A bump in the road

Carter Newell Lawyers has recently successfully defended a claim made by Mr. Shawn Morris against the State of Queensland in the matter of Morris v Evolution Traffic Control Pty Ltd & Anor1.

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 worksite3 and accepted the evidence of a TMR witness that such a measure would be ‘challenging, onerous and impractical’.4

The claim against Evolution

The plaintiff contended Evolution failed to (a) alert him as to the presence of the raised bitumen; (b) direct TMR to remove the hazard; (c) direct the plaintiff to reduce the number of cones being carried to reduce the burden which would contribute to lost footing if an obstacle was encountered; or (d) provide the plaintiff with a trolley rather than have him carry cones manually.

In response, Evolution submitted it had no knowledge of the hazard such that it could not have performed (a) or (b); the plaintiff had received considerable training and instruction to watch out for risks of slips/trips and be mindful of how much weight to carry; and the use of trolley was not part of the system of work nor did it need to be as such a device would not have reduced the risk of a trip injury.

His Honour was satisfied the risk of injury from a trip and fall from uneven road surfaces was reasonably foreseeable and not insignificant. This risk was heightened when working beside live traffic and/or carrying a load. Despite this, His Honour could not identify any reasonable precautions which should have been adopted to minimise or prevent the risk of injury.

His Honour found Evolution did not need to specifically warn its employees of the raised bitumen as (1) it did not have knowledge of its existence and (2) there was nothing which elevated or distinguished this particular raised bitumen in comparison to other areas on the worksite (uneven surfaces were common and Evolution’s employees were regularly reminded of this, a fact the plaintiff conceded).

His Honour found the plaintiff had sufficient skill (as an experienced traffic controller) to expect undulations. His Honour further stated that whilst ‘it was not perfect5 the plaintiff was not given a walk around site induction, this did not rise to the level of breach of duty having regard to the principles requiring consideration under sections 305B and 305C of the Workers Compensation and Rehabilitation Act 2003 (Qld).

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.

Peter Dovolil
Partner
Rebecca Woodrow
Solicitor

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