Placer (Granny Smith) Pty Ltd v Specialised Reline Services Pty Ltd
[2010] WASCA 148
•30 JULY 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: PLACER (GRANNY SMITH) PTY LTD -v- SPECIALISED RELINE SERVICES PTY LTD [2010] WASCA 148
CORAM: PULLIN JA
NEWNES JA
MAZZA J
HEARD: 16 JUNE 2010
DELIVERED : 30 JULY 2010
FILE NO/S: CACV 91 of 2009
BETWEEN: PLACER (GRANNY SMITH) PTY LTD (ACN 009 466 175)
First Appellant
DRAKE PERSONNEL LIMITED (ACN 007 504 609)
Second AppellantAND
SPECIALISED RELINE SERVICES PTY LTD (ACN 069 212 086)
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :GROVES DCJ
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
File No :CIV 2175 of 2004
Catchwords:
Tort - Negligence - Whether foreseeable risk of injury - Crane dropping load on respondent's workman - Crane driven by employee of another contractor - Whether unsafe system of work
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
First Appellant : Mr T Lampropoulos SC & Ms A Rakoczy
Second Appellant : Mr T Lampropoulos SC & Ms A Rakoczy
Respondent: Mr J R B Ley
Solicitors:
First Appellant : Corrs Chambers Westgarth
Second Appellant : DLA Phillips Fox
Respondent: Greenland Legal Pty Ltd
Case(s) referred to in judgment(s):
Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; (2004) 217 CLR 424
Atkinson v Gameco (NSW) Pty Ltd [2005] NSWCA 338
Deutz Australia Pty Ltd v Skilled Engineering Ltd [2001] VSC 194; (2001) 162 FLR 173
English v Wilsons & Clyde Coal Co Ltd (1936) SC 883
Hamilton v Nuroof (WA) Pty Ltd [1956] HCA 42; (1956) 96 CLR 18
Iannello v BAE Automation and Electrical Services Pty Ltd [2008] VSC 544
Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672
Leighton Contractors Pty Ltd v Fox [2009] HCA 35; (2009) 240 CLR 1
McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306
Murphy v Placer (Granny Smith) Pty Ltd [2009] WADC 100
New South Wales v Lepore [2003] HCA 4; (2003) 212 CLR 511
Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330
Scott v Davis [2000] HCA 52; (2000) 204 CLR 333
Speed v Thomas Swift & Co Ltd [1943] KB 557
Stevens v Brodrobb Sawmilling Co Pty Ltd (1986) 60 ALJR 194
Sydney Water Corporation v Turano [2009] HCA 42; (2009) 239 CLR
Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317
Vairy v Wyong Shire Council (2005) 223 CLR 422
Western Australia v Watson [1990] WAR 248
Wicks v State Rail Authority of New South Wales [2010] HCA 22
PULLIN JA: David Murphy was seriously injured in an accident at a goldmine at Laverton on 16 March 1999. He was injured when two heavy metal plates slipped from a crane sling above him and fell on him. Mr Murphy was employed by the respondent, Specialised Reline Services Pty Ltd (SRS). A Mr Leach was the crane operator at the time of the accident. He was the employee of the second appellant Drake Personnel Ltd (Drake). The first appellant Placer (Granny Smith) Pty Ltd (Placer) was the operator of the goldmine which had retained SRS and Drake to do work on the mine site.
Mr Murphy sued Placer, SRS, Drake and Mr Leach for damages. The claim against Placer was based on a cause of action in negligence and breach of the Mine Safety & Inspection Act 1994 (WA) (MSI Act) as was the action against Drake and Mr Leach. The claim against SRS was also in negligence and for breaches of the MSI Act. Placer, SRS and Drake denied that they were negligent or in breach of their duty. Mr Leach did not file a defence or participate in the court proceedings.
Placer and Drake, despite their denials, ultimately admitted liability to Mr Murphy and settled Mr Murphy's claim by agreeing to pay $4,173,720.07. Placer and Drake then claimed that SRS should make a contribution under s 7 of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA) (Contribution Act). Placer also claimed damages for alleged breach of contract by SRS which involved the same allegations as in the general law and statutory causes of action. These claims were heard by Groves DCJ in the District Court. His Honour dismissed all claims against SRS. Murphy v Placer (Granny Smith) Pty Ltd [2009] WADC 100.
Placer and Drake now appeal to this court alleging error in relation to the reasons for dismissing the claim for contribution. Placer does not challenge the dismissal of the claim based on contract. They agree that if the claim based on the general law fails, then so does the statutory cause of action.
The mine site and the events leading to the accident
After ore from the mine was crushed it went through a milling process. From the crushed stockpile the ore was conveyed up a conveyor to a semi‑autogenous grinding mill (SAG mill) and then in slurry form up to a cyclone distributor. The cyclone acted like a centrifuge separating large and small pieces of ore. Large pieces of ore went to a ball mill for further crushing before being returned to the cyclone distributor. From the cyclone distributor, slurry was transported to a leaching process, being the first stage of the gold extraction process. The cyclone tower with the cyclone distributor atop was in proximity to, but not immediately adjacent to the ball mill and stood at a higher level than the ball mill. There was metal decking around the cyclone distributor. In the cyclone tower were 16 cyclones which were in a circle around the cyclone distributor.
From time to time the SAG mill and the ball mill required relining and while work was being undertaken, the mine had to be shut down. Other maintenance work around the mine was undertaken during the shutdown. In early 1999, Placer scheduled the shutdown of the mine between 15 and 17 March 1999 for relining work to be undertaken on the ball mill and the SAG mill. During the shutdown, the cyclone distributor and metal floor around it were 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 Mr Murphy, 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. This work started at 6 am on 16 March 1999. This work involved disconnecting the 16 cyclones and lifting them down to ground level. The lifting was done by using a gantry crane. The gantry crane was mounted on or adjacent to the distributor tower. This crane towered well 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. Following that, the cyclone distributor was unbolted and then lifted down to the ground. The cyclone distributor was too heavy to be lifted to the ground by the gantry crane. A different crane was required for that job.
Drake engaged Mr Leach as a crane driver to operate another crane, a 50 tonne Tadano truck‑mounted mobile crane (50T crane) which was the property of Placer to lift out the cyclone distributor.
Sometime after 6 pm on 16 March 1999, the 50T crane was set up on its outriggers in proximity to the ball mill and the 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 the old floor steel plates had been removed.
At about 11.45 pm, the SRS supervisor on site, Grant Voss, directed Mr Murphy and another SRS employee, Murray Hopkins, to pack away their tools and equipment on the ball mill floor level.
At about the same time, Mr Leach, using chains, slung two steel floor plates onto the lifting rope of the 50T crane so they could be lifted from the ground to the cyclone distributor deck. Mr Leach operated the 50T crane and lifted the floor plates and commenced to slew the load over the area at the feed end of the ball mill where Mr Murphy and Hopkins were packing away their tools and equipment. It was then that the floor plates slipped from the chains and fell onto Mr Murphy who suffered serious injuries.
Liability of Placer and Drake
Slewing a crane load above unprotected workers is unsafe and negligent. Drake accepted that it was negligent in doing so. Placer accepted that it was in breach of its duty in not better coordinating the work on site in order to avoid that occurring. As a result, Placer and Drake admitted liability to the plaintiff.
SRS denied 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, that there were no other relevant circumstances to put it on notice that unsafe work was taking place above its unprotected employees and on the basis that it had a safe system of work in place.
Contribution proceedings
Placer and Drake claimed against SRS an order pursuant to s 7(1)(c) and s 7(2) of the Contribution Act, that SRS contribute such amount as the court considered just and equitable to the settlement sum, interest and the costs which Placer and Drake were ordered to pay. Before Placer and Drake were entitled to such an order, they had to establish that SRS would, if sued, have been liable to pay damages to Mr Murphy for the injuries he suffered.
The appellants' statement of claim against the respondent
In par 11 of the statement of claim, the appellants pleaded that SRS owed a non‑delegable duty to Mr Murphy. That duty was described, after some introductory words, as a duty to establish, maintain and enforce a 'safe place and system of work'. By par 12, the appellants pleaded a breach of the duty described in par 11.
The duty of SRS as an employer
There is no dispute that SRS, as an employer, owed a common law duty to its employees to take reasonable care to avoid exposing its employees to unnecessary risk of injury: Hamilton v Nuroof (WA) Pty Ltd [1956] HCA 42; (1956) 96 CLR 18, 25 (Dixon CJ & Kitto J). The duty encompasses an obligation to take reasonable steps to provide a safe system of work: Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; (2004) 217 CLR 424 [34]. Discharge of the duty requires the employer to warn employees to avoid work hazards of which it knew, or ought to have known. It also extends to guarding against foreseeably inadvertent and negligent conduct on the part of others: see McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306, 311 ‑ 313.
While an employer's position in relation to provision of a safe system of work may be constrained by the fact that it does not control the workplace, this fact alone 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 [73] ‑ [85] and especially [74], [80].
The duty of care is 'non‑delegable': Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672. As a result, the duty has sometimes been described as a 'strict liability': see, for example, Scott v Davis [2000] HCA 52; (2000) 204 CLR 333 [248] (Gummow J); New South Wales v Lepore [2003] HCA 4; (2003) 212 CLR 511 [257] (Gummow & Hayne JJ). However, it is strict only in the sense that an employer is liable regardless of whether the employer has itself acted carefully: Lepore [257] (Gummow & Hayne JJ). This means that an employer cannot escape responsibility for the discharge of the duty of care by delegating it to a third person. Labelling an employer's duty as 'non‑delegable' does not affect the content of the duty. It does not convert the duty into an absolute liability to compensate an employee for injury under any circumstances and even if reasonable care was taken to avoid foreseeable risk of injury. In other words, it is not a duty to preserve workers from all harm: Lepore [22] (Gleeson CJ). It remains a duty to exercise reasonable care: Lepore [19] ‑ [21] (Gleeson CJ) and [257] (Gummow & Hayne JJ). As Gummow J said in Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330 [43] (Callinan & Heydon JJ agreeing):
[W]hatever their scope, all duties of care are to be discharged by the exercise of reasonable care. They do not impose a more stringent or onerous burden.
See also Leighton Contractors Pty Ltd v Fox [2009] HCA 35; (2009) 240 CLR 1 [49].
Foreseeability of risk
In Sydney Water Corporation v Turano [2009] HCA 42; (2009) 239 CLR 51 [45], French CJ, Gummow, Hayne, Crennan and Bell JJ said that the concept of reasonable foreseeability is relevant at each of the three related stages of the analysis of liability in negligence: the existence and scope of a duty of care, breach of the duty and remoteness of damage. At the first stage, the inquiry has been said to involve the assessment of foreseeability conducted at 'a higher level of abstraction' than at the subsequent stages. However, to speak of a higher level of abstraction in dealing with that first stage does not support a formulation of duty in terms devoid of meaningful content. As Gleeson CJ observed in Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317 [12], the concept is to be understood and applied with due regard to the consideration that, in the context of the issue as to duty of care, it is bound up with the question of whether it is reasonable to require a person to have in contemplation the risk of injury that eventuated. If the conduct is inadvertent or negligent conduct of others, the prospect of such inadvertence or negligent conduct must also be foreseeable.
Reasonable foreseeability will be determined by what the employer knew or ought to have known. The negligence may be where the employer knows of the risk of injury, or where the employer ought to have known of such risk: Western Australia v Watson [1990] WAR 248, 266 ‑ 267. If the injury is caused by, or arises out of an unsafe system of work, it must be an unsafe system of which the employer was aware or ought to have been aware: McLean v Tedman(311). The question of foreseeability is to be judged by asking what a reasonable person would have done to avoid what is now known to have occurred: Vairy v Wyong Shire Council (2005) 223 CLR 422 [126]; Wicks v State Rail Authority of New South Wales [2010] HCA 22 [33].
No allegation that SRS was vicariously liable
In this case, the negligent conduct causing Mr Murphy's injury was the negligent conduct of a person who was not employed by Mr Murphy's employer. Where an employer's employee is injured by the negligence of an employee of a third person, then there are two possible bases of establishing liability in the injured person's employer. One is where the employer is held vicariously liable for the negligence of the employee of the third person, on the basis that the third person's employee became an employee 'pro hac vice' of the injured person's employer (to use Mason J's expression in Kondis). The concept of an employee 'pro hac vice' is discussed by Ashley J in Deutz Australia Pty Ltd v Skilled Engineering Ltd [2001] VSC 194; (2001) 162 FLR 173 [93] ff. The other and most common way of a plaintiff establishing that the injured person's employer is liable, is to prove that there was a breach of the employer's personal duty of care. In Kondis (691), Brennan J mentioned these two alternative bases of liability. The court in Kondis concluded that the employer in that case was not vicariously liable for the third party's employee's negligence as a crane driver.
In this case, there was no basis for claiming that SRS was vicariously liable for Mr Leach's negligence. The appellant did not contend otherwise. Thus, apart from a third basis of liability posited by senior counsel for the appellant (referred to when dealing with ground 1), the only issue was whether there was any breach of the personal duty of care imposed on SRS as an employer to provide a safe system of work.
Breach of duty - casual acts of negligence and failure to provide a safe system of work
A casual act of negligence is an isolated act. Negligence of an employer, by failing to provide a safe system of work involves establishing that there was failure to provide, as the expression suggests, a system to avoid foreseeable risk of injury. An employer will be vicariously liable for a casual act of negligence of an employee (that is failing to exercise due care to avoid foreseeable risk of injury) which results in injury to a fellow employee. However, as Brennan J explained in Kondis (691 ‑ 692), the general rule is that an employer is not vicariously liable for casual acts of negligence of a workman who is not his servant.
The distinction between isolated casual acts of negligence and the failure to provide a safe system of work was referred to by the plurality in Andar [54] by quoting the following from what Lord Aitchison said in English v Wilsons & Clyde Coal Co Ltd (1936) SC 883, 904:
[B]roadly stated, the distinction is between the general and the particular, between the practice and method adopted in carrying on the master's business of which the master is presumed to be aware and the insufficiency of which he can guard against, and isolated or day to day acts … of which the master is not presumed to be aware and which he cannot guard against; in short, it is the distinction between what is permanent or continuous on the one hand and what is merely casual and emerges in the day's work on the other hand.
The plurality continued in Andar [54]:
Similarly, it has been said that '[a] system of working normally implies that the work consists of a series of similar or somewhat similar operations'.
See also Speed v Thomas Swift & Co Ltd [1943] KB 557, 563.
In Andar [54], the plurality said that the loading and unloading of linen trolleys from a delivery truck required regular repetition of the activity and Andar was obliged to take reasonable steps to ensure that the loading and unloading was carried out in a safe manner. That obligation required Andar to develop and maintain a methodology or system which would achieve that result. It was the failure to take reasonable steps to develop and maintain a safe system of work which made Andar liable in that case.
An example of an isolated or casual act or circumstance of negligence by a third person not the employer's servant or agent which did not result in liability in the injured person's employer is provided by Atkinson v Gameco (NSW) Pty Ltd [2005] NSWCA 338.
In this case, as will be seen, the distinction is important because the injury to Mr Murphy was not caused by an employee of SRS but by an employee of a third party, namely Drake.
The trial judge's reasons
The trial judge referred to the proceedings which had taken place before the trial, set out the background facts, referred to the contribution proceedings and then stated the law in relation to the duty of SRS as employer. His Honour summarised the evidence of all of the witnesses who had given evidence at trial.
Turning to the legal issues, at [113] and [114], the trial judge disposed of the appellants' suggested third basis of liability. I will set out what his Honour said at [113] and [114] when dealing with ground 1.
At [115], the trial judge turned to the appellants' contentions that SRS was in breach of its duty of care as an employer. The trial judge set out the allegations of negligence that Placer and Drake levelled against SRS. The allegations were that SRS failed:
(a)to warn Mr Murphy of the risk of injury presented by works being performed overhead;
(b)to instruct Mr Murphy where there was an overhead hazard in existence;
(c)to check that the area was safe and free from the overhead hazard;
(d)to ensure that Mr Murphy followed and abided by the warning and instruction;
(e)to 'ensure' that areas where the plaintiff was working were secured from and free from overhead hazards;
(f)to 'prevent' Mr Murphy from entering 'any area' in which he was exposed to risk of an overhead hazard; and
(g)'to alert Leach as to the presence of [Mr Murphy] at any time during the crane lift which he performed'.
In short, the appellants contended that there was an unsafe system of work exposing SRS employees to a foreseeable risk of injury. In effect, it was contended that the system was unsafe because steps were not taken to 'warn', 'prevent' or 'ensure' SRS workmen (including Mr Murphy) were not exposed to the risk of 'overhead hazards'.
His Honour then said:
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 [117] ‑ [118].
His Honour then recorded three points put forward by SRS which, in effect, go to whether the risk of injury was foreseeable and in particular whether SRS knew, or ought to have known, of any risk of injury. His Honour said:
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 [119].
His Honour then made 13 findings of fact and they were:
(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 [119].
Apart from finding (v), none of these findings is challenged.
His Honour then made 14 observations about points on which there was no evidence before the court. He said:
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 [119].
Apart from (ii) and (iii), none of these observations are challenged.
His Honour followed these observations with the question '[s]hould SRS personnel have known or ought to have known that there was potentially or in fact a risk of an overhead hazard?' His Honour reached his conclusion in [120] ‑ [121] which read:
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 [120] ‑ [121].
Finally, at [123], his Honour returned to the question of whether SRS ought to have foreseen that there was a risk of injury by asking himself the question '[w]as it reasonable for SRS to have had the expectation that it would be forewarned of a potential overhead hazard'. His Honour concluded that:
(a)it was reasonable for SRS to have that expectation on the basis that there had never been a lift over the SRS work area at the mine when SRS was engaged in its work;
(b)it was the practice generally at the mine, if there was to be an overhead lift, that the personnel in the line of travel would be forewarned and the area cleared before the lift commenced;
(c)Placer placed emphasis on communication and safety and it was reasonable to expect that its own personnel would adhere to safe practice;
(d)Placer's own supervisors acknowledged it would be reasonable for SRS to have had the expectation that such safe work practice would be adhered to; and
(e)SRS's work was undertaken in a defined and confined area of the ball mill which was noisy work.
His Honour also accepted that the two SRS supervisors on site, Nelson and Voss, were alert to dangers and were themselves safety conscious and that it was unreasonable in the circumstances to expect them to be 'looking out' all the time 'just in case something might happen'. As a result, his Honour concluded that SRS was not in breach of its duty of care to the plaintiff.
His Honour also dealt with a claim by Placer and Drake that SRS was in breach of its statutory duty pursuant to s 9(1) of the MSI Act and concluded 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. That conclusion is not separately challenged. The claim by Placer and Drake against SRS in contract was also dismissed and that is not separately challenged. As a result, his Honour concluded that SRS was not liable to make any contribution to either Placer or Drake in respect of the settlement sum.
The grounds of appeal
There are six grounds of appeal. They are not set out verbatim because they are unnecessarily long. Ground 1 challenges the conclusions in [113] and [114] of the trial judge's reasons which are set out below. Counsel for the appellant explained that this was an alternative ground to the other grounds and dealt with it last in his submissions. Likewise these reasons will deal with ground 1 last.
Ground 2 challenges the observation by the trial judge that 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'. This is a challenge to the observations made by the trial judge in [119(ii)] and [119(iii)] under the additional 'observations' made by the trial judge.
Ground 3 asserts that the trial judge erred in 'law and fact' in 'not finding' that SRS 'should have seen the lifts and activity' and therefore had 'constructive knowledge' of the lifts and activity and was negligent in 'not making' further inquiries about those activities and 'not moving' its employees. Converted into a positive assertion, by this ground the appellants allege the trial judge erred in finding that SRS did not have 'constructive knowledge' ie ought to have known of the risk that a crane might drop a load and injure unprotected workers.
Ground 4 challenges the trial judge's finding, at [123], that it was reasonable for SRS to have had the expectation that it would be forewarned of a potential overhead hazard.
Grounds 5 and 6 depend upon grounds 1 to 4 being successful.
Ground 2
Underlying grounds 2 to 4 is the appellants' contention that there existed on site a system of work which was unsafe. That is a system of crane lifting which SRS knew or ought to have known exposed SRS workers to a foreseeable risk of injury. Ground 2 challenges the trial judge's observation that there was 'no evidence' that before the accident any lifts involving the gantry crane or the 50T crane (before the final lift) were over the top of the ball mill or any area where SRS workers were 'engaged'. It was important for the appellant to establish this as a first step to prove its contention that there was in place an unsafe system of work.
There are two aspects to the observation by the trial judge. They are that:
(a)there was no evidence that before the accident, loads were carried by the gantry crane or the 50T crane over the top of the ball mill; and
(b)there was no evidence that before the accident any loads were lifted by the gantry crane or the 50T crane over 'any area where SRS workers were engaged'.
Evidence concerning the gantry crane
Except for the final lift which resulted in injury to Mr Murphy, there was no oral evidence that the gantry crane or the 50T crane carried any loads over the ball mill or the open area in front of the sag mill, the crib room or over the heads of any unprotected men. The only oral evidence on the subject was evidence about the gantry crane. The evidence was given by Mr Medling, who was a supervisor working for Placer. It was put to him in cross‑examination that the gantry crane (which lifted the 16 cyclones) carried them to the ground over the ball mill. Mr Medling's evidence was that this did not happen (ts 144). He said that the boom would have swung over the ball mill but the load did not.
The evidence which the appellant said falsified the trial judge's statement that there was no evidence consisted of photographs and plans particularly the plan of the site at GAB 28. From these the appellant submitted that this court could infer that loads must have been carried over the ball mill, the sag mill and the crib room. Counsel for the appellant submitted that this was a matter of 'physics'.
This is not an inference that can be drawn. In fact, by reference to the plan of the site and the photographs it is more likely that the gantry crane did as Mr Medling said and lifted the cyclones from the top of the cyclone directly down to the ground without going over the ball mill or the sag mill or the crib room. It would have made no sense for the crane driver to make an unnecessary detour to carry the loads over the mills or crib room rather than taking the 16 cyclones directly from the top of the cyclone down to the ground in front of the cyclone.
Evidence concerning the 50T crane
The distributor was carried to the ground by the 50T crane. There was no oral evidence that this crane carried loads over the heads of unprotected workers except for the last loads. Once again counsel for the appellant submitted that this court should infer, by looking at the plan at GAB 28 and the photographs, that the distributor must have been carried over the ball mill or the sag mill. That is not an inference which could be drawn. If the distributor was carried by the shortest route down to the ground to the location where it was photographed after the accident then it would not have passed over either mill. There is no reason why this court should draw the opposite inference.
The judge was correct to say that there was no evidence of loads being carried over the ball mill or the other area where SRS was 'engaged to carry out work', namely the sag mill.
The area between the two mills
It is then necessary to turn to the area in between the two mills. There is no doubt that the gantry crane carried loads over this area. It is then necessary to consider whether there was any possibility of injury to SRS workers by loads being dropped on them in this area.
The system of work which SRS knew about was that the gantry crane lifted loads to the ground over the covered walkway. Although it did not know that the 50T crane had commenced lifting, it ought to have known it would do so. The 50T crane lifted the distributor itself to the ground and must have passed over the walkway between the two mills. This was the system of work which SRS knew about. There was no evidence to support the appellants' contention that the system of work involved lifting loads over the ball mill, sag mill or crib room.
Was the system of work unsafe
If the walkway area had been uncovered, then lifting loads over it would have posed a hazard to workers walking there. However, the uncontradicted oral evidence was that the walkway was not uncovered. Mr Nelson, the managing director of SRS, gave the evidence on the topic. He was asked whether or not workers were walking on the platform beneath the ball mill and the sag mill. Mr Nelson answered:
[T]here's two floors of … grid mesh …or checker plate flooring between us and the cyclone cluster.
He was then asked whether he would not be concerned for safety of his employees in this area and his answer was:
For lifts from the cyclone cluster to the ground level in that area with two floors … two levels of flooring between our personnel and - and where the lift's taking place, for them to lower it to that ground level, they're outside the - the structure of the building, and so the - the majority of the lift would have been outside the building. If something fell from the crane there, it would have fallen to the floor level; to the ground level. (ts 289 ‑ 290)
By this answer he meant that when the load was over the walkway, there were two levels of flooring above them and that when the crane had passed over them there was no risk to workers on the walkway because if a load fell it would fall onto the ground.
The photographs, as difficult as they are to interpret, do appear to show that the walkway was protected by two overhead levels of flooring. Counsel for the appellants did not contend otherwise but sought to persuade the court that there would still be a hazard because a load dropped by a crane might hit something in the fall and be 'deflected'. That is a matter of speculation. There was no evidence to support such a speculative conclusion.
As a result there was no evidence of a load being carried above any of SRS's unprotected workers at any stage when work was being carried out by SRS in March 1999 and the general evidence was that it had never happened on any other occasion when SRS carried out work on the mine site. The system of work in place was not unsafe. Ground 2 must therefore be dismissed.
Ground 3
By ground 3 the appellants contend that SRS ought to have known that lifts were taking place. Ground 3 must fail because ground 2 has failed. It was not sufficient for the appellants to establish merely that SRS ought to have known that crane lifts were taking place. If the appellants were going to successfully establish that there was an 'unsafe system' of work, they had to point to evidence establishing that the system of work was that loads were carried above SRS workers who were in unprotected areas and who were not warned or excluded from the unprotected areas when lifts were taking place. They failed to do so. Ground 3 must be dismissed.
Ground 4
Ground 4 alleges that the trial judge erred in finding that it was reasonable for SRS to rely upon an expectation that third parties would warn it about proposed overhead lifts. The written submissions in support repeat what was said in support of ground 3, that is that 'SRS should have observed' the 'overhead work' and 'taken remedial action before the final crane lift'. Once again, this point will not advance the appellants' case. Showing that SRS should have known about crane lifts would only establish that SRS ought to have been aware of a system of work; it would not establish knowledge of an 'unsafe' system of work. There was no evidence of loads being lifted above the heads of unprotected workers.
In any event, before the accident, SRS had always been told when crane lifts were to take place in the past and it was reasonable to expect that this practice would be adhered to in the future. Charts, particularly the Gantt chart, showed that crane operations were to take place but the trial judge found it was a 'flexible' document and that finding was not challenged. In any event, the fact that the Gantt chart showed that the gantry crane would be in operation on 16 March 1999 would only have been of concern to SRS if there was some indication that it would lift loads above the heads of unprotected SRS workers. As explained already, there was no evidence to this effect. Ground 4 must be dismissed.
Ground 1
Grounds 2 and 4 are concerned with the appellants' attempt to demonstrate that the trial judge erred in concluding, in effect, that there was no unsafe system of work. The appellant said that ground 1 was an alternative ground and did not involve demonstrating that there was an unsafe system of work. By this ground the appellants submit that his Honour made an error in [113] and [114] of his reasons. Those paragraphs read:
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 Brodrobb 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.
His Honour's reasons are puzzling when first read. The law is that an employer cannot escape liability for a breach of its personal duty of care by claiming that it delegated responsibility for safety to a competent contractor. SRS did not claim that it had delegated its duty of care. The appellants pleaded in the statement of claim (correctly) that SRS's personal duty of care was non‑delegable. So the question is: why did his Honour bother to say that there had been no delegation of SRS's 'duty of care'? The answer was given by the parties to this appeal. It seems that senior counsel for the appellants put a proposition of law to his Honour, a proposition repeated at this appeal, which involved as a first step the further proposition that SRS had in fact delegated its duty to take care to Placer or Drake.
The proposition advanced in this court was that if an employer delegates to a third party the obligation to discharge its duty of care to avoid foreseeable risk of injury to its employees, then even if the system of work was as safe as human endeavour could make it, the employer of the injured person will be strictly liable for a casual act of negligence by an employee of that third party which causes the injury to the employer's employee. It was submitted by senior counsel for the appellants that this could be gleaned from what Mason J said in Kondis.
The appellant submitted that SRS should be liable for Mr Leach's casual act of negligence. It was a casual act of negligence because quite unexpectedly, and unforeseeably, Mr Leach, against the established practice of many years, took it upon himself to negligently swing the plates (which fell on Mr Murphy) over Mr Murphy without any indication to either Placer or SRS that he was about to do so.
The past practice in relation to crane lifts during shutdowns was described by Mr Passmore. Mr Passmore was employed by Placer as a production supervisor from 6 pm on 16 March 1999 to 6 am on 17 March 1999. His main duties as production supervisor were to oversee the relining of the SAG mill, coordinate with SRS in relation to the work on the ball mill and to 'oversee safety'. Mr Passmore gave evidence that crane lifts which affected his team or the processing team would be organised beforehand either by radio or word of mouth. According to Mr Passmore, either the maintenance supervisors or the people conducting a crane lift would inform him before the lift. He gave evidence that if he was informed of a proposed crane lift over the area in which his team was working, a number of steps would be taken. Firstly, the area would be controlled by asking workers to vacate to a safe distance so that they were not under the load being moved by the crane. Secondly, the area would be cordoned off with tape. Thirdly, spotters would be appointed. Mr Passmore explained that a spotter is a person given the task of controlling an entrance or exit to the area that the crane lift is going to travel over. The sole duty of spotter is to not let people into the area. Mr Passmore could not recall being told that a lift was to take place during his shift on 16 March 1999.
Senior counsel for the appellant supported his proposition of law by reference to Kondis. However, there is nothing in Kondis which provides any such support. In fact Kondis is authority counter to the appellants' proposition. In Kondis, the employer was liable for his employee's injury because first the appellant's foreman had been negligent in failing to direct the injured man to not stand under the crane being operated by an employee of the third party and also because of the employer's breach of its personal duty of care to provide a safe system of work.
Counsel for the appellants pointed to Mason J's observations that the employer was liable because of the negligent conduct of the crane driver who was the third party's employee. It was this which counsel for the appellants said supported his proposition. However, in Kondis liability based on the crane driver's negligence flowed because the driver did not adopt a safe system of work which was 'a breach of the respondent's [employer's] duty to provide a safe system'. Deane J explained that:
[T]he content of the employer's duty to take reasonable care to provide a safe system and conditions of work for the employee [was] not discharged by delegation unless the delegate, be he employee or independent contractor, in fact provides the reasonable care which the employer was under an obligation to bring to bear.
The appellants' proposition finds no support at all in that case. As mentioned earlier in these reasons, Brennan J in Kondis, said that the general rule is that an employer is not vicariously liable for a casual act of negligence of a worker who is not his servant.
The trial judge did not trouble himself to consider the appellants' proposition because he found that there had not been any delegation to ground the proposition. That finding was correct for the reasons mentioned below. Merely because SRS relied on Placer or Drake to tell SRS when crane lifting operations were to take place did not prove that there had been a delegation of SRS's duty of care. When the trial judge said the cases were distinguishable from the 'so‑called labour hire cases' it is likely that he meant that Mr Leach did not become an employee pro hac vice. It is not clear why his Honour mentioned and distinguished Stevens v Brodrobb Sawmilling Co Pty Ltd (1986) 60 ALJR 194.
Ground 1 must be dismissed.
Grounds 5 and 6 are merely consequential grounds and as a result, they fail.
The appeal must be dismissed.
NEWNES JA: I agree with Pullin JA.
MAZZA J: I agree with Pullin JA.
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