By Gaby Grammeno Contributor

A self-employed carpenter was working for a builder and principal contractor on a building site in Port Macquarie.

On 16 March 2020, the carpenter was directed to help install some gyprock and other carpentry tasks. On his way to take a lunch break, he noticed that 10 or so large sheets of gyprock leaning against the wall outside were getting wet because it had been raining most of the day, and a sheet of plastic partly covering the gyprock had come adrift.

He was trying to grab the plastic to cover the exposed part when the sheets of gyprock collapsed on him, seriously injuring his left knee and ankle.

Following knee surgery, he continued to have significant ongoing disabilities that dramatically curtailed his ability to earn income, and which were expected to continue for the rest of his working life.

The carpenter sued the employer for damages and the case was heard in the District Court of New South Wales.

In court

Judge Robert Newlinds’ task was to identify the risk of harm, the precautions the employer ought reasonably to have taken and whether the employer took such precautions, as well as the actual cause of the accident.

He also had to determine whether there had been any contributory negligence on the part of the carpenter, and if so, to what extent. Taking all this into account, it was also necessary to decide on an appropriate amount of damages.

The carpenter’s case was that his employer ought to have stored the gyprock somewhere it would not get wet so as to protect the integrity of the material, stored it horizontally in a pile rather than vertically to avoid the risk of falling on someone, and given him adequate instruction in the handling of the gyprock.

Judge Newlinds heard that on the morning of the accident, still raining after a weekend of rain, the gyprock had been delivered some time earlier and stacked against the wall. It was already so wet that the outer sheet had been rendered useless and was discarded.

The employer submitted that there was nothing inherently dangerous about wet gyprock or storing it upright against a wall, and that storing it horizontally out of the weather would have been unrealistic because it would involve double handling – with an increase in risk – and extra work.

After considering the evidence Judge Newlinds disagreed, concluding that stacking gyprock on its side created a not insubstantial risk of falling because of gravity together with ‘the happenstance of things getting knocked or bumped accidentally’, and that it would be more unstable with its bottom edge wet.

In addition, the employer had not performed a risk assessment in relation to the storage of gyprock, there was no safe work method statement for its handling and it had not given any instructions or warnings about safe handling of gyprock, exacerbating the risk.

Judge Newlinds found that the employer ought to have taken the precautions suggested by the carpenter, as the risk of serious injury was foreseeable and significant. The employer’s negligence in failing to take such precautions was the ultimate cause of the worker’s injuries.

The employer also contended that the carpenter had failed to take reasonable care, and should have found other people to help him protect the gyprock against the weather, but the Judge rejected the plea of contributory negligence, finding that there was nothing careless or unreasonable about the carpenter’s attempt to lift up the plastic – he had somehow bumped the gyprock, causing it to fall.

The medical experts agreed that the carpenter was significantly incapacitated and that his restrictions would be permanent.

The Judge awarded the carpenter $350,000 for future economic loss and smaller sums for past economic loss and out-of-pocket expenses, as well as 34% of the most extreme case for non-economic loss, totalling about $650,000.

What it means for employers

Safe storage of materials is a priority wherever there is a risk of them falling on people and injuring them. Employers need to take suitable precautions and train and inform workers about the risks and measures for risk control.

Read the judgement

Stobbe v Swadling Developments Pty Ltd [2024] NSWDC 290