Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Burnett v Manhattan Homes Pty Ltd [2023] NSWSC 1431 Hearing dates: 26 - 29 June, 9 August, 29 September and 27 October 2023 Date of orders: 24 November 2023 Decision date: 24 November 2023 Jurisdiction: Common Law Before: Schmidt AJ Decision: 1 Judgment for Mr Burnett against Manhattan Homes Pty Ltd.
2 The parties are directed to confer about the final calculations, the terms of the final orders including as to costs and to file proposed orders within 14 days. In the event of any remaining dispute, they should also approach within 14 days and file and serve an outline of submissions addressing that dispute.
Catchwords: NEGLIGENCE — duty of care — reasonable foreseeability of harm — construction site — plaintiff fell three metres from first story to ground below —statutory notification of incident under Work Health and Safety Act 2011 (NSW), ss 19, 35, 38 — whether notification was an admission under Evidence Act 1995 (NSW), s 82 — whether defect in void protection known — whether plaintiff’s use of uncompleted stairs reasonably foreseeable — whether risk of fall and resulting harm reasonably foreseeable — breach of duty established
NEGLIGENCE — liability — occupier and subcontractor — duty to exercise reasonable care in relation to safety of building site and to persons coming onto site to avoid foreseeable physical injury — causation — whether injury the result of unauthorised acts of contractor — occupier liable
NEGLIGENCE — liability — employer and employee — plaintiff sole director and employee of second defendant — where plaintiff knew of defect in void protection — second defendant’s breach of non-delegable duty of care to plaintiff as employee established — whether plaintiff also negligent or his actions resulted from inadvertence — inadvertence established
NEGLIGENCE — contributory negligence — not established where plaintiff’s actions the result of inadvertence
CIVIL PROCEDURE — cross-claims — contribution or indemnity between defendants — Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5(1)(c) — Workplace Injury Management and Workers Compensation Act 1987 (NSW), s 151Z
Legislation Cited: Civil Liability Act 2002 (NSW), ss 3, 5B, 5C, 5D, 5E, 5R, 5S, 1, 13, 15, 16, Div 8
Evidence Act 1995 (NSW), ss 69, 81, 82, 87, 136
Law Reform (Miscellaneous Provisions)Act1946 (NSW), s 5
Uniform Civil Procedure Rules 2005 (NSW), r 42.1
Work Health and Safety Act 2011 (NSW), ss 19, 35, 38, 39
Workers Compensation Act 1987 (NSW), s 151Z
Workplace Injury Management and Workers Compensation Act1998 (NSW), s 4
Cases Cited: Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424; [2004] HCA 28
Blacktown City Council v Hocking [2008] NSWCA 144
Boral Bricks Pty Ltd v Cosmidis; Boral Bricks Pty Ltd v DM & BP Wiskich Pty Ltd [2013] NSWCA 443
Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; [1994] HCA 13
Coles Supermarkets Australia Pty Limited v Haleluka [2012] NSWCA 343
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- Case
- [2023] NSWSC 1431
- Decision Date
CaseChat Overview and Summary
The court found that the defendant had breached its duty of care by failing to provide adequate void protection and by not exercising reasonable care in relation to the safety of the building site. The court held that the risk of a fall and resulting harm was reasonably foreseeable, and that the plaintiff’s use of the uncompleted stairs was foreseeable. The court determined that the statutory notification was not an admission of liability under the Evidence Act 1995 (NSW). The court also found that the plaintiff's actions were inadvertent, and therefore not contributory negligence. Additionally, the court held that the defendant was liable for the plaintiff's injuries under the principles of vicarious liability, as the plaintiff was an employee of the defendant company.
The court concluded that the plaintiff's sole directorship and employment status did not absolve the defendant from liability for the breach of its non-delegable duty of care. The court rejected the defendant's argument that the plaintiff was also negligent or that his actions resulted from inadvertence. Instead, the court found that the plaintiff’s actions were inadvertent and not the result of contributory negligence. The court further found that the defendant was liable for the plaintiff's injuries and that the plaintiff was entitled to recover damages.
The court also considered the cross-claims for contribution or indemnity between the defendants under the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) and the Workplace Injury Management and Workers Compensation Act 1987 (NSW). However, the court did not make any orders for contribution or indemnity between the defendants.
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Evidence
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