Probable improbables: Driller takes on liability share in fall down unsafe Newcrest mine shaft

Osborne v Downer EDI Mining Pty Ltd & Newcrest Mining Ltd [2010] QSC 470

A seriously injured mine-worker overcame “improbable” facts “that might have been so obscure that no conclusions could be drawn”, to defeat the combined resistance of his employer Downer EDI and mine-owner, Newcrest, in a pre-Christmas court ruling out of the Supreme Court in Rockhampton.

Read more of the article and reproduced with the permission of Carter Capner Law.

McMeekin J

Breach of Duty

[63] It is not in issue that the defendant owed the usual duties imposed on an employer under the general law. It was in issue as to whether Mr Osborne had any private right of action under the legislation governing safety on a mine site, the Mining and Quarrying Safety and Health Act 1999 (Qld).

[64] I have determined that the defendant did breach the duties owed under the general law and so need not consider what seems to me to be the difficult issue of the availability of a private right of action under the statute.

[65] The duty on an employer has been expressed in various ways. Counsel have taken me to the usual authorities. For example in Hamilton v Nuroof (WA) Pty Ltd it was said that the duty of an employer is “… to take reasonable care to avoid exposing [its] employees to unnecessary risks of injury.”[7] In Vozza v Tooth & Co Ltd, the Court explained that for a plaintiff to succeed it must appear that the defendant unreasonably failed to take measures or adopt means, reasonably open to him in all the circumstances, which would have protected the plaintiff from the dangers of his task without unduly impeding its accomplishment.[8] Those statements make plain, as counsel for the defendant and the third party reminded me, that an employer is not required to guard against all risks of injury.[9]

[66] If the plaintiff establishes the following four matters then he will have discharged the obligation on him of demonstrating negligence in, or breach of contract by, the employer:

(a) That the task involved a foreseeable risk;

(b) That there were reasonably practical means of obviating the risk;

(c) That the plaintiff’s injury belonged to the class of injury to which the risk exposed him;

(d) That the employer’s failure to eliminate the risk showed a want of reasonable care for the plaintiff’s safety.[10]

[67] The risk of falling over the edge of a stope was plainly foreseeable. It was not only foreseeable but foreseen. That was why the barriers were erected.

[68] In my view, there were two ways in which the defendant could have avoided or significantly reduced the risk of this accident occurring which were reasonably practical means of obviating the risk.

[69] First, the defendant should have caused Mr Osborne to be provided with precise written instructions about the location of the markings. That would have removed entirely the risk of Mr Osborne going too far. That measure was identified after the accident as the practice the mine would adopt in future albeit that, for other reasons, it was not in fact adopted for tasks such as this. There was nothing impractical about the suggestion and it would be a cheap and effective means of meeting the obvious risks. Mr Fisher, an acknowledged expert in mine safety and who investigated the accident, identified this as a defect in the defendant’s system of work. As well it would appear that such instructions were given in other metalliferous mines.[11] It needs to be borne in mind that Mr Osborne was given a number of tasks for the day and it is easy to forget such detail.

[70] Secondly, the defendant should have had in place a bund immediately before the stope. The evidence from Mr Strong indicated that it was cheap and easily put into place. The mine subsequently adopted bunds instead of alternative means of protecting the edges of stopes because of those factors. If there had been a regular practice of so delimiting the edge of a stope prior to the subject accident then Mr Osborne would have known that he could go no further in his search for the marks once he reached the bund.

[71] In my view the employer’s failure to adopt these measures showed a want of reasonable care for the plaintiff’s safety. In so finding it seems to me the significant matters are that mining work presents particular hazards not normally found in any workplace. The environment is constantly changing with blasting and mining activities. The men work in pitch darkness with limited vision. The tunnels can have stopes in them which present the risk of falling, in this case, some 16 metres onto very hard surfaces. Even without stopes there are hazards that justify keeping men to precise and defined areas where risks can be better controlled. The chances of injury are high and the seriousness of potential injury could hardly be greater. Further, it is well accepted that employers are required to bring into account the possible inadvertence of workers in going about their tasks. As Mr Diehm submitted, in these circumstances best practice represents reasonable practise. The measures were cheap, obvious and in fact adopted by the defendant after the event.[12]

[72] The facts of this case, in my view, are not to be compared, as the defendant and third party urge, to McLean’s Roylen Cruises Pty Ltd v McEwan[13] or Hill-Douglas v Beverley[14] where the employee was performing a task, the particular means of execution of which had to be decided by himself, and where the employee was qualified by training and/or experience to choose the mode of performance of the task. Here, the plaintiff did not intentionally choose a method of work that deliberately courted a known danger. He was attempting to follow his inadequate instructions in a very difficult environment.

[73] I am satisfied that the plaintiff has made out his case.

Contributory Negligence

[74] Finally there is the question of contributory negligence. While the assessment is governed by s 307 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld), that Act has little to say that is relevant here save that it is permissible to make a finding of contributory negligence.

[75] The relevant principles were explained in Podrebersek v Australian Iron & Steel Pty Ltd:

“The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man (Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] UKHL 4; [1953] AC 663 at 682; Smith v McIntyre [1958] Tas SR 36 at 42–49 and Broadhurst v Millman [1976] VR 208 at 219, and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.”[15]

[76] I am satisfied that Mr Osborne has fallen below the standard of care to be expected of someone in his position. While it was explicable that his attention be directed to the hanging wall it is inexplicable that he was not on high alert once he passed the second barrier. He ought then to have recognised the danger that could only lie a short distance ahead. In those circumstances there was no excuse for him not scanning the area carefully before proceeding forward. Whether the stope was six metres or 15 metres from the second barrier he should have very quickly identified precisely where it was and avoided it.

[77] He evidently did not do so and I find that his failure to do so was a significant departure from the standard of care expected of an experienced miner. It was a significant contributing factor to the occurrence of his accident.

[78] Generally speaking the cases show that courts are not particularly demanding in their assessment of the blame to be attributed to a worker. The worker’s mistakes usually occur, and did in this case, when their attention is distracted and when they are doing their best to achieve the ends of their employer. The employer’s mistakes are taken in the comfort of the board room, with expert advice available as to the systems that ought to be in place, with the experience of other similar businesses to call on, and without the immediacy of decision making that confronts the worker.

[79] The defendant and third party contended for a finding of 50% contribution in the circumstances as I have found them to be. Of the various cases cited to me, in only one has so high an apportionment been found, Wylie v ANI Corporation Ltd,[16] and there the worker placed himself in a position of obvious danger involving inevitable injury. That is not this case.

[80] Doing my best to balance out these various factors, I consider that the plaintiff should be held to have contributed to the extent of 35% to his accident.

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