Ruskin Nominees Pty Ltd v Avago Pty Ltd - [2010] WADC 130

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: RUSKIN NOMINEES PTY LTD -v- AVAGO PTY LTD [2010] WADC 130

CORAM: STEVENSON DCJ

HEARD: 5, 6, 7, 8, 9, 12, 13, 14 & 15 OCTOBER & 17 NOVEMBER 2009 & 4, 5 & 6 MAY 2010

DELIVERED : 3 SEPTEMBER 2010

FILE NO/S: CIV 670 of 2001

BETWEEN: RUSKIN NOMINEES PTY LTD
Plaintiff
AND
AVAGO PTY LTD
Defendant

Catchwords:

Contract - Terms of agreement for drilling and blasting - Breach of agreement - Contractual duty of shotfirers - Onus of proof - Section 74 Trade Practices Act 1974 - Whether implied term of fitness for particular purpose made known - Expert evidence - Underlying facts for opinion not proved - Measure of loss and damage - Turns on own facts

Legislation:

Trade Practices Act 1974, s 74(1), s 74(2)

Result:

Judgment for the plaintiff of $36,962.03
Defendant's counterclaim dismissed

Representation:

Counsel:

Plaintiff: Dr P R MacMillan
Defendant: Mr M Holler

Solicitors:

Plaintiff: S C Nigam & Co
Defendant: Lawton Gillon

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

Automasters Australia Pty Ltd v Bruness Pty Ltd [2004] WASCA 229
Erwin v Iveco Trucks Australia Ltd (2010) 267 ALR 752
Professional Services of Australia Pty Ltd v Computer Accounting & Tax Pty Ltd (No 2) [2009] WASCA 183

STEVENSON DCJ:

Introduction

This action concerns the aftermath of a failed production blast at the Carnamah Quarry (the Quarry) on 26 August 1999.
The Quarry is located about 300 km north of Perth and is operated by the defendant under the business name "Winchester Industries". The plaintiff (Ruskin), at the request of the defendant (Avago), provided the drilling and blasting services necessary for the production blast. However, Ruskin did not specify or organise the supply of the explosive emulsion used in the blast. Instead, Avago arranged for a third party (TES) to supply the explosive emulsion, which was a product that Ruskin recommended not be used.
For a reason (or combination of reasons), which is in dispute, the blast was only partially successful. The parties blame each other for the poor result and each contends that it is not responsible for the outcome. The parties' claims in these proceedings put in issue the terms of the agreement between them; the circumstances in which the work was done and how it was done; the cause or reason (or reasons) for the partial failure of the blast; the physical extent of the actual failure; and the extent of the loss suffered by Avago as a result of the blast (to the extent it was unsuccessful).
The evidence adduced in the trial was in many respects less than satisfactory and in some important respects completely absent. This is no doubt due to the lapse of time between the blast and the trial, a period of over 10 years. The position was aggravated by the obvious failure of both parties to properly investigate the circumstances at the time and to preserve the evidence, or at least that part of the evidence upon which they now seek to rely. Experts were not engaged immediately by both parties to try to determine the most likely cause of the failed blast. There was no conferral or communication at the time between the principals of either party to identify the issues in dispute. Instead, over a 10‑year period they have became embroiled in litigation for the purpose of making claims and counterclaims against each other.
An obvious example of the lack of relevant evidence critical to determining the issues in this trial was the fact that neither party called as a witness the driver of the truck that delivered the explosive emulsion used in the blast. His evidence was always going to be critical. This would have been known by both parties at the time (and ever since), if only because Avago substituted a cheaper form of explosive to that usually used by Ruskin and, further, in circumstances where Ruskin strongly recommended to Avago that it not use the product for the blast.
Another example of "missing evidence" is Ruskin's stocktake reports which, according to Mr Ropata, would have confirmed the exact number and type of 150, 175 and 200 ms leads used by Ruskin in the blast. Had it been produced, this documentary evidence would have corroborated a critical fact in issue, namely what leads were used by Mr Ropata and Mr Hart, accepting of course that this fact alone could not prove that the leads were not inadvertently put in the wrong holes.
As a result, the fact-finding task of the Court has been made problematical and, in my final view, impossible. The lack of evidence and quality of the available evidence concerning the underlying facts has had a flow‑on effect, as was apparent during the trial, on the expert evidence in relation to the issue of the probable cause (or causes) of the failed blast.
The Court is not permitted to speculate or 'fill in holes in the evidence' so as to be able to form a view, even though the Court may draw inferences from facts which have been proved on the balance of probabilities. Nor is the Court permitted to make a finding that fact A or fact B separately, or in combination, was the probable cause of the failed blast if the evidence is not, when considered objectively and dispassionately, sufficiently persuasive to that view. Each party bears the onus of adducing credible and reliable evidence to prove its claim and contentions made, and must do so on the balance of probabilities.
The financial amount in issue is modest compared to the undoubted costs incurred by the parties in bringing and maintaining their respective claims against each other over a period of 10 years. Given the time and costs incurred over 10 years of 'interlocutory skirmishing', and the failure of the parties to indentify and address the real issues at the outset (and in some respects this was only done during the trial), one might be forgiven for thinking that both parties must have assumed that the battle would be won, by the other party capitulating at the door of the Court, without the need to go to trial. Regretfully, both parties were wrong in this regard, their positions possibly being fuelled by negotiating stances adopted in the 10 years leading up to the trial. The parties were offered a hearing date five months earlier than that used for the continuation of the hearing but did not utilise it, adding further time to the resolution of the matter.
The plaintiff claims $36,962.03 for drilling and blasting services provided to the defendant at the Quarry in August 1999. The drill and blast of the overburden was successful (and there is no issue about this), but the production blast on 26 August 1999 was only partially successful. As a result the defendant refused to pay the plaintiff's invoice for the full costs of the services provided. The plaintiff's claim is therefore, in effect, for the sum of $21,124.61 which was the cost of the production blast (the cost of $16,137.42 for the overburden drill and blast not being in issue).
After some years the defendant counterclaimed against the plaintiff for loss and damage allegedly suffered as a result of having to deal with the unsuccessful portion of the blast, which was not completed until February 2009. It seems the counterclaim was instigated because the parties were not willing to settle the plaintiff's claim for $21,124.61. By the time of the trial the defendant's claim had reduced from $382,269 to $187,187.37. This amount is based on a re‑calculation of the amount of material involved and various other assumptions because the defendant did not keep any records of the actual time and costs involved in the remedial works.
Each party bears the burden of proving its claim on the balance of probabilities. Both parties assert that the cause of the failed production blast was due to the fault of the other party. They both rely on expert witnesses to contend that the blast was not completely successful for different reasons. In the end neither party has satisfied me that any one possible cause was any more likely than another to have been the reason why, or a contributing reason why, the blast was only partially successful. The Court is not permitted to speculate and can not draw inferences about relevant facts if the evidence is deficient or totally absent.
In my opinion, any finding as to the reason for the failed blast would on the evidence before the Court (both factual and opinion) be a guess. For the reasons which follow, the plaintiff's claim must be allowed and the defendant's counterclaim dismissed.

The evidence

The primary evidence of the lay witnesses was given by reading out aloud the witness statement prepared for them and exchanged for the purpose of the trial. Evidentiary objections (and there were many) to portions of the statements were dealt with during the evidence‑in‑chief of each witness. Additional evidence was adduced with leave of the Court. This included in particular, perhaps surprisingly given it was a key issue in the trial, a "tie‑in diagram" (Exhibit 3.2) which was produced by Mr Ropata (Ruskin's shotfirer) to illustrate, according to him, the timing sequence of the blast.
As a result of adopting this approach to the evidence, cross‑examination of the witnesses was shortened. The expert witnesses gave evidence by reference to their expert reports. However, because of the number of objections to the witness statements it was difficult for the witness to give their evidence in a meaningful way because of the 'stop‑start' effect on the course of the evidence. This was difficult, not only for the witness, but also for those following the evidence. This process also made it difficult for the Court to assess the degree, if any, of the recall of the witnesses of important facts in issue and, correspondingly made it difficult for the Court to assess the truthfulness and reliability of the lay evidence.
This approach to the 'oral evidence' was necessary because of the gap in time from the relevant events and the trial. However, the result was a degree of artificiality in the way the evidence was given and a resultant impact on the ability of the Court to assess the evidence of the witnesses. In this case, the written form of the statements drafted by the lawyers did not reflect the way the witnesses would have expressed themselves if they had been giving their evidence viva voce. This was readily apparent by observing the manner of the witness when reading aloud what was ascribed to them as their evidence in the statement.
It was evident that the witnesses had a good understanding of the issues and, in my view, without exception they all did their best to advance the position of the party who called them (except Mr Extract who was totally independent). For example, the plaintiff's shotfirer who supervised the blast, Mr Ropata, was asked by the plaintiff's counsel (after he had been cross‑examined on the point) if there was any possibility he may have made a mistake by using the wrong delays in the holes. Not surprisingly, his evidence, as follows, was the subject of comment by counsel for Avago:
"You were asked questions about the type of delay that as put – down‑hole delay that was put in the blast holes in the back row. You remember that? – That's correct, yes.
And you were asked whether it could happen that a down‑hole delay that was not a 200‑millisecond delay was put down one of those blast holes in the back row. Do you remember being asked that? – I do.
What millisecond delays – what type of delay did you put down the blast holes in the back row that day, 26 August? – What type, or ‑ ‑ ‑
What type of delay? What – 150, 175 or 200? - 200 millisecond.
Did you check that? – I guarantee it.
And was it checked? – Yes, it was, yes. Everything was checked by myself and Hart.
How many times? – More than three.
Three? – Yeah, it was done very pedantically.
So you're satisfied you didn't make a mistake? – No – I am satisfied, sorry.
No further questions, your Honour."
The evidence of the witnesses is set out in more detail than usual because of the importance of the evidence to the resolution of the parties' claims, and because of its overall inconclusiveness.

The plaintiff's evidence

(a) Celeste Fiona Baker

Mrs Baker and her husband are directors of Ruskin which traded under the business name "Hytech Drillers". In 1999, Ruskin operated as a drilling and blasting contractor for quarries, mines and civil construction projects and, depending on the amount of available work, employed between 40 ‑ 80 people. Ruskin sold its business shortly after the events in question in this action.
Mrs Baker managed the business of Ruskin and was responsible for quotations and entering into contracts. In her written communications at the time she described herself as the "Managing Director". In August 1999, Ruskin had had a business relationship with Avago for about three years. Mrs Baker said that, prior to August 1999, Ruskin had only performed drilling work for Avago. In the course of the trial this fact became common cause (after 10 years of disputation) and the pleadings and witness statements were duly amended. Accordingly, I find that the failed blast, the subject of the action, was the first time that Ruskin undertook a production blast for Avago, as opposed to merely performing the necessary drilling work.
According to Mrs Baker, on each prior occasion that Ruskin provided drillers to Avago, it gave the driller, when he arrived on site, a drill design pattern which the driller was required to follow. The evidence was that the drill pattern is determined by an expert based on the geological and physical conditions present at the mine or quarry, and the purpose of the blast. The importance of this evidence, which was uncontroverted, is that Avago did not rely upon the expertise and skill of Ruskin to determine the drill pattern necessary for the blast. The drill pattern also has certain parameters, which includes stemming length. Accordingly, I find that on every occasion Ruskin drilled blast holes for Avago (including for the failed blast), the drill pattern which was adopted, including the width and depth of the hole to be drilled, was determined by the drill design pattern provided by Avago. Ruskin did not on any occasion provide advice to Avago about the depth, size, place, spacing of the drill holes or stemming height; it merely drilled the holes as instructed.
Mrs Baker said each of the pre‑July 1999 contracts between the parties was entered into on the telephone as a result of a telephone call from Mr Clay Mauchline (Avago's quarry manager).
Mrs Baker's evidence was that, on or about 30 July 1999, Mr Mauchline telephoned her and said the Quarry was 'out of rock and that he wanted a rig there as soon as possible'. According to her, Mr Mauchline asked for Ruskin's drilling price at the Quarry. As requested, Mrs Baker sent a facsimile on 30 July 1999 to Mr Mauchline advising Ruskin's costs to provide drilling services at the Quarry. The cost per lineal metre of drilling varied according to the diameter of the hole drilled.
Mrs Baker's evidence was that after she sent her facsimile to Mr Mauchline he telephoned her and asked for a quotation for blasting. As a result Mrs Baker sent a facsimile to Mr Mauchline on 3 August 1999 containing Ruskin's costs for the provision of blasting services.
Mrs Baker said she then received a telephone call from Mr Mauchline during which he accepted Ruskin's quotation of 3 August 1999, and asked her to organise for Ruskin's rig to be mobilised to the Quarry. According to Mrs Baker, Mr Mauchline also asked her to send the pricing on the blasting materials which had not been included in the quotation of 3 August 1999. Mrs Baker did this on 5 August 1999 and sent Mr Mauchline a detailed facsimile of Ruskin's costs to conduct the blasting at the Quarry. Mrs Baker said in her discussion with Mr Mauchline he indicated that Avago required Ruskin to conduct the drilling and blasting in two phases. The first phase was to drill and blast the overburden at a depth required by Avago. According to her, Mr Mauchline said that after Avago had removed the broken rocks from the overburden blast, he would then require Ruskin to drill and blast the second phase, which was to be the actual production blast.
Mrs Baker said that at no time during her telephone conversation with Mr Mauchline did he mention any requirement that the rock size from the production blast was to be of less than 600 mm in diameter. I accept her evidence in this regard and find accordingly that there was no term in the agreement between the parties to this effect. In my opinion, it is fanciful to think that an experienced drilling and blaster contractor (like Ruskin) which was not responsible for the provision of the drilling pattern to be used or for selecting the explosive to be used, would agree to accept contractual responsibility for the result of the blast (as opposed to the performance of the services with due care and skill).
Mrs Baker arranged for Ruskin's drill to be moved from Red Hill to the Quarry on 7 August 1999. The cost of relocating the drilling rig was $960 (320 km at $3/km) and this cost was paid to a contractor engaged by Ruskin. The drilling rig is a self‑propelled, track mounted, hydraulic rotary percussion, drilling machine.
Mrs Baker said that Ruskin's drillers and shotfirers were required to complete a daily worksheet recording the hours worked, how many holes were drilled and the depth and diameter of each hole. The practice (as confirmed by Ruskin's daily worksheets in this matter), was to have the daily worksheet countersigned by the party engaging Ruskin's services. On this occasion, the daily worksheets of Mr Hart and Mr Ropata were countersigned by Mr Mauchline on behalf of Avago.
Mrs Baker said, based on Ruskin's business records in her possession that Mr Hart's daily worksheets record that he drilled 267 blast holes to a depth of 3 m between 9 and 12 August 1999 for the purpose of removing the overburden. Mrs Baker said Mr Hart informed her at the time by telephone that there was water in the drill holes. This meant that emulsion explosive was required instead of ANFO (because ANFO is granular and soluble in water).
On 11 August 1999 Mrs Baker ordered the necessary explosive emulsion from Orica based on Mr Hart's estimate of the quantity required. The explosive used by Ruskin for blasting the overburden was Powergel Gold 2560, supplied by Orica at a cost of $4,500 (minimum 3 tonnes). After Mrs Baker completed her evidence, I was informed by Dr MacMillan on behalf of Ruskin (in response to my inquiry) that Ruskin's invoice was incorrect. It recorded the cost of the Orica explosive emulsion for the blast of the overburden as $4,800, when it was in fact $4,500 according to Orica's invoice dated 16 August 1999. The plaintiff's prayer for relief was amended accordingly to reduce its claim by $300 to the sum of $36,962.03.
For the avoidance of doubt, I note that the amount claimed by Ruskin in the prayer for relief in the statement of claim is $37,262.03 and not the amount stated on the invoice of 31 August 1999, namely $37,401.23. The reduced amount reflects a deduction of $139.20 which Ruskin identified, presumably in the course of its final preparation for trial, as an overcharge on 40 boosters.
Based on Ruskin's business records, in particular the daily worksheets of Mr Hart, Mrs Baker said that after Mr Hart completed drilling the 267 blast holes on 12 August 1999 to remove the overburden, he performed the first shot on 14 August 1999 using bulk emulsion supplied by Orica. Mrs Baker said the drilling and blasting of the overburden was completed successfully using Orica's explosive emulsion. This evidence was confirmed by Mr Hart and is not in dispute.
Mrs Baker said that after the overburden was blasted, Mr Mauchline telephoned her and said Avago wanted to use "Blastmax", an explosive manufactured and supplied by Total Energy Systems (TES) for the production blast. Mrs Baker said she told Mr Mauchline that Ruskin had used the product previously and was not happy with it because it had experienced poor fragmentation and other problems with the product including in particular, its reliability. According to Mrs Baker, Mr Mauchline said Avago wanted to use the TES product because Orica's product was "too expensive" and because the blast pattern involved 14 m deep drill holes.

Mrs Baker said she informed Mr Mauchline that, if Avago insisted on using explosive emulsion from TES, then Ruskin would not be responsible for the blast. Her evidence was that Mr Mauchline said words to the effect that:
"We should not worry about it, we just do our part and that Avago would supply the emulsion to be used in the blast."
Mrs Baker said she was sufficiently concerned, given Ruskin's previous experience of the TES product, to telephone Mr Wes Coutts (Ruskin's safety officer) to ask him to speak to Mr Mauchline to try to persuade Avago not to change the explosive supplier from Orica to TES.
As a result of the instructions received from Mr Mauchline, Mrs Baker said Ruskin did not specify, order or supply the explosive emulsion used for the production blast. This was done by Avago, which is consistent with the evidence of Mr Mauchline (although nobody seems to know who did the calculations for TES).
Mrs Baker produced Mr Hart's drilling schedule obtained from his daily worksheets for 19 – 25 August 1999 to confirm Ruskin's records that it drilled 128 holes to a depth of 14 m for the production blast. Mrs Baker said that Mr Hart and Mr Ropata charged and blasted the production blast holes on 26 August 1999. Mr Ropata was employed by Ruskin as a shotfirer. Her evidence in regard to their activities on 26 August 1999 was derived from their daily worksheets, being business records of Ruskin.
Mrs Baker prepared a monthly invoice for Avago for the drill and blast services provided by Ruskin at the Quarry from 9 August 1999 to 26 August 1999. The invoice total was $37,401.23, was dated 31 August 1999 (over 10 years ago) and payment was required within 30 days. Attached to the invoice were a number of summary sheets containing particulars of Ruskin's costs for the services provided. The invoice included the cost of drilling and blasting the overburden and drilling for the production blast, and for the role that Ruskin played in the production blast. The cost of the overburden drilling and blasting between 9 August 1999 and 14 August 1999 was calculated by Mrs Baker to be $16,137.42. Dr MacMillan subsequently confirmed (at my request) that the direct costs incurred by Ruskin in relation to the services provided to Avago for the production blast was $21,124.61.
The evidence of Mrs Baker was that Avago had not paid Ruskin's invoice of 31 August 1999 of $37,401.23 or any amount. However, I note in passing, Mrs Baker said that, after Ruskin commenced these proceedings, Mr Chisholm (a director of Avago) telephoned her and suggested it would be cheaper for both parties to drop their respective claims and walk away. Instead of discussing the matter, Mrs Baker told Mr Chisholm that he should not be ringing her, and that any negotiations should be done by the parties' respective lawyers. I am not sure why the plaintiff led this evidence, but after 10 years of litigation, given the amounts in issue, I suspect there is more than an element of truth in what Mr Chisholm said. But, as parties have often been heard to say to their solicitors before trial, "it is the principle which matters". Provided they are prepared to fund their lawyers to pursue arguable claims, it is of course their right to have the issues in dispute determined by the Court on the available evidence and according to law.
Mrs Baker gave evidence that it was Ruskin's usual practice to include in its quotation for blasting, pricing for any necessary secondary blasting at an hourly rate. Mrs Baker's facsimile quotation to the defendant of 5 August 1999 included a quotation for secondary drilling at a rate of $195 per hour. Avago could have sought, if it had wished, to invoke this rate for any drilling necessary to deal with the area of the failed blast.
In response to Avago's counterclaim for loss and damage alleged to have arisen out of the failed production blast, Mrs Baker gave evidence that Ruskin's quotation to carry out secondary blasting in relation to the 30 blast holes, including mobilisation and demobilisation of the rig, would have been an estimated sum of $7,241.66 pursuant to the terms of the agreement if Avago supplied the Blastmax explosive emulsion again (which she estimated would have cost about $3,000). Mrs Baker said that, if Ruskin had been asked to use and supply Orica explosive emulsion, the cost of the explosive would have been about $2,000 extra, that is, about $5,000. It follows from her evidence that, in her opinion, if Avago had engaged Ruskin to undertake secondary blasting it would have cost about $12,241. However, this cost did not include a maximum of three days which, in her opinion, was required for an excavator to clear the section of the bench of the failed blast. It must also be noted that she did not see the aftermath of the production blast.
Mrs Baker was cross-examined briefly. Her evidence was that this was one of the last jobs Ruskin did before the sale of its business to Century Drilling on 1 September 1999. She said her estimate for secondary blasting in relation to the 30 unfired holes was based on her discussions with Ruskin's shotfirers and that she was unable to comment on additional work required because of any overhang and other safety issues. Mrs Baker maintained she remembered the detail of her telephone conversations with Mr Mauchline and that her evidence about these discussions was her precise recollection of what had been said. Otherwise she was not challenged in cross‑examination about her evidence.
The credibility of Mrs Baker and the reliability of her evidence in relation to the basis upon which Ruskin was engaged by Avago was not, in my opinion, seriously challenged by Avago, and nor could it have been on the evidence before the Court. I had the opportunity to observe Mrs Baker giving her evidence and have no reason to discount or reject her account of her telephone discussions with Mr Mauchline. I find her evidence was truthful and reliable and reflected the basis upon which Avago engaged the services of Ruskin to conduct drilling and blasting operations at the Quarry in August 1999.
There has obviously been a considerable lapse of time since the dispute arose. However, I am satisfied throughout that course of time that Mrs Baker has been proofed and has a recollection of the relevant events. She said herself in cross‑examination:
"I actually do remember a lot, it having been ongoing for so long, and I've had a lot to do with the case."
Mrs Baker was not challenged in cross-examination about her ability to recall the content of the relevant telephone discussions accurately. Any competing version or contentions of Mr Mauchline were not put to her in cross‑examination. It should be noted that Mrs Baker's witness statement prepared and exchanged for the purpose of the trial was amended in material respects in the course of her evidence. This was not only as a result of objections by counsel for Avago, but also to clarify her evidence as to which party estimated the quantity of explosive required for the production blast. Ruskin contends this was done by Avago, but the evidence in this regard is equivocal as to who actually was involved in the calculations and when they were done. I am not persuaded that Ruskin liaised with TES for the supply of the BlastMax used for the production blast.

(b) Damon Kylo Ropata

Mr Ropata gave his evidence-in-chief in accordance with his proof of evidence which was amended in the course of his evidence. After obtaining work in the mining industry with other employers as a shotfirer, he was employed by Ruskin between 29 June 1999 and 1 September 1999 as a supervisor/shotfirer. He obtained his Shotfirers Permit (Class 1 Explosives) on 11 February 1999.
Mr Ropata said that while working for Ruskin he was required to undertake various duties including supervising/shot-firing, drilling, organising daily blasting activities on site and liaising with clients, monthly stocktake of materials on mine sites, ordering explosives for the site, ordering drilling consumables, supervising drillers and operating loaders. His employment ceased with Ruskin when its operations were taken over by Century Drilling and he remained with Century Drilling as a supervisor/shotfirer for only a few months. His duties were identical with his new employer.
Mr Ropata said that on 25 August 1999 he travelled to the Quarry from Kalgoorlie. He relied upon a review of his daily worksheets to give his evidence, although he had some recollection of the events notwithstanding the passage of time. On arrival at the site, he said he was shown around by Mr Mauchline. He inspected his working area and was shown where various consumables required for the work were stored in a sea container.
At the time he was staying at the Carnamah Hotel. Mr Ropata's evidence was that on 26 August 1999 he travelled to the Quarry and commenced work at about 6.00 am (he relied on his daily worksheet and visually checked it in the course of his evidence for his start and finish times). He did not recall when Mr Mauchline arrived at the Quarry that morning. He said he and Mr Hart began putting primers down the 128 holes, which were 14 m deep and which Mr Hart had drilled.
In his evidence, he produced the blast loading report of 25 August 1999 from Quantum Explosives which records that the Blastmax was ordered by the Avago as "the client". The loading report records that the quantity of Blastmax loaded in the first two blast holes was 95 kg each, and the third blast hole was loaded with 96 kg. Thereafter, it records that the remaining 125 holes were loaded with 87 kg each. The total quantity of Blastmax used was recorded as 11,161 kg. His evidence was that the emulsion used was Blastmax 80/20 manufactured by TES and that it was ordered and supplied by Avago. He said that no information or documents were provided by TES, Avago or the truck operator in relation to the Blastmax.
Mr Ropata's evidence was that normally the quantity of explosive to be used in a blasting process is calculated and estimated by the shotfirer, which in this case was himself. However he was not asked to, and did not, estimate the quantity of explosive required or necessary for the task. Mr Ropata produced the delivery docket from Quantum Explosives, which records a date of despatch as 24 August 1999 (two days before the product was used) and the quantity of Blastmax as being 11,161 kg with a special instruction of "1.20 density".
Mr Ropata said he had had no previous experience using Blastmax. He discussed with Mr Hart who, according to him, agreed, that two boosters should be used in each blast hole to increase the velocity of the detonation (I note Mr Ropata was the senior person on site for the blasting). Mr Ropata said he put two boosters at the bottom of each hole and one 24 m lead together with down‑hole delays. He described this process as "double boosting". The two boosters are initiated by a single detonator which is located in each blast hole. His evidence was that the boosters were pulled up off the bottom of the holes so they were not resting at the bottom but suspended in the slurry about 1 m from the bottom. The detonator was placed in one booster. According to his evidence, the boosters used were Orica's 175 gm Anzomex K boosters and TES 150 gm boosters.
Mr Ropata said he used 24 m leads (the holes were only 14m deep) but that this had no effect on the result of the blast because he used the required length only and any excess was wound up into a coil of about 200 mm bunches. Needless to say, the excess coiled leads associated with every hole would have made the working area on the surface adjacent to the holes very 'busy'.
Upon completion of priming, loading of the blast holes commenced. Mr Ropata said he initially loaded about two‑thirds of the blast holes and that the last third of the holes were loaded by Mr Hart. As already mentioned, his evidence was that this was the first occasion in his experience as a shotfirer that he had used Blastmax. He described the process of loading as involving pumping the Blastmax emulsion into each hole from the TES truck through a rubber hose. He said the TES truck operator controlled the flow of the emulsion whilst either he or Mr Hart moved the hose from hole to hole. The emulsion was delivered through the hose surrounded by a very thin film of water to make it slide through the hose because the emulsion was slurry.
During the loading process, Mr Ropata said he heard Mr Hart ask the truck operator to test the density of the Blastmax by taking samples from the blast holes. In my view this is significant because Mr Ropata was the supervisor/shotfirer and Mr Hart his assistant. Therefore, Mr Ropata was the person responsible and in charge and the person who should have been liaising with the TES truck operator.
Mr Ropata said he saw the truck operator take samples from the blast holes on a couple of occasions initially, "but later said he could check the density from the truck". Mr Ropata's evidence was the truck operator did not check the density by taking samples from the blast holes in the latter half of the loading process. In addition, Mr Ropata said that halfway through the loading process the truck operator drove the truck to a washing bay to refill the water tank. According to Mr Ropata, he asked the operator why it was necessary to do so and was allegedly advised that it was to assist the product distribution and further that there may not be sufficient emulsion to complete the operation.
Mr Ropata's evidence was that, in his experience, it was usual practice for the explosive emulsion and prill to be mixed on site but, in this case, the explosive mixture had been mixed prior to the loading. His evidence also was that on this occasion the truck was a pre-mixed tanker truck and that the truck had been on site about 18 hours before the loading of the holes commenced.
Mr Ropata said that he discussed the density of the explosive emulsion with the truck operator and looked over the datasheet. According to him, the truck operator assured him that everything was recorded correctly and that "the product's properties were on target". Because he had no experience using Blastmax, he said he did not take any of these issues further with the truck operator. Instead, he relied upon that advice "and the defendant's decision to select the TES product". This evidence is self-serving and was given by Mr Ropata when he knew that the truck driver would not be giving evidence in the trial.
According to Mr Ropata, after loading some of the blast holes stemming of these holes commenced. According to him, before stemming took place random holes were dipped for stemming height by Mr Hart and the operator of the TES truck who delivered the explosives. Mr Ropata's evidence was that they did this before he was halfway through loading the blast holes. When Mr Ropata started the stemming process, Mr Hart continued with the loading process to the remaining holes. Mr Ropata said the truck operator indicated to him that the stemming height was on target.
Mr Ropata said in his evidence that he:
"… was satisfied that all holes had more than sufficient gassing time as the stemming of the blast had commenced from the rear and these were the ones that were loaded with emulsion first. I also know this from my previous experience with Orica emulsion that gassing took about 20 minutes. As I loaded approximately the first half of the 128 blast holes and Hart loaded the remaining, by the time I commenced stemming, at least half an hour would have lapsed since I started loading. It is also my usual practice using my wrist watch to keep track of time when I'm loading, stemming and blasting."
The evidence is based on what Mr Ropata says he "would" have done. It is not precise as to what he actually did. Mr Ropata said that he began stemming the holes by pouring 14 mm aggregate down each hole and was assisted by Mr Mauchline for short periods. He said Mr Hart also helped stem some of the blast holes after he had finished loading the remaining holes.
Mr Ropata's evidence was that whilst he completed stemming the rest of the holes, Mr Hart started tying the signal tubes and shock tubes together using plastic connectors. Mr Ropata gave evidence that he joined Mr Hart after completing the stemming process. According to him, when they had completed the tie‑in process, they carried out a visual inspection by walking between the rows to make sure all tie‑ins and connections were correct before firing.
Mr Ropata then shot‑fired the production blast. He maintained this was done in accordance with the relevant safety regulations.
Mr Ropata's evidence was that, during the blast, he noticed the noise of the blast was "fragmented and not continuous as I had expected with previous blasts" and, immediately after the blast, he noticed "orange‑tinged smoke rising vigorously through large fractures in the unmoved rock face". His evidence was that he also noticed the shot was still active and it was still smoking from the area at the "south end of the blast pattern (… prepared by the defendant)".
Mr Ropata produced the defendant's blast pattern (trial bundle 90). Mr Ropata said he observed that about one-quarter of the holes had not fractured and still had the stemming in place. His evidence was that, when he investigated, he could not find any trace of explosives and that all the explosives had fired/initiated. However, the blast in about the last 30 holes had failed to explode.
Mr Ropata said that, with Mr Mauchline and Mr Hart, they checked and ascertained that all surface detonators had exploded. His evidence was that, of the 128 holes drilled by Mr Hart, about 30 "which were charged towards the southern end of the blast pattern had blasted poorly". The area was declared unsafe. Mr Ropata's evidence was that he was "shocked by the outcome". On careful inspection he said he noticed leads protruding from the possible poorly blasted holes and they were secured to the surface.
Mr Ropata said he went back to the Quarry on 27 August 1999 (the day after, which suggests time did not permit this to occur after the blast) and, with Mr Mauchline, used a compressor to clean out or "blow the holes" with water. He said that, at the time, he wanted to determine if the boosters had initiated at the bottom of the holes. He said no unexploded Nonel leads or boosters were recovered and, in his opinion, this confirmed that all boosters had fired. He said he recovered the leads from the holes and showed them to Mr Mauchline and that he cut the leads himself to check whether there was any powder remaining. His evidence was there was not which, in his opinion, indicated that all boosters had detonated. He said he left the leads at the administration office with Mr Mauchline. However, in the process of flushing out the holes that still had stemming in them, he said they found traces of emulsion. His evidence on this subject tends to suggest most, but perhaps not all, of the explosive was consumed in the blast.
Mr Ropata said he left the site on 28 August 1999 and returned to Kalgoorlie. He subsequently prepared an incident report, which he faxed to the plaintiff on 31 August 1999. He also prepared a further report on 22 October 2001.
Mr Ropata said that after considering the blast plan, he and Mr Hart decided to initiate the explosion from the middle, going outwards in opposite directions in order to use a free face and not create a back‑break along the surrounding walls. He did not produce a hard copy of this blast plan and did not prepare one at the time. According to him, it was not usual for the shotfirer to prepare a tie‑in plan in small mining or quarry operations, such as Avago's quarry. His evidence was that it was not common practice to prepare a blast plan showing the number of holes, the number in each row, or the basic calculations regarding explosives and accessories required before loading without a surveyor or draftsperson's involvement. They did not do so on this occasion.

Mr Ropata's evidence was, based on his own experience, that it was usual practice for an experienced shotfirer to calculate the amount of explosive per hole and the detonators and accessories required for the work, which were then pre‑ordered and delivered to site. In his evidence‑in-chief, he said he relied upon the TES truck operator for correct gassing on the day, but that neither Avago nor the truck operator provided him with any specific instructions in relation to the use of Blastmax. His experience with other products was that gassing usually takes 20 – 30 minutes and he was not advised at the time that Blastmax would take more than 20 – 30 minutes to gas. It follows from his evidence that he made no independent inquiries himself to ascertain the gassing time necessary for the product or other specifications of the Blastmax product. It my view as the person in charge of the blast it was incumbent upon him to make all necessary inquiries in relation to the product he was using to ensure that the blast was conducted in accordance with its specifications. Whether or not any failure on his part in this regard caused or was contributory to the reason for the result of the blast is moot.
In his evidence-in-chief in response to issues which Avago raised for the purpose of this trial, Mr Ropata contended that the tie‑in plan correctly set the delay sequence as required for the blast. The basis for this opinion was because all the holes were initiated and fired even though the blast had failed in the last 30 holes. He maintained that the use of 24 m long leads had no effect on the result of the blast because any excess lead was wound up into a coil and became ineffective and was not used. Mr Ropata also said that Mr Hart and he correctly marked up the drill pattern provided by Avago. He denied that sufficient time was not taken in marking up the drill pattern (even though he was not present when this was done). He also denied they had used incorrect surface delays for the tie‑in and delay sequence.
Mr Ropata produced his daily worksheet completed by him on 26 August 1999 and relied upon the diagram drawn on the sheet to show the point of initiation and the direction of movement. He confirmed that the bearing "N" (i.e. north) below the diagram was a mistake and that the north end should have been on the left‑hand side, and the point of initiation side was the western face. As already mentioned, Mr Ropata produced a diagram (Exhibit 3.2) which he said depicted the blast sequence and materials used for the production blast. His evidence was that he discussed the direction of the blast with Mr Hart and that they decided the best way was to initiate from the middle across the shot and outwards. This was achieved by creating a spine down the middle, running east to west by the 5 x 42 ms surface delays between the rows.
Mr Ropata explained how, because of the failed blast in respect of the 30 holes, it would have been necessary to carry out secondary blasting after the broken rocks had been removed from the area. He said this would have involved the necessity to drill 30 fresh blast holes and to carry out a secondary blast, which he said was often done when the need arose during the course of his employment as a shotfirer.
In cross-examination Mr Ropata estimated it would take one, possibly two, normal shifts to clean up and remove the broken rocks from the area of the 30 blast holes. He said a shift was 11 – 12 hours, and said that it could easily have been done within three days. According to him an excavator could have accessed the area from the top and the bottom of the floor. His evidence was that he had not met Ruskin's expert witness Mr Hagan and did not rely upon anything he said to prepare his plan of the blast (Exhibit 3.2).
Mr Ropata was unable to explain why he did not list four lines for Nonels in the daily worksheet under the description of accessories used for the production blast. His evidence in cross-examination was that at the time he felt like he was "public enemy number one" and did not feel welcome on the site and that this may have affected his completion of the daily worksheet on 26 August 1999. Mr Ropata denied that the configuration was unusual because of the variety of down‑hole delays used, and he did not accept that in the back row anything other than 200 ms down‑the‑hole delays had been used. His evidence was that on 26 August 1999 he arrived at the Quarry before Mr Hart, although he could not say when Mr Hart arrived. He was positive that he commenced at 6.00 am and he denied Mr Mauchline had come to the Carnamah Hotel and woken him up on the veranda. He said his daily worksheet was prepared on the day of the production blast, 26 August 1999 and accepted that it did not contain a breakdown of the down‑the‑hole delay leads of 150, 175 and 200 ms – just that a total of 128 were used. The fact that no contemporaneous record was made by Mr Ropata as part of his working records at the time leaves open the possibility, and in my view there is reasonable doubt, about what delays were used and in which holes. Over 10 years later there is no documentary evidence confirming the oral evidence of the witness as to what he, by memory, says was the position. In my opinion it is a significant operating omission that no records were kept at the time in this regard.
In re-examination, Mr Ropata said he "guaranteed" that they had used 200 ms down‑the‑hole delays for the back row as depicted on his plan (Exhibit 3.2) and that Mr Hart and he checked everything at the time at least three times. According to him it was "done very pedantically".
In my opinion, Mr Ropata was guarded in his answers and demeanour when giving his evidence. Some allowance must of course be made for the lapse of time since the events in question happened but, on my assessment of his evidence, he was not confident about the matters on which he was examined. In my view, his answers were not always directly responsive to the question and I was left with a sense that he was evasive at times. I was not persuaded or convinced, on the balance of probabilities, that all his evidence was entirely accurate as to what he did, and did not do, on the relevant day. The following two passages of Mr Ropata's evidence in cross-examination, in my view, illustrate the difficulty confronting the Court in regard to aspects of Mr Ropata's evidence. Of course, this might not have been the case if he had given his evidence within a reasonable timeframe of the events so, to this extent, it is accepted that he was put in an unfair position:
"Okay. So you didn't – yourself, you didn't check the column rise, you just went on a time‑based assumption for the gassing, did you? – We didn't have the – we didn't produce paperwork on individual holes. It was randomly done.
And why in this original version of this statement does it say 10 minutes, and now you've changed your mind today to say 20 to 30 minutes for gassing? – It's slang. You just say '10 minutes'. Usually it never takes 10. You're always over 10 minutes. Always.
Okay. You've previously said to your solicitors it was 10 minutes and you're now saying it's 20 to 30 is more accurate, is that correct? – Yes. (T78)
…
Is this slightly unusual, this configuration because of the variety of down-hole delays that you had? – Unusual? No.
And how have you worked this out on the day? What did you use to work out this plan on the day? – What did I use? Experience.
No notebook? – Oh, no. No, I've got to have – doing calculations only in my head.
So it's all done in your head? – Depending on the size of the blast.
Well, this one? – It's usual practice, in my experience.
I'm asking about this blast that went wrong on the day. You did this calculation in your head? Yes or no? – That's correct, yeah.
On the day of the blast, you got there before Mr Hart, didn't you? – I believe I did, yes.
What time did he get there? – I – I couldn't – I couldn't tell you, really. No idea.
Well, was he just after you, or was he there at lunchtime or was he ‑ ‑ ‑? – Oh, he was just after me.
‑ ‑ ‑ there halfway through the morning? – It was just after me.
How much after you? – No idea." (T79 – 80).
Having had the opportunity to see Mr Ropata give his evidence and to reflect on it, my sense is that he was informed to some extent by his working experience in the industry after the time in question, and by his knowledge of the issues in the trial. Much of his evidence was not given based on his memory of the events. He relied heavily on his daily worksheet and other documents prepared at the time to give and construct his evidence. Notwithstanding this, he maintained a veneer that he had a strong recollection of the events at the time and what he did with Mr Hart on the day to facilitate the production blast.
In my view it is noteworthy that he was unable to recall when Mr Hart arrived at the site on 26 August 1999 and, given that they were staying in the same place, did not offer any explanation why they would not have gone to work at the same time. He was cross‑examined on the basis that he may have made a mistake, through to the contention that he was late on site as a result of being intoxicated the previous evening. This was all denied and there was a conflict in the evidence between him and Mr Mauchline on this issue. The plaintiff seeks to rely on the recorded start time of 6.00 am on Mr Ropata's daily worksheet on 26 August 1999 which Mr Mauchline initialled. I am not persuaded that this is an accurate record of the time Mr Ropata started work on the day in question. The time recorded conflicts with Mr Mauchline's oral evidence. I note Mr Hart's daily sheet for the same day records that he started work at precisely 7.00 am but finished work one hour after Mr Ropata. In my view that would have been very unlikely. I find that these records, notwithstanding the apparent preciseness as to actual start and finish times, do not accurately reflect the actual time on the day when either Mr Ropata or Mr Hart started work.
I was left with a sense that Mr Ropata relied on Mr Hart in relation to aspects of the decision-making, although he was the person actually in charge on behalf of Ruskin. I note, from Avago's blast pattern notes, that the stemming length was 2 m but it is not clear whether Mr Ropata was given the plan or whether he made any inquiry as to what the stemming length should have been. As an aside, given the passage of time, there was uncertainty at the trial about the actual words and aspects of the plan, which have become unclear and difficult to read over time.
I find that Mr Ropata did not make any proper or specific inquires about the specifications and product that he was using for the blast and that he relied upon the general assurances of the TES truck driver. The density testing of the emulsion was not done as it should have been and the gassing times were just the product of the work tasks associated with the job, rather than any deliberate calculation. In my view, Mr Ropata as the shotfirer should have been concerned at the time about the truck requiring more water and whether or not sufficient emulsion was available for the blast (allegations made by Ruskin now). This is because of the obvious potential of either matter to affect the performance of the blast which, with Mr Ropata's experience and training, would not have been lost on him at the time.

(c) Paul Nicholas Hart

Mr Hart is 50 years old and is a driller/shotfirer. He has held an unrestricted Shotfirers Permit (Class 1 Explosives) since 1993, at which time he became a site supervisor/shotfirer in the employ of Ruskin. That employment commenced with Ruskin in 1988 as a driller/shotfirer's offsider. Like Mr Ropata, he continued employment with Century Resources when it took over Ruskin's business in late 1999.
Mr Hart said in evidence-in-chief that Mr Wes Coutts (Ruskin's safety officer) asked him to travel from Kalgoorlie to the Quarry at Carnamah on 9 August 1999 to carry out "drilling and blasting services" for Avago. When he arrived at the Quarry he met Mr Chisholm, the owner of the Quarry, who introduced him to Mr Mauchline, who was the manager. He said Mr Mauchline took him to the site of the blast and explained to him the format for the drill and blast and gave him a drill pattern. He was instructed initially in relation to the drilling and blasting to remove the overburden. He was asked to drill and blast the overburden to depths of 1, 2 and 3 m. Accordingly, between 9 and 12 August 1999 he drilled 243 holes to a depth of 3 m, 12 holes to a depth of 2 m, and 12 holes to a depth of 1 m - a total of 267 holes.
Mr Hart's evidence was based on his review of his daily worksheets for the period. These were countersigned by Mr Mauchline on behalf of Avago. On 12 August 1999 he informed Ruskin's office at Kalgoorlie that he had encountered water in the holes and that it would be necessary to use an emulsion explosive instead of ANFO. Mr Hart gave evidence of the work he did to drill and blast the overburden (which is not set out in detail because it is not contentious), except to note that the explosive used for the overburden blast was Orica Powergel 2560 which Mr Hart said was delivered by an explosive "mixer truck" on 14 August 1999.
Mr Hart left the site after the successful overburden blast while Mr Mauchline started clearing the overburden. He returned to the Quarry on 18 August 1999 and commenced preparation for drilling the production blast drill holes and undertook some repair work on the drilling rig. On 19 August 1999, Mr Hart said he started marking up the drill pattern based on the pattern given to him by Mr Mauchline on behalf of Avago when he arrived at the Quarry on 9 August 1999.
Mr Hart said he was instructed by Mr Mauchline to drill 14 metre deep blast holes. Accordingly, between 19 and 25 August 1999, he drilled a total of 128 holes to a depth of 14 m. According to him he started work each day at 6.00 am and again his daily worksheets were countersigned by Mr Mauchline. I note that on the day of the blast, 26 August 1999, his daily worksheet records that he started work at 7.00 am (later than usual).
In cross-examination Mr Hart clarified that the total depth of the drill holes was 14 m which he described as "shorthand" for saying he had been asked to drill 12.5 m plus the sub‑drill distance which was noted on the drill pattern plan provided to him. In re-examination, Mr Hart further explained (for the first time) that as part of his "work ethic", he would add on about 10 per cent, and that he added on 100 to 200 mm in addition to the sub‑drill component to arrive at the 14 m deep hole in each instance.
The amount of the sub‑drill specified by Avago on the drill pattern plan is not clear (it appears there is something written on the plan but it is illegible) but Mr Hart's evidence was that it would have been there as a matter of course. Mr Hart said the 10 per cent in this case meant that the drill hole would go through the bench level into the floor level:
"… so that when the blast actually takes place in the ground, it won't shear the rock clear off. It will actually - as the explosion occurs, it'll come up in a V‑shape and get to a point where it starts interacting with the other holes and just ‑ and take ground off to a certain level, but it will not ‑ the floor will actually have the little divots in it and we use that 10 per cent added on to keep the floor level. It'll be broken slightly, but it won't be Humpty Dumpty, if you know what I mean, sir."
Mr Hart said that in the afternoon on 25 August 1999 the explosive truck, being a "tanker truck", containing Blastmax 80/20 arrived at the Quarry. According to him it was a storage truck and not a mixer truck and there was only one truck operator. Mr Hart said the truck operator introduced himself as "Gavin" and said that he had come from a mine site at Mount Magnet.
Mr Hart's evidence was that, at the time, he was concerned about the reliability of Blastmax. He had been advised by Mr Mauchline that it was being used instead of Orica's Powergel because it was a cheaper product. When the truck arrived on 25 August 1999, Mr Hart said he still had to complete drilling the last 16 holes to a depth of 14 m. Mr Hart said he had not used Blastmax prior to this occasion. His evidence was that neither the truck operator nor Avago gave him any specific instructions as to the effectiveness of Blastmax or any specific period for gassing, or any instructions in respect to its use.
Mr Hart said that on 25 August 1999 Mr Ropata arrived to assist him and that they stayed overnight at the Carnamah Hotel and discussed the work to be done the following day. His evidence was that he probably consumed about six 7‑ounce beers which he equated as one jug of beer and maintained that he was not intoxicated but had drunk "responsibly". He said that he and Mr Ropata "had drinks after dinner". I do not accept this evidence and find that they were drinking together before and at dinner, not just after dinner. I also find that they made a good night of it, such that they did not surface together the following day so that they could go to the Quarry together at the same time. Mr Hart arrived after Mr Ropata at the Quarry. In my view this placed some time pressure on the work to be done and also affected the ability of Mr Ropata and Mr Hart to carry out the work.
Mr Hart, relying upon his daily worksheet, said he arrived at the Quarry on 26 August 1999 at about 7.00 am. This was late for him based on his evidence of his previous start times. He said Mr Ropata was already at the Quarry and that they continued to prepare the site for the production blast. There was no explanation from Mr Hart as to why he arrived after Mr Ropata, when they were staying in the same hotel and he was the person who had been on the site and done all the preparatory work, or why he arrived later than his previous start times at 6.00 am.
Mr Hart's evidence was that Mr Ropata began priming by putting down single detonators with double boosters in the 128 holes in readiness for firing the shot. I find that Mr Ropata had started the work before Mr Hart arrived on site. He said they discussed and agreed to use two boosters in each blast hole at the bottom which means a single detonator with two 150 – 175 gm boosters with 24 m leads down‑the‑hole delays. He said they used the 24 m leads because they were the only length available at the site. He used clips to clamp the leads to stop the extra length of the lead being used. I infer that leads specific for the task had not been arranged by Ruskin which is consistent with the sale of the business and using up existing inventory and stocks. He stated the purpose of using double boosters was because of the depth of the holes and in order to increase the velocity of the detonation. He said the boosters used were Orica 175 gm Anzomex K primers and TES 150 gm primers. These decisions do not appear to have been made with any reference to the specification or qualities of the BlastMax.
Mr Hart said that once they had completed the priming process, they then commenced the next process which was loading the holes. He said this involved pumping the explosive emulsion into each blast hole. He said the truck operator controlled the flow of the emulsion through a hose into each blast hole while either he or Mr Ropata moved the hose from blast hole to blast hole. In this regard Mr Hart said that Mr Ropata loaded approximately the first half of the blast holes with the truck operator and that he loaded the remaining holes.
Mr Hart said that during the loading process he asked the truck operator to test the density of the Blastmax by taking samples from the blast holes. He said the truck operator did this and took samples from blast holes in the first half of the charging process. However, when he was asked about the need to take more samples, Mr Hart said the truck operator told him that he would check the density from the truck and that he did not need to physically walk to the blast hole every time. Mr Hart said, as he did not know much about the product he believed what the truck driver told him. Mr Hart gave evidence that he recalled the truck operator mixed water into the explosive when about half of the loading was done. His evidence was that, towards the end of the loading the truck operator moved the truck and parked it on a ramp facing upwards with the tank at the bottom. I infer from this action that the operator was placing the load in the best possible position to remove and use the entire content of the tanker. I note that the TES truck driver was not called by either party in relation to this body of evidence, which was put in issue in these proceedings.

The plaintiff's expert evidence as to the likely cause of the failed blast was adduced in response to the defendant's contention that the cause was due to the out‑of‑sequence delays in the tie-in plan used by the plaintiff's shotfirers. The plaintiff's defence to this proposition (apart from denying the underlying fact) was to argue that the cause was in fact other matters which included the alleged poor quality of the Blastmax, and certain operational matters (density, gassing, and excess water). However, the defendant in reply contended that each of the operational matters was in fact a matter which Mr Ropata and Mr Hart bore ultimate responsibility as part of the plaintiff's obligation to perform the services with due care and skill. The plaintiff denied it owed any duty in respect of these matters and said that they were the responsibility of the truck operator who delivered the Blastmax to site (which I do not accept).
As a result, the final position is that irrespective of any findings of contractual responsibility between the parties or alleged statutory liability of the plaintiff to the defendant, the Court is, because of the lack of persuasive evidence of the underlying facts, not able to consider the expert opinions as to possible causes of the failed blast. It follows that even though a consideration of the expert evidence might led to a conclusion that the likely cause of the failed blast was a combination of a higher than optimum density of the emulsion in the holes and inadequate gassing time this would, in my view, be baseless conjecture because the evidence of the underlying facts in either case have not been proved. The quality of the evidence of the factual matters is insufficient to be conclusive to the required standard, and those facts which are not in dispute are not on their own sufficient to allow the relevant inference or inferences to be drawn. The parties' delay and their failure to investigate the matter and identify the issues at the time of the failed blast are therefore, I regret to say, fatal to a proper determination of the cause of the failed blast. I note Mr Coutts in his investigation report of 30 August 1999 states that he had spoken to Mr Mauchline and asked him to take samples of the emulsion from the failed holes for examination. There is no evidence this was ever done.
It follows from the above that the defendant has failed to prove that there was any causative loss arising out of a relevant breach of the plaintiff's standard of care. It is also the case that the Court does not need to assess the defendant's claim for damages.

Key findings of fact

1.The plaintiff did not contract with the defendant on the basis that it agreed to provide drilling and blasting services which would produce crushable rock for the defendant of a size less than 600 mm in diameter.
2.The defendant has not established on the available evidence that Mr Ropata and Mr Hart tied‑in the blast sequence in a way that would have permitted any out‑of‑sequence firing.
3.Mr Ropata and Mr Hart did not use reasonable care and skill as the shotfirers in charge of the blast to ensure that sufficient cup density testing was done (which is not to say this was causative of the failed blast).
4.Mr Ropata and Mr Hart did not use reasonable care and skill as the shotfirers in charge of the blast to ensure that sufficient time was allowed for the holes in the area of the failed blast to fully gas before loading the stemming (which is not to say this was causative of the failed blast).
5.The defendant has not established on the available evidence that the density of the explosive emulsion was too high when loaded into the blast holes, or that there was excess water present used for lubrication, or that the explosive had not in fact gassed properly before stemming occurred.
6.The reason for the failed production blast cannot be attributed to any one single cause relied upon by the expert witnesses, either on its own or in combination with other possible causes, as the most likely cause. Each identifiable cause was a possible cause but the relevant underlying facts have not been proved on the evidence.

Pleadings and findings

The parties' pleadings, as it often the case, were amended during the course of the trial. It is not necessary for present purposes to refer to the pleadings in detail. In essence the plaintiff's claim is a claim for payment for certain drilling and blasting services provided to the defendant at the Quarry in August 1999.
The defendant contends that the terms of the agreement included, as a matter of proper construction, an express, alternatively implied, term of the contract that the "drilling and blasting was to be carried out to produce rock which was suitable for the defendant's crushers which did not exceed approximately 600 mm in diameter in accordance with the defendant's requirements". This requirement, in the defendant's outline of closing submissions, is shortened to "crushable rock".
In addition the defendant relies upon s 74(2) of the Trade Practices Act1974 to contend that there is a statutory implied term that the services of conducting the blasting would be fit for the purpose or result of producing crushable rock of the stated size and that the term to be implied pursuant to the subsection creates a strict liability for failure to produce the result of crushable rock. In the alternative to any contractual term, the defendant relies upon s 74(1) of the Act for the statutory implication of a warranty that the drilling and blasting services would be rendered by the plaintiff with due care and skill.
The plaintiff does not dispute that it was a term of the contract or, alternatively, an implied warranty that the services rendered would be done so with proper due care and skill and that any materials it supplied in connection with those services would be reasonably fit for the purpose. The plaintiff strongly disputes that it was an express term or a statutory implied term that the particular purpose for which the services were required or the result to be achieved were made known to the plaintiff. In this regard my findings (already made) are that the defendant has failed to prove on balance that there was any such express term or implied statutory term to the effect that the plaintiff had any obligation or responsibility to ensure that the blast produced crushable rock less than 600 mm in diameter.
I find that it was a term of the agreement between the parties that the plaintiff, by supplying licensed shotfirers to conduct the blasting at the defendant's quarry, owed the defendant a duty that the service would be undertaken with due care and skill.
The defendant in its outline of closing submissions refers to the basic principal that "he who asserts, must prove". The defendant also says that "the proof must be on the balance of probabilities, not with possibilities". With respect, I agree. As the defendant says at par 32 of its outline of closing submissions:
"Where direct proof is not available then the burden of proof on the balance of probabilities is only discharged if the circumstances appearing in evidence give rise to a reasonable and definite inference; they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture. See Luxton v Vines (1952) 85 CLR 352 at 358."

Defendant's calculation of alleged loss and damage

The defendant did not keep any records of actual equipment use and times involved in dealing with the result of the failed blast. It would have been a simple matter for the defendant to have kept time and work records from which a direct cost associated with dealing with that part of the blast which failed could have been calculated. Instead the defendant sought to prove its loss and damage theoretically on the basis of a bench top study using in part evidence of actual cycle times of machinery and equipment at the Quarry. I accept in theory it is possible for the defendant to prove its loss and damage in this way, but I am not satisfied that the evidence in this regard is reliable. For example, an aspect of the plaintiff's loss and damage is the cost associated with the movement of the unusable rock from the blast to a muck pile. The costs in this regard are derived in part from an estimate of the loose cubic metres involved based on a calculation of the actual banked cubic metres at the time of the blast. Mr Delaney at par 23 of his report dated September 2009 (Exhibit 6.12) says that his calculations "based on examination of the survey contours show that at March 17, 2001 there was 8,945 lcm in the waste dump area, and that this had increased to 11,018 lcm by February 3, 2006". He accepted in his evidence that the figure of 8,945 lcm at that point in time was "unreliable" because he could not discern, and did not know, if other material had been placed in the pile. Mr Stokes in his report dated September 2009 (Exhibit 6.9) notes that he relied upon Mr Delaney's report of survey volumes and machinery cycle times. In his evidence he said he had also relied on other matters not noted in his report and he gave examples. This of course is (like Mr Delaney's reports) unsatisfactory because the evidence being of an expert opinion must detail the factual material relied upon so that the other party can test the opinions ascribed in the report and the Court can know from what information they have been derived. The defendant says that the defendant's calculation prepared by Mr Stokes is not affected by the acceptance of Mr Delaney that part of his final report is unreliable.
There is a further issue, with respect, based on the comment by Mr Stokes in his report at par 6 (Exhibit 6, p 167) that:
"6. Movement of material from the blast muck pile.
The Aerial surveys completed during the excavation process have allowed for a detailed material flow record to be developed. The original blast volume has been cross‑checked against stockpile survey volumes to ensure that there is an accurate material balance.
The movement of material during the excavation and rock‑breaking (when required) of the blast muck pile and relocation to the two dedicated stockpiles is shown in Attachment 3 – Blasted Muck pile – Volume Movement and Machine Hours and is further summarised in Attachment 10 – Material Movement Summary."
Attachment 3 demonstrates that the volume of the loose cubic metres from the failed blast is a relevant consideration at different points in time by reason of the costs the defendant would have incurred over the nine‑year period that it contends it took to deal with the blast waste. Obviously the costs would vary over time even though the way in which the loose cubic metres were dealt with might have been the same. Therefore, in my view, it is necessary to know with some precision when the waste material was moved and otherwise dealt with because the costs to be applied would depend on the time in question.
In reaching the view I have in relation to the defendant's evidence concerning its alleged loss and damage I accept that courts will, to a degree, in some cases have to approach the task of fixing a party's loss and damage with a degree of robustness dependent on the issues in question. Regretfully in this case I am not persuaded that there is sufficient certainty and credibility attaching to the defendant's evidence to permit any fair or just assessment to be made of its alleged loss and damage. As mentioned above, the law requires a degree of exactitude, which in my opinion, is not present in this body of evidence with the result that it is inconclusive and does not permit the Court to make findings.

Conclusion

For these reasons, in my opinion, the plaintiff is entitled to judgment for its claim of $36,962.03 and the defendant's counterclaim must be dismissed.
This is the result even though I have made findings against the plaintiff in relation to the fact that its shotfirers, in my opinion, as part of its duty to perform the blasting services with due skill and care, failed to ensure that the density of the explosive emulsion was adequate and that the explosive was fully gassed in the holes which failed.
By reason of the factual findings on the available evidence I was unable to form a concluded view on the cause or causes of the failed blast because the relevant underlying facts in this regard were not proved by the defendant on the balance of probabilities. The Court is not permitted to speculate or conjecture about possibilities if the evidence available is inconclusive and not persuasive.
Finally, I would observe that there is an irony, and I am sure the defendant will feel an injustice, in the outcome. The plaintiff's claim is successful, but only by default. The fact is that 11 years have elapsed since the events in question occurred. This lapse of time, compounded by the failure of both parties to secure the evidence at the time of the events in question, has in my opinion resulted in a non-trial of the real issues that potentially arose in this action.