Claim circumstances
On 3 August 2018, then 50-year-old Mr. Shawn Morris (the plaintiff) was injured when he tripped over a raised section of bitumen (raised bitumen) while carrying six traffic cones. The raised bitumen was approximately 35mm above the surrounding roadway. The plaintiff was attempting to cross an intersection using an incomplete pedestrian crossing (no lights had been installed) while traffic was stopped. As he did so, a motorcycle approached causing him to veer left away from the crossing and alter his intended path of travel. Whilst maintaining his focus on the motorcycle the plaintiff tripped and fell, suffering injuries to both elbows.
At the time of the incident, the plaintiff was employed as a traffic controller by Evolution Traffic Control Pty (Evolution). The incident occurred during the course of the plaintiff’s employment. Evolution had been engaged by Roadtek, a commercial business within the Department of Transport and Main Roads (TMR), to provide traffic management services for the Pacific Highway Connection Road: V1 Project, for which Roadtek was the principal contractor.
On the date of the incident, the plaintiff attended two pre-start meetings, one with Evolution and one with TMR. At each meeting, the risk of slips, trips, and falls was raised and recorded, as well as the importance of remaining vigilant and maintaining observation on the path of travel. No specific warning of the raised bitumen was provided.
The claim against TMR
The plaintiff submitted TMR breached its duty of care as a principal contractor responsible for giving directions to, and supervising the plaintiff, and as an occupier and controller of the roadworks, by failing to warn the plaintiff of the risk of injury arising from the specific section of raised bitumen (either verbally or through marking with paint).
His Honour held that TMR’s duty was to take reasonable care to minimise the risk of injury to someone in the plaintiff’s position and there was nothing TMR could have reasonably done in the circumstances to avoid or minimise that risk. His Honour found there was nothing which elevated or distinguished this particular raised section of the roadway compared to other areas of the worksite, such as to justify a particular or specific warning, or to apply some sort of paint to the areas in question (or, by inference, to the many other similar undulations which existed in a worksite involving 1.7kms of roadway).
His Honour also noted that whilst it can be acknowledged that employees/contractors on site may act inadvertently, it is also to be recognised that ‘the employees and contractors are properly trained and are particularly conscious of the risks which exist within a work site.’2In this matter, the employees/contractors were sufficiently reminded of the risks generally on a daily basis, including being reminded of the importance of being vigilant within the worksite and keeping the path of travel under observation, because they knew the worksite contained public roads where high traffic volume, uneven surfaces, heaving and undulations could be expected.
His Honour found TMR’s level of vigilance, risk assessment process, and ongoing maintenance/repair program was reasonable in the circumstances. No criticism could be made of TMR for not providing the plaintiff a walk around induction as such a responsibility would fall on his employer. Ultimately though in this case not much turned on this issue due to the particular circumstances of the incident (as His Honour found the cause of injury was distraction by the motorcycle).
His Honour further noted that to highlight all defective pedestrian surfaces capable of being a tripping hazard with fluorescent paint to warn workers was not ‘a reasonable and practical measure to adopt given the size and nature of the worksite’3 and accepted the evidence of a TMR witness that such a measure would be ‘challenging, onerous and impractical’.4
The claim against Evolution
Causation
His Honour further stated that even had he made a finding of breach of duty against either TMR or Evolution, he would have concluded that any such breach was not the cause of the plaintiff’s injury. In reaching this conclusion, his Honour found ‘the true cause of the injury was Mr. Morris entering the intersection and then not watching where he was walking due to the distracting presence and actions of the motorcyclist at the particular time of the accident’.6
It follows that had either defendant taken the precautions which it was alleged ought to have been taken, namely either providing a specific warning as part of the pre-start procedure about all undulations or similar hazards which may exist on site, or each such undulation being highlighted with paint, the incident would have occurred regardless, noting the plaintiff was not watching where he was walking (as he was, understandably, distracted).
Conclusion and comments
Neither the plaintiff’s employer nor TMR breached its duty of care to the plaintiff and the claim against each was dismissed.
The decision is a timely reminder that whilst a high level of care is generally expected in claims involving workplace accidents, the duties owed by employers and principal contractors are not absolute. Both employers and principals are only required to act reasonably in all of the circumstances, and a principal is generally entitled to rely upon the expertise of its contractor. This is specifically so when the hazard complained of is one the injured worker has been warned of, acknowledges they are aware of, and could be described as an ordinary hazard of everyday life, rather than a hazard specific to the work being performed.
Whilst each case will of course turn on its own facts, this outcome for defendants and insurers alike, provides some confidence that in the right case, and with a forensic approach to the preparation and delivery of a defence, such claims can be successfully defended.
1 [2023] QDC 195
2 [84].
3 [71].
4 [48].
5 [45].
6 [57].
This article may provide CPD/CLE/CIP points through your relevant industry organisation.
The material contained in this publication is in the nature of general comment only, and neither purports nor is intended to be advice on any particular matter. No reader should act on the basis of any matter contained in this publication without considering, and if necessary, taking appropriate professional advice upon their own particular circumstances.
