Watch your step! Neither employer nor principal contractor liable for worker’s failure to watch where they were going

In the recent District Court decision of Morris v Evolution Traffic Control Pty Ltd [2023] QDC 195, an employer and principal contractor were both found not liable for a trip and fall on a raised section of bitumen at a traffic site.

This case serves as an important reminder that the duty owed by employers and principal contractors is only to act reasonably in all the circumstances, and that employees themselves must remain alert and vigilant to all hazards while on a worksite.

Facts

In August 2018, a then 50-year-old Mr Morris was employed as a traffic controller by Evolution Traffic Control Pty Ltd (employer). Mr Morris was placed at a traffic site at the intersection of Logan and Compton Roads in Underwood. The traffic site was part of the Pacific Highway Connection Road: V1 Project. RoadTek, a Queensland Government entity, was the principal contractor on site (principal contractor). The principal contractor engaged the employer to provide the traffic management services for the project.

On 3 August 2018, Mr Morris fractured both of his elbows when he tripped over a section of bitumen raised approximately 35 mm above the surrounding roadway (hazard) while carrying six traffic cones. At the time of the incident, he was attempting to cross the road in front of stopped traffic when, after hearing a motorcycle approaching, he veered left away from his intended path. The section of road in which Mr Morris fell was being developed to include a pedestrian crossing. The crossing was incomplete at the time of the incident.

Mr Morris was a last-minute addition to the work team, and it was his first day at the worksite. He underwent a pre-start meeting with both the employer and the principal contractor. At the conclusion of these meetings, Mr Morris signed various forms such as a Job Docket Risk Assessment, a Daily Traffic Management Checklist and Docket, and a RoadTek Prestart Meeting Form which referenced slip, trips and falls hazards generally.

Mr Morris was operating under the direction and supervision of the principal contractor.

Employer’s (non) liability

Mr Morris alleged the employer failed to: (i) alert him to the presence and location of the hazard; (ii) liaise with the principal contractor to have the hazard removed; (iii) direct Mr Morris to reduce the number of traffic cones he carried at any one time; and (iv) provide Mr Morris with a trolley to move the traffic cones around with.

The employer argued that it could not have warned Mr Morris of the hazard or arranged for its removal as it had no knowledge of its presence. It also argued that Mr Morris was provided with training and instruction: (i) to be mindful of his surroundings; (ii) about how much weight to carry; and (iii) to watch out for slip and fall hazards. Further, the employer argued that there was no evidence to suggest that the use of a trolley would have reduced the relevant risk of injury to Mr Morris as it would have obscured his vision.

Judge Jarro found that the risk of injury to Mr Morris from trip and fall on an uneven road surface while working next to live traffic and carrying a load was reasonably foreseeable and not insignificant. However, his Honour found that the employer had not breached its duty of care to Mr Morris as there was no further reasonable precautions it ought to have taken which were likely to have prevented the incident. Specifically, His Honour:

• Rejected Mr Morris’ argument that the employer should have specifically warned employees about the specific hazard as:
  • The employer or the principal contractor had no knowledge of the particular hazard
  • There was nothing which elevated or distinguished the raised section of bitumen from other areas on the worksite in circumstances where uneven ground is not uncommon on the worksite.
• Found that, although the lack of opportunity for a site ‘walk around’ should be criticised, it would not have prevented or significantly minimised the risk or injury.

Principal contractor’s (non) liability

Mr Morris alleged that the principal contractor was liable as it was the occupier in control of the roadworks and provided direct instruction to Mr Morris. He alleged that the principal contractor failed to alert him to the presence of the hazard or have it removed.

Judge Jarro found that the duty of a principal contractor was to take reasonable care to minimise the risk of injury to someone in Mr Morris’ position but, critically, it was found to be entitled to assume such workers had the requisite degree of skill to cross a road safely and keep an eye out. Accordingly, his Honour found that the principal contractor was not liable for the incident. His Honour:

• Rejected the suggestion of Justin O’Sullivan (ergonomist) that the hazard should have been painted with fluorescent paint to warn workers of its presence on the basis this was not reasonable or practical given the size and nature of the worksite.
• Found that there was nothing else that the principal contractor could reasonably have done to avoid or minimise the risk of injury to Mr Morris as the principal contractor had:
  • sufficiently reminded employees of the risk generally on a daily basis
  • reminded employees of the importance of being vigilant within the worksite and observing their path of travel
  • displayed a reasonable level of vigilance, and undertaken risk assessment and ongoing maintenance and repair.

Although Judge Jarro assessed Mr Morris’ notional damages at more than $250,000 gross, the claim was dismissed for want of liability.

This case serves as an important reminder that the duty owed by employers and principal contractors is only to act reasonably in all the circumstances, and that employees themselves must remain alert and vigilant to all hazards while on a worksite. In other words, employers are not reasonably required to draw employees’ attention to all potential hazards on site which employees themselves should ordinarily be capable of identifying.