Court Finds Mt Owen Pty Ltd Liable for Employee’s Negligence in Glendell Coal Mine Accident

Apr 28, 2023 | Publication

The New South Wales Court of Appeal has ruled that a host employer, in this case Mt Owen Pty Ltd, is vicariously liable for the negligence of a worker, Mitchell Kemp, who injured a colleague during maintenance of a bulldozer at Glendell coal mine in July 2017. Mr Kemp was employed by Titan Technicians Enterprise Pty Ltd, which contracted with Mt Owen for labour hire.

A third worker was also involved in the maintenance work. During the work, Mr Kemp dropped the bulldozer’s blade suddenly, causing the track on which Glen Parkes was standing to flick up and crush his right leg between the track and the edge of the access platform beside the cabin of the bulldozer.

Mr Parkes claimed damages against both Mt Owen and Titan. The primary issues on appeal were whether Mt Owen was vicariously liable for Mr Kemp’s negligence and whether Titan, as Mr Parkes’ legal employer, breached its duty of care to him.

The trial judge found both Mt Owen and Titan breached their duty of care to Mr Parkes and apportioned liability 60% for Mr Kemp’s negligence, for which Mt Owen was responsible, and 40% to be shared equally by Mt Owen and Titan. The trial judge awarded $2,050,953 in damages.

Mt Owen appealed the findings that it was liable, while Titan cross-appealed the attribution of liability ascribed to it.

The Court held that Mt Owen was vicariously liable for Mr Kemp’s negligence, while Titan, as Mr Parkes’ legal employer, did not breach its duty of care to him.

The case highlights the complexities of the modern labour hire environment and the potential for a shift of liability from the legal employer to the host employer, depending on the nature and extent of control over a worker.

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