The plaintiff, a builder's labourer, was shot in the temple by a nail gun fired from an adjoining property by a workman employed by a different company.

In Issue

  • Whether the risk of injury from using a nail gun through a common wall was an obvious, inherent or not insignificant risk under the Civil Liability Act 2002 (NSW).

The Background

The plaintiff was working as a builder renovating a terrace house. A workman on an adjoining property fired a nail from an explosive-powered nail gun into a timber block on the common wall between the two properties. The nail went through the wall and struck the plaintiff’s left temple.

The workman using the nail gun was employed by the defendant, AEA Constructions (AEA). The plaintiff suffered spinal cord damage as well as impaired balance, severe migraines and post-traumatic stress disorder. He could not return to full-time work and underwent a spinal fusion operation a year later. His balance remained impaired and he was under continuing treatment for disabling migraines.

The plaintiff received workers compensation benefits from his former employer, Building Partners. Building Partners brought separate proceedings against AEA Constructions for recovery of the workers compensation payments on the basis of AEA Constructions’ negligence.

The plaintiff sued AEA for negligence causing personal injury. AEA defended the claim on the basis that the risk of the plaintiff suffering injury from the use of the nail gun was “insignificant”, “obvious” and “inherent” within the meaning of the Civil Liability Act 2002 (NSW). AEA alternatively argued that the plaintiff had been contributorily negligent and/or that Building Partners had breached its own duty in failing to warn the plaintiff of the risk from the nail gun on the adjoining property and claimed an indemnity in respect of any damages it was ordered to pay to the plaintiff.

AEA further contended that the plaintiff had a pre existing degenerative condition in his spine and that he would have therefore experienced similar incapacity even if the accident had not occurred.

The Decision

The court held that the risk of injury was “not insignificant.” This nail gun was able to drive nails into solid sandstone bricks. Therefore a nail being fired through timber into soft mortar joints would very possibly pass straight through. Whether the workman felt confident this would not happen due to previous nails remaining in place did not displace the real risk. Although realisation of the risk was not expected, it was nevertheless ”not insignificant’.

The court concluded that AEA had a duty to check, by using a person acting as a “spotter”, whether anyone was in the path a nail might follow if it should pass through the wall. The duty required AEA to warn anyone in such a location to move away and also not to fire the nail gun until they had done so. AEA’s failure to do this amounted to breach of duty for which it was liable in negligence.

As to the defence of obvious risk, the risk of a nail being fired through the party wall could not be regarded as one that “would have been obvious to a reasonable person in the position of” the plaintiff. The plaintiff did not know a nail gun was being used in the adjoining property. Even if the evidence established the plaintiff had heard a nail gun in use, the risk was not obvious because he did not know and could not know (because of the separating wall) where, or in which direction it was being fired.

It was also not an “inherent risk,” because if the risk was truly unavoidable when using the nail gun, reasonable care required the tool not be used at all. The court noted the alternative available common methods to fix timber blocks to masonry walls.

The court further rejected AEA’s argument that the plaintiff was guilty of contributory negligence for failing to wear a construction safety helmet because the activities the plaintiff was engaged in at the time did not require it.

AEA’s claim for indemnity against the plaintiff’s employer, and its defence to that employer’s recovery claim, were both rejected. The court held that the risk of injury from a nail gun was not reasonably foreseeable to the employer including because it had no knowledge a nail gun was in use in the adjoining property and in any event it had no specific information on, for example, what grade of charge was being used, and therefore did not have any appreciation of the risk that a nail would penetrate the wall.

The court found all of the plaintiff’s injuries and continuing disabilities had been caused by the accident. However, it was highly likely that his pre-existing spinal condition would have led to similar symptoms and the eventual need for spinal surgery. The court assessed the plaintiff to be 45% of a most extreme case and then reduced that percentage to 35% to allow for the percentage caused by the accident.

Implications for you

This case is a lesson that a dangerous tool (or task) is not necessarily going to constitute an obvious or inherent risk, especially to a third party. In order for a plaintiff to be found guilty of contributory negligence, they need to be well aware of the potential risk.

Wharekawa v AEA Constructions Pty Ltd; Building Partners Pty Ltd v AEA Constructions Pty Ltd [2018] NSWSC 684