Employment agency not vicariously liable for the actions of employee  

August 2016  -   Kelly v Bluestone Global Ltd and Anor   [2016] WASCA 90 

The Court of Appeal of Western Australia considered the contentious issue of a host employer's liability for injuries sustained to a labour hire worker 

In this case, the plaintiff was employed by Ngarda Mining and Civil Pty Ltd (Ngarda) at the BHP Billiton owned Yarrie mine. 

During the course of his employment, the Plaintiff reversed a dump truck to an area directly underneath the fully loaded excavator bucket driven by Mr Scanlan.  

Mr Scanlan dropped the fully loaded bucket onto the tray of the appellant's dump truck causing the dump truck to shake violently which in turn resulted in neck and back injuries to the Plaintiff. 

Mr Scanlan was employed by TSS Recruitment Pty Ltd (a labour hire company) and worked for Ngarda. The Plaintiff claimed that the labour hire company was vicariously liable for the actions of Mr Scanlan. 

The Plaintiff was unsuccessful at first instance and the subsequent appeal against the defendants in relation to liability failed for two reasons: 

Mr Scanlan operated the excavator within the usual and accepted practice to which he was appropriately trained. Accordingly the Plaintiff failed to establish that Mr Scanlan breached his duty of care to the Plaintiff; and 

Control over Mr Scanlan was completely transferred to Ngarda and, accordingly, the labour hire company could not be found vicariously liable for Mr Scanlan’s negligence (if any). 

Key factors in coming to this conclusion included: 

·        Ngarda provided inductions and training to all workers who came to Yarrie Mine 

·        Ngarda coordinated all works at Yarrie Mine. TSS had no involvement in the day-to-day operations at the Mine 

·        Ngarda conducted safety investigations onsite 

·        there was no differentiation between Ngarda and TSS employees 

·        no TSS workers were employed in supervisory roles 

·        most workers supplied by TSS became Ngarda employees after three months, and 

·        TSS had more of a HR function rather than that of a labour hire company, as the hired workers were usually retained by Ngarda following an initial trial period. 

Mr Kelly was unsuccessful at first instance. The trial judge held that control of Mr Scanlan's services was completely transferred to Ngarda by TSS. On this basis, the trial judge held that TSS was not vicariously liable for any negligence of Mr Scanlan. 

As for the primary liability, the trial judge found that Mr Scanlan did not breach his duty of care as he operated the excavator within the usual and accepted practice to which he was appropriately trained. 

On appeal, McLure P and Murphy JA upheld the trial judge's decision that TSS was not vicariously liable for the actions of Mr Scanlan.