Disregard of employee safety warnings results in significant liability for employer and contractors22 July 2019 | Employer's Liability
This case looks at the liability of a principal contractor, employer subcontractor and project manager/site supervisor for injuries caused by collapse of excavation trench onto foreman.
- Whether an employer, principal contractor, and project manager breached duties owed to the plaintiff foreman.
- Whether damages should be reduced on account of contributory negligence, an unrelated hip injury and cardiac condition.
The plaintiff was employed by the first defendant, Concrete Panels (Concrete), as a foreman. In May 2013, the second defendant, SMJ Projects (SMJ), entered into a commercial building agreement for the construction of a motor vehicle showroom. SMJ entered into a contract with the third defendant, Capable Construction (Capable), for the provision of a site supervisor. SMJ also entered into a subcontract with Concrete for the supply and installation of all concrete and associated works forming part of the construction work. On 26 August 2013, the plaintiff sustained serious personal injury when an excavation collapsed upon him at a worksite, causing a comminuted fracture of the body of his L3 vertebrae, fractures of his right L1 and L2 transverse processes, and symptoms of post-traumatic stress disorder.
The plaintiff brought proceedings against Concrete,SMJ and Capable, seeking damages for the injuries he sustained.
There was a significant factual dispute as to why the plaintiff was in the trench at the time of its collapse. There were no eyewitnesses to the accident. The plaintiff alleged he entered the trench to retrieve a drill he noticed had been left there. The defendants asserted the plaintiff entered the trench to undertake the shoring up work he had requested be done when pointing out his safety concerns about the likelihood of the trench collapsing to SMJ’s supervisor.
The Decision at Trial
The Court accepted the evidence of the plaintiff and found him to be an honest and compelling witness. The Court also accepted that it was within the plaintiff’s scope of duty to act as a spotter, and, having spotted the drill and recognised the potential for it to be damaged if left in the trench, it was within the plaintiff’s scope of duty to rescue it to ensure that it continued to be operable so as to allow the shoring up process to be completed, and in turn, allow the plaintiff and his men to complete their work. The court also found that the risk of injury from collapse of the excavation face was foreseeable, as it was a risk which Concrete knew, as that risk had previously been communicated by the plaintiff to it. The risk of collapsing excavations and trenches was obvious and not insignificant. The Court noted the report of an expert engineer which concluded that the proper way to manage the risk of excavation collapse was to engage in benching or battering of excavations and trenches.
Despite this, the Court went on to find that there was a low probability of the injury occurring if care were not taken, because the area above the excavation had in fact been compacted to a higher degree by SMJ. However, the likely seriousness of the injury was very high, and the Court therefore concluded that Concrete was in breach of its duty of care to the plaintiff to provide a safe place of work by failing to ensure that the excavation face had been benched or battered prior to allowing him to perform any work, including as a spotter, in the area near the excavation trench. Concrete had been specifically warned of the danger of the excavation face collapsing and was in breach of its duty to the plaintiff to provide a safe place of work.
In relation to the liability of SMJ and Capable, the Court held that the risk of injury of the collapse of the excavation was foreseeable, particularly as that particular risk was the subject of specific obligations in the relevant site safety plan. Reasonable care required the SMJ and Capable to comply with the site safety plan by battering the excavation face or benching, as occurred immediately post-accident. It was plain in the Court’s view that as principal contractor, SMJ had control over the site. It was ultimately held that by failing to bench or batter the excavation face, SMJ and Capable were in breach of their duty of care to the plaintiff and this caused the plaintiff to suffer personal injury.
In relation to contributory negligence, the Court noted that the plaintiff knew the trench was at risk of collapse - he had expressed a clear desire not to enter into the trench area because of it. Yet, acting as spotter, he observed the drill on the bottom of the trench being covered by dirt and so took a calculated risk. The Court noted that the plaintiff entered the trench in a safe area behind the concrete retaining wall having previously observed SMJ workers safely doing so. The Court concluded that there was an extremely low prospect of him being injured if he entered into the trench to retrieve the drill. If he did not go in to retrieve the drill, he would not be fulfilling his role as a spotter or as foreman. The Court held that this decision amounted to no more than momentary misjudgement, it was not inattentive, and did not amount to contributory negligence.
In relation to quantum, the Court allowed a 25% uplift on general damages. In relation to economic loss, the Court was not persuaded that the plaintiff’s unrelated health conditions would have significantly impacted his ability to carry on work until age 67, and only allowed a 20% discount and retirement at age 64 years.
Judgment was entered against the employer Concrete in the amount of $548,612.95, and against the principal contractor (SMJ) and subcontractor (Capable) in the combined amount of $909,504.00.
Implications for you
This case demonstrates the dangers for employers and contractors on building and construction sites in ignoring safety warnings, particularly when such safety warnings correspond with relevant work safety management plans.