In this case study the onus was on the worker to prove his back injury occurred as a result of negligence by the employer. Smith v Coles Supermarkets Australia Pty Ltd t/as Coles Distribution Centre; Ready Workforce (A Division of Chandler Macleod) Pty Ltd v Coles Supermarkets Australia Pty Ltd; Coles Supermarkets Australia Pty Ltd v Chandler Macleod Group Ltd  NSWCA 206
Mr Smith was employed by Ready Workforce, a division of Chandler Macleod and placed to work as a picker/packer at a Coles warehouse. Mr Smith injured his back when he leant forward to lift a carton containing bottles of water from the back of a pallet.
Ready Workforce paid statutory workers compensation for Mr Smith’s back injury amounting to approximately $100,000.
After the statutory payments had been resolved, Mr Smith elected to commence proceedings against Coles for negligence.
Ready Workforce then commenced proceedings against Coles for recovery of workers compensation payments made to Mr Smith.
Coles filed a cross-claim in court against Chandler Macleod arguing that any liability it incurred was the subject of a contractual indemnity, or else was recoverable as damages for breach of contract.
District Court proceedings
The proceedings were heard together in the District Court.
It was alleged for the first time during the proceedings that Coles had not provided Mr Smith with a ‘pick stick’, an implement which could be used to drag objects closer to a worker.
The judge found in favour of Coles and found that they had not been negligent because the back injury had been caused as a result of Mr Smith’s own failure to adopt the proper lifting technique, and that whether Mr Smith had access to a pick stick was irrelevant. The Judge also found in favour of Coles on their cross-claim against Chandler Macleod awarding nominal damages of $100. Mr Smith and Ready Workforce’s claims were not successful.
Appeal to the Supreme Court
Mr Smith and Ready Workforce appealed the decision arguing that the first judge had not considered whether Coles had failed to provide a system of work that would avoid the risk that a worker would lift cartons improperly in circumstances where the carton could not easily be accessed.
Coles also appealed the decision to only award them $100 damages on their cross-claim, arguing they were entitled to damages for the costs incurred in defending the initial proceedings brought by Mr Smith and Ready Workforce.
Two of the three judges found that as the pick stick had not been pleaded initially by Mr Smith, it was now irrelevant for them to consider. The same two judges also found that the absence of pick sticks does not amount to a basis for concluding there was a breach of duty of care by Coles. As to the appeal by Coles regarding the $100 awarded against Chandler Macleod, all three judges found that Coles had failed to establish that the costs incurred by them in defending the initial proceedings were caused by Chandler Macleod’s breach and failed to provide evidence of those costs at the hearing.
Essentially, all of the appeals were all unsuccessful. Mr Smith’s negligence claim against Coles failed, meaning Ready Workforce was not entitled to a recovery of workers compensation payments against Coles and Coles only received $100 from Chandler McLeod.
A distinction in these cases needs to be made as a labour hire worker who commences proceedings against a host employer, is not limited to a claim for modified common law damages pursuant to the Workers Compensation Act like in an normal employer/employee relationship. A labour hire worker instead, is able to bring proceedings under the Civil Liability Act 2002 (NSW).
While a host employer owes a labour hire worker a duty to take reasonable care to avoid exposing that worker to unnecessary risks, it is the labour hire worker who must satisfactorily plead their case in the first instance. In these types of cases the labour hire worker must prove the breach of duty arises because of a failure to take a precautions against a risk of harm by showing that a reasonable person in the defendant’s position would have taken that precaution.
It is very important for labour hire workers who believe they have been injured due to the negligence of a host employer to ensure their solicitors understand the differences between commencing proceedings under the Workers Compensation Act and the Civil Liability Act 2002.
Our solicitors at The Law Office of Conrad Curry have extensive experience pleading cases in accordance with the Civil Liability Act 2002.
If you think you have been adversely impacted by a workplace injury, we would be pleased to speak with you in an obligation-free consultation to advise you about your options. Please contact our office on (02) 4050 0330 to make an appointment or book online.