Alelaimat v Synergy Scaffolding Services (No 3) (NSWSC 2022)

Link to Decision

Key Takeaways

• Employer not held liable to a plaintiff worker in circumstances where the work site and the system of work were not under its direct control, or where it had no reasonable opportunity to enquire about the site, system of work, or level of supervision.
• Determination of apportionment of liability between an employer and third party contractor comes down to the specific, detailed evidence of who actually gave day-to-day instructions to the plaintiff, despite the actual employment arrangements.
• Employer maintained its right to seek recovery of workers compensation payments made under s151Z(1)(d) of the Workers Compensation Act 1987 (the Act) against the third party contractor.

Brief Facts

The plaintiff sustained injuries as a result of a work accident on 10 October 2012, whilst he was working at a site in Artamon (the site). He was employed by DJ’s Scaffolding Pty Limited (DJs) as a contractor truck driver to deliver and collect scaffolding materials. Synergy Scaffolding Pty Limited (Synergy) was the scaffolding contractor with control of the scaffolding work performed on the site.

The plaintiff took instructions on the day of the accident from Synergy’s operations manager (referred to as ‘Mr H’), who instructed him to assist other Synergy workers on site with dismantling the scaffolding. At some point during the work, the plaintiff was struck from above by a falling metallic scaffolding plank (due to the negligence of another worker on site), sustaining injuries to his left shoulder and lower back.

The plaintiff sued Synergy and DJs for damages arising from the work injury. Synergy sought contribution from DJs under s5 of the Law Reform (Miscellaneous Provisions) Act 1946. DJs also cross-claimed against Synergy seeking recovery of workers compensation payments made to the plaintiff pursuant to s151Z(1)(d) of the Act.

It was the plaintiff’s understanding and evidence that Synergy was his employer, as he had originally responded to an advertisement for truck driving work published by Synergy. The plaintiff gave evidence that Mr H initially interviewed him, provided him with a Synergy uniform for work, and trained him on how to drive and strap scaffolding material to his truck (also provided by Synergy and marked with Synergy’s logo). On the day of the accident, the plaintiff stated that he received text instructions from Mr H to assist scaffolders at the site with the scaffolding dismantling work.

Evidence

The evidence from Mr H however was that the plaintiff’s employment was obtained under a labour hire agreement with DJs, and he strenuously denied ever providing instructions to the plaintiff to help the scaffolders on site remove the scaffolding (as he was a truck driver and not a scaffold worker). Synergy argued that it did not assume the role of employer or was responsible for the system of work on site.

Counsel for DJs argued that there was no evidence that anyone working on the site was employed or even associated with DJs, and Synergy provided no evidence to show that it gave any instructions to the plaintiff.

Judgment

Justice Campbell, after weighing up the evidence between the plaintiff and Mr H (the only two witnesses):

• Rejected the evidence of Mr H and preferred the plaintiff’s evidence that Mr H solely gave him instructions to assist the scaffolders with work on the site.
• The task of supervising the workers was not outsourced to any other labour hire sub-contractors, and no formal supervision was arranged or put into place. Accordingly, Synergy had a duty analogous to an employer to use reasonable care to ensure that the system of work on the site was safe.
• Whilst DJs was the plaintiff’s true employer (and therefore had a non-delegable duty of care), it had no control over the general process of the scaffolding work or any power to co-ordinate or direct the activities of the workers on site. DJs further had no opportunity to enquire about the conditions at the site, what system of work was in place, or the competence of those who might have been in charge at the site. DJs was held to be not liable for the plaintiff’s injuries.
• Since Synergy was entirely liable for the plaintiff’s injury, DJs was also entitled to recover compensation payments under s151Z(1)(d) of the Act.

Implications

This is yet another example of the case that whilst an employer’s duty of care to its employees is non-delegable, it is not a strict liability. Where an employer has no reasonable opportunity to inspect or influence a third party’s workplace, system of work or level of supervision, liability should be denied and it is crucial to obtain clear evidence of which party was responsible for the operations and the plaintiff’s day-to-day instructions for an effective and successful defence. This is particularly so in circumstances where the plaintiff’s actual employer and third party are also related entities.

In those circumstances, the employer should consider protecting its position to seek a recovery of its compensation payments under s151Z of the Act against the third party liable for the plaintiff’s injury.