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  4. Morris v Evolution Traffic Control Pty Ltd - [2023] QDC 195

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Morris v Evolution Traffic Control Pty Ltd[2023] QDC 195

Morris v Evolution Traffic Control Pty Ltd[2023] QDC 195

DISTRICT COURT OF QUEENSLAND

CITATION:

Morris v Evolution Traffic Control Pty Ltd & Anor [2023] QDC 195

PARTIES:

SHAWN WILLIAM MORRIS

(plaintiff)

v

EVOLUTION TRAFFIC CONTROL PTY LTD

ABN 64 109 656 233

(first defendant)

AND

STATE OF QUEENSLAND

(second defendant)

FILE NO/S:

BD3299 of 2020

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

31 October 2023

DELIVERED AT:

Townsville

HEARING DATE:

14-17 March 2023, 11 April 2023

JUDGES:

Jarro DCJ

ORDER:

The claim is dismissed

CATCHWORDS:

TORTS – NEGLIGENCE – STANDARD OF CARE, SCOPE OF DUTY – GENERALLY – where the first defendant employed the plaintiff as a traffic controller – where the first defendant was contracted to provide workers to the second defendant – where the plaintiff was subject to the instructions of the second defendant who had operational control of the worksite – where the plaintiff injured himself by tripping over a raised section of roadway while undertaking work duties – whether the first defendant employer breached its duty of care by failing to have a safe system of work against a foreseeable risk

TORTS – NEGLIGENCE – STANDARD OF CARE, SCOPE OF DUTY – GENERALLY – where the second defendant was the principal contractor of the worksite and had operational control over the plaintiff – whether the second defendant breached its duty of care by failing to warn the plaintiff of a foreseeable risk

LEGISLATION:

Workers’ Compensation and Rehabilitation Act 2003, s 305B, s 305C, s 305D(1), s 305F(2), s 305G, s 305H(1)(f), s 305H(1)(a)

Workers Compensation and Rehabilitation Regulation 2014, sch 9

CASES:

S J Sanders Pty Ltd v Schmidt [2012] QCA 358

Czatyrko v Edith Cowan University (2005) 79 ALJR 839

Knott v The Withcott Hotel [2015] QDC 314

Kondis v State Transport Authority (1984) 154 CLR 672

McLean v Tedman (1984) 155 CLR 306

Rudd v Starbucks Coffee Company (Australia) Pty Ltd [2015] QDC 232

Finn v The Roman Catholic Trust Corporation for the Diocese of Townsville [1997] 1 Qd R 29

Strong v Woolworths (2012) 245 CLR 182

Bostik Australia Pty Ltd v Liddiard [2009] NSWCA 167

Kerle v BM Alliance Coal Operations Pty Ltd [2016] QSC 304

Reddock v ST&T Pty Ltd [2022] QSC 293

Thompson v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234

Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7

State of New South Wales v Moss (2000) 54 NSWLR 536

Brear v James Hardie & Co Pty Ltd (2000) 50 NSWLR 388

COUNSEL:

R Morgan for the plaintiff

H Berghofer for the first defendant

AP Collins for the second defendant

SOLICITORS:

Shine Lawyers for the plaintiff

BT Lawyers for the first defendant

Carter Newell Lawyers for the second defendant

  1. [1]
    At about midday on 3 August 2018, then 50-year-old traffic controller Shawn Morris fractured both of his shoulders when he was working at a traffic site in Underwood after he tripped over a raised section of bitumen whilst carrying six traffic cones.  Mr Morris now seeks to recover damages for personal injuries occasioned by what he contends is the negligence of his employer, Evolution Traffic Control Pty Ltd, and the principal contractor of the site, being the State of Queensland, through RoadTek (which is an entity of the Department of Transport and Main Roads).  I am not required to determine the level of contribution as between the defendants. 
  2. [2]
    The location where Mr Morris was injured was in the vicinity of the busy intersection of Logan and Compton Roads, Underwood.  The intersection formed part of the ‘Pacific Highway Connection Road: V1 Project’ (“the project”) and Mr Morris’s employer, being the first defendant, was contracted to the second defendant to provide traffic control services for the project.  The project took up a considerable area of approximately 1.7 kilometres in length and included three intersections with multiple lanes of traffic and a small section of the side roads (“the worksite”).  Relevantly, the project included the installation of a pedestrian crossing in the area where Mr Morris fell.   
  3. [3]
    Whilst the project specifically dealt with project works, the second defendant retained Ventia Boral Amey Joint Venture as the road steward for the worksite.  This retainer was governed by a Road Asset Management Contract (“RAMC”).     

The Day of the Incident

  1. [4]
    Mr Morris was a last-minute addition to his employer’s work team on the day of the incident.  After receiving a telephone call and a text message from his employer in the early hours of 3 August 2018, Mr Morris was directed to attend the worksite.  It was his first day ever at the worksite. 
  2. [5]
    The first and second defendants each gave a pre-start meeting at the crib shed which lasted no more than 30 minutes (“the pre-start meeting”), and then, for the balance of the working day, Mr Morris was under the direct instruction and supervision of the second defendant. 
  3. [6]
    At the pre-start meeting, personnel and supervisors from both defendants were present.  Notably, Mr Morris met Mr Steve Tatham of the second defendant.  During the meeting, Mr Tatham explained to Mr Morris and others present that they needed the job done that day and were behind schedule.  They were taking out lanes of traffic so that the line markers could do their job of putting out the signage and taking out the lanes.  A number of forms were completed during the pre-start meeting, namely a Job Docket Risk Assessment, a Daily Traffic Management Checklist and Docket and a RoadTek Prestart Meeting Form.[1]  The forms were cited and signed by Mr Morris and others.  References to hazards including slips, trips and falls were made in a general way, however no particular hazard was identified by location.  Mr Morris said that the pre-start meeting held by each defendant was “separate and distinct”, each had documentation where there was a reinforcement of the same issues (such as “slips, trips and falls”).[2]  No walk around site induction was provided.          
  4. [7]
    As soon as the pre-start meeting concluded, Mr Morris was then essentially under the direct instruction and supervision of the second defendant.  It was Mr Steve Tatham of the second defendant who directed Mr Morris to various areas of the worksite.  He first asked Mr Morris to attend near Bob Jane T-Mart on the service road.[3]  Mr Morris was then directed from that location to near the Super Cheap Auto outlet.  At about 9am, following direction, Mr Morris closed off one of the lanes on Logan Road with traffic cones and deployed signage designed to direct motorists to slow the traffic down.  The intention was to take out the southbound lane on Compton Road to permit line markers to work.  At about 11am, Mr Tatham told Mr Morris that he did not know how long the line markers were going to be and he ended up performing a lane takeout of one of the southbound Compton Road lanes.  Mr Morris recalled that Mr Tatham ended up going off towards the direction to take the lanes out and given the line markers were going to be about half an hour away, Mr Morris used the time to have his lunch break.

The Incident

  1. [8]
    Relevantly, Mr Morris was instructed to take out one of the southbound Compton Road lanes.  Mr Morris intended to cross six lanes of Compton Road (three each way including an incomplete traffic island in the middle) using a designated, but incomplete, pedestrian crossing.  The pedestrian crossing was marked.  Mr Morris initially crossed Logan Road and walked across to the triangular shaped traffic island between the slip lane to Logan Road and the northbound Compton Road lanes.  He retrieved six traffic cones (each weighing 3 kg and stacked about 940 mm high).  He held the wide end of the traffic cones in his right hand with his fingers inside the opening and the end of the narrow end of the traffic cones in his left hand across the front of his body.   
  2. [9]
    Mr Morris then waited for the red traffic light to halt the traffic flowing in the southeast direction along Compton Road.  Three cars were approaching from his right.  Upon the traffic being halted, Mr Morris walked out to the edge of the first lane and that was when he observed and heard a motorcycle.  The motorcycle proceeded between the stationary first row and second row of traffic.  The motorcycle had come up between the cars in lanes one and two.  The cars had stopped, but the motorcycle had not.  Mr Morris had to cross three northbound lanes.  Mr Morris said that he was looking to his right because he heard the motorcycle and thought it was likely to stop somewhere in front of the cars.  Unsurprisingly, he did not want the motorcycle to get too close to him.  Mr Morris was unsure which of lanes one or two the motorcycle was likely to slip into.  He said that he knew that the motorcyclist would be concentrating on not damaging the cars as the motorcycle was being ridden between them.  Accordingly, Mr Morris was concerned he would not be seen by the motorcyclist and so he wanted to give the motorcyclist enough space/distance.  He said he was trained not to take his eyes off oncoming traffic. 
  3. [10]
    So as to give himself more distance between the cars and the motorcyclist, Mr Morris altered his path and walked to the north, and left, of the marked pedestrian crossing.  But for the motorcycle, Mr Morris said he would have walked straight across the road (in other words, along the marked pedestrian crossing).   Mr Morris was trying to look ahead, but also to his right to ensure the traffic had seen him and in order to be able to react quickly when drivers resumed their travel.  It was then that Mr Morris tripped over a raised section of bitumen at some point in the northbound section of Compton Road (around the second lane).  As he tripped on the raised section of the roadway, he involuntarily increased his pace (whilst in a state of loss of balance), throwing the traffic cones to one side, then falling forward (taking the weight on his arms as he made contact with the roadway around the third lane), injuring both elbows.
  4. [11]
    Therefore, in summary, it seems to me that the incident occurred near the intersection of Compton and Logan Roads after Mr Morris picked up six traffic cones.  Mr Morris walked towards the pedestrian crossing with the traffic cones, planning to cross six lanes of Compton Road (three each way) using a designated, but incomplete, pedestrian crossing.  In order for him to do so, Mr Morris waited for a red traffic light to halt the traffic flowing in a southeast direction along Compton Road.  Upon the traffic slowing for the red traffic light, Mr Morris walked out to the edge of the first lane and as he looked to his right, he saw and heard a motorcycle proceeding between the stationary first row and second row of traffic.  Mr Morris’s attention was focussed on the motorcycle and so he veered to his left away from the designated, but incomplete, pedestrian crossing.  Whilst taking that different path and keeping the motorcycle under observation, Mr Morris tripped at some point on the road, lost his balance and the traffic cones, fell forward and injured his elbows.  

Is the First Defendant Employer Liable?

  1. [12]
    At common law, an employer owes a non-delegable duty of care to its employees to avoid exposing them to unnecessary risk of foreseeable injury.[4]  The duty does not oblige the employer to safeguard employees completely from all perils.[5]  Among other things, the duty obliges an employer to take reasonable steps to provide a safe place of work and a safe system of work.[6]  Further, “the employer’s obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system.”[7]  What that requires was explained by Boddice J (as his Honour then was) in S J Sanders Pty Ltd v Schmidt [2012] QCA 358, namely that:

“An employer’s duty of care requires that it establish, maintain and enforce a safe system of work.  That obligation requires the undertaking of appropriate risk assessments, the devising of a proper method, training in its use, instruction to use that method, and the taking of reasonable steps to ensure its implementation. It includes the giving of such instructions, and the supervision of their enforcement, to experienced workers, having regard to the fact that an experienced worker may inadvertently or negligently injure themselves”.[8]

  1. [13]
    By reason of s 305B of the Workers’ Compensation and Rehabilitation Act 2003 (“WCRA”), the duty the first defendant owed to Mr Morris is not breached unless the risk was foreseeable, not insignificant and, in the circumstances a reasonable person in the position of the defendant would have taken the precautions. Regarding the determination of whether there has been a breach of duty, ss 305B and 305C of the WCRA are as follows:

“305B General principles

  1. A person does not breach a duty to take precautions against a risk of injury to a worker unless—
  1. the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and
  1. the risk was not insignificant; and
  1. in the circumstances, a reasonable person in the position of the person would have taken the precautions.
  1. 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)—
  1. the probability that the injury would occur if care were not taken;
  1. the likely seriousness of the injury;
  1. the burden of taking precautions to avoid the risk of injury.

305C Other principles

In a proceeding relating to liability for a breach of duty—

  1. the burden of taking precautions to avoid a risk of injury includes the burden of taking precautions to avoid similar risks of injury for which the person may be responsible; and
  1. the fact that a risk of injury could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done; and
  1. the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of injury does not of itself give rise to or affect liability in relation to the risk and does not of itself constitute an admission of liability in connection with the risk.”
  1. [14]
    The enquiry as to whether a duty of care has been breached is prospective and not confined to the circumstances of Mr Morris’s accident.[9]  The analysis must be undertaken from the viewpoint of the first defendant, in the circumstances that were known, or ought to have been known, to the first defendant at the time of the alleged injury.[10]
  2. [15]
    The risk must be defined taking into account the particular harm that materialised, and the circumstances in which that harm occurred.  However, it is not confined to the precise set of circumstances in which Mr Morris was injured.  Rather, what must be reasonably foreseeable is “the nature of the particular harm that ensued, or, more relevantly, the nature of the circumstances in which that harm was incurred”.[11]  Finally, an employer is not required to guard against all risks of injury.[12]

Mr Morris’s Case

  1. [16]
    Broadly stated, it has been contended on Mr Morris’s behalf that the section of the bitumen where Mr Morris tripped had been raised to a level above the surrounding roadway which amounted to a hazard.  Consequently, it was a reasonably foreseeable, and not insignificant, hazard giving rise to a risk of injury.  Further the risk of injury to Mr Morris from a trip and fall from uneven road surfaces while working next to live traffic and carrying a load was reasonably foreseeable and not insignificant.  It was principally submitted that the employer failed to alert Mr Morris to the presence of the raised surface of the roadway when it knew or ought to have known of the presence of the raised surface.  The first defendant failed to inform Mr Morris of the location of the tripping hazard at the pre-start meeting.  The first defendant also failed to liaise with the second defendant to have the second defendant remove the hazard.  It was contended that the first defendant failed to give directions to Mr Morris to reduce the number of traffic cones he would carry at any one time so as not to obscure his vision and in order not to create such of a burden as would contribute towards Mr Morris losing his footing if he encountered an obstacle.  It was also contended that the first defendant failed to provide Mr Morris with a trolley in order to move traffic cones around, rather than have him carry them manually.

Employer’s Response

  1. [17]
    In response, the first defendant argued that it had no knowledge of the hazard.  Therefore, it could not have informed Mr Morris of its presence or the need for the second defendant to organise its removal.  The first defendant has maintained that Mr Morris was given sufficiently reasonable training and instructions, including to be mindful of his surroundings and to watch out for the risks of slips and trips and how much weight to carry.  Further, the use of a trolley to move traffic cones was not a part of the system of work for the first defendant as it did not need to be, and, there was no evidence which would demonstrate that such a device would have reduced the risk of a trip injury.  Rather, it was more likely to increase such a risk as it would obscure Mr Morris’s vision or path.
  2. [18]
    The first defendant acknowledged that it knew of a general risk of their workers tripping on a worksite.  The first defendant’s Safe Work Method Statement (“SWMS”) identified the risk and control measures as follows:[13]

Identified Hazards

Initial Risk Level

Current Control Measures

Residual Risk Level

Level of Control

Responsibility for Control Measure

Slips, trips, falls

High (3)

  • TC’s to ensure secure footing when moving about worksite and maintain eyes on path of travel.
  • Extreme care must be taken when installing, maintaining and removing traffic control equipment (including signage & traffic cones) at the worksite.  TC’s to ensure that personal belongings (e.g., water bottles, drink coolers) are not positioned at the traffic control station where they can be a trip hazard.

Medium (2)

Admin

 

Additional Hazards not identified in SWMS

High (3)

  • Site assessment to be undertaken to identify potential site specific hazards.
  • All TC’s shall conduct a site specific risk assessment prior to the commencement of works to identify hazards (e.g., potholes, gravel/uneven surfaces, wheel ruts and adequacy of lighting. 

Additional hazards and controls to be entered into the ‘Additional Hazards Identified’ Section of the Daily Traffic Management Checklist and Docket Book, Initial and Residual Risk to be assessed.  No work is to commence if the Residual Risk is ‘Very High’.  Supervisor / Operations Manager must be contacted.

Medium (2)

Admin

Traffic Controllers/Site Supervisor

  1. [19]
    Therefore, according to the SWMS, the first defendant’s system of work included general warnings about slips, trips and falls.  The suggested control measure was for employees to ensure secure footing when moving about the worksite and to maintain their eyes on their path of travel.  It was also highlighted that the first defendant’s system of work included daily risk assessments to be undertaken by the employees on site to identify any site specific hazards each day (before they commenced work and if they moved to a new section of the site).  
  2. [20]
    I shall return to these matters shortly. 

Breach of Duty

  1. [21]
    The relevant risk in the present instance was a risk that an employee in Mr Morris’s position might injure themselves by tripping or falling on a raised section of roadway, while undertaking work duties. 
  2. [22]
    The following evidence was relied upon by Mr Morris to support the proposition that the raised section of the roadway where he tripped was a reasonably foreseeable, and not insignificant, hazard giving rise to a risk of injury:
    1. The photographs of the hazard are readily noticeable to a casual observer.[14] 
    2. Ergonomist Mr Justin O'Sullivan said that a 6 mm exposed edge may cause a tripping incident, while a 30 mm or higher edge may cause either a tripping incident or a stumble or ankle turning incident.[15]
    3. Mr Grant Milling of the second defendant said of the location, after an inspection on the day of the accident:

“Interesting about the raised asphalt.  I assumed that may have been the case when I saw the location”.[16]

  1. Mr Milling accepted that a traffic controller’s duties might involve them walking anywhere at an intersection, i.e., not just a marked pedestrian crossing (as did Mr Brett Zwart of the first defendant and Ergonomist Mr O'Sullivan). 
  2. Mr Zwart of the first defendant had been at the worksite for a month.  He had walked across the crossing before.  He was shown the photograph of the relevant area and was asked if he could see raised or undulating bitumen.  He said he could.  He agreed it was present on the day Mr Morris had his injury.  He said, “well like, it hasn’t changed”.  He said he was aware of the area of raised bitumen, but it was “outside the travel path where you’re supposed to be walking”.  He was aware of it before the fall “within reason”.  He agreed it was a raised hazard “out of the travel path” and agreed that if a traffic controller had to put out traffic cones, they were not restricted to marked pedestrian crossings “if it’s safe”.  He agreed a traffic controller had to walk on the roadway to do that sort of work.[17]
  3. Ms Charmaine Poultney of the first defendant had been working there for a couple of weeks.  She described the area as “a little bit uneven”.  The roadworks on a major road were potentially dangerous and there was a need to keep an eye out at all times.  She said, “All the road surfaces were getting like upgraded so nothing’s actually that right …”.  She was shown the photograph of the area and agreed the road surface was similar to when Mr Morris had his fall.  She had noticed the raised surface when she was working in and around that area.  She did not markup the undulation in the RoadTek Prestart Meeting Form because she was working in a different section.[18]
  4. Mr O'Sullivan measured the reported location of the tripping incident at 35‑40 mm height above the surrounding roadway over a distance of 2.4 metres.
  5. Mr Tatham said, “every workplace we’re on, there’s a risk of slips, trips and falls”.  Undulations, potholes and uneven surfaces created risks of slips, trips and falls.  These were to be discussed at pre-start meetings.  He would markup with fluorescent paint a single drop of 25 mm or more but did not do so with this one, perhaps because it was outside the marked pedestrian crossing area.  He said he would not do it if the edge was rounded not straight, but in fact did not go back to the location to measure it – instead leaving the investigation to Mr Milling.  He did not know where Mr Morris had fallen.[19]
  6. Mr Morris gave evidence that immediately after his fall, Mr Zwart said to him “everyone’s tripped over it” and that Mr Tatham said, “everyone’s tripped over it and even the line marker this morning”.  This evidence was admitted under the res gestae principle.  Mr Morris has always maintained this evidence, despite exposing himself to a potential credibility contest.  While still in pain and awaiting treatment at the Logan Hospital that afternoon, Mr Morris recited these accounts to Ms Helen Stretton of the first defendant who recorded them in Evolution’s Incident and Injury Report.[20]
  7. Whilst it may be argued for the defendants that there were no tripping incidents reported, the common-sense reality is that if there is no injury, it is unexceptional for a trip not to be reported.  The absence of prior reported tripping incidents should also be looked at in the context which shows that, despite the vaunted recording systems of the first defendant which were claimed to involve constant updating of documents to record incidents and additional hazards, this in fact did not occur in Mr Morris’s case with the Job Docket Risk Assessment or the Daily Traffic Management Checklist and Docket.  This is despite the fact that Mr Morris broke both his elbows in the workplace and was taken to hospital by ambulance.[21]
  8. Although it is accepted that the test for foreseeability is prospective, not retrospective, it is instructive and informative to look at what the defendants recorded in their various inspections, incident reports and corrective action documents afterwards, because it begs the question why, if the existence of a hazard was so readily recognised afterwards, it was not recognised beforehand by those whose duty it was to look out for it, and had prolonged association with the location beforehand.  This is especially when, as Mr Tatham agreed, the accident location was a mere 50 metres from the crib shed and when he, Mr Zwart and Ms Poultney had all traversed the crossing on a number of occasions.[22]
  9. Mr De Graaf of the first defendant reported on the day of the incident:

“Traffic controller failed to carry out a thorough risk assessment of the area and identify the raised hazards in the asphalt surface … work area was an undulating profiled surface with numerous raise (sic) pothole repairs”.[23]

  1. Mr Milling of the second defendant, having inspected the workplace area in the afternoon of the accident spoke of “raised asphalt due to pre-existing failed pavement”.  The Incident Investigation Form referred to “rough road surface and potential trip hazards”.  Also “inspection of the site identified trip hazards in the area, which included some deformed and raised asphalt adjacent to where the incident occurred”.[24]
  2. The Incident Corrective Action Report form stated “Advise TMR of failing pavement creating a potential trip hazard adjacent to the pedestrian markings”.[25]
  3. Mr Milling referred to a “raised lip of defective pavement … resulting in a fall … very near to the newly marked pedestrian crossing”.[26]
  4. If these defects were so readily apparent to Mr De Graaf and Mr Milling on their post-accident inspections, they should have been equally apparent prior to Mr Morris’s injury.  In fact, they were apparent with Mr Zwart and Mr Tatham who admitted actual knowledge of the raised bitumen, but seeking to sidestep acknowledgment of the risk because the location was not within the marked pedestrian crossing (although Mr Tatham departed from this elsewhere saying he would inspect for defects wherever they were working and Mr Zwart eventually accepted a worker might need to walk anywhere on a roadway).  On this point, Mr Milling’s evidence included that a worker might need to walk anywhere.[27]
  5. The fact that the workplace hazard was not within the marked pedestrian crossing had no bearing on the defendants’ recognition of the workplace risk post‑accident or the second defendant’s stated recommendation for rectification of the first defendant referred to the accident location as a “work area”.  Mr De Graaf of the first defendant referred to the accident location as a “work area”.[28]
  6. Afterwards Mr Milling thought it necessary to liaise with the Department of Transport and Main Roads for RAMC to undertake repairs, with it apparently being irrelevant to that consideration that the defect was or was not within the marked pedestrian crossing area.[29]
  1. [23]
    Further, it was highlighted on Mr Morris’s behalf that the other element relevant to foreseeability of injury from the raised bitumen was its relationship with the proximity to traffic risk.  It was submitted that it was reasonably foreseeable that the tripping risk was enhanced because of the need to work in proximity to heavy, live traffic and the associated risk of distraction.  This was especially potent in this case when Mr Morris was crossing three lanes, carrying an 18 kg load, without the benefit of pedestrian traffic lights to let him know how much time he had to complete the crossing and the further presence of the motorcycle.  In many of the defendants’ documents, it was acknowledged that working next to live traffic constituted an additional risk.  Mr Zwart acknowledged same.  Also, Mr O'Sullivan identified working near live traffic as the most serious hazard for a traffic controller.  His report on that issue was not contradicted by an expert report or otherwise.
  2. [24]
    It was submitted that the conclusion should be that it was reasonably foreseeable to the defendants that in circumstances where Mr Morris could be expected to carry a reasonably heavy load across a number of lanes in a live traffic environment without pedestrian traffic signals, the already foreseeable risk arising from the raised bitumen was further increased. 
  3. [25]
    Additionally, on Mr Morris’s behalf, the first defendant’s documented workplace health and safety systems were highlighted, including the following:
    1. The first defendant’s “2014-Annual Safety Training” said in part “roadwork zones particularly show higher accident rates than non-work sections”.  Reasons included “changes in the road environment” and “distractions due to construction activities”.  Risks increased with “short duration work/short length of work” and “workers proximity to travelling vehicles”.[30]
    2. Common slip, trip and fall hazards were said to include “sudden changes in surfaces”.[31]
    3. A key point of “Annual Safety Training” was said to be “SWMS’s/site specific risk assessment”.[32]
    4. The “2017-Annual Safety Training” established and adopted the Daily Traffic Management Checklist and Docket.  The docket was said to record “a site‑specific risk assessment completed before work commences” and “any additional hazards identified, and control measures”.[33]
    5. These requirements were replicated in the ‘Evolution Traffic Control – Safe Work Method System – Version 15’, authored by Helen Stretton and signed by Mr Morris on 21 March 2018.[34]  The requirements were to:

“identify hazards, assess risks, develop appropriate control measures, monitor and review control measures to enable the safe and controlled progress of works.  A Site Specific Risk Assessment shall also be undertaken and developed in conjunction with the SWMS.  The Site Specific Risk Assessment shall be undertaken on the “Daily Traffic Management Checklist and Docket” in accordance with the risk assessment process before commence (sic) work.  Risk assessment to continue as works change”.

  1. It was noted in the SWMS that: “TCs to be site inducted (where applicable)”,  “site assessment to be undertaken to identify potential site specific hazards” and there was to be a “site specific risk assessment prior to the commencement of works to identify hazards (e.g., potholes, gravel/uneven surfaces …)”.[35]
  1. [26]
    It was emphasised that Mr Morris was required to sign three documents at the pre-start meeting in the second defendant’s crib shed, namely:
    1. There was the first defendant’s Job Docket Risk Assessment filled in digitally by Mr Zwart and signed by Mr Morris.  It made no mention of road surface conditions.[36]
    2. There was the first defendant’s Daily Traffic Management Checklist and Docket.  Under “site specific risk assessment”, there were crosses put in boxes by Mr Zwart under the heading “Road Surface” beside the words “Dry”, “Loose Stones”, “Slippery” and “Gravel”.  There was not a section for uneven surfaces.  The section “Any Additional Hazards Identified” was left blank.[37]
    3. The second defendant’s “RoadTek Prestart Meeting Form” was filled in by Mr Tatham and signed by Mr Morris.  In response to the question “what are the hazards and risks of the site?”, it merely said “working near plant and traffic, manual handling and slips, trips and falls”.[38]  Yet witnesses agreed that entries like this would go in automatically every day.  Under the question “How would we make sure we are safe?  What control measures would we use?” was written:

“Spotters

Stop think go, use correct tools for task

Follow work procedures.”

  1. [27]
    Accordingly, it was argued on Mr Morris’s behalf that the risk of injury to Mr Morris from a trip and fall from uneven road surfaces, while working next to live traffic and carrying a load, was reasonably foreseeable and not insignificant.[39]

Consideration of Breach of Duty of Care

  1. [28]
    I am satisfied that the risk of injury to Mr Morris from a trip and fall from uneven road surfaces was reasonably foreseeable and not insignificant.  The risk of injury is heightened when a traffic controller is consistently required to work beside live traffic and/or carry a load.  The difficulty I have though is reaching a view about what (if any) reasonable precautions should have been adopted by the employer to minimise or prevent the risk of injury.
  2. [29]
    I do not accept the contention, notwithstanding the arguments advanced on Mr Morris’s behalf, that the employer should have specifically warned its employees, including Mr Morris, of this specific ‘hazard’.  I do so for two main reasons. 
  3. [30]
    The first is that I am not satisfied the first defendant had knowledge of this particular ‘hazard’, aside from a general awareness that uneven road surfaces existed within the worksite.  I find the first defendant’s knowledge of the raised section of the bitumen where Mr Morris fell, only occurred, after Mr Morris’s fall.  Leaving aside the testimony of Mr Morris himself, there was no other evidence which I am prepared to act upon, to find that the first defendant had any knowledge of, or ought to have had knowledge of prior tripping incidents/events at all.  During the trial, I ruled that Mr Morris’s evidence about any purported knowledge of the defendants was allowed as part of the res gestae and its relevance (at that stage), but that his evidence was not admissible as to the truth of the contents as to the statements made. 
  4. [31]
    As such, there was evidence from Mr Morris as to the first defendant’s knowledge of prior tripping events, namely that Mr Zwart, after having been notified by Ms Poultney, told Mr Morris that there were prior tripping events.  Yet Mr Morris’s evidence was in conflict with that from Mr Zwart who denied knowledge of any prior tripping events, or indeed even knowledge of where Mr Morris fell to be able to have made such comments.[40]  Further, Mr Tatham gave evidence that, despite Mr Morris indicating in his evidence that Mr Tatham said words to the effect of “everyone has tripped over it and even the line marker this morning”, that Mr Tatham did not recall saying those (or similar) words to Mr Morris.  Also, Ms Poultney had no recollection of hearing any such statement.  Even if Mr Morris’s evidence was accepted, I do not consider it admissible as truth of the facts stated therein (including that there were prior trips/falls within the vicinity of where Mr Morris fell).  Additionally, the sparsity of documents indicating other falls/slips/trips, despite Mr Morris’s submissions to the contrary, militate against a finding that either defendant had knowledge of the raised area of the roadway where Mr Morris fell, such that they should have reasonably acted upon it. 
  5. [32]
    There is also the contrary evidence from Mr Zwart that he did not meet Mr Morris on the middle island, but in the crib shed after the fall.  Mr Zwart was also not certain as to where Mr Morris fell and believed he fell to the right of the pedestrian crossing.[41]  This is consistent with the evidence of Mr Tatham that he did not meet Mr Morris at the traffic island, and he was instead on the other side of the road and did not know where Mr Morris fell until a time much closer to trial.[42]
  6. [33]
    Therefore, in my assessment, it has not been demonstrated, nor do I find, that, as at the time of Mr Morris’s incident, either defendant was aware of the raised section of roadway where Mr Morris fell or that any party knew that there had been previous trips at the particular location where Mr Morris fell on the raised section of the roadway. 
  7. [34]
    The second reason why I am not compelled to accept the proposition that the employer should have specifically warned its employees, including Mr Morris, of this particular ‘hazard’ is because there is nothing which elevated or distinguished this particular raised section of the roadway to other areas of the worksite.  Uneven surfaces were common on the worksite.  Further, the first defendant ensured that its employees knew and were reminded to expect different undulations, rises and falls at the worksite.  After all, it was a worksite where works were on-going, were not complete and most certainly not “a bowling-green”.  Therefore, to assume the road was level or that there were no issues which required further precautionary measures, in my view, is not a reasonable position to adopt in the circumstances.   
  8. [35]
    It is hardly surprising the first defendant had a system of work which included general warnings about slips, trips and falls.  Control measures were also put in place.  This was to ensure that employees had a secure footing when moving about the worksite.  The system of work also included general warnings for the need of employees to maintain their eyes on their path of travel.[43]  Workers, including Mr Morris, were given a warning on the morning of the incident at each pre-start meeting about “slips, trips and falls”.[44]  I consider the system adopted by the employer to be reasonable.  I am not sure what more could have been reasonably done in the circumstances. 
  9. [36]
    Mr Morris’s evidence was that, at the time of performing his work duties, he was carrying six of the second defendant’s traffic cones.  Each cone weighed about 3 kg. 
  10. [37]
    The first defendant trained its employees regarding the weight of any load that a traffic controller was to carry.  The training Mr Morris received from the first defendant seemed not to be the subject of significant criticism because my impression was that much of the focus at trial related to Mr Morris having received no specific warning of the risk of injury at the location where he was ultimately injured.  In any event, in the first defendant’s document headed “Evolution Signage Weights and Restrictions”, it provides as follows:[45]

“Evolution Signage Weights and Restrictions

The installation of traffic guidance schemes involves the placement of traffic control equipment on a roadway.  Lifts of up to 18.5 kg is the maximum permissible and the guidelines contained in the following table are to be strictly adhered to.

Traffic Control Equipment

Net weight

Maximum Allowable Lift

Gross Weight

1 x Small traffic cone

1.6 kg

8 x Small traffic cones

12.8 kg

1 x Large traffic cone

3.4 kg

4 x Large traffic cones

13.6 kg

…

…

…

…

  1. [38]
    Mr Morris was a person of more than sufficient skill, experience and training in roadside management.[46]  He expected different undulations, rises and falls at the worksite.  He also added, however:

“If I may say I wasn’t expecting it in the fact that [in] the pre-start meeting that morning, it had actually stated that bitumen work had been completed, and I assumed that that included any issues that may have been on the road”.[47]

  1. [39]
    I consider this observation, however, to ignore the circumstances, even to a lay person, of the worksite in that one would routinely observe undulations, rises and falls against a backdrop of live traffic. 
  2. [40]
    The first defendant has relied upon its system of work which included a daily risk assessment to be undertaken by the employees on site to identify any site-specific hazards each day before they commenced work and if they moved to a new section of the worksite.
  3. [41]
    The Job Docket Risk Assessment included as follows:[48]

“…

Any deviation from SWMS or additional hazards to be documented below.

Any additional hazards identified

Initial Risk

High/Med/Low

Control Measures to minimise risk

Residual Risk

High/Med/Low

 

   

I have been provided with the opportunity to give comment on the formulation of work methods, identification of hazards associated with this work and implementation of control measures that will allow the work to be undertaken safely.  I have been instructed in the safe work methods and understand and will comply with these instructions and safety procedures.

…”  

  1. [42]
    The Job Docket Risk Assessment did not have an entry regarding any deviation from the SWMS or additional hazards.  It was signed by all employees of the first defendant, including Mr Morris, before the commencement of the working day.   
  2. [43]
    Whilst there was sufficient provision for the recording/documenting of any site-specific hazards, I find the first defendant’s reliance on the requirement or expectation for employees to identify any site-specific hazards each day before they commenced work, misplaced, particularly for someone like Mr Morris, whose first day it was on the worksite.  It is, of course, a sensible system to have the first defendant’s employees identify the site-specific hazards/risk at the site in the area they are working because the workers are in the enviable position to identify such risks as they encounter them on the worksite.  But it is not practical, nor is it appropriate for the employer to shift the requirement onto a worker because of the worker’s lack of capacity to identify risks the first time they present to the worksite. 
  3. [44]
    Candidly, Mr Morris put his reasonable expectations this way:[49]

“But normally when someone’s been to the site regularly, they would know the risks and should note them down on the docket so the rest of us knew them, especially on a site where I hadn’t been before … I do think that when someone has been on the site, like I said, I tend to go by what they say.  They should know where the hazards are … and they should be able to point them out”.

  1. [45]
    Although Mr Morris accepted that he was trained and understood the system of work so as to identify any site-specific risks in the area where he was working, it cannot be overlooked that it was his first day.  It was simply not reasonable for the employer to provide an expectation on their employees to undertake a specific risk assessment prior to embarking upon their duties, especially when Mr Morris was not given a walk around induction.  It was not perfect that Mr Morris had not been taken on a site assessment or walk around induction prior to him starting his duties given it was his first day as it would have, to an extent, familiarised Mr Morris with some of the physical circumstances of the areas he was likely to encounter at work.  He only received notice from his employer that morning to attend the worksite for work duties.  When he arrived at about 6:30 am on 3 August 2018, Mr Morris attended the pre-start meeting at the crib shed.  He informed Mr Zwart that he did not know the site.  Mr Morris was not informed whether there had been a site inspection.  However in my view, each pre-start meeting dealt, reasonably, in generalities as the descriptions of the site given to Mr Morris in the Job Docket Risk Assessment, the Daily Traffic Management Checklist and Docket and the Prestart Meeting Form.[50] 
  2. [46]
    Overall, I find there can be no criticism elevated to the level of a breach of duty made against the employer that there was no specific mention of the area where Mr Morris later fell as a workplace hazard and that is because, as I have found, there was no knowledge of it.  I am also satisfied that the first defendant’s documentation (being the Job Docket Risk Assessment and Daily Traffic Management Checklist and Docket) was reasonable in the circumstances.  The system was not lacking.  I have not been persuaded that a walk around site induction was a precaution that should have been undertaken because of the size and nature of the worksite.  The burden would have been significant given the worksite and the number of employees and contractors.  Whilst a walk around site induction is perfect and/or ideal, it was not practical, nor would it have forewarned Mr Morris of any potential workplace risk or hazard, other than what could have been alerted to in the first defendant’s documentation. 
  3. [47]
    In the end, while some criticism (the lack of opportunity of a site walk around) can be made against the employer, it does not equate to a finding of liability when viewed with ss 305B and 305C of the WCRA in mind.   
  4. [48]
    Finally it was contended on Mr Morris’s behalf that, consistent with Mr O'Sullivan’s evidence, a desirable practice for either defendant was to highlight a ‘defective pedestrian surface capable of being a tripping hazard’ with fluorescent paint (to constitute a warning to workers because it appeared in a person’s peripheral vision).[51]  I do not consider such a measure to be reasonable because it is a worksite where workers expected (and indeed were warned) of different undulations, rises and falls.  I am also not persuaded that the precise location where Mr Morris fell warranted fluorescent paint given the scope of the worksite.  I prefer the characterisation given by Mr Milling that such a desired measure was “challenging”, “onerous” and “impractical”.[52]  It is not reasonable for the employer to identify every single pothole, uneven surface or loose gravel on a worksite such as this by way of fluorescent paint, because the worksite was 1.7 km in length and contained multiple intersections of some width.  I reject the contention that the area ought to have been marked with fluorescent paint in order to warn workers.   
  5. [49]
    In any event, I formed the impression that Mr O'Sullivan was unable to say that the raised section of the roadway was a “tripping hazard” as at 3 August 2018, because he took measurements on 11 November 2021 and could not say what the height of the raised section was on 3 August 2018.  He also relied on studies regarding median toe clearance and minimum foot clearance in reaching the conclusion that the ridge or the raised section was a tripping hazard and the studies were for women and he could not say that they applied to Mr Morris.  He had not measured, nor could he say, what Mr Morris’s toe clearance and minimum foot clearance was.   
  6. [50]
    I note too that under the cross-examination of Mr O'Sullivan, there were important factual issues including documentation to which he had not been referred and that standards to which he referred may not be referable to the area where Mr Morris fell.[53]  For instance, Mr O'Sullivan was not provided with the first defendant’s SWMS.  It was not listed in the material to which he referred (and it was not clear what the position was from cross-examination).[54]  More specifically, Mr O'Sullivan was taken to the evidence concerning the obligations of the traffic controller on site.  It appeared Mr O'Sullivan was not shown this document.[55]  Mr O'Sullivan acknowledged it was “a very important back-up to the centralised control of a particular person is to have all of the workers keep an eye out and to be vigilant”.  He acknowledged it was important for workers to effectively look out for their own safety.  He was also shown the Job Docket Risk Assessment and the detail in which it contained.  Mr O'Sullivan did not read this document or consider it before he completed his report.  He ultimately appeared to accept that once the warnings were in place (to ensure secure footing when moving about the site and to maintain eyes on the path of travel), this was the simplest way to tackle the potential risk when combined with the daily briefings.[56]  He accepted that the system of cross-reporting between workers on a site such as this where the nature of risks may change was “a good system, including the worker as it does, but yes, that’s a good system”.[57]  I was not moved by the conclusions and recommendations promulgated by Mr O'Sullivan and it was of little utility when assessing the precise risks which may exist on the worksite and the appropriate responses to be adopted. 
  7. [51]
    Accordingly, it is my assessment of the evidence, that the first defendant did not breach its duty of care to Mr Morris.  There were no further reasonable precautions the employer ought to have taken against the risk of injury, or that warranted any different response by the first defendant. 

Causation

  1. [52]
    Although I have found no breach of duty against the first defendant, I will turn to the issue of causation.  Pursuant to s 305D(1) of the WCRA, Mr Morris must establish that the breach of duty was a necessary condition of the harm and that it is appropriate for the scope of liability of the first defendant to extend to the injury. 
  2. [53]
    The first requirement, being that the breach was a necessary condition of the harm, requires Mr Morris to prove that “but for” the first defendant’s breach of duty, his injuries would not have occurred.[58] 
  3. [54]
    It was contended on Mr Morris’s behalf that the first defendant’s site-specific risk assessment was inadequate or illusory.  It involved no actual familiarisation of Mr Morris with the site.  The movements Mr Morris was directed to perform on the day  gave him no opportunity to gain any acquaintance with the accident location before suffering injury.  The ‘hazard’ was subsequently acknowledged to exist by Mr De Graaf and Mr Milling.  No practical warning of the ‘hazard’ (verbal or visual) was given.  These failures led to the occurrence of the accident.  It was submitted on Mr Morris’s behalf that there should be findings that if Mr Morris was warned of the ‘hazard’ at the pre-start meeting, or in the first defendant’s documents, or given a site walk around induction, or if the ‘hazard’ was highlighted by paint, the risk of injury would have been prevented or significantly minimised because such measures would have brought the hazard to Mr Morris’s  attention.[59]  Accordingly, a finding of causation between the breaches of duty by the first defendant and Mr Morris suffering injury was sought.
  4. [55]
    Despite having made some disapproval of the first defendant (namely not to have conducted a walk around site induction with Mr Morris, though not one equating to what I consider a breach), I am not satisfied, on balance, the risk of injury would have been prevented or significantly minimised by a walk around site induction.  That is because, in my assessment, Mr Morris’s injury was caused by the presence and actions of the motorcyclist, even when working next to live traffic and/or carrying a load.
  5. [56]
    Mr Morris was at the intersection when traffic had not come to a complete stop.  Mr Morris was not confident the traffic would come to a stop at the designated stop line because he was largely, but not unreasonably, concerned that he would be struck by a motorcyclist.  That is why he walked beyond the pedestrian pathway focused on the motorcycle, instead of the ordinary path of travel.  Had he been watching where he was walking and/or remained on his intended path of travel, it was more probable than not that he would have recognised the feature of there being a difference in the road height at the area where the fall occurred.   
  6. [57]
    The only reason (if not, then the most significant reason) for Mr Morris’s eventual path of travel was as a consequence of the motorcyclist who was loudly coming through slowing traffic to get to the front of the other vehicles in the three lanes of traffic.  I find the true cause of the injury was Mr Morris entering the intersection and then not watching where he was walking due to the distracting presence and actions of the motorcyclist at the particular time of the accident. 
  7. [58]
    Even if the first defendant had undertaken any of the precautions as asserted on Mr Morris’s behalf, I am of the view that the accident still would have occurred because such precautions would not have prevented the trip as Mr Morris was not watching where he was walking due to the presence and actions of the motorcyclist.  Had the motorcyclist not been there and it were simply the three motor vehicles, then it was more probable than not that Mr Morris would have remained within the pathway such that he remained concentrating on where he was walking.  Also, it was not because he was carrying the traffic cones which caused the fall (as there was no evidence that the weight of the load he was carrying caused or substantially contributed to the injury).  Further, there was no sufficient evidence given, nor am I prepared to draw an inference, about the use of a trolley and whether it would have assisted in carrying out Mr Morris’s tasks.  Therefore, I have not been persuaded that Mr Morris required a trolley to move the traffic cones around.  Nor have I been persuaded that a device would have reduced the risk of a trip injury – perhaps, as the first defendant submitted, it was likely to obscure Mr Morris’s vision or path. 
  8. [59]
    Accordingly, I am not satisfied that, but for the first defendant’s negligence (of which I have not found), Mr Morris would not have suffered the injuries to his elbows.  The first defendant’s breach of duty (if in fact there was one) was not a necessary precondition of the harm.  Further, because of the actions and presence of the motorcyclist, it is not appropriate for the first defendant’s scope of liability to extend to Mr Morris’s injury.   

Contributory Negligence

  1. [60]
    The first defendant has pleaded that if liability is established against it, Mr Morris’s damages should be reduced on account of his contributory negligence.   A reduction of 50 percent is sought in accordance with 305G of the WCRA.  That is because, on Mr Morris’s evidence:
    1. Mr Morris was aware of a general duty to be aware of slips and fall by the first defendant;
    2. Mr Morris was aware of the need to ensure a secure footing when moving about the worksite and as per SWMS;
    3. Mr Morris was aware of the need to maintain his eyes on the path of travel as per the SWMS;
    4. Had Mr Morris walked through the pedestrian crossing, he would not likely have fallen;
    5. Mr Morris walked off the pedestrian crossing and did this to avoid a motorcyclist;
    6. Mr Morris agreed there was room for the motorcyclist to be in front of traffic “before they hit the pedestrian crossway”[60];
    7. Mr Morris accepted that he could have stopped and waited until the next traffic light and walked across the road and had Mr Morris done this, he would not have fallen;
    8. Mr Morris’s usual course was to carry four or five traffic cones at a time but nonetheless, he was comfortable and “used to” carrying six traffic cones.
  2. [61]
    It was submitted that the true cause of the injury was Mr Morris entering the intersection when he knew it was not safe to do so in accordance with s 305H(1)(f) of the WCRA, and not watching where he was walking which is what he was required and/or trained by the first defendant to do in accordance with s 305H(1)(a) of the WCRA.
  3. [62]
    Pursuant to s 305F of the WCRA, the same principles that apply in determining breach of duty by the first defendant are engaged in determining contributory negligence by the plaintiff.  The standard of care required of the plaintiff is that of a reasonable person in his position, and the matter is to be decided on the basis of what the plaintiff knew or ought reasonably to have known at the time.[61]  Section 305H provides the circumstances where a court may make a finding of contributory negligence. 
  4. [63]
    There is no doubt that Mr Morris was aware of the need to be aware of trips and falls, as he was appropriately trained by the first defendant and he was indeed experienced.  But, it is my assessment that Mr Morris’s inattention was brought about by something which was not within his control.  That is, he walked off the pedestrian crossing in order to avoid a motorcyclist.  I do not think it was realistic for him (in spite of a submission) to wait for the next set of traffic lights only because of the consistent volume of traffic on the day at the busy intersection.  Mr Morris was not disobedient or reckless to his instructions, nor was he acting outside the course of his employment.  He also had no reasonable knowledge of the actual risk (not having been there before)[62] and should not be liable for inadvertence or inattention especially when he was distracted by the motorcyclist.  No finding of contribution is made against Mr Morris. 

Conclusions as to the First Defendant’s Liability

  1. [64]
    Before considering the claim against the second defendant, it is appropriate at this juncture to observe some findings, namely:
    1. The incident occurred near the intersection of Compton and Logan Roads after Mr Morris picked up six traffic cones.  Mr Morris walked towards the pedestrian crossing with the traffic cones, intending to cross six lanes of Compton Road (three each way) using a designated, but incomplete, pedestrian crossing.  In order for him to do so, Mr Morris waited for a red traffic light to halt the traffic flowing in a southeast direction along Compton Road.  Upon the traffic slowing for the red traffic light, Mr Morris walked out to the edge of the first lane and as he looked to his right, he saw and heard a motorcycle proceeding between the stationary first row and second row of traffic.  Mr Morris’s attention was focussed on the motorcycle and he veered to his left away from the designated, but incomplete, pedestrian crossing.  Whilst taking that different path and keeping the motorcycle under observation, Mr Morris tripped at some point on the road, lost his balance and the traffic cones, fell forward and he injured his elbows.  
    2. The first defendant did not breach its duty of care to Mr Morris.
    3. If there was a breach (which I have not found), the breach of duty did not cause Mr Morris’s injury.
    4. Mr Morris did not contribute at all to his injury.

Is the Second Defendant Liable?

  1. [65]
    According to Mr Morris, the sources of the second defendant’s liability are two-fold.  It comprises:
    1. The duty of care arising from its status as an occupier and entity ultimately in control of the roadworks (including line marking) being performed at the intersection where Mr Morris was injured.
    2. The duty of care arising from the second defendant’s (admitted) activity as the principal contractor on the site whereby, instead of merely relying upon its contractor (the first defendant) to give directions and supervision to its employee, it fully entered into the role of giving direct instructions to Mr Morris.  This commenced with its conduct at the pre-start meeting in the second defendant’s crib shed by its employee, Mr Tatham.  Further by its servant, Mr Tatham, the second defendant directly instructed Mr Morris in his subsequent activities at two other locations (including being driven in the second defendant’s vehicle) until Mr Morris was injured at a third location performing work for the second defendant (while, on his evidence, carrying the second defendant’s equipment).  After the pre-start meeting, Mr Morris received all further workplace instructions on the day from the second defendant.  The first defendant has admitted that it permitted or directed Mr Morris to work under the direction of Mr Tatham of RoadTek.
  2. [66]
    It was highlighted on Mr Morris’s behalf that the second defendant in its defence made the following material admissions:
    1. RoadTek was a commercial business within the Department of Transport and Main Roads providing transport infrastructure solutions throughout Queensland.
    2. The second defendant is a proper entity to these proceedings pursuant to the Crown Proceeding Act 1980.
    3. Mr Morris attended a pre-start meeting conducted by RoadTek at 6:30 am on 3 August 2018.
    4. Risks were discussed and recorded as “working near plant and traffic, manual handling and slips, trips and falls”.
    5. Meeting those “hazards and risks” was to be addressed by utilising “spotters” and to “stop, think, go use correct tools for task, follow work procedures”.
    6. There were three lanes in the northbound direction and two lanes in the southbound direction (but also an additional slip lane from the northbound lanes of Compton Road to Logan Road and a single slip lane from eastbound lanes of Logan Road to the southbound lanes of Compton Road).
    7. Mr Morris tripped on Compton Road.
    8. A section of bitumen on Compton Road, in the vicinity of the area in which Mr Morris was traversing when he tripped, was “raised to a level above the surrounding roadway”.
    9. On the basis of subsequent investigations, that area of bitumen was raised approximately 35 mm above the surrounding roadway.
    10. The second defendant had a duty as the principal contractor at the site to exercise reasonable care in the discharge of its duties as a competent principal contractor.
    11. Control of the site was exercised by the second defendant and another contractor, namely Ventia Boral Amey Joint Venture.
    12. The second defendant had employed its servants and/or engaged contractors to perform roadworks, including at the corner of Logan Road and Compton Road, Underwood.
    13. The second defendant was employing its own servants or agents to perform line marking work at the corner of Logan Road and Compton Road, Underwood.
    14. The second defendant conducted a pre-start meeting on 3 August 2018, namely the date of Mr Morris’s injury, at which Mr Morris was present but failed to mention the defect in the road surface where he was injured.
    15. The second defendant was conducting ongoing work at or in the vicinity of the site.
  3. [67]
    Various features of the evidence were emphasised to demonstrate that the first defendant placed its traffic controllers (including Mr Morris) at the disposal of the second defendant, especially under the supervision of the second defendant’s Mr Tatham.  Mr Tatham was the most senior person on the site who relevantly accepted that workers might be distracted by live traffic and might have to carry heavy things and that this needed to be brought into consideration in terms of the risks of slips, trips and falls. 
  4. [68]
    I accept, as was submitted on Mr Morris’s behalf, that the second defendant determined the workplace tasks of Mr Morris.  I also accept that Mr Morris’s  induction was confined to the crib shed (that it dealt only in generalities), there was no specific mention of the raised section of the roadway where he eventually fell and he did not receive a walk around site induction.   
  5. [69]
    It was contended that a finding be made that the second defendant failed to take reasonable care for Mr Morris’s safety by failing to undertake a proper risk assessment and by failing to warn him of the risk of injury.

Breach and Causation

  1. [70]
    The argument was advanced that the condition of the roadway was one which was, or ought to have been, readily observable to those with responsibilities for workplace health and safety and which ought to have attracted a responsive countermeasure.  It was argued that it was well known to the second defendant that a traffic controller might need to walk outside marked pedestrian areas.  Accordingly, a warning of a tripping hazard needed to be given to a new worker (such as Mr Morris) on his/her first day on the site.  The only description of site conditions given to Mr Morris was at the pre-start meeting and what was recorded on the Job Docket Risk Assessment, the Daily Management Checklist and Docket and the Prestart Meeting Form.  There was no mention of the tripping hazard where Mr Morris was injured.  It was submitted that the second defendant should have mentioned the hazard or had the hazard removed before the incident. 
  2. [71]
    It was emphasised that the second defendant pleaded that the raised area of bitumen was 35mm in height.  Mr O'Sullivan gave a fuller description of it being 35-40mm in height and extending over 2.4 metres.  He found it to be unchanged on his inspection from its appearance in photographs taken shortly after the accident.  Mr O'Sullivan also identified (which I have not accepted) a practice of highlighting a defective pedestrian surface capable of being a tripping hazard with fluorescent paint to constitute a warning to workers because it appeared in their peripheral vision.  Again, I do not think that is a reasonable and practical measure to adopt given the size and nature of the worksite. 
  3. [72]
    In Bostik Australia Pty Ltd v Liddiard [2009] NSWCA 167 at [139], Basten JA said:

“The fact that an employer may be obliged to take reasonable steps to provide a work with a safe system of work, does not preclude the existence of a duty owed by others to take reasonable care in their dealings with the worker, whether they be other employees, independent contractors, the occupier of premises which the worker is required to attend in the course of employment or other road users encountered in the course of travel.  Where work is undertaken on the premises of a third party, that third party may have a duty which commonly arises from:

  1. the degree of control or direction exercised or which the third party is entitled to exercise over the worker;
  1. the condition of plant or premises under the control of a third party; or
  1. the activities of others on the site, generally for the purposes of the third party’s undertaking or business.”
  1. [73]
    The decision of Kerle v BM Alliance Coal Operations Pty Ltd [2016] QSC 304 concerned a matter where a mine worker employed by a subcontractor was injured due to fatigue on a long drive home of several hundred kilometres after working 12-hour shifts.  McMeekin J accepted that the liability by a principal contractor could extend to a duty to subcontractors or employees of subcontractors because the principal (BMA) determined the hours that were worked at the mine and brought the risk into existence.  His Honour observed that the plaintiff was not injured when carrying out a specialised task, but the principal had knowledge of the safety issues and had created the risk.  BMA had brought the fatigue risk into existence by establishing 12-hour shifts.
  2. [74]
    It was submitted that the present instance is far stronger for Mr Morris than the plaintiff in Kerle because here, Mr Morris was under the direct instruction of the principal, being the second defendant (via its servant, Mr Tatham) from the beginning of the day at the pre-start meeting in the crib shed, and during several following episodes of being transported in the second defendant’s vehicle and receiving directions for work at two different locations, until he was injured at a third location.  When Mr Morris was injured, he was carrying the second defendant’s equipment.  The second defendant controlled the roadworks and the line markers, had more knowledge of the site than anyone else, adopted responsibility by carrying out the pre-start meeting, transported Mr Morris in its vehicle, knew the state of the raised roadway, knew of prior tripping incidents, knew of the absence of pedestrian signals at the intersection and directly ordered Mr Morris where to go and what to do.  In the latter sense, the instruction was to complete a task already started by the second defendant.
  3. [75]
    In the more recent decision of Reddock v ST&T Pty Ltd [2022] QSC 293, Jackson J considered a case involving a plaintiff who was employed by the first defendant which hired labour and its concrete trucks to the second defendant, who was the operator of a concrete batching plant.  At the second defendant’s premises, the chute on the concrete truck became jammed.  The employer’s instruction in such situation was for the plaintiff to return to her depot.  However, the second defendant’s manager urged the plaintiff to do one more load.  He also attempted maintenance and repair of the chute.  It jammed and in attempting to free it up, the plaintiff injured her hand.  Jackson J, in finding that the second defendant owed a duty of care, said at [105]:

“…By interposing himself in what may have been the cause of the stiffness of the shoot and requesting the plaintiff to do one more job and to get concreters to move the chute for her after he injected grease into the grease nipples, Mr Dignan assumed a degree of control or responsibility in relation to the condition of the chute and its state of repair.  That gave rise to a duty of care to the plaintiff in relation to the risk of injury to her from operating a still stiff chute …”.

  1. [76]
    It was submitted that, as is present here, the second defendant was intimately involved in the pre-start meeting.  It transported Mr Morris in its vehicle.  It directed Mr Morris where, when and how he performed his work tasks.  It, more than any other entity, ought to have had an intimate knowledge of hazards at the intersection, and was best placed to warn Mr Morris of them.
  2. [77]
    As to the second defendant’s position as an occupier or entity in control of a workplace, it was argued by Mr Morris, that, consistent with Thompson v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234, Mr Morris’s case had the same dual character, involving the static condition of the roadway trip location, and the absence of the pedestrian traffic lights (which is an unavailable, but not a critical, element of the duty of care matrix) mixed in with the deficient induction, absence of site-specific risk assessment, absence of warnings of the hazard and the circumstances of direct control by the second defendant.  Therefore, the second defendant owed duties of care analogous to those of an employer.  Also, applying the Wyong Shire Council v Shirt calculus, there was a reasonably foreseeable risk of injury.  It was a risk of some magnitude (which the injuries demonstrate).  The degree of probability of it occurring was significant and the expense, difficulty and inconvenience of taking action would have been low.  There was a breach of the duty of care in failing to provide a safe place and system of work, to conduct a proper and adequate risk assessment and warn the plaintiff of the risk of injury.
  3. [78]
    It was submitted that had the second defendant warned Mr Morris of the existence of the hazard verbally at the pre-start meeting, or done so in the RoadTek Prestart Meeting Form, or warned the first defendant, or conducted a walk around site induction of Mr Morris (or permitted the first defendant to do so), or arranged for the removal of the hazard or marked the hazard with fluorescent paint (so it was readily visible), the risk of Mr Morris tripping and suffering injury would have either been prevented or significantly minimised.

Second Defendant’s Arguments

  1. [79]
    A primary submission advanced on behalf of the second defendant related to whether or not there was an obligation to “warn” Mr Morris about the condition of the road in light of the pleaded case against it.  In doing so, it was suggested that a critical aspect in RoadTek discharging its duty was that it retained a highly experienced contractor who was expected to implement high standards of workplace safety as did the second defendant.  Whilst RoadTek coordinated the duties on site, the performance of those tasks warranted a level of skill and vigilance by those engaged.  RoadTek was entitled to assume Mr Morris had the requisite degree of skill to perform the designated tasks and, indeed, to cross a road safely and keep an eye out. 
  2. [80]
    The impact the retention of a skilled contractor has on the duty of a principal to provide a warning has received some consideration by the case law.[63]  Particular reference was placed on Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7 at 30, where Brennan and Dawson JJ said that:

“… where an independent contractor carrying on a particular trade is engaged by an occupier to work on his premises, the occupier is not under a duty to give warning of a defect in the premises if tradesmen of that class are accustomed to meeting and safeguarding themselves against defects of that kind.”

  1. [81]
    It was submitted that, in the facts which existed, and particularly having regard to the skill and experience of the first defendant as a highly skilled independent contractor who provided proper training for its employees in respect of site risks, there was no obligation upon the second defendant to provide any warning relating to different heights that may exist on a major arterial road.  Further, as the occupier and controller of the site, acting reasonably in all the circumstances, the second defendant could have done no more than that which had occurred.  It retained an extremely experienced company of which their employee, Mr Morris, had very high levels of qualification and experience.  There was a rigorous safety process including daily meetings and warnings put in place by both the first defendant and the second defendant. 
  2. [82]
    Further, the second defendant through a third party, had rigorous asset management processes for identifying particular hazards.  A claim that a risk assessment beyond that which occurred frequently and almost daily was, it was submitted, not sustainable. 
  3. [83]
    It was stressed that Mr Morris was experienced in traffic control.  He had attended many sites over approximately eight years.  He had obtained certificates in respect of road safety management, namely a traffic control licence and a construction card.  Mr Morris implemented his own method for lifting and carrying the traffic cones.  There were no instructions as to that process given by RoadTek.  The fact Mr Morris was a person of considerable experience was a critical feature in this matter and, by his own admission in cross-examination, Mr Morris was well aware of the workplace health and safety documentation which the first defendant had created and required to be implemented.  He accepted he was obliged to follow those requirements.  He was conscious of the following matters:
    1. the area where he was conducting his employment was a place of high traffic volume where he had to be particularly conscious for his safety and the safety of others;
    2. that roads under construction and/or repair generally could contain potholes, cracks and uneven ground; 
    3. the roads were not smooth or ‘bowling greens’ and there was a need for him generally to be conscious of such matters;
    4. he had specifically identified by way of the first defendant’s documentation of the existence of these types of risks, and been instructed to inspect for potential trip hazards;
    5. by virtue of the pre-start meeting (both orally and in writing), he was conscious generally of the risks which existed on site;
    6. it is absurd to expect the employer to take every new employee on their first day around all of the worksite pointing out potential hazards;
    7. he elected to pick up the traffic cones in a manner which he did;
    8. the accident was as a consequence of him not walking across the road in a usual and expected manner, but rather attempting to avoid a motorcycle;
    9. he was only looking at the motorcycle and not the road in front of him;
    10. in doing so, he did not stay within the marked pedestrian lines, but rather veered out to the left where the potential hazard was; and
    11. it was only the combination of the traffic cones and the avoidance of the motorcycle which led to the fall.

Consideration of Competing Interests

  1. [84]
    In my assessment, the second defendant’s duty was to take reasonable care to minimise the risk of injury to someone in Mr Morris’s position.  In exercising reasonable care by reference to the duty which the second defendant (as principal contractor) owed to Mr Morris, I have concluded there was nothing more the second defendant could reasonably have done in the circumstances to avoid or minimise the risk of injury.  Whilst it can be acknowledged that employees and contractors on site may act inadvertently, it is also to be recognised that the employees and contractors are properly trained and are particularly conscious of the risks which exist within a work site (such as the worksite in the present instance).  The employees and contractors, as in the present case, were sufficiently reminded of the risks generally on a daily basis.  They were reminded of the importance of being vigilant within the worksite and, crucially, keeping the path of travel under observation because they knew the worksite contained public roads, where high traffic volume could be expected.  They knew to expect rises and falls, heaving and undulations on the public roads.  There was a reasonable level of vigilance, risk assessment and ongoing maintenance and repair by the second defendant pertaining to the worksite.[64]  Implicit in my finding is that no criticism can be attached to the second defendant in Mr Morris being afforded a walk around site induction, despite it being his first day.  That concept, in my view, fell squarely with the employer (or at the very least to enforce that requirement), although given the reasons already expressed, not much turns on this issue.  In fact, the following exchange took place between Mr Morris and Mr Collins of counsel for the second defendant:[65]

“I’m suggesting to you that there’s an absurdity, and I don’t mean to be rude, to a suggestion that every time a new worker comes to site they have to be taken around the entire site?---That doesn’t happen.  It---

No.  It’s just, if we think about it in business how could anyone conceive – and I’m calling on your experience here?---Yes.

Different workers come on different days and some may come at different times so if you have workplace health and safety officers stopping each day, each time someone comes out, to walk them around the entire site when they’re experienced – and I’m not talking about you’re not – you’re not Joe average off the street?---No.

You are experienced in this area.  It’s absurd isn’t it, to take you around?---I – I do agree, yes”.  

  1. [85]
    Even if I held a contrary view about such matters, in any event and consistent with my reasoning about causation as it relates to any breach by the first defendant (which I have not found), I would have concluded that any such negligence was not the cause of Mr Morris’s injury.  However, in the end, I am satisfied the second defendant discharged its duty of care to Mr Morris and therefore the claim against it is dismissed.

Contributory Negligence

  1. [86]
    In the event I found the second defendant liable for Mr Morris’s injury, a finding of contributory negligence was sought against Mr Morris largely on the basis that Mr Morris failed to keep his eyes on the road after having chosen to depart from the designated path.  The second defendant contended the apportionment should be 100%.  
  2. [87]
    I am not persuaded that a finding of contributory negligence in any amount should be made because I have formed the impression that Mr Morris was not disobedient or reckless to his instructions, nor was he acting outside the course of his employment.  Comparable to the first defendant, there is no finding to be made against Mr Morris especially when he was clearly distracted by the presence of the motorcyclist.  

Quantum

  1. [88]
    I will briefly address the issue of quantum, notwithstanding my view about liability. 
  2. [89]
    Mr Morris broke both of his elbows and suffered an injury to the left forearm on 3 August 2018.  It is close to 63 months since the incident.  Mr Morris is now 55 years of age.    
  3. [90]
    On the day of the incident, Mr Morris was transported to the Logan Hospital where he was diagnosed with an undisplaced fracture of the right radial neck and a slightly displaced fracture of the left radial neck.  The right elbow healed after six weeks.  The left elbow remained symptomatic and required a left radial head replacement arthroplasty on 15 March 2019.  Mr Morris received physiotherapy treatment until about September 2019. 
  4. [91]
    Medico-legal opinions were given by orthopaedic specialists Dr Mark Robinson and Dr Chris Blenkin.  The expert views were not too dissimilar.   
  5. [92]
    Dr Robinson’s view was that the right-sided fracture was undisplaced and had healed without any problems, whereas Mr Morris has persisting problems with his left elbow and forearm.  Dr Robinson assessed Mr Morris as an eight percent whole person impairment function according to AMA-5.  Dr Robinson observed that Mr Morris was starting to develop some degenerative changes in the left elbow, which would require further surgery.  While Mr Morris is independent with activities of daily living, Dr Robinson noted that Mr Morris described symptom aggravation with most domestic tasks.  He is able to mow his lawn, but avoids heavy gardening and digging.  He has restricted his physical activities.  He has restricted his recreational activities and modified his choices of activities.  The persisting symptoms are having an impact on employment flexibility, job security and potential earning capacity. 
  6. [93]
    Dr Blenkin confirmed the uncontroversial diagnoses of bi-lateral elbow fractures, noting that while the right elbow fracture has healed, Mr Morris continues to experience persistent pain in his left elbow (including a catching, clicking sensation, despite undergoing surgery six months post-injury).  He assessed Mr Morris with a five percent whole person impairment under AMA-5 and foreshadowed future surgery, within the next 10 to 15 years, to remove the radial head.  Dr Blenkin said that for three months following surgery, Mr Morris would be unable to work as an Uber driver (as he was currently doing), and that following surgery, Mr Morris’s permanent impairment would likely increase to approximately eight percent of the whole person because of a worsened range of motion.  He was of the view that Mr Morris no longer retained capacity to work as a pest controller or carpet cleaner but was suited to driving Uber or taxi in the longer term until nominal retirement age.  He assessed Mr Morris as requiring domestic assistance at the rate of two hours per month to look after the yard (in the absence of gratuitous care).
  7. [94]
    Occupational therapist, Ms Helen Coles, concluded that Mr Morris was incapable of performing the duties of his substantive role and assessed Mr Morris as incapable of meeting the occupational demands of other roles which he previously performed.
  8. [95]
    It is with these brief matters in mind that I will assess each head of damage.

General Damages

  1. [96]
    General damages for the first defendant fall to be assessed under the WCRA.  As for the second defendant, the assessment is to be made under the common law.
  2. [97]
    As against the first defendant, Mr Morris seeks an injury scale value (“ISV”) of 14 based on item 102 of schedule 9 of the Workers Compensation and Rehabilitation Regulation 2014.  This item is “moderate elbow injury” and provides an ISV range between 6 and 12 points.  An uplift is sought having regard to what was identified as the additional displaced fracture of the right radial neck, the prior surgery, the anticipated further surgery and the significant effect on work capacity and recreational activities.
  3. [98]
    Based upon the commentary pertaining to item 102 and, in light of the expert orthopaedic opinion, it is my assessment that an ISV of 12 points is sufficiently appropriate as I do not consider an uplift is required.  That being the case, I assess Mr Morris’s general damages as against the first defendant at $20,150.  No interest can be awarded under this head of damage as against the first defendant due to the WCRA.
  4. [99]
    Mr Morris seeks an amount of $50,000 against the second defendant.  The second defendant submits an award of $40,000 is applicable. 
  5. [100]
    In light of the medical opinion and Mr Morris’s current functioning, coupled with the need for further surgery, I assess general damages as against the second defendant at $50,000.  Interest on the majority of the amount (say, 80 percent) at two percent per annum from the date of the injury until the present (say, 63 months) is awarded against the second defendant.  Therefore, interest on general damages sits at $4,200.

Past Economic Loss

  1. [101]
    At the time of the accident, Mr Morris was earning, in his role as a permanent part-time traffic controller, $791.90 net per week. 
  2. [102]
    The disclosed taxation records for the three previous financial years reveal that, on average, Mr Morris received $652.00 net per week based on the following: 
    1. 1 July 2015 – 30 June 2016 - $601 net per week;
    2. 1 July 2016 – 30 June 2017 - $693 net per week;
    3. 1 July 2017 – 30 June 2018 - $662 net per week.
  3. [103]
    Mr Morris said that his level of work, prior to the injury, was unpredictable in that he would work varying hours and overtime week to week.  He accepted that a more accurate assessment of his earnings would be to perform a proper analysis of his historical income.  
  4. [104]
    After the incident, Mr Morris was off work for approximately six weeks and then returned to light duties until his employment with the first defendant was terminated in about November 2019.  Mr Morris was unemployed from 19 November 2019 until early March 2020, when he obtained light traffic control work with Site Services Civil.  He continued in this role until around July 2021.  Thereafter, he worked as an Uber driver until March 2022 and then as a delivery driver for Jimmy Brings from April to August 2022.  From September 2022 to date, Mr Morris is currently employed as a delivery driver with Deliver-E where he delivers small parcels.
  5. [105]
    The disclosed financial material for the period from 18 November 2019 to 14 March 2023 reveals as follows:

Period of Employment

Employer

Job

Gross Amount

11.11.19 – 30.11.19

Building and Construction Industry (PLSL)/Q Leave

Long service payment

$5,788.00

09.03.20 – 30.06.20

Site Services Group Civil Pty Ltd

Traffic Controller

$3,889.74

01.07.20 – 30.06.21

Site Services Group Civil Pty Ltd

Traffic Controller

$21,101.00

01.07.21 – 30.06.22

Site Services Group Civil Pty Ltd

Traffic Controller

$8,295.00

01.07.22 – 02.07.22

Site Services Group Civil Pty Ltd

Traffic Controller

$1,432.00

01.07.21 – 30.06.22

ABN – Taxi Driver

Delivery Driver

$7,759.00

01.07.21 – 20.01.22

ABN – RTCI

Delivery Driver

$15,836.94

21.01.23 – 03.03.23

ABN – RTCI

Delivery Driver

$5,440.00

03.03.23 – 24.03.23

ABN - RTCI

Delivery Driver

$3,592.00

 

 

 

$73,133.68

  1. [106]
    I will proceed to assess past economic loss from 18 November 2019 to 14 March 2023 (173 weeks), given I know how much Mr Morris has received up to that date.  I consider an appropriate calculation for past economic loss to be on the basis of Mr Morris’s net average weekly earnings ($652) less the amount he has received since the time of the incident, without any discount.  Therefore, past economic loss sits at $39,662.32.  

Interest on Past Economic Loss

  1. [107]
    Interest at one percent on $20,237.74 ($39,662.32 less weekly benefits of $19,424.58 over say 63 months) equals $1,062.48.

Past Loss of Superannuation Entitlements

  1. [108]
    I assess Mr Morris’s past loss of superannuation entitlements at a rate of 9.75 percent per annum given the period of time since the incident comprises about half of the time at 9.5 percent and half of the time when it was 10 percent. 
  2. [109]
    Based on the above award for past economic loss, past loss of superannuation entitlements is assessed at $3,867.08.

Future Economic Loss

  1. [110]
    Mr Morris has another 12 years until notional statutory retirement age.  He has no trade skills or tertiary education.  Most of his working history has consisted initially of self-employed carpet cleaning and pest control before moving into traffic control. 
  2. [111]
    Both orthopaedic experts, together with the occupational therapist Mrs Coles, were of the view that Mr Morris is unsuited for work for which he is trained and experienced.  The orthopaedic expert opinion is that there is a risk of future degenerative change which would likely amplify his restrictions.  Both believe it is likely that Mr Morris will require further surgery, increasing his impairment level and therefore decreasing his functional capacity.
  3. [112]
    Mr Morris seeks approximately $200,000 based on an ongoing loss of $417.88 net per week for 15 years, then applying the relevant multiplier of 5 percent, and a discount of 15 percent for contingencies.
  4. [113]
    My impression of Mr Morris is that he is likely to continue to undertake work in his current employment until retirement, and there is no contrary view to suggest otherwise.  He enjoys working with Deliver-E.  The workflow he receives is consistent.  There is no reason to suspect it will decrease.  At trial, Mr Morris gave evidence that he was, at times, performing managerial tasks which at times, generated a slightly higher income. 
  5. [114]
    As has been highlighted to me on behalf of the second defendant, there is support for an award generally speaking that contingency which is referred to as “buffer damages” for future economic loss in circumstances where “earning capacity has unquestionably been reduced but its extent is difficult to assess”.  It reflects the proposition that the absence of precise evidence “does not necessarily result in non-recovery of damages”.[66]  The authorities have noted that when undertaking the task of assessing damages for lost earning capacity, the approach is “necessarily impressionistic”.[67]  In such a case, a “buffer” or “cushion” award is usually reserved for the situation where there is a smallish risk that otherwise secure employment prospects may come to an end, in consequence of the tort related injury, at some undefined time in the future.  In such a case, the court still undertakes a comparison between the economic benefits the plaintiff derived from exercising earning capacity before injury and the economic benefit derived from exercising earning capacity after the injury, although the difference cannot be determined otherwise than by the broad approach of a “buffer”.[68]
  6. [115]
    It seems to me that a broad approach or a global assessment can be made given it is impossible to accurately calculate with mathematical precision the loss arising to the plaintiff into the future.  A buffer award should be made.  Given Mr Morris has 12 years prior to statutory retirement, I assess future economic loss at $60,000.  I do so on the basis that he is earning and enjoying his work without any significant limitations, recognising of course the orthopaedic assessment concerning his current functional limitations and the need for further surgery probably in his working life. 

Future Loss of Superannuation Entitlements

  1. [116]
    Allowing 11.55 percent of $60,000 equates to an award for future superannuation loss at $6,930. 

Past Special Damages

  1. [117]
    Mr Morris seeks an amount of $35,443.85 based on:
    1. Medicare refund of $603.25;
    2. WorkCover special damages:
      1. Hospital expenses $2,100;
      2. Public hospital $1,158;
      3. Medical expenses $19,381.52;
      4. Rehabilitation expenses $7,386.50; and
      5. Travelling expenses $1,814.58;
    3. A global claim for pharmaceuticals, medical attendances and travel expenses of $3,000.
  2. [118]
    Whilst no precise evidence was led with respect to the global claim, it can be inferred that an amount should be made (in addition to the refunds to Medicare and WorkCover) for some pharmaceuticals, medical attendances and travel expenses.  I will allow $2,000.  That being the case, special damages are assessed at $34,443.84.

Past Gratuitous Assistance

  1. [119]
    Mr Morris does not claim this head of damage against the first defendant.  The claim against the second defendant is on the basis that Mr Morris’s injuries have created a need for care together with domestic and quasi-domestic services since the incident.  Relevantly, those items have been identified at trial in the evidence given by Mrs Morris, and occupational therapist Mrs Coles.
  2. [120]
    Whilst the second defendant accepts the rate of hourly care of $40, it disputes the quantum on the basis that there must be a clear distinction on the provision of services to meet a “need” as opposed to services performed.  Therefore, a critical analysis should be done between the services provided for the benefit of Mr Morris specifically (such as showering and personal hygiene and dressing), as opposed to those services which are provided for the entire Morris family.  In that respect, it was highlighted that at the relevant time, Mr Morris and his wife lived at the premises and had two children who were approaching adulthood.  It was therefore reasonable to expect that they would also provide some assistance around the house for their own personal benefit.  It was also highlighted that Mr Morris’s mother-in-law resided in a separate residence at the property and attended to her own needs.  Therefore, the distinction needed to be drawn in respect of the matters such as cleaning of the house, cooking, attending to meals, gardening, and use of the ride-on mower for the general family purpose.  All of those activities would relate to the family as a whole, as opposed to specific individual needs of the plaintiff.
  3. [121]
    The evidence from Mrs Morris was to the effect that the provision of personal services existed until about four to six weeks after the incident.  Mrs Morris estimated 5.5 hours per week for personal services comprising of showering and then dressing, cutting up food, making snacks and coffee, and getting in and out of chairs. 
  4. [122]
    In relation to domestic services, Mrs Morris gave evidence to the effect that as a result of the combination of Mr Morris either not performing such tasks with any regularity pre-injury or having subsequently purchased machinery (such as a robot vacuum cleaner) to reduce the need for the tasks to be performed at all, there was a negligible difference between the domestic services provided by Mr Morris, pre and post injury. 
  5. [123]
    In relation to heavier outdoor activities, Mrs Morris estimated that since the incident she has spent, on average, around four hours per week performing activities which, prior to the incident, were performed by Mr Morris.  In cross-examination, she conceded these tasks were, however, not services performed strictly for the benefit of Mr Morris but, rather, were performed for the benefit of the household as a whole. 
  6. [124]
    Sensibly, the second defendant did not challenge Mrs Morris as a credible witness.  Rather, the challenge was made to the estimates on the basis that with respect to the claim for services which are provided for the household as a whole, and therefore, it was appropriate to reduce same by 75 percent on account of the fact that Mr Morris is one of four members of the household.
  7. [125]
    I agree with the methodology submitted on behalf of the second defendant such that the claim for past gratuitous services should be assessed as follows:
    1. Personal services – 5 weeks at a total of 5.5 hours per week (27.5 hours); and
    2. Domestic services for household (after reduction to incorporate need of the plaintiff only), being 1 hour per week from the date of the incident until present (approximately 63 months), being 252 hours. 
  8. [126]
    Allowing $40 per hour over 279.5 hours, past gratuitous services is assessed at $11,180.

Interest

  1. [127]
    Mr Morris has claimed interest at five percent on past care against the second defendant consistent with Grincelis v House (2000) 201 CLR 321. 
  2. [128]
    Following for interest over say half, this component sits at $1,467.38.

Future Gratuitous Care

  1. [129]
    An amount of four hours per week was sought for the next 15 years, discounted by 15 percent for contingencies, as well as a period of convalescence following future surgery over six weeks, totalling some $87,000.
  2. [130]
    Adopting the methodology for past care, I will allow one hour ongoing at $45 per hour.  Therefore, I assess future care at one hour per week at $45 per hour for 15 years on the 5 percent tables (multiplier 555) in the sum of $24,975, discounted by 15 percent for contingencies to $21,228.75.

Fox v Wood Component

  1. [131]
    The Fox v Wood component of $234.80 is allowed.

Future Treatment Expenses

  1. [132]
    Based on the need for future surgery, a global amount of $25,000 was sought inclusive of medication, rehabilitation, travel and general practitioner visits.  That assessment was based on Dr Robinson’s opinion about the cost of the surgery, which was slightly higher than that of Dr Blenkin.  I will adopt a figure between the two experts, and allow, say $20,000, for global future treatment expenses.

Conclusion

  1. [133]
    Accordingly, the heads of damages are assessed as follows: 

Head of Damage

First Defendant

Second Defendant

General Damages

$20,150.00

$50,000.00

Interest

-

$4,200.00

Past Economic Loss

$39,662.32

$39,662.32

Interest on Past Economic Loss

$1,062.48

$1,062.48

Past Loss of Superannuation Benefits

$3,867.08

$3,867.08

Future Economic Loss

$60,000.00

$60,000.00

Future Loss of Superannuation Entitlements

$6,930.00

$6,930.00

Past Specials

$34,443.84

$34,443.84

Past Gratuitous Care

-

$11,180.00

Interest on Past Care

-

$1,467.38

Future Care

-

$21,228.75

Fox v Wood

$234.80

$234.80

Future Medicals

$20,000.00

$20,000.00

Sub-Total

$186,350.52

$254,276.65

Less WorkCover Refund

$51,275.17

-

TOTAL

$135,075.35

$254,276.65

  1. [134]
    The claim is dismissed because liability has not been established.  I will hear from the parties as to costs.   

Footnotes

[1]See Exhibit 1, B17 and B18.  The Job Docket Risk Assessment was on a tablet device: Exhibit 1, B126. 

[2]T3-26.

[3]See Exhibit 3.

[4]Czatyrko v Edith Cowan University (2005) 79 ALJR 839, [12] (Gleeson CJ, McHugh, Hayne, Callinan and Heydon JJ).

[5]Knott v The Withcott Hotel [2015] QDC 314, [89] citing Vozza v Tooth & Co Ltd (1964) 112 CLR 316, 318.

[6]Kondis v State Transport Authority (1984) 154 CLR 672, 680, 687-688 (Mason J).

[7]McLean v Tedman (1984) 155 CLR 306, 313 (Mason, Wilson, Brennan and Dawson JJ).

[8]At [29] (with McMurdo P and Gotterson JA agreeing), citing McLean v Tedman (1984) 155 CLR 306, 313; Reck v Queensland Rail [2005] QCA 228, [16] and Bus v Sydney County Council (1989) 167 CLR 78, 90.

[9]See Lusk v Sapwell [2012] 1 Qd R 507, [18] and [22], per Muir JA (Margaret Wilson AJA and A Lyons J agreeing).

[10]Ibid.

[11]See Rudd v Starbucks Coffee Company (Australia) Pty Ltd [2015] QDC 232, [150]. 

[12]See Finn v The Roman Catholic Trust Corporation for the Diocese of Townsville [1997] 1 Qd R 29, 41 per Williams J.

[13]Exhibit 2, 151–172.

[14]Exhibit 1, B7, B10.

[15]Exhibit 4, D13.

[16]T2-89, ll 20-25 and T2-99, ll 5-10.

[17]See for instance T3-83, T3-101, T3-102, T3-104, T3-105.

[18]See T3-56, T3-47, l 30, T3-49, l 46, T3-50, T3-57, T3-60, T3-61 and T3-69.

[19]See for instance T4-87, T4-88, T4-89, T4-97, T4-122, T4-96, T4-116 and T4-117.

[20]See Exhibit 2, C129-132.

[21]See Exhibit 2, C126-8 and C150.

[22]See T4-102 and T4-116.

[23]Exhibit 2, C145-148.

[24]See Exhibit 6, pp 5, 18-21.

[25]Exhibit 6, p 14.

[26]Exhibit 6, p 22.

[27]See T3-102, T4-116, T4-117, T3-105, T3-106, T2-85 and Exhibit 4, D16.  See also Mr O'Sullivan’s opinion. 

[28]Exhibit 6, p 14 and Exhibit 2, C148.

[29]T2-90, ll 20-25.

[30]See Exhibit 2, C1-76.

[31]Exhibit 2, C67.

[32]Exhibit 2, C73.

[33]See Exhibit 2, C108, 109 ff.

[34]Exhibit 1, B12, B21-22 or Exhibit 2, C12, C151-172.

[35]Exhibit 2, C152.

[36]See Exhibit 2, C126-8 and evidence of Mr Zwart at T3-96, ll 25-33.

[37]See Exhibit 2, C150.

[38]Exhibit 1, B18-19.

[39]See Hennessy v Patrick Stevedores Operations & Anor [2014] NSWSC 1716, [90].

[40]T3-77-79.

[41]See pp 77-78.

[42]D4, pp 96-97.

[43]See for example Exhibit 2, p 153.

[44]See for example T1-101, ll 41-46.

[45]Exhibit 2, C125.

[46]For instance, see Exhibit 5 and T3-27, ll 1-4.

[47]T3-22, ll 30-36.

[48]Exhibit 1, B17.

[49]T1-97.

[50]See Ex 2, C126-8, Ex 2, C150 and Ex 1, B18-19.

[51]Exhibit 4, p 21.

[52]T2-109.

[53]T4-42.

[54]T4-44-45.

[55]T4-48–49.

[56]T4-60–61.

[57]T4-62, ll 9-10.

[58]Strong v Woolworths Limited (2012) 246 CLR 182, [18].

[59]Consistent with the authority in Strong v Woolworths (2012) 245 CLR 182, [18].

[60]T1-108, ll 25-26.

[61]Section 305F(2).

[62]And for that matter the first defendant.

[63]See for instance Humphries v Downs Earthmoving Pty Ltd & Anor [2015] QDC 323, [159]–[170].

[64]Exhibit 10, being the affidavit of Mr Giles Lewer, who was the Road Assets Manager of Ventia Pty Ltd which was retained as the Road Asset Manager.

[65]T3-26, l 42 to T3-27, l 7.

[66]State of New South Wales v Moss (2000) 54 NSWLR 536, [87].

[67]Brear v James Hardie & Co Pty Ltd (2000) 50 NSWLR 388, [49].

[68]See Penrith City Council v Parks [2004] NSWCA 201.

Close

Editorial Notes

  • Published Case Name:

    Morris v Evolution Traffic Control Pty Ltd & Anor

  • Shortened Case Name:

    Morris v Evolution Traffic Control Pty Ltd

  • MNC:

    [2023] QDC 195

  • Court:

    QDC

  • Judge(s):

    Jarro DCJ

  • Date:

    31 Oct 2023

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Bostik Australia Pty Ltd v Liddiard [2009] NSWCA 167
2 citations
Jump To
Cite 1 - [2009] NSWCA 167
Cite 2 - [2009] NSWCA 167
Brear v James Hardie & Co Pty Ltd (2000) 50 NSWLR 388
2 citations
Jump To
Cite 1 - (2000) 50 NSWLR 388
Cite 2 - (2000) 50 NSWLR 388
Bus v Sydney County Council (1989) 167 CLR 78
1 citation
Jump To
Cite 1 - (1989) 167 CLR 78
Czatyrko v Edith Cowan University (2005) 79 ALJR 839
2 citations
Jump To
Cite 1 - (2005) 79 ALJR 839
Cite 2 - (2005) 79 ALJR 839
Finn v Roman Catholic Trust Corporation [1997] 1 Qd R 29
2 citations
Jump To
Cite 1 - [1997] 1 Qd R 29
Cite 2 - [1997] 1 Qd R 29
Finn v The Roman Catholic Trust Corporation for the Diocese of Townsville[1997] 1 Qd R 29; [1995] QCA 476
2 citations
Jump To
Cite 1 - [1997] 1 Qd R 29
Cite 2 - [1997] 1 Qd R 29
Grincelis v House (2000) 201 CLR 321
1 citation
Jump To
Cite 1 - (2000) 201 CLR 321
Hennessy v Patrick Stevedores Operations & Anor [2014] NSWSC 1716
1 citation
Jump To
Cite 1 - [2014] NSWSC 1716
Humphries v Downs Earthmoving Pty Ltd and another [2015] QDC 323
1 citation
Jump To
Cite 1 - [2015] QDC 323
Kerle v BM Alliance Coal Operations Pty Limited [2016] QSC 304
2 citations
Jump To
Cite 1 - [2016] QSC 304
Cite 2 - [2016] QSC 304
Knott v The Withcott Hotel [2015] QDC 314
2 citations
Jump To
Cite 1 - [2015] QDC 314
Cite 2 - [2015] QDC 314
Kondis v State Transport Authority (1984) 154 CLR 672
2 citations
Jump To
Cite 1 - (1984) 154 CLR 672
Cite 2 - (1984) 154 CLR 672
Lusk v Sapwell[2012] 1 Qd R 507; [2011] QCA 59
1 citation
Jump To
Cite 1 - [2012] 1 Qd R 507
McLean v Tedman (1984) 155 CLR 306
3 citations
Jump To
Cite 1 - (1984) 155 CLR 306
Cite 2 - (1984) 155 CLR 306
Cite 3 - (1984) 155 CLR 306
Papantonakis v Australian Telecommunications Commission (1985) 156 CLR 7
2 citations
Jump To
Cite 1 - (1985) 156 CLR 7
Cite 2 - (1985) 156 CLR 7
Penrith City Council v Parks [2004] NSWCA 201
1 citation
Jump To
Cite 1 - [2004] NSWCA 201
Reck v Queensland Rail [2005] QCA 228
1 citation
Jump To
Cite 1 - [2005] QCA 228
Reddock v ST&T Pty Ltd [2022] QSC 293
2 citations
Jump To
Cite 1 - [2022] QSC 293
Cite 2 - [2022] QSC 293
Rudd v Starbucks Coffee Company (Australia) Pty Ltd [2015] QDC 232
2 citations
Jump To
Cite 1 - [2015] QDC 232
Cite 2 - [2015] QDC 232
S J Sanders Pty Ltd v Schmidt [2012] QCA 358
2 citations
Jump To
Cite 1 - [2012] QCA 358
Cite 2 - [2012] QCA 358
State of New South Wales v Moss (2000) 54 NSWLR 536
2 citations
Jump To
Cite 1 - (2000) 54 NSWLR 536
Cite 2 - (2000) 54 NSWLR 536
Strong v Woolworths (2012) 245 CLR 182
2 citations
Jump To
Cite 1 - (2012) 245 CLR 182
Cite 2 - (2012) 245 CLR 182
Strong v Woolworths Ltd (2012) 246 CLR 182
1 citation
Jump To
Cite 1 - (2012) 246 CLR 182
Thompson v Woolworths (Q'land) Pty Ltd (2005) 221 CLR 234
2 citations
Jump To
Cite 1 - (2005) 221 CLR 234
Cite 2 - (2005) 221 CLR 234
Vozza v Tooth & Co Ltd (1964) 112 C.L.R 316
1 citation
Jump To
Cite 1 - (1964) 112 C.L.R 316

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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