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Daher v Gold & Eagle Constructions Pty Ltd (NSWSC 2025)

Key Takeaways

The Court awarded 30% contributory negligence against a working director who was ‘inattentive’ to the risk of injury, and who ‘failed to take reasonable care for his own safety’.

Brief Facts

In 2019, Gold & Eagle Constructions Pty Ltd (GEC) were contracted to undertake renovations at a property in Randwick (the site), owned by Mr M. The worker was a director of CDM Contractors Pty Ltd (CDM) and GEC contracted with CDM for the installation of timber flooring at the site.

The stairs to access the wine cellar on the premises were yet to be installed, creating a large square void space just above the wine cellar. The void was initially covered by a wooden plank, timber and plywood slab (the materials), but at the time of the worker’s fall the materials were removed by GEC and/or Mr M and replaced with plastic sheeting. On 20 August 2019, the worker during the course of conducting works, stepped on the plastic sheeting and fell through the void 3 metres to the cellar floor and was severely injured.

The worker commenced proceedings against both GEC and Mr M.

Facts in dispute

The significant point of contention was identifying who was responsible for removing the materials and installing the plastic sheet.

The worker claimed that Mr M removed the materials and installed a plastic sheet over the void using concrete nails in order to protect the wine from dust.

However, both Mr M and GEC stated that the worker was the one who removed the materials and installed the plastic sheet.

GEC’s director (who was on site on the accident date) gave evidence that as soon as he noticed that the materials had been removed, he directed the worker and Mr M to re-install the materials to cover the void. Once the worker received these instructions, the worker picked up his tools, turned around and fell through the void.

Judgment

Determination of facts/causation

Having considered the differing accounts in evidence, his Honour Chief Justice Harrison determined that the worker was responsible for removing the plywood for the following reasons:

• If Mr M was concerned about protecting his wine collection from dust, he could simply have left the plywood in place as it provided adequate protection.
• Although the worker had the requisite knowledge to know that the plywood did not need to be removed in order for works to occur, his Honour took the view that the worker removed the plywood (on Mr M’s request) in order to preserve Mr M’s access to his wine collection.
• Having removed the plywood, the worker then installed the plastic sheeting in order to protect the wine collection from dust.
• His Honour did not consider Mr M to have any ‘practical building skills’ and could not accept that Mr M would have installed the plastic sheeting.
• The worker was unable to explain how Mr M allegedly removed the plywood even though he claimed to witness Mr M undertake this task.
• Noting Mr M’s ‘limited technical expertise’ his Honour considered it to be unlikely that Mr M would have chosen to use concrete nails instead of tape in order to install the plastic sheet.

Liability

His Honour noted that there was no guardrail around the void to prevent a risk of injury. Although it was GEC’s position that there was not enough time between the removal of the plywood and the installation of the plastic to install a barricade, the Court took the view that the defendants were aware that at some point the plywood would have to be removed in order access the cellar or build the staircase to the cellar. Accordingly, the defendants should have considered the need for a barricade when this access was required and ensured that a barricade was available.

Prior to the worker falling through the void, GEC’s director was present on site and was aware that the void was only covered by a plastic sheet. Accordingly, his Honour considered GEC to be in breach of its duty of care to the worker in failing to ensure adequate precautions were taken to prevent the risk of the fall. The Court did not consider Mr M to have breached his duty to the worker as he was the owner and occupier of the premises and he retained GEC to take control of the works on site. As such it was GEC’s responsibility to prevent any risks of injury associated with the presence of the void and Mr M was entitled to rely upon GEC as controller of the site.

Contributory negligence

The worker’s primary position was that he was distracted by the directions he was receiving prior to falling through the void and it was an instance of ‘momentary inadvertence’.

Considering the worker was aware of the void and was responsible for removing the plywood which previously secured the void, the defendants sought an 80% deduction with respect to contributory negligence.

His Honour took the view that the worker was ‘inattentive to the risk’ and ‘failed to take reasonable care for his own safety’ in circumstances where he was aware of the risk and ought to have walked around the void to prevent a risk of injury. Accordingly, the Court assessed the worker’s contributory negligence as 30%.

Employer’s negligence

CDM as the worker’s employer was not a party to the proceedings. However, the Court was required to consider the employer’s potential liability in the circumstances. This was complicated by the fact that the worker was also the employer’s sole director.

His Honour found that the employer’s liability only extended to ensuring that the worker’s place of work was safe and so long as the void was covered, the subject site was safe. However, the moment the cover was removed and the void was uncovered the site become unsafe. The responsibility to install a barrier (which would have made it safe) rested with GEC.

CDM would have been responsible for preventing the risk of injury when the cover was removed and it was known that there was no ‘protective system’ in place. In these circumstances the court considered the apportionment of liability against the employer to be 12%.

Implications

This case raises interesting considerations when analysing the respective duties and culpabilities of multiple parties working on an unsafe worksite, especially when the worker is also a working director of an employer. It also emphasises an employer’s greater responsibility to constantly and proactively monitor hazards on a work site, which can quickly change due to the negligent actions of other contractors on site.