What happened
The plaintiff was a mine operator’s fitter travelling in a specialised mining vehicle driven by a labour-hire worker. While passing equipment stored in a narrow cut-through, the vehicle travelled so close that the plaintiff’s left elbow contacted and was caught at the external flange. The elbow was shattered and degloved; despite reconstruction, he was left with a fused elbow, loss of forearm rotation, impaired hand function and chronic pain.
The issues
The Court had to determine the accident mechanics, the driver’s negligence, which defendant bore vicarious or non-delegable responsibility, contributory negligence and quantum. A central question was who had practical control over the way the labour-hire driver performed and was trained for the underground driving task, including whether the mine operator was the employer pro hac vice.
The court's decision
The driver failed to take reasonable care by travelling too close to the equipment, and the mine operator breached its non-delegable duty to ensure the plaintiff was transported safely. Because the operator controlled site training, supervision and the manner of underground driving, it was treated as the driver’s employer pro hac vice; the claim against the labour-hire company and the cross-claim failed. Contributory negligence was not established because the defendants could not prove that the plaintiff deliberately exposed his arm rather than momentarily or inadvertently protruding only his elbow.
Understanding the figures
The May 2026 judgment assessed AUD 3,588,174.17 in total, including AUD 299,747 for non-economic loss and amounts for past and future earning capacity, treatment and care. Ward v Endeavour Coal Pty Limited (No 2) [2026] NSWSC 866 retained that gross figure but ordered deduction of AUD 708,816.29 in applicable compensation repayments and a partial stay of AUD 575,871.58. Costs, repayments and the stay mean no simple net receipt should be inferred.
What this case shows
The case illustrates that, where a labour-hire worker causes an accident, contractual employment labels do not alone decide responsibility: practical control over the task, training and supervision is critical. It also shows that an employer’s non-delegable duty is not avoided by assigning transport to another worker, while damages still require a concrete assessment of residual earning capacity and care needs.
Why another case may differ
Liability depended on this mine’s contractual arrangements, training and supervision system, driving rules and accident evidence. The damages total was the May 2026 trial assessment; the July 2026 costs judgment replaced the orders to deduct compensation repayments and partially stay execution, so the headline figure is not a statement of the plaintiff’s net cash recovery.
Applying it to your claim
Different facts, evidence or procedures, an appeal, or a change in the law may affect how this decision applies. This is general information, not a report of a case handled by Park & Co Lawyers.
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