Thinking | 2 July 2018
Nailing duty of care
A 28 year old worker was awarded $1,486,783 for injuries sustained when the defendant’s employee’s handheld nail gun fired a nail that penetrated through a wall into the plaintiff’s head. The plaintiff’s employer was able to seek a complete recovery from the defendant, pursuant to section 151Z after the court found that the employer did not breach its duty of care to the plaintiff.
On 9 November 2012, the plaintiff was working as a builder’s labourer when Mr Box, a worker on an adjoining property, fired a nail from an explosive-powered nail gun whilst trying to affix a timber block onto a common wall located in the site where both men were working. The nail from the nail gun struck the plaintiff in the left temple, which resulted in the plaintiff suffering a spinal cord injury, ongoing migraines, impairment of balance and reduced control over his lower limbs.
The plaintiff commenced proceedings in the New South Wales Supreme Court claiming damages for negligence from Mr Box’s employer, AEA Constructions Pty Ltd (AEA). The plaintiff’s employer, Building Partners Pty Ltd (employer) claimed a complete indemnity from AEA for payments it had made to the plaintiff pursuant to section 151Z(1)(d) of the Workers Compensation Act 1987 (NSW).
The trial judge, Justice Fagan, found that Mr Box knew that the Ramset explosive powered nail gun he was operating at the time had the capacity to fire nails that could penetrate dense materials such as masonry and bricks. His Honour found that, Mr Box, as the operator of the nail gun, and AEA, as the company on whose behalf he was using the nail gun, owed a duty to the plaintiff to exercise care with respect of a possible nail strike, particularly in circumstances where Mr Box and AEA knew, or ought to have known, of the risk of injury arising from a nail passing through the common wall.
His Honour further found that the risk of a possible nail strike occurring was not an insignificant one. His Honour determined that Mr Box and AEA owed a duty to exercise care with respect to this risk. That duty extended to having Mr Box ascertain whether any person was in the path which a nail might follow, in the likely event it should pass through the wall. It also required Mr Box or AEA warning the plaintiff to move to a safe location prior to Mr Box firing the nail gun. His Honour made no reduction for contributory negligence as he found that the plaintiff was unaware of the activities being performed by Mr Box on the other side of the common wall as neither Mr Box nor AEA had issued warnings to the plaintiff or his employer about the type of work that was being performed.
With respect to the employer’s recovery claim, his Honour held that there had been no breach by the plaintiff’s employer of its duty of care as it did not know the explosive nail gun was being used nor was it aware that the plaintiff was at risk. Accordingly, his Honour allowed a complete recovery by the employer against AEA pursuant to section 151Z (inclusive of interest).
When assessing damages, Justice Fagan found that whilst the plaintiff’s injuries and disabilities were caused by the subject accident, his existing degenerative spinal condition would have led to some of the symptoms and necessary surgery at some point. The damages for non-economic loss and future economic loss were discounted to reflect this.
Where an employee is undertaking works which the employee knows or ought to know carries a risk, their employer should similarly be aware of that risk and exercise reasonable care accordingly. Alternatively, if an employee is reasonably unaware of a risk that they are exposed to, it is highly likely that their employer may be similarly unaware of that risk. Essentially, the knowledge of a worker will be imputed to the employer.
Wharekawa v AEA Constructions Pty Ltd; Building Partners Pty Ltd v AEA Constructions Pty Ltd  NSWSC 684
This article was written with the assistance of Cara Montague, Law Graduate.
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