Gulic –v- Boral Transport Limited  NSWCA 269 (22 September 2016)
The Plaintiff, Mr Gulic, was an employee and Director of GMG Transport Pty Limited (“GMG”). GMG contracted with Boral Transport Limited (“Boral”) to provide haulage services as part of Boral’s business of supplying bricks and pavers to building sites throughout NSW.
The Court of Appeal held on 22 September 2016 that Boral was not liable for an injury that Mr Gulic sustained to his left shoulder on 4 February 2010. The decision is significant for the reasons given by Macfarlan JA in relation to Boral’s duty of care. Ultimately he found that Boral had not breached its duty of care because:
- At its lowest, the risk of injury was not foreseeable.
- At its highest, the risk was not significant enough to warrant intervention beyond that taken by Boral, specifically, the engagement of a competent contractor to effect repairs.
Extracted below are paragraphs 1-4 of Macfarlan JA’s judgment which provides a concise summary one of the gates into an upright position appears to have been in the order of 20-23 kilograms. It was not suggested that this weight exceeded recommended guidelines. To lock the gates in an upright position, it was necessary to align them with the posts on the tray so that pins on the posts would protrude through holes in the gates and could be turned to lock the gates in position.
- On 4 February 2010 Mr Gulic experienced severe pain in his left shoulder when he lost control of a gate he was attempting to close and lock. The gate fell on him, striking him on his helmeted head and shoulder. An arthroscopy of his left shoulder confirmed he had suffered a partial tear to the upper subscapularis tendon.
Mr Gulic sued Boral in the District Court alleging that it was negligent in relation to the design, manufacture and repair of the gates and their locking systems.
At the time of his injury, Mr Gulic was pushing the gate shut with his arm fully outstretched, above shoulder height and felt sharp pain in his left shoulder.
Macfarlan JA identified the risk of harm to be “that of injury to a driver arising in the course of attempting to close and lock a gate with a distorted post” (paragraph 41). In assessing breach of duty of care, Macfarlane JA considered the following facts,
- Mr Gulic said that in 2009 Boral had changed the gates and locking system on his vehicle (and on others in Boral’s fleet). In describing the new locking system, he said that “you had to push [the latch] in … there’s a precise hole you have to push it through … just to close the latch”. To close and secure the gate it was necessary for him 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.
- He described a difficulty with the new system as “bringing [the gate] close to the post and … bringing [the] latch in. Just the sheer weight of the gates were [sic] a problem … the problem is bringing [the gate] up close enough to be able to close the latch normally or comfortably”. He said that he told Ms Rose Didivich, Boral’s transport fleet manager, about this problem in July 2009.
- As a result, Ms Didivich arranged for Mr Gulic’s truck to be left with Prancer Enterprises Pty Ltd (Prancer) for repairs on 7 August 2009. Prancer was the entity retained by Barker Trailers Pty Ltd (Barker), the designer and installer of the new gates, to undertake repairs under the 12-month warranty provided by Barker in respect of the new system. Barker was described in the evidence as “a large organisation with a strong reputation”. Mr Gulic’s unchallenged evidence was that Ms Didivich instructed him that he was precluded from conducting any repair work on his truck because, if he did, the warranty might be “voided”. This had the effect of relieving GMG of its repair and maintenance obligations under the Cartage Agreement.
- Within a month of having the truck returned to him, Mr Gulic told Ms Didivich that it was still “hard to bring [the gate] to the post and close the latch” because the “alignment wasn’t right”. In answer, she said that the problem was “widespread” in the sense that other trucks that had undergone the same structural reconfiguration by Barker were “experiencing similar problems”. While the appellant was advised by Ms Didivich that his truck would again be booked in for repairs with Prancer, he was also told that there would be a delay of some months before repairs could be attended to in light of the backlog of trucks also requiring maintenance.
- The appellant’s truck was left with Prancer’s workshop from 19 to 21 January 2010. Upon the truck’s return to Mr Gulic, the problems were, in his view, “probably worse than before”. When asked to specify how, he explained:
In the way that they – the posts were awkward as they were and – and – so what they – what they did they – because their posts were pipes, so what they did, they cut in the bottom and inserted steel rods in the posts and when they welded the posts back on, it’s actually bent the posts even more, so – so when they came back, the posts were even more out of – of [alignment] than before and it was even harder to close than – than before going to the workshop.
Macfarlan JA accepted that “Boral was in fact told by Mr Gulic of the distortion of the post which included the post in question.” (paragraph 43).
It is important to note that the Cartage Agreement provided that GMG was not to perform any modifications to the “body” (of which the gate formed a part) and that Boral maintained ownership of the body.
Macfarlan JA did not accept, as the trial Judge did, that Boral owed Mr Gulic a non-delegable duty of care. He accepted Boral’s formulation of the duty of care, “to provide gates that would not subject experienced, adult user, taking reasonable care for their own safety to an unreasonable risk of injury when using the gates.” (paragraph 34).
Macfarlan JA reasoned that because he did not direct Boral’s attention to any safety issue arising from the defective gate then, “A reasonable person in Boral’s position would not at any relevant time have perceived that there was a relevant risk of injury, or at least not one of sufficient significance to warrant precautions being taken beyond the steps to have repairs performed that Boral took.” (paragraph 53). Boral had discharged its duty of care by engaging apparently competent contractors to effect the repairs.
His Honour’s reasoning is mainly directed toward what a reasonable person in Boral’s position, confronted with the complaints of Mr Gulic, should have taken. His Honour does not make any extensive assessment as to whether the risk of harm per se was foreseeable by Boral. The writer observes that:
- Boral was aware that the gate was difficult to shut.
- Boral was aware that an operator of the vehicle would have needed to reach above shoulder height to latch and close the gate.
- Boral was aware (or ought to have been aware), as a matter of basic ergonomics, that reaching above shoulder height places the shoulder at increased risk of injury. (Caveat – The writer is not privy to the expert evidence lead in support of Mr Gulic’s case but assumes that matter was addressed). At the risk of engaging in semantics, Mr Gulic’s unchallenged evidence included a statement to Boral’s representative that it was difficult to close the latch “comfortably”. In other words, he experienced discomfort closing the gate.
The writer suggests that while the risk of harm may not have been great, it was not insignificant, and therefore foreseeable by Boral.
In relation to ameliorative action, the writer observes:
- The Cartage Agreement demonstrated a high degree of control by Boral. That control was directly relevant to the risk of harm identified by Macfarlan JA.
- When Mr Gulic raised the defects with a representative of Boral, he was specifically told not to effect any repairs or modifications to the gate and to defer to Boral’s contractors who were to effect the repairs.
- The contractors engaged by Boral failed to successfully repair the gate.
Most importantly, Boral was on notice from Mr Gulic immediately prior to his accident that the gate remained defective, in spite of the works conducted by Boral’s contractors.
The effect of MacFarlan JA’s reasoning is that a principle, confronted with a risk of harm, may delegate the task of obviating that risk to a contractor and be absolved of liability even when put on notice that the risk has not been adequately addressed.