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 hamperedLegislation 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 78Category: Principal judgment Parties: Marinko Gulic (Appellant)
Boral Transport Ltd (First Respondent/Cross-Respondent)
Workers Compensation Nominal Insurer (Second Respondent/Cross-Appellant)Representation: Counsel:
Solicitors:
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)
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:
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- Case
- [2016] NSWCA 269
- Decision Date
CaseChat Overview and Summary
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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