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

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

The first defendant, having direct control over the plaintiff and the other worker, was vicariously liable for the negligent act of the other worker who failed to coordinate a manual handling task of shifting a heavy pipe, causing plaintiff’s back injury. The risk was foreseeable, significant, required precautions, and arose under the defendant’s system and direction. There was no contributory negligence by the plaintiff. Agreed apportionment of liability between the two defendants (90%/10%) was accepted. Full quantum of damages awarded to the plaintiff, less any discounts for vicissitudes and pre-existing pathology for future components only.

Parties
Plaintiff: Dustin Bartlett; First Defendant: De Martin & Gasparini Pty Ltd; Second Defendant & Second Cross Defendant: Workers Compensation Nominal Insurer; First Cross Defendant: Sura Labour Hire Pty Ltd
Jurisdiction
Australia
Judgment Date
17 September 2024
Procedural Posture
Personal Injury—negligence—workplace Accident / Trial—principal Judgment
Outcome
Plaintiff’s claim allowed; judgment for the plaintiff against both defendants, with quantum and orders as set out.
Legal Topics
Negligence, Vicarious Liability, Damages—quantum, Non Delegable Duties
Tort Law Employment Law Personal Injury Negligence Vicarious Liability Damages—quantum Non Delegable Duties

Case Brief

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Parties

Dustin Bartlett

Plaintiff

De Martin & Gasparini Pty Ltd

First Defendant

Workers Compensation Nominal Insurer

Second Defendant & Second Cross Defendant

Sura Labour Hire Pty Ltd

First Cross Defendant

Procedural Posture

Personal Injury—negligence—workplace Accident / Trial—principal Judgment

Legal Issues

  1. 1 Whether the first defendant was vicariously liable for the casual act of negligence by a worker under its direction
  2. 2 Whether the plaintiff’s injury was caused by negligence attributable to the defendants
  3. 3 Appropriate quantum of damages and apportionment of liability between defendants

Ratio Decidendi

The first defendant, having direct control over the plaintiff and the other worker, was vicariously liable for the negligent act of the other worker who failed to coordinate a manual handling task of shifting a heavy pipe, causing plaintiff’s back injury. The risk was foreseeable, significant, required precautions, and arose under the defendant’s system and direction. There was no contributory negligence by the plaintiff. Agreed apportionment of liability between the two defendants (90%/10%) was accepted. Full quantum of damages awarded to the plaintiff, less any discounts for vicissitudes and pre-existing pathology for future components only.

Court Disposition

Plaintiff’s claim allowed; judgment for the plaintiff against both defendants, with quantum and orders as set out.

Orders

  • Verdict for the plaintiff against the first defendant in the sum of $2,597,187.18.
  • Verdict for the plaintiff against the second defendant in the sum of $1,645,876.00.