Publications

Lessons for injured workers: getting the details right in workplace injury claims – De Martin & Gasparini Pty Ltd v Bartlett [2025] NSWCA 56

Published on July 15, 2025 by Maithri Panagoda AM

On 2 April 2025, the NSW Court of Appeal delivered judgment in De Martin & Gasparini Pty Ltd v Bartlett, a case that reinforces how critical it is to clearly identify legal risks, responsibilities, and relationships in workplace injury claims — especially when labour hire arrangements are involved.

The case centred on a concreter injured during a routine task on a construction site. While the injury itself was not unusual in a physically demanding role, the legal questions that followed — about risk identification, employer responsibility, and contributory negligence — provide valuable guidance for injured workers and their lawyers.

The injury: a simple task gone wrong

Mr Bartlett, a concreter and linesman, was employed by Civic Contractors Pty Ltd, a labour hire company. He was assigned to work on a site managed by De Martin & Gasparini Pty Ltd (DMG), a major concrete contractor.

On 15 March 2023, he and another worker were instructed by a DMG representative to move a large concrete hose, weighing approximately 45 to 50 kilograms. According to Mr Bartlett, the other worker began lifting and walking with the hose before he was ready, jerking him forward before he had secured his grip or fully stood up — resulting in a serious back injury.

The identity of the co-worker was unknown, and Mr Bartlett couldn’t say whether that person was employed by DMG or Civic. At the time, there were 12 workers on site: eight employed by DMG and four by Civic.

The legal claim: who was responsible?

Mr Bartlett brought a negligence claim against both:

• DMG, the host contractor and
• the Workers Compensation Nominal Insurer (WCNI), standing in for Civic (which had since been deregistered).

He alleged DMG had failed to provide:

• a safe system of work
• proper training and supervision
• sufficient workers for the task
• appropriate warnings and
• an adequate risk assessment.

Trial decision: liability without clarity

At first instance, Justice Elkaim in the NSW Supreme Court found that the co-worker’s premature lifting of the hose was a negligent act that caused the injury. However, his Honour did not determine whether the co-worker was employed by DMG or Civic. Instead, he held that the worker had acted under DMG’s supervision and direction “as if” he were a DMG employee.

No finding of contributory negligence was made against Mr Bartlett.

Damages were awarded as follows:

• $2.5 million against DMG and
• $1.6 million against the WCNI.

Liability was apportioned 90% to DMG and 10% to WCNI.

Court of Appeal decision

DMG appealed the trial decision, challenging the findings on negligence, contributory negligence, and damages. The Court of Appeal — led by Leeming JA — upheld the finding of negligence but took a different approach on several important issues.

1. Risk must be identified with specificity

Leeming JA pointed out that the primary judge failed to clearly identify the precise risk of harm involved. It was not enough to refer broadly to a lack of safe systems — the Court emphasised that risks must be framed with precision and tied to the actual harm suffered.

His Honour said the risk should have been identified as “That one of the two men involved in moving the heavy, awkward pipe on an irregular surface might act without regard to whether both were ready, thereby causing physical injury.”

The Court found that this risk was “self-evidently foreseeable and not insignificant” — and while the generality of Mr Bartlett’s pleadings was criticised, the elements of negligence were ultimately made out.

2. Vicarious liability: control and employment must be established

One of the most significant findings on appeal was about vicarious liability — specifically, who employed the negligent co-worker, and whether that relationship triggered legal responsibility.

The trial judge had taken the view that the co-worker was acting “as if” he were a DMG employee. The Court of Appeal found this approach insufficient. Leeming JA stressed that vicarious liability only attaches to one employer, and a party cannot be liable for the actions of someone they don’t employ or control.

The Court examined whether there had been a transfer of control from Civic to DMG. With no employment or labour hire contracts in evidence, the Court relied on circumstantial factors:

• DMG had eight employees on site, compared to Civic’s four
• The task was a routine one that Civic workers did only occasionally
• DMG likely had greater direction over the work.

Citing Shoalhaven City Council v Pender [2013] NSWCA 210, the Court accepted that inferences could be drawn from limited circumstantial evidence.

Leeming JA concluded that the co-worker was more likely than not a DMG employee, and therefore, DMG was vicariously liable.

3. Contributory negligence: a shared duty of care

The Court of Appeal overturned the trial judge’s refusal to reduce damages for contributory negligence.

Mr Bartlett, as an experienced concreter, should have confirmed readiness with his co-worker before attempting to lift the pipe. His failure to do so meant he did not take reasonable care for his own safety. His Honour assessed contributory negligence at 33%, reducing the damages accordingly.

4. Damages reduced: pre-existing injury and reasonable rates

The Court made further adjustments to the damages:

• Future economic loss was recalculated based on Mr Bartlett’s pre-existing back condition. His future earnings were assessed at 40% of average weekly earnings, rather than 60%.
• The cost of future domestic assistance was reduced from $73.62/hour to $45/hour, which the Court found to be a more reasonable market rate.

Key takeaways for injured workers

This case is a powerful reminder that:

• Risks must be clearly and specifically identified — not described in broad or general terms
• Vicarious liability depends on proof of employment and control, not mere assumptions about supervision
• Contributory negligence remains a live issue, even where employer fault is clear
• Damages will be closely scrutinised, particularly where there are pre-existing injuries or unsupported cost claims.

For injured workers — especially in complex labour hire or multi-contractor environments — this case reinforces the value of early legal advice, careful preparation, and clear evidence. Success in a negligence claim depends not just on what happened, but how the claim is constructed and presented. If you’ve been injured at work, reach out to an experienced personal injury lawyer early to help navigate these critical issues.

Please note that this article does not constitute legal advice. If you are seeking professional advice on any legal matters, you can contact Carroll & O’Dea Lawyers on 1800 059 278 or via our Contact Page and one of our lawyers will be able to assist you. If you or a loved one have been injured, use our Personal injury Claim Check now.

Disclosure and important note: This article is based on our own legal research and thinking. Some of its content has been generated with the assistance of artificial intelligence. The authors have checked and approved this article, including the AI generated content, for publication.