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Burnett v Manhattan Homes Pty Ltd

Burnett v Manhattan Homes Pty Ltd

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Case Copied 24 November 2023 72 min read

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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:
Amante v R [2020] NSWCCA 34
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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NSWSC 1431
Decision Date: 24 November 2023

CaseChat Overview and Summary

Burnett sued Manhattan Homes Pty Ltd following a fall from a first-story balcony at an incomplete building site. The plaintiff, who was also the sole director of the defendant company, fell three metres from the balcony to the ground below. The dispute involved issues of negligence, including whether the defendant had breached its duty of care towards the plaintiff, who was both an employee and an occupier of the site. The court had to determine whether the defendant's notification of the incident under the Work Health and Safety Act 2011 (NSW) constituted an admission of liability, and if the risk of a fall from the balcony was reasonably foreseeable. The plaintiff argued that the fall was due to an absence of void protection, which was known to the defendant.

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.

Orders