Construction site injury – who is responsible?

15 December 2023

Supreme Court finds in favour of construction worker despite having knowledge of site hazard and not reporting it to principal contractor.

In issue

Three main issues in dispute in the proceeding:

  • Whether the risk of the plaintiff falling from the first floor to the ground floor in the stair void was reasonably foreseeable to an entity in the position of Manhattan;
  • Whether it was foreseeable the plaintiff would attempt to use the incompletely constructed stairs; and
  • Whether the plaintiff was contributorily negligent.

The background

On 27 February 2019, Mr. Gary Burnett, sole director of Griswold’s Outdoor Xmas Pty Ltd (Griswold), was seriously injured while working at a construction site where Manhattan Homes (Manhattan), the principal contractor, was building a double storied family home. Manhattan engaged Griswold as a subcontractor for the construction project.

During construction, a stair void on the first floor was initially protected, and a ladder which was covered by a trap door and penetrated the void protection was used for access between the first and ground floors. The void protection had later been partially removed and the ladder was no longer used for access. Rather, an incomplete staircase was installed and used for access between the first and ground floors. No handrails had been installed around the unprotected void and there remained temporary unsupported flooring boards covering the void up to the edge of the stairwell. Mr. Burnett was transporting tiles from the upper floor to the ground as directed, and whilst approaching the stairs, fell from the upper floor to the ground after he stepped onto an unsupported board over the unprotected void.

Mr. Burnett commenced proceedings, seeking damages for his injuries, which he claimed were the result of the negligence of both Manhattan, who had control of the worksite, and his employer, Griswold.

The decision at trial

In determining the issues, the Court made reference to sections 5B and 5C of the Civil Liability Act 2002 (NSW).

Given the unfinished state of the stairs, the fact that no railings were installed around the void and the stairs, and the fact that some of the boards left over the void were unsupported, the risk of the plaintiff falling into the void whilst working on the first floor was reasonably foreseeable and not insignificant for the purposes of section 5B(1)(a)-(b) of the Civil Liability Act 2002 (NSW). In fact, the very significant risk of serious injury which a fall into the unprotected void posed was not only foreseeable to an entity in Manhattan’s position, but actually foreseen. It was precisely due to that risk that the void protection was initially installed.

Furthermore, after the void protection was partially removed and the ladder was no longer in use, it was entirely foreseeable that those who came to site to work on the first floor, including Mr. Burnett, would not only use the incomplete stairs to access the floor, but would then work in the vicinity of the unprotected void. That is because the stairs were then the only readily available means of access to the first floor.

Having regard to sections 5B(1)(c)-(2) and 5C of the Civil Liability Act 2002 (NSW), the Court accepted that the precautions which Manhattan could reasonably have taken to minimise or eliminate the risk included:

  1. Not removing the void protection before the staircase was completed; or
  2. When it was partially removed:
    1. Not leaving boards over the void unsupported; and/or
    2. Preventing access to the unsupported boards by installing temporary railings around the void;
  3. In the absence of temporary railings, requiring continued use of the ladder to move between the first floor and the ground; and
  4. Directing Mr. Burnett not to approach the void or stairs, but to use a bucket and rope to lower the tiles to the ground floor.

On the above basis, the Court held that:

  1. Manhattan owed a duty to Mr. Burnett to exercise reasonable care in relation to the safety of the construction site of which Manhattan had possession, including in relation to the access it provided workers to and from the first floor;
  2. Manhattan had breached the duty by leaving the void and the stairs unprotected; and
  3. The plaintiff sustained serious injuries as a result.

As the employer of Mr. Burnett, Griswold owed a non-delegable duty of care to Mr. Burnett. It was established that Griswold had become aware of the risk of the unprotected void prior to the incident and failed to deal with the risk such as drawing the risk to Manhattan’s attention or refusing to allow Mr. Burnett to work at the site. On that basis, Griswold’s negligence was established. The Court nevertheless accepted that Manhattan was primarily and substantially responsible for the incident, as Manhattan was the entity that controlled the site and was in a position to rectify the risk that the unprotected void posed.

Contributory negligence on the part of Mr. Burnett was not established. Though Mr. Burnett was aware that there were unsupported boards over the unprotected stair void near the incomplete staircase, the Court accepted that Mr. Burnett had approached the stairs while absorbed in his task and on that basis, was merely inadvertent or inattentive to the risk that was ahead of him, as opposed to being negligent. There was no suggestion that he stepped on the unsupported boards prepared to take the risk that he would not fall, in which case, he would undoubtedly be not only negligent but foolhardy.

Ultimately, the Court apportioned 80% liability to Manhattan and 20% liability to Griswold.

Implications for you

The case is a reminder to principal contractors of the risk of leaving voids unprotected whilst work is undertaken on an upper floor, and the precautions that can be undertaken to minimise or eliminate the risk.

At the same time, site workers and employers who become aware of unprotected voids on site should, for safety purposes, immediately report the hazard to the principal contractor.

The case is also a reminder that even if a site worker has knowledge of site hazards such as unprotected stair voids and fails to report the hazard to the principal contractor, that may not be enough to establish contributory negligence. Moreover, where a site worker is absorbed in his or her task and in the course of that is injured as a result of a hazard such as an unprotected void, Courts may not be not prepared to find that the worker was contributorily negligent, but rather merely inadvertent.

Burnett v Manhattan Homes Pty Ltd [2023] NSWSC 1431

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