Ward v Endeavour Coal Pty Ltd [2026] NSWSC 557
In Australia, where a labour hire company cedes all operational control to a host employer, including the system of work, training, supervision, and daily direction, the host company and not the labour hire company will be vicariously liable for its employee’s negligence.
Background
On 20 May 2021, David Ward, a fitter/mechanical tradeperson in the Appin Colliery (“the Mine”), was travelling as a passenger in a specialised mining vehicle (“SMV”) being driven by another worker, Mr Carrol. Mr Carrol turned left through a “cut-through”, a small road providing access between major roads or thoroughfares underground.
While navigating through this cut through, Mr Carrol attempted to drive the SMV through the cut-through in the space between the edge of a salter and the right-hand wall of the cut-through. In doing so, Mr Carroll drove the SMV “in such a manner that the left-hand side of the SMV was so close to the outer edge” of the salter. Simultaneously, Mr Ward’s elbow was protruding outside the boundary of the SMV which then impacted with the outer edge of the salter causing a severe injury to his left arm.
Mr Ward commenced proceedings in the Supreme Court of New South Wales against Endeavour Coal Pty Limited (First Defendant), Illawarra Coal Holdings Pty Ltd (Second Defendant), and WorkPac Mining Pty Ltd (Third Defendant). The Second Defendant was the operator of the Mine at the time of the accident, and the Third Defendant was a labour hire company which employed Mr Caroll and provided him to the Second Defendant as part of a services contract between the two parties. The Plaintiff abandoned his claim against the First Defendant prior to the hearing, with the Second Defendant bringing a cross-claim against the Third Defendant seeking contribution and/or pursuant to s.5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) in both contract and tort. However, during closing submissions, the Second Defendant abandoned the contractual claim and maintained the claim in negligence.
Issues
In addition to the specific mechanics of how the accident occurred and quantum, the Court was asked to determine on the following issues:
- Was the Plaintiff’s injury caused by failure to take care on the part of Mr Carroll? If so, and having regard to vicarious liability and the existence of a non-delegable duty of care, which of the Defendant’s were responsible for the conduct of Mr Carroll?
- Were either of the Defendants negligent, irrespective of the alleged negligence on the part of Mr Carroll?
- Was the Plaintiff guilty of contributory negligence?
Determinations
Was the Plaintiff’s injury caused by failure to take care on the part of Mr Carroll?
The Court defined the risk of harm at [80] as “the risk of the Plaintiff’s left arm coming in contact with something outside the vehicle as Mr Carroll was driving the vehicle”. Regardless of the circumstances of the incident, the Court considered the risk of harm as “plainly reasonably foreseeable” to the Defendants and Mr Carroll regardless of whether the risk must have involved negligence on part of the Plaintiff, i.e., by having his arm protruding from the boundary of the SMV. Cavanagh J considered Mr Carroll did not allow himself sufficient time to ensure he could have driven safely past the salter. Given the misjudgement on Mr Carroll’s part and the duty of care imposed on him as the driver of the SMV, Cavanagh J accepted the Plaintiff’s injury was caused by the failure of Mr Carroll to take reasonable care.
If the injury was caused as a result of Mr Carroll’s actions, and having regard to vicarious liability and the existence of a non-delegable duty of care, which of the Defendants were responsible for the conduct of Mr Carroll?
The employment contract between Mr Carroll and Third Defendant stated that the “client or person in control of the worksite would be responsible for supervision, including issuing instructions in relation to work, allocation of work, safety procedures, policies, instructions and access to the site”. Further, the contract between the Second and Third Defendant stated the day-to-day supervision, work planning and direction were the responsibility of the mine operator. In addition to these contracts, the Court considered extensive evidence from mine workers, CEO of the First and Second Defendant and expert evidence regarding whether the Second Defendant or the Third Defendant retained effective control of the work being completed by Mr Carroll. Significantly, Cavanagh J at [149] states:
“The Third Defendant had transferred effective control of the manner in which the work was done to the Second Defendant, such that the Second Defendant became the employer pro hac vice of Mr Carroll at the time the accident occurred and having regard to the work Mr Carroll was performing at the time the accident occurred.”
With respect to vicarious liability and non-delegable duty of care, the Court applied the recent High Court authority of AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2026] HCA 2 which noted that a non-delegable duty of care is strict, i.e., even where the duty holder cannot be shown to have been personally negligent, the liability is strict and will still apply to the duty holder. The Court also applied the New South Wales Court of Appeal’s decision in St Paul’s College Ltd v Allan [2026] NSWCA 22 which stated that “a non-delegable duty of care may result in liability being imposed on the duty holder without personal fault on the part of a duty holder”. Ultimately, with respect to these two decisions, Cavanagh J at [118] found that:
“The Second Defendant owed a duty to the Plaintiff to exercise reasonable care for the safety of the Plaintiff as he was working underground, including being driven around in the SMV, and as that duty is not delegable, then it is liable, because it failed to ensure that Mr Carroll drove the Plaintiff through the cut-through safely. It is in breach of its non-delegable duty of care”.
Given Australian law does not permit dual vicarious liability as per Day v Ocean Beach Hotel Shellharbour Pty Ltd (2013) 85 NSWLR 335, as the Third Defendant had transferred effective control of its employees to the Second Defendant, as such the employees becoming “pro hac vice” employees of the Second Defendant, the Second Defendant was liable for the conduct of Mr Carroll.
Was the Plaintiff guilty of contributory negligence?
Despite a finding that the Plaintiff’s elbow was protruding from the boundary of the SMV and the Plaintiff had been trained to keep all body parts inside the cabin, the Court refused to find contributory negligence on part of the Plaintiff. The Court considered there was not enough evidence to establish that the Plaintiff was deliberately holding his arm outside the SMV. Instead, the Defendants’ had not discharged the Plaintiff engaged in a deliberate course of conduct and failed to take care of his own safety due to the uncertain circumstances surrounding the incident such as the slope of the ground, the obstruction to the Plaintiff’s view in front and his adjustment to hear a radio.
Principle
Ward v Endeavour Coal highlights that where a labour hire company has ceded all operational control over its employees to another entity, being a host employer, and the host employer controls the supervision, training and work planning, the employees become “pro hac vice” employees of the host employer. Importantly, negligent conduct on part of the employees will attract a finding of vicarious liability on part of the host employer and not the legal employer.
Source; Lexology
