Manhattan Homes Pty Limited v Burnett (NSWCA 2024)

Link to Decision

Key Takeaways

The NSW Court of Appeal has provided some useful commentary about working directors who are injured in the course of their duties.

In this decision the court considered when inadvertence on the part of a working director prior to, or at the time of their injury, may amount to contributory negligence.

Brief Facts

The worker was the sole director of Griswold’s Outdoor Xmas Pty Ltd (Griswold’s). At the time of the incident he had contracted himself to perform laboring duties on construction sites. On 27 February 2019 he sustained an injury at a residential two-story building site for which Manhattan Homes Pty Limited (Manhattan) was the head contractor. At the time of the injury, the worker was in the process of removing broken tiles from the first floor when he stepped onto unsecured boards erected over the stairwell void and fell approximately 3 meters to the ground floor.

The worker commenced Supreme Court proceedings against Manhattan for damages. Manhattan then joined Griswold’s as the plaintiff’s employer by way of cross-claim.

The primary judge determined that the worker had temporary inattention or inadvertence that contributed to his fall but that did not amount to contributory negligence. A finding of negligence was made against Manahttan and on their cross claim a finding of negligence on the part of Griswold’s was apportioned at 20%.

Appeal

Manhattan appealed to the NSW Court of Appeal seeking, among other things, an increase in the apportionment against the employer and a finding of contributory negligence against the worker personally.

The Bench, constituted by Harrison CJ at Common Law, Leeming AJ and Price AJ, on the issue of contributory negligence examined ‘what a reasonable person in [the worker’s] position should have done to protect himself or herself against the risk of harm of which he was aware’.

Justice Leeming discussed the distinction between mere inadvertence and contributory negligence [para 5]:

Sometimes this test is encapsulated in the distinction between mere inadvertence and contributory negligence, being the test authoritatively stated in McLean v Tedman (1984) 155 CLR 306 at 315; [1984] HCA 60, and which her Honour mentioned at [199]. It is to be borne in mind that the word “mere” does a deal of work in that encapsulation. It is necessary when applying that test to bear in mind that inadvertent conduct by a plaintiff may or may not amount to contributory negligence, and the real question is as Mason J put the issue at 573 in Ruprecht, whether Mr Burnett’s omission was incompatible with the conduct of a reasonable and prudent man. The issue is unavoidably factual, and draws upon the proposition that especially in the case of tedious repetitive work, inadvertence is foreseeable..

The Justices unanimously agreed that the worker had negatively contributed to his own loss and damage. His contribution was assessed at 20%. In making this decision, the Court considered the following:

• The worker had conceded that he had knowledge and was aware of the physical conditions of the site, particularly the void of the stairwell prior to his fall.
• There was no evidence to support that the task of removing tiles was technically complicated or within a noisy or distracting environment.
• There was no evidence by the worker about the other thoughts that were on his mind at the time of his fall.
• The lack of cues (such as a warning sign or physical barrier) could have been provided by Manhattan.

The Court of Appeal found the worker to be guilty of contributory negligence which was assessed at 20%. The Court maintained Griswold’s contribution of 20% as the worker’s employer whilst 80% was apportioned to Manhattan.

Implications

It can be difficult to determine whether a working director’s conduct can amount to contributory negligence or be that of mere inadvertence of a reasonable person in the circumstances. This decision solidifies the general position that a working director, whilst being the architect of their own system of work, will also have a personal culpability for their own conduct in performing their non-directorial tasks. Whilst the worker’s conduct and knowledge of the risk prior to their injury is to be taken into consideration, this does not negate the obligation of an occupier of a site and an employer to provide a safe system and place of work.