Ladders to ladders, dust to dust, the plaintiff's appeal is a bust – Murray v Sheldon Commercial Interiors Pty Ltd [2016] NSWCA 77

Stephen Murray (the plaintiff) was injured on 13 December 2011 when he fell from a ladder at a construction site (the site) occupied by head contractor Sheldon Commercial Interiors Pty Ltd (the defendant). The plaintiff was employed by one of several on-site subcontractors, Clearwall Contracting Pty Ltd. The plaintiff alleged the defendant was negligent in allowing subcontracted painters to conduct sanding at the time he and a colleague were installing glass panels from a ladder, as airborne dust had come to rest on the steps of the ladder, created a risk of slipping.

District Court of New South Wales

The evidence given by the plaintiff and his colleague was in 'diametric opposition'³ to the evidence given on behalf of the defendant, which primarily traversed whether or not sanding was taking place on the day of the incident, and, if so, how much sand was present on the site as a result. The trial judge, North DCJ, ultimately accepted the evidence of the plaintiff in this regard and accordingly found the defendant breached its duty of care to the plaintiff in allowing painters to sand at the time of the injury. However, his Honour found pursuant to s 5E of the CLA that the plaintiff failed to establish the presence of dust on the steps of the ladder which was a necessary condition of his fall.

Central to the plaintiff's case in this regard was the expert evidence of Ian Burn, a consulting engineer (the plaintiff's expert), who concluded in his report that the accumulation of dust on the steps of the ladder made the steps slippery, resulting in the plaintiff's accident. However, the plaintiff's expert failed to address a multitude of other factors that may have contributed to the plaintiff having slipped, ranging from inattention, his footwear, and to other contaminants that may have been present on the steps. It was also apparent that the plaintiff's expert did not engage with the particular characteristics of the ladder from which the plaintiff fell, such as whether there were non-slip ridges on the steps.

The assumption made by the plaintiff's expert, that the plaintiff had fallen from an appended plastic step, was also found to be incorrect on the oral evidence. His Honour noted that assumption, and a lack of pertinent information relevant to the facts of the matter, were absent from the letter of instruction provided to the plaintiff's expert by the plaintiff’s solicitors.
As such, his Honour was not satisfied that dust present on the steps of the ladder was causative of the plaintiff's accident. Damages were notionally assessed at $721,611.26.

New South Wales Court of Appeal (Court of Appeal)

The plaintiff appealed the trial judge's decision in respect of his findings on causation, arguing that the plaintiff's expert was not cross-examined at trial, and that, in light of the trial judge's finding that sanding was being performed at the site, 'common sense' would dictate that the presence of dust on the step of a ladder would cause it to be slippery. The defendant filed a notice of contention disputing the trial judge's findings on breach of duty.

A unanimous Court of Appeal agreed with the trial judge that the plaintiff's experts' report did not assist the plaintiff in making out his case, but the Court of Appeal added further that it should not have been admitted into evidence at all.⁴ The Court of Appeal also noted, as did the trial judge, the lack of any evidence tendered in respect of other possible causes of the fall, being the soles of the plaintiff's shoes and the surface of the step from which he slipped. Further, whether or not dust on the step of a ladder would make it slippery was found ultimately to be a matter for expert evidence.

The Court of Appeal also made the obvious point that building sites are dusty and 'not a hospital', which you could expect to be free of dust.

The Court of Appeal departed from the findings of the trial judge in that it found the defendant was not in breach of its duty of care to the plaintiff as an employee of a subcontractor. The Court of Appeal found the size of the site and the limited time between the sanding and the installing of the glass partitions were relevant considerations to the response a reasonable contractor would have taken to the apparent risk. Similarly, the Court of Appeal held the trial judge’s characterisation of the risk of harm was too broad in light of the duty owed by head contractors to employees of subcontractors.⁵ On the evidence, the Court of Appeal held that the plaintiff failed to demonstrate the defendant was in breach of its duty to him.

The Court of Appeal dismissed the plaintiff's appeal on causation upholding the decision and reasoning of the trial judge.

This case demonstrates the importance of proving causation in slip and fall claims. It serves to highlight the importance of adequately instructing expert witnesses with all the salient facts of a matter to avoid their evidence being inadmissible. The decision confirms the duty of head contractors is to take reasonable care for the safety of employees of on-site contractors and is less onerous than the duty owed by an employer to an employee.