Owner-driver loses Boral appeal case

Boral found to have delegated responsibility for duty of care to trailer manufacturer


An injured owner-driver has lost a New South Wales Court of Appeal case against fleet owner Boral due to its duty of care having been passed to another party.

The judgement, which comes with costs, appears to cast more light on where duty of care might end regarding equipment found to have subsequently caused injury.

The driver, Marinko Gulic, had appealed an earlier finding that responsibility for his shoulder injury due to a faulty trailer gate had actually resided with repair firm Prancer Enterprises, which manufacturer Barker Trailers retained for work under its trailers’ warranties.

This was despite Boral having been involved in the design of the trailer and its heavy gates, one which was found to have caused the injury.

The three judge appeals bench note that "Boral’s duty was delegable, that is, it was able to be discharged by engaging another person who was apparently competent and qualified to perform the task".

"Here, Barker was engaged to design the new equipment and there was evidence that it was ‘a large organisation with a strong reputation’," they continue.

"There was no evidence to suggest that it was other than appropriately experienced and competent to perform the tasks of design, manufacture and installation.

"The fact that Boral collaborated with Barker in the design … does not preclude Boral from asserting that the design of the new equipment was Barker’s responsibility.

"Understandably, Boral communicated to Barker what was required and discussed the possible alternatives with Barker.

"Nevertheless the evidence, taken at its highest, does not suggest that that relieved Barker from ultimate responsibility for what was done."

Not helping the driver’s case was that his expert engineer and designer admitted he had no concerns about the gates’ design.

Evidence had been heard that Boral had acted on the driver’s complaints that the gates were difficult to close due to the removable posts they were attached to having been bent.

Meanwhile, though the owner-driver was found to be in an employee relationship with Boral, one of the judges commented that the issues of this case were "unusual" and "idiosyncratic".

"However, what is plain is that there are dangers 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," he observes.

The judge then quotes then High Court judge Michael Kirby in the 2007 Leichhardt Municipal Council v Montgomery case, where the opportunity to extend the existing categories of non-delegable duty to road authorities was declined.

"The use of non-employee contractors has greatly expanded in Australia in recent times, due to ... the resulting ‘out-sourcing’ of functions to independent contractors that operate for their own profit," Kirby wrote.

"The general rule is that the principal is not liable for the wrongs done by an independent contractor or its employees.

"It is not easy to see why an exception should be specifically carved out allowing the person injured to recover ... in addition to the normal rights that the person enjoys against the independent contractor posited as the effective cause of the wrong.

"In particular, it is difficult to see why the general policy of the law that the economic cost of the wrong should be borne by the legal entity immediately responsible for it should not be enforced in this case given the strong reasons of economic principle and social policy that lie behind that rule."



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