Hallmark Construction Pty Ltd v Brett Harford; Copeland Building Services Pty Ltd v Hallmark Construction Pty Ltd; Hallmark Construction Pty Ltd v Harford Transport Pty Ltd

[2020] NSWCA 41

NSW Court of Appeal

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Interrogate

Catchwords

1. Torts
2. › Negligence
3. › Contributory negligence
4. › Standard of care
5. › Reasonable person in position of claimant
6. › Whether delivery driver contributorily negligent in moving pallet concealing retention pit opening on building site
7. › Civil Liability Act 2002 (NSW), s 5R
1. Torts
2. › Negligence
3. › Employer's duty
4. › Safe system of work
5. › Corporate alter ego of sole employee
6. › Whether employer breached duty where sole employee was also director
7. › Assessment of risks at sites not controlled by employer
8. › Civil Liability Act 2002 (NSW), s 5B
1. Torts
2. › Negligence
3. › Occupier's liability
4. › Joint occupation of building site
5. › Duty of subcontractor to persons coming onto site at its request
6. › Whether subcontractor owed duty of care as joint occupier
1. Torts
2. › Vicarious liability
3. › Seconded or borrowed employees
4. › Labour hire arrangements
5. › Whether hirer of labour vicariously liable for negligence of worker employed by labour hire company
6. › Whether practical control rather than formal employment relationship determines vicarious liability

Quick Take

Practitioners advising on building site injuries should note that a subcontractor using labour hire workers may be vicariously liable for those workers' negligence where the subcontractor exercises practical control, regardless of the formal employment relationship, and that the CML agency exception does not apply where the worker lacks authority to bind the principal contractually.