Issues: liability only trial as to the circumstances of the incident; content of the duty of care and whether a private cause action applied in respect of the Occupational Health and Safety Act 2000 (NSW) and Regulations.
The plaintiff carpenter was severely injured on 12 February 2004 when he fell at a home construction site from the ground floor in the kitchen to the basement hitting and landing on his head, in circumstance that it was unclear as to how the incident happened. The plaintiff because of his head injury had no recollection of the incident and it was not witnessed. The plaintiff was an Irishman on a working holiday that applied and obtained an ABN and business name “A1 Carpentry”. The plaintiff contracted to the third defendant and for forensic reasons his claim was initially based on being a contractor and then a deemed employee. The first defendant was the builder of works being performed at a residential property in Vaucluse NSW owned by Mrs Rigby. The first defendant contracted with the third defendant. The second defendant was the owner’s supervisor of the works and the claim against him whilst not abandoned was only ‘faintly’ pressed.
The plaintiff’s case was he was walking through the kitchen area when he fell because the flooring was not secured to the joist and the builder knew or ought to have known same. The claim factually turned on whether the entrance was barricaded with tape and plywood. In addition, there was in dispute as to why the plaintiff was in the kitchen area. The argument being that he needed to access a power source; however, there was a power source outside the residence, which had been used previously.
The plaintiff claimed in negligence (in the alternative of contractor/employee) and breach of statutory duty. The plaintiff’s claim was dismissed primarily on the factual finding that the area was barricaded and taped, which was a sufficient discharge of the duty of care, even against the third defendant (deemed employer) on the basis there was no reason for the plaintiff to be in the kitchen to perform his duties.
There was also found by reason of legislative amendment to be no private cause of action for breach of the alleged statutory duty.
It is a sobering reminder of the weight which will be given to appropriate and adequate warnings, contrasting duties and importance of factual findings in cases where the plaintiff does not have an independent recollection of the incident giving rise to the injuries.
Brisbane Barrister – David Cormack