Selman v Cyrus Gold - [1996] QSC 204

IN THE SUPREME COURT

OF QUEENSLAND

No. 251 of 1993
Brisbane

Before: Mr Justice Ambrose

[Selman v. Cyrus Gold]

BETWEEN:

ALI SELMAN
Plaintiff
AND:

CYPRUS GOLD AUSTRALIA CORPORATION
(ACN NO 000 878 302)
Defendant

REASONS FOR JUDGMENT - B W AMBROSE J.

Judgment delivered 02/08/1996

CATCHWORDS: NEGLIGENCE - personal injuries - breach of statutory duty - Metalliferous Mining Regulations 7.1.1(a) and 7.4.1(e) - foot injured when working with truck in mine -contributory negligence.

Counsel:Mr W. Campbell for the plaintiff
Mr M. O'Sullivan for the defendant

Solicitors:Ebsworth & Ebsworth for the plaintiff
Corrs Chambers Westgarth for the defendant

Hearing Date: 12-13 October 1995, 22 April 1996 and 13 May 1996.

IN THE SUPREME COURT

OF QUEENSLAND

No. 251 of 1993
Brisbane

Before: Mr Justice Ambrose

[Selman v. Cyrus Gold]

BETWEEN:

ALI SELMAN
Plaintiff
AND:

CYPRUS GOLD AUSTRALIA CORPORATION
(ACN NO 000 878 302)
Defendant

REASONS FOR JUDGMENT - B W AMBROSE J.

Judgment delivered 02/08/1996

In 1990 the plaintiff was employed by the defendant as an underground miner at Selwyn mine near Cloncurry in north-west Queensland; he had been trained as an underground miner in Yugoslavia. He had worked in that country and had migrated to Australia where he continued to work in that occupation at various mines over a period of about 4 years before he was injured on 28 February 1990.
           At the time of his injury he had been working at the defendant's mine for about three months.
           From time to time working underground he was required to drive a vehicle known as a Wagner truck, the function of which was to convey ore mined underground to the surface where it was unloaded for treatment.
           The defendant's mine worked on a rostered system. Underground miners worked a roster system of 14 twelve hour days on and 7 days off. Because the mine was located in an inaccessible region this system was preferred to other shift work systems.
           On the day of his injury the plaintiff was working day shift on the last day of his 14 day rostered work shift. The accident occurred about 2 p.m. He had apparently had a lunch break an hour or two earlier. His shift was to finish at 7 p.m. that night. The truck he was driving carried a load of about 35 tons. It was diesel powered and the plaintiff sat in a cabin from which he controlled a steering wheel, accelerator and brake. Both accelerator and brake were near the floor of the cabin. The right foot was used for the accelerator and the left foot for the foot brake. There was also a hand brake that could be applied.
           It took about 20 minutes to drive from the ore discharge level on the surface to the ore loading level below ground. Once the loading area had been reached it took about 10 minutes for the truck to be loaded. It was the practice for persons driving the trucks to leave the truck while it was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Selman v Cyrus Gold

Details

AGLC: Selman v Cyrus Gold [1996] QSC 204
Case: [1996] QSC 204
Decision Date: 2 August 1996

CaseChat Overview and Summary

In the Supreme Court of Queensland, Ali Selman (the plaintiff) sued Cyprus Gold Australia Corporation (the defendant) for personal injuries sustained while working as an underground miner at Selwyn mine. The plaintiff alleged that he was injured when his left foot was crushed between a stanchion on the truck he was driving and the wall of the tunnel. The court was required to determine whether the defendant was negligent or breached statutory duties that caused the plaintiff's injury. The court found that the plaintiff's evidence was not credible and that he had given a false account of the events leading to his injury. However, the court found that the defendant had breached statutory duties under Regulations 7.1.1(a) and 7.4.1(e) of the Metalliferous Mining Regulations of 1985 by not sufficiently fencing or guarding the cabin of the truck to prevent the plaintiff's left foot from being put outside. The court also found the plaintiff guilty of contributory negligence and apportioned responsibility between the plaintiff and the defendant as 60% to the plaintiff and 40% to the defendant. The court assessed the plaintiff's damages for pain, suffering, loss of amenities of life, loss of income, loss of future earning capacity, past Griffiths v. Kerkemeyer damages, special damages, and future expenses. The court gave judgment for the plaintiff for the sum of $262,115.61.

Orders