Abattoir Forklift Stillage Injury Dispute: How is liability allocated when a host operator’s unsafe system and a labour hire employer’s non-delegable duty intersect with vicarious liability for an unlicensed forklift driver?

Based on the authentic Australian judicial case Scott v Usinch Pty Ltd [2025] NSWSC 983, this article disassembles the Court’s judgment process regarding evidence and law. It transforms complex judicial reasoning into clear, understandable key point analyses, helping readers identify the core of the dispute, understand the judgment logic, make more rational litigation choices, and providing case resources for practical research to readers of all backgrounds.

Chapter 1: Case Overview and Core Disputes

Basic Information

Court of Hearing: Supreme Court of New South Wales (Common Law Division)

Presiding Judge: Schmidt AJ

Cause of Action: Negligence and personal injury damages arising from a workplace incident involving a forklift and a falling stillage, in a labour hire setting, including issues of vicarious liability, contributory negligence, causation, apportionment, and assessment of damages under differing statutory regimes.

Judgment Date: 28 August 2025

Core Keywords:

Keyword 1: Authentic Judgment Case

Keyword 2: Labour hire workplace injury

Keyword 3: Forklift stillage fall

Keyword 4: Unsafe system of work

Keyword 5: Vicarious liability in labour hire

Keyword 6: Apportionment and statutory damages pathways

Background (Without Spoiling the Outcome)

A worker supplied through a labour hire arrangement commenced at an abattoir site and, within weeks, suffered catastrophic injuries when a heavy stillage of packaged meat storage equipment fell from a forklift during a manoeuvre in a confined load-out area. The host operator controlled the day-to-day workflow, operated the site, and provided the plant and procedures. The labour hire employer, operating alongside the host at the same premises, remained the worker’s employer in law.

The dispute did not simply ask whether a forklift driver made a mistake. The deeper question was whether the incident was the product of a broader system failure: an unsafe method of moving stacked stillages, insufficient training, inadequate supervision, and procedures that existed on paper but were not reliably implemented in practice. Against that factual matrix sat a further layer of controversy: which entity should bear legal responsibility, and in what proportion, when both had duties of care but only one could be vicariously liable for the forklift operator’s negligence.

Core Disputes and Claims

The Plaintiff sought damages for physical injury, psychiatric injury, and long-term loss, alleging:

1. The forklift operator was negligent in how the forklift was driven and how the load was managed.
2. The First Defendant (site owner/operator) owed the Plaintiff a duty of care as occupier and controller of the worksite and breached it through an unsafe system of work.
3. The Second Defendant (labour hire employer) owed a non-delegable duty of care as employer and breached it by permitting the Plaintiff to work within a system exposing him to unnecessary risk.
4. The First Defendant should be vicariously liable for the forklift operator’s negligence because the forklift operator was, in substance, integrated into the First Defendant’s workforce.
5. The Plaintiff denied contributory negligence and disputed any failure to mitigate.

The Defendants resisted liability and advanced competing narratives, including:

1. The incident resulted from a casual act of negligence by the forklift operator, not a systemic failure.
2. The Plaintiff’s account of where he was standing and how the incident occurred was unreliable, inconsistent with earlier documents, and shaped to increase damages.
3. The Plaintiff should bear some responsibility for his own injury (contributory negligence).
4. Issues of causation and statutory pathway selection affected how damages should be assessed, particularly in relation to workers compensation and motor accident legislation.

Chapter 2: Origin of the Case

The Relationship Between the Parties

The Plaintiff was employed by the Second Defendant, a labour hire business supplying workers to a meat processing site. The First Defendant owned and operated the abattoir. The labour hire arrangement was not documented in a formal written contract, but its practical reality was unmistakable: the Second Defendant supplied labour; the First Defendant controlled the tasks, location, equipment, workflow, and the immediate operational environment.

Importantly, the two corporate entities operated out of the same premises and were connected by a single controlling director. That corporate overlap did not dissolve the separation of legal obligations; rather, it created a factual setting in which knowledge, practices, and risk controls were difficult to treat as isolated to one entity.

How the Work Was Actually Done

Load-out work required stillages—large metal storage frames—used as part of a system for packaged meat. On the morning in question, stillages were found stacked three high in the load-out area. Their presence obstructed commencement of the day shift’s work.

The forklift was used to move a stillage from the top of the stack. This required lifting from a combined height of approximately 3.6 metres. The stillage itself was substantial in size and mass. As the forklift reversed and turned sharply, while the load was being lowered, the stillage slid off the tines and fell, striking the Plaintiff. CCTV captured part of the sequence, although not the Plaintiff’s precise position at the moment of impact.

Conflict Foreshadowing: The Decisive Moments

Several “decisive moments” pushed the incident from tragedy into litigation:

1. The stillages were left in a location where they should not have been, forcing immediate removal before work could begin.
2. The forklift was operated without supervision at the time it mattered most—at shift commencement when obstructions had to be cleared.
3. The load was manoeuvred in a confined space, increasing the risk of abrupt turning, unstable load positioning, and collision proximity.
4. A critical safety question crystallised: were the Defendants enforcing an effective system, or merely maintaining written procedures that were not in practical operation?

The litigation also became shaped by events after the incident: disputes about entitlements, rehabilitation, and the consequences of employment termination added complexity to loss assessment and mitigation arguments.

Chapter 3: Key Evidence and Core Disputes

Plaintiff’s Main Evidence and Arguments

1. CCTV footage: partial capture showing the forklift manoeuvre, the load falling, and workers responding, supporting a reconstruction of unsafe operation even though the Plaintiff was not visible at the impact point.
2. Evidence of workplace layout and “safe spot”: the Plaintiff asserted he stood behind a barrier in an area understood to be a designated safe zone for pedestrian work while forklifts operated in the load-out area.
3. Operational reality evidence: the Plaintiff described how forklift tasks were performed in practice, including the handling of stillages without securing attachments.
4. Documentary safety procedures: the Plaintiff relied on the gap between documented forklift procedures (licensing, stable operation, no simultaneous actions) and actual practice.
5. Expert engineering/workplace safety report: an unchallenged expert report supported foreseeability of harm where pedestrians and mobile plant moved in the same area without effective controls and where loads could fall without attachments.
6. Medical evidence: extensive contemporaneous records and expert evidence established severe spinal injury, surgery, chronic pain, and psychiatric sequelae, supporting both causation and damages.

Respondents’ Main Evidence and Arguments

1. Investigation documents: the First Defendant relied on its post-incident investigation materials and earlier claim documents to challenge the Plaintiff’s account of where he stood at the time of injury.
2. Alleged inconsistencies: the Defendants attacked the Plaintiff as an unreliable historian who gave inconsistent accounts to medical assessors and in earlier forms.
3. “Casual act” theory: the First Defendant sought to characterise the incident as a forklift operator’s isolated error—placing the tines incorrectly—rather than a system failure for which the host was legally responsible.
4. Contributory negligence: both Defendants asserted the Plaintiff contributed to his own harm, including by positioning and workplace awareness.
5. Mitigation criticism: the Defendants contended the Plaintiff failed to pursue treatment and rehabilitation pathways that could have improved function and reduced loss.

Core Dispute Points (Evidence-Driven)

1. Position at impact: was the Plaintiff behind the barrier in a designated safe zone, or in the load-out area as earlier sketches suggested?
2. System in operation: were forklift procedures truly implemented, including licensing checks, training, pre-start checks, horn use, and stable, single-action operation?
3. Supervision and training: was the forklift operator trained, licensed, and supervised as required, and did either Defendant ensure competence?
4. Causation: would the accident likely have occurred even with a licensed operator, or did lack of training and unsafe method materially contribute?
5. Allocation: even if both owed duties, which should be vicariously liable for the forklift operator’s negligence, and how should responsibility be apportioned?
6. Damages pathway: should the Plaintiff’s claim against the labour hire employer be assessed under the workers compensation common law framework, or under motor accidents legislation?

Chapter 4: Statements in Affidavits

How the Plaintiff Built the Narrative Through Affidavit Material

The Plaintiff’s affidavit materials operated like a bridge between the raw incident and legal conclusions. Rather than merely stating “the forklift was driven negligently”, the Plaintiff’s case sought to make the Court see a chain:

1. The load-out area was obstructed by stacked stillages.
2. The forklift task occurred before supervisors arrived.
3. The forklift operator reversed while turning sharply and lowering the load simultaneously.
4. The stillage was unsecured and could slip sideways off the tines.
5. The barrier did not prevent the falling load from striking a pedestrian standing behind it.
6. The system tolerated these conditions day-to-day, despite written policies.

The affidavit approach therefore did not hinge on perfect memory; it aimed to align the Plaintiff’s account with objective anchors: CCTV, contemporaneous medical records, and unchallenged expert analysis.

How the Defendants’ Affidavit Material Sought to Undermine Credibility

The Defendants’ strategic focus was to fracture the Plaintiff’s evidentiary foundation by:

1. Extracting prior inconsistent statements given in earlier claim forms and sketches.
2. Highlighting incomplete histories provided to experts (particularly about prior injuries or employment history).
3. Suggesting exaggeration of incapacity and symptom reporting, linking that to a damages inflation theory.

Yet a pivotal evidentiary weakness sat beneath those attacks: the Defendants did not call the most obvious witnesses—those working at the abattoir when the incident occurred—who could have directly contradicted or confirmed key factual disputes.

Strategic Intent Behind Procedural Directions on Affidavits

In cases where workplace witnesses are available but not called, affidavit practice becomes a battleground for inference. The Court’s procedural management—joint reports, concurrent evidence, and selective cross-examination—channels the dispute into what can be objectively tested. The affidavits set the rails; cross-examination tests the stability of each version. Where a party with control over witnesses does not call them, affidavits alone do not rescue that gap; it may instead deepen it.

Chapter 5: Court Orders

Key Procedural Arrangements Prior to Final Hearing

1. Production and reliance on CCTV footage and workplace documents, including safety procedures and training records.
2. Exchange of evidentiary statements and affidavits from the Plaintiff and Defendants.
3. Appointment and briefing of experts across medical specialties and functional capacity assessment.
4. Preparation of joint expert reports and scheduling of concurrent evidence sessions for relevant expert groups.
5. Case management steps narrowing expert cross-examination because substantial agreement existed on certain medical issues.
6. Directions enabling the parties to file schedules of damages calculations and reconcile agreed components before final orders were settled.

Chapter 6: Hearing Scene: Ultimate Showdown of Evidence and Logic

Process Reconstruction: Live Restoration of Cross-Examination

The hearing’s centre of gravity was not theatrical conflict; it was disciplined testing of the only witness whose narrative tied the whole factual matrix together: the Plaintiff.

Cross-examination targeted three themes:

1. Completeness and consistency: the Plaintiff conceded elements of past employment and history were not fully or frankly disclosed in earlier accounts.
2. Positioning dispute: the Plaintiff was pressed on why earlier sketches placed him in the load-out area rather than behind the barrier, and whether that shift was motivated by damages strategy.
3. Damages conduct: the Defendants attempted to portray the Plaintiff as withholding rehabilitation, focusing on litigation outcome, and overstating incapacity.

Yet the Plaintiff’s concessions did not automatically collapse reliability. The Court separated “credibility damage” from “total rejection”, and then looked outward to objective anchors.

Core Evidence Confrontation: The Moment the Paper Case Met the Real World

Three evidentiary collisions shaped the logic:

1. CCTV versus procedure: written policies demanded stable operation and prohibited performing two actions at once. The footage showed reversing and turning while lowering a high, unsecured stillage—precisely the combination the written policy warned against.
2. Sketches versus biomechanics: earlier sketches suggested the Plaintiff was in the load-out area. The injury pattern and contemporaneous medical references were more consistent with being struck in a way that threw him to the ground, not pinned against the barrier in the manner the sketches suggested.
3. Witness absence versus forensic inference: the Defendants, who would be expected to call the forklift operator and site witnesses, did not do so, despite relying on investigation materials said to draw on workplace knowledge.

Judicial Reasoning (With Determinative Quotation)

The Court accepted that the Plaintiff’s account required caution in parts, but refused to treat that as a licence to disregard objective corroboration.

“I am satisfied that aspects of the Plaintiff’s evidence must be approached with some caution, given what emerged in his cross examination … It may not be overlooked, however, that some contemporaneous documents, including ambulance and hospital records … support aspects of the Plaintiff’s evidence. As does the CCTV footage.”

This statement mattered because it reveals the Court’s method: credibility is not a binary switch. Where objective evidence supports a version, the Court will not discard it merely because the witness has weaknesses on collateral matters.

The second decisive reasoning move concerned missing witnesses and inference.

“There was no explanation for the Defendants not having called evidence from obvious witnesses … I am satisfied that the proper inference is that the evidence of those who worked at the abattoir would not have assisted the case of either Defendant.”

This was determinative because it neutralised the Defendants’ strategy of attacking the Plaintiff while withholding direct workplace evidence. In a workplace incident where the defendants controlled access to operational witnesses, silence can speak loudly in the law of evidence.

Chapter 7: Final Judgment of the Court

Orders and Outcome

The Court determined that:

1. The forklift operator was negligent in the way the forklift was driven.
2. The Plaintiff was not contributorily negligent.
3. The First Defendant was vicariously liable for the forklift operator’s negligence, because the operator was, in substance, incorporated into the First Defendant’s workforce.
4. Both the First Defendant and the Second Defendant owed the Plaintiff a duty of care and breached those duties.
5. The First Defendant bore greater responsibility for the Plaintiff’s damages than the Second Defendant.
6. The Plaintiff was entitled to damages, but not all damages claimed.

On apportionment between concurrent tortfeasors, the Court assessed the Second Defendant’s contribution at 30%, meaning the First Defendant bore the remaining 70% share of responsibility.

On costs, the Court indicated the usual order should apply: costs follow the event, such that the Defendants should bear the Plaintiff’s costs unless submissions were made to the contrary.

The Court directed that judgment would be entered for the Plaintiff and required the parties to confer and file proposed orders reflecting the judgment within 21 days, together with short written submissions on anything remaining in issue.

Chapter 8: In-depth Analysis of the Judgment: How Law and Evidence Lay the Foundation for Victory

Special Analysis: Why This Case Matters Beyond Its Facts

This decision carries jurisprudential weight because it demonstrates, in a modern labour hire environment, how courts allocate responsibility when:

1. A host operator controls day-to-day work and plant, making it the proper subject of vicarious liability for negligent operation by a labour hire worker integrated into the host workforce.
2. A labour hire employer retains a non-delegable duty of care, so it cannot simply point at the host and walk away.
3. Written policies do not protect a defendant if the evidence shows the policies were not in practical operation.
4. Courts apply disciplined inferential reasoning where obvious witnesses are not called, especially in a controlled workplace setting.

It is also a case about how courts respect human imperfection in evidence. The Plaintiff was not treated as flawless. The Court recognised weaknesses, then tested the account against objective anchors and the unexplained forensic gaps created by the Defendants.

Judgment Points: Uncommon or Noteworthy Features

1. Corporate proximity did not erase legal separation, but it did influence the Court’s assessment of knowledge and practical oversight, especially where both entities operated at the same premises under a single controlling director.
2. The Court treated the absence of workplace witnesses not as an incidental gap, but as a powerful forensic fact affecting contested issues, including the Plaintiff’s location at impact and how the work was ordinarily done.
3. The decision navigated multiple statutory frameworks for damages, distinguishing between liability and the statutory pathway for assessment against each defendant.
4. Apportionment was approached as an evaluative exercise focusing on relative responsibility and causal potency, not a mechanical arithmetic split.

Legal Basis: Statutory Provisions and Legal Tests Applied

1. Civil Liability Act 2005 (NSW): applied to the Plaintiff’s claim against the First Defendant, including breach, causation (including s 5D analysis), and damages assessment principles.
2. Workers Compensation Act 1987 (NSW): relevant to the claim against the Second Defendant, including the operation of common law remedies and interaction rules designed to prevent double recovery where statutory benefits have been paid or are payable.
3. Workplace Injury Management and Workers Compensation Act 1998 (NSW): relevant to the broader workers compensation regime context.
4. Work Health and Safety Act 2011 (Cth): not applied as a direct damages statute in this judgment, but relevant to the safety context and improvement notice response narrative.
5. Motor Accidents Compensation Act 1999 (NSW): raised as an alternative pathway contention regarding whether the incident constituted a motor accident for damages purposes, affecting assessment against the Second Defendant.

Evidence Chain: Conclusion = Evidence + Statutory Provisions (Five-Link Structure Applied)

Victory Point 1: Proving negligence beyond the “single mistake” narrative

Statutory Provisions: Civil Liability Act 2005 (NSW) breach analysis and causation framework.

Evidence Chain: CCTV footage demonstrated a sequence of actions that were objectively unsafe: reversing and turning sharply while lowering a high, unsecured load in a confined space. The First Defendant’s attempt to reduce the incident to a single tine-placement error was undermined because the footage showed multiple compounding unsafe actions.

Judicial Original Quotation:

“That was not [the forklift operator’s] only mistake, given the unsafe way in which he actually drove the forklift … The evidence also does not permit the finding that it was only as the result of casual acts of negligence … that the Plaintiff was injured.”

Why determinative: It prevented the First Defendant from escaping responsibility by reframing the incident as an isolated slip rather than a foreseeable outcome of how the task was performed.

Losing Party’s Failure: Over-reliance on argument without calling evidence to support an alternative reconstruction of the task or to justify why the manoeuvre was unavoidable.

Victory Point 2: Establishing the “policy versus practice” breach

Statutory Provisions: Duty and breach principles under negligence; practical discharge of duty requires implementation, not paper compliance.

Evidence Chain: Written forklift procedures required licensing, training, pre-start checks, horn use, and stable, single-action operation. The evidence showed there was no proof of forklift policy training, and the CCTV showed conduct inconsistent with the policy.

Judicial Original Quotation:

“The result is that it must be found that the documented forklift procedures were not in practical operation … [the forklift operator] was neither trained in the policy nor supervised when he operated the forklift.”

Why determinative: It converted the existence of policies from a defence exhibit into a plaintiff-side weapon: the gap between written rules and actual conduct became proof of breach.

Losing Party’s Failure: Failure to tender training records proving forklift policy training and failure to call supervisors to establish enforcement practice.

Victory Point 3: Winning the “where was the Plaintiff standing?” battle using objective anchors

Statutory Provisions: Evidentiary evaluation principles and inferential reasoning, including Jones v Dunkel.

Evidence Chain: Earlier sketches suggested the Plaintiff was in the load-out area. The Plaintiff explained the sketch was prepared with solicitor assistance while he was severely affected by injuries, and it contained an error. The Court tested plausibility against CCTV spatial constraints and injury biomechanics, supported by ambulance and hospital records.

Judicial Original Quotation:

“Despite those records I am satisfied that [the Plaintiff’s] evidence about where he was standing cannot fairly be rejected.”

Why determinative: It preserved the Plaintiff’s narrative of being in a designated safe zone, which made the system failure more stark: even compliance with a purported “safe spot” did not protect a worker from falling load risk.

Losing Party’s Failure: Choosing not to call the forklift operator or other on-site workers who could have definitively resolved the positioning dispute.

Victory Point 4: Converting missing witnesses into a decisive inference

Statutory Provisions: Jones v Dunkel and related inferential principles.

Evidence Chain: The Defendants attacked credibility but did not call obvious witnesses: site workers present at the time, those involved in the investigation report, or the forklift operator. The Court treated the absence as unexplained and drew an inference adverse to the Defendants.

Judicial Original Quotation:

“There was no explanation for the Defendants not having called evidence from obvious witnesses … the proper inference is that the evidence … would not have assisted the case of either Defendant.”

Why determinative: It shifted the evidentiary balance. Rather than the Plaintiff being punished for imperfect recall, the Defendants were penalised for withholding the best available direct evidence.

Losing Party’s Failure: A tactical decision to fight on cross-examination alone, instead of meeting the case with direct workplace testimony.

Victory Point 5: Locking in vicarious liability against the host operator in a labour hire environment

Statutory Provisions: Common law vicarious liability principles, informed by authorities including Kondis v State Transport Authority and Mt Owen Pty Ltd v Parkes.

Evidence Chain: The First Defendant leased the forklift, directed the daily work, and controlled how tasks were performed. The forklift operator, though employed by the labour hire company, was integrated into the host’s workforce such that the host had the relevant control over the act giving rise to negligence.

Judicial Original Quotation:

“I am satisfied that it must be found that [the forklift operator] was so incorporated into the [First Defendant’s] workforce, as to render it vicariously liable for his negligence.”

Why determinative: It ensured the entity with on-site control and operational command bore the legal burden for the forklift operator’s negligent driving.

Losing Party’s Failure: Inability to demonstrate that control of the relevant act remained with the labour hire employer rather than the host.

Victory Point 6: Holding the labour hire employer liable despite absence of vicarious liability

Statutory Provisions: Employer’s non-delegable duty of care; workers compensation common law remedies framework.

Evidence Chain: The Second Defendant owed a duty that could not be avoided by sending the worker to another site. The Court found the labour hire employer should not have permitted the Plaintiff to work within an unsafe system of work it was aware existed, especially given the forklift operation risks.

Judicial Original Quotation:

“Still [the labour hire employer] should not have permitted the Plaintiff to work … under the unsafe system of work which it was aware [the host] had in operation.”

Why determinative: It prevents labour hire employers from adopting a passive stance. Knowledge and permission are powerful facts: an employer who knows a host system is unsafe must take positive steps, not merely supply labour.

Losing Party’s Failure: Failure to show any concrete additional measures taken to discharge the continuing common law duty, such as ensuring training, insisting on controls, or intervening when unsafe practice was apparent.

Victory Point 7: Apportionment grounded in causal potency and responsibility, not symmetry

Statutory Provisions: Apportionment principles for concurrent tortfeasors.

Evidence Chain: The host operator devised and implemented (in practice) the system, controlled plant and workflow, and bore primary responsibility for supervision and safe work design. The labour hire employer contributed by permitting exposure despite knowledge.

Judicial Original Quotation:

“Contributions … is an evaluative exercise … a finding … of proportion, balance and relative emphasis … I have concluded that [the labour hire employer’s] contribution must be assessed to be 30%.”

Why determinative: It delivered a clear liability map: the host carried the heavier burden while recognising the employer’s continuing responsibility.

Losing Party’s Failure: Both sides attempted to push fault onto the other; neither produced strong direct witness evidence of operational oversight that could justify a radically different split.

Victory Point 8: Defeating mitigation attacks by contextualising post-accident conduct

Statutory Provisions: Mitigation principles in damages assessment.

Evidence Chain: The Plaintiff did not pursue all treatment, but the Court considered broader context: psychological injury, confusion about entitlements, breakdowns in rehabilitation support, and the reality that treatment access was entangled with post-incident systems.

Judicial Original Quotation:

“I am not persuaded that a failure to mitigate has been established.”

Why determinative: It protected future economic loss and treatment expense claims from being artificially reduced by a simplistic “you did not do enough” narrative.

Losing Party’s Failure: Inability to prove that reasonable treatment was clearly available, that the Plaintiff unreasonably refused it, and that refusal caused quantifiable additional loss.

Judicial Original Quotation (Additional Classic Dicta Used as a Lens)

“Such a finding does not depend on questions of principle of fact or law, but of proportion, balance and relative emphasis … requiring the weighing of different considerations and involving an individual choice or discretion, as to which minds may differ.”

This passage matters because it warns practitioners and litigants against treating apportionment as a mathematical certainty. The Court is making a structured evaluative judgment, and the winning strategy is to show why your party’s failures had less causal potency and less responsibility in the whole narrative.

Analysis of the Losing Party’s Failure

1. Treating documentary procedures as a shield, without proving implementation: written forklift procedures were ineffective as a defence when practical operation could not be shown.
2. Attacking credibility while withholding direct workplace witnesses: credibility attacks are weaker when the attacking party does not call the best witnesses to resolve contested facts.
3. Over-reliance on a “casual act” theory: where the incident aligns with systemic risk factors (confined space, high load, unsecured attachment, simultaneous manoeuvres), courts resist reduction to a single operator error.
4. Insufficient causation reframing: arguments that “a licensed operator could have made the same error” fail where the evidence shows multiple safety layers were absent and training and supervision deficits were part of the risk creation.
5. Attempting to externalise employer responsibility in labour hire: the employer’s non-delegable duty remains active; knowledge of unsafe systems creates a demand for action.

Reference to Comparable Authorities (AGLC4 Style and Ratios)

Kondis v State Transport Authority (1984) 154 CLR 672: Authority on vicarious liability principles where control over the act and transfer of authority can shift vicarious liability from the general employer to the host exercising relevant control.

TNT Australia Pty Limited v Christie [2003] NSWCA 47: Recognises how labour hire arrangements can place workers in a relationship indistinguishable, day in and day out, from employee and employer, supporting responsibility where the host controls work.

Mt Owen Pty Ltd v Parkes [2023] NSWCA 77: Confirms a host/occupier owes a duty of care to workers on site and provides guidance on vicarious liability allocation where only one defendant may be vicariously liable.

Jones v Dunkel (1959) 101 CLR 298: Establishes that unexplained failure to call a witness may permit an inference that the uncalled evidence would not have assisted the party expected to call that witness.

Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34: Explains apportionment between concurrent wrongdoers as an evaluative exercise of proportion and relative emphasis.

Strong v Woolworths Ltd (2012) 246 CLR 182: Guidance on causation analysis and the relationship between factual inference and breach, particularly where evidence supports a structured causal conclusion.

Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1: Reinforces that exposure to unnecessary risk that materialises can ground liability where duty and breach are established.

Implications (Warm, Powerful, Practical for the General Public)

1. Safety is not a feeling; it is a system. A barrier, a rule, or a sign does not protect you unless the whole workplace consistently enforces the controls that make those protections real.
2. Paper policies do not save people. In court, what matters is what was actually done day-to-day, not what a manual says should have happened.
3. In a labour hire role, your employer still owes you a real duty. Even if you work on someone else’s site, your employer cannot simply shrug and say “that was the host’s problem”.
4. Evidence wins cases when it is anchored. If your memory is imperfect after trauma, contemporaneous records, objective footage, and consistent medical documentation can still carry your truth forward.
5. Silence has consequences. Where a party does not call obvious witnesses who could clarify what happened, a court may treat that silence as meaningful—and it can change the result.

Q&A Session

Q1: If the forklift operator was supplied by a labour hire employer, why wasn’t the labour hire employer automatically vicariously liable?

A: Vicarious liability turns on control of the relevant act and whether the host has assumed authority over how the act is done. In labour hire environments, the host can become vicariously liable where the worker is integrated into the host’s workforce and the host controls the day-to-day performance of the task that caused the injury. The labour hire employer may still be liable on a separate basis: the non-delegable duty of care as employer.

Q2: Why did the Court treat missing workplace witnesses as such a big deal?

A: Because the best evidence about operational practice, supervision, training, positioning, and immediate aftermath often sits with those who were there. If a party who would naturally be expected to call those witnesses does not do so, and offers no reasonable explanation, the Court may infer that the evidence would not have helped that party. In a controlled workplace, that inference can be highly influential.

Q3: What practical lesson matters most for workplace injury claims?

A: Build an evidence chain early. Preserve objective materials: incident reports, photos, CCTV requests, medical records, and any written procedures. The strongest claims are those where the injury story is supported by objective anchors and where the unsafe system can be shown as a pattern, not a one-off.

Appendix: Reference for Comparable Case Judgments and Practical Guidelines

1. Practical Positioning of This Case

Case Subtype: Personal Injury and Compensation – Workplace Negligence in a Labour Hire Setting Involving Mobile Plant and Falling Load Risk

Judgment Nature Definition: Final Judgment (with directions for parties to confer and file proposed orders reflecting the judgment)

2. Self-examination of Core Statutory Elements

⑦ Personal Injury and Compensation

Core Test (Negligence under the Civil Liability Act)

Step 1: Duty of Care

1. Identify the relationship: occupier/operator to worker on site; employer to employee; host to labour hire worker in operational control context.
2. Determine foreseeability: was it reasonably foreseeable a worker could be injured by falling load where stillages are moved at height by forklift in a mixed pedestrian/plant environment?
3. Establish proximity and control: who controlled the site, plant, procedures, supervision, and work sequencing?
4. Confirm non-delegable duties where applicable: an employer’s duty to take reasonable care for employee safety generally cannot be avoided by outsourcing work or sending the employee to a host site.

Step 2: Breach of Duty (Was the risk foreseeable and not insignificant?)

1. Identify the risk precisely: a stillage slipping off forklift tines during reversing/turning/lowering, falling from height, striking pedestrians.
2. Consider risk magnitude: weight and height of stillage; severity of harm if it falls; confined manoeuvring area; absence of securing attachment.
3. Consider probability: how likely is slippage when the load is unsecured and multiple actions occur simultaneously?
4. Consider burden of precautions: securing attachment, exclusion zones, supervision at shift commencement, training/licensing verification, consistent enforcement of stable manoeuvre rules.
5. Consider social utility: operational efficiency does not justify exposing workers to high falling-object risk where reasonable controls exist.

Step 3: Causation (Factual causation and scope of liability)

1. Factual causation: did the breach materially contribute to the occurrence of injury? In many workplace cases, multiple breaches can be concurrent causes.
2. “But for” analysis may be relevant but not exclusively determinative where multiple contributing factors exist and the harm is the materialisation of the very risk created.
3. Scope of liability: is it appropriate that the defendant’s liability extend to the harm suffered, given the nature of the risk and the control exercised?

Step 4: Damages

1. Heads of damage: pain and suffering, past and future economic loss, superannuation, treatment expenses, domestic assistance (commercial or gratuitous), aids and equipment, rehabilitation, and other consequential losses.
2. Discounting and vicissitudes: future loss often involves actuarial assumptions and a reduction for contingencies.
3. Mitigation: damages may be reduced if a plaintiff unreasonably fails to pursue available treatment, but the defendant bears the burden of establishing failure to mitigate and its causal consequence.

Core Test (Damages under Workers Compensation Common Law Pathway)

1. Confirm statutory gateway: whether the claim against the employer is to be assessed under workers compensation common law remedies and how interaction provisions operate to prevent double recovery.
2. Identify whether prior workers compensation benefits have been received and how statutory offsets or restrictions may apply.
3. Distinguish liability from assessment regime: a defendant may be liable in negligence, yet the quantum and structure of recoverable damages can be shaped by the applicable statutory scheme.

3. Equitable Remedies and Alternative Claims

Even when statutory or negligence pathways are contested, parties may consider whether other doctrines provide alternative relief or strategic leverage. The following is not exhaustive and outcomes tend to be fact-sensitive.

Procedural Fairness (Where Administrative Decisions Affect Entitlements)

If post-incident benefit decisions (such as cessation of payments, return-to-work directives, or termination steps) materially affect rehabilitation or financial loss, parties may explore whether procedural fairness obligations were met in the relevant decision-making context. This tends to be a parallel issue rather than a substitute for negligence damages, and it depends on the decision-maker and statutory setting.

Unjust Enrichment / Constructive Trust (Generally Less Central in Workplace Injury)

These doctrines are typically not the primary vehicle for personal injury loss, but may arise at the edges where one party has received a measurable benefit at another’s expense in a manner that is against conscience. In personal injury disputes, negligence remains the orthodox path.

Abuse of Process / Evidence Exclusion (If Evidence Gathering Was Improper)

Where workplace investigations or surveillance evidence is tendered, litigants may consider whether the manner of obtaining evidence was improper and whether discretion exists to limit its use. Outcomes tend to depend on jurisdictional rules of admissibility and the nature of the impropriety.

4. Access Thresholds and Exceptional Circumstances

Regular Thresholds (Common Indicators)

1. Limitation periods: personal injury claims are subject to limitation rules; timing can be decisive and tends to require urgent legal attention.
2. Causation thresholds for particular heads of damage: some claims require proof of likely future expense or likely future loss, not mere possibility.
3. Statutory interaction thresholds: where workers compensation benefits exist, certain recoveries may be limited or modified to prevent double recovery.

Exceptional Channels (Crucial)

1. Where limitation concerns arise: extensions may be available in some circumstances, including latent damage discovery or legal incapacity, but success tends to depend on evidence and prompt action.
2. Where mitigation is raised: psychological injury, confusion, and systemic failure in rehabilitation support may be relevant context, and courts often assess reasonableness rather than perfection.
3. Where labour hire complexity exists: factual integration into host workforce can shift vicarious liability outcomes, and the analysis tends to be driven by control and practical operation rather than contract labels.

Suggestion: Do not abandon a potential claim simply because you think you missed a standard condition or timeframe. Carefully compare your circumstances against exceptions and seek advice quickly, because these issues tend to be evidence-driven and time-sensitive.

5. Guidelines for Judicial and Legal Citation

Citation Angle

It is recommended to cite this case in submissions involving:

1. Labour hire vicarious liability allocation where the host controls the relevant act.
2. Evidence-based findings that written policies are not protective if not implemented in practice.
3. Application of Jones v Dunkel inference where obvious workplace witnesses are not called.
4. Apportionment between concurrent tortfeasors in a workplace system failure context.

Citation Method

As Positive Support: When your matter involves a host operator controlling plant and workflow and a labour hire worker integrated into the host workforce, citing this authority can strengthen arguments on vicarious liability and system-based breach analysis.

As a Distinguishing Reference: If the opposing party cites this case, you should emphasise differences such as documented training actually being implemented, supervisors being present, effective exclusion zones operating, loads being secured by attachments, or workplace witnesses being called to support the defendant’s operational narrative.

Anonymisation Rule: In your own factual narrative and submissions, do not use real names of parties. Use Plaintiff / First Defendant / Second Defendant (or the procedural titles relevant to your forum).

Conclusion

This judgment teaches a simple but powerful truth: courts decide workplace injury disputes by testing whether safety was real in practice, not merely promised on paper, and by demanding that those who control work and those who employ workers both take responsibility for preventing foreseeable harm.

Everyone needs to understand the law and see the world through the lens of law. The in-depth analysis of this authentic judgment is intended to help everyone gradually establish a new legal mindset: True self-protection stems from the early understanding and mastery of legal rules.

Disclaimer

This article is based on the study and analysis of the public judgment of the Supreme Court of New South Wales (Scott v Usinch Pty Ltd [2025] NSWSC 983), aimed at promoting legal research and public understanding. The citation of relevant judgment content is limited to the scope of fair dealing for the purposes of legal research, comment, and information sharing.

The analysis, structural arrangement, and expression of views contained in this article are the original content of the author, and the copyright belongs to the author and this platform. This article does not constitute legal advice, nor should it be regarded as legal advice for any specific situation.

---

Original Case File:

👉 Can’t see the full document?
Click here to download the original judgment document.