The decision of Murray v Sheldon Commercial Interiors Pty
Ltd  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
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
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