Who is the boss and what are they responsible for? – Gulic v Boral Transport Ltd [2016] NSWCA 269

On 4 February 2010 the plaintiff suffered injuries to his left shoulder when he lost control of a gate on a prime mover that he was attempting to close and lock. The gate fell on him, striking his helmeted head and shoulder.

At the time of the accident, the plaintiff was employed as a driver of a prime mover owned by GMG Transport Pty Ltd (GMG).

Agreement between GMG and Boral Transport Ltd (Boral)

On 4 April 2008 GMG entered into a Cartage Agreement with Boral to transport bricks and pavers to building sites. Boral supplied a ‘serviceable body’ and a trailer for installation on GMG’s prime mover. The agreement expressly precluded GMG from altering or otherwise modifying the form of the body or trailer.

The gates on the trailer

The three gates on the trailer were designed and installed by Barker Trailers Pty Ltd (Barker). The gates, approximately three metres in length and 1.3 metres high, aligned with either side of the body’s tray. They were separated by removable posts, were hinged horizontally at the level of the tray, and could be released down from their upright position. The force required to lift one of the gates into an upright position was between 20 – 23 kg. To lock the gates in position it was necessary to align them with the posts on the tray so that the pins on the posts would protrude through the holes on the gates.

According to evidence given by the plaintiff, in order to close and secure the gate it was necessary to use both hands to lift the gate, and once it was upright, hold it with one hand, using the other to close the latch.

Previous complaints

The plaintiff complained about the gates to Boral in July 2009. As a result, Boral arranged for the truck to be left with Prancer Enterprises Pty Ltd (Prancer) for repairs. Immediately after the repairs, the gates were still difficult to close. The truck was returned to Prancer for repairs from 19 – 21 January 2010, and when it was returned the plaintiff said the problems were worse than before. The plaintiff asked Boral to arrange for further repairs, but he did not ask for the repairs to be carried out quickly and he did not cease driving his truck in the interim.

The plaintiff commenced proceedings in the District Court of New South Wales (the District Court) against Boral for breach of duty of care.

In the District Court, the plaintiff alleged that Boral was negligent in relation to the design, manufacture and repair of the gates. By a cross-claim Boral sought damages from GMG for breach of the Cartage Agreement and indemnity pursuant to the Law Reform (Miscellaneous Provisions) Act 1946 (NSW). GMG in turn sought, by cross-claim, indemnity from Boral under the Workers Compensation Act 1987 (NSW).

The trial judge held the duty of care that was owed by Boral to the plaintiff was effectively one of employer/employee relationship because the plaintiff was under their direction effectively at all times in terms of how the work was carried out.

The trial judge found against the plaintiff on the issue of causation on the basis that once the gate was in a vertical position the plaintiff’s left arm and shoulder would have been bearing little or no weight, and therefore, there was no connection between the sudden pain in the plaintiff’s shoulder and the steps he took to close and lock the gate. His Honour did not consider breach of duty, nor did he undertake an assessment of damages.

The plaintiff appealed to the New South Wales Court of Appeal (the Court of Appeal).


The Court of Appeal decision

The Court of Appeal disagreed with the trial judge’s finding on causation, stating that the decision did not take into account the plaintiff’s unchallenged evidence of the way in which his injury occurred, namely that it was necessary to “kind of slam” the gate to close it.

Although the Court of Appeal disagreed with the trial judge’s finding on causation, it held that the plaintiff did not prove breach of duty, and upheld the judgment in favour of Boral. The appeal was dismissed with costs.

On appeal Boral conceded that it owed the plaintiff “a duty to take reasonable care to provide gates that would not subject experienced, adult users, taking reasonable care for their own safety, to an unreasonable risk of injury when using the gates”. Contrary to the decision of the trial judge, the plaintiff conceded that Boral’s duty was delegable, a characteristic not forming part of an employer’s duty to its employee.²

The Court of Appeal confirmed that Boral’s duty was delegable and that it was able to be discharged by engaging another person who was competent and qualified to perform the task.³ In this case Barker was engaged to design the new equipment and there was evidence it was “a large organisation with a strong reputation”.

The immediate cause of the plaintiff losing control of the gate, was his effort in slamming the gate to bring it close to the upright post and thus into a position to enable the locking mechanism to be operated, distinct to the action of raising the gate to the upright position, this having already occurred.

The Court of Appeal held that this risk of harm may not have been foreseeable, at least not as a significant risk, apart from the fact that the plaintiff had complained to Boral before the incident that the posts were distorted.

The Court of Appeal confirmed that Boral acted reasonably and was entitled to rely on the work delegated to its competent contractors. Furthermore, whilst the plaintiff made complaints about closing the gates, Boral was entitled to assume that the issue was one of inconvenience and delay in the loading and unloading of the tray, and not an urgent one to which a safety issue attached. Macfarlan JA held:

In his judgment, Macfarlan JA was critical of the trial judge for not making any contingent findings in relation to whether there had been a breach of duty or damages. As Macfarlan JA took a different view on the issue of causation, his consideration of the whether there had been a breach of duty was “considerably hampered by the absence of appropriate findings” by the trial judge.

Terms of the Cartage Agreement

The plaintiff’s unchallenged evidence was that Boral precluded him from conducting any repair work on the truck because if he did, the warranty with Barker might be voided. This had the effect of relieving GMG of its repair and maintenance obligations under the Cartage Agreement.

This case reiterates that the law does not, in general, impose a non-delegable duty of care on a principal contractor with respect to its subcontractors or employees of subcontractors. Whilst a principal contractor may owe a duty of care depending on the facts and circumstances of the case, the duty of care owed is not analogous to the duty of care owed by an employer to an employee.

Case managers should refer to s 5B of the Civil Liability Act 2002 (NSW) when considering whether there has been a breach of duty of care. Case managers must establish whether there has been a breach of duty before considering whether causation has been established.