Introduction
On 24 March 2025 the NSW Supreme Court of Appeal delivered its judgment in the matter of De Martin & Gasparini Pty Ltd v Bartlett [2025] NSWCA 56. The proceedings involved a negligence claim brought by a concreter and linesman, for injuries suffered to his back while lifting a concrete hose.
Background
Mr Bartlett was employed by Civic Contractors Pty Ltd (Civil), a labour hire company. His services had been supplied to De Martin & Gasparini Pty Ltd (DMG).
On 15 March 2023 Mr Bartlett and another worker were instructed by a representative of DMG to move a concrete hose weighing 45kg to 50kg. Mr Bartlett alleged that the other worker picked up the hose and started walking before he was ready. He alleged that he was jerked forward before he had a proper grip of the hose and had stood up properly, as a result of which he sustained an injury to his back.
DMG had approximately twelve workers on the site. Eight were employed by it and four by a labour hire contractor. Mr Bartlett was not able to identify the other worker involved in the incident, including whether he was employed by DMG or Civic.
Mr Bartlett commenced proceedings against DMG alleging that it was negligent, inter alia, for failing to provide a safe system or work, failing to warn, failing to provide training and supervision, failing to provide sufficient workers and failing to carry out a risk assessment. He also commenced proceedings against the Workers Compensation Nominal Insurer (WCNI) in place of Civic, which had been deregistered.
Primary Decision: NSW Supreme Court
Elkaim J found that the other worker involved in lifting the concrete hose had committed a causal act of negligence. He did not determine whether the other worker was an employee or labour hire worker. He assumed that the other worker was working under the supervision and direction of DMG "as if" he was employed by DMG.
His Honour made no deduction for contributory negligence. He went on to assess damages $2,500,000 against DMG and $1,600,000 against the WCNI.
Elkaim J apportioned liability 90% to DMG and 10% to the WCNI.
Appeal Decision: NSW Supreme Court of Appeal
DMG appealed the decision of the primary judge in relation to negligence, contributory negligence and the damages.
Negligence
Leeming JA, who delivered the leading judgment, was critical of the failure of the primary judge to identify the risk of harm or the precautions the other worker should have taken with sufficient specificity. He stated that the risk must be identified in a way which is sufficiently precise to capture the harm resulting from the materialisation of facts which occurred.
Leeming JA identified the relevant risk of harm as being that one of the two men involved in moving the heavy, awkward pipe on an irregular surface might act without regard to the readiness of both, thereby causing physical injury. He determined that the risk of harm was "self-evidently foreseeable and not insignificant".
Leeming JA was critical of the general nature of the precautions pleaded by Mr Bartlett. His Honour found that a reasonable person would have communicated, either by works or conduct, when they were both ready to proceed, and would not move until both had lifted the pipe.
Despite the different approach taken by Leeming JA, ultimately, his Honour was satisfied that the elements of negligence were made out.
Vicarious liability
Leeming JA was critical of the primary judge's failure to determine whether the other worker was a legal employee or worker supplied by Civic. He was critical of the approach taken that the other worker was working under the supervision and direction of DMG "as if" he was DMG's employee.
Leeming JA said two propositions arise in relation to vicarious liability, the first that that only one person can be vicariously liable for the tortious conduct of another and the second that the distinction between an employee and independent contractor is basic.
His Honour said there is a vital difference, for the purposes of attributing liability between the men on the site who were DMG's employees and the men on site who were Civic's employees.
His Honour cited several authorities in relation to the principles of vicarious liability, including Kondis v State Transport Authority (1984) 154 CLR in which Brennan J stated that: "A defendant is not vicariously liable for a tortious act done by a workman who is not his servant if the defendant has no authority to control the doing of the act and does not directly authorize it".
Leeming JA went on to consider whether there had been a transfer of control from Civic to DMG. He noted that the relevant factors include the contract of employment of the worker, the labour supply contract, and evidence as to how the work is undertaken and controlled by the third party. His Honour noted that neither the employment contract nor the labour supply contract was in evidence, leaving the question of how the work was undertaken and controlled.
Leeming JA found that there was no requisite transfer of control in respect of a familiar task of moving a concrete pipe around a building task, a task Mr Bartlett had performed thousands of times in his career.
On the question of whether the other worker was an employee of DMG or labour hire worker, Leeming JA determined that the other man was an employee of DMG. In reaching this conclusion, he noted that there were eight employees of DMG and only four from Civic. He also noted Mr Bartlett's evidence that Civic would only occasionally move the piping. Referring to Shoalhaven City Council v Pender [2013] NSWCA 210, Leeming JA found that "where there is no direct evidence, the tribunal of fact is entitled to draw inferences from even slim circumstantial facts that exist so long as that goes beyond speculation".
Leeming JA determined that DMG was vicariously liable for the tortious conduct of the other man involved in the incident, as he was determined to be a DMG employee.
Contributory negligence
Leeming JA determined that the primary judge had erred in finding there was no contributory negligence on the part of Mr Bartlett. He found that as an active participant in the task, Mr Bartlett was in a position to confirm with the co-worker that neither would move until both were ready and consequently, failed to take reasonable care to protect himself. He assessed contributory negligence at one-third.
Damages
Leeming JA reduced the amount awarded for future economic loss to take into account Mr Bartlett's pre-existing back injury. He found the future economic loss for the years when Mr Bartlett was 49 to 57 should be assessed at 40% of average weekly earnings, not 60% as the primary judge had done.
Leeming JA also reduced the amount awarded for future domestic assistance. He found that the primary judge erred in calculating the cost of future domestic assistance at $73.62 per hour. He found that $45 per hour was appropriate.
Why this case is important
This decision is important as it confirms the need to clearly identify the risk of harm in negligence cases. It also reminds practitioners to avoid pleading generalised particulars of negligence and where possible, to plead more specific particulars arising from the facts of the case.
The decision is also a valuable reminder that contributory negligence remains an important issue in negligence cases. The Court must consider whether the actions of the injured plaintiff caused or contributed to the incident and if so, to what extent.
Lastly, and perhaps most significantly in this decision, are the Court's findings in respect to vicarious liability. The Court has confirmed the importance of clearly identifying the role of workers for the purposes of attributing liability in negligence. It is not sufficient that a worker is simply under the supervision and direction of a party "as if" they were employed. The nature of the relationship must be determined. This involves consideration of the who had control over the task being performed.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
