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

Supreme Court New South Wales

Medium Neutral Citation: Bartlett v De Martin & Gasparini Pty Ltd [2024] NSWSC 1172 Hearing dates: 2 – 4 September 2024 Date of orders: 17 September 2024 Decision date: 17 September 2024 Jurisdiction: Common Law Before: Elkaim AJ Decision: 1. Verdict for the plaintiff against the first defendant in the sum of $2,597,187.18. 2. Verdict for the plaintiff against the second defendant in the sum of $1,645,876.00. 3. The defendants are to pay the plaintiff's costs of the proceedings. 4. On the cross claim by the first defendant against the second defendant, pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 the cross defendant is to contribute 10% of the amount the cross claimant is liable to the plaintiff. 5. On the cross claim by the second defendant against the first defendant, pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 the cross defendant is to contribute 90% of the amount the cross claimant is liable to the plaintiff. 6. No order as to costs on the cross claims. 7. The parties have liberty to restore the matter in respect of any alternative costs order which they might seek and in relation to the variation of the orders concerning the cross claims. Catchwords: NEGLIGENCE — personal injury — vicarious liability — where a worker on a job site injured his back when performing a lift with another worker — whether the other workers act constituted a casual act of negligence which the first defendant was vicariously liable for — where both workers were performing the lift under the direction of the first defendant — held the other workers failure to coordinate the lift constituted a casual act of negligence — held the first defendant is vicariously liable for the casual act of negligence of the other worker as he was performing a lift under the first defendants direction NEGLIGENCE — damages — personal injury damages — whether a pre-existing pathology would have affected the plaintiffs earning capacity — where experts agreed that the pre-existing pathology would have affected his function after 12 years — held the pre-existing pathology reduces the plaintiffs future economic loss calculation after 12 years — damages awarded for non-economic loss, past and future economic loss, past and future medical expenses, past and future domestic assistance, Fox v Wood damages, loss superannuation benefits Legislation Cited: Civil Liability Act 2002 (NSW), ss 5B, 5D, 5E, 13, 15 Law Reform (Miscellaneous Provisions) Act 1946, s 5 Workers Compensation Act 1987 (NSW) Cases Cited: Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 550; [1994] HCA 13 Coles Supermarkets Australia Pty Limited v Haleluka [2012] NSWCA 343 Dederer (2007) 234 CLR 330; [2007] HCA 42 Fox v Wood (1981) 148 CLR 438; [1981] HCA 42 Kondis v State Transport Authority (1984) 154 CLR 672; [1984] HCA 61 McLean v Tedman (1984) 155 CLR 306; [1984] HCA 60 Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1; [2015] NSWCA 90 Roads and Traffic Authority of New South Wales v Synergy Scaffolding Services Pty Ltd v Alelaimat (No 2) [2024] NSWCA 11 TNT Australia Pty Ltd v Christie [2003] NSWCA 47; 65 NSWLR 1 White v Benjamin [2015] NSWCA 75 Category: Principal judgment 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) Representation: Counsel: Mr T F McKenzie (Plaintiff) Mr J Sexton SC (First Defendant) Mr C P O'Neill (First Defendant) Mr P A Rickard (Second Defendant)