Momentary misjudgment insufficient to crush plaintiff’s claim for damagesJul 2019 | Insurance
A worker’s actual knowledge of a specific risk that arises on a worksite may not provide sufficient basis for a finding of contributory negligence, as demonstrated in the recent Queensland Supreme Court decision of Cootes v Concrete Panels (Qld) Pty Ltd & Ors.1
Darren Cootes (Plaintiff) brought proceedings for damages for injuries he sustained on 26 August 2013 when a trench collapsed on him at a construction site.
A factual dispute as to what the plaintiff was doing in the trench and the plaintiff’s own evidence that he had identified the trench as being at risk of collapse before the incident, led the Court to give consideration as to whether the plaintiff’s injuries were caused or contributed to by his own negligence.
The plaintiff was employed by the first defendant, Concrete Panels, as a foreman on a construction site. The second defendant, SMJ Projects, was the principal contractor for the construction and had contracted Concrete Panels to supply and install concrete as part of the construction. SMJ Projects contracted the third defendant, Capable Construction, to provide site supervision for the construction project.
The plaintiff sustained significant back and psychological injuries when an excavation face collapsed into a trench in which he was standing at the construction site on 26 August 2013.
The trench was approximately 700mm deep and had been dug by an excavator to allow for the pouring of concrete footings. Rising above one side of the trench was the 2.6m high excavation face consisting of a compacted area of dirt six or seven metres long running adjacent to an existing block wall.
The plaintiff alleged Concrete Panels breached the non-delegable duty of care it owed as his employer by failing to provide a safe and proper system of work and a safe and proper place of work. The plaintiff alleged SMJ Projects and Capable Construction breached the duty of care they owed to him as principal contractor and site supervisor by failing to take reasonable care to avoid the risk of injury resulting from a collapse of the excavation face into the trench.
The defendants all denied liability and, alternatively, sought a finding of contributory negligence against the plaintiff on the basis that the plaintiff was aware of the risk posed by the trench and his conduct in intentionally entering the trench went well beyond inattention, misjudgment or inadvertence.
On the Friday prior to the incident date, the plaintiff was working in the vicinity of the excavation face and noticed loose gravel and fill collapsing into the trench. The plaintiff expressed his concerns that the area would cave in and cause injuries to workers in the trench to the site supervisor employed by Capable Construction, Lance Judd. He also phoned his own employer, Mr Love, to tell him of his concerns. Mr Love informed the plaintiff that he would raise the issue with SMJ Projects and the site foreman. At 2.00pm that Friday, the plaintiff was told to stop work so the excavation face could be shored up.
Upon return to the worksite the following Monday morning, the plaintiff noticed further caving in had occurred. He again raised the issue with Mr Judd who instructed him not to work in the area until a labourer could shore up the face with plywood. The labourer worked in the trench for about 10 minutes while the plaintiff acted as spotter. The plaintiff observed further material falling into the trench and, concerned for his safety, requested the labourer get out of the trench and go and retrieve a piece of equipment from elsewhere on the site.
A significant factual issue arose at trial as to why the claimant was in the trench at the time it collapsed. The plaintiff alleged he entered the trench to retrieve a drill the labourer had left at the bottom of the trench. SMJ Projects and Capable Construction both alleged the plaintiff entered the trench to continue shoring up the exposed excavation face. Their assertions were supported by admissions made by the plaintiff in a statement to the Workplace Health & Safety investigator taken within three weeks of the incident. The plaintiff gave evidence at trial that he could not recall what he told the Work Place Health & Safety investigator but asserted that the version of events in the Work Place Health & Safety statement was inaccurate.
The Honourable Justice Crow found in favour of the plaintiff against all three defendants.
Notwithstanding that the labourer denied leaving the drill on the bottom of the trench, and the plaintiff’s failure to make any mention of the drill to the Workplace Health & Safety investigator, His Honour accepted the plaintiff’s evidence at trial that he observed the drill and entered the trench to ‘rescue’ it from the dirt that was falling onto it.
His Honour found that the drill had fallen into the trench as a result of the labourer leaving it on the edge of the trench. His Honour accepted the plaintiff’s evidence that he entered the trench from a step down adjacent to the existing retaining wall, placed his right hand upon the wall and stepped out a short distance to attempt to drag the drill back behind the retaining wall. As he stepped into the trench, the excavation face and trench collapsed onto him.
Liability of the employer
His Honour rejected Concrete Panels’ argument that the plaintiff was not performing employment duties at the time of the incident as those duties did not extend to rescuing the drill. Accepting that immediately prior to the incident the plaintiff was acting as a spotter whilst the shoring up work was being undertaken, His Honour found that it was within the plaintiff’s scope of duties to rescue the drill to ensure it remained operable so the shoring up could be finished and his own workers could continue with their work. The rescue of the drill was a task that was closely aligned with the duties allocated to the plaintiff as a spotter and came within his duties as an employee of Concrete Panels.
The risk of injury from the collapse of the excavation face was held to be foreseeable, obvious and not insignificant. SMJ Projects’ site plan set out the action a reasonable person would take to address the risk, namely, ensuring benching or battering was installed. This was done immediately after the incident. There was a low probability of an injury occurring but the likely seriousness of the injury was very high. The burden of taking precautions to avoid the risk was held to be small.
His Honour concluded Concrete Panels was aware of the risk and breached its duty of care to the plaintiff to provide a safe place of work by failing to ensure the excavation face was benched or battered prior to allowing the plaintiff to perform any work, including work as a spotter, in the area near the trench.
Liability of the principal contractor and site supervisor
SMJ Projects and Capable Construction were also held to have breached the duty of care they each owed to the plaintiff.
The risk of the excavation face collapsing was foreseeable and reasonable care required the two defendants to comply with the site safety plan by battering or benching the excavation face. SMJ Projects had control over the site as principal contractor and was aware that Capable Constructions was not adhering to the site safety plan with regards to the construction of the excavation face.
His Honour was not prepared to make any finding of contributory negligence against the plaintiff, despite noting that, on the plaintiff’s own evidence, he knew that the trench was at risk of collapse and had expressed a clear desire not to enter the area.
His Honour considered it important that the plaintiff had entered the trench in a safe area behind the existing retaining wall and had observed other workers working in the area without sustaining any injury. The excavation had not suffered a major collapse for three days prior to the incident and the plaintiff was able to logically form the conclusion that there was extremely little prospect of him being injured if he entered the trench to retrieve the drill.
In determining the respective departures from the standards required of a reasonable person, his Honour noted the degree of blame in the employer was very high as it had permitted a worker to perform work tasks in an area with an unsafe excavation face which had been constructed in a manner which was against well-known safety principals and the site safety plan. The plaintiff’s own actions were not due to inattention. He was extremely concerned about the risk of injury to himself, or others, from the collapse of the excavation face yet knowingly exposed himself to the danger for a matter of seconds in order to retrieve the drill so work could continue at the site. The plaintiff’s action in entering the trench could also therefore not be described as inadvertent, but rather, was a momentary misjudgment that did not call for an apportionment of contributory negligence.
As a result of the incident, the plaintiff sustained a comminuted fracture of the body of his L3 vertebrae, fractures of his right L1 and L2 transverse process and symptoms of post-traumatic stress disorder.
Damages of $548,612.95 clear of the $269,140.05 WorkCover refund were assessed as against Concrete Panels. An assessment of $909,504.00 damages at common law was made against SMJ Projects and Capable Construction. Consideration was given to the plaintiff’s unrelated bilateral osteoarthritis of his hip and a cardiac condition and past economic loss was reduced to account for time he would have required off work, regardless of the subject incident, due to cardiac surgery. A 20% discount was applied to the calculation of future economic loss to account for contingencies, including those unrelated conditions.
This decision reinforces the considerations the court will apply when looking at the issue of contributory negligence.
Actual knowledge of the risk that eventuates does not, of itself, provide basis for a finding of contributory negligence. The conduct of the plaintiff, particularly in an employment situation, will be judged in the context of the circumstances in which the worker was required to work. An action by a plaintiff that is determined to be a momentary misjudgment will not provide basis for a contributory negligence finding, particularly if it was reasonable for the plaintiff to have determined that there was a low probability of injury occurring in the particular circumstances.
The decision is also a good reminder that a contemporaneous version of events will not always be given greater weight if a court is faced with conflicting evidence as to the circumstances of an incident.
1  QSC 146.
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