Monahan v Bellevarde Constructions Pty Ltd & Ors (NSWDC 2022)

Link to Decision

Key Takeaways

The NSWDC has confirmed that the employer’s duty of care to keep an employee safe from injury is not absolute, but rather to take reasonable care having regard to the particular circumstances.

Brief Facts

The worker was a qualified carpenter. He was working on a residential building site in Surry Hills (the site), when he was asked by a Bellevarde tradesperson (Mr Rolfe) to assist in lifting and moving a heavy metal clad door weighing approximately 200kgs. During the course of the lifting, the worker strained his lumbar spine.

The worker sued the head building contractor, co-ordinator and occupier of the site, Bellevarde who had contracted his employer for the provision of carpentry services. The worker also sued L’Officina By Vincenzo Australia Pty Ltd (L’Officina) being the supplier of the metal clad door. Both defendants raised the argument that the worker’s damages were to be reduced on account of his employer’s negligence under s151Z(2) of the Workers Compensation Act.

L’Officina alleged that the employer’s negligence should be at least 30% in the circumstances. The worker argued that his damages should not be reduced at all, as neither defendants had established that the employer failed to take reasonable care for his safety.

Judgment

In rejecting the defendants’ arguments, his Honour Judge Levy stated in his judgment that:

(a) It was Bellevarde and not the employer that created the risk that led to the worker’s injury. Bellevarde was responsible for the system of work that led to the respective breaches of duty of care by the defendants, which caused the worker’s injury.

(b) In view of the circumstances that the worker’s services were provided to Bellevarde to carry out carpentry work, the risk and ultimate breach of Bellevarde was, from the employer’s perspective, remote and insignificant.

(c) His Honour further stated (at paragraph 208 and 209):

‘In my opinion, it was unrealistic to argue that [the employer] ought to have supervised the [worker], a fully qualified tradesman carpenter, who was capable of working unsupervised, and should have instructed him to refer back to and consult with Taylor if his assistance was called upon to lend a casual hand to assist others on site with a task that was outside his allocated work……
In my view, it would have been unrealistic for [the employer] to induct the [worker] into his role on Bellevarde’s site in the terms argued by the defendants.’

(d) Since it was Bellevarde (through its employee Mr Rolfe who oversaw and directed the entire process) who instigated the process, which led to the worker’s injury, it should bear the major responsibility.

Implications

Whilst the worker in this case did not directly bring proceedings against his employer, this situation does come up often in building site work scenarios involving multiple contractors, where a worker suffers a work injury whilst temporarily ‘lending a hand’ to other contractors from time to time.

An employer’s non-delegable duty to take care of its workers is a high standard, but not an ‘absolute’ one. Much depends on the factual matrix surrounding how the injury came about, and the specific qualifications of the worker.

In this case, Judge Levy of the NSWDC held that since the worker was an experienced carpenter requiring little supervision, he was not required to seek instructions from the employer in relation to the work task he was asked to perform by another contractor.

However, had the worker been less qualified (and required further supervision and instructions) the result could easily have been different and less favourable to the employer.

In addition, being a decision of the NSWDC at first instance, it remains to be seen whether the defendants will seek leave to appeal to the NSWCA on the issue of the employer’s negligence in the circumstances.