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Case summary: Bartlett v De Martin & Gasparini Pty Ltd [2024] NSWSC 1172

28th Nov 2024

Bartlett v De Martin & Gasparini Pty Ltd [2024] NSWSC 1172

Elkaim AJ, decision delivered 17 September 2024

Facts

The plaintiff’s employer was a labour hire company which had contracted its services to the first defendant.

The plaintiff was a concreter and was directed by the first defendant to move a 50 kg, 10-meter-long empty concreting hose to another location on the job site with another worker. Without warning, and before the plaintiff was ready, the other worker picked up the hose and started walking quickly. This unexpected action caused the plaintiff to be jolted forward, resulting in immediate pain in his lower back.

The other worker was not identified either as a labour hire worker or direct employee of the first defendant.

The plaintiff alleged:

1. that the injury had been caused by the casual negligence of the other worker, who failed to coordinate the lifting process and was under the control of the first defendant; and
2. that the labour hire company had owed a non-delegable duty of care.

Decision

Judgement for the plaintiff with a 90/10 split of responsibility as between the defendants (in favour of the second defendant). Defendants are to pay the plaintiff’s costs of the proceedings.

Ratio

The Court concluded that the distinction on whether the other worker was identified as either a labour hire worker or direct employee of the first defendant, was not pertinent to the case in circumstances where the first defendant exercised control over him.

The Court accepted the plaintiff’s evidence; that the plaintiff and the other worker were moving the pipe under the direction of the first defendant and was satisfied that the plaintiff and unidentified worker were working under the supervision and direction of the first defendant.

The Court found that the weight of the pipe required at least two people to lift and once two people are involved, there is a need for coordination. The failure of the other worker to coordinate the lift and carry of the pipe, constituted negligence, and as a result, the first defendant was vicariously liable either as the actual or deemed employer of the unidentified worker (at [41]–[42]).

In relation to causation, the Court held that once it is accepted that the plaintiff hurt his back as a result of the other worker’s failing to coordinate the movement of the pipe, causation naturally flows (at [48]).

In relation liability of the second defendant, the defendants had agreed that if a verdict was found against the first defendant, then there would be a 90/10 split of responsibility between the defendants.

As the incident occurred very quickly and the plaintiff was not to know of the other worker’s actions nor have an opportunity to intervene to prevent the other worker’s actions, the Court held that there was no basis to find contributory negligence on the part of the plaintiff.

The ALA thanks Nickelle Morris for this contribution.

This is an edited version of an article first published by Travis Schultz & Partners.

Accredited Specialist Nickelle Morris joined Travis Schultz & Partners in August 2024 as an inaugural member of the Gold Coast team. With over two decades of plaintiff experience, her expertise lies in personal injury claims involving traumatic brain injuries and catastrophic injuries including spinal cord damage and amputations, covering all areas of compensation law, including workers’ compensation, public liability, and Compulsory Third Party claims.

 

The views and opinions expressed in this article are the author’s and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).

Tags: Vicarious liability workplace injury Construction Nickelle Morris Travis Schultz & Partners