David James Murphy by his Next Friend the Public Trustee for the State of Western Australia v Placer (Granny Smith) Pty Ltd
[2009] WADC 100
•16 JULY 2009
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: DAVID JAMES MURPHY by his Next Friend THE PUBLIC TRUSTEE FOR THE STATE OF WESTERN AUSTRALIA -v- PLACER (GRANNY SMITH) PTY LTD & ORS [2009] WADC 100
CORAM: GROVES DCJ
HEARD: 19-23, 27-29 JANUARY 2009
DELIVERED : 16 JULY 2009
FILE NO/S: CIV 2175 of 2004
BETWEEN: DAVID JAMES MURPHY by his Next Friend THE PUBLIC TRUSTEE FOR THE STATE OF WESTERN AUSTRALIA
Plaintiff
AND
PLACER (GRANNY SMITH) PTY LTD (ACN 009 466 175)
First DefendantSPECIALISED RELINE SERVICES (ACN 069 212 086)
Second DefendantDRAKE PERSONNEL LIMITED (ACN 007 504 609)
Third DefendantJONATHON PAUL WAYNE LEACH
Fourth Defendant
Catchwords:
Torts - Work related injury - Plaintiff employed by second defendant - Breach of statutory duty admitted by first defendant - Negligence admitted by third defendant - First and third defendants compromise plaintiff's claim - Second defendant denies negligence and breach of statutory duty - First and third defendants' claim for contribution from second defendant
Legislation:
Mines Safety & Inspection Act 1994
Result:
Claims for contribution dismissed
Representation:
Counsel:
Plaintiff: No appearance
First Defendant : Mr T Lampropoulos
Second Defendant : Mr J Ley
Third Defendant : Ms F Davis
Fourth Defendant : No appearance
Solicitors:
Plaintiff: Stables Scott
First Defendant : Clayton Utz
Second Defendant : Greenland Legal Pty Ltd
Third Defendant : DLA Phillips Fox
Fourth Defendant : No appearance
Case(s) referred to in judgment(s):
Czatyrko v Edith Cowen University [2005] HCA 14; (2005) 214 ALR 349
Fennell v Supervision & Engineering Services Holdings Pty Ltd (1988) Aust Torts Reports 67,689 (80-180)
Hamersley Iron Pty Ltd v Robertson, unreported, SCt of WA; Library No 980573; 2 October 1998
Iannello v BAE Automation and Electrical Services Pty Ltd [2008] VSC 544
Kondis v State Transport Authority (1984) 154 CLR 672
McLean v Tedman (1984) 155 CLR 306
Reilly v Devcon Australia Pty Ltd (2008) 36 WAR 492
Romeo v Conservation Commission (NT) (1998) 192 CLR 431
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 60 ALJR 194
TNT Australia Pty Ltd v Christie [2003] NSWCA 47
Wyong Shire Council v Shirt (1980) 146 CLR 40
GROVES DCJ: The plaintiff's action against the first and third defendants has been settled and the compromise was approved by O'Sullivan DCJ on 12 December 2008. The plaintiff's action against the second defendant was then discontinued. This action now only concerns contribution proceedings brought by the first and third defendants against the second defendant. All three defendants have agreed that the settlement sum with the plaintiff (including interest and costs) is the agreed quantum in the contribution proceedings.
Proceedings to date
The plaintiff claimed damages from the first defendant ("Placer"), as the operator of a gold mine at Laverton ("the mine") at which the plaintiff suffered personal injury in an accident which occurred on 16 March 1999. The plaintiff alleged negligence and breaches of the Mines Safety and Inspection Act1994 (WA) ("the MSI Act") against Placer. Placer's employees were responsible for planning and coordinating the work at the mine, during the course of which the fourth defendant ("Leach"), a crane operator, and employee of the third defendant ("Drake"), negligently slung and lifted two metal floor plates, weighing a total of approximately 140 kilograms ("the load"), which slipped and fell during the lift and landed on the plaintiff, severely injuring him.
The plaintiff also claimed damages from Drake and Leach for negligence and breaches of the MSI Act for slinging and lifting the load in an unsafe manner, and allowing the load to fall from the sling of the crane onto the plaintiff.
The plaintiff also claimed damages from the second defendant, ("SRS") in it's capacity as the plaintiff's employer, for alleged negligence and breaches of the MSI Act for, in effect, failing to provide and maintain a safe workplace and a safe system of work for the plaintiff at the mine.
Placer, SRS and Drake denied in their defences that they were negligent and denied also that they breached any statutory duties which they were under. Leach did not file a defence and has taken no part in the proceedings.
Notwithstanding the denials in their defences and contribution proceedings between them, Placer and Drake ultimately admitted their liability to the plaintiff, resolved the differences between them, and settled the plaintiff's claim against both of them and against SRS by agreeing to compromise the plaintiff's claim by paying the amount of $4,173,720.07 ("the settlement sum") into a trust for the plaintiff and on his behalf.
SRS on the other hand, maintained it's denial that it was negligent and it's denial that it breached any statutory duty which it was under, and neither joined in the application for leave to compromise the plaintiff's claim nor made any contribution to the settlement sum.
Placer and Drake claimed contribution against SRS in negligence and breach of statutory duty. Both Placer and Drake rely on similar particulars of negligence and breach of statutory duty. Placer also claims damages for breach of contract.
Background facts
Crushed ore from the mine went through a milling process. From the crushed stockpile, ore was conveyed up a conveyor, CV2, to a semi‑autogenous grinding mill, referred to as a SAG mill, and then in a slurry form, up to a cyclone distributor. The cyclone acts like a centrifuge separating larger and smaller ore. Larger pieces of ore go off down to a ball mill for further crushing before being returned back up to the cyclone distributor. From the cyclone distributor, the slurry then goes to a leaching process or CIL mill, being the first stage of the gold extraction process. The cyclone tower, with the cyclone distributor atop, is in proximity to, but not immediately adjacent to, the ball mill and stands at a higher level than the ball mill (as depicted in Exhibits 1A &1B) There was a metal decking around the cyclone distributor. From time to time, the mills required relining and whilst such work was being undertaken, it was necessary to shut down the mine. Other maintenance work around the mine could be undertaken during the shutdown.
In early 1999, Placer scheduled a shutdown of the mine between 15‑17 March 1999 in order for reline work to be undertaken on the ball mill and SAG mill. During the shutdown the cyclone distributor and metal floor were programmed to be replaced.
Placer engaged SRS to reline the ball mill and partially reline the SAG mill. SRS was required to reline the ball mill between 6 am and midnight on 16 March 1999. One of the reliners on the ball mill was the plaintiff who commenced work at midday and was scheduled to work a 12 hour shift until midnight. The accident occurred at approximately 11.45 pm.
Placer engaged Drake, under the supervision of Placer personnel, to undertake the removal and replacement of the cyclone distributor and the metal floor plates. That work also commenced at 6 am on 16 March 1999. The work involved disconnecting each of the sixteen cyclones and spools associated with the cyclone distributor (the cyclone cluster) and the associated pipe work and their removal individually by lifting them down to the ground level. The lifting was done by using a gantry (or divet) crane (see Exhibit 1A and 1B. The gantry crane is coloured yellow and towers above the top of the cyclone tower). As cyclones were removed, grid mesh plates were put in place to cover the holes left where the cyclone had been removed from. Following that the distributor itself had to be unbolted and then lifted down to the ground.
Drake engaged Leach as a crane driver to operate a 50 tonne Tadano truck mounted mobile crane ("50t crane"), the property of Placer. The crane was required to lift out the cyclone distributor as it was too heavy to be lifted by the gantry crane.
Sometime about or after 6 pm the 50t crane was set up on it's outriggers in proximity to the ball mill and cyclone tower. At sometime during the evening it was used to lift the old cyclone distributor from its location down onto the ground beside the crane. By that stage sections of old floor steel plates had been removed.
At about 11.45 pm, SRS supervisor on site, Grant Voss, directed the plaintiff and another SRS employee, Murray Hopkins, to pack away their tools and equipment on the ball mill floor level. Leach, using chains, slung two steel floor plates onto the lifting rope of the 50t crane for lifting from the ground to the cyclone distributor deck. Leach lifted the floor plates and commenced to slew the load over the area at the feed end of the ball mill where the plaintiff and Hopkins were packing away their tools and equipment. The floor plates slipped from the chains and fell onto the plaintiff who suffered serious injury.
Liability of Placer and Drake
Slewing a crane load above workers is unsafe and negligent. Drake accepts that it was negligent in doing so. Placer accepts that it was in breach of it's duty in not better coordinating the work on site in order to avoid that occurring: s 9(3) MSI Act. Accordingly, Placer and Drake admitted liability to the plaintiff.
SRS denies any liability whatsoever on the basis that it did not know, and had no reason to think, that a crane lift was to take place at that time and there were no other relevant circumstances to put it on notice that unsafe work was taking place above and in the vicinity of it's employees.
Contribution proceedings
Placer and Drake claim against SRS an order pursuant to s 7(1)(c) and s 7(2) of the Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 ("Contribution Act") that SRS contribute such amount as the Court considers just and equitable to the settlement sum, plus interest and costs which Placer and Drake were ordered to pay upon trust for and on behalf of the plaintiff on 12 December 2008.
Before Placer and Drake are entitled to such an order they must establish that SRS "would, if sued, have been liable to pay damages" to the plaintiff: Contribution Act s 5(1).
The duty of SRS as employer
The general principles are well known. The employer's duty of care extends to ensuring that reasonable care for its employees is taken and that duty extends to providing a safe place of work and devising and enforcing a system of work and to properly instruct and warn employees so as to avoid work hazards. It also extends to guarding against the possibility of inadvertent and negligent conduct on the part of others: see McLean v Tedman (1984) 155 CLR 306 at 311. That duty of care is non‑delegable: see Kondis v State Transport Authority (1984) 154 CLR 672 per Deane J at 694.
The duty of an employer also requires that the employer protect its employees against not only known hazards, but also potential hazards. An employer may be liable for an injury to its employee not only where it knew but where it ought to have known of a danger. The negligence may be either:
(a)where the employer knows and negligently fails to remedy; or
(b)where the employer ought to have known but negligently fails in acquiring knowledge and therefore negligently fails to remove the danger: Western Australia v Watson[1990] WAR 248 at 266‑267.
The principles governing an employers duty of care were emphasised in Czatyrko v Edith Cowen University [2005] HCA 14; (2005) 214 ALR 349 at [12] in the joint judgment of Gleeson CJ, McHugh, Hayne, Callinan and Haydon JJ:
"…an employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in the workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work."
Whilst SRS may not have been in control of all aspects of the work during shutdown at the mine it was still responsible for the place of work and system of work as they applied to its employees. Whilst an employer's position in relation to the provision of a safe system of work may be constrained by the fact that it does not control the workplace, it cannot relieve the employer of its obligation to consider the risk, particularly where the work is carried out at that workplace regularly: Iannello v BAE Automation and Electrical Services Pty Ltd [2008] VSC 544 at [73]-[85] and especially at [74] and [80].
Evidence
Much of the evidence of the witnesses is non controversial. Each no doubt endeavoured to recount matters to the best of their recollection bearing in mind that it is now some 10 years since the accident. There are factual consistencies between many of the witnesses' evidence and I draw these facts together in my findings and observations later in these reasons. Where appropriate at the end of the evidence of a witness I have inserted observations on that witnesses' evidence.
The following schedule identifies the witnesses, who their employer was and their positions.
| Dayshift | Nightshift |
| Maxwell (Drake) – supervisor | Criddle (Placer) – maintenance planner |
| Medling (Placer) – relieving maintenance planner | Skinner (Placer) – mill maintenance fitter |
| Mackay (Placer) – senior mill shift supervisor | Griffiths (Drake) – cyclone tower |
| Sadler (Placer) – maintenance planner | Harvey (Drake) – cyclone tower |
| Nelson (SRS) – supervisor SAG mill | Trindall (Drake) – cyclone tower |
| Voss (SRS) – supervisor ball mill | Passmore (Placer) – production supervisor |
| Voss (SRS) – supervisor ball mill | |
| Not on site | |
| Needham (Placer) – mill superintendant | |
| Plyley (Placer) former general manager |
Evidence on behalf of Placer and Drake
(i) Graeme Gordon Criddle
Mr Criddle was a maintenance planner employed by Placer for about 10 years prior to the accident. His role entailed coordinating the planning for maintenance of the plant and equipment at the mine. Part of the maintenance planning involved the preparation of a Gantt chart which provides a timeline for the various works to be undertaken during the shutdown. The Gantt chart was published to the Placer supervisors on site so that they had an overall idea of the work to be undertaken and the timing of it. The Gantt chart was displayed in the maintenance crib room which was accessed by those persons undertaking maintenance work.
On 16 March 1999 he started at 5 pm attending a hand over meeting with the dayshift maintenance planner, Shane Skinner, and other supervisors. The meeting discussed the day's progress and any problems or issues which had arisen. There was discussion about removing sections of the floor plates around the cyclone distributor. The floor plates had not previously been replaced in his time at the mine. The changeover to the night shift was to follow at 6 pm.
He said that as at March 1999, SRS had undertaken many relines of the SAG and ball mills. These shutdowns occurred about every four months. Crane lifts were a common occurrence and the timing of such lifts varied depending on the work being undertaken. Leach had been engaged by Drake to operate the crane at previous shutdowns. He was not aware as to whether Leach had a rigger/dogman with him to sling loads. From commencement of the night shift, Mr Criddle went about the site to see the various work being undertaken. Prior to the accident, he was not aware of any crane lifts undertaken that evening.
At about 11.45 pm he was in the CIL tank area when he received a call to go over to the SAG mill area. As he walked along past the feed end of the ball mill he noticed the plaintiff in that area packing up tools. He had a brief conversation with him about having completed work inside the ball mill. He was not aware at that time that Leach was lifting new floor plates from the ground to the level of the cyclone. Nor was he aware that at the time he was speaking to the plaintiff that the floor plates were actually overhead. He had no cause to look up. He had moved on only a few steps when he heard a bang/crash and turned around to see a piece of steel on the walkway in the area where he had been talking to the plaintiff. He observed the plaintiff's leg protruding from under the steel. At that time he had no knowledge as to where the sheet of steel laying on the plaintiff had come from.
He acknowledged that as at the date of the accident, the general understanding at the mine was that crane lifts should not be carried out over areas where people were working. It was the practice he said that if there was to be a crane lift over people, then personnel would be warned beforehand. He said that:
"The rule of lifts at Granny Smith at the time was always at the crane driver's discretion. If he was lifting a load then he had to ensure that that load was safe from the time of the lift and the time of the deposit where it was going".
A safe lift he said, meant that not only that the load was secure but also that no people were put at risk. Thus, if a crane driver wanted to lift over or near an area where people were working they would be warned, or if he deemed necessary, the area underneath the path of the load would be cordoned off to stop people entering that area. The area where the plaintiff was working had not been cordoned off and he, Mr Criddle, was not aware and had no prior warning that there was going to be a crane lift over that area. He was aware however lifts were to be undertaken that night. In the 10 years he had worked at the mine, he had never seen a crane slew a load over workers. Had he observed that about to happen, he would have warned persons under the load to get out of the way and have reported the incident to a supervisor so as to ensure the situation was not repeated in future.
(ii) Shane Skinner
Mr Skinner was employed as a mill maintenance fitter with Placer. His duties included maintaining mill equipment. He was not a trained supervisor and undertook minimal supervision. On the occasion of this shutdown, he was required to be one of Placer's representatives on nightshift as "a point of contact to provide assistance to contractors on the maintenance side of things". He commenced his shift at about 4.30‑5 pm by meeting with the dayshift supervisors to plan the evening work. He was not able to recall what was discussed at that meeting. Nor could he recall if the 50t crane was set up when he commenced his shift.
During the evening, a Drake employee brought to his attention a potential hazard being created by the removal of floor plates around the cyclone distributor. He had discussion with the Drake contract group and with Graeme Criddle. A decision was made to fit the new plates to fill in the gaps in the flooring around the cyclone distributor. He believed that Leach was also a part of that discussion.
[By reference to the Gantt chart I observe that the work of installing the new floor plates was programmed to commence the next afternoon, Wednesday, 17 March.]
Mr Skinner said his role only involved him in being a point of contact in respect to the work on the cyclone distributor. He was not involved at all with the work being undertaken on the SAG or ball mills. He did not observe the work being undertaken on the ball mill.
He could not recall if the old cyclone distributor had been lifted out prior to the accident. He did recall discussion at some time about lifting the new distributor which was on the ground, and a decision being made to put lifting lugs on it to facilitate the lift. He "prepped" and welded the lugs onto new distributor. He did not recall if it was lifted into place pre‑accident.
[It is the fact as I do find and as is apparent from Exhibit 1A and 1B both the old distributor and the new distributor were on the ground alongside the 5t crane at the time when the accident occurred.]
Mr Skinner said that he had previously seen crane loads lifted over persons working below. He did not say whether that was on this shutdown or other shutdowns, on how many occasions or in what circumstances. He had not seen any such lifts on prior occasions when SRS was undertaking relines. In this instance given where the crane was, he expressed the view that it could not slew through 360 degrees because of proximity to the overhead conveyer belt, CV2. He said the crane could only slew around the left side (sitting in the operators position), that is in a clockwise direction when undertaking lifts from ground level to the top of the cyclone distributor and anti-clockwise when lifting down.
[There was no evidence that Mr Skinner was familiar with the capabilities of the 50t crane or had any expertise in so far as its operational capabilities are concerned. His evidence as to whether or not the boom of the crane could slew through 360 degrees is therefore of little value.]
Mr Skinner described the ball mill floor which was a main work area as being brightly lit at night. There was no lighting on the boom of the crane itself and minimal lighting on the load. He said it would be difficult to see any load overhead at night.
He could not recall whether or not, as at March 1999, there was any policy at the mine concerning the lifting of loads over workers. In cross‑examination he did say however that it would be as a courtesy and a matter of safety that if there was to be a lift over persons that those persons would be forewarned. It was a practice he said to warn those who might be under a load and also to sometimes cordon off an area under a slew depending on the individuals. It was his understanding that this was a matter for the crane driver. If the crane driver was uncomfortable with the lift over people then he said it was the crane driver's responsibility to inform a supervisor.
(iii) Gavin Maxwell
Mr Maxwell was employed by Drake in March 1999 as a dayshift supervisor leading the crew undertaking work on the cyclone distributor. That work involved the removal and replacement of the cyclone nest, removal of the distributor box and replacement with a new one and removal and replacement of the floor grating around the cyclone. He was not involved at all with work on the ball mill. He had previously been onsite for Drake as a fitter on a prior shutdown. Placer ran and directed the work crew so far as the work to be done. Leach was provided by Drake but was directly under the control of Placer. Mr Maxwell said his role was not so much getting the job done but rather to attend to any issues and ensure a safe work environment.
During the day he attended to a variety of activities including dousing a fire at the ball mill caused by sparks from oxyacetylene equipment and taking a Drake employee for medical attention. From that he returned at about 4.15 pm and met with the nightshift supervisor Gary Flood on handover. He finished work at 5 pm. He could not recall seeing the 50t crane in situ when he left site.
Mr Maxwell had seen the cyclones and pipework lifted by the gantry crane down to the ground. He did recall that during the morning he had seen the crane set up in front of the ball mill area. According to him there had been an overhead lift with a crane and the deck of the cyclone area and the ball mill level were cleared whilst that lift was undertaken. He was not able to say if it was the 50t crane that was used or what was lifted on that occasion.
[Mr Maxwell was the only witness to have given evidence of a crane lift necessitating the clearing of the ball mill floor level and the cyclone level. In this respect his evidence conflicts with the weight of other evidence that there had been no crane lifts or clearing of the work areas during the day. Accordingly I do not accept Mr Maxwell's evidence as to that event.]
(iv) Trevor Martin Needham
Mr Needham commenced with Placer as mill superintendent in 1994. His was a managerial position responsible for overall mine operation, maintenance etc. He said that there were up to six or seven shutdowns each year for relines of the SAG and ball mills during which time other maintenance work would be programmed in around the relines. Shutdowns were a significant event with up to 130 contract workers onsite sourced from labour suppliers. Preparatory to shutdowns he would meet with maintenance planners and discuss the work to be undertaken and planning for shutdowns. He said that cyclone removals was the regular thing on shutdowns.
He described the gantry crane above the cyclone cluster as being used to lift parts in and out of the cyclone cluster. The work would require detaching each cyclone from the cyclone distributor, one at a time they would be slung and lifted vertically and removed down to the ground. The gantry crane was only capable of small lifts. Removal of the cyclone distributor would require that it be slung to stabilise it, the securing bolts undone and the use of the 50t crane to lift the distributor box transversally away from the area and lowered to the ground.
Mr Needham was not on site when the accident occurred.
(v) Graham Richard Medling
In 1991 Mr Medling commenced as a contractor at Placer and in 1992 became a full time employee as second-in-charge maintenance fitter. In March 1999 he was the relieving maintenance supervisor for mill maintenance. On this occasion, he was the dayshift maintenance supervisor.
On 16 March he commenced at 5 am, meeting with the maintenance planners and provided with plans and a copy of the Gantt chart. Mr Medling was primarily in charge of the cyclone area but still assigned to overall work going on at the plant.
During his dayshift all 16 cyclones and spools and associated pipework were disconnected and one at a time lifted by the gantry crane down to ground level. As cyclones were removed, grid mesh plates were put in place to cover the holes left where the cyclone had been removed from. There were three grid mesh plates at the top of the cyclone and temporary plates were lifted up from the ground by the gantry crane. To his recollection the 50t crane had not been available during the day and was not in position when he finished his shift. The cyclone distributor itself had not been lifted down as there was still some bolts to be removed when he left. No floor plates around the cyclone had been removed either. The new cyclone distributor had been moved into place next to the 50t crane for lifting into position during the nightshift. Before finishing at about 7 pm, he had a one hour changeover meeting with the incoming nightshift supervisor, Mr Skinner, and with the maintenance planner, Graeme Criddle.
Mr Medling was not aware of any prior occasion when the cyclone floor had been removed and replaced or the cyclone distributor having been replaced. He agreed that there was more activity in this area at this time because of the work being done on the cyclone.
In cross examination, Mr Medling said that as the cyclone refit was his primary responsibility he was up at the top of the cyclone every hour during his shift checking on progress. He was aware that the ball mill was being relined during the shutdown. That was not an area of his responsibility. The production and process department were in charge of that operation.
Mr Medling was familiar with the Gantt. He had seen a copy taped to a table in the maintenance office area and the maintenance crib room for all to see.
The early morning meeting with contractors and planners was to outline work to be undertaken, and so that they were each aware of each others presence and what they were all doing. The emphasis, he said, was that the work had to be undertaken safely.
Mr Medling described the gantry crane as being able to turn clockwise which would mean that loads were slewed over the conveyer CV2 and lowered to the ground in front of the ball mill or could turn anticlockwise being in the direction towards the ball mill and then lower loads to the ground level. He saw cyclones being lifted down to the ground. On no occasion did he see a cyclone being lifted over the ball mill. They did not have to be lifted over the ball mill to be lowered to the ground. The end of the boom of the gantry crane may have swung over the ball mill but not the load.
(vi) Steven John Mackay
Mr Mackay commenced with Placer at the mine in 1989. In 1992 he became a mill shift supervisor and in 1996 the senior mill shift supervisor overseeing day to day operations of the mill. He was also involved in mill shutdowns and mill relines and with the planning for a shutdown and coordinating the labour required for mill relines.
In his time, there were mill shutdowns from four up to six or seven times per year, depending upon wear rates of the mills. He assisted in planning for the shutdowns. He engaged SRS to undertake the relines (Exhibits 2 ‑ 6). SRS had undertaken the relines on numerous occasions prior to March 1999. He said the Gantt chart (Exhibit 8) was displayed across the site in crib rooms and the control room so that everyone was aware as to what was happening during the relines. He prepared a Scope of Work (Exhibit 7) addressed to Mill Personnel identifying the work to be undertaken. In that memorandum he records the critical path for the shutdown, the jobs to be undertaken and goes on to state:
"With all these jobs going on there needs to be good communication so all parties are aware of holdups or changes to the plan.
…
The cyclone distributor replacement will also take the full 48 hours to complete. This job … will require all cyclones and isolation valves to be removed. This means there will be people working above the main floor. Care and consideration of people below needs to be taken."
The cyclone distributor had not previously been changed in his time at the mine and nor had the floor plates around the cyclone.
Late on the afternoon of 15 March when SRS personnel had arrived at site, they went through an induction program. Mr Mackay said he "… would meet with Peter Nelson, go through what was happening with both mills, point out some key jobs." The next morning he had "… informal meetings on the floor with Peter Nelson and his supervisors and the production supervisors. Just make sure everything was going fine, making sure the mills were handed over on time." During the shutdown he said that "… 99% of my time was on the mill floor just seeing what was going on, helping out where needed, sort of, pre‑empting any problems."
On 16 March he commenced at 4 am. When he left site at about 7 pm he was aware that some of the old floor plates around the cyclone had been removed. He could not recall the 50t crane being in place when he finished for the day. Following the accident he was called and attended at site. He observed some of the old floor plates on the ground by the 50t crane and some new floor plates on top of the cyclone tower, but not yet placed into position. He said that the practice would have been that the gantry crane would have been used to lower the new floor plates into their final position. He described lighting of the area at night as being good, there being three towers with floodlights at about 20 metres high and lights on stairs and walkways around the mill area.
Mr Mackay was in charge of the relines and not involved with the work to be undertaken on the cyclone tower. His production crews assisted on the SAG mill relines. The ball mill relines comprised only SRS employees. He was aware that SRS crew were engaged both externally on the ball mill, cutting off and knocking in the bolts, as well as crew working on the inside, removing the bolts. He described SRS personnel as "crawling all over the outside of the mill all the time".
Mr Mackay was cross‑examined as to procedures or practice at the mine where there were to be overhead crane lifts. Prior to this accident, he said that he had never seen any lifts over people. Nor could he recall occasions of anyone being warned when lifts were undertaken. He did not recall any occasion during previous relines when lifts were undertaken that people were moved out of the way. He agreed however that if that were to happen it would be a common practice to warn people of any impending lift overhead. Any crane lift he said, had to be done in a safe manner and so far as he was aware, the practice was that the area was to be safe and the crane driver would assess each lift at the time of lifting.
Following this accident Placer had documented a safety practice to be adopted where there were to be overhead lifts. This document formalised what had been his understanding. Asked "if SRS had asked you, prior to the accident on 16 March 1999, whether they'd be warned before any lifting was done over their personnel on the ball mill, you would have told them that they would be warned?" He responded "Yes, I would. If they asked. Yes." And then "If they asked. You would have told them that was the procedure in place at that time?" He replied "Yes".
(vii) John Emerys Griffiths
Mr Griffiths was employed by Drake Personnel. On 16 March 1999 he was on nightshift engaged working on the cyclone tower. He recalled prior to the accident the lifting of the old cyclone distributor by crane and it being lowered down to the ground level immediately adjacent to the 50t crane. He thought that he was dogman for the lift.
[Mr Griffiths gave no evidence otherwise detailing the lifting of the old cyclone distributor to the ground. For example gave no evidence as to what time of the evening that happened, in which direction clockwise or anticlockwise the load was slewed once it was lifted out of the tower, whether or not it was lifted over the ball mill or the feed end of the ball mill, whether or not there was any discussion between he as dogman and Leach as lift driver as to any risk or safety issues or whether any supervisors were present or advised at any time either prior to or during the lift. Thus, nothing can be gleaned from his evidence as to any of these matters.]
(viii) Jeffrey Charles Sadler
In 1995 Mr Sadler was employed by Placer and commenced at the mine as a mechanic and in June 1996 was appointed as a maintenance planner. His duties involved maintaining daily schedules for the maintenance crew and to schedule shutdowns. There were usually four and sometimes up to six or seven shutdowns per year.
Mr Sadler's role involved preparation of the Gantt chart and a plant shutdown spreadsheet (Exhibits 8 and 9). He said these documents were displayed in an enlarged format in the meeting room and in the mill control room where everyone on site had access including contractors.
He was also involved in liaising with Drake and engaging their services for the work on the cyclone tower (Exhibits 10 and 11).
On 16 March he was on dayshift and commenced with a site meeting at 5.30 am. He described the lighting around the site including the tall flood lights/elevated lights and ancillary lighting around the plant in local areas such as stairs and walkways.
In cross-examination he said that the Gantt chart was used as a tool by supervisors and that occasionally contractors/workmen would have reference to it. It was not a plan set in stone but rather was flexible depending on progress of works on any shift. Where there were changes they would usually be advised at changeover/handover meetings. He acknowledged that if a contractor looked at the chart, the contractor would not necessarily know what work was being done at that time by reason of the variability of the work and the need for flexibility.
He recalled that the 50t crane was brought into the mill area before he knocked off, after handover, but he could not recall seeing it set up.
As to crane lifts, it was his evidence that they were a common occurrence during shutdowns and that the practice was that if there was any lifting to be done over people then a warning to any workers under the lift would be given either by the dogman or driver and the area evacuated. That he said had been the established practice for years. The dogman effectively acted as an "extra set of eyes" to warn the crane driver should there be such a situation.
[That the Gantt chart was not a reliable guide as to what was happening and when as indicated by Mr Sadler can be demonstrated by reference to the Gantt chart in light of the consensus of evidence. At p 2 of the Gantt chart there is the heading "MILL AREA - GENERAL". At the top of p 3 is the task name describing the various stages of the work on the cyclone tower. The first item "remove cyclones and distributor" was scheduled to happen between 6 am and 6 pm. The uncontradicted evidence is that the distributor was not removed until sometime after 6 pm but before the time of the accident. The task to "install new floor/tack in" was not scheduled to commence until 3 pm the following day. Again, the evidence clearly indicates that work was in fact commenced at some time between 6 pm and the time of the accident the night before. Accordingly in my view reliance cannot be attached to the Gantt chart in so far as being aware at least with any certainty as to what was happening on particular tasks at any particular time.]
(ix) Bradley Wayne Harvey
Mr Harvey is a boilermaker/welder. He also held a certificate as a dogman and crane driver and had worked in that capacity on other jobs. In March 1999 he was engaged by Drake to work on the shutdown at the mine. He was on nightshift and commenced at 6 pm. He was engaged in removing and replacing floor plates around the cyclone. He used oxyacetylene equipment to cut out the plates. To his recollection the 50t crane was in position when his shift commenced. He did not recall the cyclone distributor being lifted from its position at the top of the tower and lowered to the ground. He had no recollection of any crane lifts before the accident. Nor could he recall what was done with any of the floor plates he had cut out.
He needed new floor plates for installation and he went down and spoke to Leach the crane driver. He wanted one new floor plate to be lifted however, he said, Leach insisted on lifting two plates. Mr Harvey started to sling the load and did one chain. Leach told him to go on up to the top of the cyclone ready to receive the load and Leach slung the other chain around the two floor plates. Mr Harvey climbed the stairs up to the cyclone tower. He was about two steps from the top when he looked toward the crane boom and saw that it was moving. The boom stopped its slew and he saw the load swinging. He saw the chain slip and both plates fall out of the chains downwards and out of his vision. He climbed to the top of the tower and went to the handrail looked over the edge and saw that the plates were laying over the top of someone. When he saw the plates slipping from the chains he had no time to call out a warning below.
He was aware that other workers on site were doing a reline of the ball mill. He could not recall having seen any persons at the feed end of the ball mill. It did not occur to him that the lift would have been over any personnel. To his knowledge this was the first lift of new plates up to the top of the cyclone tower.
[Again here is a witness who on the evening was working on top of the cyclone tower who had no recollection of the cyclone distributor being lifted out of position and lowered to the ground. Given that this was likely to have been a conspicuous event atop the tower and have taken some time I must observe that it is somewhat surprising that the witness lacked any recollection of this event. He was not otherwise pressed in his evidence regarding the lowering of the cyclone distributor.]
(x) Anthony Tindall
In 1999 Mr Tindall was employed by Drake as a fitter. His duties included undertaking fitting work on the cyclone distributor. He had not been to this site previously. He saw the accident occur.
At 6 pm he started his shift and was working on unbolting the parts around the cyclone distributor. He could not now recall the cyclone distributor being removed. However, in a statement (Exhibit 13) he told the District Inspector of Mines that after he was taken to the job:
"Shane Skinner took me and John Griffith and Kerry the boilermaker up the cyclone. John Leach the crane driver joined us there. We put up extra lights so we could see down where the bolts were. A section of the old deck plates had been taken out and the area was barricaded with red tape.
The first job was to get the cyclone distributer down. This took about 3½ hours. John Griffith did the dogging to lower the cyclone. We went for smoko at this time.
When we started the shift the relining crew were there working on the mills.
The cyclone lift went fine and I went down with John Griffiths.
I went looking for bolts to hold the lid on the new cyclone ready to lift it up.
Later on, about 11.30pm – 12.00, while I was working on the bolts, I heard the crane start up."
In his oral evidence he recalled hearing the crane start up and saw the plates being lifted and the crane boom slowly and steadily moving around in a clockwise direction. Whilst the crane was turning he was able to see the crane driver and made eye contact with him. He described the plates as being slung vertically up and down (as opposed to flat horizontally to the ground) with the chains equally spaced. He watched the plates all the way round and the crane slew stopped and saw the plates secured by the chains swinging when the two plates came apart from each other and started slipping. Looking up through the mesh grate of the mill floor level he could see that there were two men in the area of the feed end of the ball mill. He shouted out and pointed upwards towards the load. One of the persons above heard his call and looked over the handrail. That person looked up and as he turned the floor plates fell and hit the plaintiff who was the other person on the floor mill deck from a height of about 10 ‑ 15 metres. He estimated that from the time of raising the load to the accident happening was all over in 20 – 30 seconds.
Looking up he could see the load "as clear as" and described the lighting of the area as fine. Similarly he could see the two men up on the mill level floor through the floor grating.
[Mr Tindall was the only witness to give evidence of hearing the 50t crane starting up. That is not surprising because he was on the ground in close proximity at the time. There was no evidence as to what the noise level of the crane engine was to suggest that persons on the mill floor would or should have also heard it and thereby be aware that it was operational. In any event there was no evidence from any witness on the mill floor of hearing the crane start up.]
Evidence on behalf of SRS
(i) Peter Graham Nelson
Mr Nelson is the managing director of SRS a company which he established in July 1995. He is a qualified heavy duty mechanic and also the holder of CV and CN crane tickets and has experience using such equipment.
Prior to 1995 he had worked with another company and had been engaged on relines at the mine. Prior to March 1999 SRS had undertaken relines on the SAG and ball mills on 14 or 15 occasions.
Mr Nelson was the SRS site supervisor on the shutdown. On 16 March he commenced at 6 am and knocked off at about 8 pm. He mainly worked on the SAG mill but on occasions went over to the ball mill during breaks. He did not recall having seen a Gantt chart for this job and generally he doesn't have an interest in the Gantt chart as SRS work is in a single location. He considered the Gantt chart of more use to someone with multiple tasks at the site. When he knocked off he did not recall having seen the 50t crane set up near the ball mill. He was aware that work was being undertaken on the cyclone tower but was not aware as to the scope of that work.
He did recall that there had been crane lifts at the mine on previous occasions. Sometimes SRS employees would assist with the removal and lifting of equipment. He said that on any lift workers in close proximity would be forewarned. Usually it would be the person "dogging up the load" who would alert others. On no prior occasion in his experience at the mine had there been an overhead crane lift without prior warning. He could not recall any warnings of impending lifts having been given on 16 March. Nor did he recall there having been any overhead lifts on that date.
Mr Nelson's evidence was, that as a crane operator, the prime rule is to warn people around when an overhead lift is about to be undertaken. At other mines where he had worked, areas have been taped off or spiders (observers) put in place to give warnings to anyone who may be in or stray into the area in proximity of a crane lift. It was his evidence that if there had been such an incident he would immediately stop the lift and clear everybody out of the area. Had that happened he would then see Steve Mackay (the senior mill shift supervisor) and complain that he was not happy about the lift being overhead so as to ensure that it did not occur again.
Whilst he did not recall what work was to be done on the cyclone tower he was aware of fire mats on a mid-level deck and that on prior shutdowns work had been done on the cyclone tower, he said that he had no clear view of the activity on the cyclone tower.
He had discussions with Steve Mackay about the work to be undertaken and other work being undertaken around the site to ascertain if there was anything that might directly affect SRS work, e.g. in close proximity to the mill/power off/compressed air off. There may have been other tasks on site which did not affect the work to be undertaken by SRS. On this occasion there was no indication of any works which might have impacted on SRS's work areas.
He described the Gantt chart as a "wish list" i.e. what they wanted to get done in the time available. It did not match the reline tasks. He was not provided with a copy of the Gantt chart and did not look at the chart in the control room. He is always mindful to actively look out to see what is going on and around the area in which he and his men are working.
Asked about the 16 lifts of the cyclones from the tower to the ground he said that he was not aware of that happening. He described those lifts, using the gantry crane, as being away from SRS immediate work area and he would not have been concerned about such lifts. He did not see any steel plates being lifted down from or up to the top of the cyclone tower and nor did he see the 50t crane set up on that day.
Had he been aware that there were to be loads lifted over SRS people then they would have been removed from the area. He did not recall any such occasion where that happened on this shutdown. Had he been aware that there was to be overhead lift, he acknowledged that it would be his responsibility as SRS site supervisor to ensure that any workers were out of the way. It was his expectation however that if there were to be lifts overhead of workers then he would be forewarned about it.
(ii) Grant Andrew Voss
Mr Voss worked with SRS from June 1995 to June 2002. He, like Mr Nelson, had previously worked with Monodelphous and undertaken relines at the mine. He commenced with SRS as a relines trade assistant and became a supervisor in 1996. Supervisors' duties included site safety.
On 16 March he was the supervisor on the ball mill reline. He commenced at 6 am, did not recall attending any meeting and he worked through the full 18 hours of the job, finishing just prior to the accident happening. He described the job as routine and that it went smoothly. He had worked on many relines at the mine with SRS. He did not recall having seen a Gantt chart for this shutdown and in any event it would not have been of interest to him. He was given a scope of work to be done. He had no involvement with any other work on the site. He did not recall having seen any crane lifts on this day. He had observed crane lifts on previous occasions. He recalled prior to the accident seeing the 50t crane in proximity to the ball mill. It was sitting idle. He was not aware of any lifts being done by the crane and no one forewarned him of any lifts to be undertaken by the crane over his work area that day.
It was his evidence that it was industry practice, as he had also experienced at other mine sites, that if there was to be a crane lift overhead then workers in proximity would be forewarned and moved out of the area. Either the crane operator or representative at site would give the warning. He did not recall specifically any particular practice at the mine. He said that in his experience at site there had never been a problem with an unsafe lift. By an "unsafe lift" he was speaking of a lift over people. He did not recall that ever happening at any mine site he had worked on prior to this accident.
When the accident occurred, he was only a matter of a few metres away from the plaintiff. He heard a loud bang, turned around, and saw SRS worker, Murray Hopkins, stumbling in the area in front of the feed shoot. He saw the plaintiff lying on the decking with a couple of steel plates in proximity. Mr Voss had no idea where the steel plates had come from. After hearing the loud bang he recalled seeing a person down below at ground level pointing up. Mr Voss looked up and he saw clearly the chains hanging from the crane boom above. His first thought was that the crane had moved and he was surprised that it had been moved as he had not been told and had no prior knowledge or forewarning that an overhead lift was to take place. It was his expectation that if an overhead lift was to take place that he and his crew would have been told about it and told to move out of the way. He had never seen a lift over people before. He had seen occasions where a lift was taking place and a person had walked into an area and the lift being stopped and the person told to get out.
It was his evidence that he would spend about one third of his time working inside the ball mill. Each rotation of the mill was about an hour and a half apart and of that, he would spend about half an hour inside the mill. The rest of the time he would be at the side of the mill and walking around in close proximity. When the mill was rolled, which took about 5 minutes, he would be at the feed end, directing the move. At all times, he would keep a look out for any other activity which might constitute a danger.
He was not aware that 16 cyclones had been lifted down from the top of the tower or that any steel plates had been lifted down or up to the top. He could not recall any occasion on that day when his crew had been asked to move away when an overhead lift had taken place. He was not aware either that on this evening, the cyclone distributor had been lifted down from the top of the tower to the ground. He had not been aware of the crane starting up, moving, or anyone yelling immediately prior to the accident. He did not recall having seen the crane being put into position and outriggers being extended.
(iii) Stewart James Passmore
From 1990 to 2007 Mr Passmore was employed by Placer at its Granny Smith mine. As at 16 March 1999 he was the night shift production supervisor. His main tasks on this occasion was to oversee the relining of the SAG mill and to oversee and give any assistance on the ball mill relining. His role included overseeing and policing safety on site. He had previously performed this task on many occasion when SRS and previously Monodelphous had undertaken relines of the mills. As to the ball mill, it was his task to ensure that there were no unnecessary delays in turning the ball mill and to ensure that any other tasks were coming to a conclusion preparatory to getting the mill ready to lift and turn. Either SRS would give him about 15 minutes notice to get across to the ball mill or upon his inquiry as to when they would be ready, steps would be taken in preparation for turning the mill.
He was aware that there was other maintenance work at the mine. He said there was always a lot of auxiliary work going on surrounding the relining of the mill at shutdown. He was aware of activity on the cyclone tower. During his shift he received a complaint about sparks from oxy cutting work on the cyclone tower and he made a point of speaking to the contractors on that job requesting that more fire blankets be put down and that request was complied with.
Whilst it was common that there would be many crane lifts during shutdown, Mr Passmore was not aware of any crane lifts that night. Generally a crane lift would be organised by radio or word of mouth and any personnel working in the area under the lift would be informed and in appropriate cases the area cordoned off and spotters appointed. Mr Passmore had a radio on him. He had no involvement with any crane lift. He opined that if he had been informed of a crane lift, he would ensure the area was controlled, that personnel would be asked to vacate to a safe distance so as not to be under the load and the area, if appropriate, be cordoned off and spotters appointed to not let people into that area until the lift was completed. He would ensure that the supervisor on the ball mill was informed of the lift and, the likely time frame and he would ensure personnel were vacated. He could not recall having been told of any crane lift to be made that evening.
Mr Passmore was not given a Gantt chart but was aware that one was posted in the mill vicinity and in fact, saw it in the mill control room on the cabinet behind the mill controller. The mill control room was authorised entry, but contractors could enter. Contractor supervisors went into the mill control room frequently. On his night shift he did not know what work was to be undertaken on the cyclone tower. He was not aware that the cyclone distributor was to be or in fact was removed that evening. He speculated that he may have been informed of that in the lead up to the shutdown but was not aware that was to happen on that particular evening. At the time he commenced his shift, he could not recall seeing the mobile 50t crane. During the evening he did see it unattended in the vicinity of the ball mill. He did not see the crane do any lifting work.
Had he been aware that there was to be a lift over personnel he would:
i. remove personnel from under the slew of the crane;
ii. stop the lift; and
iii. speak to the maintenance supervisor in control of the lift.
He was not made aware that floor plates around the cyclone tower were to be lifted.
At the time of the accident he was about 10 – 20 metres away from the plaintiff. He heard a commotion and the noise of metal striking metal. He saw the outcome of the impact and the plaintiff on the deck at the feed end of the mill apparently injured. He got on his radio and called for medical assistance.
It was Mr Passmore's understanding prior to the accident that the practice in relation to crane lifts was to "… control the area of the lift, cordon off or appoint spotters." He said that was the case "in all circumstances. There's no exceptions." He was not aware that this practice was written down anywhere but from his own observation "… it was observed."
In his time at Granny Smith he had not seen or heard of any overhead lift without warning. The area would be evacuated if there was to be an overhead crane lift.
Following the accident stringent guidelines were documented which reflected the practice which had been in place prior to the accident.
It was his opinion that by reason of the practice which existed SRS would have been entitled to expect that their personnel would be warned and removed from an overhead lift area until the lift was completed. It was his own expectation that as supervisor on the mills he would be informed if there was to be an overhead lift. He received no warning by radio or otherwise of the overhead crane lift prior to the accident.
[Mr Passmore's role included policing safety on site. He did see the 50t crane unattended in the vicinity of the ball mill at some time during the evening. That apparently did not excite any interest or concern or seemingly, give him any reason to think or know that an overhead crane lift was planned or in contemplation for that evening.]
(iv) William Forrest Plyley
From 1994 to 2000 Mr Plyley was the general manager at the Placer Granny Smith mine. He was contacted after the accident by the mill superintendent, Trevor Needham. In his time as general manager he placed a heavy emphasis on site safety. The Australian Standard, Cranes – Safe Use (Exhibits 18 and 19) were the minimum standards applied for crane lifts. The practice which he directed be observed in relation to crane lifts at the mine was that there would not be any lifting of loads over people or where people might be struck by the load. In his extensive experience of many years in the mining industry this was also the practice at any construction of mine sites. He could not recall in his six years at the mine of any occasion of an overhead crane lift without warning being previously given.
Liability of SRS for negligence and breach of statutory duty by Placer and Drake
This is not a case where SRS delegated its duty of care to either Placer or Drake. SRS was contracted to undertake the work using its own expertise and employees who were, at all times, directed and supervised in that work by SRS supervisors Nelson and Voss. It is not a case like Kondis (supra) because the employer SRS did not allow any other person, and, in particular, any other person contracting to it, to assume control or supervision of the plaintiff. The circumstances are distinguishable also from cases like Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 60 ALJR 194 and the so-called labour hire cases Fennell v Supervision & Engineering Services Holdings Pty Ltd (1988) Aust Torts Reports 67,689 (80-180) and TNT Australia Pty Ltd v Christie [2003] NSWCA 47.
SRS did not delegate its duty of care to either Placer or Drake and thus it would not have been held liable for their admitted negligent acts and omissions, or for their breaches of statutory duty. SRS would not have been liable to pay damages to the plaintiff on that basis.
Liability of SRS for negligence and breach of statutory duty independently of Placer and Drake
Placer and Drake also allege that SRS would have been liable to the plaintiff for negligent acts and omissions and breaches of statutory duty independent of their own. Placer and Drake say that SRS was negligent and breached its statutory duty under the MSI Act in that it:
(a)failed to adequately alert or warn the plaintiff at the outset of works on 16 March 1999 and on each occasion that the plaintiff was directed to move to any part of the mine where there was potentially an overhead hazard in existence, as to the risk of injury presented by works being performed overhead;
(b)failed to instruct the plaintiff to ensure that, prior to moving to any part of the mine where there was potentially an overhead hazard in existence, to check that the area was safe and free from such overhead hazard;
(c)failed to ensure that the plaintiff followed and abided by the warning and instruction which it should have given;
(d)failed to ensure that the areas where the plaintiff was working or would be directed to were secured from and free from overhead hazards;
(e)failed to prevent the plaintiff from entering or failed to direct the plaintiff not to enter any area in which he was exposed to the risk of an overhead hazard;
(f)failed to alert Leach as to the presence of the plaintiff at any time during the crane lift which he performed.
Negligence
In considering whether SRS was negligent, the content of the duty of care which it owed to the plaintiff must be examined. In that examination the scope of the duty is to be assessed according to what would have been reasonable for someone in the position of SRS, before the accident occurred. It is not appropriate to begin with the accident and then work back retrospectively with hindsight: Romeo v Conservation Commission (NT) (1998) 192 CLR 431 at [52].
In determining whether SRS breached its duty to the plaintiff the Court must determine:
(a)whether a reasonable person in the position of SRS would have foreseen that his or her conduct might pose a risk of injury to the plaintiff; and if so
(b)what the reasonable person would have done by way of response to the reasonably foreseeable risk of injury (Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48).
Accordingly the first matter which must be considered is the state of knowledge and position of SRS at the time of the accident.
Essentially SRS puts forward three propositions in support of its assertion that it did not breach its duty of care to the plaintiff. They are:
1.SRS supervisors were not told of or warned that any and in particular this overhead lift was to be undertaken;
2.SRS supervisors could not be taken to have knowledge or ought to have known that there would be a crane lift by reason of events going on around and above them; and
3.That in any event there was a common practice at the mine that if there was to be an overhead crane lift that personnel would be forewarned and evacuated from the area beneath any such lift.
The weight of evidence allows me to arrive at the following findings
(i)It was the practice at the time (if not a policy) that if there was to be an overhead crane lift that forewarning would be given to personnel who were in the path of the lift to clear the area before the lift was undertaken and to remain clear until it was completed.
(ii)That on the occasion of the crane lift which resulted in the plaintiff being injured (the final lift) there was no warning given by or to anyone of the impending lift about to be undertaken.
(iii)No Placer or SRS personnel on site were aware that the lift was about to be undertaken.
(iv)No Placer or SRS personnel were aware of any lifts using the 50t crane prior to the final lift.
(v)That lifts utilising the gantry crane did not involve lifting overhead of the area where the SRS workers were engaged.
(vi)That at about or sometime after 6 pm the 50t crane was setup on it's out riggers in front of the feed end of the ball mill (as depicted in Exhibit 1A and 1B).
(vii)That at sometime between the set up of the 50t crane and the final lift the cyclone distributor was lifted by the 50t crane out of its position atop the cyclone tower and lowered to the ground and put down to the left side of the 50t crane (as depicted in Exhibit 1A and 1B).
(viii)That the Gantt chart and the plant shutdown spread sheet (Exhibits 8 and 9) would not have alerted SRS supervisors, had they looked at them, that there was to be a crane lift overhead of the ball mill or any area where SRS personnel were engaged. The Gantt chart was a "flexible" document depending on progress of works. For example, had SRS supervisors looked at it they would have seen that "install new floor/tack in" around the cyclone was not programmed to commence until 3 pm the next day. The fact is that installation of the new floor plates was brought forward and commenced on the evening before the accident. Thus the Gantt chart would have not alerted SRS supervisors to that fact.
(ix)That Leach undertook the final lift without utilising a dogman to assist in that operation.
(x)That Leach did not warn anyone that he was intending to lift the floor plates over the top of the ball mill or any area where SRS workers were engaged.
(xi)That Placer employees Criddle and Skinner were aware of a potential risk at the top of the cyclone tower after floor plates had been removed and they ordered that new floor plates be put in place. It can be reasonably implied that they would be well aware that would involve the lifting of new floor plates from the ground up to the decking level. [There was no evidence that that could not or was not done utilising the gantry crane]
(xii)That there had not been any crane lift requiring the clearing of the ball mill floor that morning. Only Maxwell gave evidence to that effect which is far outweighed by evidence to the contrary of other witnesses. I conclude that Maxwell was wrong in that recollection. The 50t crane was not in position until towards the end of the day.
(xiii)On no prior occasion when SRS had undertaken relines at the mine had there been an overhead crane lift.
Additionally, I make the following observations
(i)That there was no evidence that in fact when the cyclone distributor was lowered to the ground that it was lifted over the top of the ball mill or any area where SRS workers were engaged.
(ii)There was no evidence that any lifts involving the gantry crane were over the top of the ball mill or any area where SRS workers were engaged.
(iii)There was no evidence that any lifts that day, save for the final lift, were over the top of the ball mill or any area where SRS workers were engaged.
(iv)There was no reliable evidence that the 50t crane could not slew 360 degrees or that it could not have lifted the cyclone distributor over the top of the conveyor CV2. Mr Skinner did proffer his view as to that. There was no evidence that he was qualified so far as the cranes capabilities were concerned or the basis for him holding that view. I do not accept his evidence in that respect. The site diagram (Exhibit 15) only indicates the slew of the 50t crane boom from the pick up point to its final position where the load fell. It does not assist so far as the 50t cranes capabilities are concerned.
(v)In the absence of any evidence from a crane driver familiar with the capabilities of the 50t crane or other expert evidence I am unable to draw an inference that in fact the lowering of the cyclone distributor was effected by the crane boom and its load traversing over head of the ball mill or any area where SRS workers were engaged.
(vi)There was no evidence from anyone as to which way, clockwise or anti-clockwise, the lift of the cyclone distributor was undertaken.
(vii)Whilst there was conflicting evidence as to whether or not new floor plates had been lifted up to the cyclone tower before the final lift there was no evidence as to whether that had involved the gantry or the 50t crane or that the lifting was over the top of the ball mill or any area where SRS workers were engaged.
(viii)Similarly as to the removal of old floor plates there was no evidence as to whether that had involved the gantry or the 50t crane or that the lifting was over the top of the ball mill or any area where SRS personnel were engaged.
(ix)There was no evidence that at any meeting either on 15 March or prior to work commencing on 16 March or at changeovers or at any other time SRS supervisors were informed that there was to be a 50t crane lift over the ball mill or any area where SRS workers were engaged.
(x)There was no evidence that SRS supervisors were aware or advised that the time table for "installing new floor/tack in" as indicated by the Gantt chart had been brought forward to commence whilst reline of the ball mill was still being undertaken.
(xi)There was no evidence that Leach had informed anyone that he intended to lift the new floor plates over the top of the ball mill or any areas where SRS personnel were engaged.
(xii)There was no evidence that anyone (other than Leach and Griffiths) was aware that new floor plates were to be lifted to the top of the cyclone tower.
(xiii)There was no evidence that either Criddle or Skinner informed SRS supervisors that it was intended that new floor plates were to be lifted up to the cyclone tower that evening.
(xiv)There was no evidence that the sound of the engine of the 50t crane would be heard on the mill floor level so as to create an awareness to the possibility that an overhead crane lift was about to take place.
Should SRS personnel have known or ought to have known that there was potentially or in fact a risk of an overhead hazard?
The answer to this question is a resounding no.
(i)On no prior occasion when SRS had undertaken relines at the mine had there been a crane lift overhead of the area where SRS workers were engaged.
(ii)In meetings and changeovers between shifts before the accident SRS personnel were not informed that any overhead crane lifts were to be undertaken.
(iii)Lifts utilising the gantry crane were not overhead the SRS ball mill work area and were not a matter to give rise to any concern for the safety of SRS employees.
(iv)On the evidence not even Placer personnel were aware of any overhead crane lifts either to be undertaken or in fact undertaken that evening.
(v)The Gantt chart (Exhibit 8) would not have either alerted or indicated to SRS supervisors that there was potentially a risk that there would be a crane lift overhead the ball mill or any area where SRS workers were engaged on that evening.
(vi)Neither the scope of work (Exhibit 7) or plant shutdown spread sheet (Exhibit 9) would have alerted or indicated to SRS supervisors that there was potentially a risk that there would be a crane lift overhead the ball mill or any area where SRS personnel were engaged on that evening.
(vii)The positioning of the 50t crane in proximity to the feed end of the ball mill would not of itself have been sufficient to forewarn or alert SRS to any potential overhead hazard. Mr Nelson did not recall having seen the crane in that location. Had he seen it, it may not have alerted his interest in that, as he said:
"… the nature of shutdowns generally is that there is a lot of activity taking place sort of in and out and around the plant and quite often cranes are set up and may not be used for a period of time … so the fact that a crane might be there doesn't mean its in the process of being used or about to be used."
To similar effect was Mr Passmore's evidence seeing the 50t crane idle in that position did not excite his interest or concern and nor, in the circumstances, would it have seemed to alert Mr Nelson to any potential risk.
It is accepted that the 50t crane was used to lower the cyclone distributor to the ground. For the reasons earlier enunciated I cannot infer that in fact that lift was affected traversing the load overhead of the ball mill or any area where SRS workers were engaged.
(viii)There was no evidence that the lifting down of the old floor plates or lifting up of the new floor plates was undertaken by the 50t crane or was affected by traversing the load overhead of the ball mill or any area where SRS workers were engaged.
In the final analysis I find that SRS personnel neither had actual or constructive knowledge that there was potentially or in fact a risk of this or any overhead hazard. Thus they can not be taken to have known and nor ought they have known of this potential hazard.
What was the reasonable expectation of SRS at the time prior to commencing the work and whilst its employees were undertaking the relines
(i)The overwhelming expectation which SRS supervisors had was that if there was to be a crane lift over the ball mill or any area where SRS workers were engaged, that they would be forewarned and that the area under the lift would be cleared of personnel before the lift commenced and would remain so until the lift was completed.
(ii)That either Placer or Drake personnel (including Leach as the crane operator) would forewarn SRS supervisors if such a lift was to be undertaken.
(iii)Even Placer personal acknowledged that SRS were entitled to have that expectation.
(iv)That if there were changes to the work program during the shutdown which impacted on SRS or affected the area where its workers were engaged its supervisors would be so informed by Placer personnel on site.
Should SRS have warned Leach of the presence of its employees in and around the vicinity of the ball mill?
Again the answer to this a resounding no.
(i)SRS personnel were not warned of the impending lift by the 50t crane.
(ii)SRS personnel were not aware of any prior lifts by the 50t crane.
(iii)SRS personnel were not aware that lifts would be overhead their worksite.
(iv)SRS personnel had no reason to know or expect that a crane lift would be carried out overhead of their work area.
(v)On the contrary the weight of evidence was that if there was to be an overhead crane lift it would usually be the crane driver or his dogman who would forewarn anyone in the path of the lift and clear the area in order that the lift could be undertaken safely. In this instance Leach was working without a dogman. He did not forewarn anyone of the impending lift.
Was it reasonable for SRS to have had the expectation that it would be forewarned of a potential overhead hazard
Equally so the answer to this question is yes.
(i)There had never been at the mine when SRS was engaged an overhead lift of its work area.
(ii)It was the practice generally at the mine that if there was to be overhead lift personnel in the line of travel of the lift would be forewarned and the area clear before the lift commenced and remain so until the lift was completed.
(iii)Given the emphasis that Placer placed on communication and safety at the mine it was reasonable to expect that its own personnel would adhere to safe practice and the Australian Standards when an overhead lift was to be undertaken.
(iv) Placers own supervisors acknowledged that it would be reasonable for SRS to have the expectation that such safe work practice would be adhered to.
(v)SRS work was undertaken in a defined and confined area of the ball mill. It involved employees working inside the ball mill as well as on its outside. It was noisy work, oxyacetylene cutting equipment and rattle guns were utilised to cut bolts, safety equipment and ear plugs were worn. I accept that both Nelson and Voss were alert to any dangers and were themselves safety conscious. Both of them were working inside the mills for at least a third of time between rotations with limited opportunity to be "looking out" all the time just in case something might happen. It would be unreasonable to expect them to do that especially as there had been no prior indication either from past experience or circumstances on this occasion to cause them to be aware of the potential hazard.
Conclusion as to SRS' duty of care
I conclude that SRS was not in breach of its duty of care to the plaintiff.
Breach of statutory duty
It is also alleged by Placer and Drake that SRS was in breach of its statutory duty pursuant to s 9(1) of the MSI Act and that, on that basis as well, it would have been held liable to the plaintiff.
Section 9 of the MSI Act provides as follows:
"(1)An employer must, so far as is practicable, provide and maintain at a mine a working environment in which that employer's employees are not exposed to hazards and, in particular, but without limiting the generality of that general obligation, an employer must –
(a)provide and maintain workplaces, plant, and systems of work of a kind that, so far as is practicable, the employer's employees are not exposed to hazards …"
The word "practicable" is defined in s 4 of the MSI Act to mean:
"reasonably practicable having regard, where the context permits, to –
(a)the severity of any potential injury or harm to health that may be involved and the degree of risk of such injury or harm occurring; and
(b)the state of knowledge about –
(i)the injury or harm to health referred to in paragraph (a); and
(ii)the risk of that injury or harm to health occurring; and
(iii)means of removing or mitigating the potential injury or harm to health; and
(c)the availability, suitability, and cost of the means referred to in paragraph (b)(iii)."
The word "risk" is defined in s 4 of the MSI Act as meaning, in relation to any injury or harm, "the probability of that injury or harm occurring".
That s 9(1)(a) of the MSI Act does not impose strict liability is obvious from its terms. The words "so far as is practicable" appear in the opening lines of s 9(1) and again in sub-section (a) of that section. Moreover the word "practicable" is, as I have said, defined to mean reasonably practicable, having regard, where the context permits, to the various matters listed in the definition (see Hamersley Iron Pty Ltd v Robertson, unreported, SCt of WA; Library No 980573; 2 October 1998 per Steytler J at p 15).
Notwithstanding the terms of s 9(1) of the MSI Act any duty imposed upon an employer who is not the principal employer at the mine only applies in relation to matters over which the employer who is not the principal employer has control (s 9(6)). Accordingly, in this case, Placer was the principal employer and SRS was the contractor, or the employer, who was not the principal employer. In those circumstances, the duty of SRS to the plaintiff under s 9(1) is restricted to those matters over which SRS had control.
It is the submission of SRS that the accident was caused by the load being unsafely and negligently rigged and slewed over personnel by Leach, for and on behalf of Drake, and by Placer's negligence and breach of statutory duty in allowing that to happen. It is said that those were not matters over which SRS had control.
The meaning of "control" and "matters over which he had control" were considered in Reilly v Devcon Australia Pty Ltd (2008) 36 WAR 492 at [30] in the context of s 19(4) of the Occupational Safety and Health Act 1984 (WA) (as it then was). At [32] it is said:
"Section 19 is directed at ensuring, so far as is practicable, that employees will have a safe working environment. Subsection (4) promotes that objective by providing that responsibility for the safety of workers at a workplace is not to be the exclusive concern of the employer of the workers concerned. The principal who has engaged an employer to perform work at a workplace is to share that responsibility where it has control over a matter or matters affecting workplace safety."
and continues at [34]:
"Looked at in its overall context, s 19 is designed to ensure that those who are most directly responsible for the safety of workers (their employers and principals who have contracted with their employers) and who have actual control over matters affecting their safety should be held liable for their default in exercising that responsibility. That the control must be actual control (encompassing a right of actual control, whether exercised or not) over the particular matter affecting safety seems to us to be evident from the words used, read in their context."
Applied to the circumstances of this accident, it is relevant that the work on the cyclone tower was under the supervision of Placer, that Leach was working under the supervision and direction of Placer, that the planning and execution of all work during the shutdown was under the control of Placer and that site safety overall was the responsibility of Placer. As was apparent from the evidence, Placer was safety conscious in the workplace. It was for that reasons that the decision was made (Criddle and Skinner of Placer with Drake contract group) to bring forward the fitting of new floor plates to fill in the gaps in the flooring around the cyclone distributor. It was that decision that led to the lifting of floor plates up to the cyclone level.
In all respects it was Placer which had actual control so far as the creation of the overhead hazard is concerned.
Having regard to my findings of fact and analysis of the evidence I conclude that the working environment where the plaintiff was undertaking his duties was, as far as was reasonably practicable for SRS, not one where the plaintiff was exposed to hazards.
Whilst it could be said that in any environment a person might be exposed to a hazard from something which might be totally unexpected it was not, in these circumstances, reasonably practicable for SRS to take any steps which might have obviated that unknown, unpredictable or unexpected hazard.
Conclusion on statutory liability
I am satisfied that SRS did as much as was reasonably practicable to ensure that the plaintiff was not exposed to hazards and was not in breach of its statutory responsibility.
Order for contribution
In view of my findings that SRS, if sued, would not be liable to pay damages to the plaintiff there is no issue that arises under this head.
Breach of contract
Both Placer and SRS claim that terms should be implied into the contract pursuant to which SRS undertook the reline of the ball mill and the SAG mill.
At par 6 of Placer's statement of claim against SRS it is pleaded:
"6.It was an implied term of the Agreement that:
(a)The Second Defendant and its team of workers (including supervisors) would, so far as was practicable, exercise reasonable diligence, skill and care in performing the Works so as to ensure that its workers, and any other persons on the mine site, were not exposed to foreseeable risks of injury;
(b)The Second Defendant and its team of workers (including supervisors) would, so far as was practicable, take all reasonable measures to ensure that its workers, and any other persons on the mine site, were not exposed to foreseeable risks of injury;
(c)The Second Defendant would ensure, so far as was practicable, by way of supervision or otherwise, that the Second Defendant's workers (including supervisors) in fact exercised the degree of care described in paragraph 6(a) and 6(b) herein;
(d)The Second Defendant and its employees would comply with all applicable provisions of the MSI Act and the Mines Safety and Inspection Regulations 1995 ('Regulations').
Particulars of the implication of terms
(i)the terms are necessary to give the agreement business efficacy;
(ii)the terms are fair, just and equitable;
(iii)the terms are reasonable in the circumstances;
(iv)the terms are not consistent with any other term of the agreement;
(v)the terms are so obvious that they go without saying;
(vi)the terms also arise from the following objective facts and information known, alternatively reasonably available, to the parties at the time of contracting:
A.the Second Defendant purported to have expertise in the mill re-lining and was purporting to use and provide, to perform the Works, an experienced and supervised team in respect to mill re‑lining;
B.upon mine sites, safety issues and the exercise of reasonable skill and care in respect to teams of workers performing services (such as the Works) were paramount, and constituted part of the experience and services to be provided by the Second Defendant;
C.the Second Defendant's facsimile letter dated 19 February 1999 indicated that the price for service provided by the Second Defendant included 'site inductions' and 're-line supervision and labour'."
SRS denies that allegation and in par 5 of its defence to Placer's statement of claim it pleads:
"5.The second defendant denies paragraph 6 of the Statement of Claim, but says that it was an implied term of the agreement that the first defendant would warn the second defendant if any loads were to be lifted by crane over the second defendant's work area. The said term is to be implied by reason that:
5.1it was and had been for many years the accepted course of conduct at the mine site, in all previous dealings between the first defendant and the second defendant, and in the mining industry generally, that the site operator would warn those on the site if any loads were scheduled to be lifted by crane over work areas; and
5.2if the term were not implied the second defendant would not have been able to perform its contractual obligations to the first defendant in a way that protected the safety of its staff working on the mine site."
It is to be noted also that plaintiff's facsimile letter dated 12 February 1999 inviting SRS to submit its quotation for the job stated:
"We require you or your designate to oversee the relining of both mills. In this roll (sic) you are required to work along side (sic) PGS supervisors over see the entire reline, in regards to safety and efficiency". (Exhibit 2)
Conclusion as to breach of contract
The terms which Placer seeks to imply into the contract are nothing more than restating the common law duty of care and statutory duty which was imposed on SRS in any event. It seems to be an attempt to imply into the contract an indemnity granted by SRS to Placer in respect of any harm which might befall the employees of SRS during the reline.
Be that as it may, consistent with my findings that SRS was not negligent and did not breach its statutory duty it is my conclusion that SRS was not in any event in breach of any terms whether express or implied, of its contract with Placer.
It is not necessary for me to arrive at any conclusion as to the implied term for which SRS contends.
Overall conclusion
By reason of my findings I conclude that SRS is not liable to make any contribution to either Placer or Drake in respect of the settlement sum.
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