Ward v Endeavour Coal Pty Limited

[2026] NSWSC 557

Supreme Court of NSW

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Catchwords

1. NEGLIGENCE — workplace accident in coal mine — plaintiff travelling in front passenger seat of specialised mining vehicle — driver of vehicle a labour hire worker — plaintiff an employee of the mine operator — vicarious liability — pro hac vice employment — contributory negligence — assessment of damages — where plaintiff’s earning capacity disputed — assessment of residual earning capacity — assessment of claims for care — chance of future surgery

Quick Take

The Court held that where a labour hire company transfers substantially complete control over the manner of work to a host employer, the host employer becomes the worker's employer pro hac vice and bears sole vicarious liability for the worker's negligence, with the labour hire company escaping both vicarious liability and direct liability. Applying AA v Trustees of the Roman Catholic Church [2026] HCA 2, the Court confirmed that a non-delegable duty of care owed by an employer results in liability without personal fault where a delegate (here, a pro hac vice employee) fails to exercise reasonable care, and that the duty is to ensure care is taken rather than merely to take reasonable care to ensure care is taken. On contributory negligence, the Court held that in an employment context, the defendants bore the onus of establishing that the plaintiff deliberately placed his arm outside the vehicle cabin rather than that it was there through mere inadvertence, and on the evidence the onus was not discharged.