Mr Gulic (the plaintiff) was injured whilst working as a driver of a prime mover on behalf of Boral Transport Pty Ltd (Boral), supplying bricks and pavers to building sites throughout New South Wales. The plaintiff was employed as a driver of the prime mover owned by GMG Transport Pty Ltd (GMG), of which he as the sole director and shareholder, and was contracted by Boral for the provision of these cartage services.
As part of the agreement between the GMG and Boral, Boral was to supply a “serviceable body” and a trailer for installation on the plaintiff’s prime mover, with GMG obliged to mechanically maintain and repair the body at its own cost (the Agreement).
The trailer itself included three gates (hinged horizontally), approximately 3 metres in length and 1.3 metres high, aligned either side of the trailer. The force required to lift one of the gates into an upright position was in the order of 20-23 kilograms. To lock the gates in an upright position, it was necessary to align them with the removable posts that separated each gate, so that the pins on the posts would protrude through holes in the gates and turned to lock the gates in position.
Boral had worked with Barker Trailers Pty Ltd (Barker) to design and install the gates. Barker had retained Prancer Enterprises Pty Ltd (Prancer) to undertake repairs under the 12-month warranty provided by Barker in respect to the gate system.
In July 2009 the plaintiff complained about the difficulties associated with closing and securing the gate to Boral. Boral arranged for the plaintiff’s truck to be repaired by Prancer in August 2009.
Within 1 month of having the prime mover returned to him, the plaintiff again reported difficulties with securing the gate. The prime mover was again left with Prancer for repair in January 2010.
It was the plaintiff’s evidence that the problem with the gate was worse after this latest repair attempt by Prancer.
On 4 February 2010 the plaintiff suffered injury when he lost control of the gate he was attempting to close and lock, resulting in the gate falling onto his helmeted head and shoulder.
The plaintiff commenced proceedings against Boral on the basis that, amongst other things, it breached its duty of care to him as a result of the negligent design, manufacture and repair of the gates and their locking systems.
Boral brought a cross claim against GMG in relation to, amongst other things, an indemnity under the Agreement. GMG in turn issued a cross claim seeking an indemnity in respect to workers compensation payments it made to the plaintiff.
The plaintiff’s unchallenged evidence was that the accident arose as a result of the bent character of the post, to which the relevant gate was to be locked.
In his judgment of 11 May 2015, which neglected any findings as to breach of duty of care or damages, Maiden DCJ found:
- the duty of care owed by Boral to the plaintiff was one of employer/employee because he was under Boral’s direction effectively at all times in terms of how the work was carried out; and
- There was no medical evidence that identified the cause of the pain that the plaintiff stated he felt in his left shoulder immediately before he dropped/let go of the gate.
His Honour concluded that the plaintiff’s injuries were not causally related to any negligence in relation to the relevant gate or post (causation).
The plaintiff appealed his Honour’s decision with respect to the finding on causation.
NSW Court of Appeal
McFarlan JA, with Gleeson JA and Garling J agreeing, took a different view to Maiden DCJ on causation, finding in favour of the plaintiff. However, his Honour ultimately found against the plaintiff with respect to breach of duty of care by Boral.
Duty of Care
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”.
The Court found that this duty was appropriately tailored to the circumstances of the case, and that there was no difference between this and Boral’s obligations pursuant to the Agreement.
Given the circumstances of the matter, the plaintiff ultimately conceded that this duty was delegable, and not forming part of an employer’s duty to its employee. In particular, Boral was able to discharge the abovementioned duty by engaging another person who was competent and qualified to perform the task (in this case, Barker and Prancer). This was particularly so in light of the plaintiff’s allegations that the posts were negligently designed, manufactured and repaired.
Breach of Duty of Care
McFarlan JA, considered section 5B of the Civil Liability Act 2002 (NSW) (CLA), noting that this section was primarily concerned with the question of whether a person who owes a duty to another would, acting reasonably, have taken precautions against a foreseeable risk of harm to the other and which has come to pass.
In considering the application of the section it is important to appropriately identify the relevant risk of harm.
Risk of Harm
The plaintiff’s evidence as to the mechanism of the accident was that his injury arose in the effort of slamming the gate to bring it to close with the bent post. This was quite distinct from the action of raising the gate to its upright position where issues of weight and manoeuvrability may have been relevant to the risk of harm.
In light of that evidence, McFarlan JA found that the appropriate risk of harm was that of injury to a driver arising in the course of attempting to close and lock a gate with a distorted post.
Having identified the risk of harm, McFarlan JA was then able to consider whether it was foreseeable by Boral in the circumstances.
Foreseeability of the Risk of Harm
McFarlan found that the prospect of the post become bent or distorted, thereby giving rise to the abovementioned risk of harm, may not have foreseeable given that the posts were removable during loading and unloading operations.
However, this was not a chief concern as the plaintiff had told Boral about the distortion of the post and difficulties with locking the gate before his accident occurred, albeit not in the context of safety or potential injury.
The question then became whether a reasonable person in the position of Boral would have taken precautions to reduce or obviate the risk of harm
McFarlan noted that the plaintiff’s reports to Boral prior to his accident had been in relation to difficulties closing the gate, rather than any specific concerns regarding safety and potential injury. Accordingly, and in light of the evidence given at hearing, Boral was entitled to believe that the complaints were only related to inconvenience and delay caused by the gate mechanism.
McFarlan found that in those circumstances a reasonable person in Boral’s position would not have perceived that there was relevant risk of injury, or at least not one of sufficient significant to warrant precautions being taken beyond the steps that were taken by Boral to have deformed post repaired.
McFarlan concluded that, in those circumstances, there was no breach of duty of care owed to the plaintiff, and found in favour of Boral, dismissing the plaintiff’s appeal.
This case is a reminder that:
- There is a danger in assuming that a non-delegable duty of care owed by an employer to an employee can, or ought to, be readily imposed on parties to a contractual arrangement which is not an employer/employee relationship;
- In considering breach of duty of care and the application of section 5B of the Civil Liability Act 2002 (NSW), it is of critical importance to appropriately identify the risk of harm. This will provide a proper basis to answer the remaining questions posed by section 5B as to foreseeability, and what precautions a reasonable person in the position of the defendant ought to have taken in light of that risk. It will also assist in identifying prospective defendants.