If a worker fails to watch their step on a worksite, an employer or principal contractor might not be liable for the worker’s injuries.
The recent case of Morris v Evolution Traffic Control Pty Ltd & Anor [2023] QDC 195 demonstrates the importance of having an adequate system of work to eliminate or minimise risks and that workers are also under an obligation to take care of their own safety.
facts
On 3 August 2018, then 50-year-old traffic controller Shawn Morris suffered fractures to both his elbows when he tripped over a raised section of roadway while holding six traffic cones at a traffic site near the intersection of Compton and Logan Roads in Underwood. The raised section was approximately 35 mm above the surrounding roadway and each cone weighed around 3kg whilst being stacked approximately 940mm high.
Before starting his shift, Mr Morris attended two pre-start meetings – one with his employer, Evolution Traffic Control Pty Ltd (Evolution), and one with the principal contractor, the Department of Transport and Main Roads (TMR). Various hazards including slips, trips, and falls were referred to in both meetings.
Mr Morris was under the direct instruction and supervision of TMR which had operational control of the worksite.
At the time of the incident, Mr Morris had picked up six traffic cones to cross six lanes of Compton Road (three each way) using a designated but incomplete pedestrian crossing. As the traffic was slowing for a red light, Mr Morris approached the intersection and walked towards the first lane, and as he approached the second lane, he veered to his left, away from the marked pedestrian crossing to allow space to an oncoming motorcycle. Whilst looking ahead and focusing on the motorcycle, Mr Morris tripped on a raised section of the roadway and lost his balance, throwing the traffic cones to one side and falling forward injuring both his elbows.
Was the Employer (Evolution) Liable?
Mr Morris alleged Evolution failed to (1) alert him of the presence of the raised section of the road which amounted to a hazard giving rise to a risk of injury; (2) liaise with TMR to remove the hazard; (3) give him directions to reduce the number of traffic cones he would carry at any one time so as not to block his vision; and (4) provide him a trolley to move traffic cones around instead of carrying them.
Evolution argued they had no knowledge of the hazard, therefore they could not have informed Mr Morris of its presence or coordinate its removal with TMR. Evolution acknowledged that it knew of trip hazards on a worksite and that their system of work included general warning about slips, trips, and falls and daily risk assessments to be undertaken by the employees on site to identify any site-specific hazards before they start work.
Further, Evolution stated the use of a trolley to move traffic cones was not part of its system of work and it would have not reduced the risk of a trip injury. Evolution maintained it provided Mr Morris sufficient and reasonable training and instructions (1) to be mindful of his surroundings; (2) to watch out for risks of slips and trips; and (3) how much weight to carry.Â
Was the Principal Contractor (TMR) Liable?
Mr Morris alleged TMR breached its duty of care as an occupier in control of the roadworks being performed where he was injured. During the induction, Mr Morris alleged the TMR failed to mention the raised section of the roadway. Mr Morris alleged TMR failed to take reasonable care for his safety by failing to undertake a proper risk assessment and warn him of the risk of injury.
the court's findings
The Court found Evolution did not breach its duty of care to Mr Morris, and if there was a breach, the breach of duty did not cause Mr Morris’s injury. Had the motorcyclist not approached, Mr Morris would have remained within the pathway and focused on where he was walking, avoiding the trip and fall. It was therefore not appropriate to extend Evolution’s scope of liability to Mr Morris’s injury because of the action and presence of the motorcyclist.
Similarly, the Court found TMR discharged its duty to take reasonable care to minimise the risk of injury to Mr Morris. Judge Jarro concluded there was nothing more TMR could reasonably have done in the circumstances to avoid or minimise the risk of injury to Mr Morris as he was sufficiently reminded of the importance of being vigilant within the worksite and watching his path of travel especially when a high volume of traffic was expected on the worksite.
The Court dismissed Mr Morris’s claim against Evolution and the TMR.
key takeaways
This case is a reminder that the duties of employers and principal contractors are not absolute. The employer owes a non-delegable duty to its employees to take reasonable steps to provide a safe place of work and a safe system of work, but that duty does not oblige the employer to safeguard their employees completely from all dangers. Employers and principal contractors then do not breach their duty of care to the worker if they act reasonably in all circumstances.
