Cootes v Concrete Panels [2019] QSC 146
Background Facts
Mr Cootes was a foreman working on a construction site for Concrete panels. In May 2013, SMJ Projects entered into a commercial building agreement with Concrete Panels for the construction of a motor vehicle showroom at 246 Brisbane Road, Booval. SMJ Projects also entered into a subcontract with Capable Construction for the provision of site supervisor, Mr Lance Judd.
Mr Cootes was employed by Concrete Panels as a foreman and was responsible for the subcontract works being carried out on the work site. This predominantly included the supply and installation of all concrete and associated works.
On 26 August 2013, while on the work site, an excavator collapsed on Mr Cootes causing him to suffer numerous spinal fractures and post-traumatic stress disorder. Mr Cootes was in a trench that was about 700mm deep which was dug by the excavator to allow for the pouring of concrete footings. Following the excavator collapsing in the trench, Mr Cootes was found buried to the top of his chest. Following the accident Mr Cootes brought proceedings for personal injury against his employer, Concrete Panels, the principal contractor SMJ and the principal contractor’s representative and site manager, Capable Construction.
Issue
The main issues relating to this matter included:
- Whether an employer, principal contractor, and project manager breached duties owed to the plaintiff foreman.
- Whether damages should be reduced on account of contributory negligence, an unrelated hip injury and cardiac condition.
Liability Concerns
While there was no dispute that Mr Cootes was in the trench at the time of the accident, the significant factual issue with respect to liability was determining what Mr Cootes was doing and where Mr Cootes was standing in the trench at the time of his injury.
This was difficult to determine as there were no independent eyewitnesses that could confirm what occurred immediately prior to and at the time Mr Cootes was injured.
Furthermore, no photographs were taken of the accident scene prior to or immediately after the incident and no report was provided in respect of the accident. All evidence was dependent upon Mr Cootes’ evidence entirely.
Allegations
Plaintiff
- The Plaintiff (Mr Cootes) argued that he entered the trench to retrieve the drill left by Barry Judd with the intention of immediately leaving the trench once retrieved.
Defendant
- The 2nd and 3rd defendants argued that in the absence of Lance Judd and Barry Judd (the site supervisors) Mr Cootes picked up the drill, entered the trench, and continued the process of shoring up, putting bolts into the block wall and then screwing ply to the front of the wall.
- They also allege that the drill was not left on the bottom of the trench but rather the drill was left by Barry Judd on the side of the trench such that Mr Cootes had no reason at all to enter the trench.
Evidence that was submitted allowed
Crow J found that given Mr Cootes’ uncontradicted evidence that he made multiple complaints about the danger of the face to Mr Love and to both Lance and Barry Judd, it would seem hypocritical that Mr Cootes would voluntarily enter the trench and place himself in danger and would be one that he would not have performed.
Lance and Barry Judd gave evidence that they considered that working beside the exposed cliff dace did not pose any risk of danger and they themselves worked in the trench in the area where the incident occurred.
Legal Context
Under section 305B of the Workers Compensation and Rehabilitation Act 2003 (Qld):
- A person does not breach a duty to take precautions against a risk of injury to a worker unless –
- The risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and
- The risk was not insignificant; and
- In the circumstances, a reasonable person in the position of the person would have taken the precautions
- In deciding whether a reasonable person would have taken precautions against a risk of injury, the court is to consider the following (among other relevant things) –
- The probability that the injury would occur if care were not taken.
- The likely seriousness of the injury.
- The burden of taking precautions to avoid the risk of injury
Application to the facts:
In the present case the relevant risk is the risk of injury resulting from a collapse of the face of the excavation upon a worker working in the vicinity of the face of the excavation.
The damage suffered was the personal injuries sustained by the plaintiff as a result of collapse of the excavation face upon the plaintiff.
The duty that is alleged is a failure to “ensure that reasonable care was taken for the plaintiff’s safety by persons responsible for site safety and for systems of work at the places where the plaintiff was required to perform his duties.”
This breach that was alleged was ““by causing, permitting or allowing the plaintiff to perform work in the immediate vicinity of an exposed excavation face, in circumstances where it was unsafe to do so.
Findings
The trial judge found that Mr Cootes was acting in the scope of his employment duty in acting as a spotter in respect of the shoring up work and that retrieval of the drill fell within his scope of duties as an employee of Concrete Panels.
He went on to find that Mr Cootes’ employer had breached its duty to him in failing to provide a safe place of employment, in particular, by failing to ensure that appropriate measures were taken to ensure the safety of the excavation face (i.e. that it was benched or battered as provided for in the site safety plan) before workers entered the trench
It was also held that both SMJ and Capable Construction also owed Mr Cootes a duty of care “to use reasonable care to avoid the unnecessary risk of injury caused by a collapse of the excavation face”.
Consistent with his findings against Mr Cootes’ employer the trial judge found that SMJ and Capable Construction had similarly breached their duty of care to Mr Cootes by failing to carry out the excavation works in accordance with the site safety plan.
Contributory Negligence
The Court found that while the plaintiff knew the trench was at risk of collapse – he had expressed a clear desire not to enter into the trench area because of it. However, due to his role as acting as spotter, when he observed the drill on the bottom of the trench being covered by dirt, he took a calculated risk that was likely within the scope of his role.
The Court found if he did not go in the trench to retrieve the drill, he would not be fulfilling his role as a spotter or as foreman. This was a misjudgement in the moment and therefore did not amount to contributory negligence.
Order
The court allowed a 25% uplift on general damages.
For economic loss, the court was not persuaded that the plaintiff’s unrelated health conditions would have significantly impacted his ability to carry on work until the age of 67 and therefore made a 20% discount and retirement age of 64 years.
Judgement was made for Mr Cootes’ employer Concrete Panels in the sum of $548,612.95
Judgement was also made for SMJ and Capable Constructions in the combined sum of $909,504.00
Takeaway
This matter narrowed the scope for what is required for an employee to be considered contributorily negligent. This is because while Mr Cootes exposed himself to the risk of injury despite being fully aware of the risks associated, no contributory negligence was found.