Clarence Valley Council v Macpherson

[2011] NSWCA 422

NSW Court of Appeal

Built by Barristers,
For Australian Law.

1. Torts
2. › Negligence
3. › Employer's duty of care — host employer — labour hire — provision of safe equipment — chainsaw with auger attachment — absence of torque-limiting clutch — breach of duty
1. Torts
2. › Negligence
3. › Apportionment — host employer and labour hire company — s 151Z Workers Compensation Act 1987 — relative culpability — last-minute change of work method without notice to labour hire company
1. Damages
2. › Non-economic loss
3. › Assessment — proportion of most extreme case — wrist injury — ligamentous damage — 30% reduced to 25% — manifestly excessive
1. Damages
2. › Economic loss — past
3. › Assessment — casual labour hire worker — appropriate base rate — actual earnings at date of injury preferred over prior full-time earnings — discount for underemployment

A host employer owes a duty analogous to an employer's. Compliance with laws, regulations and Australian Standards does not of itself negate breach where it supplied plant it knew or ought to have known was unsafe. On the facts, supplying a chainsaw-powered auger without a torque-limiting clutch was a breach. The council held clutch-fitted augers and the clutch came with the attachment, so the precaution was not burdensome, and a worker's general chainsaw experience did not reduce the duty.
In apportioning responsibility under s 151Z(2) of the Workers Compensation Act 1987 (NSW) between a host employer and a labour hire employer, comparative culpability and causal importance under [name withheld] apply. A labour hire company that hired out a worker as a spray operator, with no notice of a last-minute change to machinery work, bears a low share. On the facts, 15% was upheld.
Loss of earning capacity for a casual labour-hire worker should be measured from his actual hourly rate at the date of injury, discounted for the risk of not securing full-time work, rather than from earlier full-time earnings. For s 15(3)(b) of the Civil Liability Act 2002 (NSW), the six consecutive months of gratuitous care may be shown by any qualifying continuous period, such as from surgery to trial.