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Written by Peter Carter

July 27, 2022

A coal mine using a hired-in workforce has been ordered to bear most of the cost of a severe injury caused by a labour hire worker.

Titan Enterprises supplied a large part of the workforce to the operator of an open cut mine at Glendale in the Hunter Valley, Mt Owen Ltd. Glen Parkes – a diesel and heavy vehicle mechanic – was among a team of three Titan mechanics carrying out a scheduled service on a Caterpillar D10 bulldozer at the mine in July 2017.

The crew was engaged in collection of a hydraulic oil sample from the dozer by draining it from an inspection port with the machine running.

In an attempt to speed up the flow of hydraulic fluid on a cold winter’s night, crew chief Mitchell Kemp operated the blade at the front of the dozer up and down.

When the blade suddenly dropped to the ground from a height, the heavy jolt sent through the dozer caused Parkes’ right leg to be crushed between the track on which he had been standing and a platform over which he was leaning to access the sample port.

He developed Complex Regional Pain Syndrome in his right leg which made him unfit for his pre-injury employment as a diesel mechanic in the mining industry, as well as an adjustment disorder.

Titan and the host employer each accused the other of being vicariously liable for Kemp’s negligence.

Justice Stephen Campbell had to decide that contest when Parkes’ injury compensation claim came before him in the NSW Supreme Court as well as what personal liability each employer also bore for the injury.

In attacking Parkes’ claim they both cited his breach of a standard operating procedure – that he had signed and initialed prior to the start of the task – mandating all personnel to be “clear of the machine footprint before any equipment movement is undertaken”.

In those circumstances – they contended – it was reasonable to leave the task to their expert tradesmen without further employer intervention or supervision.

Against those arguments and the views of mechanical engineers Ross Underwood (who gave evidence for Parkes) and Professor Bruce Hebblewhite of the University of New South Wales for Titan, Justice Campbell thought the standard operating procedure was deficient.

It neither accounted – he reasoned – for the need to mount the machine to take a live sample; nor directed how hydraulic attachments should be operated to hasten the hydraulic flow to obtain the sample in an efficient and safe manner.

“One cannot assume that the documentation of systems of work or job safety analyses are mere matters of box ticking or compliance,” Justice Campbell explained.

The mine operator host employer was thus held to have been in breach of the non-delegable duty it owed Parkes.

That duty was held to have been identical to that owed by the actual employer, Titan – ie to take reasonable care not to expose him to an unnecessary risk of injury – and of which Titan was also in breach.

The court apportioned fault for the accident 20% to each of them in their personal capacities, reserving the remaining 60% to whoever it found to have been vicariously liable.

Ordinarily, that would have been Titan, as the negligent crew chief’s actual employer.

Titan though contended that because Mt Owen not only decided what work the crew chief was to do but also how it was to be done, it should be considered the employer for the purpose of deciding the issue.

It pointed out that Kemp had in fact been engaged by Mt Owen for three years and demonstrated he had been treated as virtually their own employee.

“I am satisfied on the balance of probabilities that Mr. Kemp, at all material times, was the employee of Mt Owen pro hac vice,” Justice Campbell concluded.

Parkes’ injury was assessed at 40% “of the most extreme case” resulting in general damages to him of $278k out of a total award of $1.93 mil.

The mine operator must pay 80% of that sum, somewhat defeating what is seen to be an advantage of a labor-hire workforce, namely to insulate host employers against the on-costs of workers’ compensation.

Parkes v Mt Owen Pty Ltd & Anor [2022] NSWSC 909 Campbell J, 7 July 2022 Read case

Categories: Mining Injury

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