Host employer determined to exercise complete control over worker

by Melissa McGarrity and Jacqi Marshall

A recent decision in the Western Australia Court of Appeal will be an important case in matters involving negligent acts of labour hire employees.  Here, Solicitor Melissa McGarrity and Senior Associate Jacqi Marshall discuss the decision of Kelly v Bluestone Global Ltd and Anor [2016] WASCA 90, upholding the decision of the Western Australia Supreme Court and dismissing the claim made by the Plaintiff.


The Plaintiff was employed by Ngarda Mining and Civil Pty Ltd (Ngarda) at the BHP Billiton owned Yarrie mine.

During the course of his employment, the Plaintiff reversed a dump truck to an area directly underneath the fully loaded excavator bucket driven by Mr Scanlan. Mr Scanlan dropped the fully loaded bucket onto the tray of the appellant's dump truck causing the dump truck to shake violently which in turn resulted in neck and back injuries to the Plaintiff.

Mr Scanlan was employed by TSS Recruitment Pty Ltd (a labour hire company) and worked for Ngarda. The Plaintiff claimed that the labour hire company was vicariously liable for the actions of Mr Scanlan.

The Plaintiff was unsuccessful at first instance and the subsequent appeal against the defendants in relation to liability failed for two reasons:

  • Mr Scanlan operated the excavator within the usual and accepted practice to which he was appropriately trained. Accordingly the Plaintiff failed to establish that Mr Scanlan breached his duty of care to the Plaintiff; and
  • Control over Mr Scanlan was completely transferred to Ngarda and, accordingly, the labour hire company could not be found vicariously liable for Mr Scanlan’s negligence (if any).


Complete transfer of control

Ngarda provided all inductions and training, coordinated all works, conducted safety inspections and arranged transport and on site accommodation for Mr Scanlan. Further, the terms of the contract between the labour hire company and Mr Scanlan identified his obligations to submit to the directions of Ngarda. The labour hire company had no involvement in the day to day operations on site.

It was noted that no differentiation between labour hire employees and Ngarda employees existed, nor were any labour hire company workers employed in supervisory roles. In fact, most workers supplied by the labour hire employer were made permanent Ngarda employees after three months.

It was determined that the labour hire employer had no control or authority over Mr Scanlan as their role was confined to paying of wages only. The court also found that rather than characterising the defendant as a “labour hire” company, its role was more akin to that of a HR function, as the hired worker was retained by Ngarda following an initial trial period.


Justice Mitchell disagreed with the majority regarding the complete transfer of control of Mr Scanlan. While he noted that the Plaintiff failed in establishing primary liability and it was unnecessary to determine the transfer of vicarious liability, he stated that the burden on an employer who seeks to transfer control is a heavy one and should only be done in exceptional circumstances.

Justice Mitchell was of the opinion that, in this matter, that burden was not discharged.

Take away points

  • A distinction must be drawn between the liability of a labour hire employer for the actions of their employees and the non-delegable duty of care owed by labour hire employers to their employees.
  • Each matter will turn on its facts, particularly with respect to the level of control of workers and the history of the relationship between the parties. 

For further information or discussion, please contact HopgoodGanim Lawyers' Insurance & Risk team.  

HopgoodGanim Lawyers' Insurance and Risk team is ranked by Doyle's Guide in the category of Leading Workplace Accident & WorkCover Insurance Law Firms - Queensland, 2015.  Founded 40 years ago, the HopgoodGanim of today remains fiercely independent and proud of our sustained growth and ongoing success. We deliver exceptional commercially-focused legal advice to clients throughout Australia and internationally and in addition to our corporate and commercial teams, we also house one of Australia’s most highly regarded family law practices. 


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