No contributory negligence found for worker’s own exposure to risk

20 August 2019

An Employer, Principle Contractor and Supervisor were found to have breached their duty to a worker for failing to prevent a foreseeable and known hazard. No contributory negligence was found against the Worker for placing himself in harm’s way.

In issue

  • Breach of duty by an Employer and Contractors for failing to address a known hazard.
  • No contributory negligence found against the Worker where their own misjudgement exposed them to risk of injury.

The background

The Plaintiff was employed by the First Defendant as a Foreman. In May 2013, the Second Defendant entered into a commercial building agreement for the construction of a motor vehicle showroom. The Second Defendant entered into a contract with the Third Defendant for the provision of a Site Supervisor. The Second Defendant also entered into a subcontract with the First Defendant for the supply and installation of all concrete and associated works forming part of the construction work. On 26 August 2013, the Plaintiff sustained serious personal injury when an excavation collapsed upon him at a worksite, causing a comminuted fracture of the body of his L3 vertebrae, fractures of his right L1 and L2 transverse processes, and symptoms of post-traumatic stress disorder.

The Plaintiff brought proceedings against the First Defendant, Second Defendant and the Third Defendant, seeking damages for the injuries he sustained.

There was a significant factual dispute as to why the Plaintiff was in the trench at the time of its collapse. There were no eyewitnesses to the accident. The Plaintiff alleged he entered the trench to retrieve a drill he noticed had been left there. The Defendants asserted the Plaintiff entered the trench to undertake the shoring up work he had requested be done, when pointing out his safety concerns about the likelihood of the trench collapsing to the Second Defendant’s supervisor.

The decision at trial

The Court accepted the evidence of the Plaintiff and found him to be an honest and compelling witness. The Court also accepted that it was within the Plaintiff’s scope of duty as a spotter, and, having spotted the drill and recognised the potential for it to be damaged if left in the trench, to retrieve it to ensure that it continued to be operable so as to allow the shoring up process to be completed, and in turn, allow the Plaintiff and his workers to complete their work. The Court also found that the risk of injury from collapse of the excavation face was foreseeable, as it was a risk which the First Defendant knew, as that risk had previously been communicated by the Plaintiff to it. The risk of collapsing excavations and trenches was obvious and not insignificant. The Court also noted the report of an expert engineer, which concluded that the proper way to manage the risk of excavation collapse was to engage in benching or battering of excavations and trenches.

Despite this, the Court went on to find that there was a low probability of the injury occurring if care were not taken, because the area above the excavation had in fact been compacted to a higher degree by the Second Defendant. However, the likely seriousness of the injury was very high, and the Court therefore concluded that the First Defendant was in breach of its duty of care to the Plaintiff to provide a safe place of work by failing to ensure that the excavation face had been benched or battered prior to allowing him to perform any work, including as a spotter, in the area near the excavation trench. The First Defendant had been specifically warned of the danger of the excavation face collapsing and was in breach of its duty to the Plaintiff to provide a safe place of work.

In relation to the liability of the Second and Third Defendants, the Court held that the risk of injury of the collapse of the excavation was foreseeable, particularly as that particular risk was the subject of specific obligations in the relevant site safety plan. Reasonable care required the Second and Third Defendants to comply with the site safety plan by battering the excavation face or benching, as occurred immediately post-accident. It was plain, in the Court’s view, that as Principal Contractor, the Second Defendant had control over the site. It was ultimately held that by failing to bench or batter the excavation face, the Second and Third Defendants were in breach of their duty of care to the Plaintiff and this caused the Plaintiff to suffer personal injury.

In relation to contributory negligence, the Court noted that the Plaintiff knew the trench was at risk of collapse - he had expressed a clear desire not to enter into the trench area because of it. Yet, acting as a spotter, he observed the drill on the bottom of the trench being covered by dirt and so took a calculated risk. The Court noted that the Plaintiff entered the trench in a safe area behind the concrete retaining wall having previously observed the Second Defendant’s workers safely doing so on previous occasions. The Court concluded that there was an extremely low prospect of him being injured if he entered into the trench to retrieve the drill. If he did not go in to retrieve the drill, he would not be fulfilling his role as a spotter or as foreman. The Court held that this decision amounted to no more than momentary misjudgement, rather than inattention, and did not amount to contributory negligence.

Judgment was entered against the Employer (the First Defendant) in the amount of $548,612.95, and against the Principal Contractor (the Second Defendant) and the Subcontractor (the Third Defendant) in the combined amount of $909,504.00.

It is especially of interest that in assessing future economic loss, the Court considered the Plaintiff no longer had any residual earning capacity due to his incident related injuries, but allowed for a 20% discount to allow for contingencies associated with the Plaintiff’s pre-existing bilateral osteoarthritic hips and cardiac condition.

Implications for you

The implications arising out of this case are clear. The risk of harm arising out of a collapsing excavation trench was both foreseeable and preventable by all three Defendants. There is no doubt that liability will attach an employer, contractor or supervisor for failing to take steps to prevent a significant risk of injury, particularly where the knowledge of the hazard was had before the incident occurred.

No contributory negligence was found against the Plaintiff however for his misjudgement alone, even where he knew of the risk beforehand. Employers therefore ought not rely on the likelihood of an argument for contributory negligence just because a worker was aware of the risk, but by their own misjudgement exposed themselves to said risk.

Accordingly, it is important for employers to not only ensure their places of work are safe for workers, but to also ensure that any accepted manner of work is also safe. It is also crucial that all hazards are addressed, particularly where the hazard has been brought to the employer’s attention.

Cootes v Concrete Panels & Ors [2019] QSC 146

Janine Clark
Yen Tran

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