Fredericks v BHP Australia Coal Pty Ltd

[1997] QSC 185

IN THE SUPREME COURT

OF QUEENSLAND

No 106 of 1994

Mackay District Registry

[Fredericks v. BHP Australia Coal Pty Ltd]

BETWEEN:

JOHN KENNETH FREDERICKS

(Plaintiff)

AND:

BHP AUSTRALIA COAL LIMITED

(Defendant)

REASONS FOR JUDGMENT - WILLIAMS J

Judgment delivered 22/05/1997

The plaintiff claims damages for personal injuries arising out of an incident he asserts occurred on 18 December 1992 in the course of his employment with the defendant.
           There was no dispute that in about April 1980 the plaintiff sustained an injury to his back which necessitated surgical intervention and resulted in his being off work for about 22 months.  It is clear that he worked for the defendant, frequently in the capacity of bulldozer driver, from February 1982 until 18 December 1992 without any apparent problems.  There is also no doubt that when he finished work on the morning of 19 December 1992 he was complaining of pain in his lower back.
           Thereafter he was on workers' compensation for a period and he returned to work on 19 April 1993.  He undertook a variety of tasks but continued to experience low back pain.  Ultimately he accepted an early retirement package.  Dr Coroneos concluded that the plaintiff had an impairment in the efficient function of his lumbar spine of the order of 25%, and apportioned 60% of that to the events of 1980 and 40% to the event of 1992.
           It is not necessary to say more about the plaintiff's back condition and its affects on his lifestyle because quantum has been agreed in the sum of $288,995.35 after deducting the refund to the Workers' Compensation Board.
           The defendant however denies liability.  It admits the plaintiff suffered from pain at the end of the shift on 18 December 1992 but denies any incident such as that pleaded in the amended statement of claim.  Unless the plaintiff established the incident pleaded and the negligence of the defendant he will not succeed.
           Much time was taken during the hearing with conflicting evidence as to the stability of the pad on which the dragline was standing on the night in question.  In the end, resolution of that issue has no direct bearing on the question of negligence.  Whether or not there were cracks in the pad the real issue was what happened whilst the plaintiff was operating the bulldozer.  However, the issue as to the stability of the pad does reflect on the credibility of witnesses, particularly the plaintiff.
           All witnesses agreed that instability of the pad was a critical issue for both employees and management.  The safety of workers and the safety of the dragline, a costly piece of equipment, were directly in issue.  In conformity with the requirements of the General Rules for Open Cut Mines 1988 regular inspections of the operations had to be made and formal reports completed.  There is nothing in those reports of 17-18 December, or in the days following, to suggest that the pad in question was of doubtful stability.  There was nothing to indicate a crack had been observed which should be monitored.  None of the witnesses Dunwoody, Metcalf and Keenan recalled or noted any complaint or reference by the plaintiff to cracking in the pad on the night of 17-18 December.  The plaintiff's evidence on the point is vague, particularly when it comes to what he reported to each of those witnesses in relation to the cracking.
           Having considered the evidence I have come to the conclusion that there was no cracking in the pad on that night.  Further I am satisfied the plaintiff did not make a statement to any of those three witnesses to that effect.  The decision, principally taken by Dunwoody, that an exit ramp should be constructed was taken out of an abundance of caution to ensure an escape route for the dragline if that should become necessary for any reason.
           It may well be that a few rocks fell onto the pad area from the wall of the truck shovel bench either spontaneously or as a result of disturbance of the surface in constructing the ramp using the dragline and the bulldozer.  But I am satisfied that there were not rocks falling regularly as the plaintiff claimed.  Again neither Keenan nor Metcalf saw anything in the course of their visit on that night to cause them concern.  If the situation was as bad as the plaintiff claimed they must have seen it and would have been concerned by it.
           The plaintiff's case as pleaded was that in the course of using the bulldozer to construct the exit ramp a large rock fell down from the high wall and came to rest behind the bulldozer.  As he reversed he collided with that rock and the resulting jarring and impact between his body and the seat caused the back injury.  Essentially the defendant's negligence was said to be in failing to maintain the sides of the high wall in secure conditions at all times unless it was not practicable to do so, and/or in failing to cordon off the wall to contain falling rocks.  Regulations 3.2 and 3.3 of the General Rules for Open Cut Mines provided for that.

In his quantum statement the plaintiff said:

"I commenced operating the dozer at about 3.00am and continued to operate it right through to 7.00am.  In the course of my operating the dozer it came into contact with quite a number of boulders and rocks.

On one occasion I was reversing the dozer when it struck a large boulder which had apparently rolled down from the spoil behind and as a result I was thrown from the seat of the dozer onto one of the armrests, jarring my lower back in the process.  ...

We completed the shift at 7.00am and on getting out of the dozer after finishing up I noticed a twinge of pain in my lower back."

In his evidence in chief the following relevant account of how he sustained the injury was given:

"... the operation was very rough on both machine and operator.  There was a lot of rock involved and I'd made one pass forward, getting very near to the end of the operation ... I was reasonably close to the cable on my left side.  I'd pushed a blade forward and went to go back for another bladeful and I wouldn't have travelled backwards any further than probably a few metres and the dozer mounted a rock sharply.  I immediately stopped and drove forward off it, went around it and proceeded to push the rock off the bench, but it had jarred me.

...

Q.... how fast was the bulldozer travelling when you hit the rock?

A.It wouldn't be very fast because I hadn't travelled fast enough to build up very much momentum.  I would say possibly less than 5 kilometres per hour.

Q.And when the bulldozer hit the rock what happened to the bulldozer?

A.It jarred ... to the left side and threw me loose in the seat.

Q.Did the bulldozer mount the rock so to speak?

A.Partially.

...

Q.... when the bulldozer hit the rock, what happened to your body in the seat?

A.It threw me sideways against the armrest.

...

Q.How would you compare this particular jarring with any other jarring that you'd had this night whilst driving the bulldozer?

A.It was more severe ... you can run over rock and sure it's not smooth, it's rough, but if you're expecting it, as long as it doesn't lurch, it doesn't worry you unduly."

He also conceded he did not alight from the dozer to inspect the rock.  The impact was not hard enough to damage the bulldozer.
           Under cross-examination the plaintiff made a number of relevant admissions:

(i)He had come into contact with a "lot" of rocks in the course of using the bulldozer that night;

(ii)The "area was rock";

(iii)Some of the area he ripped with the bulldozer was "hard";

(iv)He only "travelled a metre or two" in reverse before hitting the rock;

(v)One track of the bulldozer rode up on the rock and he then drove forward off it;

(vi)The rock was near to a metre in height and wedge-shaped;

(vii)He did not see or hear any rock fall as he moved forward before reversing;

(viii)He may have changed course "slightly" as he reversed.

Having regard to the whole of the evidence I have come to the conclusion that it is pure speculation to say that the rock in question fell from the high wall.  The only basis on which the plaintiff claims it fell from the high wall is that he says it must have become positioned behind the bulldozer in the few seconds it took to move from that spot forward then back.  But there are other hypotheses equally open on the evidence.  I mention some:

(a)The bulldozer reversed slightly off the course it had taken forward and the track came into contact with a rock which had previously been ripped loose either by the dragline or the bulldozer;

(b)As the bulldozer moved forward with the blade pushing and levelling loose material a rock which had been previously ripped loose either by the dragline or the bulldozer was dislodged to the extent that it rolled a few feet in a westerly direction which brought it into line with the track of the bulldozer as it reversed;

(c)The rock in question had fallen earlier from the high wall and came to be in the path of the bulldozer as it reversed in either of the ways specified in (a) and (b).

As the evidence does not satisfy me that the rock in question fell from the high wall immediately before the bulldozer reversed the plaintiff does not make out the pleaded case in negligence entitling him to succeed.
           In so far as the pleading alleges other matters, for example paragraphs 12(a)(iv), (v) and (vi), they are not in my view relevant to the cause of action in question.  Given that the ripping of the ground by the dragline and bulldozer loosened rocks it is no longer relevant to ascertain where each rock came from.  There was, as the plaintiff's evidence itself establishes, nothing unusual in the bulldozer running over rocks whilst carrying out work of the type in question.  Ultimately the real question has to be, was it as a result of negligence of the defendant that the bulldozer came into contact with the rock in question.  In my view the answer on the evidence must be no.
           Further, it is by no means clear on the evidence that the contact with the rock referred to in the pleadings caused the onset of symptoms.  There is reference throughout the plaintiff's evidence to the regular jarring of his body whilst this work was being performed.  Certainly this one incident was more severe, but it is difficult to conclude from that, that it alone was the cause of the injury.  Given the pre-existing condition it is clear that all or any of the jarring incidents could have been responsible for the exacerbation of the plaintiff's back condition.
           There was no immediate indication of injury.  The plaintiff was not compelled to cease work.  The soreness was not apparent until the end of the shift.
           In the pleadings it was also alleged that the seat belt was defective and that was a causative factor, but that was not established by the evidence.  His oral evidence in court did not describe the throwing against the armrest in the graphic terms recorded in some of the medical reports.
           In all the circumstances the plaintiff's claim should be dismissed with costs.