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Back to basics: revisiting contributory negligence and breach of duty of care

  • Newsletter Article
  • Published 07.05.2020

Hallmark Construction Pty Ltd v Brett Harford; Copeland Building Services Pty Ltd v Hallmark Construction Pty Ltd; Hallmark Construction Pty Ltd v Harford Transport Pty Ltd [2020] NSWCA 41 (17 March 2020)


The worker was a truck driver delivering a load of building blocks to a construction site in the early hours of the morning (before dawn). On arrival, the builder’s supervisor, Mr Isaia, directed the worker to an area where he could unload the blocks. There was a wooden pallet lying on the ground. The worker went to clear the area by moving the wooden pallet. Unbeknownst to the worker, the pallet was covering a retention pit. The worker fell into the retention pit, suffering severe injuries.

Trial judge

The worker brought proceedings for damages against Hallmark, the principal contractor on the site. Hallmark brought cross claims against the worker’s employer (Harford Transport); the sub-contractor who engaged the worker’s employer (Copeland); and the sub-contractor who employed Mr Isaia (AMN). The worker and his wife were the directors of Harford Transport.

The trial judge found (confirmed on appeal) that:

  • The worker’s negligence did not contribute to his injury;
  • Harford Transport did not breach its duty of care to the worker to provide a safe system of work;
  • ANM were not vicariously liabile for the negligence of Mr Isaia;
  • Copeland was directly liable in negligence and vicariously liable for the negligence of Mr Isaia;
  • Hallmark was directly liable in negligence.

Court of Appeal’s decision 

The trial judge’s findings were upheld in the Court of Appeal.

The Court of Appeal revisited topics which arise frequently in common law claims, particularly claims involving multiple parties. Most relevantly to common law claims against an employer, the following issues were considered by the Court of Appeal:

  1. When is a worker contributorily negligent?
  2. When is an employer liable when the worker is also a director of the employer?

Contributory negligence

In this case, the Court of Appeal agreed with the trial judge that the worker was not contributorily negligent. This was despite the fact that the worker was working in the dark and that he would have discovered the retention pit if he had simply lifted the pallet to check.

In coming to its conclusion, the Court of Appeal accepted that the worker knew that retention pits are common on building sites, and usually covered by heavy steel plates. However, the Court of Appeal concluded that a reasonable person, knowing what the worker knew, would not have considered the possibility that a retention pit was being covered by a wooden pallet.

The Court of Appeal’s decision is a reminder to evaluate what a reasonable person would have done knowing all of what the worker knew or ought to have known in the same circumstances.

Working director

In this case, the worker was also one of two directors of the company that employed him. The worker was therefore responsible for the ensuring that the system of work was safe. The Court of Appeal confirmed that even though the worker was a director and responsible for the system of work, the actions of the employer need to be considered separately to the actions of the employee.

The Court of Appeal was critical of the trial judge for considering the worker’s actions as both an employer and an employee as one and the same.

The Court of Appeal noted that the worker’s duties involved delivering materials to a variety of sites across large areas. Hallmark and Copeland argued that the system of work developed by the employer should have included:

  • use of a torch or some other system of portable illumination; and/or
  • checking in with the supervisor on the site regarding any specific unloading requirements.

The Court of Appeal found that where an employer does not control the site at which the work is to be undertaken, different standards will apply as between work undertaken at a single site and work undertaken at different sites every day, as with some kinds of delivery drivers. The Court of Appeal did not consider that the employer breached its duty of care to the worker.


The Court of Appeal reviewed some common issues which arise in common law claims against employers. The key takeaways are:

  • When considering whether an employee was contributorily negligent, it is important to evaluate what a reasonable person would have done in the same situation as the employee, knowing what the employee knew, or ought to have known.
  • An employer may be liable for breach of the duty notwithstanding that the system of work was devised, in part, by an employee who was subsequently injured as a result of carrying out the system.
  • When an employee is performing work on multiple delivery sites, as the worker was doing as a truck driver in this case, different standards will apply compared to when an employee is performing regular work at the same location.