Building site accident - Was plaintiff an employee or deemed worker? - Causation

Judgment date: 12 April 2012

Minogue v Rudd [2012] NSWSC

Supreme Court1

In Brief

To prove causation a plaintiff needs to establish that the alleged cause was more probable than any other. Breaches of the Occupational Health and Safety Act 2000 (NSW) (the Act) and Occupational Health and Safety Regulation (2001) (the Regulations) do not give rise to a private cause of action. Where an employer is able to control and co-ordinate the method of work, the duty owed to the plaintiff, whether he was an employee or an independent contractor, is substantially the same. Namely, a duty to take reasonable care to avoid exposing him to the risk of injury. Res ipsa loquitur will not apply in circumstances where "what occurred and why" are matters of speculation. Background

Mr Minogue (plaintiff) was an Irish national and qualified carpenter who suffered a significant brain Injury when he fell from the ground floor to the basement in the kitchen area at residential premises under construction (premises).

The first defendant, David Jonathan Rudd t/as Rudd & Co Constructions (Rudd), contracted with the property owner (Mrs Rigby) to carry out renovations to the premises. Mr Tilden (Tilden), the second defendant, was also retained as a draftsman, clerk of works and was nominated as a supervisor in the agreement between Mrs Rigby and Rudd.

Rudd commenced work at the premises on 4 August 2003. The kitchen flooring was not completed since one of the joists did not have a 'noggin' (a beam that provides lateral stability to the joists) and was not properly fixed in place. Rudd's evidence was that the completion of the floor awaited a final decision as to the position of the stairs and location of an air-conditioning unit. The floor was likely left in this state since at least 5 January 2004.

On about 6 February 2004, Rudd went on a skiing holiday in Canada. In his absence, Tilden arranged for DMW Carpentry Services Pty Limited (DMW), the third defendant, to construct Page 2 of 4 an exterior chimney to the premises. This work involved constructing the chimney frame to the outside of the premises, and then fixing blueboards to the structure. The plaintiff was an employee/deemed worker of DMW and was supervised by Mr McWilliams (McWilliams), the Director of DMW.

Adamson J accepted Rudd's evidence that he arranged for hazard tape to be put up to bar the entrance to the kitchen area prior to him leaving for holiday, and that it was in position when McWilliams left the premises on the morning of the plaintiff's accident in view of the corroborative evidence of an electrician, Mr Hardwick, and Mrs Rigby who made a file...