A fall from a ladder resulted in liability against a manufacturer under the Australian Consumer Law with a finding of 30% contributory negligence

Key Points:
  • The Court of Appeal found that a ladder had a safety defect, which caused the appellant to fall, such that the manufacturer was liable for damages under section 138 of the Australian Consumer Law.
  • The appellant’s entitlement to damages was reduced, however, due to his contributory negligence in failing to take heed of a warning sign.
The case of Bamber v Hartman Pacific Pty Ltd [2018] NSWCA 248 concerns liability for personal injury suffered by William Bamber, when he fell to the ground while descending a ladder. The ladder was manufactured by Hartman Pacific Pty Ltd (Hartman).

Mr Bamber alleged that the fall was caused by a safety defect in the ladder and sought damages pursuant to section 138 of the Australian Consumer Law. This section provides that a manufacturer of goods, who supplies goods in trade or commence, is liable to compensate a person if the goods have a safety defect and that person suffers loss or damage because of injuries resulting from that safety defect.

Mr Bamber commenced proceedings in the Supreme Court of NSW, where the matter was heard before Justice Schmidt.

Expert evidence was given which concluded that the locking mechanism of the ladder did not operate freely and tended to stay disengaged instead of automatically locking into the engaged position. Two faults were identified: firstly, that the hauling loop of the ladder was too short, preventing the locking mechanism from dropping automatically into the fully engaged position; and secondly, that four bolts on the two-latch hinge brackets had not been fully tightened.

At first instance, her honour found in favour of Hartman, and held that there was insufficient evidence of a safety defect having been present at the time of the incident. Her honour also found that Mr Bamber was not a witness of truth and, if there had been a safety defect, considered Mr Bamber was contributorily negligent in failing to heed a warning regarding the locking mechanism.

On appeal, the Court found that the excessive tautness of the rope loop in the ladder was more likely than not present at the time that the ladder was supplied by Hartman to the retailer.  The Court therefore found in favour of Mr Bamber on the basis that there was a safety defect in the ladder, which was causative of Mr Bamber’s injury. The Court did not consider any fault with the bolts had contributed to the incident.

While finding in favour of Mr Bamber on liability, the court upheld Justice Schmidt’s findings as to Mr Bamber’s credibility, which had implications for the assessment of damages for future economic loss. The Court also agreed with her honour’s assessment of contributory negligence at 30%, noting the ladder came with a warning that the user is to ensure that all locking functions are secure and Mr Bamber did not follow this warning.

Ultimately, Mr Bamber was awarded $73,531.47.

While Mr Bamber was entitled to 50% of the costs of the appeal, no order was made as to costs for the primary proceeding, as the Court considered Mr Bamber ought to have known that any award of damages, if successful, would not exceed $500,000 and therefore he should have commenced proceedings in the District Court instead of the Supreme Court. 

Post by Meg Harrington and Freida Stylianou

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