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Gulic v Boral Transport Ltd

Gulic v Boral Transport Ltd

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Case Copied 22 September 2016 29 min read

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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:

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: [2016] NSWCA 269
Decision Date: 22 September 2016

CaseChat Overview and Summary

The plaintiff, Mr Gulic, an employee of a subcontractor, brought proceedings in negligence against the principal contractor, Boral Transport Ltd, following an injury sustained during cartage operations. The matter proceeded to the Court of Appeal of New South Wales, with Macfarlan and Gleeson JJA and Garling J presiding.

The central legal issues before the Court of Appeal concerned the scope of the duty of care owed by a principal contractor to an employee of a subcontractor, and whether this duty was non-delegable. Specifically, the court had to consider the nature of the relevant risk of injury, and whether the primary judge erred in finding that the risk of injury caused by posts on a truck was "not insignificant". Furthermore, the appeal raised questions about whether the primary judge had erred in finding that causation was not established, and the implications of the primary judge's failure to make contingent findings on breach and damages when the plaintiff had failed at first instance on causation.

The Court of Appeal ultimately dismissed the appeal. The court reasoned that the primary judge had not erred in finding that causation was not established. The court also held that the risk of injury from the posts was not "not insignificant" in the context of the duty of care owed by the principal contractor. Consequently, the court found no basis to interfere with the primary judge's decision. The notices of cross-appeal were also dismissed.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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: