Employer and primary contractor held not liable for trip and fall at traffic site: Morris v Evolution Traffic Control Pty Ltd & Anor [2023] QDC 195

Morris v Evolution Traffic Control Trip Incident: Case Background

The Plaintiff, Shawn William Morris, fractured both shoulders when working at a traffic site in Underwood, Queensland, after tripping on a raised section of bitumen whilst carrying six traffic cones.

The Plaintiff had not previously worked at the worksite, having been a last-minute addition to his employer’s, Evolution Traffic Control Pty Ltd (‘the First Defendant’), work team.

Following arrival at the worksite, a pre-start meeting was conducted by the First Defendant, as well as an individual on behalf of the Second Defendant, the State of Queensland. A number of forms were completed during the pre-start meeting, such as a Job Docket Risk Assessment, a Daily Traffic Management Checklist and Docket, and a RoadTek Prestart Meeting Form. All documents were cited and signed by the Plaintiff. Reference to hazards, such as slips, trips, and falls, was made in a general sense, however, specific hazards were not identified by location by either Defendant. The Plaintiff gave evidence that each Defendant provided a separate and distinct pre-start meeting and supporting documentation, but that they emphasised similar issues, being slips, trips, and falls.

There was no walk around site induction provided.

The incident occurred near the intersection of Compton and Logan Roads. Upon traffic slowing for a red light, he began to cross Compton Road whilst carrying the traffic cones. At the same time, the Plaintiff heard a motorcycle approaching him. Whilst keeping the motorcycle under observation, he tripped on a 35mm raised section of bitumen, falling forward to the road surface.

Position of the Parties – Liability

Plaintiff

The Plaintiff contended that the bitumen where he tripped had been so raised to a level above the surrounding roadway that it constituted a reasonably foreseeable and not insignificant hazard giving rise to a risk of injury.

As to the First Defendant, the Plaintiff alleged that it breached its duty of care owed to the Plaintiff by virtue of: –

  • Failing to alert the Plaintiff to the presence of the raised bitumen when it knew, or ought to have known, of its presence;
  • Failing to inform the Plaintiff of the raised bitumen during the pre-start meeting;
  • Failing to liaise with the Second Defendant to have the Second Defendant remove the hazard; and
  • Failing to limit the number of traffic cones that the Plaintiff carried at any time, or otherwise provided a trolley to the Plaintiff for moving around the cones.

With respect to the Second Defendant, the Plaintiff alleged that it was liable as the occupier in control of the roadworks and by virtue of it provided direct instruction to the Plaintiff. Its alleged breach was conceived of in a similar manner as the First Defendant’s alleged breach, namely, its failure to warn the Plaintiff of the hazard.

First Defendant

The First Defendant alleged that it had no specific knowledge of the hazard and therefore, could not have informed the Plaintiff of its presence or requested that the Second Defendant remove it. Additionally, it submitted that the training and instruction provided by it to the Plaintiff was sufficiently reasonable. As to the Plaintiff’s suggestion that he ought to have been provided a trolley, the First Defendant submitted that there was no evidence that this would have reduced the risk of injury and instead, suggested that it would have increased such a risk by obscuring the Plaintiff’s vision.

The First Defendant further alleged that a finding of contributory negligence ought to be made against the Plaintiff.

Second Defendant

The Second Defendant submitted that any duty of care owed to the Plaintiff was discharged by it retaining a highly experienced contractor who was expected to implement high standards of workplace safety; it was entitled to assume that the Plaintiff had the requisite degree of skill to perform the designated tasks in a safe manner. It therefore followed, according to the Second Defendant, that it had no obligation to provide warning relating to the different heights of the road surface.

The Second Defendant also sought a finding of contributory negligence against the Plaintiff.

Decision

The Plaintiff’s claims against the First and Second Defendants were dismissed.

Jarro DCJ was satisfied that the risk of injury to the Plaintiff from a trip and fall caused by an uneven road surface was reasonably foreseeable and not insignificant, with this risk being heightened in circumstances in which he was consistently working beside live traffic and carrying a load.

However, Jarro DCJ opined that the First Defendant did not breach its duty of care to the Plaintiff, as there were no further reasonable precautions the employer ought to have taken against this risk of injury. In this regard, the Court opined that the First Defendant did not have specific knowledge of the hazard, aside from a general awareness that the worksite had within it uneven road surfaces. In addition, it was the Court’s view that the First Defendant was not required to specifically warn the Plaintiff of the hazard that caused him to fall as “there [was] nothing which elevated or distinguished this particular raised section of the roadway to other areas of the worksite.”

As to the Plaintiff’s liability case in respect of the Second Defendant, Darro DCJ opined that the Second Defendant had discharged any duty it owed to the Plaintiff by displaying a reasonable level of vigilance, risk assessment, and ongoing maintenance and repair in respect of the worksite.

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