Keywords
Civil Liability Act 2002 (NSW), ss 5B, 5D, 5F, 5G, 5H, 5I, 5R, 5S – Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5 – Workers Compensation Act 1987 (NSW), s 151Z – Negligence – Duty of care by head contractor – timber cover removed – replaced with plastic sheet – fall risk – lack of adequate fall protection – Contributory negligence – Plaintiff’s removal of timber cover and fall due to inattention.
Facts
Mr Daher, a carpenter, was working under a subcontract between his company, CDM Contractors Pty Ltd, and Gold & Eagle Constructions Pty Ltd (trading as Renovate8) (“Gold & Eagle”). The property was owned by Steven Miller, who had engaged Gold & Eagle to manage renovations which included, inter alia, works above a cellar with flooring three metres below the area of work.
Access to the cellar was provided via a stairwell opening, initially covered by a wooden plank, timber, and plywood slab. This opening was intended to facilitate access to the cellar upon completion of the renovations.
Mr Daher alleged that Gold & Eagle and Mr Miller removed the plywood cover and replaced it with plastic sheeting. On 20 August 2019, while performing his contracted work, Mr Daher stepped onto the plastic sheeting, fell three metres into the cellar, and sustained a significant fracture to his left ankle, requiring surgery and the insertion of screws.
Decision
Harrison CJ, decision delivered 9 December 2024.
Judgment in favour of Mr Daher against Gold & Eagle, reduced by 30 per cent for contributory negligence. The claim against Mr Miller was dismissed.
Damages were deferred, pending calculations of Mr Daher’s past and future loss of superannuation, Fox v Wood adjustments, and Section 151Z considerations under the Workers’ Compensation Act 1987.
Ratio
Competing versions – who removed the plywood cover?
The Court examined conflicting evidence regarding the removal of the plywood cover, which had been bolted over the penetration as a secure method of minimising the risk of falls.
Mr Miller denied removing the plywood cover and provided a credible explanation, asserting that the plywood protected his wine collection in the cellar from debris. His evidence was supported by his physical limitations, stemming from a prior injury, which made it implausible for him to affix plastic sheeting to a concrete slab with nails.
In contrast, Mr Daher, an experienced carpenter, was capable of performing the task. The Court noted inconsistencies in his evidence during cross-examination. For instance, he failed to coherently explain how Mr Miller removed the plywood or what tools were used. Ultimately, the Court rejected Mr Daher’s account and concluded that he had likely removed the plywood cover and replaced it with plastic sheeting.
Negligence
The Court held that Gold & Eagle had breached its duty of care to Mr Daher by failing to take reasonable precautions to guard against the risk of falls at the worksite, which it controlled and managed. Specifically, it failed to ensure that the unguarded penetration in the slab was adequately secured.
While Mr Miller was the owner and occupier of the premises, the Court noted that he was not in control of the worksite. The Court found that Mr Miller had no obligation to cover the penetration and was entitled to rely on Gold & Eagle to do so.
Contributory Negligence
Whether Mr Daher removed the cover or witnessed its removal, the Court held that he knew the penetration was only covered by plastic. Further, Mr Daher did not misjudge a risk he had assessed but was momentarily inattentive when stepping onto the plastic instead of the surrounding slab.
The Court found no credible evidence that Mr Daher was distracted by his work, overwhelmed by repetitive tasks, or affected by fatigue at the time of the incident. Instead, the Court determined he failed to take reasonable care to avoid a known danger, such as walking around the penetration.
The Court held that Mr Daher’s inadvertence or inattention did not shield him from a finding of contributory negligence, which was assessed at 30 per cent.
Obvious Risk – Sections 5F, 5G, and 5H
The Court found the risk of stepping into the penetration to be an obvious one but concluded that Mr Daher’s fall did not result from him ignoring or consciously taking that risk.
Inherent Risk – Section 5I
The Court determined that the risk of falling through an unguarded penetration in a suspended concrete slab and sustaining injuries from a three-metre fall was not an inherent risk. The risk could have been mitigated through the installation and maintenance of a physical barrier, such as a handrail
Damages
Section 151Z
The Court held CDM Contractors Pty Ltd liable to Mr Daher as his employer, despite his dual role as sole director and his contributory negligence. This finding was consistent with the High Court’s reasoning in Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28, confirming that an employer’s liability is not negated by the employee’s dual roles or negligence.
Liability was apportioned under Section 5 of the Law Reform (Miscellaneous Provisions) Act 1946 as: 12 per cent to CDM Contractors and 88 per cent to Gold & Eagle, reflecting their respective contributions to the injury.
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