11 September 2019

Where Does Responsibility Lie on a Building Site?

Cootes v Concrete Panels & Ors [2019] QSC 146 Kevin Barratt
Kevin Barratt Compensation Lawyer

A Supreme Court decision handed down on 11 June 2019 in the case of Darren Cootes v Concrete Panels (Qld) Pty Ltd, SMJ Projects Pty Ltd and Capable Construction (Qld) Pty Ltd [2019] QSC 146 highlights the complexities which can arise when work injuries arise in the course of multi-party construction projects.

Mr Cootes was injured in the course of his employment with Concrete Panels on 26 August 2013. He was injured when an excavation collapsed upon him at the worksite. He suffered from lumbar fractures and post-traumatic stress disorder.

The building project involved the construction of a motor vehicle showroom at Brisbane Road, Booval.

SMJ was the Principal Contractor. They contracted with Capable Construction for site supervision. Concrete Panels was engaged “to supply and install all concrete and associated works forming part of the construction works”. Mr Cootes was the site foreman for Concrete Panels.

Mr Cootes was injured when he was in a 700mm deep trench which had been dug by an excavator to allow for the pouring of concrete footings. There was also a 2.6m high excavation face on one side of the trench.

On 23 August 2013, Mr Cootes complained to his employer and to both SMJ and Capable Construction that there was a risk of a “caving” causing injury to workers in the trench. He said he had observed aggregate falling into the trench.

Mr Cootes and his crew were directed by Capable Construction to stop work whilst steps were taken to shore up the excavation face. During that work, Mr Cootes was operating as a “spotter” and again expressed his concern about the possibility of a collapse. He asked the worker doing the shoring up work to get out of the trench. He did and he went to do another job on site.

There was some conjecture in the case as to how Mr Cootes ended up in the trench, particularly as he had directed another worker to get out because he thought it was unsafe. Mr Cootes’ evidence was that he was attempting to retrieve the drill left by the other worker. SMJ and Capable Construction maintained that Mr Cootes entered the trench to continue the shoring up work.

The trial judge accepted that Mr Cootes entered the trench in order to retrieve the drill. At that time the face collapsed.

The trial judge found that Mr Cootes was acting in the scope of his employment duty in acting as a spotter in respect of the shoring up work and that retrieval of the drill fell within his scope of duties as an employee of Concrete Panels. He went on to find that Mr Cootes’ employer had breached its duty to him in failing to provide a safe place of employment, in particular, by failing to ensure that appropriate measures were taken to ensure the safety of the excavation face (i.e. that it was benched or battered as provided for in the site safety plan) before workers entered the trench.

A separate question arose as to whether Mr Cootes was contributorily negligent for entering an area he knew to be unsafe. The trial judge held that Mr Cootes’ actions constituted a serious momentary misjudgement but they fell short of warranting a finding of contributory negligence.

It was also held that both SMJ and Capable Construction also owed Mr Cootes a duty of care “to use reasonable care to avoid the unnecessary risk of injury caused by a collapse of the excavation face”. Consistent with his findings against Mr Cootes’ employer the trial judge found that SMJ and Capable Construction had similarly breached their duty of care to Mr Cootes by failing to carry out the excavation works in accordance with the site safety plan.

Damages were separately assessed against Concrete Panels on one hand and SMJ and Capable Construction on the other.

The question of Mr Cootes’ costs was not dealt with in the initial judgement. It may well be the subject of separate submissions. The case is however likely to bring into play a couple of recent court decisions dealing with the appropriate order for costs in claims which include both an employer and other parties such as a Principal Contractor or other Contractors. Ordinarily, a successful plaintiff is not entitled to a costs order against his employer because of a specific exclusion under the Workers Compensation legislation but subject to achieving a damages threshold, a successful plaintiff is entitled to a costs order against the other (non-employer) parties. The cases of Paskins v Hail Creek Coal Pty Ltd (No 2) [2018] 2 Qd R 518 and Thomson v State of Queensland & Anor (No 2) [2019] QSC 115 extended the successful plaintiff’s cost recovery against the unsuccessful parties to include the (otherwise unrecoverable) costs they incurred in pursuing the employer. It will be interesting to see what costs order the trial judge makes.

You can read the full judgement here.



Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).

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