Gulic v Boral Transport Ltd

[2016] NSWCA 269

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Gulic v Boral Transport Ltd [2016] NSWCA 269

Hearing dates:

6 June 2016

Decision date:

22 September 2016

Before:

Macfarlan JA at [1];
Gleeson JA at [67];
Garling J at [68]

Decision:

1. Appeal dismissed with costs.

 

2. Notice of cross-appeal by the second respondent against the first respondent dismissed with no order as to costs.

 3. Notice of cross-appeal by first respondent against the second respondent dismissed with no order as to costs.

Catchwords:

TORTS - negligence - employee of subcontractor injured in the course of performing cartage operations - scope of duty of care of principal contractor to employee of subcontractor - whether non-delegable - nature of relevant risk - whether foreseeable risk of injury caused by posts on truck “not insignificant” - breach not established - whether primary judge erred in finding causation not established
COURTS AND JUDGES – duty to make findings – when necessary to make contingent findings on non-decisive points – plaintiff failed at first instance on causation – no findings made on breach or damages – disposition of appeal hampered

Legislation Cited:

Civil Liability Act 2002 (NSW)
Law Reform (Miscellaneous Provisions) Act 1946 (NSW)
Workers Compensation Act 1987 (NSW)

Cases Cited:

Adelaide Stevedoring Company Ltd v Forst (1940) 64 CLR 538; [1940] HCA 45
Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16
Chapman v Hearse (1961) 106 CLR 112; [1961] HCA 46
Coregas Pty Ltd v Penfold Australia Pty Ltd [2012] NSWCA 350
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Kondis v State Transport Authority (1984) 154 CLR 672; [1984] HCA 61
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11
Kuru v State of New South Wales (2008) 236 CLR 1; [2008] HCA 26
Laresu Pty Ltd v Clark [2010] NSWCA 180
Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22; [2007] HCA 6
Military Rehabilitation and Compensation Commission v May (2016) 90 ALJR 626; [2016] HCA 19
Nevin v B & R Enclosures Pty Ltd [2004] NSWCA 339
Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1; [2015] NSWCA 90
Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42
Shaw v Thomas [2010] NSWCA 169
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; [1986] HCA 1
Wolfenden v International Theme Park Pty Ltd [2008] NSWCA 78

Category:

Principal judgment

Parties:

Marinko Gulic (Appellant)
Boral Transport Ltd (First Respondent/Cross-Respondent)
Workers Compensation Nominal Insurer (Second Respondent/Cross-Appellant)

Representation:

Counsel:
Mr C T Barry QC/Mr J Dodd (Appellant)
Mr J Sexton SC/Mr J Catsanos (First Respondent/Cross-Respondent)
Mr D Hooke SC/Mr S Torrington (Second Respondent/Cross-Appellant)

  Solicitors:
NSW Compensation Lawyers (Appellant)
Makinson D’Apice Lawyers (First Respondent/Cross-Respondent)
Holman Webb Lawyers (Second Respondent/Cross-Appellant)

File Number(s):

CA 2015/145228

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Civil

Date of Decision:

11 May 2015

Before:

Maiden DCJ

File Number(s):

DC 2011/307933

Judgment

1. MACFARLAN JA: In February 2010 the appellant, Mr Marinko Gulic, was severely injured in the course of performing cartage work for the first respondent, Boral Transport Ltd (Boral). At that time, he was employed as the driver of a prime mover owned by GMG Transport Pty Ltd (GMG), a company of which he was the sole director and shareholder. As GMG is in liquidation, its workers compensation insurer, the second respondent, stands in its shoes for the purposes of these proceedings.

2. On 4 April 2008 GMG entered into a Cartage Agreement with Boral to perform haulage services as part of Boral’s business of supplying bricks and pavers to building sites throughout New South Wales. Under the agreement, Boral was to supply a “serviceable body” and a trailer for installation on GMG’s prime mover. The agreement provided for Boral to retain full ownership of the body and trailer and expressly precluded GMG from altering or otherwise modifying their form. Three gates, approximately 3 metres in length and 1.3 metres high, aligned either side of the body’s tray. These were separated by removable posts.

3. The gates were hinged horizontally at the level of the tray and could thereby be released down from their upright position to afford access to the tray. The force required to lift one of the gates into an upright position appears to have been in the order of 20-23 kilograms. It was not suggested that this weight exceeded recommended guidelines. To lock the gates in an upright position, it was necessary to align them with the posts on the tray so that pins on the posts would protrude through holes in the gates and could be turned to lock the gates in position.

4. On 4 February 2010 Mr Gulic experienced severe pain in his left shoulder when he lost control of a gate he was attempting to close and lock. The gate fell on him, striking him on his helmeted head and shoulder. An arthroscopy of his left shoulder confirmed he had suffered a partial tear to the upper subscapularis tendon.

5. Mr Gulic subsequently commenced proceedings in the District Court claiming damages for breach by Boral of a duty of care alleged to be owed to him. The negligence alleged related to the design, manufacture and repair of the gates and their locking systems. By a cross-claim, Boral sought damages from GMG for breach of the Cartage Agreement, indemnity under an express provision of the agreement, and indemnity or alternatively contribution pursuant to the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) on the basis that GMG was a joint tortfeasor by reason of its breach of the duty of care owed by it to its employee, Mr Gulic. GMG in turn sought, by cross-claim, indemnity under the Workers Compensation Act 1987 (NSW), s 151Z(1)(b) in respect of workers compensation payments that it had made to Mr Gulic.

6. Following a six day hearing before Maiden DCJ, his Honour, by judgment of 11 May 2015, rejected Mr Gulic’s claim and directed entry of judgment for Boral, with the cross-claims to be dismissed. His Honour found against Mr Gulic on the issue of causation, that is, whether his injuries were caused by any negligence in relation to the relevant gate or post.

7. Contrary to the usual practice, his Honour did not make any contingent findings in respect of breach of duty or damages. He merely observed that in light of his finding on liability, the court was “not minded” to afford an assessment on damages. If there is good reason to take such a course, the reason should be identified in the judgment. Otherwise, a judge should determine all issues before him or her to assist the appeal process and obviate recourse to a new trial. A statement to this effect appears in the Judicial Commission of New South Wales’s Civil Trials Bench Book at [2-6330]. The statement is supported by the decisions of this Court in Nevin v B & R Enclosures Pty Ltd [2004] NSWCA 339 at [74]-[75] and Wolfenden v International Theme Park Pty Ltd [2008] NSWCA 78 at [3]-[4] and [53]. An analogous rule applies to intermediate courts of appeal which are required to “consider whether to deal with all grounds of appeal, not just with what is identified as the decisive ground”: Kuru v State of New South Wales (2008) 236 CLR 1; [2008] HCA 26 at [12].

8. There may of course be good reasons for not dealing contingently with issues that the judge does not consider decisive. One reason might be that the judge considers that because the outcome is so clear or there is so little at stake that there is no reasonable prospect of an appeal. Alternatively, the judge might consider that the expenditure of judicial time and effort required to determine other issues is not justified when balanced against the likely costs of a retrial and the likelihood of a retrial being necessary. Another reason might be that determination of an issue whose resolution is considered not to be decisive might require assumptions as to a party’s credit diametrically opposed to the judge’s findings. It might be difficult to give effect to this assumption.

9. As I take a different view to that of his Honour on the issue of causation, it has been necessary for me to address the issue of breach. My consideration of it has been considerably hampered by the absence of appropriate findings by his Honour. As resolution of that issue does not require any issue of credit to be determined, principally because Mr Gulic’s relevant evidence was unchallenged, understandably none of the parties requested that the issue be remitted to the District Court for determination. If I had been in Gulic’s favour on breach, which I am not, a remittal to assess damages would however have been necessary by reason of the absence of an assessment by his Honour.

The lay evidence at first instance

Mr Gulic’s evidence

10. Mr Gulic said that in 2009 Boral had changed the gates and locking system on his vehicle (and on others in Boral’s fleet). In describing the new locking system, he said that “you had to push [the latch] in … there’s a precise hole you have to push it through … just to close the latch”. To close and secure the gate it was necessary for him to use both hands to lift the gate and, once it was upright, hold it with one hand, using the other to close the latch.

11. He described a difficulty with the new system as “bringing [the gate] close to the post and … bringing [the] latch in. Just the sheer weight of the gates were [sic] a problem … the problem is bringing [the gate] up close enough to be able to close the latch normally or comfortably”. He said that he told Ms Rose Didivich, Boral’s transport fleet manager, about this problem in July 2009.

12. As a result, Ms Didivich arranged for Mr Gulic’s truck to be left with Prancer Enterprises Pty Ltd (Prancer) for repairs on 7 August 2009. Prancer was the entity retained by Barker Trailers Pty Ltd (Barker), the designer and installer of the new gates, to undertake repairs under the 12-month warranty provided by Barker in respect of the new system. Barker was described in the evidence as “a large organisation with a strong reputation”. Mr Gulic’s unchallenged evidence was that Ms Didivich instructed him that he was precluded from conducting any repair work on his truck because, if he did, the warranty might be “voided”. This had the effect of relieving GMG of its repair and maintenance obligations under the Cartage Agreement.

13. Within a month of having the truck returned to him, Mr Gulic told Ms Didivich that it was still “hard to bring [the gate] to the post and close the latch” because the “alignment wasn’t right”. In answer, she said that the problem was “widespread” in the sense that other trucks that had undergone the same structural reconfiguration by Barker were “experiencing similar problems”. While the appellant was advised by Ms Didivich that his truck would again be booked in for repairs with Prancer, he was also told that there would be a delay of some months before repairs could be attended to in light of the backlog of trucks also requiring maintenance.

14. The appellant’s truck was left with Prancer’s workshop from 19 to 21 January 2010. Upon the truck’s return to Mr Gulic, the problems were, in his view, “probably worse than before”. When asked to specify how, he explained:

“In the way that they – the posts were awkward as they were and – and – so what they – what they did they – because their posts were pipes, so what they did, they cut in the bottom and inserted steel rods in the posts and when they welded the posts back on, it’s actually bent the posts even more, so – so when they came back, the posts were even more out of – of [alignment] than before and it was even harder to close than – than before going to the workshop.”

15. Mr Gulic also referred to another problem with the gates, namely that he noticed significant friction at the bottom of the gates when lifting them, presumably caused by some welding to the bushes (metal sleeves forming part of the hinges) by Prancer. However, this evidence does not have any present relevance as this problem was not, on Mr Gulic’s evidence, causative of his loss of control of the gate. By the time that loss of control occurred, the gate had been lifted and any inhibition on the lifting caused by the welding had been overcome.

16. Mr Gulic gave the following evidence about his response when, shortly after, Ms Didivich asked him whether the problem had been overcome:

“Q.   What did she ask you?

A.   She asked me, ‘How is it now? Is it better than before?’

Q.   And what did you say?

A.   I said, ‘No, it’s actually worse than before.’

Q.   Did you add to that as to how it was worse or what?

A.   Yes, she asked, ‘In what way?’ I said, ‘It’s even harder to close now because the post seems to be bent more than before and it’s just more difficult operating than before.’

Q.   What did she say?

A.   She said, ‘Then it has to go back in again.’

Q.   Were any, to your knowledge, arrangements made at that time for it to be looked at again?

A.   No.

Q.   Did you have any further contact from Mrs Didivich or anyone on behalf of Boral between that conversation and when something happened to you on 4 February 2010?

A.   No, I did not.

Q.   Did you continue to operate the truck in that period of time?

A.   Yes, I did.

Q.   Did you continue to have the problems that you have told us?

A.   All the time.”

17. In cross-examination, Mr Gulic said that he told Ms Didivich that she had to organise the further repairs with Prancer as he was not able to make a booking with Prancer. He accepted that he did not at any point request that the repairs be quickly attended to and nor did he cease driving his truck in the interim. He explained the latter by saying that he had no choice because he needed to work.

18. Mr Gulic account of the incident that occurred on 4 February 2010 when he was closing a gate (at the rear on the driver’s side) of the truck was as follows:

“A.   I went to lift [the gate] up and push it in and you have to kind of slam it in order to overcome that flexion to bring it close to the post in order to be – so you have to push it in hard in upright position to bring it in and you got probably a fraction of a second to push it in and close the latch. So I was pushing it in and went to close the latch. That’s when I--

Q.   Whilst you were doing that, compared with the height of your head where was your left hand? Was it at head height or shoulder height or above head height or what?

A.   Above head height.

Q.   Do you recall how high your left arm was?

A.   Full stretch.

Q.   And compared to your head, where was your right hand as far as securing the latch? Was that about head height or above or below or what?

A.   Above. It was above head height.

Q.   And, sir, when you’re doing that particular action that you described to us did you notice anything about yourself?

A.   Yes.

Q.   What was that?

A.   As I pushed it in I felt a sharp pain in my left shoulder.

…

Q.   And what happened as far as your left arm was concerned?

A.   Just a reflex, collapsed, the arm gave way.

Q.   What happened as far as your right arm was concerned?

A.   My arm was actually going for the latch and it wasn’t holding anything. It was just on the way to close the latch.

Q.   What happened to the gate?

A.   The gate fell down, fell on top of my hard hat.”

19. In cross-examination Mr Gulic said that it was both “normal” and “unavoidable” in the course of ordinary operations for forklifts putting pallets on or taking pallets off the truck to hit the gates or the body of the truck. However he also said that the posts to which the raised gates were to be attached were not likely to be damaged as they would ordinarily be removed before the loading or unloading operations commenced.

Mr Duncan Marshall

20. Mr Marshall was a truck driver doing similar work for Boral to that done by Mr Gulic. He had occasion to drive Mr Gulic’s truck in about April or May 2009.

21. In respect of that truck, he said:

“[w]hen you’re on a site or the ground is uneven, it was hard to get the gates shut because of the aperture that the pin was going through – sometimes it wouldn’t line up so you’d have to use a degree of force to get them closed.”

22. He later said that when he experienced such difficulty he would give the gate “quite a severe thump and it would generally go in”. He said that the problem was not evident when the truck was in a yard or on a reasonably flat surface.

Mr Mervyn Rowlands

23. Mr Rowlands, Boral’s fleet engineering manager at the relevant time, managed the project to replace the gates on Boral’s fleet of trucks, of which Mr Gulic’s truck was one. He had many communications with Barker in relation to the design and supply of the gates. He described the process of design of the gates as a collaborative process between himself and Barker.

Documentary evidence

24. The following provisions of the Cartage Agreement are of potential relevance.

25. GMG agreed to perform the cartage work “in accordance with any written direction, procedure or specifications provided by Boral” (Clause 2.1). If Boral so directed, GMG was to cease using its prime mover “pending the carrying out of any repairs, maintenance, inspection or testing” (Clause 4.5). Boral had similar powers to direct GMG to cease using the trailer or “Body” to be supplied by Boral (Clauses 6.6 and 8.5).

26. Boral was obliged to supply “a serviceable body” for GMG’s prime mover (Clause 8.1) but GMG was obliged to “mechanically maintain and repair the body at [its] own cost in accordance with the manufacturer’s maintenance schedule for that body” (Clause 8.4). (Although compare the evidence referred to in [12] above).

27. The only documentary evidence that assumed importance in the argument on appeal was a series of minutes of meetings of Boral’s “C & C Logistics NSW Transport OH&S Committee” spanning the period February 2009 to April 2010. Whilst not a member of the Committee, Ms Didivich attended most if not all of those meetings.

28. The minutes of 2 February 2009 make reference to an item from previous minutes dated 2 December 2009 as follows:

“Use of High trailers – ergonomic issues with the mass and manoeuvrability of the high gates is being experienced by staff.”

29. It characterised the risk as “medium” and stated that a risk assessment was “to be organised”. Similar references appeared in minutes of 2009 meetings and those of 8 February and 8 March 2010. In most of the minutes there was also a reference to the risk assessment being “in progress” with “Jim and Barry to carry out Audit”.

The primary judgment

30. As to duty of care, his Honour said:

“The duty of care, effectively, that was owed from the defendant to the plaintiff was effectively, in my mind, one of employer/employee relationship because he was under their direction effectively at all times in terms of how the work was carried out. However, this has to be tempered with the requirements of the contract, which placed upon GMG the responsibility for the repair and maintenance of prime mover and trailer.”

31. As noted earlier, his Honour did not make any findings as to breach.

32. His Honour’s findings on causation were as follows:

“There is no medical evidence which identifies the cause of the pain that the Plaintiff stated he felt in his left shoulder immediately before he dropped/ let go of the gate in its raised position. In the vertical position the plaintiff’s left arm/ shoulder would be bearing little or no weight and the plaintiff’s right arm and shoulder at that time were being used to secure the gate. The factual question to be determined is what caused the plaintiff to lose control of the gate and/or what caused the pain [to] the left shoulder before he let go of the gate. The dropping of the gate clearly caused injury to his neck, thoracic spine and shoulder. In this regard to prove causal connection as to what caused the gate to fall the Court cannot be satisfied on the balance of probabilities that any difficulty in the closing of the gate caused the pain to the plaintiff’s left shoulder which is the precipitating factor for the gate falling to the plaintiff.

There were anticipated problems with the gate and at the time of the injury as set out above any fixing of the mechanism to close the gate was already in hand with the first defendant’s transport manager.

The Court finds that it was whilst the plaintiff had his left arm extended above his head with the gate in a vertical position, that he had let the gate go with that left hand, the right hand not taking any of the weight, causing the gate to hit his head and causing the pain that he has felt.”

Grounds of appeal

33. In summary, the grounds pressed on appeal by Mr Barry QC, who appeared for Mr Gulic, were as follows:

• Ground 1-2: the primary judge erred in finding that there was no medical evidence that identified the cause of the pain the appellant felt in his left shoulder immediately before he lost control of the gate.

• Ground 3-6: the primary judge erred in finding that at the time of the incident the appellant’s left arm or shoulder would have been “bearing little or no weight” because the gate was vertically upright. Relevantly, this finding provided the basis for his Honour’s ultimate conclusion that causation was not established.

Determination of the appeal

Duty of care

34. On appeal, Boral conceded that it owed to Mr Gulic “a duty to take reasonable care to provide gates that would not subject experienced, adult users, taking reasonable care for their own safety, to an unreasonable risk of injury when using the gates”. Its position at first instance was substantially to the same effect. On both occasions it cited this Court’s decision in Coregas Pty Ltd v Penfold Australia Pty Ltd [2012] NSWCA 350 at [81].

35. Mr Gulic’s unchallenged evidence was that his accident was caused by the bent character of the post to which the relevant gate was to be locked (see [14], [16] and [18] above). Boral’s contractual obligation was to supply both the gates and the posts and, by reason of its dealings with Mr Gulic (and therefore GMG), it had assumed an obligation to maintain them, notwithstanding the terms of the Cartage Agreement (see [12] above). There was therefore relevantly no difference between Boral’s obligations concerning the gates and the posts and its concession as to the duty it owed should be understood as extending to both.

36. In contrast to Boral’s position, the primary judge found that Mr Gulic and Boral were effectively in “an employer/employee relationship because [Mr Gulic] was under [Boral’s] direction effectively at all times in terms of how the work was carried out”. Whilst Mr Gulic, at least initially, sought to support this finding on appeal, he conceded that Boral’s duty was delegable, a characteristic not forming part of an employer’s duty to its employee, this being non-delegable (Kondis v State Transport Authority (1984) 154 CLR 672; [1984] HCA 61 at 688), and that the primary judge’s view was thus erroneous. Nevertheless, his Honour’s emphasis on Boral’s power to direct was appropriate. Its existence would no doubt have been central to Boral’s decision to concede that it owed a duty of care.

37. Whilst Mr Gulic contended for a broader “system of work” duty of care (see Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; [1986] HCA 1 per Mason J (at 31)), that conceded by Boral was appropriately tailored to the circumstances of this case and was not any less onerous or otherwise relevantly different. In these instances, my view is that Boral’s formulation should be accepted.

Breach of duty

38. The question of breach of duty is governed by the terms of s 5B of the Civil Liability Act 2002 (NSW) (CLA). This section is primarily concerned with the question of whether a person who owes a duty to another would, acting reasonably, have taken precautions against a foreseeable risk of harm to the other which has come to pass. In considering the application of the section it is thus important at the outset to identify the relevant risk of harm: see Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 at [18], [59]; Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1; [2015] NSWCA 90 at [92]. It is relevant in this context that neither the general law nor s 5B require “the plaintiff to show that the precise manner in which his injuries were sustained was reasonably foreseeable”: Shaw v Thomas [2010] NSWCA 169 citing Chapman v Hearse (1961) 106 CLR 112; [1961] HCA 46 at 120-1 and other authorities.

39. In the present case it could be argued that the relevant risk was of a driver losing control of a gate whilst attempting to open or close it and being injured when the gate fell on him. This approach would render issues such as the weight and manoeuvrability of the gates relevant.

40. However, in my view, the risk should be defined more narrowly. The immediate cause of Mr Gulic losing control of the subject gate was, according to his unchallenged evidence, his effort in slamming the gate to bring it close to the upright post and thus into a position to enable the locking mechanism to be operated (see [18] above). The need to do this resulted, again on his unchallenged evidence, from the bent character of the post (see [14], [16] and [18] above). This action was quite distinct from the action of raising the gate to its upright position, this having already occurred. Issues of weight and manoeuvrability would have assumed relevance if the injury had occurred in the course of Mr Gulic lifting the gate.

41. In these circumstances, the relevant risk of harm was that of injury to a driver arising in the course of attempting to close and lock a gate with a distorted post.

42. The prospect of a post becoming distorted in the course of cartage operations may not have been foreseeable, at least not as a significant risk, because the posts were removable and, according to Mr Gulic’s evidence, were in fact removed before loading and unloading operations occurred (see [19] above).

43. However, this question need not be pursued as Boral was in fact told by Mr Gulic of the distortion of the posts, which included the post in question (see [16] above). The question then becomes whether a reasonable person in Boral’s position, knowing that fact, would have concluded that there was a “not insignificant” (see CLA, s 5B(1)(b)) risk of injury to Mr Gulic and have taken precautions to reduce or obviate it. It is necessary to return to the course of events to answer this. Before turning to this question, it is appropriate to address and reject other parts of Mr Gulic’s case as it was originally formulated.

44. Mr Gulic’s allegation that his injury arose from negligence by Boral in their design of the gates and posts fails for two reasons.

45. First, as noted above, Boral’s duty was delegable, that is, it was able to be discharged by engaging another person who was apparently competent and qualified to perform the task: Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16 at [53]; Laresu Pty Ltd v Clark [2010] NSWCA 180 at [61]. Here, Barker was engaged to design the new equipment and there was evidence that it was “a large organisation with a strong reputation” (see [12] above). There was no evidence to suggest that it was other than appropriately experienced and competent to perform the tasks of design, manufacture and installation. The fact that Boral collaborated with Barker in the design (see [23] above) does not preclude Boral from asserting that the design of the new equipment was Barker’s responsibility. Understandably, Boral communicated to Barker what was required and discussed the possible alternatives with Barker. Nevertheless the evidence, taken at its highest, does not suggest that that relieved Barker from ultimate responsibility for what was done.

46. Secondly, Mr Patrick Donohue, the expert engineer and designer called by Mr Gulic, accepted in cross-examination that he did not have any design concerns in relation to the gates and their locking mechanisms or, bearing in mind that they were removable, in relation to the posts.

47. In any event, the defence of having delegated to a competent contractor is available to Boral in relation to Mr Gulic’s claim that the gates or posts were, or may have been, negligently manufactured.

48. The same response may be said of Mr Gulic’s allegation that repairs to the gates or posts were effected negligently. As noted above, repairs were undertaken by Prancer on the instructions of Barker, which in turn acted upon the instructions of Boral. While there was no evidence concerning Prancer’s experience or competence, Boral’s delegation of repairs was to Barker which, as I have indicated, was, on the evidence, a competent contractor. There was no reason why, at least to the extent it was done with the full knowledge of Boral, Barker could not have subcontracted the repair work to Prancer. Boral was entitled to rely upon Barker’s competence not only in relation to work it performed itself, but also in relation to its choice of subcontractors.

49. That leaves for consideration the question of whether a reasonable person in Boral’s position would have done something more than (through Barker) have the truck’s tray and posts repaired by Prancer in August 2009 and January 2010.

50. The August 2009 repairs resulted from Mr Gulic informing Ms Didivich in July 2009 that the gates on his truck were hard to close. Mr Gulic did not indicate to her that this gave rise to any safety issue and indeed there is no evidence that Mr Gulic thought it did. In the absence of some indication from Mr Gulic, who was an experienced truck driver familiar with the truck, that there was a safety issue, there is no basis for finding that Ms Didivich should have concluded that there was one.

51. Whilst Mr Gulic told Ms Didivich after the August 2009 repairs that the alignment of the gates and posts was still not right, he again did not suggest that there was any safety issue that arose. In those circumstances, Ms Didivich was entitled to assume that the issue was one of inconvenience and delay in the execution of loading and unloading operations, not an urgent one to which a safety issue attached.

52. The same comments apply to the position after the January 2010 repairs. Mr Gulic told Ms Didivich that it had become more difficult to close the gates because the posts were even more bent ([14] above) but again he did not raise with her any safety issue which would have resulted in a reasonable person in Boral’s position expediting repairs and perhaps directing, pursuant to clause 4.5 of the Cartage Agreement, that Mr Gulic not use his prime mover and the body supplied by Boral pending repairs being effected. Mr Gulic did not even say to Ms Didivich that the repairs needed to be effected quickly.

53. It follows from this analysis that a reasonable person in Boral’s position would not at any relevant time have perceived that there was a relevant risk of injury, or at least not one of sufficient significance to warrant precautions being taken beyond the steps to have repairs performed that Boral took.

54. I add that I do not consider that the Boral Committee meeting minutes referred to in [27]-[29] above assist Mr Gulic’s case. It is not clear that the expression in them “High trailers” referred to the “body” supplied by Boral under the Cartage Agreement, as distinct from the separate trailers which the Agreement also stipulated that Boral was to provide. Assuming, however, that it did, the issues identified in the minutes (“ergonomic issues with the mass and manoeuvrability of high gates”) nevertheless do not on their face embrace the problem of the bent posts to which I have referred above and which was, on Mr Gulic’s evidence, the cause of his injury. That Ms Didivich would probably have been able to clarify the references, and Boral did not call her to give evidence, is not sufficient for an adverse inference to be drawn against Boral: Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8. If the minutes had been capable of giving rise to an inference that the question of posts was under regular discussion at the meetings, the failure of Boral to call Ms Didivich may have enabled the Court more readily to draw a Jones v Dunkel inference. Yet in the circumstances, it could not simply be inferred against Boral that Ms Didivich’s evidence would have been adverse to Boral to the effect that relevant discussions had occurred: see Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 at [63]-[64].

55. In any event, even if distorted posts was one of the matters under consideration by the Committee, there is no basis for an inference that that issue was seen as giving rise to a safety issue, as distinct from issues of inconvenience and delay. The fact that there were general issues of “mass and manoeuvrability” was sufficient to explain why the subject of the gates was before a safety committee.

56. For these reasons, I do not consider that Boral breached the duty of care that it owed to Mr Gulic.

Causation

57. The primary judge’s findings on causation (see [32] above) proceeded upon the basis that once the gate was in a vertical position, the plaintiff’s left arm and shoulder would have been bearing little or no weight. This accorded with the evidence of Mr Grant Johnston, a consulting engineer called by Boral to give expert evidence, that when the gate was upright, no lifting force was required because the gate’s weight would be taken by the hinges. His Honour then appeared to conclude that there was therefore no connection between the sudden pain in Mr Gulic’s left shoulder and the steps he took to close and lock the gate, with the result that Mr Gulic had not proved that his injuries were caused by any relevant breach of duty.

58. This approach did not take account of Mr Gulic’s evidence of the way in which his injury occurred. He did not say that the injury resulted from him lifting the hinged gate up. Rather, he said that once the gate was upright (which is a position he achieved without apparent difficulty) it was necessary “to kind of slam it” to achieve alignment between gate and the post to which the locking pin was affixed. He said that “as I pushed it in I felt a sharp pain in my shoulder”. This led to his left arm collapsing and the gate falling because his right arm was reaching for the latch and not holding the gate up.

59. This evidence was not challenged. Moreover, it accorded with the unchallenged evidence of Mr Marshall that it was necessary to use “a degree of force” to line up the pin with the aperture on the gate and that when he used Mr Gulic’s truck he “would give it a severe thump and it would usually go in” (see [21]-[22] above).

60. On Mr Gulic’s description of what occurred, a clear inference arose that his final exertion in slamming or forcefully pushing the gate to overcome the lack of alignment of the aperture with the pin caused his shoulder injury. The sequence of events involving the slamming of the gate and the sudden and immediate suffering of an injury is consistent with its causation by that action: see Adelaide Stevedoring Company Ltd v Forst (1940) 64 CLR 538; [1940] HCA 45 at 563-4 and 570; Military Rehabilitation and Compensation Commission v May (2016) 90 ALJR 626; [2016] HCA 19 at [62].

61. The medical evidence indicated that Mr Gulic’s injury was consistent with it being caused in this way. For example, an MRI scan and a clinical examination satisfied Dr Clarence Foo that Mr Gulic’s injuries resulted from the accident of which he was told. Likewise, the Medical Assessment Certificate of Dr John Harrison accepted that Mr Gulic’s injuries resulted from him exerting “some abnormal force”.

62. For these reasons, the primary judge’s findings on causation cannot be sustained. Nevertheless, as Mr Gulic did not prove breach of duty, the primary judge correctly entered judgment for Boral.

Damages and cross-claims

63. It is not appropriate to address the question of damages as it is an issue that does not arise in light of Mr Gulic’s failure on liability and this Court does not have the benefit of any findings of the primary judge on the issue. Moreover, questions of credit would likely be involved in a damages assessment. This Court cannot determine such questions as it did not see and hear the witnesses give their evidence.

64. For similar reasons (other than that concerning credit findings), it is inappropriate to deal with the cross-claims. The primary judge was correct to dismiss them in light of the failure of Mr Gulic’s claim.

65. The second respondent filed a notice of cross-appeal against Boral on 24 August 2015. As it was said to arise only if Mr Gulic’s claim against Boral was successful, this should be dismissed. In the course of the hearing in this Court, Boral obtained leave to file a notice of cross appeal against the second respondent. As it was said to be defensive only and Mr Gulic’s claim against Boral has failed, this should also be dismissed. No significant hearing time was occupied in relation to either cross-appeal, with the result that no order for the costs of the cross-appeals should be made.

Orders

66. For the reasons given above, the appeal should be dismissed with costs. Each of the cross-appeals should be dismissed with no order as to costs.

67. GLEESON JA: I agree with Macfarlan JA.

68. GARLING J: As the reasons for judgment of Macfarlan JA show, the particular facts which arise in this appeal are unusual. Thus the question of the existence and content of the duty of care, and the issues surrounding the alleged breaches of duty are quite idiosyncratic. However, what is plain is that there are dangers in assuming that a non-delegable duty of care owed by an employer to an employee can, or ought to, be readily imposed on parties to a contractual arrangement which is not an employer/employee relationship.

69. The High Court of Australia in Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22; [2007] HCA 6 declined to extend the existing categories of non-delegable duty to road authorities. As Kirby J said, in a somewhat analogous circumstance to the present, at [98]:

“The use of non-employee contractors has greatly expanded in Australia in recent times, due to … the resulting ‘out-sourcing’ of functions to independent contractors that operate for their own profit. The general rule is that the principal is not liable for the wrongs done by an independent contractor or its employees. It is not easy to see why an exception should be specifically carved out allowing the person injured to recover … in addition to the normal rights that the person enjoys against the independent contractor posited as the effective cause of the wrong. In particular, it is difficult to see why the general policy of the law that the economic cost of the wrong should be borne by the legal entity immediately responsible for it should not be enforced in this case given the strong reasons of economic principle and social policy that lie behind that rule.”

70. I agree with the judgment and reasons of Macfarlan JA. I agree with the orders which he proposes.

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Amendments

10 October 2016 - COURTS AND JUDGES added to catchwords field.

Decision last updated: 10 October 2016