De Martin & Gasparini Pty Ltd v Bartlett

(2025) 339 IR 419; [2025] NSWCA 56

NSW Court of Appeal

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Interrogate

Catchwords

1. Negligence
2. › Personal injury
3. › Worker injured on building site
4. › Two-person lift of heavy object
5. › Failure to coordinate movement
6. › Identification of risk of harm under s 5B
7. › Whether findings of fact permitted elements of negligence to be established
8. › Civil Liability Act 2002 (NSW), s 5B
1. Negligence
2. › Vicarious liability
3. › Labour hire arrangements
4. › Transfer of control test
5. › Whether host employer vicariously liable for tortious conduct of worker supplied under labour hire agreement
6. › Whether sufficient that worker performed tasks 'as if' an employee
7. › Whether evidence permitted inference that co-worker was direct employee
1. Negligence
2. › Contributory negligence
3. › Joint task requiring coordination
4. › Whether plaintiff failed to take reasonable care by not confirming readiness before movement commenced
1. Damages
2. › Personal injury damages
3. › Future economic loss
4. › Pre-existing degenerative condition
5. › Assessment of residual earning capacity after onset of pre-existing condition

Quick Take

A host employer is not vicariously liable for the casual negligence of a labour hire worker performing a familiar task within their expertise merely because the worker was treated 'as if' an employee; the requisite transfer of control over the manner of performing the specific negligent act must be established.