The decision means employers with a lesser share of common law liability will pay a greater proportion of a Plaintiff’s loss through unrecoverable WC payments. It will have a particular impact in labour-hire cases where an employer (labour hire company) is often hit with a 10 - 20% share of liability for breaching its non-delegable duty to ‘ensure care is taken’ by 3rd parties. We note however that the Courts are willing to absolve employers of any liability where an employee is injured ‘offsite’ under circumstances where the employer’s intervention would not have prevented the injury. Hence, a case-by-case approach should be adopted.
Although Southwest Helicopters is manifestly unfair to employers, it will not always take effect, and if it does, contribution for future loss can still be sought under s.5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946.
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