What happened
Manhattan Homes was principal contractor and occupier of a two-storey residential site, while Mr Burnett worked for his own subcontracting company, Griswold’s. Steel supports beneath boards partly covering the stairwell void had been removed after stairs were installed, with no balustrade or warning at the upper level. Mr Burnett had observed the missing support but, on his third trip carrying removed tiles, stepped onto the board and fell to the floor below.
The issues
The central issue was whether the worker’s inattention was merely excusable inadvertence or contributory negligence measured against reasonable care for his own safety. The appeal also challenged apportionment between builder and employer, residual earning capacity, future domestic assistance, non-economic loss and whether overseas airfares were loss caused by the accident.
The court's decision
The Court held that inadvertence and negligence are not mutually exclusive and assessed contributory negligence at 20% because Mr Burnett knew the support was missing but failed to use that knowledge. It left intact the 80:20 contribution apportionment between Manhattan and Griswold’s, the finding that he had no realistically exploitable residual earning capacity, the $390,000 future-care award and the non-economic-loss assessment. Airfares to Thailand were disallowed for lack of causal connection, and Manhattan Homes Pty Limited v Burnett [2025] NSWCA 32 later fixed the final judgment against Manhattan at $1,689,268.75.
Understanding the figures
In historical AUD, the primary judgment against Manhattan was $2,234,467.73. After the contributory-negligence and airfare adjustments, the 2025 consequential orders fixed Mr Burnett’s judgment against Manhattan at $1,689,268.75 and Griswold’s second cross-claim judgment against Manhattan at $1,171,422.61 inclusive of interest.
What this case shows
The decision shows that being absorbed in a task does not end the contributory-negligence inquiry; the question is whether the lapse remains compatible with reasonable care in the actual working conditions. It also distinguishes theoretical physical capacity from a realistically exploitable earning capacity, and confirms that future commercial care may be assessed where current family assistance may not continue.
Why another case may differ
The 20% finding depended on actual knowledge of the unsupported board and the absence of evidence of repetitive pressure, urgency, fatigue or distracting site conditions. The later $1,689,268.75 figure is the judgment against Manhattan after appellate recalculation; separate cross-claim, workers-compensation credit and costs orders mean it is not a statement of the claimant’s net receipt.
Applying it to your claim
Different facts, evidence or procedures, an appeal, or a change in the law may affect how this decision applies. This is general information, not a report of a case handled by Park & Co Lawyers.
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