Principal contractor, employer and worker all liable for injuries caused by an obvious hazard

The recent Court of Appeal decision in Manhattan Homes Pty Limited v Burnett [2024] NSWCA 219 examines the apportionment of liability between a principal contractor and employer, and also provides clarity around contributory negligence principles.

Background

On 27 February 2019, Gary Burnett was carrying a load of tiles between the first and ground floors on a construction site. To do so, he needed to navigate an incomplete set of stairs that had no handrail and was the only means of accessing the ground floor. When crossing a void at the top of the stairs, he stepped onto an unsupported plank. The plank gave way, and he fell approximately three metres causing serious injuries, including traumatic brain injury and spinal injuries. 

Mr Burnett commenced proceedings in the Supreme Court of NSW against:

• Manhattan Homes Pty Limited (Manhattan), the principal contractor of the construction project; and 
• Griswold’s Outdoor Xmas Pty Ltd (Griswold), a subcontractor to Manhattan.  Mr Burnett was the sole director and sole employee of Griswold. 

Manhattan had originally arranged for the void to be covered with floorboards supported by steel joists. However, for reasons unknown, some of the boards were later removed, partially exposing the void. A handrail was intended to be installed on the stairs once complete, but this hadn’t occurred at the time of Mr Burnett’s fall. On the day of the incident, the steel beam support underneath the remaining boards was not present. 

Mr Burnett was successful at trial against both defendants. Manhattan was found 80% liable for removing the void protection from the staircase, failing to install temporary railing around the void and failing to exclude access to the void and incomplete staircase. Griswold was found 20% liable on the basis it was aware of the void but didn’t bring the issue to Manhattan’s attention and permitted Mr Burnett to work in unsafe conditions. 

There was no finding of contributory negligence, as the trial judge considered the fall to have occurred due to momentary inadvertence by Mr Burnett, rather than any negligence on his part.

The trial judge awarded Mr Burnett $2,234,467.73 plus costs[1]. 

Manhattan appealed the findings of contributory negligence, apportionment and damages. 

Apportionment

The Court of Appeal unanimously agreed with the Supreme Court’s 80:20 apportionment split. 

Manhattan, as the principal contractor, was in occupation and had control of the site. It was principally responsible for construction of the residence and for the safety of all personnel engaged by it. This included the scheduling of works and the interaction between various trades. 

In comparison, Griswold had only been on site on the date of the incident. Its knowledge and appreciation of the risk was informed only by Mr Burnett’s observation of the unsupported boards. Responsibility for maintaining safe means of access to and from the location fell ‘squarely upon Manhattan as the occupier of the site as opposed to Griswold’s whose responsibilities were temporally and physically much more limited’. 

Contributory negligence

The Court of Appeal unanimously set aside the primary judge’s finding of no contributory negligence. This was on the basis that:

• Mr Burnett accepted during cross-examination that he knew and was aware of the site conditions that caused his fall (ie that the boards partially covering the void were not supported); 
• the unsupported void covering was an obvious risk; and
• inadvertence, inattention or misjudgement can still amount to contributory negligence if it's not ‘excusable’ in the circumstances. 

Here, Mr Burnett failed to apply his recent knowledge of the obvious risk of walking on the unsupported boards, neglecting to heed what he already knew. Mr Burnett gave evidence that the missing boards weren’t on his mind when he descended the stairs, which the Court found provided insufficient excuse as to why he should avoid the consequences of failing to utilise that knowledge to avert the danger, as a reasonable person in his position would.  

The Court applied a discount of 20% for contributory negligence.