A calculated risk – Negligence or not

A worker takes a calculated risk, resulting in injury. Does his/her conduct amount to mere inadvertence, inattention or misjudgement or to negligence rendering him/her responsible in part for the damage? That was the issue Crow J had to grapple with in the matter of Cootes v Concrete Panels & Anors [2019] QSC 146.

Facts

Mr Cootes sustained injury on 26 August 2013. He was working on a construction site as a Foreman. A trench was being built. Mr Cootes sustained injury when inside the trench. The trench collapsed and Mr Cootes was buried up to the top of his chest. He claimed damages against his employer, Concrete Panels (CP), the principal contractor, SMJ, and the principal contractor’s representative and site manager, Capable Construction (CC).

There was no dispute that Mr Cootes was in the trench at the time of his injury. The significant factual dispute with respect to liability was just what Mr Cootes was doing in the trench at the time of his injury. Mr Cootes said he was in the trench to retrieve a drill that had been left in the trench whereas SMJ and CC asserted he was in the trench to perform shoring up works.

Crow J resolved that factual dispute in favour of Mr Cootes. He accepted Mr Cootes was in the trench at the time of his injury ‘in order to perform a “rescue” of the drilll’. Thereafter, Crow J found CP, SMJ and CC liable to Mr Cootes for the event on 26 August 2013.

In its defence of Mr Cootes’ claim, CP accepted he was in the trench at the time he sustained injury to retrieve the drill. However, it was submitted Mr Cootes’ conduct in entering the trench to retrieve the drill was intentional and went well beyond inattention, misjudgement and inadvertence. Not unexpectedly, Mr Cootes submitted there ought to be no finding of contributory negligence because his conduct amounted to mere momentary inadvertence or misjudgment not amounting to negligence.

Crow J said the evidence revealed Mr Cootes took a ‘calculated risk’ in entering the trench to retrieve the drill. His conduct was not inadvertent, nor was he inattentive, because he fully recognised the risk and/or was extremely concerned about a risk of injury to himself or others from being in the trench.  Indeed, it appears Mr Cootes was the only person on site who fully recognised the risk of injury from the trench possibly collapsing, as it did whilst he was in it.

Crow J ultimately found Mr Cootes’ conduct in entering the trench to retrieve the drill ‘was a serious momentary misjudgement’. However, such conduct did not amount to negligence rendering him responsible in part for his own damage. Judgement was given for Mr Cootes against CP in the amount of $548,612.95 and as against SMJ and CC in the amount of $909,504.00, with no reduction for contributory negligence.

Comment

A finding of contributory negligence against a worker is rare in employer/employee cases, noting the worker’s conduct must be judged in the context of a finding the employer breached the duty of care that it owed to him/her. However, here, Crow J found Mr Cootes was fully cognisant of the risk of injury in entering the trench to retrieve the drill. He took a calculated risk and/or made a serious momentary misjudgement in exposing himself to that risk. Once he made those findings, one would have thought Crow J would have found Mr Cootes’ conduct amounted to negligence rendering him responsible in part for his damage.

Yet, Crow J did not make such a finding.

For employers, such a finding presents difficulties moving forward in attempting to establish a worker contributed to his/her injury. That is, if a person, like Mr Cootes, who was fully cognisant of the risk of injury yet still exposed himself to that risk is not guilty of contributory negligence, it is hard to see in what circumstances a worker’s conduct could amount to negligence rendering him/her responsible in part for his/her damage.

Noting Crow J only handed down his decision in Mr Cootes’ claim on 11 June 2019, it will be interesting to see if any of the defendants seek to file an appeal against his decision.

This article was written by Tony Scott, Partner and Kyle Norton, Special Counsel.