Momentary Misjudgment Insufficient to Crush Plaintiff’s Claim for Damages

Authors: Rebecca Stevens, Partner & Amy Gill, Special Counsel

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 [2019] QSC 146.

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 claim

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.

The evidence

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.

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