Plunkett v Central Norseman Gold Corporation Limited - [2000] WADC 307

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: PLUNKETT -v- CENTRAL NORSEMAN GOLD CORPORATION LIMITED [2000] WADC 307

CORAM: CHARTERS DCJ

HEARD: 3-10 NOVEMBER 2000

DELIVERED : 24 NOVEMBER 2000

FILE NO/S: CIV 1717 of 1994

BETWEEN: SHANE PLUNKETT
Plaintiff
AND
CENTRAL NORSEMAN GOLD CORPORATION LIMITED
Defendant

Catchwords:

Negligence - Injury as a miner - Turns on its own facts

Legislation:

Nil

Result:

Claim dismissed

Representation:

Counsel:

Plaintiff: Mr J R Brooksby
Defendant: Mr K J Bonomelli

Solicitors:

Plaintiff: Greenland Brooksby
Defendant: Anthony Torre & Monaco

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

Nil

Case(s) also cited:

Adams v Ascot Iron Foundry Pty Ltd (1968) 72 SR (NSW) 120
Arthur Robinson (Grafton) Pty Ltd & Anor v Carter (1968) 122 CLR 649
Baird v Roberts (1977) 2 NSWLR 389
Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
Bennett v Minister of Community Welfare (1992) 176 CLR 408
Bowen v Tutte (1990) A Tort Rep 81-043
Broadhurst v Millman (1976) VR 209
Cockatoo Docks & Engineering Co Pty Ltd v Monte Forte (1964) NSWR 1215
Commissioner of Railways v Halley (1978) 20 ALR 409
Commissioner of Railways v Ruprecht (1979) 142 CLR 563
Davies v Swan Motor Co (SWANSEA) Ltd (1949) 2 KB 291
Fennell v Supervision & Engineering Services Holdings Pty Ltd (1988) SASR 6
General Cleaning Contractors Ltd v Christmas (1953) AC 180
Haber v Walker (1963) VR 339
Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18
Hawkins v Ian Ross (Castings) Ltd (1970) 1 All ER 180
Holloway v McFeeters (1965) 94 CLR 470
Jenner v Allen West & Co Ltd (1959) 2 All ER 115
JJ Bus v Sydney County Council (1989) 63 ALJR 440
Jones v Dunkel (1959) 101 CLR 298
Kondis v State Transport Authority (1984) 154 CLR 672
Linsell v Robson (1976) 1 NSWLR 249
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
McLean v Tedman (1984) 155 CLR 306
Naismith v London Film Productions Ltd (1939) 1 All ER 794
O'Connor v The Commissioner for Government Transport (1954) 100 CLR 229
Pennington v Norris (1956) 96 CLR 10
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492
Smith v McIntyre (1958) Tas SR 36
Stapley v Gypsum Mines Ltd (1953) AC 663
Sungravure Pty Ltd v Meani (1964) 110 CLR 24
Sydney County Council v Dell'Oro (1974) 132 CLR 97
Thomas v O'Shea (1989) A Tort Rep 80-251
Tubemakers of Australia v Fernandez (1976) 10 ALR 303
Van Velzen v Wagener (1975) 10 SASR 549
Vanderloo v Waltons Ltd (1976) VR 77
Wyong Shire Council v Shirt (1980) 146 CLR 40

CHARTERS DCJ: The plaintiff is a 34 year old underground miner who claims damages on account of injuries suffered in an accident on 4 October 1989.
In the course of his employment by the defendant, he was working at the Regent Shaft at Norseman in 1578 stope when a rock fell upon him at 9.10am. He suffered injuries principally to his right thumb which sustained a compound fracture and a fracture resulting from a hyperflexion injury to the second lumbar vertebra.
Liability and damages are in issue.

The pleadings

The statement of claim contains the following pleading:
"5.(i) On the 4th of October 1989, the Plaintiff, whilst in the course of his employment as an underground miner was working at the 1500 feet level of the Regent shaft mine operated by the Defendant.
(ii)The plaintiff was directed to remove pillars, whilst removing the pillars another employee of the Defendant, John Campbell, a train driver, was present.
(iii)In the course of performing that task the roof of the stope collapsed, crushing the Plaintiff beneath a slab of rock, a consequence of which the Plaintiff sustained severe injuries and has suffered loss and damage.
6.At the time the Plaintiff was directed to remove the said pillars and was so engaged:
(i)the area in which he was working was unstable and therefore unsafe.
(ii)the Plaintiff had no experience in that task in which he was so engaged.
(iii)he was directed to use a method of work that by reason of the condition of the area was unsuitable and dangerous.
(iv)he was working in an area which had not been inspected, or sufficiently inspected, so as to properly assess the dangers associated with removing the pillars.
(v)the area in which the Plaintiff was working was making a popping sound.
(vi)he was working in an area that had not had the roof rock bolted so as to stabilise the same.
(vii)he had not received any, or any adequate instructions or directions as to any safe method of removing the pillars.
(viii)he had not had explained to him the risks generally, or in particular, associated with a rock fall.
(ix)he was working without assistance by way of a competent person to observe the condition of the area and warn him of any danger.
(x)he was working without supervision and assistance in the performance of his duties as directed.
(xi)he was performing the duties as directed which by reason of the matters pleaded herein was an unsafe method of work.
7.The said severe injuries, loss and damage were occasioned to the Plaintiff by reason of the negligence and/or breach of duty on the part of the Defendant, its servants, agents and/or contractors.
PARTICULARS OF NEGLIGENCE
The Defendant, its servants, agents and/or contractors were negligent in that:
(a)Directed the Plaintiff to remove the pillars when it was unsafe and dangerous to do so in the circumstances.
(b)Directed the Plaintiff to remove the pillars at a time when the Plaintiff was not sufficiently competent and/or experienced to do so.
(c)Utilised a method of work for the Plaintiff that was unsuitable in the circumstances thereby exposing the Plaintiff to risk of injury.
(d)Failed to inspect or adequately inspect the workplace in which the Plaintiff was required to work so as to properly assess the dangers of the same or the suitability of that workplace for the Plaintiff.
(e)Failed to advise the Plaintiff of the consequence of popping sounds in the area.
(f)Failed to ensure the area in which the Plaintiff was working was rock bolted before the pillars were removed.
(g)Failed to adequately instruct or direct the Plaintiff as to the proper method of removing pillars.
(h)Failed to warn the Plaintiff of the risk to him in removing pillars.
(i)Failed to provide the Plaintiff with adequate assistance so as to carefully watch the operation to see whether any cracks or other danger appeared during the course of the operation and so warn the Plaintiff of the possibility of a collapse.
(j)Failed to ensure that the Plaintiff was adequately supervised and/or assisted in the task of removing pillars.
(k)Failed to provide, maintain and operate a safe system of work for the Plaintiff in the task of removing pillars."
Further and better particulars were furnished by the plaintiff which explained that pillars are columns extending from the floor to the roof consisting of unmined rock and dirt. Their removal resulted in there being less or no support for the roof. The plaintiff was required to remove the pillars using mechanical means and his own labour. He had never been involved in this function.
The method utilised was unsuitable because it exposed the plaintiff to risk of injury by collapse of the roof. The circumstances which made it unsuitable were:
(i)the condition of the ground; and
(ii)the plaintiff's lack of expertise and competence.
There was no system of inspection in force and a proper system of inspection would have revealed to the defendant the condition of the ground.
The plaintiff was asked, by reference to the allegation that he was not adequately instructed as to the "proper method of moving pillars", what method he was adopting and what was the proper method. His answer was that he was required to remove the pillars using mechanical means and his own labour; he could not specify the proper method, if indeed there was one, but said that inexperienced underground miners should not be involved in that task.
He was also asked, by reference to the risk of removing pillars, to state what risks were involved and answered "the risk of the collapse of the roof and injury to the plaintiff".
As a consequence of the accident, it is pleaded the plaintiff sustained a compressed wedge fracture of the body of the second lumbar vertebra and injury to his right thumb - a compound fracture of the proximal phalanx and damage to the collateral ligament on the ulna side.
He has suffered, it is claimed, a 10 per cent loss of effective use of the right thumb, 10 per cent loss of effective use of the spine, inability to drive or sit for prolonged periods, propensity for further deterioration of the spine and a loss of past and future earning capacity.
Prior to commencement of the trial I required the parties to exchange proofs of evidence and this was done.

Findings of fact

The plaintiff came from a farming family and did not complete Year 11 of his schooling.
He met his wife, Som Kuan, in 1986, married her on 26 November 1989 and has two children aged 9 and 7.
His work history includes that of tractor driving for his father, employment with Australis Mining as a surface sampler and then employment with the defendant as a machine operator from about April or May 1985. This work involved surface work operating a crushing mill.
After some four months he was employed as an underground sampler for 12 months until October 1986, as a general hand or a skipman's offsider, and a skipman until May 1988.
The plaintiff was then employed as a scraper/train and bogger driver until December 1988.
He wanted to become an underground miner rather than a machine operator because of the monetary rewards. An underground miner works with an airleg machine which is the highest paid underground mining position. He had by December 1988 spent some 3½ years underground.
The mine at which the plaintiff worked, the Regent shaft, had been mined for many years and was about 4,000 feet deep. There were, I understand, many stopes going off at an angle following the ore body.
During the mining of a stope the miner creates pillars to ensure that the roof does not cave in and a stope may have many pillars. The pillars themselves may be ore bearing rock of a high grade.
It is convenient that I first deal with some of the mining activities discussed in evidence.
Remnant mining is an expression given to a number of activities to recover gold bearing ore from an area which has been mined and some of the mining expressions used. Such activities may include pillar removing or pillar recovery, footwall stripping and scaling. The pillars bear the weight of the roof and before they are removed it is necessary to construct false or gypsum pillars - or "stulls". These are timber pillars from ground to roof, usually circular in pattern and filled with gypsum or plaster of Paris - these take some time to set. Those stulls form a rigid solid structure. A pattern of holes is then drilled in the natural pillar, it is fired and removed. After any firing there may be loose rocks. These constitute a danger to miners, scraper and bogger drivers and are removed by scaling. Where the material is ore bearing it is removed for processing in the ordinary way.
Footwall stripping involves drilling holes and firing. The drilling is near horizontal to take out parts of the floor and remove high grade ore. Scaling is carried out after the firing. Footwall stripping may be carried out around a pillar and usually the pillar is stable. The stripping is at the floor beside the pillar: it does not involve undercutting the pillar.
Footwall stripping is regarded as a simple process and one well within the plaintiff's expertise.
A pillar may become stressed - it may go through a process known as "spall". Pillars bear the weight of the roof of the stope. That weight may result in rock "spitting" out and so reduce the pillar to the shape of an apple core - the centre of the pillar becomes narrower than the top and bottom of it. Eventually the stage may be reached when the pillar fails and the roof and backs collapse.
In January 1989 the plaintiff was employed as a trainee miner involved in stoping, raising and remnant mining. He worked with Mr Websdale, who was a machine miner, from early 1989 and was paid as a trainee until about April 1989 when he graduated to become a miner - an underground or airleg miner.
The plaintiff was trained how to bore and fire, how to hose down the rock face for dust and how to clean and scale. Mr Websdale explained the various procedures.
Scaling is a simple though hazardous procedure. It involves using an iron bar and working from good to bad ground to pry loose pieces of rock from the sides or roof of the mine.
Mr Websdale was an experienced airleg miner and had been involved in many aspects of mining. He had trained under the "buddy" system which is still in force today and involves being attached to an experienced miner to learn the trade. This involves learning boring, firing, scraping, bolting and the like. He himself trained many miners and a miner trained in this manner should be safe to work in any gold mine in Australia.
The training course is backed by a supervisor who is required to visit each working area twice each shift and where there is a trainee there is invariably some discussion concerning his progress.
The training period of three to four months is sufficient to enable a trainee to learn the trade, though not all trainees succeed to the degree of competence to warrant being employed as a miner. The plaintiff was, by April 1989, competent to graduate to miner and had the appropriate recommendation from the supervisor, foreman and Mr Websdale.
The plaintiff was well regarded as a competent miner.
I reject the plaintiff's evidence that stope 1578 showed signs of instability or that it was unstable. I reject his evidence that there were sounds of popping.
Pillar 19, near which the plaintiff was working, was sound and there was no evidence of stress or spalling. It was of a regular shape.
There were wooden stulls in the area left by previous miners, but none was close to pillar 19: that pillar had not been removed and there was no instruction for its removal.
A reference to Mr Kenneth Drew's evidence is warranted. He is retired from mining but was, in October 1989, the plaintiff's shift boss in stope 1578 and later in stope 1900. He originally thought the plaintiff had worked on pillar recovery prior to his accident in stope 1578: he amended this in his proof of evidence before swearing to its correctness by explaining that the plaintiff was first involved in pillar removal in stope 1900 - after his accident.
In stope 1578 the plaintiff was involved in footwall stripping.
Indeed the plaintiff agreed that on 4 October 1989 he was not involved in pillar removal. He was engaged in footwall stripping.
Mr Drew's evidence was that the ground conditions in stope 1578 were generally good - he travelled there every day over four to five months.
He recalled his instruction to the plaintiff on 4 October 1989 that the latter was to scale the pillar behind the bogger driver Campbell. This instruction was given because the pillar had a few "scats" (thin slabs of rock peeling from the pillar over the course of time). It was a simple scaling job. Before this the plaintiff had been footwall stripping for three to four months or so.
This work required no pillar removal.
All pillars in that area were old - mining had been done many years before. Any one "could have a few 'scats' hanging on the side that normally you wouldn't worry about but because the bogger operator was below and had his back to the particular pillars, when I saw that there were a few scats hanging there I wanted them scaled off to make it safe for the bogger operator".
Mr Drew's evidence was contradictory concerning the presence of stulls in that area - he first said there was none and later agreed there were some left by previous miners but there was none "in that place" before the accident. He agreed in cross‑examination that the pillar was under some stress - hence his instruction to clean it up - but he did not recall being told by Campbell that the pillar was under stress. He would not disagree with suggestions of the plaintiff's recollection of conversations.
He heard no sounds of stress in the stope - no popping:
"There are dozens and dozens and dozens of pillars in the stope and they're all taking a sort of equal share of the weight of the ground above and normally you don't have to worry about them having a few cracks in, or anything like that, except this one was sitting on the edge of a brow of about 2 metres high that the bogger driver was working underneath."
The plaintiff was to scale the pillar itself and the ground around the pillar above him - the roof.
Scaling is an absolute necessity following the boring and firing, to stabilise the backs and roof. Bolting was also often necessary to ensure that the ground was safe. Bolting, in which the plaintiff was trained, required drilling and placing metal plates to stabilise the roof. Scaling is the removal, with an iron bar, of unstable or loose pieces of rock.
There are five rules to be observed for safe scaling and these were known to the plaintiff before his accident - he must:
(i)have a safe retreat;
(ii)have a good footing;
(iii)have a sharp scaling bar;
(iv)scale good ground to bad ground; and
(v)sound the ground in front of him.
The plaintiff had seen a video movie on a few occasions which detailed these five rules.
Scaling itself can be taught in half a day. One of the most important aspects is sounding the ground to check on its stability. This entails hitting the roof with the scaling bar and learning from the noise that it makes what type of ground it is and whether it is safe. The plaintiff was trained in that respect.
The plaintiff had been involved in bolting on the 15th level at stope 1578 (the stope where the accident occurred) and I accept the evidence of Mr Goldson that anyone who can rock bolt has gained a knowledge of scaling. Rock bolting is a form of ground control which is carried out after having assessed the ground by way of scaling.
In the course of the plaintiff's induction he was given a booklet which set out the various safe measures to be adopted by a miner.
I do not accept the plaintiff's evidence that he was never examined for anything he did - as part of his training with Mr Websdale and indeed Mr Drew there would have been examination of his work. I do not accept his evidence that he was never assessed by any mine manager or supervisor. Mr Fraser, the mine manager, albeit for a limited period from June to October 1989, saw something of the plaintiff's work and the plaintiff was certainly supervised by Mr Websdale.
At the conclusion of a day's induction a small written test was taken by the trainee and the plaintiff, I find, underwent this process.
Also in the course of induction the trainee would go to a particular area with a miner who would deal with practical aspects. Ground condition is a relatively complex aspect and takes some time to learn.
I reject the plaintiff's evidence that he was never shown how to do remnant mining or how to strip a footwall.
On 4 October 1989 the plaintiff was instructed by Mr Drew to clean up or scale pillar 19 in stope 1578. He saw a piece of rock which he said was "hanging" and started to sound from the pillar towards it in the direction of pillar 24.
His evidence that "it was the first tap to the back that resulted in the fall" of the rock does not clearly explain how he tried to scale the area of that rock.

His evidence in his statement is that the rock that fell upon him was 15 feet long and 9 feet wide by 1.5 feet thick. This contrasts with an answer he gave to interrogatories that the rock was 6 feet by 3 feet.
Mr Drew saw the fallen rock after the accident and described it as less than 1m long by half a metre wide and 2.3 inches thick weighing about 1.5 hundredweight. It was about 18 inches from pillar 19.
Mr Frazer described the rock as 3.4 feet wide by 4 feet long by 4 inches thick and one metre from the nearest edge of pillar 19.
I reject the evidence of the plaintiff as to the dimensions of the rock. The measurements would be closer to those described by Mr Drew and Mr Frazer.
The plaintiff's evidence of his activities when he was injured does not bear any resemblance to the circumstances pleaded in his statement of claim and the further and better particulars furnished.
Upon his evidence he was not removing a pillar - he was doing nothing connected with its removal. The pillar was not undermined and the roof did not collapse.
There was no relationship between the fall of the rock and any stress there may have been in the pillar.
The scaling work was a mining activity with which the plaintiff was thoroughly familiar - one in which he had been adequately trained. He was not injured through lack of training or supervision.
There is no basis upon the evidence, as it relates to the pleading or otherwise, for a finding that the accident was due to any lack of care on the part of the defendant and I dismiss the plaintiff's claim that the defendant was negligent.
None of the particulars of negligence has been proved.

Damages

I turn then to the matter of damages if it were the case that the defendant had been negligent.
The plaintiff suffered an extensive fracture of the body of the L2 vertebra and a compound fracture of the proximal phalanx of the right thumb. He was taken to the Kalgoorlie Regional Hospital.
The right thumb was treated by open reduction and internal fixation. He now has a 10 per cent loss of use of that thumb.
The fracture to the vertebra healed very well and there is no neurological interference. Any symptoms the plaintiff now has are a reflection of the general soft tissue damage. He now has 10 per cent permanent loss of use of the spine as pleaded.
The plaintiff was off work for about four months and would be entitled to damages for lost earnings over that period.
The plaintiff returned to work as a miner from 7 October 1992 until 7 April 1995. It appears there developed serious mental health problems with his wife, who with the plaintiff, left Australia with the two children to return to Thailand.
Upon the plaintiff's return to Australia he has not worked other than for the period of about four months in 1996 as a gardener and currently cleaning yards for the Agriculture Department.
The plaintiff is capable of many forms of work including that of a storeman, courier driver, sales assistant and yardman. He is not fit to return to heavy mining work.

General damages

The plaintiff would be entitled to a reasonably substantial award for the painful and serious injuries he received to his thumb and back. He has, however, made a very good recovery from both these injuries and his way of life is not now greatly affected.
Under this head I would have awarded the plaintiff $40,000.

Past loss of income

From 1 July 1995 to the date of trial I would have awarded the plaintiff the difference between the award rate for a storeman and the rate for his pre‑accident classification and earnings. That is, the difference between $62,564 and $33,240 for 279 weeks - a product of $157,300.

Future loss of income

I would have awarded the plaintiff the difference between the award rate for a storeman and his pre‑accident rate to the age of 55 years, applying the multiplier of 632.1. It is said on his behalf that he would have worked as an airleg miner to the age of 55 years. I would have discounted this by 6 per cent to allow for ordinary contingencies - he may not have worked to the age of 55 years in this classification, this being underground mining work; and he may obtain more remunerative work than that of storeman - for example, truck driving. On the other hand, he may have worked overtime, with consequential increase in income, as an airleg miner.
Thereafter I would make no award.
Under this head the appropriate award is $338,575.

Future medical and pharmaceutical costs

I would have made no award under this head.

Superannuation

I would have awarded superannuation for past loss of income calculated at the following rates as sought on his behalf -
1 July 1995 to 30 June 1998 (152 weeks) 6% - $2,534
1 July 1998 to 30 June 2000 (104 weeks) 7% - $4,385
30 June to 6 November 2000 (18 weeks) 8% - $1,486
I would have awarded past superannuation lost in the sum of $8,405.
I would have awarded future superannuation from 6 November 2000 for 21 years at 8 per cent and apply the multiplier of 632.1.
The loss of future superannuation is $49,665.

Heads of damages

Interest

I would have awarded interest at the rate of 5 per cent per annum on the past loss of income after deduction of workers' compensation payments.

Conclusion

In the result the claim is dismissed.