading and that the damage to the truck was minor.
28 In any event, the trial judge's conclusion on breach was informed by the appellant's evidence at trial and the inconsistencies with his out of court statements. The appellant's evidence, as summarised by the trial judge, was as follows:
[The appellant] gave evidence he stopped his truck away from the excavator bucket which was in the air. He unsuccessfully attempted to radio Mr Scanlan to ask him if that was where he wanted the truck. The plaintiff heard a beep from the horn of the excavator. He looked in his left hand mirror and saw Mr Scanlan with his hands in a V shape in the air. He interpreted the hand gesture as Mr Scanlan saying, 'What are you doing?'. The plaintiff then reversed back under the excavator. The bucket was still in the air.
[The appellant] gave evidence as to the impact which then occurred as follows:
Right? - when he beeps the horn for me to stop, that's when I - I felt a big bang in the tray. It shook me all over the place (ts 46) [52] - [53].
30 It was open to the trial judge to conclude that the appellant had not discharged the burden of establishing the circumstances of the incident. As a result of the failure of the appellant to prove the circumstances of the incident, it was well open to the trial judge to fail to be satisfied that Mr Scanlan had breached his duty owed to the appellant. I would dismiss ground 3.
Jones v Dunkel - ground 5
31 After the commencement of the trial, the appellant was offered the opportunity to call Mr Scanlan as a witness and for the trial to be adjourned for that purpose [221]. However, that did not eventuate. Instead, the appellant sought to rely on a Jones v Dunkel inference in relation to Mr Scanlan's 'qualifications/experience' and in proof of negligence. The trial judge declined to do so for a number of reasons.
32 First, Mr Scanlan made a statement on 16 November 2009 in the course of the investigation into the incident which was adduced in evidence at trial (exhibit 1.616). He confirmed there was contact between the excavator bucket and the tray of the truck which caused minor damage. In the trial judge's assessment, there was nothing in his statement to suggest his evidence would assist the appellant's case directly or by adversely affecting the respondents' case.
33 Second, the trial judge was satisfied that the relationship between Mr Scanlan and the respondents was not such as to create an expectation that the respondents would call him to give evidence. Mr Scanlan was not a regular employee of the respondents. He delivered his resume to the respondents for the purpose of obtaining employment at the Yarrie mine. He was engaged by the respondents on the basis that he would become a permanent employee of Ngarda after an initial temporary three-month placement. The trial judge was not satisfied that Mr Scanlan was in the camp of either party to the litigation [222] - [223].
34 Third, there was extensive evidence at trial, all of which supported the trial judge's findings relating to Mr Scanlan's qualifications, experience, induction and training by Ngarda.
35 Fourth, there were significant gaps in the evidence adduced by the appellant at trial to prove his pleaded particulars. Indeed, the trial judge's assessment was that he adduced no evidence on the subject. A Jones v Dunkel inference was not available to fill that gap.
36 The appellant claims that the trial judge should have drawn a Jones v Dunkel inference in support of the application of the principle of res ipsa loquitur and in support of the pleaded breaches of duty.
37 As confirmed by the plurality in Schellenberg [51], the rule in Jones vDunkel only applies where a party is required to explain or contradict something and what a party is required to explain or contradict depends on the issues in the case as thrown up in the pleadings and by the course of the evidence. A Jones vDunkel inference can only make certain evidence more probable; it cannot be used to make up any deficiency of evidence. That is, the rule in Jones v Dunkel applies to strengthen or weaken an inference otherwise available on the evidence for the benefit of the party not in default.
38 A Jones v Dunkel inference could not have availed the appellant in its claim based on res ipsa loquitur. The conditions enlivening the application of that principle were not satisfied.
39 In relation to its pleaded claim of breach, the appellant relies on exhibit 1.616 (Mr Scanlan's statement) and exhibit 1.653 (G1/197 - 199) (Westaff terms of business). Mr Scanlan's statement takes the claim nowhere. It confirms what the trial judge found relating to the contact between the excavator bucket and the tray of the dump truck.
40 The Westaff terms of business is relied on by the appellant as containing the contractual terms between Ngarda and the second respondent that applied to the services of Mr Scanlan. However, the trial judge was not satisfied that this document applied to the contractual relationship between Ngarda and the second respondent with respect to the employment of Mr Scanlan [141] - [143]. The appellant has failed in his claim (in ground 1 below) that the Westaff terms of business applied. Even if that were proven, it does not give rise to an expectation that the second respondent would call Mr Scanlan for the reasons given by the trial judge.
41 In any event, the yawning gaps in the appellant's evidence as to the circumstances of the incident and the pleaded particulars of breach leave no scope for a Jones v Dunkel inference. I would dismiss ground 5.
42 As grounds 2, 3 and 5 have been dismissed, the appeal must be dismissed. However, on the assumption (contrary to the case) that Mr Scanlan was negligent, I will deal with grounds 1 and 4 in a somewhat abridged form for the sake of completeness.
Vicarious liability - ground 1
43 The appellant contends the trial judge erred in holding that vicarious liability for Mr Scanlan's negligence had been transferred from the second respondent to Ngarda.
44 The facts found by the trial judge are as follows. Ngarda trained all workers who came to the Yarrie mine site. Induction and training was carried out by Ngarda employees. Ngarda superintendents and mine supervisors controlled the systems and methods of communication between workers when carrying out their duties on site. No labour hire employees had a supervisory role. Ngarda controlled questions of coordination of workers on site. Ngarda conducted safety investigations on site. The second respondent did not have any safety regime that applied at Yarrie. Safety was a matter for Ngarda. The rules were determined on site by Ngarda. There was no differentiation between labour hire workers and Ngarda workers on site [190] - [196]. Ngarda had clear and defined systems for induction, training and operation of the mine site. The respondents had no role or control over those matters [202].
45 The trial judge was unable to make a finding that any of the printed form of terms produced at trial (standard term forms) were part of any agreement between Ngarda and the respondents [137] - [145], [342]. The standard term forms were exhibits 8 (G2/530 - 533), 9 (G2/534), 10 (G2/535 - 539), 11 (G2/540 - 542) and 1.653 (G1/197 - 199). Exhibits 11 and 1.653 post-dated the incident.
46 The appellant's case at trial was that whatever document governed the contractual relationship between Ngarda and the second respondent, all demonstrated that the respondents had reserved the power to exercise control over its employees supplied to Ngarda notwithstanding that Ngarda had substantial actual control on site.
47 The trial judge concluded that there was nothing in any of the standard terms that negated the conclusion that Ngarda had authority and control over not only what Mr Scanlan did at Yarrie but how he did it. The standard terms, if incorporated, supported the conclusion that there was a transfer of the control of those matters to Ngarda [342]. Further, the selection process in relation to Mr Scanlan involved the respondents submitting his resume to Ngarda for its consideration. Ngarda prepared a short list and decided whether a person could commence work at Yarrie. Mr Scanlan was not at Yarrie to do a specific task for a specific period of time [343]. Mr Scanlan was not a long-term employee of the second respondent. Employees sent by the second respondent to Yarrie commenced as temporary Ngarda employees on site and after three months were usually made permanent. The reason workers were categorised as 'temporary' was to reduce the prospect of the imposition of a significant placement fee for an employee who prematurely left Yarrie [345]. Ngarda arranged Mr Scanlan's flights to Yarrie and his on-site accommodation [346]. The trial judge continued:
Ngarda was entitled to direct Mr Scanlan not only in what he was required to do but, importantly, how to do it. The [respondents] did not have the right to enter Yarrie to exercise control over the way work was done by Mr Scanlan. The [respondents] had no power to control communications between Mr Scanlan and other workers when working on site. The [respondents] had no power in relation to the coordination of work on site and, in particular, the coordination of the work as between Mr Scanlan and the [appellant].
Ngarda controlled how loading of a dump truck occurred on site. It had in place a written procedure for loading which operators were required to comply with. The [appellant] had, as part of his training and induction, been provided with a copy of the loading procedure.
Mr Scanlan was working pursuant to the [Ngarda] permit to train which he had signed. He needed a permit to train before he could operate the excavator. The permit made clear that he was under the direct supervision of a competent person who had been authorised by the supervisor of the work/equipment and agreed to abide by the procedures outlined in the relevant training programme and site procedures. These were all matters which Ngarda controlled. Mr Scanlan agreed directly with Ngarda to operate under the direct supervision of Ngarda staff. It is very clear [Mr Scanlan] would not have been able to be on site and operate machines unless he so agreed with Ngarda. Even after the issue of a permit to train, workers were still supervised and their work was assessed by Ngarda …
Ngarda had control over the workers at Yarrie and not the [respondents]. This was regardless of whether they were the employees of the labour hire company or were the employees of Ngarda [348] - [351].
48 The trial judge found in effect that the second respondent had no actual control and no authority to control anything done by Mr Scanlan for Ngarda at the Yarrie mine site. The second respondent's role was confined to paying Mr Scanlan's wages. Ngarda determined that Mr Scanlan's assignment be terminated in January 2010 [358].
49 The trial judge found that Mr Scanlan's services were transferred to Ngarda and not merely the use and benefit of his work, Ngarda having full control over the actions of Mr Scanlan. On that basis, the trial judge held that the second respondent was not vicariously liable for any negligence of Mr Scanlan.
50 Part of the appellant's claim in ground 1 is that 'the terms produced' were part of the agreement between Ngarda and the second respondent. Which, if any, of the five standard term forms produced at trial formed part of the agreement between Ngarda and the second respondent is not specified in the appellant's written submissions. Nor is it claimed that the trial judge erred in failing to find that one of the five formed part of the agreement between Ngarda and the second respondent. In oral submissions, counsel for the appellant relied on part of exhibit 10 (at G2/538 - 539) under the misapprehension that it was the document tendered at ts 668. It was not. In any event, exhibit 10 applies where a client orders temporary staff for a particular task or service. Mr Scanlan did not fall into that category.
51 The document tendered at ts 668 was exhibit 1.653 which was signed on 6 April 2011. Mr Van Vliet was unable to say whether this was the standard term form used by the respondents in 2009 (ts 667 - 668). The appellant falls well short of establishing that exhibit 1.653 (or any other standard term form) comprised part of the agreement between Ngarda and the second respondent that covers Mr Scanlan. Accordingly, I do not propose to consider the specific terms of any of the standard term forms produced at trial. That there was an agreement between Ngarda and the second respondent relating to the services of Mr Scanlan and the terms thereof can be implied from the conduct of the parties. Further, it can be inferred that the implied agreement would be consistent with the terms and conditions of the agreement between the second respondent and Mr Scanlan.
52 The appellant also relied on the terms of the agreement between the second respondent and Mr Scanlan (the casual employment contract). The relevant terms are as follows:
(a) employment with the second respondent is on an assignment basis with each assignment representing a discrete period of employment on a casual basis (cl 1);
(b) the second respondent may terminate the employment on giving one hour's notice if the employee is on assignment, otherwise by giving notice by telephone or letter (cl 2);
(c) the second respondent does not control the length of any assignment (cl 3);
(d) during the period of an assignment the employee is supervised by, and must act in accordance with, the directions given by the client with respect to defined working hours, safety regulations and the manner and proficiency in which the employee is to carry out his work (cl 3);
(e) the employee's entitlement to wages depends on receipt of a timesheet completed by the employee and authorised by the client (cl 4);
(f) the employee undertakes (cl 6) to (inter alia):
(i) perform all work and associated functions in accordance with the directions given by a client in the safest possible manner;
(ii) adhere strictly to all standard operating procedures and safe systems of work laid down by a client for particular equipment or tasks and to correctly use all personal protective clothing and equipment in the appropriate circumstances;
(iii) obey all lawful written and verbal health and safety instructions issued by either the second respondent or a client;
(iv) comply with the local site rules and requirements that may be issued, introduced or varied from time to time by the second respondent or a client.
54 I turn now to the law. Neither party at trial or in the appeal relied on the Mines Safety and Inspection Act 1994 (WA). Accordingly, it can be put aside.
55 Vicarious liability is liability of one person for the tort of another. The liability is strict. The relationship of employer/employee is one in which, prima facie, the employer is vicariously liable for the tortious acts of its employees in the course of their employment. However, in limited circumstances, vicarious liability for the negligence of an employee can be transferred or shifted from the employer to another who, for the time being, is using the services of the employee under an agreement or other arrangement with his employer.
56 Traditionally, the question is whether, for the purposes of the appellant's claim, Mr Scanlan is to be regarded as employed by Ngarda or by the second respondent: Mersey Docks v Coggins [1947] AC 1, 9 (Lord Simon). There are two points to note. First, the traditional approach is based on the assumption that only one or the other can be vicariously liable but not both. That is, the law does not countenance dual vicarious liability in such circumstances. Second, the expression 'is to be regarded' recognises that the transfer of vicarious liability is not conditioned on a transfer of the employee's employment. Rather, the transferee is deemed to be the employer for the purposes of vicarious liability for the negligent act in question. The cases in this area of the law frequently use the expression 'general employer' to describe the actual employer and the expressions 'particular employer' or 'temporary employer' to describe the other party who is using the employee's services.
57 Lord MacMillan in Mersey Docks identifies the relevant question as being whether an employer has temporarily transferred the services of one of his servants to another party so as to constitute him pro hoc vice (for the time being) the servant of that other party with consequential liability for his negligent acts (13).
58 The burden of proof rests on the actual employer to shift its prima facie liability for the negligence of an employee to another. The burden is described as a heavy one which can only be discharged in exceptional circumstances: Mersey Docks at 10 (Lord Simon). There is no precise formula by which to determine what those circumstances must be. However, the focus is on who has the right to control the manner in which the act involving the negligence was done: Mersey Docks at 11, 14, 17, 22 - 23.
59 The facts of this case are unusual. It is misleading to characterise the second respondent's business as that of labour hire. It is more akin to the provision of a HR function in which the second respondent presents to its client, for the client's consideration and selection, potential future employees of the client following an initial trial period working for the client, during which the second respondent nominally remains the employer of the worker.
60 The negligent act in issue in this case was Mr Scanlan's operation of the excavator supplied by Ngarda in the course of loading ore into a dump truck at the Ngarda operated Yarrie mine. Ngarda had exclusive authority and control of the allocation of this task to Mr Scanlan and the manner in which he performed that task.
61 On the unchallenged findings made by the trial judge, the only reasonable conclusion open was that vicarious liability for Mr Scanlan's negligent act was transferred from the second respondent to Ngarda.
62 The appellant also contends that this court should follow the decision of the English Court of Appeal in Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2006] QB 510 and hold that dual vicarious liability may be imposed, and should be imposed, in this case against both Ngarda and the second respondent.
63 Viasystems was approved by the English Supreme Court in Various Claimants v Catholic Child Welfare Society [2012] 3 WLR 1319, noting that 'the law on vicarious liability is on the move' [19]. That may be so in England but it has yet to stir in Australia. The New South Wales Court of Appeal in Day v Ocean Beach Hotel Shellharbour Pty Ltd (2013) 85 NSWLR 335 has concluded that dual vicarious liability is inconsistent with the reasoning of the majority (Gibbs CJ, Wilson & Dawson JJ) in Oceanic Crest Shipping Company v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626. There is also academic support for that position. Having regard to the fact that the appellant must fail at the first hurdle on the factual issue of breach, it is preferable to leave the determination of this important legal issue to another day. I would dismiss ground 1.
Retirement age - ground 4
64 It was open to the trial judge to find that the appellant would, but for the incident, have continued working until age 60. There was evidence that the appellant had pre-existing lower back degeneration that was irreversible and which, absent the incident, was likely to prevent him from working beyond the age of 60: Dr Fong, ts 246 - 248. Further, the trial judge took into account that the appellant provided care to his wife and family. I would dismiss ground 4.
Conclusion
65 For these reasons, the appeal should be dismissed. I would hear from the parties on the subject of costs.
66 MURPHY JA: I am in general agreement with the reasons for judgment of McLure P. As to the question of vicarious liability, I would only wish to add the following brief observations.
67 The relevant facts, in summary, were that the appellant (the plaintiff) was employed by Ngarda at a mine site operated by Ngarda. The plaintiff drove a dump truck at the mine. The practice was for loaders to dump excavated materials from the bucket of a loader into the tray of a dump truck, for cartage. The plaintiff reversed the dump truck he was driving under a loader operated by Mr Scanlan for this purpose. The loader dropped the fully loaded bucket into the tray of the dump truck, causing the dump truck to shake, and causing injury to the plaintiff's back and neck. The plaintiff alleged, inter alia, that Mr Scanlan had failed to control the bucket of the excavator, and had failed to keep a proper look out.
68 Mr Scanlan was employed by the second respondent (TSS) and had gone to work for Ngarda at the mine. The plaintiff sued, relevantly, TSS. He did not sue Ngarda. The issue was whether, relevantly, TSS was vicariously liable to the plaintiff for the alleged negligence of Mr Scanlan.1
69 The general principle is that an employer is vicariously liable for a tort committed by an employee in the course of his or her employment: State of New South Wales v Lepore.2 The modern doctrine respecting the liability of an employer for the torts of an employee was adopted not by way of an exercise in analytical jurisprudence, but as a matter of policy: Hollis v Vabu Pty Ltd.3
70 Phrases such as 'the course of his employment', 'scope of employment', and 'sphere of employment' are used to indicate the just limits of the employer's responsibility for the wrongdoing of the employee.4
71 Moreover, the labels 'employer' and 'employee' are merely that, and vicarious liability is determined not by the application of the labels, but by matters which are 'expressive of the fundamental concerns underlying the doctrine of vicarious liability [including] … what is now considered "control"': Hollis5; Day v Ocean Beach Hotel Shellharbour Pty Ltd.6 A corollary of this is that a conclusion that a person is an 'employee' or 'independent contractor' for a particular purpose such as, for example, employment law, cannot determine whether the relationship is such as to engage the rules of vicarious liability.7 Accordingly, it is possible, and at least not uncommon, for a person in employment to have 'different employers' for different purposes: De Domenico v Marshall.8
72 Where an employer (general employer) makes available the services of an employee to a third party (particular employer), and the employee, in carrying out those services, injures someone (the claimant), the question is whether the general employer, the particular employer or only the employee himself or herself, is liable to the claimant: McDonald v Commonwealth.9 In this regard, Brennan J observed in Kondis v State Transport Authority:10
A defendant is not vicariously liable for a tortious act done by a workman who is not his servant if the defendant has no authority to control the doing of the act and does not directly authorise it. It makes no difference that the tortious act is done in performing work for the defendant's benefit. Prima facie, the workman's employer is vicariously liable for the tortious act, but if he is able to transfer and transfers authority to control the doing of the act to the defendant, the defendant is liable. It has been said that the nature and extent of the control transferred to the defendant or retained by the employer determines whether there is a shift of liability from the employer to the defendant: see McDonald v The Commonwealth; Karuppan Bhoomidas v Port of Singapore Authority. Where the defendant's vicarious liability depends upon his authority to control the doing of the tortious act that must be so, for he could have no such authority if it has not been transferred to him by the employer. (footnotes omitted)
73 In McDonald, Sir Frederick Jordan (Halse Rogers & Roper JJ agreeing) said:11
The more authoritative modern decisions emphasise the point that, unless of course the act of the employee was outside the scope of the employment of both general and particular employer, the liability of the former or the latter depends upon the nature and the extent of the control transferred to the latter or retained by the former. … Prima facie, it is the general employer who is liable; … and liability is not shifted to the particular employer by the fact that even a considerable degree of control is exercisable by him; but the greater his right to control, the greater the likelihood that it is open to a tribunal of fact to find that his has become the relevant control, and that a shift of liability has occurred. …
I think that the principles established by the authorities are as follow [sic]. If by the agreement the employer vests in the third party complete, or substantially complete, control of the employee, so that he is entitled not only to direct the employee what he is to do but how he is to do it, and the employee was performing services stipulated for, or authorised by, the third party at the time, the third party is liable. … If the control vested in the third party is only partial, so that, although the third party is entitled to give directions to the employee as to what he is to do, he is not entitled to direct him how he is to do it, the employer remains liable. If, however, the third party, though not entitled to do so as between himself and the employer, assumes to give a special direction to the employee as to how he is to do a particular act, or if he directs him to do an act outside the scope of the stipulated services, and the employee, in complying with the direction, negligently causes the injury, it is the third party who is liable. … If the act of the employee which causes the injury was done outside the scope of any employment either by the employer or by the third party, and not as the result of any express or implied direction of either, the employee alone is liable. (original emphasis)
74 The question of whether, for this purpose, the general employer has transferred authority to control the doing of the negligent act to the particular employer, is a question of fact and is, by its nature, an evaluative one, involving a 'question … of degree'.12
75 It was open to the judge on the evidence, in my view, to find, for the purposes of determining the question of vicarious liability, that the authority to control the discretion exercised by Mr Scanlan in operating the loader at the relevant time had passed to Ngarda, and that no material authority to control unloading by the excavator operated by Mr Scanlan subsisted in TSS.
76 I agree that the appeal should be dismissed.
MITCHELL J:
Introduction
77 On 16 November 2009, the appellant was employed by Ngarda as a dump truck driver at the Yarrie mine site operated by BHP Billiton. The bucket of an excavator loading the appellant's truck with ore made contact with the tray of the truck. This was a minor impact which resulted in a small amount of damage to the truck. However, the contact aggravated a previously asymptomatic degenerative condition in the appellant's lumbar spine, resulting in pain and restricted movement.
78 Mr Scanlan, the operator of the excavator, was employed by the second respondent, a labour recruitment company which had hired Mr Scanlan's services to Ngarda. The second respondent, rather than Ngarda, employed Mr Scanlan on a temporary basis in order to avoid Ngarda incurring an obligation to pay a placement fee if Mr Scanlan's employment at Yarrie did not work out. If Mr Scanlan's work at Yarrie had continued for more than three months, he would usually have been employed by Ngarda.
79 The appellant sued the respondents in negligence, claiming that they were both directly and vicariously liable to pay damages to the appellant.
80 The trial judge dismissed that aspect of the appellant's claim which asserted that the respondents were directly liable in negligence. This appeal does not challenge that aspect of the trial judge's decision.
81 The appellant does challenge the dismissal of his claim that the second respondent was vicariously liable for Mr Scanlan's alleged negligence.
Grounds 2 - 5: negligence and damages
82 The trial judge held that the appellant had not established that Mr Scanlan breached his duty of care to the appellant in any of the ways alleged. Grounds of appeal 2, 3 and 5 attack this conclusion. For reasons explained by McLure P, those grounds must be dismissed. I also agree with McLure P that ground 4, which relates to the trial judge's provisional assessment of damages, should be dismissed for the reasons she gives.
Ground 1: transfer of vicarious liability
83 The trial judge also held that the arrangements between the second respondent and Ngarda had the effect of transferring Mr Scanlan's services to Ngarda, so that vicarious liability for any negligent act by Mr Scanlan was also transferred to Ngarda. Ground of appeal 1 attacks this conclusion, alleging that the trial judge erred in failing to hold that the second respondent was vicariously liable for Mr Scanlan's actions.
84 Ultimately, ground of appeal 1 could only assist the appellant if Mr Scanlan's negligence were established. The failure of grounds of appeal 2, 3 and 5, which relate to the negligence issue, means that the appeal must be dismissed regardless of the manner in which ground of appeal 1 is resolved. It is therefore strictly unnecessary to determine this ground. However, in deference to the detailed submissions on this point in argument, I will express my views in relation to this ground, which differ from those taken by the trial judge and McLure P.
85 In my view, for the following reasons, the appellant's challenge to the finding that vicarious liability was transferred to Ngarda should succeed, although that success does not justify setting aside the judgment below.
The common law
86 The common law recognises that the vicarious liability which an employer ordinarily bears for the negligent acts of its employee may be transferred to a third party who becomes the de facto employer of the employee. The common law principle does not require the actual transfer of employment or the creation of a contract of service between the employee and the third party. Indeed, the principle would have no purpose where the employee was actually the employee of the third party as, in that event, the third party would be vicariously liable for the employee's negligent acts under ordinary principles.13
87 The principle is engaged where the employer vests in the third party complete, or substantially complete, control entitling it to direct the employee as to how he or she is to do the negligently performed work. In considering issues of vicarious liability generally, the focus of attention is, among other things, on the existence of the right to control the manner in which work is performed, rather than the actual exercise of that right.14 Consistently with that general approach, the present question is not which party actually exercised control. Rather the question is whether the third party is given the exclusive authority or right to direct the employee as to how the relevant work is to be performed.15 An employer can only avoid vicarious liability by divesting itself of the right to control the manner in which the employee performs the relevant work.16
88 An employer's authority to direct an employee as to how relevant work will be performed is an ordinary feature of the employment relationship. The authority derives from the terms of the contract between the employer and employee. If the employer divests itself of that authority, it must be through:
1. the terms of the contract of employment; or
2. the terms of a contract in which the employer completely, or substantially completely, transfers to the third party the authority to direct the employee how the relevant work is to be done.
A conclusion that there has been a de facto transfer of the employment turns on the express, implied or inferred terms of the agreements which govern the rights of the parties.
89 That is not to say that the terms of the contract can alter the operation of the common law in relation to vicarious liability. A contractual term between the employer and third party which merely provides that a third party is liable for the acts of the employee will not affect the employer's liability to a fourth party injured by the work of the employee. It is in this sense that authorities say that the contract between the employer and third party cannot determine whether there has been a transfer of vicarious liability.17 However, if the employer agrees that only the third party has the right to direct the employee as to how relevant work is to be performed, then there will have been a transfer of the authority to direct sufficient to exclude the employer's ordinary vicarious liability.
90 The burden of proof on an employer, who seeks to avoid vicarious liability by alleging a transfer of the right to control how the relevant work is done, is a heavy one which can only be discharged in quite exceptional circumstances.18 This is illustrated by the rarity of modern cases in which the principle has been applied to excuse an employer from vicarious liability for the negligence of an employee acting in the course of his or her employment. Aside from McDonald, counsel were not able to refer the court to any 20th or 21st century case in which the principle had been applied to exclude an employer's vicarious liability.
91 There are sound policy reasons why the principle should only be applied in exceptionally clear cases. If it were otherwise, the uncertainty as to who might be vicariously liable for an employee's negligent acts would require a plaintiff to sue multiple parties, or risk having the case dismissed on the ground that the wrong defendant has been sued. If a plaintiff sues multiple parties, then the cost to the plaintiff will be increased, the increased complexity involved in introducing an additional party will tend to delay the resolution of the action and an additional party will be exposed to the burden of litigation. If a plaintiff does not sue multiple parties, he or she risks losing a valid claim through misjudgement as to the identity of the defendant. Neither of these outcomes advances the administration of justice. The rule that an employer is vicariously liable in all but quite exceptional cases where there has clearly been a transfer of control and responsibility has the advantage of certainty. Ordinarily (and recognising that there will be cases where the identity of the actual employer is in issue) a plaintiff can identify the proper defendant as the employer of the negligent employee. Employers, and third parties with whom they deal, can more certainly identify the liabilities against which they should insure.
The trial judge's finding
92 In the present case the trial judge identified and applied the correct principle. He correctly recognised that the inquiry must be directed to the entitlement to direct how the work was to be performed: [335], [340]. He noted the heavy onus which the second respondent bore in discharging the onus of proving a transfer of that entitlement to Ngarda: [338], [360]. The trial judge in effect found, as a matter of fact, that Ngarda was entitled to direct Mr Scanlan as to how he was to perform his work at the Yarrie mine site and the second respondent did not have such an entitlement: [348], [351], [360] - [362].
93 The question is then whether the evidence was capable of supporting that conclusion about Ngarda's entitlement, and the second respondent's lack of entitlement, to direct Mr Scanlan as to the matter in which he operated the excavator. In my view, the evidence was not sufficient to discharge the second respondent's heavy onus.
Evidence of actual exercise of control
94 The trial judge principally relied on the evidence of Mr Van Vliet, the second respondent's recruitment manager, and Mr Taylor, the mining superintendent for Ngarda at Yarrie. Their evidence clearly established that Ngarda, rather than the second respondent, actually exercised control over the manner in which Mr Scanlan operated the excavator. The trial judge made detailed findings based on their evidence as to how control over Mr Scanlan was actually exercised: [343] - [357]. However, their evidence did not establish that the second respondent had divested itself of the entitlement to direct Mr Scanlan as to how he was to perform his work. Mr Van Vliet did not identify the terms of the arrangement with Ngarda in relation to the rights of the parties to direct Mr Scanlan as to that matter. Mr Taylor did not have any involvement with the contracting.19
Contract between the second respondent and Mr Scanlan
95 Counsel referred to the printed terms of a 'Casual Employment Agreement'. The trial judge summarised Mr Van Vliet's evidence about this document, which I discuss below, at [118]. However, the trial judge did not make a finding that these terms governed the employment relationship between the second respondent and Mr Scanlan. The printed terms in evidence before the trial judge were not signed by Mr Scanlan. There was no direct evidence that Mr Scanlan had ever seen or signed the printed terms. At trial, counsel for the respondents indicated that no one had been able to find a form for Mr Scanlan.20
96 The printed terms formed part of exhibit 7, which was a form of application for registration and attachments apparently completed by a person other than Mr Scanlan, with identifying information redacted. Mr Van Vliet gave evidence that this was 'the application form that everyone had to fill out' before they could be sent anywhere.21 Mr Van Vliet said that Mr Scanlan 'would have had to fill in these documents before he went anywhere', and that he 'wouldn't have been able to go to site without them totally signed'.22 However, apart from these conclusionary statements, there was no evidence that Mr Scanlan had actually signed the Casual Employment Agreement. Mr Van Vliet's evidence goes to what should have happened rather than what did happen.
97 The absence of any document signed by Mr Scanlan, or evidence by Mr Scanlan that he ever saw or signed such a document, is significant. Given this state of the evidence, and absent a finding of the trial judge, I would not conclude that the Casual Employment Agreement contained the terms of Mr Scanlan's employment contract with the second respondent.
98 Even if the Casual Employment Agreement did reflect the terms of Mr Scanlan's employment with the second respondent, I do not read those terms as divesting the second respondent of the authority to direct an employee as to the safe performance of his work.
99 It is true that the terms require the employee to perform work in accordance with directions given by the Client to which the employee is assigned.23 However, that provision does not necessarily exclude a concurrent requirement to comply with safety directions given by the second respondent.
100 Other provisions of the Casual Employee Agreement expressly contemplate that the second respondent may issue directions to an employee as to how they will safely perform work for the 'Client'. Part of cl 6 provides that the employee agrees:
To obey all lawful written and verbal health and safety instructions issued by either [the second respondent] or a Client;
101 This provision contains an express undertaking by the employee rather than the second respondent. I do not read that undertaking by the employee as implying an undertaking by the second respondent not to give a direction that was inconsistent with a direction given by a Client. Nor is an employee excused from complying with certain directions by the second respondent. Rather, the employee agrees to obey all lawful health and safety instructions issued by either the second respondent or a Client.
102 It may also be noted that the terms of the Casual Employee Agreement are not specific to an assignment to a particular Client. Rather, those terms govern the assignment of the employee to any Client. Clause 1 and cl 3 of the Casual Employee Agreement contemplate that there may be more than one assignment. They also contemplate that the application form may be completed before any assignment is identified. The application form, in which the Casual Employment Agreement is contained, notes that:24
[The second respondent] has a diverse client base. Because of the nature of the contract labour industry we cannot be certain which of our clients you might be placed with.
- In that context, the terms of the Casual Employment Agreement should not be read as confined by reference to circumstances prevailing at Yarrie.
103 The second respondent's Occupational Health and Safety Policy, which was included in the application for registration form, also provides context which informs the construction of the Casual Employment Agreement. The terms of that policy are inconsistent with the second respondent divesting itself of the capacity to direct its employees as to how they will perform their work. The policy includes statements that the second respondent will focus on improving the safety and work environment and put in place appropriate controls to eliminate or control risks. The policy also states that:
[The second respondent] will make available appropriate resources to ensure that it complies in all respects with relevant occupational health and safety legislation.
104 In Western Australia, relevant occupational health and safety legislation creates an offence where an employer fails, so far as is practicable, to ensure that the safety of a person other than its employees is not adversely affected as a result of work undertaken by any of its employees.25 In an application form in which conditions of employment are contained, the second respondent commits itself to complying with legislation of this kind. In that context, it would be odd for the terms of the employment contract to divest the second respondent of any capacity to direct its employee as to the safe performance of their work. To do so would compromise the second respondent's capacity to discharge these statutory duties. This context counts against a construction of the Casual Employment Agreement which would divest the second respondent of any contractual right to direct the employee as to how work should be safely performed.
105 A further issue arises in relation to occupational safety and health legislation, which I note without resolving. Section 10(1)(b), s 10(2)(b) and s 10A of the Mines Safety and Inspection Act create an offence where an employee at a mine fails to comply, so far as the employee is reasonably able, with instructions given by that employee's employer or the manager of the mine for the safety and health of other persons. These provisions created a statutory duty for Mr Scanlan to comply with instructions issued by the second respondent, as his actual employer, as to the safe operation of the excavator at the Yarrie mine. The issue is whether, as a matter of law, the second respondent could, in the face of this statutory duty, have entirely divested itself of its authority to direct Mr Scanlan as to the safe performance of his work. It is unnecessary to resolve this question in this appeal. The issue has not been the subject of submissions, and I have found that the second respondent has not established that it purported to divest itself of that authority.
Contract between the second respondent and Ngarda
106 The trial judge, correctly in my view, concluded that the evidence did not support a finding that the various printed forms of terms produced in the proceedings were part of an agreement between Ngarda and the second respondent in relation to Mr Scanlan at the time of the accident. Consequently, there were no written terms of the contract between the second respondent and Ngarda.
Conclusion
107 In the end, there was considerable uncertainty as to material terms of the arrangements between Ngarda, the second respondent and Mr Scanlan. The evidence supported the inference that Ngarda was entitled to give directions to Mr Scanlan as to the safe operation of the excavator, and had exercised that entitlement. What was not clear was whether the second respondent had divested itself of the authority to also give directions as to that matter.
108 The second respondent was the relevant contracting party, and so was the party to this proceeding which was in the best position to prove the terms of the arrangement between itself and Ngarda. It bore a heavy onus of demonstrating that this was an exceptional case where it had transferred to Ngarda all its rights to direct Mr Scanlan as to how he was to perform his work at the Yarrie mine site. The evidence as to the actual exercise of control was not inconsistent with the second respondent retaining an unexercised authority to direct Mr Scanlan as to how he should safely perform his work. The uncertainty as to the relevant terms of the contracts between the second respondent, Mr Scanlan and Ngarda meant that the second respondent had not discharged its heavy onus of proving that it had divested itself of the entitlement to control how Mr Scanlan did his work. In my view, the trial judge erred in finding that the evidence established that vicarious liability for any negligent operation of the excavator by Mr Scanlan was transferred from the second respondent to Ngarda.
109 That is not to say that Ngarda could not also have been liable as a joint tortfeasor in respect of the appellant's injuries, had negligence by Mr Scanlan been established. For example Ngarda, as the appellant's employer, may have been liable to the appellant for breach of a non-delegable duty to ensure that reasonable care was taken in the operation of the excavator for the purpose of the mining operation Ngarda was supervising.26
Dual vicarious liability
110 The appellant also submitted that the court should recognise the concept of dual vicarious liability. For the reasons explained by McLure P, it is preferable to leave the resolution of this issue for another case. That is particularly so given that recognition of dual vicarious liability would not affect the outcome in this case. The question here is not whether Ngarda and the second respondent were both vicariously liable for any negligent operation of the excavator by Mr Scanlan. The question here is whether the second respondent has completely divested itself of the authority to control the manner in which Mr Scanlan performed his work so as to avoid its vicarious liability for any negligent operation of the excavator.
Orders
111 For the above reasons, while in my view ground 1 is made out, the appeal must be dismissed.
1 The question is not, for present purposes, whether had Mr Scanlan himself been injured at the mine, could TSS have been liable to Mr Scanlan under a non-delegable duty of care: cf Bostik Australia Pty Ltd v Liddiard [2009] NSWCA 167 [142] - [144].
2State of New South Wales v Lepore [2003] HCA 4; (2003) 212 CLR 511 [40], [202], [223], [225] - [232].
3Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21 [34].
4Hollis [38].
5Hollis [36], [45].
6Day v Ocean Beach Hotel Shellharbour Pty Ltd [2013] NSWCA 250; (2013) 85 NSWLR 335 [15].
7Day [16].
8De Domenico v Marshall (1997) 75 IR 182, 191.
9McDonald v Commonwealth (1945) 46 SR (NSW) 129, 131.
10Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672, 692.
11McDonald (132).
12McDonald (132).
13Denham v Midland Employers Mutual Assurance Ltd [1955] 2 QB 437, 444.
14Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21 [44]; Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16, 24, 36.
15 See Denham (444) ('right to control'); McDonald v Commonwealth (1945) 46 SR (NSW) 129, 132 ('entitled … to direct'); Mersey Docks and Harbour Board v Coggins & Griffith (Liverpool) Ltd [1947] AC 1, 12 ('where the authority lies'), 13 ('entitled to tell him'; 'no authority to tell him'), 17 ('entitled to'), 21 ('is entitled to'; 'have authority to') and 23 ('authority to').
16McDonald (132); Mersey Docks (12), (17), (18), (21), (23); Deutz Australia Pty Ltd v Skilled Engineering Ltd [2001] VSC 194; (2001)162 FLR 173 [113].
17Mersey Docks (15), (20), (22); Deutz [112].
18Mersey Docks (10); Deutz [109].
19 Trial ts 395.
20 Trial ts 641.
21 Trial ts 640.
22 Trial ts 641.
23 Clauses 3 (6th dot point) and 6 (2nd and 5th dot points) of the Casual Employee Agreement.
24 Page 2 of exhibit 7.
25Mines, Safety and Inspection Act 1994 (WA), s 12(2)(a)(i) and s 12A; Occupational Safety and Health Act 1984 (WA), s 21(2)(a)(i) and s 21A.
26 See Kondis v State Transport Authority (1984) 154 CLR 672.
5
14
1