Newsletter

Q1 - 2018

Jan-Feb-Mar

• Labour hire company escapes prosecution for construction accident 
• Assault not as claimed
• Industrial manslaughter now an offence in Queensland
• When are you at work – New York style

Labour hire company escapes prosecution for construction accident  

In a compensation case, the Supreme Court decision of Kabic v Workers Compensation Nominal Insurer (No 3) [2017] NSWSC 1281 has provided guidance on considerations that are likely to be important in determining the liability of various parties on a construction site, including injured workers, for accidents that occur. In doing so, the case highlights the precautions employers, labour hire companies and contractors should exercise to minimise or avoid exposure to liability claims and reminds workers of their responsibilities for their own safety. 

Mr Kabic, was a formwork labourer employed by a labour hire company, Caringbah Formwork Pty Limited (Caringbah).  

·         His labour was lent to Calcono Pty Ltd (Calcono), which was sub-contracted to undertake formworks as part of the redevelopment of the Redfern RSL.  

·         The principal contractor for the works was Deicorp Pty Ltd (Deicorp). 

In May 2011, the Plaintiff fell from a raised wooden platform on the construction site. He contended that the platform was exposed to the elements, was slippery when wet and did not have appropriate cross-braces that he could have grabbed onto when he slipped to prevent his fall. While these factual matters were contested, Justice Button ultimately accepted Mr Kabic's evidence on these issues. 

Mr Kabic sued Caringbah, his employer, as well as Calcono (the sub contractor) and Deicorp, (The principal contractor).  He  alleged that each was liable in negligence.  

He succeeded only against the host employer Calcono, which directly controlled the Plaintiff's work and which the Court found should have appreciated the hazards associated with the tasks it required Mr Kabic to undertake on the day of the accident. 

Caringbah, the Plaintiff's actual employer, was not liable for the following reasons: 

·         it had no control over the actual working conditions on the site, either generally or on the particular day of the accident 

·         it was entitled to rely on what it knew of the appropriate safety procedures at the site put in place by both Calcono and Deicorp, and 

·         regular inspections by Caringbah of the site or enquiries by Caringbah of its workers about the conditions on site would not have revealed any problems-the Plaintiff's accident was "highly specific to a particular time and place". 

The principal contractor, Deicorp was also not considered liable because: 

·         its subcontract with Calcono required the latter to fulfil a number of important roles with regard to the safety of its workers 

·         it retained some supervisory role over site safety by, for example, providing site safety rules and reviewing Calcono's safe work method statements 

·         Calcono, rather than Deicorp, largely controlled the Plaintiff's activities and had directed him to work at the particular location where the fall occurred. Indeed, the hazards involved with formwork meant the area in which the Plaintiff was working was fenced off and otherwise isolated and restricted in a number of ways. 

Although succeeding in his claim against Calcono, a finding of 33.3% contributory negligence was made. Justice Button found Mr Kabic knew from common sense and experience at other building sites that he should not work in the rain and his own responsibilities with regard to work safety had been emphasised by Deicorp and Calcono.  

Justice Button acknowledged that workers can be reluctant to effectively refuse to work but suggested the Plaintiff did not need to take such a drastic step to look after his own safety. Rather, his Honour found that he could have drawn his foreman's attention to the state of the wood and proposed that he undertake other work until it dried, proposed an extra break with a later finishing time, requested a towel be provided so he could wipe down the platform or taken "some other reasonably practicable ameliorative step".  

Assault not as claimed 

Mr P was employed as a Fire Safety and Security Officer at the Gladstone Hospital. During a shift, he was observed to be acting in an unusual manner and was directed to the Emergency Department.  

The treating doctor ordered a blood test and urine test to screen for alcohol and illicit substances. The Doctor testified that Mr P was calm and did not object or resist to the tests being carried out.  

Mr P had another opinion.  He said that he was 'poked' with the needle and did not consent to giving blood, and that when he gave his urine sample a nurse was present and looked at his genitalia. He said that these circumstances had caused him shame and humiliation, leading to him suffering from depression and anxiety, which had an adverse impact on his income earning capacity.  

The Court doubted the credibility of Mr P's testimony and stated that the medical evidence did not establish a probable connection between the event and Mr P's ongoing psychological disturbance. As such, the claims for assault, battery and negligence were not made out.  

Mr P sought to appeal this decision, claiming that consent to the tests was not 'freely given' because there was a power imbalance between him and his employer. The Court found that there was no evidence that he was deprived of capacity to consent, and that he was not ordered to undergo the tests as an employee but a patient. Leave to appeal was denied.

Industrial manslaughter now an offence in Queensland

Industrial manslaughter will become an offence attracting lengthy jail time and significant fines in Queensland after legislation passed State Parliament. 

Under the laws, the maximum penalty for industrial manslaughter will be 20 years imprisonment for an individual, with a maximum fine of $10 million for a corporate offender. 

The measures were prompted by the deaths of four people on Dreamworld's Thunder Rapids Ride last October, which came three weeks after two workers who were crushed at a building site at Eagle Farm racecourse. 

Industrial Relations Minister said the laws reflected community expectations around how work-related fatalities should be treated. 

"The creation of a new offence of industrial manslaughter will bring about an important cultural shift," she told Parliament on. 

When are you at work – New York style

The New York Supreme Court, Appellate Division, issued two decisions in September 2017 that have serious ramifications for the home health care industry.

Moreno v. Future Care Health Servs., Inc., 2017 WL 4018898 (N.Y. App. Div. Sept. 13, 2017) and  

Andryeyeva v. New York Health Care, Inc., 2017 WL 4019032 (N.Y. App. Div. Sept. 13, 2017),  

The Appellate Division, Second Department, found non-resident home health care aides must be paid minimum wage for all hours spent at a patient’s home. These decisions mark a drastic change in the employment practices within the home health care industry and may have a lasting effect on both employers and patients in need of 24-hour care. 

Historically, “live-in” home health care aides working 24-hour shifts within the patient’s home were compensated for 13 hours of their 24-hour shift. This industry standard is in accordance with a March 11, 2010 opinion letter from the New York Department of Labor.  The Opinion Letter found that home health care aides working 24-hour shifts are “residential employees” and, therefore, did not have to be compensated during normal sleeping hours. According to the Opinion Letter, live-in home health care aides only had to be compensated for 13 of the 24 hours, provided the aide was afforded at least 8 hours of sleeping time, 5 of which must be uninterrupted, and 3 hours of meal breaks. 

Recently, however, the Second Department disagreed with the NYDOL finding the Opinion Letter to be in conflict with New York Labor Law.  

The plaintiffs in both Andryeyeva and Moreno were home health care aides employed to care for elderly and disabled patients and were required to work 24-hour shifts within the patient’s home. Consistent with the Opinion Letter, the plaintiffs were not paid minimum wage for their entire 24-hour shift. Instead, the Andryeyeva plaintiffs were paid minimum wage for the first 12 hours of their shift, and paid a flat rate for the remaining 12 hours. Similarly, the Moreno plaintiffs were paid a flat rate per shift. The plaintiffs in both cases, which were filed as class actions, argued that they were not “residential employees” and the sleep and meal break exceptions in the Opinion Letter were not applicable. Thus, the plaintiffs contended that they were required to be paid minimum wage for the full 24-hour shift.