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WHS prosecutions

The decision of Murray v Sheldon Commercial Interiors Pty Ltd [2016] NSWCA 77 is a recent illustration of the scope of a head contractor's duty of care and a useful reminder that head contractors cannot reasonably be expected to continuously supervise or intervene in all activities being performed  at a work site. It also emphasises the need for plaintiffs to establish causation by relying on admissible evidence rather than expert opinion that does not canvass the relevant issues or evidence, speculation and/or appeals to common sense.

When Mr Murray was installing a window on a construction site, he fell from a ladder and sustained injuries. He attributed the cause of his fall to a build-up of dust on the rungs of the ladder and alleged that the source of the dust was sanding conducted by a painting subcontractor on the morning of the accident. According to Mr Murray, excessive dust was being distributed because of a fault in the vacuum attached to the sanding machine. He commenced proceedings against the head contractor, Sheldon Commercial Interiors, alleging its negligence caused his accident.

In keeping with its current focus on properly engaging with the Civil Liability Act 2002, the NSW Court of Appeal (NSWCA) criticised Mr Murray's failure to properly articulate the relevant risk of harm and accepted the trial judge's characterisation of the risk being "a risk of harm from a fall caused by sanding work being conducted in the areas where [Mr Murray] was working".

After noting the head contractor's duty of care was more attenuated than the duty owed by an employer, the NSWCA found that Mr Murray failed to establish any breach of duty. The mere fact that sanding might have been taking place on the same site and on the same day as the installation of glass did not mean that there was a breach of the head contractor's duty to take reasonable care. Rather, Mr Murray needed to show the head contractor should have noted excessive dust was being deposited by sanding in the vicinity of Mr Murray's work and then done something about it. The NSWCA held that the size of the site and the limited time in which the sanding took place were important considerations in determining breach, particularly as this must be considered prospectively.

The NSWCA also upheld the trial judge's finding that Mr Murray failed to establish causation. Mr Murray relied on an expert report from Mr Burn, which the trial judge afforded no weight to. The NSWCA found the report inadmissible as Mr Burn failed to consider the characteristics of the ladder involved or other possible reasons for Mr Murray slipping. Further, Mr Murray failed to establish the extent of dust on the ladder. The NSWCA rejected the submission that common sense could be relied on to establish that the most likely cause of him slipping was the presence of dust.

We would like to acknowledge the contribution of James Clohesy to this article.
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