Allen v Western Metals Resources Ltd
[2001] TASSC 19
•7 March 2001
[2001] TASSC 19
CITATION: Allen v Western Metals Resources Ltd & Anor [2001] TASSC 19
PARTIES: ALLEN, David John
v
WESTERN METALS RESOURCES LTD
SKILLED ENGINEERING LTD
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 423/1999
DELIVERED ON: 7 March 2001
DELIVERED AT: Hobart
HEARING DATES: 14, 15 February 2001
JUDGMENT OF: Blow J
CATCHWORDS:
REPRESENTATION:
Counsel:
Plaintiff: R J Phillips
Defendants: P W Tree
Solicitors:
Plaintiff: Phillips Taglieri
First Defendant: Lander & Rogers
Second Defendant: Page Seager
Judgment Number: [2001] TASSC 19
Number of Paragraphs: 20
Serial No 19/2001
File No 423/1999
DAVID JOHN ALLEN v WESTERN METALS RESOURCES LTD
and SKILLED ENGINEERING LTD
REASONS FOR JUDGMENT BLOW J
7 March 2001
This is an action for damages for personal injuries suffered by the plaintiff in the course of his employment by the first defendant when he fell through a hole at work on 28 January 1997. Cox CJ made an order splitting the trial on 4 September 2000. According to the formal order, he ordered that "The issue of liability as between the plaintiff and the defendants be tried separate [sic] and prior to any issue of damages". Both defendants have pleaded contributory negligence on the part of the plaintiff. I have interpreted the said order as requiring the issues thus raised to be determined simultaneously with the issues as to whether each defendant is liable to the plaintiff. Co-defendant notices were exchanged, but I have been told that the co-defendant proceedings have resolved.
At all material times, the first defendant operated the Hellyer Mine and an associated mill or concentrator ("the mill") near Cradle Mountain. The plaintiff worked there continuously from 1989 until the day of his injury. For some years prior to that date, he worked as a metallurgical operator in the sulphide flotation plant in the mill. On the day he was injured, production therein had ceased for maintenance purposes. The shutdown was coming to an end, and he was required to prepare for the resumption of production. In order to do so, he went to the area where his injury occurred, and walked along a metal grid mesh walkway adjacent to some machinery associated with certain bulk cleaner flotation cells. A section of the walkway had been removed, leaving a hole. The plaintiff did not notice that. As he walked along the walkway, he fell through the hole, landing on equipment below, and injuring himself. The missing section of walkway had been removed by an employee of the second defendant, which was a contractor engaged by the first defendant to carry out certain cleaning services during the shutdown period. After completing work below the walkway, that employee ("the cleaner") had omitted to replace the section of metal grid mesh that he had removed. The plaintiff has sued both defendants for damages for negligence. He has also claimed damages from the first defendant for breach of contract and for breach of statutory duty. As I have said, both defendants have pleaded contributory negligence.
Second Defendant ¾ Negligence
It is convenient to deal first with the allegations of negligence made against the second defendant. The relevant particulars in the statement of claim, as amended, assert that the second defendant:
"(a) Failed to replace a section of the floor grating of the grid mesh.
(b)Failed to warn the plaintiff that a section of the floor grating of the grid mesh was missing or had been removed.
(c)Failed to erect and/or maintain a barricade or guard railing to prevent access to the grid mesh cover of the bulk cleaner flotation cells when an unguarded opening existed in the cover.
(d)Failed to erect and/or maintain any signs or notices warning persons using the floor that a section of the floor grating of the grid mesh was missing or had been removed.
(e)Removed barrier tape from the access ways to the bulk cleaner flotation cells when it was unsafe to do so."
The second defendant has admitted that it was engaged by the first defendant, amongst other things, to clean launders at the mill. I infer that the launders that it admits having been engaged to clean were the launders of the bulk cleaner flotation cells, including those in the area where the plaintiff fell. After the plaintiff's fall, one of the first defendant's shift managers, Mr Hall, who gave evidence, completed an accident report. A copy of that report, which no doubt formed part of the first defendant's business records, was tendered as an exhibit. It contained the following information:
"accident sequence:
a) Injury Event: fell through grating injuring limbs
b) Accident Event: gridmesh had been left out of flooring around 14a/b cells
c) Other eg preceeding events, conditions at scene several sections of gridmesh had been removed / replaced for launder cleaning. cleaner thought he had replaced all mesh
to be filled out by investigator
accident cause:
sk eng cleaner thought he had replaced all gridmesh. unfortunately he had missed one small section, & also unfortunate, dave [ie the plaintiff] didn't see the missing mesh
recommendations:
suggest on shutdowns we emphasize extensive use of barrier tape. the sk eng person was a new operator + the barrier tape aspect is not included in inductions. suggest we do so in future as well."
The passages I have quoted were not challenged at the trial. I accept them to be accurate.
The plaintiff seemed an honest and reliable witness. I have been hesitant to accept some evidence that he gave about being distracted by some bright sunlight immediately before his fall, but otherwise I accept his evidence unreservedly. He said that he had not been told before his fall that the floor grating had been taken up for cleaning purposes. He said that, when he came to the stairway leading to the walkway where he fell, there was not any barrier tape in position. He said that yellow and black barrier tape was used at the mill to alert people as to danger ahead, and that he would not access an area where such tape was erected. He said that during the morning of the day in question, during the shutdown, he observed such barrier tape across the stairway access to a different bulk cleaner. He made no claim to have noticed barrier tape across the equivalent stairway leading to the bulk cleaner walkway where he fell. He said he had never had occasion to look at his feet while walking along that walkway, that he had never been instructed to look for missing grating, and that he had never had occasion to see sections of grating up after cleaning had been completed and the mill started up. The relevant walkway had never been insecure before. After his fall, he saw a piece of floor grating measuring about 1 metre by 0.6 metres leaning against the agitator shaft of the bulk cleaning cell where he fell.
Admissions were made in answers to interrogatories administered to the first defendant to the effect that black and yellow 3 inch or 75 mm wide plastic barrier tape was used to seal off the walkway where the plaintiff fell, but that it had been removed, apparently by the cleaner, by 3pm on the day in question, ie, before the plaintiff fell. Those admissions do not constitute evidence against the second defendant, and I must ignore them in determining whether it or its cleaner were negligent. However the evidence admissible against the second defendant establishes beyond any doubt that the cleaner, after finishing work in the area where the plaintiff fell, failed to replace one section of grid mesh, left that area unattended, and left the hole through which the plaintiff fell unprotected by any barrier tape, railings, barricades, warning signs, or anything else. Counsel for the defendants, Mr Tree, submitted that this was mere inadvertence falling short of negligence. I reject that submission. It was reasonably foreseeable on the part of the second defendant and its cleaner that one of the first defendant's workers might fall through a hole in the walkway if one was left there. The chances of such a hole not being noticed were enhanced by a number of factors: there had never been holes in the walkway before; one could see through the walkway, whether a section of grid mesh was missing or not; everything in the area is much the same colour; and there was a chance that any worker using the walkway might be concentrating on inspecting the flotation cell machinery. It was reasonably foreseeable that a worker using the walkway might not be sufficiently vigilant to notice the hole. In my view, the degree of danger posed by the hole was such that, in those circumstances, any failure to replace a section of the walkway, even through oversight, combined with a leaving of the area without any safety precautions in place, clearly amounted to negligence as distinct from mere inadvertence. Any reasonable person in the position of the cleaner, exercising reasonable care, would have replaced the missing section of grid mesh.
The failure to do so, and the leaving of the area unattended without any security precautions in place, plainly caused the plaintiff's fall. The accident report reveals that the plaintiff was given first aid treatment to his right leg involving a cold compress and strapping. A report submitted by him, dated 6 February 1997, asserts that his leg was injured and that he received treatment from a doctor in Burnie. These unchallenged pieces of evidence are sufficient to establish that he suffered damage as a result of his fall, damage being an essential ingredient of a cause of action in negligence. All ingredients of that cause of action are thus established against the second defendant.
First Defendant ¾ Negligence
The particulars of negligence alleged against the first defendant, as amended during the trial, are that it, its servants and/or agents:
"(a) Failed to replace a section of the floor grating of the grid mesh.
(b)Failed to warn the plaintiff that a section of the floor grating of the grid mesh was missing or had been removed.
(c)Failed to erect and/or maintain a barricade or guard railing to prevent access to the grid mesh cover of the bulk cleaner flotation cells when an unguarded opening existed in the cover.
(d)Required, permitted or allowed the plaintiff to walk between [sic] the reagent plant across the bulk cleaners on the grid mesh cover of the bulk cleaner flotation cells when an unguarded opening existed in the grid mesh cover and no inspection had been undertaken by the first named defendant to ensure that the grid mesh cover was safe to walk on.
(e)Failed to erect and/or maintain signs or notices warning its employees that a section of the floor grating of the grid mesh was missing or had been removed."
An admission was made on behalf of the first defendant in response to an interrogatory that, to the best of the knowledge of the proper officer of that defendant, none of its employees inspected the grid mesh prior to the removal by the cleaner of the barrier tape that had sealed off the walkway prior to the plaintiff's fall. Within three months after the plaintiff's injury, the first defendant introduced a policy whereby areas where hazards such as holes in flooring existed were to be barricaded using barrier tape, warning stands, or warning signs, and such barricading was not to be removed after the completion of work until the relevant area had been inspected by one of its supervisors to ensure that the hazard had been eliminated or sufficiently controlled. This was a simple and inexpensive precaution that the first defendant could easily have taken earlier to reduce or eliminate the risk of injury arising from negligence or inadvertence on the part of its employees and other workers at its premises. Such an inspection would no doubt have revealed the hole through which the plaintiff fell, and the section of grid mesh that the plaintiff saw leaning against the agitator. In failing to have a system in place for such inspections, and in permitting the removal of barrier tape without such an inspection first, the first defendant breached its duties to provide the plaintiff with a safe system of work and a safe place of work, and thus was negligent. I do not think oral warnings, barricades, guard rails, signs or notices were particularly appropriate, though the first defendant could have discharged its said duties by one or more of those means. However those duties were not discharged and, as a result, the plaintiff fell through the hole and was injured. A cause of action in negligence is established against the first defendant in all the respects that were particularised.
First Defendant ¾ Contract
The plaintiff's claim against the first defendant is pleaded in contract as well as tort but, as a result of the Tortfeasors and Contributory Negligence Amendment Act 2000, the damages that the plaintiff can recover in this action in contract are now no greater than he can recover in tort. The first defendant does not dispute that it was an implied term of the plaintiff's contract of employment that it would take reasonable care for his safety, and provide and maintain a safe place of work, safe plant and equipment, and a safe system of work. I am satisfied that the first defendant breached that implied term by allowing the barrier tape that had been closing off the relevant walkway to be removed, thereby permitting the plaintiff and others to use that walkway, without any inspection having been undertaken to ensure that it was safe to walk on. The particulars of negligence relied upon in relation to the first defendant were also expressed to be particulars of the alleged breaches of the first defendant's contractual duties. I am satisfied that the breach alleged in each of those particulars has been made out.
First Defendant ¾ Breaches of statutory duty
The plaintiff's claim against the first defendant for damages for breaches of statutory duty was based on the Mines Inspection Regulations 1991, regs212(b) and 302. It is common ground that those regulations applied to the first defendant and its operations at the mill on the day of the plaintiff's fall. The mill constituted a mine by virtue of the definitions of "mine", "mining operations", "mining product" and "works" in the Mines Inspection Act 1968, s3. That Act had been repealed by the Workplace Health and Safety Act 1995, but, as no regulations had been made under the regulation-making power conferred by the new Act, the 1991 regulations made under the old Act continued in force by virtue of the Acts Interpretation Act 1931, s15A. Regulation 103 stated that those regulations provided for the safe operation of mines as defined in the Mines Inspection Act. It specifically referred to mineral processing plants as being subject to the application of the regulations.
The relevant provisions in reg212 read as follows:
"212 ¾ Any ¾
(a) machinery; or
(b) part of a mine ¾
that is a danger to people must be guarded to minimize that danger.
(2) …
(3) Any guarding, including warnings signs must be kept in good order while the hazard exists."
It is clear from subreg(3) that this regulation was intended to apply to temporary hazards. The walkway where the plaintiff fell was a part of a "mine" within the meaning of the 1968 Act and the regulations. It was a danger to people because there was a risk that the absence of the removed grid mesh panel might not be noticed by a pedestrian, especially since the absence of the missing panel was a most unusual circumstance, and since there was apparently nothing below the hole that was much different in colour or tone from the missing panel. At the time of the plaintiff's fall, that part of the "mine" was not guarded in any way. Mr Phillips submitted that it followed that the regulation had been contravened, and that the first defendant was liable in tort for damages for breach of the statutory duty imposed by reg212(b).
But Mr Tree submitted that there was no evidence that the employer was aware of the danger, and that it was not the intention of the legislature [sic] to give rise to a statutory tort when an employer was not aware of the danger. (The regulations were made by the Minister, not the legislature, but nothing turns on that.) The only authority referred to by Mr Tree in support of his submission was X (Minors) v Bedfordshire County Council [1995] 2 AC 633, but I do not think that case supports the proposition that he advanced. In fact, Lord Browne-Wilkinson, with whom the other members of the House of Lords agreed, said, at 731, that the cause of action for breach of statutory duty simpliciter "depends neither on proof of any breach of the plaintiff's common law rights nor on any allegation of carelessness by the defendant". Given that the regulation is absolute in its terms, and that negligence or carelessness is not a necessary ingredient of a cause of action for breach of statutory duty simpliciter, there is no logical basis for concluding that the Minister, whilst intending to create a statutory duty that gave rise to private causes of action, intended to limit the availability of such causes of action to cases involving dangers known to the persons on whom the statutory duty was imposed.
Whilst the regulations provided that breaches thereof were punishable by fine, it is clear that, as is usual for industrial safety regulations, they were intended to confer private rights of action in tort: O'Connor v S P Bray Ltd (1937) 56 CLR 464; Darling Island Stevedoring and Lighterage Co Ltd v Long (1957) 97 CLR 36; Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313. I conclude that the first defendant breached the statutory duty imposed by reg212(b) by failing to guard the walkway by means of barrier tape or otherwise while the danger of someone falling through the hole in that walkway existed; that, as a result, the plaintiff fell through that hole and was injured; and that the first defendant is therefore liable to the plaintiff for damages for breach of statutory duty.
Mr Phillips did not press the claim based on reg302, which required an access way in a surface area of a mine to comply with a particular Australian Standard, AS1657. It is clear from cl 1.1 of the Standard that it applied only to the design, construction and installation of permanent structures, and not to temporary situations arising in relation to those structures. It follows that the first defendant did not breach any statutory duty imposed by reg302.
Contributory negligence
The particulars of contributory negligence pleaded by each defendant were amended at the trial. Each now alleges that the plaintiff failed to keep any or any proper lookout, and that he walked in an area which he knew to have been recently cleaned without looking where he was going. The first defendant, but not the second defendant, also alleges that the plaintiff was negligent in that he failed to notice the unguarded opening in the grid mesh. That additional allegation is of no significance, since it merely spells out one consequence of the plaintiff not having been more vigilant than he in fact was. No doubt the plaintiff could have seen the hole in the grid mesh if he had been more vigilant. The critical question is whether his lack of vigilance amounted to contributory negligence.
The defence of contributory negligence is available under the Wrongs Act 1954 (formerly the Tortfeasors and Contributory Negligence Act 1954), s4, when a person suffers damage "as the result partly of that person's wrongful act". The term "wrongful act" is defined in that Act, s2, so as to include " an … omission on the part of a person suffering damages that causes or contributes to the damage and that constitutes a failure on the part of that person to take reasonable care for the protection of his or her person or property". The critical question in this case is therefore whether the plaintiff's omission in failing to exercise sufficient vigilance to see the hole constituted a failure on his part to take reasonable care for the protection of his person.
I accept the plaintiff's evidence that he was distracted by some bright sunlight immediately before his fall. I have accepted that evidence with some hesitation, since the sun would have been somewhere behind him and to his right at the time of the fall, and since a distracting shaft of bright sunlight would have been somewhat unlikely in a building with translucent plastic walls and an opaque roof. However, the plaintiff was such a credible witness that I am prepared to accept his evidence on this point, despite what he said sounding somewhat unlikely. Unlikely events do sometimes happen. I also accept Mr Tree's submission to the effect that only vigilance at a slightly earlier stage would have prevented the plaintiff from falling. There was no evidence to suggest that the plaintiff had been abnormally inattentive on the day of his injury. He was getting ready to start up the flotation cell machinery after it had been shut down for cleaning, and possibly for other purposes. Time, apparently, was money. The plaintiff was busy inspecting the machinery, and was on the lookout for anything that needed to be attended to before the machinery could be started up, such as "stop" buttons that needed to be released, or even ladders that needed to be removed. I accept his evidence that he was looking where he was going. He had no reason to exercise any special care about where he was walking since there had never been a hole in the walkway before, he had received no warning of a hole, and there was no barrier tape or anything else to indicate a dangerous situation. The walkway was wet, and that indicated to him that cleaning had occurred in the area, but the wetness of the walkway was by no means an indication of any dangerous or abnormal situation existing. As I have already said, the transparency of the grid mesh and the uniformity of colour in the area enhanced the chances of the hole not being seen. In all the circumstances, I am not persuaded that the plaintiff took less care than was reasonable for his personal safety. It is true that he conceded in cross-examination that he might not have checked well enough, apparently referring to checking for anything abnormal. I take this to be no more than a concession that he did not exercise sufficient vigilance to notice the hole. However, he was not required to be a "paragon of circumspection": A C Billings & Sons Ltd v Riden [1958] AC 240, per Lord Reid at 255. For these reasons I reject the pleas of contributory negligence.
Conclusion
There will be judgment for the plaintiff against both defendants for damages to be assessed, without any reduction for contributory negligence.
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