The recent Court of Appeal decision in De Martin & Gasparini Pty Ltd v Bartlett [2025] NSWCA 56 has reaffirmed the need to carefully analyse the requirements of vicarious liability.

Mr Bartlett was engaged to provide concreting services to De Martin & Gasparini Pty Ltd (DMG) under a labour hire arrangement. Mr Bartlett had worked as a concreter and linesman for 19 years at the time of the incident. 

On 26 April 2018, Mr Bartlett, and another worker (unidentified) were instructed to move a concrete hose (weighing between 45kg - 50kg). Mr Bartlett alleged that the unknown worker picked up the hose and began to walk before he was ready to do so, causing him to sustain a lumbar spine injury.

Mr Bartlett commenced proceedings in the District Court of NSW seeking damages against DMG and the Workers Compensation Nominal Insurer (WCNI) alleging that both defendants were negligent.

The primary judge accepted that the elements of negligence were made out, and section 5B of the Civil Liability Act 2002 (NSW) was satisfied.

The primary determination subject to appeal was the primary judge's finding that it was not necessary to distinguish whether the unknown worker was a labour hire employee or host employee of DMG, as DMG exercised control and supervision over both him and Mr Bartlett regardless. As a result, DMG was vicariously liable for the unknown worker's negligence. 

Liability was apportioned to DMG at 90%, and 10% to the WCNI. 

DMG appealed with the Court (Leeming JA, McHugh JA, and Price AJA agreeing) allowing the appeal, in part. While there were both liability and quantum grounds of appeal, this article focusses only on liability grounds and more particularly, vicarious liability.

In considering vicarious liability, the Court referred to the analysis of Basten AJA in Mt Owen Pty Ltd v Parkes at [40]-[49] which observed the following relevant factors requiring consideration:

"a)    The contract of employment of the worker;

b)    The contract pursuant to which the services of the worker are transferred to a third party, and

c)     Evidence as to how the work is undertaken and controlled by the third party."

Not knowing the identity of the unknown worker made it difficult to undertake this analysis. The question was whether there was evidence of control by DMG and if that control was sufficient for a finding of vicarious liability? The primary judge's findings in this regard were held by the Court of Appeal to be in error. 

Instead, the Court undertook an analysis of the site Day Sheet which showed that Mr Bartlett and three DMG employees were 'pumping', five DMG and four Civic employees were 'concreting'. Mr Bartlett also gave evidence that Civic workers only "occasionally" moved the piping. In other words, rather than a finding that DMG were vicariously liable for the unknown worker's act because of an asserted level of control over the worksite, the evidence permitted an inference to be drawn that the unknown worker was in fact an employee of DMG. Vicarious liability could then be inferred following that finding.

What if the unknown worker was an independent contractor? Did DMG have a sufficient level of control for it to be found vicariously liable for the unknown worker's actions in the event that the Court of Appeal reached a different finding on the likelihood of him being a DMG employee? 

The Court of Appeal looked at the specific task that was being undertaken noting that it was a task which Mr Bartlett and those engaged to undertake the work, had specialised knowledge and experience in performing. A reasonable person would communicate. The burden of this precaution was negligible. DMG did not direct them in how to perform the task. 

The Court determined that DMG could not be vicariously liable if the unknown worker was a contractor and where the casual act of negligence occurred when carrying out a task well within the expertise of the worker as there was no direction in relation to the manner of its performance. In such instance, vicarious liability should not be found.

Continuing with the Court of Appeal's comment about reasonableness of expecting communication between the workers, the Court also found that the trial judge's finding of no contributory negligence disclosed error as Mr Bartlett was personally involved in the task and himself could have communicated with the unknown worker not to move until they were both ready. The Court of Appeal assessed contributory negligence at one third.

This decision is a reminder that only one person can be vicariously liable for the actions of another. It is otherwise relevant to consider the level of control over the task the worker was performing to determine if there is any shift of that liability from the traditional employer. The Court referred to the decision in Mt Owen Pty Ltd v Parkes [2023] NSWCA 77 in which the Court followed Kondis v State of Transport (1984) 154 CLR 672. In Kondis the High Court said:

"the nature and extent of the control transferred to the defendant or retained by the employer determines whether there is a shift of liability from the employer to the defendant…"

The decision also reminds us that the circumstances of the incident will play a role in deciding the issue of contributory negligence. This was not a systems case. It was relevant that in undertaking the task, it was clear to both workers that there needed to be coordination and communication to reduce or eliminate the risk of harm.

Please contact our Insurance Team if you need assistance identifying or managing any of the issues discussed above.