By: Angela Winkler and Chad Farah

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

At a glance

• The Court of Appeal upheld that DMG was vicariously liable for the unidentified worker’s negligence, based on circumstantial evidence showing the worker was likely DMG’s direct employee.
• The Court overturned the trial judge’s finding and held Mr Bartlett was 33% responsible due to his failure to coordinate the lift, despite his experience.
• Future economic loss and domestic assistance damages were reduced in line with medical evidence and market rates, reinforcing an objective and evidence-based approach to compensation.

Background

On 26 April 2018, 36-year-old Dustin Bartlett was a concreter and linesman working on a building site in the Sydney CBD under a labour hire arrangement. He injured his lower back while moving a long and heavy rubber pipe for a concrete pour when “the other worker picked up [the pipe] and began walking at a fast pace before [Mr Bartlett] was ready.”

Mr Bartlett sued the host employer, De Martin & Gasparini Pty Ltd (DMG), in the Supreme Court of New South Wales, along with the workers compensation nominal insurer after his labour hire employer was deregistered (collectively, the Employer).

Mr Bartlett was successful at trial against both defendants. The defendants had crossed claimed against each other and liability was ultimately apportioned by the primary judge at 90% for DMG and 10% for the Employer.

DMG appealed against the finding of its negligence and, in the alternative, argued for a finding of contributory negligence and/or a reduction of the damages awarded to Mr Bartlett. The primary judge’s liability apportionment between DMG and the Employer (90/10) was otherwise not disputed.

Evidence at trial

In the leading judgment, Leeming JA noted what Mr Bartlett’s had said in his evidentiary statement, including that he could not recall the name of the worker whom he blamed for the incident. It was also noted that opposing counsel’s cross-examination of Mr Bartlett at trial gave him little opportunity to elaborate on the evidence, so the “other worker” was never identified.

What the cross-examination did establish was that Mr Bartlett was an experienced and autonomous worker who had done thousands of similar lifts in his 19-year career, with the following exchange with opposing counsel being relevant:

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.

DMG’s records for the date of incident indicated the presence of the following labourers on site:

• 8 direct employees from DMG,
• 4 employees from a separate labour hire company named Civic Contractors Pty Ltd (Civic), and
• Mr Bartlett, who was neither employed by DMG nor Civic.

Mr Bartlett conceded on cross examination that Civic’s employees “occasionally” lifted the pipes.

Appeal outcome

DMG’s liability

Leeming JA concluded that the mystery worker was indeed negligent within the meaning of section 5B of the Civil Liability Act 2002, and that the relevant risk of harm (which was not expressly identified by the primary judge) 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”.

There was still no definitive evidence about who employed the mystery worker at fault. One question was whether Civic’s employees could be treated as if they were direct employees of DMG, and for whose negligence DMG would be vicariously liable in any event. This had been the proposition adopted by the primary judge that allowed a finding of negligence against DMG even if it did not directly employ the mystery worker.

Citing Kondis v State Transport Authority (1984) 154 CLR 672 at 692 and Mt Owen Pty Ltd v Parkes [2023] NSWCA 77, Leeming JA confirmed that only a single person can be vicariously liable for the acts of another in Australia and that vicarious liability does not generally flow from the negligence of an independent contractor (as opposed to an employee). That is unless the employer had transferred authority and control over an employee’s work tasks to another party (e.g. to a host employer, like DMG).

Determining whether such a transfer occurred is an evaluative exercise based on the contractual matrix and unique facts of each case. Leeming JA went on to accept DMG’s submission that no such transfer had occurred in this case, concluding at paragraph 40:

“[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.”

Leeming JA conversely refused to accept DMG’s submission that there was no way for the primary judge to infer, on a balance of probabilities, that the mystery worker was directly employed by DMG: Firstly, it was mathematically probable that the other worker was one of the 8 employees directly employed by DMG (out of 13 who were working on the site that day). Secondly, the “Day Sheets” from the date of incident suggested all Civic employees were on separate duties not involving the concrete pump performed by Mr Bartlett. Thirdly, Mr Bartlett’s evidence about his observations over 2 or 3 months on site was that Civic’s employees only “occasionally” moved the concrete pipes.

The Court of Appeal therefore reached the same conclusion as the primary judge on liability, namely that DMG was vicariously liable for the negligence of the mystery worker, albeit for different reasons. Put simply, the mystery worker was found to be a direct employee of DMG whereas, on the facts of this case, DMG would not be vicariously liable if he wasn’t.

Contributory negligence

The primary judge saw no basis for a finding of contributory negligence against Mr Bartlett. The Court of Appeal disagreed. Leeming JA found that the experienced Mr Bartlett was one-third culpable and summed up the Court’s reasoning at paragraphs 52, as follows:

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 [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.

Damages

The medical experts had agreed that Mr Bartlett has a pre-existing degenerative condition that would have affected his functioning within 12 years from the date of incident even without injury. Despite this, the primary judge had found he only was entitled to damages in respect of full loss of earnings to the date of trial (6 years) followed by a further 18 years (to retirement age) based on an assumed 60% loss of earning capacity. The total was reduced by 15% for vicissitudes.

The Court of Appeal revised the assessment of past and future economic loss to be more in line with the expert medical evidence by allowing damages in respect of full loss of earnings for the first 12 years from the incident but followed by damages based on an assumed 40% loss of earning capacity to retirement age (not 60%). Leeming JA said at paragraph 61 that this was “principally reflective of [Mr Bartlett] being unable to work as a concreter [after the first 12 years] in any event as a result of his pre-existing condition”.

As to future domestic assistance, there was no dispute as to the primary judge’s allowance of 4 hours per week. The dispute concerned the hourly rate adopted by the primary judge, being $73.62. This figure accounted for services allegedly required on weekends, when hourly rates are higher, and based on the average cost of four service providers arbitrarily referenced in Mr Bartlett’s evidence.

The medical experts had agreed (in a 2022 joint report) that the average local community cost for domestic services was $25 to $30 per hour and for maintenance services $35 to $40 per hour. DMG argued these rates were more appropriate, and 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.”

Referencing the High Court’s decision in Van Gervan v Fenton (1992) 175 CLR 327 at 333, the Court of Appeal confirmed that damages are to be assessed objectively based on what would compensate a plaintiff at the most competitive market rates. Guided by the expert opinions before it, the Court accepted DMG’s submissions but allowed for inflation since the 2022 joint report before revising the future domestic assistance assessment to 4 hours per week at only $45 per hour.

Implications

This decision confirms the principle that inferences can be drawn by a tribunal of fact where there is sufficient circumstantial evidence to reach conclusions going beyond speculation.¹ The concept that the mathematical law of probability may intersect with the common law remains alive.

The Court of Appeal has reaffirmed that a host employer is not automatically liable for the acts or omissions of labour hire workers. There first needs to be persuasive evidence of a quasi-employment relationship between that host and the worker at fault. This depends on a range of factual and contractual factors unique to each case, as does the question of contributory negligence, experienced workers who are injured may not be absolved of personal blame unless it can be shown that the injurious circumstances were entirely outside their control.

The objective nature of the assessment of damages for personal injury has also been underscored. Where possible, a court will aim to balance the need to compensate the injured person with the need to maintain fairness towards the defendant by avoiding extravagance.

Lastly, this decision reminds us of the importance of reference to expert medical evidence when it comes to assessing damages for the future particularly in cases where there are uncertainties surrounding aetiology.