May 25, 2014

When the balustrade on the first floor of Peter Richardson’s home gave way and sent him crashing down onto the floor of his foyer in 2006, the damages resulting from his serious back injuries were assessed at $827k.
Mirvac built the home in 1998. It contracted WB Jones Co to manufacture and install the staircase and balustrade. WB Jones contracted JMKG Co to install it.

Who should bear the cost?

JMKG used guns – in accord with its usual practice – to fire nails through the bottom plate of the balustrade, through a gyprock overhang, through a 15mm space and then into a wooden bearer. That 15mm space – within which there was no “withdrawal load” to resist a nail being pulled out – was the crucial reason why nail guns were the wrong tools for the job.

First, a tradesman nailing by hand can surmise a gap, even without seeing it, when there is the resistance changes at some point as a nail is driven in. He or she can compensate by using longer nails. Second “withdrawal loads” are “considerably less” for gun driven nails, as compared to nails driven by hand.

With these features in mind and given the requirements of AS 1720.1 – the relevant standard to which any structural component and must conform – hand-driven nails were the only option for this task. In the July 2012 trial, JMKG was held primarily liable because of the unsound fixing method it employed in the Sydney home. Mirvac and WB Jones were also liable for having failed to retain a competent contractor to do the job but were not vicariously liable for JMKG’s negligence.

Liability was apportioned by the District Court as to 30% each against Mirvac and WB Jones and 40% for JMKG.

All three defendants appealed their share of liability with Mirvac arguing that it had no inspection duty as a developer and was entitled to rely on the competence of the contractors it engaged. The NSW Court of Appeal rejected that contention, ruling that – given that a failure of the balustrade above a void could produce serious consequences – it had an obligation to inspect and assess its load-bearing capacity.

Although a designer/builder like Mirvac might not be expected to be aware of every applicable standard, that which related to the fastening of load-bearing timber was so “fundamental”, that its defect inspections should have been conducted with it top of mind. WB Jones were in the same position as regards inspecting JMKG’s work. That obligation was not discharged by any assumption that Mirvac would perform the role.

Jones also knew JMKG consistently used nail guns when affixing fasteners – and even though it did not appreciate the risk – it was nevertheless liable on the further ground, for engaging a contractor that it should have known was unsafe.

The Court of Appeal altered the proportion of the parties’ liability to 25% each for Mirvac and WB Jones and 50% for JMKG, the principal wrongdoer.

WB Jones Staircase & Handrail Pty Ltd v Richardson & Ors [2014] NSWCA 127, Beazley P, Hoeben JA, Leeming JA, 17/04/2014 – view decision

Categories: Personal Injury , Litigation & Law Practice

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