The plaintiff, a traffic controller, tripped and fell on a raised section of bitumen whilst crossing a road on site, sustaining fractures to both shoulders. The court found that the employer and principal contractor were not liable and did not breach any duty of care owed, having implemented an adequate system of work in the circumstances.
- Where the plaintiff injured himself by tripping over a raised section of roadway while undertaking work duties, whether the first defendant employer breached its duty of care by failing to have a safe system of work against a foreseeable risk.
- Where the second defendant was the principal contractor of the worksite and had operational control over the plaintiff, whether the second defendant breached its duty of care by failing to warn the plaintiff of a foreseeable risk.
The plaintiff was an experienced traffic controller who was employed by the first defendant. On 3 August 2018 the plaintiff fractured both of his shoulders after he tripped and fell over a raised section of bitumen at the traffic site. At the time, the plaintiff had been carrying six traffic cones and attempting to cross a road using a marked pedestrian crossing. He was concentrating on giving a wide berth to a motorcyclist weaving between stationary vehicles, as he was concerned the motorcyclist would not see him as he crossed, and in doing so the plaintiff altered his path and walked to the left of the marked crossing where unbeknownst to him the raised bitumen was situated.
It was the plaintiff’s first day attending the site. The second defendant was the principal contractor of the work site. The first and second defendants held a pre-start meeting at the beginning of the workday, in which references to hazards including slips, trips and falls were made in a general way, however no particular hazard was identified by location. No walk around site induction was provided. The plaintiff was under the direct supervision and instruction of the second defendant for the balance of the day. The second defendant controlled the roadworks and the line markers, had more knowledge of the site than anyone else, and directly ordered the plaintiff where to go and what to do.
The claim against the first defendant was made pursuant to the Workers’ Compensation and Rehabilitation Act 2003 (Qld), and the claim against the second defendant was pursuant to the Personal Injuries Proceedings Act 2002 (Qld). The plaintiff contended that the defendants breached their duty of care by, amongst other things, failing to alert him to the presence of the hazard when it knew or ought to have known about it. The plaintiff submitted that the defendants ought to have conducted a walk around site induction and have marked the hazard with fluorescent paint. The defendants argued that they had no knowledge of the hazard aside from a general awareness that uneven road surfaces existed within the worksite.
The decision at trial
The judge found that the hazard posed a reasonably foreseeable and not insignificant hazard giving rise to a risk of injury, however it was not accepted that either defendant should have specifically warned the plaintiff of the hazard as there was no evidence that either of the defendants had knowledge, or ought to have had knowledge, of the hazard such that they should have reasonably acted upon it. There was nothing which elevated or distinguished this particular raised section of the roadway to other areas of the worksite. Uneven surfaces were common on the worksite.
The judge also rejected the contention that the hazard ought to have been marked with fluorescent paint, as it was not reasonable for the defendants to identify and paint every single pothole, uneven surface or loose gravel on the worksite, because the worksite was 1.7 km in length and contained multiple intersections of some width.
The judge found that the defendants’ system of work and control measures were reasonable in the circumstances, and nothing more could have been reasonably done. Whilst a walk around site induction is ideal, it was not practical; the judge was not satisfied that the risk of injury would have been prevented or significantly minimised by a walk around site induction. The system was not lacking. In the end, while some criticism (the lack of opportunity of a site walk around) could be made against the first defendant, the judge found that it did not equate to a finding of liability under ss 305B and 305C of the WCRA.
With respect to causation, the judge found that the plaintiff’s injury was caused by the distracting presence and actions of the motorcyclist, when working next to live traffic and/or carrying a load. Even if the defendants had undertaken any of the precautions as asserted by the plaintiff, the judge considered that the incident would have occurred regardless.
The judge was satisfied that each defendant had discharged its duty of care to the plaintiff and therefore the claim against both defendants was dismissed.
The judge was not persuaded that a finding of contributory negligence should be made against the plaintiff as he was not disobedient or reckless to his instructions, nor was he acting outside the course of his employment.
The claim was dismissed because liability had not been established.
Implications for you
While employers owe a non-delegable duty of care to employees to avoid exposing them to unnecessary risk of foreseeable injury, the duty does not oblige the employer to safeguard employees completely from all perils. Principal contractors also owe a similar duty to avoid exposing others to a reasonably foreseeable risk of injury, where foreseeability is a key consideration.
In this case, whilst the court found that the cause of the plaintiff’s injury was the motorcyclist, the court‘s decision to dismiss the claim against the defendants still involved a close analysis of the adequacy of the system of work in the context of the specific worksite.
This highlights the importance of maintaining and adhering to an appropriate system of work which is tailored to your specific worksite, as this is key to demonstrating compliance with the requisite duty of care owed to workers and other persons on or around your worksite.