By Stephen Vardanega, Partner, and Carolyn Nguyen, Lawyer

Burnett v Manhattan Homes Pty Ltd [2023] NSWSC 1431

Factual Background

On 27 February 2019, the Plaintiff, Mr Burnett was working at a two-storey residential construction site. Manhattan Homes Pty Ltd (‘Manhattan ’) was the principal contractor. The Griswold’s Outdoor Xmas Pty Ltd (‘Grisworld’)  was a subcontractor. Burnett  was the sole director and employee of  Grisworld. Burnett was carrying his third  load of  tiles from the upper floor to the ground floor via  an incomplete set of stairs. Whilst crossing a stair void, which had no handrail, he stepped on an unsupported plank, causing it to give way. He fell approximately three metres resulting in serious injuries. A ladder had previously acted as a means of access but was not available at the time of the accident. The void protection, such as it was, was installed by Manhattan. Burnett knew the plank was unsupported and unsafe.

Burnett commenced proceedings in the Supreme Court against Manhattan  and Grisworld, alleging they were each negligent. The defendants denied liability and exchanged cross claims. Contributory negligence was alleged.

Legal Issues

The issues were whether the defendants were negligent and, if so their relative culpability. Whether Burnett was guilty of  contributory negligence also had to be determined.

Decision

Manhattan was the principal contractor and builder with overall control of the site. It was responsible for providing access to tradespeople to the first floor. It was negligent for failing to maintain the void protection. The defect was known to Manhattan and was obvious. The fact that Manhattan elected not to call any evidence to contradict the evidence that was led, when it was in  a position to do so, appeared to weigh heavily against it.

As for Grisworld, even though Burnett was its controlling mind, they were separate entities with their own obligations. Despite being aware of the defect and knowing the stairs were unsafe, the issue was not raised with Manhattan. Grisworld’s argument that Burnett’s failure to raise the issue with Manhattan amounted to  contributory negligence on his part and not a breach of duty as employer was rejected. It permitted Burnett to work in an unsafe environment and  was negligent, albeit it had limited control over the site, which was under Manhattan’s control.

In relation to the allegation of contributory negligence, Burnett was performing manual labouring work. He was engrossed with the task he was given. He conceded in cross examination that he was aware that some of the planks were unsupported and that a ladder was no longer available. He was aware the site was dangerous. Nevertheless, the Court found that Burnett’s conduct amounted to temporary inattention or inadvertence rather than negligence. The fact that Burnett made a number of concessions under cross examination, including concessions against his interests, appears to have influenced the finding that he was a credible witness and, in turn, the finding of inadvertence as opposed to negligence.

Liability was apportioned 80% to Manhattan and 20% to Grisworld.

The decision is a good illustration of the interplay between principal contractors, subcontractors and workers on construction sites, particularly where the subcontractor is under the sole control of its injured worker. It also illustrates the danger in electing not to call evidence where liability is in issue.