An Illawarra subcontractor seriously injured while working on a house in Bulli is set to receive a seven-figure payout after a court ruled the site’s owner, Clarendon Homes, was negligent in failing to prevent the accident.
Ray Herbert, an experienced plasterer, was working on makeshift scaffolding inside the home’s garage in November 2008 when Clarendon Homes employee Mark Dowling opened the garage door, knocking Mr Herbert off the structure.
He suffered a fractured leg, which still requires ongoing treatment almost five years later.
The accident rendered Mr Herbert, now 58, unable to continue working and left him with depression.
Mr Herbert sued Clarendon Homes in the NSW Supreme Court, claiming the company had failed to take reasonable steps to ensure his safety while working.
The court heard on the morning of the accident, Mr Herbert told the site manager, Nathan Johnson, that he would be working behind the garage door and advised him to ensure that no one came in.
Mr Herbert said he also told other workers on the site of his plans, before using a bucket to prop the door open slightly in order to allow natural light into the otherwise unlit garage.
Mr Johnson left the site shortly afterwards.
Around 10am Mr Dowling, an employee from Clarendon’s head office, lifted the garage door, sending Mr Herbert flying off the scaffolding.
When asked why he had opened the door, Mr Dowling said no one had told him Mr Herbert was behind it.
Lawyers for Clarendon Homes argued that Mr Herbert should have taken steps to ensure the garage door could not be lifted, and erected a sign warning people he was working behind the door.
However, the presiding judge, Justice Robert Beech-Jones, rejected both arguments, saying Mr Herbert had taken appropriate precautions by telling others on site where he would be and asking Mr Johnson to control access – ‘‘make sure no-one comes in’’.
Justice Beech-Jones found Clarendon’s actions in failing to properly control who entered the work site and how they entered had led to the accident occurring, and thus amounted to negligence towards Mr Herbert on the company’s behalf.
The court heard that Mr Herbert’s leg was initially placed in a cast, but later complications with his treatment had led to multiple surgeries since and continuing bouts of infection.
He had been left with significant osteoarthritis in his knee.
And doctors said the worst case would be that his lower leg could need amputation.
Justice Beech-Jones said Mr Herbert should be awarded hundreds of thousands of dollars for past and future economic loss, medical and pharmaceutical expenses, past and future care, and general impact.
The total payout is expected to top $1million.
The matter will come back to court this week, where a final payout figure is expected to be reached.