De Martin & Gasparini Pty Ltd v Bartlett

[2025] NSWCA 56

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

De Martin & Gasparini Pty Ltd v Bartlett [2025] NSWCA 56

Hearing dates:

24 March 2025

Decision date:

02 April 2025

Before:

Leeming JA at [1];
McHugh JA at [73];
Price AJA at [74]

Decision:

1. Appeal allowed.

2. Set aside orders 1 and 2 made on 17 September 2024, as amended on 11 October 2024.

3. Direct the parties to file and serve agreed short minutes of order within 21 days of today, or alternatively (a) the orders for which each contends, and short reasons not exceeding 4 pages in support, no later than 21 days from today, (b) submissions in response not exceeding 3 pages no later than 7 days thereafter, with such submissions in chief and in response including submissions as to the costs to the extent they are not agreed.

Catchwords:

NEGLIGENCE — personal injury — worker injured on building site when lifting a concrete hose with another worker — identification of risk of harm — whether findings of fact permitted elements of negligence of other worker to be established — identity of other worker undisclosed — uncertainty whether other worker was employee or supplied under labour hire agreement — whether employer vicariously liable for negligence of other worker — whether sufficient that other worker performed tasks “as if” an employee - whether transfer of control — whether evidence permitted finding that other worker was employee — assessment of contributory negligence

NEGLIGENCE — damages — personal injury damages — assessment of future economic loss —plaintiff suffered from degenerative spine condition prior to incident — assessment of future domestic assistance — appropriate hourly rate

Legislation Cited:

A New Tax System (Goods and Services Tax) Act 1999 (Cth), s 23-15(1)(b)

A New Tax System (Goods and Services Tax) Regulations 2019 (Cth), reg 23.15.01

Civil Liability Act 2002 (NSW), s 5B

Workers Compensation Act 1987 (NSW), s 151A

Cases Cited:

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

Erickson v Bagley [2015] VSCA 220

Kelly v Bluestone Global Ltd (in liq) [2016] WASCA 90

Kondis v State Transport Authority (1984) 154 CLR 672; [1984] HCA 61

McDonald v The Commonwealth (1945) 46 SR (NSW) 129

Menz v Wagga Wagga Show Society Inc (2020) 103 NSWLR 103; [2020] NSWCA 65

Mt Owen Pty Ltd v Parkes [2023] NSWCA 77; 324 IR 34

Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1; [2015] NSWCA 90

QBE v Orcher; Bowcliff v Orcher [2013] NSWCA 478

Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42

Shoalhaven City Council v Pender [2013] NSWCA 210

Southern Colour (Vic) Pty Ltd v Parr [2017] VSCA 301

Van Gervan v Fenton (1992) 175 CLR 327; [1992] HCA 54

Zuijs v Wirth Bros Pty Ltd (1995) 93 CLR 561; [1995] HCA 73

Category:

Principal judgment

Parties:

De Martin & Gasparini Pty Ltd (Appellant)
Dustin Bartlett (First Respondent)
Workers Compensation Nominal Insurer (Second Respondent)

Representation:

Counsel:
J Sexton SC and C O’Neill (Appellant)
L King SC and T F McKenzie (First Respondent)
I Todd (Second Respondent)

Solicitors:
Makinson d’Apice Lawyers (Appellant)
Taylor & Scott Lawyers (First Respondent)
Turks Legal (Second Respondent)

File Number(s):

2024/381805

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

[2024] NSWSC 1172

Date of Decision:

17 September 2024

Before:

Elkaim AJ

File Number(s):

2021/309495

HEADNOTE

[This headnote is not to be read as part of the judgment]

Mr Bartlett was a concreter and linesman whose services had been supplied to De Martin & Gasparini Pty Ltd (“DMG”) by a labour hire company. On 26 April 2018, Mr Bartlett and another unidentified worker were instructed to move a concrete hose weighing between 45 and 50kg from one area of the building site to another. Mr Bartlett gave evidence that the other worker picked up the hose and began walking before he was ready, and that he was “jerked forward” and made to walk before he had a proper hold of the hose or had stood up properly. Mr Bartlett suffered a back injury as a result. There was no evidence as to the identity of the other worker, but on the site that day were 8 employees of DMG, 4 supplied by another labour hire company, Civic Contractors Pty Ltd, Mr Bartlett and his supervisor.

Mr Bartlett brought proceedings against DMG, and the Workers Compensation Nominal Insurer as second defendant, in place of his legal employer which had been deregistered. The primary judge found that the other worker had committed a casual act of negligence by failing to coordinate the lifting of the concrete hose, that DMG as the actual or deemed employer of that worker was vicariously liable for that act, and that there was no contributory negligence on the part of Mr Bartlett. The primary judge entered judgment in an amount exceeding $2,500,000 against DMG, and judgment in an amount exceeding $1,600,000 against the Workers Compensation Nominal Insurer, with liability apportioned at 90% for DMG and 10% for the Insurer. DMG appealed, challenging the findings in relation to negligence, contributory negligence, and the calculation of damages.

The Court held, allowing the appeal in part:

Per Leeming JA (McHugh JA and Price AJA agreeing):

1. The elements of negligence were made out, and the primary judge was correct to conclude that s 5B of the Civil Liability Act 2002 (NSW) was satisfied. There was a self-evidently foreseeable and not insignificant risk that one of the two men involved in moving the hose might act without regard to the readiness of both, causing physical injury. The precautions which a reasonable person would take were to communicate, by words or conduct, when both were ready to proceed, and not to move laterally until both had lifted the hose: at [30]-[31].

2. There was a vital difference, for the purposes of attributing liability in negligence to DMG, between the men on the site who were DMG’s employees and those who were supplied by Civic. A host employer would be vicariously liable for the tortious conduct of a worker supplied under a labour hire agreement only if there was a requisite transfer of control, and there was no requisite transfer of control in respect of the familiar task of moving a concrete hose around a building site. A person is not without more vicariously liable for the tortious act of an independent contractor who performs a casual act of negligence when carrying out a function well within his or her expertise and as to which there has been no direction in relation to the manner of its performance. The primary judge’s reasoning to the effect that it was sufficient that the Civic employees were treated “as if” they were DMG employees is insufficient to establish DMG’s vicarious liability for a casual act of negligence when performing a familiar task. However, the probable inference from the evidence was that the other worker was a DMG employee, for whose tortious conduct DMG was vicariously liable: at [32]-[47].

Mt Owen Pty Ltd v Parkes [2023] NSWCA 77; 324 IR 34; Kondis v State Transport Authority (1984) 154 CLR 672 at 692; [1984] HCA 61, applied.

3. The primary judge’s reasoning as to contributory negligence disclosed error. Mr Bartlett was involved in the task and was in a position to have confirmed with the other man that neither would move until both were ready. Further, implicit in the failure of coordination is a failure on the part of both men in the joint task of achieving a coordinated lift and lateral movement of the hose. Contributory negligence was one third: at [26], [29], [48]-[53].

4. Future economic loss for the years when Mr Bartlett was aged 49-67 should be 40% of average weekly earnings, rather than 60% as the primary judge had found. During this time, Mr Bartlett would not have been able to work as a concreter in any event due to his pre-existing lumbar spine condition: at [55]-[62].

5. The primary judge erred in calculating the cost of future domestic assistance using a rate of $73.62 per hour. This rate unnecessarily included an element for weekend work and was an average of four commercial providers, whereas DMG had identified local suppliers which offered services at lower rates. The rate should have been $45 per hour: at [63]-[68].

JUDGMENT

1. LEEMING JA: De Martin & Gasparini Pty Ltd (“DMG”) appeals from a judgment in an amount exceeding $2,500,000 entered against it in favour of Mr Dustin Bartlett, who was injured at a building site in the Sydney CBD on 26 April 2018: Bartlett v De Martin & Gasparini Pty Ltd [2024] NSWSC 1172.

2. Mr Bartlett’s services as a concreter and linesman had been supplied by a labour hire company, and his legal employer was also originally sued. However, that company had been deregistered and the Workers Compensation Nominal Insurer was joined as the second defendant. Mr Bartlett obtained a judgment in an amount exceeding $1,600,000 in his favour against it, with liability apportioned as between the two defendants at 90% for DMG and 10% for the Workers Compensation Nominal Insurer. There was no challenge to the apportionment. Bearing in mind the fact that the latter had made some $700,000 in workers compensation payments, which it was entitled to recover following an award of modified common law damages under Division 3 of Part 5 of the Workers Compensation Act 1987 (NSW): see s 151A of that Act, the interests of Mr Bartlett and the Workers Compensation Nominal Insurer in defending the appeal were for practical purposes wholly aligned.

3. According to DMG’s “Day Sheet” for 26 April 2018, on that day there were eight employees of DMG and four workers supplied by another labour hire company, Civic Contractors Pty Ltd, in addition to Mr Bartlett and the supervisor Mr Rossetto. All 13 men were recorded as having started at either 6.30am or 7am.

4. There was very little evidence explaining how the accident occurred. Mr Bartlett explained in his statement:

24. At about mid-morning on the date of the accident, a concrete pour was in the process of occurring and I had been instructed by a representative of De Martin & Gasparini to set up a concrete hose line to pump the concrete.

25. The concrete boom had already been set up and another worker and myself were directed to move the concrete hose from one area of the building site to another, closer to the concrete boom. I cannot recall the name of the other worker. To the best of my recollection, there was no discussion as to how the job was to be performed. I do not recall seeing any form of safety documents such as safe work method statements or risk assessments.

26. I believe the concrete hose was in or around ten metres in length and weighed in or around 60kg’s.

27. The other worker picked up the concrete hose and began walking at a fast pace before I was ready. I was jerked forward and made to walk before I had a proper hold of the hose and before I had stood up properly.

28, I immediately felt pain in my lower back. I was in tears and felt nauseous. I was also experiencing difficulties breathing.

29. I was taken to the first aid area on site for treatment.

5. The statement was tendered in chief, no further evidence was led, and his cross-examiner gave Mr Bartlett little opportunity to elaborate what had occurred some six years earlier. The cross-examination established that he had been working on the site for some two or three months, but not attending every day, and going to other sites for work in the same period. It was uncontroversial that Mr Bartlett had lifted this sort of hose, 10 metres long with a diameter of around 10 centimetres, also referred to in the evidence as a pipe, many thousands of times in the 19 years he had worked as a concreter and linesman. He gave this evidence:

Q. Let me suggest to you that you didn’t need a leading hand to watch everything you did on a construction site, to make sure you were doing it properly, did you?

A. No, sir.

Q. Now, you also didn’t need to be told every single morning before you started work, how to go about lifting a piece of pipe that you lifted thousands of times before, did you?

A. No, sir.

6. The evidence also established that there were days when he worked to spread concrete, rather than as a linesman delivering concrete, and likewise that the concreters from time to time helped lifting the pipes. He agreed that from time to time the Civic employees lifted the pipes, saying “Yes, occasionally. Yes.”

7. The primary judge found, and there was no dispute in this Court, that the rubber pipes used to direct the flow of concrete were 10 metres long, with an internal diameter of 3 inches, and, when empty, weighed between 45 and 50 kg.

8. The “other worker” has never been identified, and the primary judge proceeded on the basis (which, as will be seen, should not be accepted) that it did not matter whether he was a labour hire worker or direct employee.

9. Another contemporaneous document identifies a report made at 11am on 26 April 2018 with the description “lifted concrete rubber with a work mate, causing a strain on his lower back” and identified the severity as “[v]ery [s]mall”. The treatment supplied on site was “[i]ce pack applied”. It is possible that the perceived lack of seriousness of the injury in its immediate aftermath contributed to the fact that the identity of the “other worker” was not recorded.

10. Notes of a consultation with Mr Bartlett’s general practitioner later that day state:

lifting 40kg rubber this am- felt back go

no previous problems with his back

now in pain with sciatic sx going down L leg

nil numbness/weakness. bladder/bowels unaffected

nurofen not touching the pain

nil red flags

11. The doctor prescribed Naproxen and Panadeine Forte, and requested a CT scan of the lumbar spine, noting:

CT Scan – Lumbar spine. (sudden onset pain low back going down L leg into calf ?L5 disc prolapse)

12. Sadly, Mr Bartlett was found to have suffered from pre-existing degeneration of his lumbar spine. The radiology report dated 9 May 2018 stated:

L4/5 Level:

Degenerated disc manifesting as loss of height and T2 signal. Small posterior protrusion unlikely to be associated with neural compromise. Central canal capacious. Neuroforamina unobstructed.

L5/S1 Level:

Degenerated disc manifesting as loss of height and T2 signal. Small posterior protrusion unlikely to be associated with neural compromise. Central canal capacious. Neuroforamina unobstructed.

13. A report dated 6 September 2018 states that the initial injury “was successfully managed with conservative measures and he was settling when he awoke a month ago with severe recurrence of his pain”. It is not necessary to summarise the subsequent treatment, which included three surgical interventions. The pre-existing degenerative condition complicated the assessment of Mr Bartlett’s damages, leading to two grounds of appeal.

14. The reasons of the primary judge, promptly delivered after a three day trial, were relatively brief. It is convenient to address them at the same time as dealing with the various grounds of appeal.

The Finding of Negligence (grounds 1-5)

15. Grounds 1-5 of the notice of appeal challenged the findings of negligence.

The findings of breach of duty

16. Despite reproducing s 5B of the Civil Liability Act 2002 (NSW), the primary judge gave little attention to the identification of the risk of harm, or the reasonable precautions which a person in the position of the “other man” would have taken. To be fair, the approach of the primary judge reflected that taken by the drafter of the statement of claim, which likewise did not identify risk of harm and gave generic particulars of negligence most of which bore no relationship to the case which went to trial. The particulars of breach by DMG were said to be (a) a casual act of negligence, (b) a failure to provide a safe system of work, (c) a failure to warn the plaintiff of a risk of injury, (d) a failure to instruct the co-worker as to the correct manner of lifting and carrying a hose in a team lift situation, (e) failure to provide proper equipment, (f) failure to provide training, (g) failure to provide sufficient workers, (h) failure to carry out a risk assessment, and (i) a failure to set up the equipment with due regard to the risks involved. The omissions in (b)-(i) are readily understood as being omissions for which DMG was alleged to be vicariously liable, as is the casual act of negligence in (a). No further particularisation of that casual act of negligence appears to have been provided, but the trial proceeded on the basis that it was the conduct of the unknown worker at the other end of the pipe.

17. Mr Bartlett gave evidence that he had participated in moving the pipes thousands of times over the 20 years he had been a concreter and linesman. Particular (b) was expressly abandoned, while particulars (c)-(i) had no real application to the mundane task of two men moving a pipe from one part of the building site to another. The two men involved had performed the same task twice that morning before the incident occurred. It is to be borne in mind that the pipe was awkward, and the surface on which the men were walking was reinforcing mesh and required care.

18. The primary judge found that the other worker had committed a casual act of negligence. This was within the particularised case, in a sense, but without any identification of the relevant risk of harm, or the precaution that should have been taken, or indeed what the actual conduct was.

19. Conspicuous by its absence was any evidence of the usual practice of Mr Bartlett and others on the site when moving a pipe. For example, was there an accepted custom as to which of the two men would direct the other (perhaps, the man at the back of the pipe, who did not have to turn around in order to see whether the other man was ready, was in control) or was there a system to confirm that both had a secure grip after lifting the pipe vertically before any lateral motion across the building site commenced? There were after all a number of risks present. Either man could misstep on the irregular surface of reinforcing mesh. If one man dropped his end of the pipe without warning, that could cause the other man to lose balance and fall. If one man started moving laterally before the other was ready, that too could cause injury.

20. Concerning the risk of harm, his Honour said at [40], referring to what had been said in Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1; [2015] NSWCA 90 at [98], that:

The “set of circumstances” in the present case is evident from the risk of harm occurring on a building site where workers are working above ground, on a wire mesh and being required to carry materials from place to place. I do not see any lack of clarity or need for elucidation.

21. That falls short of identifying the risk in a way which is sufficiently precise to capture the harm resulting from the materialisation of the facts which occurred in the present case. Indeed, it is so general that it would apply to any injury on any building site involving a wire mesh surface. It ignores the important facts that the pipes were so long and so heavy that moving them was a job for two or more men, and therefore required co-ordination.

22. Guidance on the formulation of risk may be found in Menz v Wagga Wagga Show Society Inc (2020) 103 NSWLR 103; [2020] NSWCA 65 at [52], where it was noted that:

1. the formulation of risk of harm should identify the “true source of potential injury” (Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 at [60]) and the “general causal mechanism of the injury sustained” (Perisher Blue Pty Ltd v Nair-Smith at [98]);

2. “the risk must be defined taking into account the particular harm that materialised, and the circumstances in which that harm occurred”: Erickson v Bagley [2015] VSCA 220 at [33]; Southern Colour (Vic) Pty Ltd v Parr [2017] VSCA 301 at [55];

3. “What is to be avoided is an unduly narrow formulation of risk of harm which then distorts the reasoning, because, for example, it obscures the true source of potential injury (as noted in Dederer at [60]) or because it too narrowly focusses on the particular hazard which caused the injury (as noted in Port Macquarie Hastings Council v Mooney ... at [67]), or because it fails to capture part of the plaintiff’s case (as in Garzo).”

23. In relation to the reasonable precautions which the other worker should have taken, his Honour said at [41]-[42]:

It is correct to say that carrying a 50 kg weight between two men was an exercise well within their capacity. There is nothing particularly significant about the dimensions of the pipe to make it an especially difficult object to carry. But at the same time, around 50 kg is too much for one person. It requires at least two people. Once two people are involved there is a need for coordination between them. When they are directed to move the pipe, it is implicit that they are being directed to do so in a coordinated fashion. This did not occur. The unidentified worker ignored the demands of coordination and did so under the express authority of the first defendant. I do not mean that he had been instructed to ignore coordination, but rather that he was acting pursuant to the direction of the first defendant to move the pipe.

The unidentified worker’s failure to co-ordinate the ‘lift and carry’ is in my view the casual act of negligence. The first defendant, either as the actual employer or the deemed employer of the unidentified worker, is vicariously liable for his actions.

24. The primary judge addressed contributory negligence at [51]-[52]:

I can see no basis upon which to find contributory negligence on the part of the plaintiff. The incident would have occurred very quickly. The plaintiff was not to know that the other worker would set off rapidly and without checking on the plaintiff’s readiness. There was no opportunity for the plaintiff to intervene in order to prevent the actions of the other worker.

Further there is no evidence to suggest that the plaintiff had any more senior position than that of the other worker. He was not controlling him, directing him, or giving him instructions of any sort. The directions had come from the first defendant. The plaintiff had no involvement in the decision, or the carrying out of the decision, to move the pipe.

25. The appellant did not strenuously dissent from the proposition that those paragraphs were the clearest identification in the reasons of the primary judge of the conduct which was found to have constituted a breach by the other worker of an obligation to use reasonable care. I shall proceed on the same basis.

26. Parts of the reasoning in the paragraphs on contributory negligence cannot stand. Contrary to the concluding sentence of [52], the plaintiff was involved in the carrying out of the decision to move the pipe. That movement was required to be coordinated, and both men had to take steps to confirm that each was ready to move laterally before that occurred. Contrary to the thrust of [51], the plaintiff was in a position to have confirmed with the other man that neither would move until both were ready.

27. More generally, beyond the words “without checking on the plaintiff’s readiness” at [51], none of the paragraphs identify with any precision the words or conduct which the other man should have said or done by way of reasonable precaution within the meaning of s 5B(1)(c). “[I]gnor[ing] the demands of coordination” is a conclusion, rather than a finding of what occurred or failed to occur.

28. The high point of appellant’s case were the submissions that a claim based on the system of work was abandoned at trial, and that there was insufficient evidence of the events of 26 April 2018 in order for findings in accordance with s 5B to be made. That included an absence of any evidence as to which of the two men was in control, or if no one were in control, what the mechanism to coordinate the lift and lateral movement was. There was no evidence whether the direction or coordination was oral or by conduct or both. Further, it was said that given the pre-existing lumbar spine condition, it was not established that the other worker had done anything sufficient to constitute negligence.

29. A coordination failure, in the facts of this case, involved a departure from reasonable precautions by both men. It seems clear enough on the evidence that lateral motion of the pipe commenced prior to Mr Bartlett signalling that he was ready to move. Although the primary judge focussed upon the unexpected lateral movement by the unidentified worker, it is difficult to reconcile his Honour’s focus upon the failure of coordination with the absence of contributory negligence. The risk that the other man might move before Mr Bartlett was ready was eminently foreseeable and was precisely why coordination was required.

30. Although there is force in DMG’s submission that this is a case where the factual findings are so exiguous that a conclusion of negligence is problematic, I have concluded that the primary judge was correct to conclude that s 5B was satisfied. The relevant risk of harm was that one of the two men involved in moving a heavy, awkward pipe on an irregular surface might act without regard to the readiness of both, thereby causing physical injury. That risk was self-evidently foreseeable and not insignificant. The precautions which a reasonable person would take were to communicate, either by words or conduct, when both were ready to proceed, and not to move laterally until both had completed the lifting of the pipe. If not, then there was a non-negligible risk of uncoordinated movement, which could lead to one or both men falling and sustaining injury. The burden of those precautions is negligible, and the social utility of the construction industry is self-evident.

31. The other man moved the pipe laterally before Mr Bartlett had secured a proper grip and before he was standing upright, and without the pair coordinating their movements. Doing so caused Mr Bartlett to sustain injury. The existence of a duty was not disputed. The elements of negligence were made out.

The findings of vicarious liability

32. As noted above, the primary judge did not determine whether the other worker was a legal employee or a worker supplied by Civic. His Honour took that approach on the basis that the other worker was working under the supervision and direction of DMG and “as if” he was DMG’s employee: at [17] and [37].

33. Two propositions are to be steadily borne in mind when addressing the reasoning on vicarious liability. In this country, and putting to one side statute, (a) only a single person can be vicariously liable for the tortious conduct of another, and (b) the distinction between an employee and an independent contractor is basic: see Mt Owen Pty Ltd v Parkes [2023] NSWCA 77; 324 IR 34 at [32] and [46] and the authorities there cited.

34. Accordingly, there was a vital difference, for the purposes of attributing liability in negligence to DMG, between the men on the site who were DMG’s employees, and the men on the site who were Civic’s employees who had been supplied by Civic to the site. Hence the significance of whether there had been a transfer of employment for the purposes of the law of vicarious liability considered in Mt Owen Pty Ltd v Parkes at [40]-[49]. After an analysis of that topic, Basten AJA with whom Brereton and Kirk JJA relevantly agreed, concluded that the relevant test remained as stated by Brennan J in Kondis v State Transport Authority (1984) 154 CLR 672 at 692; [1984] HCA 61:

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. It makes no difference that the tortious act is done in performing work for the defendant’s benefit. Prima facie, the workman’s employer is vicariously liable for the tortious act, but if he is able to transfer and transfers authority to control the doing of the act to the defendant, the defendant is liable. It has been said that the nature and extent of the control transferred to the defendant or retained by the employer determines whether there is a shift of liability from the employer to the defendant ….

35. Basten AJA said that in order for there to be the requisite transfer of control sufficient for a host employer to be vicariously liable for the tortious conduct of a worker supplied under a labour hire agreement, the following general propositions applied (at [49]):

Nevertheless, the transfer of control will not usually be sufficient to shift vicarious liability to the host for whom the work is done unless that party is also in control of the manner in which the work is undertaken. The relevant factors are frequently found in the following considerations:

(a) the contract of employment of the worker;

(b) the contract pursuant to which the services of the worker are transferred to a third party, and

(c) evidence as to how the work is undertaken and controlled by the third party.

36. In the facts giving rise to the present appeal, neither the contract of employment nor the labour supply contract was in evidence. Accordingly, Mr Bartlett placed attention on the third factor, namely how the work was undertaken and controlled by DMG. Mr Bartlett submitted that the reference to “control” invoked what the High Court had said in Zuijs v Wirth Bros Pty Ltd (1995) 93 CLR 561 at 571; [1995] HCA 73, but that was in connection with a different issue: whether a trapeze artist was an employee or an independent contractor. When the factor in [49(c)] is read in context, the control is a reference to the first sentence of the paragraph which speaks to the host employer controlling “the manner in which the work is undertaken”. That reflects a well established proposition in this area of the law. Jordan CJ said in McDonald v The Commonwealth (1945) 46 SR (NSW) 129 at 132:

If by the agreement the employer vests in the third party complete, or substantially complete, control of the employee, so that he is entitled not only to direct the employee what he is to do but how he is to do it, and the employee was performing services stipulated for, or authorised by, the third party at the time, the third party is liable: ... If the control vested in the third party is only partial, so that, although the third party is entitled to give directions to the employee as to what he is to do, he is not entitled to direct him how he is to do it, the employer remains liable.

37. That passage was applied by the Western Australian Court of Appeal in Kelly v Bluestone Global Ltd (in liq) [2016] WASCA 90 at [73] (Murphy JA) and [87] (Mitchell JA). Each member of the Court emphasised that the question turned on control. McLure P said at [58] that “[t]he focus is on who has the right to control the manner in which the act involving the negligence was done.” Mitchell JA said at [87] that “the principle is engaged where the employer vest in the third party complete, or substantially complete, control entitling it to direct the employee as to how he or she is to do the negligently performed work”. Murphy JA wrote to the same effect at [74]-[75].

38. The passage from Jordan CJ’s judgment in McDonald was also applied by this Court in QBE v Orcher; Bowcliff v Orcher [2013] NSWCA 478 at [154]. Tobias AJA, with whom McColl and Macfarlan JJA agreed, concluded that the requisite control was not vested in the host employer in relation to licensed security guards supplied by the labour hire company, saying at [156] that “the evidence does not come close to establishing [the requisite] level of control”, and that the host employer “could no doubt instruct Mr Paea as to where he was to patrol but did not and could not instruct him how to perform the job of a professional security guard. This was unnecessary as the DSSS guards were engaged by Bowcliff because of their expertise as trained and licensed security guards.”

39. Thus it is quite clear that the reference to “control” in [49] of Basten AJA’s reasons in Mt Owen Pty Ltd v Parkes is a reference to whether the so-called “host employer” had the power to control the manner in which the negligent act was undertaken.

40. I would accept DMG’s submission that there was no requisite transfer of control in respect of a familiar task of moving a concrete pipe around a building site, which Mr Bartlett said he had performed thousands of times throughout his career. There was no evidence that DMG had taken any step to control the manner in which the other worker, or Mr Bartlett, was to perform that task.

41. A person is not without more vicariously liable for the tortious act of an independent contractor who performs a casual act of negligence when carrying out a function which is well within his or her expertise and as to which there has been no direction in relation to the manner of its performance. The reasoning by the primary judge to the effect that it was sufficient that the Civic employees were treated “as if” they were DMG employees is insufficient to establish DMG’s vicarious liability for a casual act of negligence when performing a familiar task. I bear in mind that although no effort was made to prove the contract pursuant to which Civic provided labour to DMG, it is reasonable to infer as DMG submitted, without opposition from the respondents, that the people supplied would be reasonably skilled with the familiar operations involving concreting on a building site.

42. However, I would not accept DMG’s submission that it is “completely speculative” as to who the “other worker” was. This submission was to the effect that since the evidence established that all 13 people on the site were capable of and sometimes were involved in moving pipes, it could not be determined whether the man at the other end of the pipe on 26 April 2018 was an employee of DMG or of Civic, this being an issue where the plaintiff bore the onus. Merely as a matter of statistics, there is a good chance that it was one of the eight employees, as opposed to one of the four workers supplied by Civic. Further, the Day Sheet identifies the activities undertaken by each person. Mr Bartlett and three DMG employees are described as “P” (ie “pumping”), while all four Civic men, together with five other DMG employees, are described as “C” (ie “concreting”). The evidence was that there are separate roles for placing the pipes for a concrete pour, as opposed to smoothing the poured concrete.

43. A more probable inference from the activity codes on the Day Sheet is that the other man on the pipe was one of the three employees whose task that day was pumping, as opposed to the nine men (five employees, four supplied by Civic) whose task that day was concreting.

44. Further, Mr Bartlett’s evidence was that the Civic workers only “occasionally” moved the piping.

45. The identity of the man at the end of the pipe is in issue only because the law imposes a different test to attribute liability to DMG for any negligence of that man depending on whether he is a legal employee or a host employee. In order to apply that test, it is not necessary to identify the particular man (if that were necessary, it would be quite speculative). It is sufficient that the evidence permits a finding to be made as to which of those two classes he fell into. Particularly in a case 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: see for example Shoalhaven City Council v Pender [2013] NSWCA 210 at [76] and the cases there cited.

46. Although perhaps strictly this should have been the subject of a notice of contention, the topic was squarely raised in oral submissions. The submissions advanced by DMG on the significance of control in order for there to be a transfer of vicarious liability made this issue natural if not inevitable. I would find that the other man was an employee for whose tortious conduct DMG was vicariously liable.

47. On that basis, which departs from that of the primary judge, DMG is liable in negligence.

Contributory negligence (grounds 6-8)

48. The reasons of the primary judge occupied two paragraphs, and they have been reproduced above. They disclose error, both because Mr Bartlett was involved in the task (contrary to the last sentence of [52]) and because implicit in the failure of coordination is a failure on the part of both men in the joint task of achieving a coordinated lift and lateral movement of the pipe.

49. The facts as to what precisely occurred are exiguous. But that does not prevent this Court doing the best it can to identify the extent to which Mr Bartlett by failing to take steps to communicate, by words or conduct, with the other man, not to move laterally until he had stood up fully and secured a proper grip on his end of the pipe, had contributed to the injury.

50. DMG said that the failure of both men to coordinate their movement entailed a finding of 50% contributory negligence (“in our submission, there would need to be a finding of at least 50% each contributory negligence, or greater, because the plaintiff was at the back end of the lift, and would therefore, as a matter of common sense, have a better opportunity to coordinate”). But it is one thing for the other man to commence lateral movement before the other was ready, and another for Mr Bartlett not to have taken steps to remind him, or perhaps to direct him, not to do so before both were ready.

51. Mr Bartlett sought to uphold the findings of the primary judge. But it is to be borne in mind that a systems case was abandoned, that the need for coordination was obvious, and the risk of failing to coordinate was equally obvious. Indeed, as already noted, the reasons of the primary judge are difficult to reconcile with an absence of contributory negligence.

52. There was a failure to coordinate the lift and lateral transfer of the pipe. The consequence of the absence of detailed findings means that the it must be concluded that there was a failure on the part of Mr Bartlett to take reasonable care to protect himself. The evidence does not, for example, permit a finding that Mr Bartlett was complying with an established system for co-ordinating the movement of the pipe, from which the other man departed without warning. That said, while the failures of both men to coordinate the activity caused the injury sustained by Mr Bartlett, the culpability of the other worker is significantly greater.

53. Doing the best one can, contributory negligence should be assessed as one third.

Damages (grounds 9 and 10)

54. These grounds impugned two components of the judgment: future economic loss and future domestic assistance.

Future economic loss (ground 9)

55. Mr Bartlett had been a concreter and linesman since his youth. He was aged 36 at the time of the incident. By the time of the trial, six years had passed, leaving 24 years of working life ahead of him.

56. The primary judge allowed an amount of $890,107 for future economic loss, calculated on the basis of an agreed after tax weekly earnings of $1,900. The primary judge considered that Mr Bartlett was entitled to six years of complete incapacity, followed by a further 18 years of loss of 60% of that wage. His Honour then deducted 15% for vicissitudes from the sum of those products.

57. The reduction in economic loss turned upon the pre-existing lumbar spine condition and a joint report of two medical experts, who were not required to give evidence. The three most relevant aspects of the joint report were question 10 asked by the defendant and questions 1(g) and 1(h) asked by the plaintiff. Those questions and the doctors’ answers were as follows:

Question 10

Given the plaintiff’s pre-existing degenerative and congenital changes of the lumbar spine, please provide your opinion as to:

a. What extent his pre-existing condition affects his current and future work capacity?

b. Whether the plaintiff would have been able to continue working his pre-injury role of 20 years as a concretor and continue work as a concretor, or generally heavy labouring type work, irrespective of the subject work injury? If not, the timeframe that the plaintiff would have had to cease work due to his pre-existing condition.

Answer to Question 10a.

Both experts agree somewhere between minor and moderate extent.

Answer to Question 10b.

Both experts agree that the plaintiff would have been able to continue working in his pre-injury role for 12 years, until the pre-existing pathology affected his function.

….

Question 1g.

Is there any evidence that the said degenerative changes would become symptomatic at some point in time prior to an expected retirement age? If so, what is that evidence? When would it occur and what is the reasoning for that opinion?

Answer to Question 1g.

Both experts agree that the only evidence is clinical experience. In both consultants’ experience mild to moderate degenerative change in the lumbar spine is likely to progress and cause some significant functional loss some 12 years after becoming symptomatic.

Question 1h.

If there is any evidence of that occurring, what is the chain of reasoning to suggest that the pre-existing degenerative changes would, in their own natural progression, result in a state of disability equal to the state that the Plaintiff is now in, following fusion surgery for disc injuries? If so, when is that state of disability to occur?

Answer to Question 1h.

Both experts agree that there is no evidence of that occurring, because it had not happened prior to the date of injury. The state of disability commences at the date of injury, and the current disability is directly linked to the subsequent treatment of that injury. Therefore, the plaintiff’s current level of disability would not have eventuated except for the index injury. He would still eventually have some disability, but not as great as it is now.

58. All parties were content to tender the joint report without requiring any of its authors to explain the ambiguities it contained.

59. Although there is at least arguably some ambiguity, the better view is that question 10(b) asked a precise question as to the timeframe that Mr Bartlett would have had to cease work due to his pre-existing condition and that question was answered unambiguously by the medical experts as 12 years.

60. The appellant’s written submissions proceeded, favourably to Mr Bartlett, on the basis that he would be entitled to damages for future economic loss based on after tax earnings of $1,900 per week for the remainder of the 12 years since the incident, but that thereafter those damages would be much less because of the agreed incapacity to work as a concreter/linesman. DMG proposed that for the 18 years when Mr Bartlett was aged 49-67, there be determined 80% of average weekly earnings to reflect what would have been his uninjured limited capacity to work because of the manifestation of the pre-existing conduction, from which should be deducted one half, reflecting Mr Bartlett’s injured capacity, being an ability to work 20 hours a week rather than 40 hours per week. From both of those amounts, 15% was to be deducted for vicissitudes.

61. The upshot is that future economic loss for the years when Mr Bartlett was aged 49-67 should be 40% of average weekly earnings, principally reflective of his being unable to work as a concreter in any event as a result of his pre-existing condition.

62. Those calculations are to be preferred. The primary judge gave no reasons for assuming that at the time when Mr Bartlett would cease to be able to work as a concreter/linesman, he would thereafter require compensation for the rest of his life at the rate of 60% of his earnings as a concreter/linesman.

Future domestic assistance (ground 10)

63. Ground 10 concerned calculation of future domestic assistance. The primary judge allowed 4 hours per week, and no issue was taken with that finding. However, the primary judge calculated the cost of future domestic assistance at $73.62 per hour. That rate had been proffered by Mr Bartlett and was based upon two propositions both of which DMG contested. The first was that they included an element for work on Saturdays and Sundays (which was at a higher rate than for weekdays). DMG contended that the relatively small amounts of assistance in cooking meals and gardening and other household duties could just as easily be done on a weekday and so the rate should not include any component based upon the higher weekend rates.

64. The second was that the plaintiff’s rate was an average of four commercial providers of household and gardening assistance. DMG had identified three “local” suppliers of services from advertisements in local newspapers and media near Mr Bartlett’s address which were in the vicinity of $30-35 per hour.

65. For both of those reasons, DMG contended that the amount should not be calculated by reference to the $73.62, but by reference to a much lower rate. The judgment entered by the primary judge included a component of $229,657.59 (being 4 x $73.62 x 917.5, reduced by 15%).

66. Both of DMG’s submissions should be accepted. The only matter put against the former, as I understood it, was the fact that Mr Bartlett’s wife was a nurse who might have to perform shift work. Accepting as much, that did not mean that it was reasonably necessary, in order to determine this head of damages, that the rate should incorporate in part the higher weekend rates. Nor is there any sound reason for calculating this head of loss by the higher rates supplied by Mr Bartlett as opposed to the lower rates supplied by DMG, in circumstances where it was not suggested that those rates were not readily available or that the services provided by those suppliers were inadequate. (One reason why the commercial services supplied by organisations are higher than those offered by local individuals is that the latter, if they fell below the $75,000 threshold, would not have to register for GST or charge GST: see A New Tax System (Goods and Services Tax) Act 1999 (Cth), s 23-15(1)(b) and A New Tax System (Goods and Services Tax) Regulations 2019 (Cth), reg 23.15.01.)

67. Damages are assessed with respect to the objective monetary value of the plaintiff’s loss, ordinarily calculated by reference to market cost (see Van Gervan v Fenton (1992) 175 CLR 327 at 333; [1992] HCA 54), and that is not measured by the most expensive rates which some suppliers are able to secure, but by the rates charged by suppliers who are proving the most competitive rates.

68. That said, the joint report dated 20 August 2024 included in answer to question 7(d) DMG’s expert’s opinion that the average local community cost for domestic services was $25-$30, and for maintenance services $35-$40. Those rates derived from a 2022 report. The rates which would be paid in September 2024, some two years later, will be higher. It is appropriate for this component of the judgment to be calculated using a rate of $45.

Conclusion and orders

69. The parties should in light of the above recalculate the judgments which should be entered in lieu of the judgments entered at first instance. In light of the acceptance of the amount of damages for past economic loss, the judgment should be based on amounts as at 17 September 2024 (thus attracting post-judgment interest), unless the parties are agreed as to a different course.

70. The parties should provide agreed short minutes of order, or alternatively the orders for which each contends, and short reasons in support, no later than 21 days from today. In the event of a dispute, the opposing parties will have seven days to supply submissions in opposition.

71. That regime will also extend to the question of costs. Subject to any offers or notices to admit and subject to the precise calculations consequent upon these reasons, it would appear that (a) the plaintiff would be entitled to his costs at first instance, while (b) both active parties have had a measure of success in this Court.

72. I propose the following orders:

1. Appeal allowed.

2. Set aside orders 1 and 2 made on 17 September 2024, as amended on 11 October 2024.

3. Direct the parties to file and serve agreed short minutes of order within 21 days of today, or alternatively (a) the orders for which each contends, and short reasons not exceeding 4 pages in support, no later than 21 days from today, (b) submissions in response not exceeding 3 pages no later than 7 days thereafter, with such submissions in chief and in response including submissions as to the costs to the extent they are not agreed.

73. McHUGH JA: I agree with Leeming JA.

74. PRICE AJA: I agree with Leeming JA.

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Decision last updated: 02 April 2025