WCRA / Occupier: nil breach of duty for obvious & low risks

Humphries v Downs Earthmoving Pty Ltd and another [2015] QDC 323

The plaintiff, a security guard, was injured whilst working on the premises of an earthmoving company his employer had contracted with. The plaintiff suffered an injury to his right ankle when he slipped on a “concrete embankment” (a drain) as he was walking up the driveway of the premises. The incident occurred at night, and in circumstances where the plaintiff was using his torch to illuminate the building windows rather than his path of travel. There was no lighting along the driveway at that time.

The plaintiff brought a claim against the company that occupied the premises (“the occupier”) and his employer. The Court ordered judgment for the defendants on the basis that neither party had breached the duty of care it owed to the plaintiff.

With respect to the occupier, her Honour Bowskill QC found that:

  • as occupier of the premises, it owed the plaintiff a duty to exercise reasonable care to avoid foreseeable risks to the plaintiff whilst he was lawfully on the premises;
  • the relevant risk of harm “was a risk that a security patrol officer might injure themselves, by tripping or falling on an unseen hazard on the driveway of the premises, in the night, in dark conditions”; and
  • the scope of duty owed “to the plaintiff did not extend to warning him about the presence of the drain/embankment; or taking precautions such as lighting the driveway or otherwise…”. See the Court’s analysis at [180] for detailed reasons why. They include, inter alia, that: the drain/embankment had been in existence for some 20 years and there had not been any prior accidents involving it; the drain/embankment was not hidden or obscured and was not an “unusual danger”; there was no need for the plaintiff to walk near the drain/embankment when performing his employment duties; the occupier had engaged the plaintiff’s employer as a specialist security agency and was entitled to assume the plaintiff would take reasonable care for his safety, which would include using his torch to illuminate his path of travel and watching where he was going.

With respect to the plaintiff’s employer, Bowskill QC DCJ found that:

  • it had conducted a risk assessment of the premises approximately three months prior to the accident which categorised the premises as a “low risk”, but identified that the premises “can get dark in places” and that there may be “debris and trip hazards”. The risk assessment was made available to its employees;
  • in response to the risks identified in the risk assessment, the employer advised its employees that the premises “…gets dark in places” and that employees were to “carry your torch” and “be aware, use caution, watch your footing, torch required”, and these warnings were all that reasonableness required in response to the risk of injury in question;
  • it employed trained, expert security officers “whose training and experience includes knowledge of the need to be cautious and on the look out for potential hazards and dangers”;
  • it had provided its employees with and directed them to use a torch which, if used correctly, would have sufficiently illuminated the drain/embankment; and
  • it was not reasonable to expect the employer to require the occupier to install external lighting on the premises, for such a requirement would apply to the premises of all of the employer’s contractors and would become excessive and burdensome.

David Cormack – Brisbane Barrister & Mediator

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