Fry v Ravensworth Operations Pty Limited

District Court

New South Wales

Medium Neutral Citation:	Fry v Ravensworth Operations Pty Limited [2019] NSWDC 648
Hearing dates:	3 and 4 September 2019
Date of orders:	10 September 2019
Decision date:	10 September 2019
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1)   Judgment for the defendant. (2)   Costs reserved.
Catchwords:	TORTS – negligence – industrial accident – front end loader – missing grate – fall whilst conducting safety inspection – contributory negligence – momentary inadvertence – momentary blindness – causation – hip injury – shoulder injury – damages
Legislation Cited:	Law Reform (Miscellaneous Provisions) Act 1946, s 5 Workers Compensation Act 1987, s 151E, s 151F, s 151G
Cases Cited:	Grima v RFI (Aust) Pty Ltd [2014] NSWCA 345 Leslie Corbett v South 32 Limited (No 2) [2018] NSWDC 232 Mason v Demasi [2009] NSWCA 227 Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34 South 32 Ltd v Allfab Constructions Pty Ltd [2019] NSWCA 132
Category:	Principal judgment
Parties:	Russell Fry (plaintiff) Ravensworth Operations Pty Limited (defendant)
Representation:	Counsel: Mr B Kelleher (plaintiff) Mr L King SC (defendant)   Solicitors: Burke & Mead Lawyers (plaintiff) Sparke Helmore Lawyers (defendant)
File Number(s):	2018/317007
Publication restriction:	None

Judgment

1. INTRODUCTION

1. Russell Fry was injured at work when he fell through a hole whilst on a large front end loader. A missing metal grate was the cause of the hole. Mr Fry sues his employer, Ravensworth Operations Pty Limited, for damages.

2. ISSUES

2. The issues in the proceedings are:

1. Did Ravensworth breach its duty in failing to replace the missing grate, prevent access to the hole, or warn Mr Fry.

2. Was Mr Fry guilty of contributory negligence in failing to notice the hole, and if so, what proportion of the damages should he bear.

3. Was Mr Fry’s right hip disability caused by his fall.

4. What percentage of a most extreme case is represented by Mr Fry’s shoulder and (if causation is satisfied) hip disabilities.

5. What, if any, damages should Mr Fry receive for:

1. future medical expenses;

2. future economic loss; and

3. future domestic assistance.

3. BACKGROUND

3. Mr Fry began work in the mining industry in about 1981. He commenced employment with Ravensworth, not far from Muswellbrook, in about 1996 as an open cut mining operator.

4. In 2015, Mr Fry’s duties consisted of working on heavy machinery, principally on a Caterpillar front end loader used to move stockpiled coal or to remove overburden, but also on other machinery including a water truck.

5. In August and September 2015, pre-use inspections of the Caterpillar front end loader identified and reported on a missing metal grate on the front access platform. However, no repair was performed. At scheduled services in September and October, the problem appears not to have been identified.

6. On 22 October 2015 Mr Fry commenced his shift at 7pm. He was assigned to work on the loader. He received no warning about the missing grate. He was transported to the machine between 7 and 7.30pm and commenced a pre-use inspection to…