Peters v Wilkins Trust [2020] QDC 125
- Injury sustained on 3 August 2015.
- Decision delivered on 10 June 2020.
Background
The plaintiff, Mr John Arthur Peters (the plaintiff), was a block and brick layer with about 40 years of experience who sustained a lower back injury after tripping on pipes protruding from a house slab. The plaintiff’s claim is against his employer, Robert Ronald Wilkins and Karen Wilkins as trustee for RR & KL Wilkins Trust (the defendant).
On 3 August 2015 the plaintiff was working as a bricklayer at a new house construction site (the site). He was almost 58 years old at the time. The defendant is a small bricklaying family business under the control of Mr and Mrs Wilkins. Mr Wilkins was responsible for all issues relating to job safety assessment, safe work procedures and job safety training of employees.
At one point the plaintiff was working with a string line to lay blocks to build a straight section of wall on the perimeter of the house slab. After he repositioned the line block secured at one corner of the wall, the plaintiff moved to look along the line to check it was running free and level, and manoeuvred such that he lost balance when the heel of his left work boot caught on pipes protruding from the slab. He fell backwards onto a stack of blocks by initially striking his right chest area then severely twisting and jerking his lower back. He landed partly on the block stack and partly on the slab.
Allegations
The plaintiff claims that:
a. The defendant breached its duty of care to protect him against the risk of tripping on pipe work and suffering injuries on the site.
b. The defendant’s breach caused him to trip and suffer a severe back injury.
The defendant disputes the plaintiff’s claim on the basis that:
a. The protruding pipes were plastic, not copper.
b. It does not accept the mechanism of injury in the way the plaintiff claims he fell.
c. The plaintiff was aware of the position of the protruding pipes, and therefore it was unnecessary to warn of the risk of falling over the pipe.
d. The risk of tripping was insignificant.
e. Marking the pipe in some way would not have reduced the risk. Barricading off the plastic pipe would have created an alternative tripping hazard.
f. The defendant did not have the power, authority or right to remove the pipe.
g. The plaintiff was contributorily negligent.
h. An event on 28 February 2017 was an intervening event which subsumed the effect of the incident on 3 August 2015.
i. The plaintiff had a pre-existing degeneration of the lumbar spine, and his capacity for work would be effected by other medical conditions.
j. The plaintiff failed to return to work despite having capacity to do so.
The defendant accepted that a duty of care was owed by the defendant to the plaintiff. There was also no dispute as to whether the plaintiff was an employee of the defendant.
Did the defendant breach its duty of care?
Morzone QC DCJ agreed with the plaintiff that protruding pipes on a residential building slab in the vicinity of a bricklayer’s work present a tripping hazard in that location and a risk of injury. He also agrees with the plaintiff in that the defendant “ought to have appreciated that the work duties of a bricklayer do not involve a constant lookout of footing and proximate trip hazards”.
It is noted that the defendant’s generic safe work method, which identified ‘slips, trips and falls’ as possible hazards, acts to acknowledge that the risk of tripping on a building site is generally foreseeable.
At [23]-[24], Morzone QC DCJ states that:
“[23] Unlike a supermarket, or even a bare slab, a residential building at the wall construction stage is a very different environment. By the time it becomes a building site with a busy and crowded building slab with plant, equipment and materials to be used in the block laying work. Stacks of blocks on pallets are typically placed adjacent to the block-work areas for ready access, starter bars of steel rods protrude about 800mm above the slab along wall alignments ready to be encased by the blocks, and plumbing pipes penetrate and protrude above the slab where required. Ready appreciation of protruding pipes is often obscured by surrounding things as a brick layer might walk to, and manoeuvre around, their work area. A bricklayer would be expected to regularly move in the vicinity of adjacent protruding pipes as they properly carry out the exacting tasks of laying a good quality straight block wall, including adjusting the string line to ensure level alignment. A bricklayer may well inadvertently not notice protruding pipes as they move around competently doing their task.
[24] The defendant knew or ought to have known of the risk of a bricklayer injuring himself by tripping on protruding pipes as he moved in the ordinary course of his work.”
Morzone QC DCJ disagreed with the defendant’s argument that the pipes were not in any walkway that the plaintiff was required to traverse regularly for his purposes as a bricklayer, and therefore the risk the risk of tripping does not pass the ‘not insignificant’ test.
Morzone QC DCJ pays particular attention to the defendant’s lack of warning to the plaintiff, and states the following:
“[62] It seems to me that a reasonable person in the position of the defendant, in the absence of any markings or barricading, would have taken the opportunity to warn a bricklayer and reminded him of the location of the protruding pipes in the vicinity of the area on the floor slab in which he was working. I think a warning or reminder to a worker, before starting in that vicinity, would probably have prevented the risk of injury and I see no undue burden in doing so. The warning may be unnecessary if protruding pipes had been clearly identified, marked and/or barricaded and thereby identified as an obvious risk, but they weren’t.
…
[120] A separate oral warning may have been obsolete if the defendant had marked the pipes so as to provide a ready visual warning, or by simply abutting the stack of blocks against the pipes and thereby eliminating or effectively neutralising the risk of tripping. But these precautions were not taken, and I think a timely warning at the commencement of his work in the vicinity of the pipes would have alerted (or at least reminded) him to the presence, hazard, and risk presented by the pipes.”
The defendant sought to rely on the plaintiff’s knowledge of the slab. However Morzone QC DCJ did not consider it reasonable to expect the plaintiff to recall the particular protrusion of the pipes, especially considering the nature of the plaintiff’s work involved working across multiple building sites.
The defendant was found to have failed in warning and reminding the plaintiff in a timely manner of the risk. This failure was a “necessary condition of the occurrence of the injury resulting from the plaintiff’s trip”.
What about Contributory Negligence?
Contributory negligence was considered, but ultimately disregarded by Morzone QC DCJ. The risk of tripping on the protruding pipes was deemed to not be an obvious risk, and liability was awarded wholly against the defendant.
Decision
Judgment to the plaintiff for $191,383.70.
That the defendant pay the plaintiff’s costs of the proceeding on the standard basis.