Castillo v Presmist Formwork Contractors Pty Ltd [2019] NSWDC 6

Background

On 1 February 2019, Judge Levy of the District Court of NSW found that an occupier/subcontractor (Presmist) had failed to provide adequate lighting inside a lift shaft on a hotel construction site at Mascot which led to a casual labour-hire employee (Mr Castillo) suffering injuries to his knees.

The injuries occurred on 29 May 2015 as Mr Castillo (‘the worker’) was manipulating a large, heavy sheet of formwork plywood in preparation for a remedial concrete pour to fill a concreting gap.

Presmist was the occupier of the site and the subcontractor who provided formwork and concreting services. Valeron was the labour hire company from whom Presmist obtained the worker’s services as a carpenter. Valeron (the employer) were not a party to the proceedings but despite this, Presmist alleged that Valeron was negligent as the employer (so as to reduce the damages payable).

Decision

The worker was awarded $138,515 in damages with a finding that there was no contributory negligence. His Honour felt that the expert evidence did not support Presmist’s “non-specific” allegations that the worker had failed to:

a)   have sufficient regard for his own safety;
b)   observe his surroundings; and
c)   exercise the necessary degree of caution.

Importantly, for employers and workers compensation insurers, Judge Levy also found that Presmist had failed to prove that Valeron was aware of the risks facing the worker with respect to the work assigned to him; in particular the “dynamic nature of those risks” which was only within Presmist’s knowledge.

Judge Levy also believed that Presmist’s duty as an occupier to take reasonable care for the safety of the worker extended to ensuring the worker was provided with:

1. Help when manipulating heavy objects; and
2. “An adequately illuminated environment in which he could carry out his assigned tasks”.

The Court found that the “likely burden on [Presmist] of taking the precaution of assigning additional labour to assist [the worker] to manipulate and fix in place the heavy plywood sheet was, in the context of having form workers on a building site, relatively insignificant, if not negligible”.

Implications

The decision demonstrates that absentee employers (such as in labour hire cases) will not automatically be found to have breached the non-delegable duty of care that they owe to their employees so as to attract a share of liability for a worker’s injury.

The case required consideration of allegations of failure to provide manual assistance, failure to provide adequate lighting in certain workspaces and failure to provide proper site supervision by the occupier. Judge Levy was satisfied that:

“The question must be asked as to what the plaintiff’s employer, as a labour hire company, could have reasonably done as a precaution against injury other than to provide the plaintiff with a safety induction. This is particularly so where the plaintiff, as a formworker, was to carry out semi-skilled work such that it was the requirement of the defendant, and not the employer, who devised the work tasks and undertook the responsibility to supervise the plaintiff in the performance of those tasks. There is no evidence that the plaintiff’s employer had special supervisory knowledge or skill in formwork”

The decision distinguishes the position that an employer must be 25% liable based on the authority of TNT v Christie & Ors [2003] NSWCA 47 so that critically, each case must be assessed on its own facts.