A builder’s labourer, who was struck in the head by a nail fired from a nail gun being used on an adjoining building suite, had been awarded more than $1.4m, with the Supreme Court of New South Wales finding the employer of the worker on the adjoining building site negligent.
On 9 November 2012, 28-year-old Raymond Wharekawa was working as a builder’s labourer in a terrace house at No 42 Windsor Street, Paddington, when a nail fired from an explosive nail gun on the adjoining property (No 40) struck him in the left temple. He was employed by Building Partners Pty Ltd.
The workman who fired the nail gun was Mr Ian Box (since deceased). Mr Box was employed by AEA Constructions Pty Ltd (AEA) and was working at the adjoining property, at No 40. Mr Box fired a nail which penetrated a 25 mm timber block and the double brick wall adjoining the two properties and traveled another 2.5 m across the rear of No 42 to strike Mr Wharekawa in the left temple. Mr Wharekawa suffered a depressed fracture of the skull.
Mr Wharekawa commenced proceedings in the Supreme Court of New South Wales against AEA, in negligence and claimed damages. He claimed that his injuries from the accident have prevented him from returning to work as a builder’s labourer.
Mr Wharekawa’s employer brought a separate proceeding against AEA claiming indemnity under s 151Z(1)(d) of the Workers Compensation Act 1987 (NSW).
AEA denied that it was negligent and disputed the extent of Mr Wharekawa’s injuries. It argued that Mr Wharekawa was contributorily negligent and also that he was injured solely through the negligent fault of his own employer, Building Partners Pty Ltd.
His Honour Fagan J found that a duty was owed by Mr Box and by AEA to persons at No 42 to exercise care with respect to the risk of a nail passing through and striking someone, and that duty was breached by failing to make any check for persons who might be in the line of fire before discharging the tool and by failing to cause such persons to move to safety. Mr Wharekawa’s injury was directly caused by the breach and AEA is liable.
Accordingly, the court found in favour of Mr Wharekawa and awarded damages of over $1.4m: Wharekawa v AEA Constructions Pty Ltd; Building Partners Pty Ltd v AEA Constructions Pty Ltd  NSWSC 684.
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This article first appeared in the CCH Australian Tort, Personal Injury, Health and Medical Law Tracker and is reproduced in full with permission from CCH, a division of Wolters Kluwer Australia: www.wolterskluwer.cch.com.au
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