The driver worked for a labour hire firm - so why did the mine pay?
A $3.58 million judgment out of New South Wales delivers a hard lesson: if you control a labour hire worker, you may own the risk.
When a coal mine worker's arm was crushed underground at Appin Colliery in May 2021, the legal question that followed was almost as complicated as his injuries: who bears responsibility for the worker behind the wheel - the mine operator who ran the site every day, or the labour hire company with his name on the payroll?
On May 22, 2026, the NSW Supreme Court gave its answer. Illawarra Coal Holdings Pty Limited, the mine operator, is on the hook for $3,588,174.17 in damages. WorkPac Mining Pty Limited, the labour hire firm that employed the driver, walks away without liability. The reasoning behind that split is essential reading for any HR leader managing a contingent workforce.
The facts are stark. David Ward was a passenger in a specialised underground vehicle - a Driftrunner - being driven by WorkPac employee Adam Carroll. Carroll took the vehicle through a narrow underground passageway and drove too close to a stored piece of equipment called a salter. Ward's left elbow was caught between the door frame of the vehicle and the salter's metal flange. The injury was catastrophic: a shattered, degloved elbow, a 15-hour reconstructive surgery, permanent fusion of the elbow, severe nerve damage, PTSD and no realistic prospect of returning to work as a mechanical tradesperson.
The court found Carroll had been negligent - he misjudged the clearance, failed to stop and inspect the passageway as site rules required, and drove too close to the stored equipment. But negligence by the driver is only the beginning. The harder question was who answers for it.
Justice Cavanagh found that Illawarra Coal, as Ward's employer and the mine's operator, owed him a non-delegable duty of care. In plain terms: this is a duty you cannot hand off. Even if you hire a contractor to perform a task, you remain responsible for ensuring reasonable care is taken. If someone you have delegated that task to is negligent, you are liable - regardless of whether the negligence was yours.
The court went further. It applied the doctrine of pro hac vice employment - a legal concept meaning, roughly, "for this purpose." Where one employer transfers effective control of a worker to another party, the receiving party can become that worker's employer for legal purposes. Here, Illawarra Coal provided all of Carroll's site-specific training for driving the vehicles. It set the rules governing how SMVs were operated underground. It directed daily tasks. WorkPac's on-site presence was limited to administrative matters - rostering, payroll disputes, absenteeism. It had no right or practical ability to instruct Carroll on how to drive underground.
Because Illawarra Coal had assumed substantially complete control over the manner in which Carroll did his work, the court found it had become Carroll's employer pro hac vice at the time of the accident. Under Australian law, only one principal can carry vicarious liability for a single worker's conduct. Once the court reached that conclusion, WorkPac's liability fell away entirely - including on the cross-claim Illawarra Coal had brought against it seeking contribution.
What did Illawarra Coal actually get wrong, beyond Carroll's driving? Two things. The site's own rules required a driver to stop and inspect a passageway before driving through if equipment was stored in it. Carroll did not. Illawarra Coal also failed to specifically instruct Carroll not to drive the vehicle too close to stored equipment in confined spaces - a gap the court noted was relevant given the stringent duty owed by an employer operating a high-risk underground mine.
The defence argument that Ward had been contributorily negligent - that part of his elbow had been protruding from the vehicle's cabin - did not succeed. The court found the defendants could not show Ward had deliberately placed any part of his arm outside the cabin. The precise mechanics of how his elbow came to protrude slightly remained unclear. A barely protruding elbow, in a moving vehicle navigating a corner underground, with limited visibility and the vehicle tilting with the slope of the ground, was not enough to establish a failure to take care of his own safety.
Damages totalled $3,588,174.17. The court accepted Ward would have continued working in the mining industry until age 67 at around $2,500 net per week. It recognised some residual part-time earning capacity at $650 per week net for the future and reduced his future claim accordingly. The total included past and future loss of income, superannuation, medical expenses, care costs, and non-economic loss assessed at 65% of the most extreme case.
The message for HR directors is direct. If your organisation controls the day-to-day conduct of a labour hire worker - the training, the rules, the task allocation, the supervision - a court may find you are, in substance, that person's employer when something goes wrong. The employment contract tells you who signs the payslip. The court will look at who controlled how the work was done.
