Ward v Endeavour Coal Pty Limited [2026] NSWSC 557; (22 May 2026)

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Key takeaways

• The worker sued his own employer, Illawarra Coal and WorkPac, which employed the labour hire driver of the vehicle in which he was travelling.
• WorkPac was found not to be vicariously liable for the driving of the driver (Mr C) on the basis that it had transferred effective control of the manner in which Mr C’s work was performed to Illawarra Coal, making Illawarra Coal the driver’s employer pro hac vice (that is, the employer for the purposes of the particular occasion or task, despite not being the formal contractual employer).
• Illawarra Coal was held solely liable for damages.

Brief facts

On 20 May 2021, the worker sustained a severe injury to his left arm at the Appin Colliery (the mine). He was employed by Illawarra Coal Holdings Pty Limited (employer), which also had care, control and management of the mine. He was travelling as a front-seat passenger in a Specialised Mining Vehicle (SMV) driven by Mr C, who was a labour hire employee employed by, WorkPac Mining Pty Limited (WorkPac), a labour hire company.

The worker and Mr C were travelling underground to repair a pump at the end of a small connecting road (referred to as a ‘cut-through’) and as the SMV turned into the cut-through, Mr C attempted to drive past a salter (road treatment equipment) that had been left there, with little clearance between the salter and the wall. As the vehicle passed, the worker's left elbow hit the outer flange of the salter.

The worker suffered severe left arm injuries and developed PTSD. He sued three defendants seeking damages Endeavour Coal, the employer and WorkPac, but discontinued against Endeavour on the first day of the hearing.
Arguments

The worker argued that the accident occurred due to Mr C’s negligent driving in that he drove the SMV so close to the salter that the vehicle’s left-hand side collided with the salter’s flange, jamming his elbow between the cabin door frame and the salter. He alleged against the employer that it was negligent in failing to maintain a safe system of work, failing to warn of the salter’s presence, failing to instruct drivers about conditions in the cut-through, and in permitting an SMV with a design defect (a door sill at a height allowing a passenger’s elbow to protrude) to be used on site.

WorkPac admitted that Mr C was its employee but argued that it transferred control over Mr C to the employer and that it was Mr C’s employer pro hac vice, and as such Illawarra Coal was vicariously liable for his alleged negligent driving.

Judgment of the Supreme Court

His Honour, Cavanagh J found that Mr C was negligent in driving too close to the salter. He also failed to stop and inspect the cut-through as site rules required, failed to approach at a sufficiently slow speed to ensure clearance, and failed to decline to proceed through the cut-through unless certain it could be done safely.

Liability of the Employer

Cavanagh J confirmed that a non-delegable duty may result in liability being imposed on the duty holder without personal fault. In this case the employer’s non-delegable duty was breached by:

1. delegating the task of driving its employee to Mr C, who failed to drive safely;
2. failing to enforce the requirement that drivers inspect cut throughs before proceeding, and
3. failing to instruct Mr C not to drive too close to equipment left in roadways.

WorkPac liability absolved

The Court found that since the employer provided all on-site training, instruction and supervision; including determining the rules for how SMVs must be driven underground, it was essentially the employer of Mr C pro hac vice. WorkPac’s role was confined to recruitment, vetting, payroll and general competency. For all practical purposes associated with the manner in which the work was performed, the employer was in almost total control.

Accordingly, WorkPac had transferred effective control to the employer such that it became Mr C’s employer pro hac vice. There was no other basis for WorkPac’s liability and the claim against it failed entirely.

Contributory negligence

Cavanagh J made no finding of contributory negligence. Whilst the evidence established that the worker’s elbow must have been outside the cabin, in finding that the elbow could have extended out as a result of the movement of the vehicle, His Honour did not accept on the balance of probabilities that he had deliberately taken a risk by allowing his elbow to protrude.

Implications

This case is another example of the willingness of the courts to accept an effective transfer of a labour hire employee based on an analysis of the level of control exercised by the host employer. The nature and extent of the engagement of labour hire employees must be considered before assessing a host employer’s potential liability.