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

Supreme Court

New South Wales

Medium Neutral Citation: Bartlett v De Martin & Gasparini Pty Ltd [2024] NSWSC 1172
Hearing dates: 2 – 4 September 2024
Date of orders: 17 September 2024
Decision date: 17 September 2024
Jurisdiction: Common Law
Before: Elkaim AJ
Decision:
1. Verdict for the plaintiff against the first defendant in the sum of $2,597,187.18.
2. Verdict for the plaintiff against the second defendant in the sum of $1,645,876.00.
3. The defendants are to pay the plaintiff’s costs of the proceedings.
4. On the cross claim by the first defendant against the second defendant, pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 the cross defendant is to contribute 10% of the amount the cross claimant is liable to the plaintiff.
5. On the cross claim by the second defendant against the first defendant, pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 the cross defendant is to contribute 90% of the amount the cross claimant is liable to the plaintiff.
6. No order as to costs on the cross claims.
7. The parties have liberty to restore the matter in respect of any alternative costs order which they might seek and in relation to the variation of the orders concerning the cross claims.

Catchwords:
NEGLIGENCE — personal injury — vicarious liability — where a worker on a job site injured his back when performing a lift with another worker — whether the other workers act constituted a casual act of negligence which the first defendant was vicariously liable for — where both workers were performing the lift under the direction of the first defendant — held the other workers failure to coordinate the lift constituted a casual act of negligence — held the first defendant is vicariously liable for the casual act of negligence of the other worker as he was performing a lift under the first defendants direction
NEGLIGENCE — damages — personal injury damages — whether a pre-existing pathology would have affected the plaintiffs earning capacity — where experts agreed that the pre-existing pathology would have affected his function after 12 years — held the pre-existing pathology reduces the plaintiffs future economic loss calculation after 12 years — damages awarded for non-economic loss, past and future economic loss, past and future medical expenses, past and future domestic assistance, Fox v Wood damages, loss superannuation benefits

Legislation Cited:
Civil Liability Act 2002 (NSW), ss 5B, 5D, 5E, 13, 15
Law Reform (Miscellaneous Provisions) Act 1946, s 5
Workers Compensation Act 1987 (NSW)

Cases Cited:
Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 550; [1994] HCA 13
Coles Supermarkets Australia Pty Limited v Haleluka [2012] NSWCA 343
Dederer (2007) 234 CLR 330; [2007] HCA 42
Fox v Wood (1981) 148 CLR 438; [1981] HCA 42
Kondis v State Transport Authority (1984) 154 CLR 672; [1984] HCA 61
McLean v Tedman (1984) 155 CLR 306; [1984] HCA 60
Perisher Blue Pty…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NSWSC 1172
Decision Date: 17 September 2024

CaseChat Overview and Summary

In the case of Bartlett v De Martin & Gasparini Pty Ltd, the plaintiff, Bartlett, sought damages for personal injury sustained during a workplace accident. Bartlett, a worker at a construction site, injured his back while performing a lift with two other workers, who were employed by the first defendant, De Martin & Gasparini Pty Ltd. The plaintiff argued that the other workers' failure to coordinate the lift constituted a casual act of negligence, for which the first defendant was vicariously liable. The court had to determine whether the first defendant could be held liable for the actions of the other workers and, if so, the extent of the plaintiff's damages.

The primary legal issues the court had to address were whether the other workers' failure to coordinate the lift constituted a casual act of negligence and, if so, whether the first defendant could be held vicariously liable for that act. Additionally, the court had to assess the impact of the plaintiff's pre-existing pathology on his earning capacity and future economic loss. The court also needed to determine the appropriate amount of damages to be awarded, including non-economic loss, past and future economic loss, past and future medical expenses, past and future domestic assistance, Fox v Wood damages, and loss of superannuation benefits.

The court found that the other workers' failure to coordinate the lift constituted a casual act of negligence and that the first defendant was vicariously liable for the actions of the other workers. The court reasoned that the other workers were performing the lift under the direction of the first defendant, making the first defendant liable for their actions. Regarding the plaintiff's damages, the court held that the pre-existing pathology would affect his function after 12 years, thereby reducing the future economic loss calculation after that period. The court awarded damages for non-economic loss, past and future economic loss, past and future medical expenses, past and future domestic assistance, Fox v Wood damages, and loss of superannuation benefits.

Orders