Employer and Occupier Found Equally Liable for Workplace Injury

Smith v Visy Pulp and Paper Pty Ltd [2026] NSWSC 685

Key takeaways

The worker suffered physical and psychological injuries after hitting his head on a protruding metal pipe whilst working at a third-party Paper Mill.

The worker sued both his employer, D.M.E. Engineering Services (the employer), and Visy Pulp and Paper (Visy) who owned and operated the Paper Mill.

The employer and Visy were found equally negligent with a finding of contributory negligence at 20% as the worker could have conducted visual checks to ensure his own safety.

Brief facts 

On 6 August 2019, the worker sustained neck, arm and psychological injuries after striking his head on a protruding metal pipe while working at Visy Pulp and Paper’s Tumut paper mill.

The worker’s employer had a contract with Visy to provide mechanical and process piping maintenance to the Visy Pulp and Paper Mill in Tumut, New South Wales (the Paper Mill). 

On the date of the incident, the worker attended the Paper Mill to inspect repair work to a paper machine in an area of the Paper Mill known as the VP9 Area. His team were conducting repairs between a motor and a power box (the work location). There was only a single entry and exit point with no direct line of sight or passage between the entrance point and the work location. 

The worker previously attended the Paper Mill and the VP9 Area travelling alongside the northern wall, passing a blue motor on his left to complete inspection work. Using this path, the worker could see the metal pipe on his way out, and he did not have to be concerned about his footing. 

The worker took a new path and turned left past the blue motor (rather than taking his usual route, walking straight ahead parallel to the northern wall). On his return from the repair location, he walked along the length of the motor directly towards the northern wall and the metal pipe elbow. Since he was watching his footing, he was met with the protruding metal pipe in his path. 

As a result, the metal pipe struck the worker’s helmet, and his head and neck were forced suddenly backwards. 

Arguments raised

The worker claimed that his employer and Visy (as the occupier and operator of the Paper Mill) owed him a duty of care to protect him from foreseeable risks of injury or harm. 

The worker alleged that Visy breached their duty by failing to install the pipe at a high height, failing to conduct regular inspections, and a failure to ensure a clear walkway. 

With respect to his employer’s liability, the worker alleges his employer was negligent for its failure to provide a safe system of work, failure to take precautions for his safety and a failure to install the pipe at a higher height along the walkway.

The defendants both contended that there was no breach of duty as the metal pipe was easily avoided, raising a defence of contributory negligence. Visy brought a cross-claim against the employer including a contractual indemnity claim. 

The employer disputed that it was liable duty or in the alternative that the primary liability rested with Visy as the plant was under ‘direct and exclusive control’ of Visy.

The employer also filed a cross-claim against Visy, including a claim under s 151Z of the Workers Compensation Act 1987.

The worker submitted (which was accepted by the Court) that the employer’s OHS officer, Ms CD, who was present that day knew of the hazard because a number of people had previously identified it as a hazard. Ms CD was not called as a witness and as such the Court inferred that her evidence was not have helped either defendants’ case.

Decision of Supreme Court

Justice McNaughton of the Supreme Court held that the employer was negligent for the following reasons:

• The installation of the metal pipe was undertaken by the employer (under the direction of Visy) and the position of the metal pipe did not comply with regulations.
• The employer should not have installed the metal pipe in its hazardous location knowing that workers used that walkway to access the work area.
• The employer should have had a proactive (rather than a reactive) approach to hazards in the workplace to prevent hazard to workers using the walkway to access that area.
• The employer should have arranged for the metal pipe to be relocated to a height of at least 2,000mm in accordance with the regulations and such measures were not expensive or complicated to undertake.

In addition, his Honour also held Visy negligent due to:

• Visy, as the owner and occupier, had the overall coordination of all activities and control of the configuration of all machines and equipment. 
• The employer’s personnel (including the worker) were subject to Visy’s overall direction, supervision and control regarding work done. This was also confirmed in the contract between Visy and the employer which stated that the employer’s maintenance team was to follow Visy’s workflow processes and procedures for maintenance and to complete works required in coordination with Visy.
• The replacement of the plastic pipe with the metal pipe was fully undertaken by the employer but was subject to an initial vetting and allocation process conducted by Visy.
• There were relevant and foreseeable risks of harm and the risk of hitting one’s head was ‘not insignificant’.
  Visy should have adopted various precautions including raising the pipe to an appropriate height which was a ‘simple and uncomplicated’ task and implementing warning markers to alerted workers to the height and location of the pipe.
• The Court ultimately found both defendants equally liable in the circumstances. On the question of contributory negligence, Justice McNaughton held that the worker could have performed a quick visual check and identify his surroundings to ensure his own safety. His Honour, therefore, concluded with a finding of contributory negligence at 20%.

Implications

This decision is a reminder that an employer’s duty of care to its workers is non-delegable, even where work is performed on third-party premises under the significant direction and supervision of the occupier. 

Where an employer has ongoing site access and shared responsibility for safety, its obligation to take reasonable precautions runs in parallel with, not in substitution, of the occupier’s own duty.