Gloux v WMC Resources Ltd - [2001] WASCA 28

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: GLOUX -v- WMC RESOURCES LTD [2001] WASCA 28

CORAM: MALCOLM CJ
IPP J
WALLWORK J

HEARD: 22 SEPTEMBER 2000

DELIVERED : 22 SEPTEMBER 2000

PUBLISHED : 16 FEBRUARY 2001

FILE NO/S: FUL 48 of 2000

BETWEEN: MARCEL JEAN MARIE GLOUX
Appellant (Plaintiff)
AND
WMC RESOURCES LTD
Respondent (Defendant)

Catchwords:

Negligence - Employer and employee - Duty of care - Safe system of work - Employer's duty to provide - Foreseeability of risk of injury - Likelihood of harm occurring

Legislation:

Supreme Court Act 1935 (WA)

Result:

Appeal allowed

Representation:

Counsel:

Appellant (Plaintiff) : Mr I L K Marshall
Respondent (Defendant) : Mr P G McGowan

Solicitors:

Appellant (Plaintiff) : Macdonald Rudder
Respondent (Defendant) : McAuliffe Schwikkard

Case(s) referred to in judgment(s):

Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
Curran v William Neill & Son (St Helens) Ltd [1961] 1 WLR 1069
G L Baker v Medway Building and Supplies [1958] 1 WLR 1216
Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18
McLean v Tedman (1984) 155 CLR 306
Western Australia v Watson [1990] WAR 248

Case(s) also cited:

Nil

MALCOLM CJ : This is an appeal against a judgment of Mr Commissioner Stavrianou in the District Court dated 2 March 2000, by which the learned Commissioner dismissed the appellant's action against the respondent for damages for personal injuries. The action was brought in respect of two accidents in which the appellant was involved in the course of his employment. The appeal was concerned only with the first of these accidents. This occurred on 15 April 1994 when the appellant was injured while working underground as a scraper operator on the North Royale Gold Mine operated by the respondent near Norseman. In essence, the appellant's case was that by reason of the negligence of the respondent in failing to provide a safe system of work, he was required to run to avoid falling rock, as a result of which he slipped and injured his knee and back.
At the conclusion of the argument on 22 September 2000 the Court was unanimously of the opinion that the appeal should be allowed and made orders that:
(1)the appeal be allowed;
(2)the judgment of the District Court whereby the learned Commissioner dismissed the appellant's claim be set aside;
(3)in lieu thereof there be judgment for the appellant against the respondent that the respondent pay the appellant damages in the sum of $270,191.70 together with interest thereon pursuant to s 141 of the Supreme Court Act 1935 (WA) as from and including 2 March 2000;
(4)the respondent pay the appellant's costs of the action to be taxed; and
(5)the respondent pay the appellant's costs of the appeal to be taxed.
The Court then indicated that the reasons for making those orders would be published later. These are my reasons.
It was not disputed at the trial that an accident occurred at the time and place alleged on 15 April 1994 and that, as a result, the appellant injured his knee, namely, that he slipped and fell.
The North Royale ore body was described as about one metre thick and dipping. The dip varied from 45 degrees to almost vertical with most of the workings at about 60 degrees. The ore was collected by the operation of moving ore broken by the mining operation in stages using electric scrapers to scrape the ore to a vertical or near vertical opening known as an "ore pass" from the stoping area to the level below. There were a series of what in essence were steps between the various levels. The area in which the appellant was working was between levels 7 and 9 at stope 310 at the bottom of what was virtually an almost vertical step. The object of the exercise was that ore from the level above would be dropped to the foot of the step, would then be scraped by means of an electrical scraper from right to left facing the step with the object of pulling the ore into a chute at the left‑hand end. The step was some 10 metres high and almost vertical. The scraper consisted of a piece of equipment like a bulldozer blade operated electrically by a system of wires leading from a drum in the vicinity of the chute and secured by a pin at the far end. The chute incorporated a door to control the flow of ore out of the chute so as to facilitate the loading of a train which transported the ore to the next stage of removal from the mine.
The plans in evidence indicated that the levels were developed about 30 metres vertically below the ore at approximately 30 metre spacing vertically. Because of the slope of the footwall, broken ore generally slid down the slope and into the scraper gully below it after it was pulled from the mining face to an open area uphill from the scraper gully. The scraper gully is best described as a slot established below the mining area to collect broken ore and provide a path along which to pull ore into the pass.
The type of mining operation is known as "open stoping", "room and pillar" or "slot stoping" with regular pillars left to support the hanging wall or backs.
The mining method involved ore being broken by explosives placed in holes drilled by compressed air powered rock drills. The ore was transported to the haulage shaft from "chutes" or mill holes by small scale trains and battery operated locomotives.
Where, as was relevant in the present case, the ore body was a dipping one, the ore was moved from where it was broken to the ore passes above the chutes or mill holes by the use of scrapers.
Scrapers were usually double drum winches, where both drums turn in the same direction but with the steel rope wound oppositely, such that as one drum winds its rope in, the other rope is unwound. Between the ropes is a "hoe", which acts like a bulldozer blade, as the hoe is pulled forwards (using the "front" rope), it pushes broken rock in front of it. The other rope (the "tail" rope) is attached to the back of the hoe and is used to draw the hoe back to the start of its run. Both front and tail ropes are positioned by a series of pulleys or "scraper blocks", such that the hoe moves back and forth in a single line only. To scrape an area of broken rock beside the hoe's path, the tail pulley (scraper block) must be moved sideways and attached to another pin, namely, an eye bolt anchored into the wall on the opposite side of the drum.
Scraping around the pillar or corner involved two set ups. The ore first had to be moved to the apex of the corner. The pulley locations were then changed so that the hoe could move the ore in the new direction. As it is not efficient to relocate the ropes for each pull of the hoe, the ore is stockpiled and scraped in large batches. In some locations a second scraper is used if it is not practicable to use the same scraper.
On the day of the accident the appellant commenced work at the mine at 8.00 am. He reported to his shift boss, Mr McEwan, and his foreman, Mr Jackson. He was given a "plod card" which was a timesheet and asked to continue scraping at the sub‑level between levels 7 and 9 at stope 310. He had been given instructions not to proceed beyond the ore pass without first establishing contact with the workers above him. This meant that he should not leave his position at the drum to adjust or change the pin location at the other end of the line without making contact with those working on the upper level.
A Mr Peter Allen and a Mr Adrian Scott were working on the level above the sub‑level. All three were experienced mine workers. So far as Messrs Allen and Scott were concerned, the danger of rocks and other material falling from their level down to the sub‑level where the appellant was working was found to be "obvious".
After about an hour of scraping, the appellant walked forward 40 to 50 metres from the scraper operating position past the ore chute and was, as his Honour put it, "manoeuvring to change the position of the scraper pulley by moving the pin". Before moving forward, the appellant called out to Mr Allen, "It's okay?", to which Mr Allen responded, "Yes". Mr Allen was the "air leg miner". He was winning the ore by drilling into the face. Mr Scott was scraping the ore won by Mr Allen so that it would fall down the slope into the sub‑level where the appellant was scraping the ore into the chute or mill hole.
The learned Commissioner found that there was no communication between the appellant and Mr Scott on the day of the accident. In doing so, he rejected the appellant's evidence that Mr Scott told him on that morning that he (Scott) would not be working in the upper level for a few hours.
There was no way that the appellant could see what the workers on the level above were doing unless he climbed ladders to the position at which the inclination of the ore body changed. Until he reached that position, the standard light signals which would otherwise apply could not be used. Voice communication was the only alternative.
The learned Commissioner also found that the appellant was in no danger at the sub‑level so long as he did not move forward from the scraper operating position. However, the nature of the scraping method required the pulley to be moved from time to time. In addition, rope breakages could occur and in both situations the appellant would have been required to move forward from his operating position for these purposes.
It is apparent that the system of work involved the ore extracted by Mr Allen by force of gravity falling down the 45 to 60 degree slope and then when it came to the 10 metre almost vertical slope, it fell to the bottom of the slope where it was retrieved by the appellant by means of his scraper and dropped into the chute or mill hole.
In his reasons for judgment the learned Commissioner summarised the appellant's evidence as follows:
"The [appellant's] evidence essentially was that he was in the sub‑level and was in the process of shifting the scraper block to a different pin when he heard a noise above him. There was dust, some small rocks fell, hitting him on his hard hat. He turned and started to run back to where the scraper was located and had run only a few metres when he slipped, fell and injured his knee. He then saw about 15 tonnes of loose rock fall from the rill above. … However, Messrs Allen, McEwan and Scott all gave evidence that there was no rock fall of that size or fall at all. I prefer the evidence of Messrs Allen, McEwan and Scott to that of the [appellant]."
The findings made by the learned Commissioner included a finding that there was no communication between the appellant and Mr Scott on the day of the accident. The appellant's evidence that Mr Scott told him on that morning that he would not be working in the upper level for a few hours was rejected.
Mr Scott was unable to say precisely how long it was after he started the morning shift when he commenced scraping. Mr Allen, however, gave evidence that when the appellant yelled out when he fell, while he was not operating his machine, Mr Scott was operating his scraper up the stope. Mr Scott said that his machine was not going when the appellant yelled out, "because that's how I heard him". He was unable to say how long his machine had been off before he yelled out. Mr McEwan gave evidence that he heard Mr Scott's scraper start up. Mr Scott had no reason to dispute Mr McEwan's statement that, "Shortly after the scraper started up I heard someone down at the bottom of the stope yelling. I couldn't understand any words because it was more in the nature of a cry out". Subsequently, Mr Scott conceded that it was possible that he heard the appellant cry out after he had started up his scraper.
In this context, the learned Commissioner placed some emphasis on the fact that, according to the appellant's expert, he was told by the appellant that he had called to Mr Scott before going to remove the pin but had received no reply. He also said that Mr Scott had earlier told him that he would not start scraping to the lower level for two hours. The learned Commissioner preferred Mr Scott's evidence in relation to this matter.
The learned Commissioner found that the appellant injured his knee and called out to Mr Allen, who went down to the sub‑level with Mr McEwan. It was specifically found that, "15 tonnes of rock did not fall as alleged by the [appellant]. The area was quiet before the [appellant] called out. There was no noise of a rock fall heard by the [respondent's] witnesses".
Based upon his findings, the learned Commissioner expressed his conclusions as follows:
"In my view the [appellant] should not have been required to work on the sub‑level in circumstances where two men were working above him. The risk of injury from rocks falling from above was obvious. In this case the system adopted of two scraper operators operating at different levels introduced a hazard which was unacceptable. This is particularly so given that the only effective means of communication was by voice or by use of light signals. Both of these systems had their problems. There were noisy machines and the workers concerned all wore earmuffs. Light signalling necessarily depended on there being no obstruction between the parties seeking to communicate. It was in my view foreseeable that a worker would be injured given the system in place. It was simply altogether a very dangerous situation.
The risk was altogether too great to require a man to work in the sub‑level with men above. This was the evidence of [the expert] Mr McDonald which I accept. Mr Carr (another expert) said it was safe provided procedures were in place but told me he had never seen a similar system before. I make my finding as to the safety hazard conscious that a scraper operator was safe provided he did not move forward from his operating position. However, as soon as he did so the situation was clearly hazardous and dangerous.
I am not satisfied that the injuries sustained by the [appellant] on the date of the accident were caused in the manner described by him. I simply do not accept his description of the accident and I am not prepared to act on his evidence alone. I have specifically found there was no rock fall as alleged. I am not satisfied that the [appellant] was a truthful or reliable witness. In the circumstances, the [appellant's] claim in relation to the first action is dismissed."
After the appellant had spoken to Mr Allen his evidence was:
"I walked to the block and was in the process of moving the block to the next pin when I heard a noise above me. There was a bit of dust and a couple of small rocks fell down, hitting me on my hard hat. I knew immediately that I had to get [out] quickly as the broken rocks would start falling on the rill."
He then said:
"I turned and started to run back to where the scraper was located which was a safe place. I would have run only a few metres on the slope of the broken dirt when I slipped and fell down and injured my knee. The only light I had was my headlamp. I fell down and looked behind where I had been moments before. I saw about 15 tonnes of loose rocks fall from the rill above. I was saved only by a few feet. I felt a rush of wind as the material fell behind me."
What is significant was that at this point Mr Scott's scraper had started up. That in itself was to create a situation of danger, immediately putting the appellant at risk, justifying him running from the scene.
It is the fact that the appellant was found a few metres from the far end of the sub‑level from the drum but towards the chute. Any rock or debris which fell from the upper level would have stayed in the sub‑level in the vicinity of the bottom of the vertical. This was how the mining operation was designed. It is apparent that the appellant must have been in the vicinity of the pin when he heard the scraper start up. To the extent there was any rock fall immediately prior to the accident, the material would have looked the same afterwards as the rock that had been scraped down some time prior to the accident. Consequently, it would have been very difficult to say when the material which was collected in the sub‑level had come down. There was evidence which supported the appellant's case on the basis on which I have indicated it by the Shift Boss, Mr McEwan. It was common ground that he was responsible for checking out all of the workers underground twice per shift. His evidence was that, during the morning of the day shift on 15 April 1994, while he was doing his rounds, he came down from the top part of the stope and saw Mr Allen working. Mr Allen stopped his machine and came and sat down to talk with him. At that time the appellant was working below them on the sub‑level. When Mr Allen stopped his machine, the place was "dead quiet". Mr Allen could hear someone digging around down the bottom of the stope. Mr McEwan then said:
"I then heard an air scraper start up which is characterised by a high pitched howl. This sound then quietens down as the scraper commences to take up its load. Adrian Scott was working approximately 30 metres away and I believe it was Scott's scraper that started up.
Shortly after the scraper started up, I heard someone down the bottom of the stope yelling. I couldn't understand any words as it was more in the nature of a cry out.
Allen and I went down to the sub‑level below using the access ladders. When we arrived on the sub‑level below, I saw [the appellant] sitting on the ground resting with his foot on the wall. He was not crying out. He did not seem to be in agony. He said that he had hurt his knee or words to that effect.
I did not notice anything at the time to indicate there had been a rock fall. If there had been a 15 tonne rock fall, this would have been significant as the stope was very narrow in that area, approximately 1.2 metres wide, and any rock fall of that size would have been very noticeable.
As far as I can recall, no rock came down when the scraper started up."
Mr McEwan also said that once the scraper cleaned off the sub‑level, it would be clean of rocks, but there would be bits on the side. It is also clear from Mr McEwan's cross‑examination that when the rock and other material has been scraped from the upper level down to the sub‑level, there would be "a whole lot of rubble" in the sub‑level.
In his cross‑examination Mr McEwan agreed that someone in the sub‑level hearing a scraper start up at the top level would realise that scraping was going to take place down into the sub‑level. He agreed that if at that time the worker in the sub‑level was repositioning a pin in the danger area, his first reaction would be to get out quickly. While he did not consider there had been a 15 tonne rock fall, there was still quite an amount of ore or rocks in the sub‑level when he went down to the assistance of the appellant. He said there were a number of tonnes, less than 15, right up towards the back block.
Mr Allen's evidence was substantially the same as Mr McEwan's. He said that his machine had been switched off and he was having a "smoko" and talking to Mr McEwan when he heard the appellant cry out. They went down a rope and two ladders down 25 to 30 metres to the sub‑level. He was about 20 metres from the area in the sub‑level where the rocks come down from the top level. This was a rough estimate. There was loose rock in the area. From the position where he had been at the time the accident apparently occurred, he was not in a position to see whether any rocks fell but, at the time he heard the appellant cry out, there was no other noise in the stope.
Mr Scott agreed that it was possible that he told the appellant, and subsequently repeated it to the Mine Safety Officer, Mr Hemingway, that he would not be scraping down from the upper level to the sub‑level where the appellant was working for at least two hours from the start of the shift. As I have previously indicated, Mr Scott agreed that he had no reason to dispute the evidence of Mr McEwan that it was his scraper that started up immediately prior to the accident. Nor did he dispute the evidence that shortly after the scraper started, there was a cry from the bottom of the stope. There was a collection of rocks at the sub‑level that the appellant was in the process of scraping. Mr Allen agreed that, "the problem arose that Mr Scott had commenced scraping, started to commence scraping …". This meant that rocks were coming down and Mr Allen heard the appellant cry out.

Neither Mr Allen nor Mr Scott were in a position to see whether there were any rocks falling down from the stope to the sub‑level at the material time. It follows that because Mr McEwan was with Mr Allen that he was likewise not in a position to see whether and to what extent there was a rock fall at the material time. Mr Allen's evidence was:
"We found [the appellant] some distance from his scraper, about midway between his scraper machine and the scraper block. He was about 15 metres away from where the dirt and rock was falling and from where I was working above."
Mr Allen also said:
"There was no evidence of any significant rock fall when I went to where [the appellant] was after the accident. I did not hear any rocks falling although that is not to say that some rocks possibly fell from where Adrian Scott was operating his scraper to the area at the end of the sub‑level where [the appellant] was working."
As I have previously indicated, the learned Commissioner found that 15 tonnes of rock did not fall as alleged by the appellant. He also held that the area was quiet before the appellant called out and that there was no noise of a rock fall heard by the respondent's witnesses. It is apparent that, at the precise time of the accident, Mr Scott was operating his scraper and all concerned were wearing earmuffs and the appellant was heard to call out. The position was that the appellant was in a position of inherent danger. The scraper should not have been operated at a time when he had been given clearance by Mr Allen to make a pin adjustment. His behaviour in attempting to run from the area of danger to a place of safety was entirely reasonable. Whenever the scrapers were working on the upper level, there was an inherent danger of rock falling from that level down to the sub‑level where the appellant was working. It was conceded by counsel for the respondent, in my opinion quite rightly conceded, that because of the very nature of the operation by which rocks were being scraped down into the sub‑level, a worker in that area should get out of the area quickly.
In the result, putting aside the 15 tonne rock fall referred to by the appellant, the evidence strongly pointed to a conclusion that the appellant left the area where the drum was located on the near side of the sub‑level and walked across to the far side to make a pin adjustment. While he was at or near to the far side, he heard a scraper starting up which caused the appellant to run from the scene when he slipped and fell and then cried out when he had been injured. That sequence of events is supported by the evidence of Mr McEwan and Mr Allen and was not disputed by Mr Scott. In my opinion, the inference is compelling that, having been heard to be digging, he immediately stopped and obviously left or attempted to leave the area of danger immediately after Mr Scott's scraper was started.
It was from this position that counsel for the respondent endeavoured to contend that the case should be brought back to the case pleaded at the trial and as amended by leave of the Full Court on appeal. The appellant pleaded in par 6 of the statement of claim that:
"On the 15th April 1994 at about 9.30 am in the course of his employment the [appellant] was standing on a mound of loose broken dirt at the bottom of stope 310 ('the stope') and attempting to locate the position of a pin hole with the help of a pelican pick bar at the 310 ore pass on sub‑level between level 7 and level 9 of the [respondent's] North Royale Mine at Norseman in the said State when a rock fall occurred and loose rocks started falling from the top of the stope towards the [appellant] and when attempting to get away from the path of falling rocks the [appellant] fell and sustained injuries ('the first accident')."
It was in this context that the application by the appellant to amend par 6 of the statement of claim falls to be considered. Leave was sought to amend so that, as amended, par 6 would read:
"On the 15th April 1994 at about 9.30 am in the course of his employment:
(a)the [appellant] was standing on a mound of loose broken dirt at the bottom of stope 310 ('the stope') and attempting to locate the position of a pin hole with the help of a pelican pick bar at the 310 ore pass on sub‑level between level 7 and level 9 of the [respondent's] North Royale Mine at Norseman in the said State when;
(b)a rock fall occurred and loose rock started falling from the top of the stope towards the [appellant];
(c)further and in the alternative to the facts pleaded in the preceding subparagraph:
(i)a servant or agent of the [respondent], namely one Adrian Scott started up an air scraper machine ('the scraper') on the stope of the mine situated approximately 30 metres above the sub‑level where the [appellant] was then situate;
(ii)the scraper emitted a loud noise;
(iii)the noise was heard by the [appellant];
(d)and when attempting to get away from the path of falling rocks the [appellant] fell and sustained injuries ('the first accident')."
Under O 63 r 10(1) the Full Court has all the powers and duties regarding amendment and otherwise of the court below. This includes power to amend the pleadings: G L Baker v Medway Building and Supplies [1958] 1 WLR 1216. The Full Court has a discretion to allow an amendment of the statement of claim where the appellant plaintiff will succeed on the amended claim, all the facts are before the court and the respondent could not lead any other evidence: Curran v William Neill & Son (St Helens) Ltd [1961] 1 WLR 1069. This is such a case.
At the hearing of the appeal the appellant was permitted to amend the grounds of appeal and leave to amend was granted.
Ground 1 contended that the learned Commissioner erred in fact in finding that Messrs Allen, McEwan and Scott all gave evidence that there was no rock fall at all and erred in making a finding to that effect. It was contended that the learned Commissioner should have found that Mr Allen gave evidence to the effect that there was no evidence of any significant rock fall; that is of a 15 tonne rock fall; Mr McEwan gave evidence to the effect that he did not notice anything to indicate that there had been a 15 tonne rock fall; and Mr Scott gave evidence to the effect that there was no evidence of a 15 tonne rock fall and that he did not believe there was a rock fall of 15 tonnes of rock.
Ground 2 contended that the learned Commissioner erred:
(a)in finding that the sub‑level where the appellant was injured was quiet before he called out; and
(b)in law in relying on the fact that the respondent's witnesses did not hear the noise of a rock fall at or about the time the appellant was injured.
It was contended that the learned Commissioner should have found that:
(a)the uncontradicted evidence at trial was to the effect that Mr Scott started his air scraper shortly before the appellant called out;
(b)the uncontradicted evidence of Mr McEwan that Mr Scott's air scraper emitted a loud high‑pitched howl when it started which quietened when the scraper commenced to take up its load; and
(c)given the noise emitted from the air scraper, the respondent's witnesses would not in all probability have been able to hear rocks falling.
On the basis of the evidence to which I have referred, the circumstances were such that, when the appellant heard the scraper start up when he was in the position described, he ought reasonably to have known that he was in a position where he was at risk of being injured by falling rock as a result of the scraper operation above. Consequently, in order to avoid or reduce the risk of injury, it was reasonable for him to run from the area. In such circumstances there was a real risk that he was likely to fall.
Ground 3 contended that, after finding (correctly) that:
(a)the appellant should not have been required to work on the sub‑level in circumstances where two men were working above him;
(b)the risk of injury from rocks falling from above was obvious;
(c)the system adopted by the [respondent] of two scraper operators operating at different levels introduced a hazard which was unacceptable; and
(d)the appellant:
(i)moved into the hazardous area after obtaining clearance from Mr Allen who was then on the level above him; and
(ii)was injured as a consequence of an accident,
the learned Commissioner was in error in failing to find that the hazard was the effective cause of the appellant's injuries. In my opinion this ground was, for the reasons I have already stated, clearly made out on the evidence led before the learned trial Judge.
Paragraph 3 of the grounds of appeal, as amended at the hearing of the appeal, also contended that:
"The learned Commissioner should have found that:
(a)when Mr Scott started his air scraper, the noise alone would have alerted the appellant (plaintiff) to the danger of falling rocks and caused him to run;
(b)the operation of the air scraper would almost certainly have caused some earth and/or rock to fall on or near the appellant (plaintiff);
(c)his Honour wrongly found there was no rock fall because some rock or earth fell on or near the appellant (plaintiff) when or soon after Mr Scott started his air scraper;
(d)the noise of the air scraper starting, by itself or combined with falling earth and/or [sic] caused the appellant (plaintiff) to run to escape injury from falling rocks;
(e)the accident occurred as the appellant (plaintiff) was attempting to leave hazardous area."
It is apparent from the evidence to which I have referred that grounds 1, 2 and 3 were made out. It is unnecessary, therefore, to consider ground 4 of the grounds of appeal.
The respondent was under a duty to take reasonable care to avoid exposing the appellant to unnecessary risk of injury: Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 per Mason, Wilson and Dawson JJ at 307 - 308; Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 at 25 per Dixon CJ and Kitto J. The duty is not an absolute one because the employer is not the insurer of the employee: Bankstown Foundry Pty Ltd v Braistina, supra, at 307 per Mason, Wilson and Dawson JJ; and per Brennan and Deane JJ. In order for a plaintiff employed to succeed in an action for damages for negligence against his or her employer, it must be established, first, that there was a risk of injury which was reasonably foreseeable. In this case, where the appellant had been given the all clear to proceed into the sub‑level area in order to adjust a pin on the opposite side of the bottom of the upper level stope, there was an obvious risk of injury in the event that scraper operations were commenced on the upper level while he was in the relevant area. Secondly, it needs to be shown that there were reasonably practicable means of obviating the risk. In the present case the system of work was that the appellant would not venture into the relevant area without first communicating his intention to do so to those working above and getting an "all clear" which he did. Thirdly, it needs to be established that the employee's injury belonged to the class of injuries to which the risk exposed him. This was undoubtedly established in the present case. Finally, it has to be established that the employer or his servants or agents failed to eliminate the risk because Mr Scott started up his scraper at a time when he knew or ought to have known that, following the all clear given by his co‑worker Mr Allen to the appellant to enter the area of danger, he started up his scraper. This alerted the appellant to the obvious risk of danger causing him to take the only action available to him, namely, to run from an area of danger to an area of safety. In the attempt to do this, he slipped and fell as a result of the nature of the terrain and suffered injury.
So far as the employer is concerned, as Mason, Wilson, Brennan and Dawson JJ said in their joint judgment in McLean v Tedman (1984) 155 CLR 306 at 311:
"The standard of care expected of the reasonable man requires him to take account of the possibility of inadvertent and negligent conduct on the part of others."
As their Honours also said at 312:
"Many statements are to be found in the cases which give emphasis that in discharging his duty to take reasonable care to avoid injury to his employee, an employer is bound to have regard to any risk of injury that may occur by reason of an employee's inadvertence, inattention or misjudgment in performing his allotted task."
When Mr Allen gave the "all clear" to the appellant to enter the area of danger in the sub‑level, he should have alerted Mr Scott to that fact or the respondent should have put in place a system which would ensure that any persons working on the upper level above the sub‑level where the appellant was working were made aware of what was happening on any occasion when it was necessary for the appellant to enter the area of

danger. The duty of the respondent extended not only to the establishment of a safe system of work but also to enforcing it: Western Australia v Watson [1990] WAR 248 at 266 per Malcolm CJ, Brinsden and Seaman JJ.

IPP J : I have read the reasons of his Honour the Chief Justice. I am in agreement with those reasons and have nothing further to add.
WALLWORK J : I agree with the reasons for judgment and the conclusions of Malcolm CJ.