A labour hire employee who sustained injuries while emptying bins after falling following a wasp sting successfully recovered damages against his employer and labour hirer, but damages for economic loss were reduced due to inconsistent work history.
In issue
The key issues in the case were the duty of care owed by the defendants, the extent to which each was liable and the assessment of damages, particularly the basis on which economic loss should be calculated.
The background
On 24 February 2019, Mr Carey-Schofield (the plaintiff) suffered personal injuries in the course of his employment with Hays Specialist Recruitment (Australia) Pty Ltd (the first defendant) and Civeo Pty Ltd (the second defendant), collectively referred to as, ‘the defendants’.
The plaintiff was hired by Hays to Civeo for the purpose of performing work as directed by Civeo at its ‘Dysart Village’ accommodation lodge in Dysart Queensland (Dysart Village or the village). Dysart Village, one of Civeos’ largest accommodation villages, is close to surrounding mine sites, providing accommodation, social meeting places, as well as recreational facilities for its guests.
From 15 February 2019 to 27 February 2019, the plaintiff was employed by Civeo to perform work in the facilities section of the village. The plaintiff was inducted on 15 February 2019 by the village manager where he underwent a standard induction and was paired with a male colleague who demonstrated the required work procedures. One of the specific tasks assigned to the plaintiff involved rubbish removal. The facility had numerous 240L wheelie bins throughout the village that were collected and taken away twice a week.
The plaintiff was instructed to drive a work utility vehicle to the area where the bins were located, open the lid of the bin, tie the top of the garbage liner, lift the garbage liner out of the bin and put it down on the ground, put the new liner in the bin and then go to the next available bin until each of the bin liners had been removed. The plaintiff was then instructed to collect the bags and lift them into the back of the utility vehicle. He was further instructed that if the full bin liners were too heavy to lift, he should lie the wheelie bin on the ground, then drag the full bin liner out on its side, then stand the bin up and put the new bin liner in the wheelie bin. The plaintiff was further instructed that if he was unable to lift the full garbage bin liner from the ground to the tray of the work utility vehicle, he ought to call for assistance.
The incident
On 24 February 2019, while executing his normal work duties, the plaintiff attended upon four wheelie bins full of rubbish. He considered the bin liners full of rubbish were too heavy to lift alone. He flagged down a female co-worker and agreed with her suggestion of collecting them later.
After removing the full liners from three of the four wheelie bins, a wasp emerged from the vicinity of the fourth bin, stinging the plaintiff on his left forearm. In reaction, he stepped back, tripped over one of the full bin liners he had previously placed on the ground, and fell, resulting in an injury to his left elbow (the fall).
As a result of the fall, the plaintiff suffered a comminuted intraarticular fracture of the left distal humerus with displacement. He underwent an operative procedure to remove loose bone fragments from his left arm and an internal fixation of the left distal humeral fracture. The plaintiff had limited movement of his left elbow and commenced physiotherapy a short time after.
The plaintiff commenced proceedings in the Supreme Court of Queensland pursuant to the Workers’ Compensation and Rehabilitation Act 2003, alleging that the defendants acted negligently in failing to take precautions against a risk of injury that was foreseeable and not insignificant, which subsequently resulted in loss and damages to the plaintiff.
The decision at trial
The defendants argued the risk of the plaintiff tripping on a rubbish bag which he had only just and temporarily placed upon the ground could not be considered a foreseeable and significant risk in the circumstances. Hays, as the labour hire employer, argued that it should not be found liable for any portion of the breach. Justice Crow disagreed, emphasising that the foreseeable risk of tripping on the bags made both defendants liable under the Workers’ Compensation and Rehabilitation Act 2003.
Justice Crow determined that both Hays and Civeo were liable for the plaintiff’s injuries. Hays, as the employer, had a duty to ensure that its employees were placed in safe working environments, while Civeo, as the host employer, was responsible for maintaining a safe workplace. The court found that both parties had breached their non-delegable duty to the plaintiff, with Civeo bearing predominant liability as it was responsible for the design, implementation, and enforcement of the safe system of work.
In essence, His Honour found that Civeo breached their non-delegable duty of care to the plaintiff by failing to:
- Provide the plaintiff with adequate manual handling assistance or additional workers to assist with the task.
- Direct or instruct him to place bin bags immediately into the utility.
Ultimately, Crow J found in favour of the plaintiff against the defendant’s and awarded damages at an apportionment of 25% (or $503,595.51) against Hays and 75% (or $873,014.08) against Civeo.
Implications for you
This case illustrates that despite acknowledging and accepting issues as to the credibility of a plaintiff – generally finding the plaintiff as honest but somewhat unreliable – the courts are willing to award significant damages upon responsible tortfeasors. Furthermore, for employers, the importance of critically analysing and consistently updating workplace practices with regard to an employee’s workplace duties should not be undermined in any respect.
Source: Lexology
