The New South Wales Supreme Court’s decision in Ward v Endeavour Coal Pty Limited [2026] NSWSC 557 provides a substantial authority on workplace injury, vicarious liability and contributory negligence.
Background
The plaintiff, Mr David Ward, was a mechanical engineer injured in a vehicle accident that occurred while he was working in an underground mine. He attributed the injury to the negligence of the mine owner, Illawarra Coal Holdings Pty Limited (second defendant), and the company responsible for hiring drivers, WorkPac Mining Pty Limited (third defendant).
The plaintiff was in the front passenger seat of a vehicle being driven by his co-worker Mr Carroll through an underground tunnel. When Mr Carroll turned into a narrow ‘cut-through’ section, he drove in such a way as to cause the left-hand side of the vehicle to impact with the metal frame of a salter. The result was that the plaintiff’s left elbow was quickly caught and crushed. The plaintiff suffered severe injuries including the shattering, crushing, and degloving of his elbow. He maintained that it was not necessary for Mr Carroll to have driven so close to the salter.
During cross-examination, the plaintiff conceded that while he could not remember the details due to trauma, if his elbow had been resting so that it protruded out of the vehicle, that conduct would have been contrary to his training.
Vicarious Liability and the ‘Dual Vicarious Liability’ Problem
Mr Carroll was employed by the third defendant, WorkPac. Training and supervision were provided by the second defendant, Illawarra Coal. Mr Carroll maintained that it was a regular experience to drive through narrow sections and he was never trained otherwise. Evidence revealed that the cause of the collision was the driver’s careless judgement in assuming safe passage through the narrow section.
However, the inadequate training Mr Carroll had received was a significant factor. His Honour Justice Cavanagh found the second defendant, Illawarra Coal, liable for neglecting to satisfy their non-delegable duty to provide proper training. Mr Carroll was never given instructions to inspect narrow sections of the tunnels on foot first, or to not drive through roads containing salters. Referring to the precedent in Czatyrko v Edith Cowan University [2005] HCA 14, His Honour emphasised that it was the duty of the employer to mitigate all risks to their employees, including accounting for the possibility of thoughtlessness or carelessness.
The Court did not find the third defendant and hirer of Mr Carroll, WorkPac, vicariously liable. This was because the second defendant had the authority to direct Mr Carroll. Referring to the similar case of Mt Owen Pty Ltd v Parkes [2023] NSWCA 77, His Honour reasoned that no dual vicarious liability for two principles was recognised under Australian law for the act of a negligent individual. The second defendant possessed sole responsibility and was thus solely liable.
Contributory negligence
The defendants raised the matter of contributory negligence. The plaintiff had acted contrary to his training in deliberately hanging his elbow outside the cabin. However, the Court found that the circumstances surrounding the location of the plaintiff’s elbow remained unclear, and that the mere fact that part of his arm was outside the cabin did not mean that the plaintiff failed to consider his safety. His Honour did not find adequate reason to discharge the defendants based on contributory negligence.
Injury and Damages
According to medical records, the severity of the injury suffered by the plaintiff included permanent nerve damage, neurological pain, and loss of dexterity. The plaintiff was left with a fused elbow and complete loss of forearm rotation. Alongside the need for ongoing medical attention and therapy, the plaintiff also suffered post-traumatic stress disorder and loss of quality of life. While still active enough to undertake a nine-month sailing trip with his family and engage in other hobbies, his capacity to return to his old line of work was permanently inhibited.
The plaintiff received damages for losses in the total sum of $3,588,174.17. The second defendant was ordered to pay costs, and the plaintiff to pay for the third defendant’s costs. This decision affirmed the strong precedent for workplace injury claims.
This case can be read in full here: https://www.caselaw.nsw.gov.au/decision/19e4344bdc8b55164d4eff48
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