Olive v Connector Drilling Pty Ltd
[2002] WADC 164
•2 AUGUST 2002
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: OLIVE -v- CONNECTOR DRILLING PTY LTD & ANOR [2002] WADC 164
CORAM: GROVES DCJ
HEARD: 11-13 JUNE 2001
DELIVERED : 2 AUGUST 2002
FILE NO/S: CIV 681 of 1999
BETWEEN: WAYNE ALEC OLIVE
Plaintiff
AND
CONNECTOR DRILLING PTY LTD
First DefendantEQUIGOLD NL
Second DefendantEQUIGOLD NL
Third Party
Catchwords:
Negligence - Industrial accident - Contribution proceedings between defendants in respect of damage suffered by the plaintiff - Turns on own facts
Legislation:
Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947, s 7(1)(c) and s 7(2)
Workers' Compensation and Rehabilitation Act l981
Result:
Claim for indemnity or contribution dismissed
Representation:
Counsel:
Plaintiff: No appearance
First Defendant : Mr D R Clyne
Second Defendant : Mr R J L McCormack
Third Party : Mr R J L McCormack
Solicitors:
Plaintiff: No appearance
First Defendant : Civitella Smith
Second Defendant : Srdarov Richards Burton
Third Party : Srdarov Richards Burton
Case(s) referred to in judgment(s):
Achron Pty Ltd v Serco Water (WA) Pty Ltd [2001] WASCA 141
Case(s) also cited:
Burnie Port Authority v General Jones Pty Limited (1994) 179 CLR 520
Commonwealth of Australia v Spotless Catering Services Ltd & Anor [1999] WASCA 136
Hetherington v Mirvac Pty Ltd & Ors (1999) A Tort Rep 81-514
Kinch v Walcott & Ors [1929] All ER 720
Kondis v State Transport Authority (1984) 154 CLR 672
March v E & M H Stramare Pty Limited & Anor (1991) 171 CLR 506
Medlin v The State Government Insurance Commission (1995) 182 CLR 1
Northern Sandblasting Pty Limited v Harris (1997) 188 CLR 313
Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492
Pollock v Wellington (1996) 15 WAR 1
Re Frackelton v McQueen & Ors : re In a Solicitor [1910] QSR 1
Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431
State Government Insurance Commission v Sinfein Pty Ltd (1996) 15 WAR 434
Stevens v Brodribb Sawmilling Company Proprietary Limited (1985) 160 CLR 16
The Council of the Shire of Sutherland v Heyman & Anor (1985) 157 CLR 424
The Council of the Shire of Wyong v Shirt (1980) 146 CLR 40
Thompson v Australian Capital Television Pty Limited & Ors (1996) 186 CLR 574
GROVES DCJ: The plaintiff was employed by the first defendant as a driller's offsider. He was injured in an accident ("the accident") at work on 20 February 1998 at the site of the Dalgaringa Gold Mines Joint Venture near Mt Magnet ("the mine").
The first defendant carries on business as a drilling contractor and at the time of the accident was engaged by the second defendant to perform exploration drilling at the mine. The second defendant was at the material time the manager of the mine.
As a result of injuries received by him in the accident the plaintiff commenced proceedings against the first and second defendants alleging that the negligence of each of them caused or contributed to the accident. Each of the first and second defendants denied liability.
Ultimately the first defendant consented to judgment against it in favour of the plaintiff on 30 January 2001 in the sum of $225,000 exclusive of payments and allowances made pursuant to the Workers Compensation and Rehabilitation Act and costs fixed at $17,500 inclusive of disbursements (Exhibit 9).
The first defendant alleged by statement of claim in contribution proceedings that the accident was due to the negligence of the second defendant and claimed an indemnity to the full extent or alternatively a contribution towards the plaintiff's claim to the extent to which a court might determine the second defendant's negligence and/or breach of statutory duty caused or contributed to the plaintiff's injuries, loss and damage.
The second defendant by its defence to the first defendant's claim denied any negligence on its part and alleged that any injuries to the plaintiff were caused solely by the negligence of the first defendant. Further the second defendant relying upon the consent judgment pleaded that the consent judgment acted as an estoppel and that the first defendant was thereby bound by its admission of negligence as alleged by the plaintiff as against the first defendant.
The issues between the first and second defendants can best be summarised by setting out the first defendant's statement of claim against the second defendant and the second defendant's defence to such statement of claim. These are as follows:
"First Defendant's amended Statement of Claim against Second Defendant in contribution proceedings filed on 19 December 2000
1.The First Defendant is a corporation duly incorporated pursuant to the Corporations Law in the State of Western Australia and at all material times carried on the business of exploration drilling.
2.The Second Defendant is a corporation duly incorporated pursuant to the Corporations Law in the State of Western Australia and at all material times was the manager of the Dalgaringa Gold Mines Joint Venture near Mt Magnet in the said State ("the mine").
3.The plaintiff alleges during the course of his employment as a drillers offsider with the First Defendant on 18 March 1998 ("the material date") he was drilling a service exploration hole next to an old exploration hole when he was propelled back on to a drill rig and injured whilst attempting to divert mud and water from the old exploration hole with a piece of bent PVC pipe when a gush of mud, water and air was expelled from the old exploration hole ("the accident").
4.The Second Defendant was at all material times the manager and therefore the occupier for the purposes of Section 5(1) of the Occupiers Liability Act 1985 of the mine.
5.The Second Defendant was at all material times deemed to be the employer of the Plaintiff pursuant to Section 9(3) of the Mines Safety and Inspection Act 1994 and therefore owed to the Plaintiff a duty of care in accordance with Section 9(1) of that Act.
6.On or about 20 February 1998 the First Defendant was engaged by the Second Defendant to perform exploration drilling at the mine site.
7.On the material date the First Defendant was performing exploration drilling on the mine site under the direction and supervision of the Second Defendant its employees, servants and/or agents.
9.On the material date the Second Defendant by its exploration geologist instructed the First Defendant to drill hole number GRC‑375‑17 to a depth of 110 metres ("the new hole"), approximately 3 metres west of hole number GRC‑375‑8 ("the old hole) which had been drilled to a depth of approximately 84 metres.
9.If which is denied the Plaintiff suffered injuries loss and damage as alleged such injuries loss and damage were caused by the negligence of the Second Defendant, its employees, servants and/or agents.
Particulars of negligence
The Second Defendant, its employees, servants and/or agents were negligent by:
(a)Failing to advise the First Defendant, its employees, servants or agents prior to the material date of the existence of the unplugged old hole in close proximity to the new hole which was to be drilled,
(b)Failing to ensure there was a distance of at least 5 metres between the old hole and the new hole being drilled on the mine site,
(c)Failing to adequately plug the old hole with foam prior to instructing the First Defendant to commence drilling of the new hole,
(d)Allowing the First Defendant to use a piece of bent PVC pipe to deflect mud, water and air being expelled from the old hole when the Second Defendant knew or ought to have known of the dangers of the build up of compressed air and water in the hole,
(e)Failing to instruct the First Defendant, its employees, servants or agents to remove the piece of bent PVC pipe,
(f)Failing to instruct the First Defendant, its employees, servants or agents not to stand too close to or to lean on the piece of bent PVC pipe,
(g)Allowing the First Defendant, its employees, servants or agents to continue drilling the new hole on the mine site whilst the old hole was covered with a piece of bent PVC pipe and mud and water was being sprayed from that hole.
(h)Failing to carry out any or appropriate pre‑planning of the drilling program at the mine by preparation of a job safety analysis (JSA) or otherwise, such that either new holes were not drilled in close proximity to existing holes and/or an appropriate system was developed to handle safety issues where a new hole is drilled in close proximity to an existing hole.
10.Further or in the alternative, if which is denied, the Plaintiff suffered injuries, loss and damage as alleged such injuries, loss and damage were caused by the breach of Section 5(1) of the Occupiers Liability Act 1985 by the Second defendant, its employees, servants and/or agents.
Particulars of breach of Occupiers Liability Act
The Second Defendant's employees, servants and/or agents breached Section 5(1) of the Occupiers Liability Act by:
The First Defendant refers to the particulars contained in paragraph 8.9(a) to (h).
11.Further, or in the alternative if, which is denied, the Plaintiff suffered injuries, loss and damage as alleged, such injuries, loss and damage were caused by the breach of the duty of care imposed on the Second Defendant by Section 9(1) of the Mines Safety and Inspection Act 1994 by the Second Defendant, its employees, servants and/or agents.
Particulars of breach of Mines Safety and Inspection Act
The Second Defendant, its employees, servants/or agents breached Section 9(1) of the Mines Safety and Inspection Act 1994 by:
The First Defendant refers to the particulars contained in paragraph 9(a) to (h).
12.The First Defendant has as a result of the accident paid weekly payments of compensation and statutory allowances to or on behalf of the Plaintiff pursuant to the Workers' Compensation and Rehabilitation Act 1981 (as amended) ("the Act").
AND THE FIRST DEFENDANT CLAIMS against the Second Defendant in the event that it is found liable to the Plaintiff:
(a)An indemnity to the full extent of the First Defendant's liability to the Plaintiff pursuant to the provisions of the Act;
(b)An indemnity against the Plaintiff's claim to the full extent of the First Defendant's liability to the Plaintiff to pay damages costs and interest; or
(c)Alternatively a contribution towards the Plaintiff's claim to the extent to which a court determines the Second Defendant's negligence and/or breach of the Occupiers Liability Act6 and/or breach of the Mines Safety and Inspection Act caused or contributed to the Plaintiff's injuries, loss and damage; and
(d)Costs."
"Second Defendant's Amended Defence to First Defendant's Statement of Claim filed on 22 May 2001
1.The Second Defendant admits the allegations contained in paragraphs 1 and 2 of the First Defendant's amended statement of claim against the Second Defendant ("the statement of claim").
2.The Second Defendant does not plead to paragraph 3 of the statement of claim as none of the matters therein alleged relate to any issue between the First Defendant and the Second Defendant.
3.As to paragraph 4 of the statement of claim, the Second Defendant:
3.1admits that at all material times it was the duly appointed manager of the Dalgaranga Gold Mine Joint Venture;
3.2otherwise denies each and every allegation contained therein.
4.The Second Defendant does not admit any of the allegations contained in paragraph 5 of the statement of claim.
5.As to paragraph 6 of the Statement of Claim, the Second Defendant:
5.1admits that it engaged the First Defendant, and did so in its (first Defendant's capacity as an independent contractor, to carry out exploration drilling at the mine site; and
5.2avers that in so engaging the First Defendant, the Second Defendant:
5.2.1exercised reasonable care in the selection and supervision of the First Defendant, as an independent contract; and
5.2.2it was reasonable in all the circumstances that the work that the First Defendant was so engaged to do, should have been undertaken.
6.As to paragraph 7 of the statement of claim, the Second Defendant:
6.1admits that on 16 March 1998 the First Defendant was performing exploration drilling at the Dalgaranga Gold Mine.
6.2says that:
6.2.1any supervision or direction of the First Defendant was limited to drilling location and general conduct; and
6.2.2no supervision or direction was provided by the Second Defendant to the First Defendant in relation to operation of the drill rig or the instructions given by the driller to the First Defendant's employees and/or agents;
6.3says that at all material times the Second Defendant relied upon the skill, expertise and experience of the First Defendant in conducting the drilling operations, including, in particular, the specific means whereby the same were carried out by the First Defendant with due regard to and for the safety of its (First Defendant) said employees and/or agents; and
6.4otherwise refers to and relies upon the matters pleaded in par 5 herein; and
6.5otherwise denies each and every allegation contained therein.
7.As to paragraph 8 of the statement of claim, the Second Defendant.
7.1admits same; and
7.2otherwise refers to and relies upon the matters, facts and circumstances as pleaded in paragraphs 5 and 6, and each of them, herein.
8.The Second Defendant denies each and every allegation contained in paragraphs 9, 10 and 11 of the statement of claim and says:
8.1Early in the morning of the accident the Second Defendant by its employees, Stuart Prussner ("Prussner"), geologist, together with field assistant Rob Scott, during the course of the daily drilling rig site inspection, observed that the First Defendant's drilling supervisor, one Rod Enfantie ("Enfantie"), employees and/or agents, had utilized a length of PVC piping to divert mud and water that was emanating from the nearby "old" drill hole. The PVC pipe was then secured and thereby restrained so as to achieve a particular directional flow of material from the pipe, by a rope attached to a Toyota motor vehicle.
8.2Prussner enquired of the First Defendant by its servant or agent, Enfantie, who was then in, or apparently or ostensibly in charge of the drilling operation then being carried out, as to whether a "better solution" to overcome the "general untidiness" of the site would be appropriate, as the fine spray of mud and water coming from the pipe was settling on the drilling equipment and also the various persons involved in the drilling operations.
8.3In response, Enfantie suggested to Prussner that one "solution" may be for him (Enfantie) to fit an elbow joint to the length of the PVC so as to effect a change in the direction of the spray, however he (Enfantie) did not then have such a suitable fitting.
8.4Prussner offered to try and locate a suitable elbow fitting and left the area.
8.5Prussner sourced possibly suitable elbow fittings and had them delivered to the First Defendant by its servant or agent, Enfantie.
8.6Subsequently, the First Defendant, without the knowledge of the Second Defendant;
8.6.1did not fit any elbow joint to the PVC pipe;
8.6.2bent the PVC pipe to about 90 degrees causing significant crimping to the pipe which substantially reduced the flow through the pipe, thereby increasing the pressure within the pipe in respect of the material therein as it was sought or intended by the First Defendant to be ejected there from or otherwise flow out thereof;
8.6.3abandoned the method of securing the PVC with rope to the Toyota motor vehicle, or any other suitable point of restraint, as was then available or could otherwise have been made available for such a purpose;
8.6.4did not put in place any other suitable method of securing the PVC pipe, notwithstanding such, or other, point of restraint was then available or could otherwise have been made available for such a purpose;
8.6.5instructed and/or permitted its employees Rory Butcher and Ryan McCracken to manually hold in place and/or sit on the PVC pipe to keep it in place during operation of the drilling rig;
8.6.6instructed and/or permitted the Plaintiff to sit on or otherwise use his body to hold the PVC pipe in place during operation of the drilling rig;
8.6.7operated the booster to substantially increase the air pressure in the hole that was being drilled whilst the Plaintiff was sitting on or using his body to hold the PVC pipe in place; and
8.6.8in the premises of sub‑pars 6.1 to 8.6.7 inclusive, and each of them, created a dangerous situation, consistent with the First Defendant acting with reckless disregard of those persons present, including, relevantly, the plaintiff, and which conduct and in all the said circumstances, caused the Plaintiff's injuries.
9.In the premises of sub‑par 6.3 and par 8 herein, and each of them, the accident involving the plaintiff, as referred to in par 10 of the plaintiff's amended statement of claim filed 19 February 1999 ("plaintiff's statement of claim") was caused solely by the negligence of the First Defendant, by its servants or agents, for whose negligence the First Defendant, is vicariously liable.
Particulars of Negligence of the First Defendant
(1)Failing to provide a safe method of diverting the water and mud from the old hole.
(2)Failing to train the plaintiff in safe techniques for diverting the water and mud from the old hole.
(3)Failing to warn the plaintiff not to use the bent piece of PVC pipe to divert the water and mud from the old hole.
(4)Allowing or permitting the plaintiff to use the bent piece of PVC pipe to divert the water and mud from the old hole when it was unsafe to do so.
(5)Acting, or allowing or permitting its servants or agents, including, in particular, Enfantie, to engage in the conduct and in the manner referred to in sub‑pars 8.6.1‑8.6.7, and each of them, herein.
10.Further, the Second Defendant refers to and relies upon:
10.1the fact of the admission of liability by the First Defendant of, relevantly, negligence in respect of each material particular:
10.1.1as pleaded by the plaintiff in par 11; and
10.1.2as particularised in sub‑pars 11(a), (b), (c) and )(d),
being embodied in and reflected by the consent judgment entered in favour of the plaintiff's claim against the First Defendant was finalised ("consent judgment").
Particulars
(1)The consent judgment was entered in the within proceedings, being District Court Action No 681 of 1999, on 30 January 2001.
(2)The Second Defendant will refer to the consent judgment at the trial of the within contribution proceedings as brought against it (Second Defendant) by the First Defendant, for its full terms and effect.
10.2the consent judgment acting as an estoppel as to the matters finalised by it, including, in particular the admissions of negligence by the First Defendant, as referred to in sub‑par 10.1 hereof.
11.The Second defendant does not admit any of the allegations contained in paragraph 12 of the statement of claim.
12.The Second Defendant denies that the First Defendant is entitled to the relief claimed as alleged or at all.
13.Save as is herein admitted, the Second Defendant denies each and every allegation of fact contained in the statement of claim as if the same had been set forth herein seriatim and specifically traversed."
So far as is not in issue the circumstances leading up to the accident were detailed in an accident report prepared by the second defendant and submitted to the Department of Minerals & Energy (Exhibits 1 and 2). The incident was described in the following terms:
"The incident
The drilling crew had set up the rig on the eastern side of the Gilbeys pit to drill an exploration hole to test a target 120 metres from surface. The new hole was drilled at the same orientation and inclination of an existing 63 metre deep drill hole located approximately three metres to the east, both holes were 5.25 inch diameter. The PVC collar of the existing exploration hole was intact, protruding from the surface and clearly visible. The hole had not been plugged but did have a plastic cap covering the end for environmental purposes.
Drilling had progressed with no problems until a depth of 70 metres when water and air started to come from the hole, the quantity of water and mud become (sic) a nuisance so a six metre length of PVC was placed over the protruding PVC collar of the hole. This projected the spray into the air but was still seen to be a problem as it was covering the rig and booster truck with mud. The pipe was modified so that the water and mud spray was directed along the ground away from all machinery. An oxy‑acetylene set was used to heat up the end of the pipe and bend the last 500 mm over to create a 90º bend. This end was placed over the collar of the hole while the other end was secured by rope to a small ladder.
The return hose outside air of the rig was not functioning, the water and air from the drill bit face was exiting from the old exploration hole. The water table in this area was standing at approximately twenty meters from surface.
The fourth rod change at 88 metres from surface was carried out as previous, the rod was added, the driller carried out a blow down with the drill rigs air until air and water came out of the old exploration hole then the booster air was added. At this stage the injured person was leaning over the end of the PVC holding it down, this had been done by the other crew members the three times prior to the incident.
The force of the water and air exiting the old drill hole propelled the PVC pipe and the drillers offsider into the air. The offsider was propelled approximately four metres through the air landing on the side of the drill rig mast and driller.
The offsider received significant lacerations to the head and arm, a fractured forearm and vertebrae in the neck."
The evidence
Stuart Dean Prussner is an exploration geologist employed by the second defendant since November 1995. His role includes planning exploration programmes and budgets, looking at resources and implementing exploration programmes on the ground. Either on the evening before or the morning of the accident he had instructed the first defendant's drilling crew where the hole was to be drilled and its direction. It was obvious to all that it was about 3 metres from the PVC collar of the existing hole. About mid morning on the day of the accident he went to the site to see how drilling was progressing. He observed that a 6 metre length of PVC pipe had been slotted over the PVC collar of the old hole and that there was a spray of water and mud being blown into the air from the end of the extension pipe. He observed that the spray was carrying onto parts of the drilling rig and onto the drilling personnel on site He spoke with the first defendant's drilling supervisor Rodney Enfantie and asked him whether he thought this method was "suitable" or "acceptable". Enfantie's response was that it would probably be better to direct the spray of water and mud along the ground instead of into the air and suggested the use of an elbow. Enfantie did not have any PVC elbows. Prussner with his offsider, Robert Scott, went off to have a look on the mine site laydown area to see if there were any elbows. Scott took two or three elbows back to the drill site.
Cross‑examined he said that the spray of water and mud was being projected away from the working area although the spray was covering the driller, the instrument panel and the vehicles. He considered it would be uncomfortable for the driller and that it was untidy but in his view it was not an unsafe situation. The drillers were working away unperturbed by the spray. He denied being unhappy about the method of ejection of the mud and water from the old hole. His enquiry as to whether the method was "suitable" was not a direction to Enfantie to provide an alternative solution. It was Enfantie who suggested he could probably try an alternative method by using an elbow. Enfantie informed him that they had tried to block off the old hole with a foam bomb but that had not worked. Prussner was happy for the drilling to continue with the existing method for discharge from the old hole. The situation did not require him to give Enfantie any direction to stop drilling when he went off with Scott to the lay down area. The next contact Prussner had was when he heard that the accident had happened.
Rodney James Enfantie was a senior driller employed by the first defendant and he had some 21 years experience in the drilling industry. He was the supervisor/driller operating the drilling rig at the time of the plaintiff's accident. It was his evidence that when Prussner saw the spray of water and mud being projected into the air that he indicated to Enfantie that "he wasn't real happy about the way I had directed it up and could we do something about it, redirect it." Enfantie agreed that he suggested that he could possibly do so with an elbow but that he did not have any. When Scott came back with an elbow Enfantie claims that it was cracked and broken away and would not have been suitable. He thereupon proceeded to fashion an elbow in the 6 metre length of PVC by heating it up on the exhaust pipe of an engine about 1 metre from the bottom end. Heating the PVC made it malleable so that it could be bent to form an elbow in the pipe. Having done that he checked to ensure that the elbow would not restrict the flow of material through the pipe. The bottom end of the pipe was then pushed back over the existing collar pipe and the other end (the end where the mud and water sprayed out) was tied down. Thus there was about 5 metres of the pipe, from the bend to the exit end parallel and about 600 mm – 1 metre above ground level. When drilling recommenced Enfantie instructed one of the driller's offsiders (Ryan McCracken) to hold on to the elbow section of the pipe to ensure that it did not blow off the collar pipe. Enfantie had the offsider hold down on the pipe while he pressurised the hole before commencing drilling. He ascertained from the offsider that it had not been a problem for him to hold the pipe on. When drilling commenced it did not need the offsider to continue holding the pipe down. This process was undertaken two or three times when drilling rods were changed. Each time the hole was pressurised water and mud sprayed out and then drilling continued. On the next occasion the plaintiff who was nearby was instructed to hold down the PVC pipe on the collar. When asked what happened then it was Enfantie's evidence:
"Then I used the automatic blow down unit and started pressuring the hole again, air going down to clear the water out of the hole and out of the rod system. We had return coming up the old hole. There didn't seem to be a problem then. Everything looked ok. It wasn't – didn't seem to be making any effort to hold it there, so that's when I instructed Rory (driller's offsider) to open the valve on the booster which in turn lets more air into the system because you have got another compressor sitting there loaded up waiting to go. So I opened the air valves and then you have surge in the hole because you've increased the air pressure, so it slips everything out of the hole quicker and obviously you must get more water in the hole than we anticipated and there was an increase in pressure and it just started squirting up all around. Wayne (the plaintiff) was standing there and the next think you know he was just flying through the air; it just happened that quick."
Cross‑examined Enfantie acknowledged that right from the outset he recognised that there was a risk of a blow out from the old hole. He recognised that possibility before they commenced drilling. He had discussion with his drilling crew as to what to do to deal with the risk of a blow out from the old hole. When the new drill hole intersected the old hole they had attempted to plug the old hole using foam but that did not work. He agreed that being an experienced driller and being in charge of the rig it was for him to deal with the risk of a blow out and the problem, if any, should the drill holes intersect. He acknowledged that it was his responsibility to safeguard his fellow employees and the well-being of the rig. Although the internal diameter of the pipe was reduced by reason of putting the bend in it he still believed there was enough space for the flow material to go through the bend. He acknowledged that this temporary measure carried the risk that with upward pressure hitting the bend it could cause the pipe to come off the drill collar. PVC glue was not used on the joint and it was Enfantie's attitude that he did not want to glue the pipes because the "idea was if it blew off it blew off." He agreed that he was aware that there was a risk of the pipe being lifted off because of the pressure coming from the surge of air, water and mud up the old hole He instructed the offsider holding the pipe that if it started to lift off to let it go and get out of the road. This instruction was given to avoid the offsider being hurt because the surges of pressure could be unpredictable.
He was also aware of and agreed that there were other alternatives to avoid this risk. When the foam down the old hole did not work he could have made arrangements to block it with a concrete plug. That would require concrete to be poured down the hole and left to cure overnight before recommencing drilling the following day. He did not discuss that solution with Prussner. Alternatively, he could have contacted his employer's office in Perth to discuss the risk and what procedure might be adopted. Nor did he contact Prussner when Scott came back with, according to Enfantie, one old elbow which didn't fit and was broken. The consequence of the solution adopted by him was the incident whereby the plaintiff sustained his injury.
William Peter Frazer gave evidence on behalf of the first defendant. He is a mining engineer with 21 years experience working in the mining industry in Western Australia and Tasmania. He stated the obvious to the effect that if one hole is drilled in close proximity to an existing hole there is a risk that the former may intersect with the latter with the consequence that the compressed air blown down the new hole may evacuate rock chips or other material via the existing hole. Inherent in that is a danger to the safety of drilling personnel and equipment in the immediate area. There is no prohibition against drilling a new hole within 3 metres of an existing hole but there are guidelines which suggest a minimum of 5 metres. Different companies have different policies on this issue. It was his evidence that where a new hole intersects with an existing hole the response is to "engineer the hazard out", ie take steps to eliminate the hazard. In his experience it was the responsibility of the principal (in this case the second defendant) to have designed the hole and location to ensure that once it became aware of the "blow back situation" that the danger thereby created be avoided. It was his opinion that drilling should not be allowed to continue after intersection until the existing hole had been sealed so as to ensure that there was no hazard to the drillers. The appropriate remedy would be for the existing hole to be filled with loose material and for the top of the hole to be sealed with a plug of concrete or driller's foam. It was no solution to simply leave it to the drillers to take steps to eliminate the hazard.
Cross‑examined he acknowledged that it was not an uncommon practice for holes to be drilled under 3 metres apart. There is no prohibition as such but there are guidelines. As regards the method adopted by the drillers of bending the PVC pipe he agreed that would be unsafe as the bend would create an artificial restriction to the venting of mud and water under pressure. There was a real risk of injury to a person holding onto the pipe or near it if the pipe was to blow off the old collar. He described this method as a "non standard procedure" and considered it "was a dangerous practice". A flexible pipe as opposed to the PVC pipe might have been a more acceptable means for venting of the water and mud under pressure. In his experience the drillers should have communicated with the mine manager/exploration geologist and discussed what was proposed to be done to eliminate the hazard. If there was not such communication then the responsibility lay with the drillers to come up with an appropriate solution. He described the alternative of concreting the hole as being a "relatively inexpensive and easy matter to resolve". Finally, it was his opinion in the circumstances at hand that the driller should have communicated with the mine manager/exploration geologist to discuss the method which he proposed to implement for venting of the water and mud under pressure.
Kenneth Steele, a mechanical engineer specialising in drilling, also gave evidence on behalf of the first defendant. His evidence was generally to similar effect as that of Mr Frazer. Whilst his practical experience in operating a drilling rig has not been recent and he had never operated a rig of the type being used, nevertheless, his 37 years experience in the industry qualified him to comment on safety aspects where there is a potential hazardous situation. The danger where holes are drilled in close proximity is self‑evident. On his evidence a risk hazard assessment should have been undertaken before drilling was commenced to minimise the risk of a blow‑out of the existing hole. Either the new hole should have been further away or the old hole plugged before drilling the new hole commenced. Once the new hole intersected with the old hole drilling should have been stopped until a satisfactory solution had been effected. This might have been to commence drilling another hole but further away or to seal the existing hole. He did not regard the placing of a length of pipe on the old collar as being a proper measure to deal with the danger. Even the misty/muddy rain being carried onto the crew and the equipment created a safety risk to the drilling crew. Finally he considered that it was totally inappropriate to have a man holding down the pipe trying to contain a surge of water coming up the old hole. He regarded that method as an inappropriate and dangerous drilling practice. It was his opinion that the appropriate thing for the driller to do was to cease operation and to introduce a solution which in actual fact provided control over the hazard.
Determining where liability lies
The judgment to be made by the Court is that derived from the application of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947, which, so far as material provides that:
"7(1)(c) Where damage is suffered by any person as the result of a tort…any tortfeasor liable in respect of that damage may recover contribution from any other tortfeasor who is…liable in respect of the same damage…"
"7(2)In any proceedings for contribution under this section the amount of the contribution recoverable from any person shall be such as may be found by the Court to be just and equitable;…"
The task then is "…one of evaluating the respective contributions made by each negligent party to the harm suffered." (See Achron Pty Ltd v Serco Water (WA) Pty Ltd [2001] WASCA 141 at par 39).
Analysis of the evidence
As much as is in dispute on the evidence is what was said as between Prussner and Enfantie when Prussner visited the drill site to see how the drilling was progressing. On Prussner's account as much as he did was to enquire whether Enfantie thought the method for venting the water and mud was "suitable" or "acceptable" but otherwise was not concerned about the method. He considered it untidy but not unsafe and allowed work to continue after he left to look for an elbow.
On the other hand Enfantie said that Prussner "wasn't real happy…and could we do something about it, redirect it." It is common to both that it was Enfantie who suggested that an elbow might be used so as to direct the spray along the ground away from the equipment. Whatever was said it is apparent that the situation was a matter for Enfantie to deal with because it was one affecting his area of operations, the equipment and his drilling crew. He had used the foam bombs and adopted the vertical PVC pipe method when the holes intersected seemingly without reference to or consultation with Prussner.
At this point it is relevant to bear in mind that the injury to the plaintiff was not occasioned as a consequence of the method of using the vertical pipe which had been implemented by Enfantie and his crew before Prussner came along to see progress. Nor was it the fact that water and mud was being vented out of the existing hole after the new hole intersected with it which, of itself, caused the accident. It may well have been that left with the PVC pipe vertical as it was with the air pressure and misty mud being vented vertically and without obstruction that drilling of the hole could have been continued to completion without incident. The fact that the site and equipment was being made untidy or that it may have been uncomfortable for the drillers is not to say that it was dangerous or that drilling should have ceased. The situation could have been avoided by plugging the old hole if that was thought necessary but neither Enfantie not Prussner considered that to be necessary in these particular circumstances.
It is what happened following the discussion between Prussner and Enfantie which is relevant in determining the contribution of the respective parties, if any, to the event which occurred.
To assist Enfantie, Prussner and Scott went off to look for an elbow and Scott returned with one or more. That was to no avail and so it was that Enfantie and his crew fashioned the bend in the pipe. He could have called Prussner on the 2‑way radio or driven around to locate Prussner to tell him that the elbow/s were of no use and to discuss other options or to inform Prussner of what he proposed to do with the pipe. He did none of that. That he did not is consistent with the fact that any supervision or direction of the drilling crew by the second defendant was limited to drilling location, depth and conduct generally and was not in relation to the operation of the drill rig or the instructions given by Enfantie to his crew. That is, a drilling problem as this was, was a matter within the ambit of Enfantie's responsibility to deal with.
The solution adopted by Enfantie and his crew was to fashion the bend in the pipe, place it on the collar and to tie the long end down so the material was being vented close to ground level. That there would be vertical pressure up the pipe at the bend when the drill hole was being pressured up is nothing more than stating the obvious. That the PVC pipe would blow off the collar unless it was glued or otherwise secured adequately to resist the vertical forces is also to state the obvious. It was apparent to Enfantie, as he admitted, that the vertical pressure may have caused the pipe to lift off the collar. Hence instructing one of the driller's offsiders to hold down the pipe above the bend so as to prevent (if possible) the pipe from being blown off.
Likewise if the driller's offsider was not able to hold down the PVC pipe against the vertical upward pressure then the risk of that person being struck by the pipe or otherwise being thrown upwards or backwards was also readily apparent. Again Enfantie recognised that risk and instructed the driller's offsider to jump clear if he could not hold the pipe down on the collar. Thus it is quite clear from the evidence and, as a matter of common sense, that this solution was fraught with danger. It was by all accounts a dangerous solution.
Findings
The first defendant was an independent contractor to the second defendant.
Enfantie devised and implemented an inherently dangerous solution to the issue of achieving a redirection of the water and mud from the vertical PVC pipe. The activity out of which the plaintiff's accident arose was the causing to be placed over the collar of the existing hole the bent PVC pipe knowing that there would be variable upward pressure against the bend. Directing the driller's offsider to hold down the bent pipe against the vertical pressure was reckless and exposed him to a foreseeable risk of injury.
The immediate cause of the plaintiff's injury was a consequence of the method devised and implemented by Enfantie and did not result as a consequence of anything done or not done by the second defendant.
Conclusions
The long established and general rule at law (subject to certain exceptions not relevant in the context of this case) is that a principal is not liable for the negligent conduct of his/its independent contractor.
On the evidence I am satisfied that the accident giving rise to the plaintiff's injuries arose solely as a result of the negligence attributable to the first defendant. Responsibility for causation of the plaintiff's injuries rests with his employer the first defendant.
That being so I conclude therefore that the first defendant's claim for indemnity or contribution against the second defendant must fail.
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