Simpson v Alliance Contracting Pty Ltd
[2016] WADC 158
•17 NOVEMBER 2016
SIMPSON -v- ALLIANCE CONTRACTING PTY LTD [2016] WADC 158
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WADC 158 | |
| Case No: | CIV:3900/2014 | 15-18 & 22 AUGUST 2016 | |
| Coram: | STONE DCJ | 17/11/16 | |
| PERTH | |||
| 28 | Judgment Part: | 1 of 1 | |
| Result: | Claim dismissed | ||
| PDF Version |
| Parties: | ANDREW JAMES SIMPSON ALLIANCE CONTRACTING PTY LTD FRIOB PTY LTD |
Catchwords: | Tort Contract Product liability Manufacturer's liability Duty of care to employer who purchased machine Duty of care to employee injured by machine Reasonable foreseeability of risk of injury Whether safety features required to guard against injury |
Legislation: | Civil Liability Act 2002 (WA) Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA) Mines Safety and Inspection Act 1994 (WA) |
Case References: | Adelaide Chemical and Fertiliser Co Ltd v Carlyle (1940) 64 CLR 514 Astley v Austrust Ltd (1999) 197 CLR 1 BP Refinery (Western-Port) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 Department of Housing and Works v Smith [No 2] [2010] WASCA 25 Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317 Fitzpatrick v Job t/as Jobs Engineering [2007] WASCA 63 Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 Helicopter Sales (Australia) Pty Ltd v Rotor-Work Pty Ltd (1974) 132 CLR 1 Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 Onetech Pty Ltd v Shaw [1999] WASCA 289 Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 Rosenberg v Percival (2001) 205 CLR 434 Scope Machinery Pty Ltd v Ross [2009] WASCA 100 Vairy v Wyong Shire Council (2005) 223 CLR 422 Wyong Shire Council v Shirt (1980) 146 CLR 40 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
ALLIANCE CONTRACTING PTY LTD
Defendant
FRIOB PTY LTD
Third Party
Catchwords:
Tort - Contract - Product liability - Manufacturer's liability - Duty of care to employer who purchased machine - Duty of care to employee injured by machine - Reasonable foreseeability of risk of injury - Whether safety features required to guard against injury
Legislation:
Civil Liability Act 2002 (WA)
Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA)
Mines Safety and Inspection Act 1994 (WA)
Result:
Claim dismissed
Representation:
Counsel:
Plaintiff : No appearance
Defendant : Ms B A Mangan
Third Party : Mr T H Offer
Solicitors:
Plaintiff : Not applicable
Defendant : Moray & Agnew
Third Party : Sparke Helmore
Case(s) referred to in judgment(s):
Adelaide Chemical and Fertiliser Co Ltd v Carlyle (1940) 64 CLR 514
Astley v Austrust Ltd (1999) 197 CLR 1
BP Refinery (Western-Port) Pty Ltd v Shire of Hastings (1977) 180 CLR 266
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
Department of Housing and Works v Smith [No 2] [2010] WASCA 25
Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317
Fitzpatrick v Job t/as Jobs Engineering [2007] WASCA 63
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540
Helicopter Sales (Australia) Pty Ltd v Rotor-Work Pty Ltd (1974) 132 CLR 1
Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Onetech Pty Ltd v Shaw [1999] WASCA 289
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492
Rosenberg v Percival (2001) 205 CLR 434
Scope Machinery Pty Ltd v Ross [2009] WASCA 100
Vairy v Wyong Shire Council (2005) 223 CLR 422
Wyong Shire Council v Shirt (1980) 146 CLR 40
- STONE DCJ:
Introduction
1 On 16 February 2014 the plaintiff, Mr Andrew Simpson was severely injured in a mine site accident at the Golden Grove Gossan Hill Open Pit Mine, a copper mine 450 km north-east of Perth.
2 Mr Simpson was driving one of two wheeled-loaders fitted with stemming buckets. The loader drivers had been instructed by their supervisor to backfill the reverse circulation drilling holes (RC holes) with ungraded waste material that was variable in size and contaminated with organic material. The backfilling of RC holes with a stemming bucket was usually done with graded stemming material.
3 Whilst backfilling an RC hole, the discharge chute of the stemming bucket on the loader driven by the other driver became blocked. Mr Simpson alighted from his loader. He made his way under the suspended stemming bucket of the other loader and attempted to remove the obstruction by reaching his left hand up into the discharge chute. The driver of the loader inadvertently engaged the hydraulically operated sliding gate in the discharge chute whilst Mr Simpson's left hand was in the discharge chute causing severe amputation and laceration injuries.
4 Mr Simpson was a 31-year-old shot firer employed by the defendant Alliance Contracting Pty Ltd which carried on the business of contract drilling, blasting and other mining services at the mine site.
5 The third party, Friob Pty Ltd, which traded as Project Industries, had manufactured and supplied the stemming bucket at the request of Alliance Contracting as a suitable attachment to its WLO5 Caterpillar 930G wheeled loader.
6 The stemming bucket was an open topped quick hitch type of bucket of metal fabrication for use at a mine; with a 125 mm hole at the centre of the underside of the bucket; with a small tubular discharge chute fitted to the underside of the bucket; fitted with a hydraulically operated sliding gate between the underside of the bucket and the discharge chute designed when opened to permit fill material to fall from the stemming bucket through the discharge chute to the ground below; and designed to be operated by controls within the cabin of the loader.
7 Mr Simpson brought a claim against Alliance Contracting for negligence, breach of statutory duty and damages. Subsequently Mr Simpson, Alliance Contracting and Friob consented to judgment for Mr Simpson against Alliance Contracting.
8 Alliance Contracting accepted the accident was caused by its negligence. Alliance Contracting claims Friob's negligence, breach of contract and breach of statutory duty caused or contributed to the accident and it seeks a contribution from Friob towards the settlement sum.
9 Alliance Contracting claims it contracted Friob for its expertise and Mr Simpson's injury could have been avoided if Friob had ensured that the moving parts of the stemming bucket were guarded.
10 Alliance Contracting claims Friob's failure to perform its part of the contract for the design, manufacture and supply of the stemming bucket, and failure to guard a moving part on plant that it designed, manufactured and supplied for use by Friob's employees, caused Mr Simpson's injury when his hand came in contact with an unguarded moving part of the stemming bucket.
11 Friob denies that Alliance Contracting is entitled to the relief sought. Friob claims Mr Simpson's injuries were not caused by any breach of duty, breach of contract or breach of statutory duty on its part. Friob claims Mr Simpson's injuries were caused by a combination of his own actions and the failure of Alliance Contracting to provide a safe system of work for its employees.
12 Friob claims Mr Simpson's and the other loader driver's actions represented a serious departure from safe operating practice and common sense. The stemming bucket was designed to be used by a single worker located in the cabin of the loader. It was not reasonably foreseeable to Friob because of obvious and significant risk that employees of Alliance Contracting such as Mr Simpson would approach the loader whilst it was under operation; position themselves under an unsecured suspended load; and insert their arm into the discharge chute in an attempt to manually clear a blockage.
The issues
13 Whether it was reasonably foreseeable to Friob that employees of Alliance Contracting such as Mr Simpson may use a variety of methods to clear a blockage at the gate of the discharge chute and they could thoughtlessly, inadvertently, carelessly or deliberately insert their hand or arm into the discharge chute in an attempt to manually clear a blockage at the gate.
14 Whether Friob's failure to incorporate a guard on the moving parts of the gate of the discharge chute of the stemming bucket was a cause of the accident.
15 In their pleadings Alliance Contracting alleged that the stemming bucket became blocked from time to time and Friob alleged that if that happened, the blockages were due to Alliance Contracting using waste material in the stemming bucket rather than stemming material. However, it emerged at trial that there was no admissible evidence that prior to the accident there were any blockages caused by the use of stemming material or waste material and so blockages prior to the accident were no longer an issue.
The evidence
Matthew Miller
16 Mr Miller was a civil engineer. At the time of the accident he was Alliance Contracting's mining manager and based in Perth.
17 Since 2008 Alliance Contracting had purchased four stemming buckets from Friob because Friob 'would most likely provide the best product that would suit (Alliance Contracting's) requirements'.
18 Mr Miller explained the stemming process, the purpose of stemming buckets in that stemming process, how stemming buckets were operated and the difference between a blast hole and a RC hole.
19 Briefly, the stemming bucket was used to transport fill material from the stockpiles on site to the designated blast hole or RC hole so that the material could then be dispensed via the discharge chute into those holes at a controlled rate. A blast hole was filled with graded stemming material to contain the explosion and a RC hole wasbackfilled with ungraded waste material. Alliance Contracting had purchased from Friob the open top 2 cubic metre stemming buckets with a discharge chute of 125 mm in diameter. A wheeled loader with a quick hitch attachment on its boom hooked onto the stemming bucket. Hydraulic hoses were connected from the sliding gate mechanism within the stemming bucket to the hydraulic hoses on the loader. The hoses had a quick snap connection. The hoses to the loader were connected to the controls in the cab of the loader which allowed the operator/driver to operate the sliding gate within the bucket itself. The sliding gate mechanism was housed at the bottom of the bucket and directly below it was the discharge chute. When the blast hole or RC hole was filled the operator/driver used the controls in the loader to close off the bucket to stop the flow of material. The sliding gate had two holes. It had an internal hole designed within it, which was 125 mm in diameter. It had an external hole or bailing hole of 130 mm in diameter so that if rocks were pushed through the aperture of the housing of the holes then the rocks would fall down through that hole rather than jam the sliding gate. The gate itself travelled within the mechanism plate. When the bucket was closed the actual gate itself protruded from the side of the bucket showing the external hole and the holes lined up. When the bucket was open the gate would slide backwards so the hole was then positioned above the chute so that the material could freely flow from it. The stemming bucket weighed 1,100 kg. When the stemming bucket was full of rock it would weigh between 4 ½ and 5 tonne.
20 For more than 12 months prior to the accident Alliance Contracting's client, the mine operator, had made available two different types of fill material for filling blast holes and RC holes at the mine. The fill materials were referred to as either stemming material or waste material. The stemming material, which was to be used for filling blasting drill holes, was a graded product, a single size and supplied as a 14 mm product. It had been crushed and screened. The waste material, which was to be used for backfilling RC holes, was a by-product of the mining process. It was a crushed product but it had not been through the screening process. It varied in size from very fine material to 60-plus mm aggregate particles.
21 Mr Miller considered the waste material was more prone to blockages than the stemming material but it [the waste material] was still able to be used efficiently 'and never at any time was it … raised by … myself or anyone at Alliance [Contracting] … that using the waste material was … a hazardous practice'. Mr Miller said 'nobody told [him] that [the waste material] was a problem and it was not reported'. Prior to the accident he 'was not directly aware of those blockages'.
22 Immediately after the accident Alliance Contracting's chief executive officer and Mr Miller initiated a significant incident investigation. At around that time the Department of Mines and Petroleum (DMP) issued a prohibition notice to the mine operator which instructed the use of the stemming bucket was to cease immediately.
23 At the commencement of the significant incident investigation there was some confusion as to how Mr Simpson sustained his injuries. Initially the understanding was that the accident occurred when Mr Simpson rested his hand on the external hole of the sliding gate. At Alliance Contracting's request, Friob then designed a guard against that pinch point. Subsequently, it emerged that the accident happened when Mr Simpson put his hand up inside the discharge chute and the gate closed.
24 Based upon the significant incident investigation findings and recommendations and the DMP prohibition notice requirements, Alliance Contracting published a report and took a series of corrective actions which Mr Miller detailed in his evidence.
25 Mr Miller considered 'the root cause of the accident' was that the loader was not isolated prior to Mr Simpson putting his hand up inside the chute to dislodge a [blockage]. The isolation of the loader was a process whereby all the sources of energy were taken away from the loader so that it could not pose a hazard to anyone; electrical, moving parts, hydraulics, anything to do with the sudden movement of the load and working underneath a suspended load. The isolator on the loader would be set to the lock position by the operator/driver using his personal lock to ensure there was no energy and no-one could inadvertently start it.
26 The authors of the significant incident investigation report noted that
no operational risk assessment was conducted on the stemming bucket at the time of purchase or at any time subsequent to its delivery and use and therefore no hazard identified in the method of operation; there was no safe work procedure or job hazard analysis conducted for use of the bucket attachment and no Take 5 or hazard observation done by either of the personnel involved prior to starting the task [on the day of the accident]; the change of material through the stemming bucket was not identified as a hazard despite reports of increased blockages; working under a suspended load and clearing blockages by hand or using a stick/survey peg was seen as a standard practice and although personnel reported during the investigation that they were 'uncomfortable' with the practice, it was not reported to supervisors as a potential hazard and personnel continued with the practice.
27 The authors of the report also noted that the stemming bucket had unguarded pinch points that should have been guarded and there were no warning signs for pinch points on the stemming bucket gate.
28 As part of its corrective actions, Alliance Contracting used only clean stemming material through the stemming bucket; engineered an in-grate system to guard against hand and other inappropriate objects being inserted into the buckets; and re-configured the gate closing blade by shortening the blade itself so that the two holes outside the discharge chute were no longer a pinch point. In this regard, Alliance Contracting sought and obtained the approval of Friob for the design modifications for the stemming bucket that related to the top and bottom guards. Alliance Contracting also placed warning decals on the stemming bucket to give cautionary identification that there were pinch points in the area below. Alliance Contracting also obtained from Friob a 2 cubic metre open top stemming bucket attachment operation and maintenance manual.
29 In his cross-examination, Mr Miller agreed that when Alliance Contracting asked Friob for a stemming bucket Alliance Contracting expected to get a tool which was appropriate for delivering stemming material into a blast hole. He was satisfied Mr Simpson had carried out Alliance Contracting's training modules in safety rules and operating techniques which were common across the mining industry. After the accident and as a result of the DMP prohibition on using the stemming bucket until such time as it posed no hazard to operators, Alliance Contracting devised two guards for the stemming bucket and asked Friob to put them on the stemming bucket. It was a solution for a modification which would still permit the bucket to be used for its intended purpose for stemming/backfilling blast holes and RC holes. Since the guards were put into the stemming bucket there had been problems with blockages using the stemming material but, in his opinion the guards had eliminated the hazard of someone putting their hand in the discharge chute. He also acknowledged that if graded stemming material had been used for stemming blast holes or for backfilling RC holes, there would have been no need for any guards because there would have been no blockage unless some contaminated material got into the stemming material because the loader operator was a bit lazy and dug too deep below the stemming material stock pile. He was aware that there had been damage to the bottom guard because the stemming bucket had to be grounded and emptied before anything could be done to it. A tool like a small crowbar had been designed to clear blockages for the discharge chute or the grate.
Keith David Rowlands
30 Mr Rowlands was Alliance Contracting's equipment asset manager and based in Perth at the time of the accident.
31 As a result of a request by Mr Miller in 2008, Mr Rowlands was involved in purchasing four stemming buckets from Friob.
32 After the accident Mr Rowlands contacted Friob to ascertain whether Friob could assist in designing a guard for the stemming bucket on the external pinch point of the gate (where the accident was initially understood to have occurred). Friob's proposal was a guard which could be retrofitted. He requested from Friob a copy of an operator's instruction manual for the stemming buckets that had been previously purchased. Friob subsequently created and then provided an operator's instruction manual for the stemming bucket. He also sought Friob's approval for some modifications Alliance Contracting made to the stemming bucket and participated in a meeting with Friob to deal with the DMP prohibition notice so as to get the stemming bucket back in operation. He could not recall that at that meeting Friob indicated that it was not possible to put guards on the stemming bucket or that there were difficulties with that. He then corresponded further with Friob about other proposed modifications to the inside of the stemming bucket and the bottom of the chute designed by Alliance Contracting or Friob. Subsequently, the proposed design modifications to the stemming bucket by Friob for guards on the bottom of the bucket and the discharge chute were approved by the DMP, manufactured by Friob and purchased by Alliance Contracting at a cost of $535 plus GST for each set of guards.
33 In his cross-examination, Mr Rowlands agreed that when he requested the stemming bucket from Friob, Alliance Contracting chose the size of the bucket's cubic meterage and the size of the output of the discharge chute. Apart from requesting a stemming bucket and advising the type of equipment it would be fitted to, no further detail was given. Prior to the accident he had not been requested by anyone for an operator's instruction manual for the stemming bucket. He also agreed that he subsequently advised Friob that the bottom guard on the discharge chute was of substandard material and it was getting damaged quite easily.
Martin Eric Simms
34 Mr Simms was a consultant mechanical engineer with general experience investigating industrial and vehicle accidents. He was experienced in general mechanical design of industrial machinery and transport equipment.
35 With respect to the accident, Mr Simms expressed the opinion that the method adopted by Mr Simpson to clear the blockage was inherently unsafe.
36 Mr Simms also expressed the opinion that the design of the stemming bucket left open the possibility of injury occurring as a result of someone attempting to manually clear a blockage. The designer/manufacturer of the stemming bucket would have been aware of the possibility of a blockage occurring. Such a possibility would have been self-evident to any designer simply by virtue of the nature of the material being handled; any material that might be used in the stemming bucket for the purpose of filling blast holes. It would be reasonable to anticipate that material might be used which would be more prone to blockage than some other material. The possibility of someone inserting their arm into the discharge chute to clear a blockage, to lubricate it, to clear a jammed stone that was making a screeching sound or for maintenance would have been identified if a reasonably rigorous risk analysis was carried out. In other words, if the designer/manufacturer put his mind to what things might happen, what could be done to eliminate or reduce those risks, and how he might change the design to bring about that effect. In this case, given the nature of the mechanism that slides open and shut, the fact that it was a shearing mechanism, a guillotine, a designer/manufacturer should at least put his mind to thinking about whether that could cause injury to somebody. The next step is whether the designer thinks that risk is reasonable and what he needs to do about it.
37 As a response, Mr Simms suggested warning labels on the stemming bucket pointing out the location of the pinch point on the discharge chute, although he appeared to accept the warning labels would be subject to abrasion and removal during normal operation and to being covered in dirt because of the nature of the mine site environment. He said it was common practice that plant such as a stemming bucket, would be provided with operation and maintenance instructions that included the correct procedure for clearing blockages and a warning about the risk of doing so manually.
38 Mr Simms was not aware of any Australian Standard relating specifically to stemming buckets, but he expected the designer of the stemming bucket to have used an Australian Standard in 1996 (AS 4024.1-1996) for the safeguarding of machinery, if the designer used any when the stemming bucket was designed in 1998. He explained the flow chart in the AS 4024.1-1996 indicated a step by step procedure to be followed by the designer of a machine when considering hazards and ways of eliminating them. This flow chart indicated that a designer should in the first instance attempt to eliminate any hazard by design. Only if it could not be eliminated by design, should the next step be followed which was to consider safety measures to guard the operator from the hazard. The third step involved a consideration of the system of work, personnel protective equipment, warnings, signs and symbols required to ensure that the operator used the machine safely.
39 Mr Simms expressed the opinion that it would have been possible to reduce or eliminate the hazard posed by the sliding gate in the discharge chute of the stemming bucket by design. He outlined a number of suggestions that might be feasible. He considered a physical barrier in the form of vertical plates cut into the discharge chute would probably provide a durable barrier while still permitting effective flow. Plates could be spaced quite widely apart because even if insertion of a hand was still possible the insertion of the forearm would be virtually impossible without presenting an unreasonable restriction to the flow. He also considered the post–accident grill guard that had been installed inside the stemming bucket above the flow control sliding gate and the bolted-on grill guard on the base of the discharge chute were practical and simple engineering measures that could have been adopted to reduce the risk of blockage, minimized the risks of someone attempting to clear a blockage and alerted users of the device to the risks present in attempting to manually clear a blockage. They were cheap, simple and did not require any particular expertise to use. He made the observation that thematerial being used for stemming was not clean, uniform fill, but material which may have been known to contain oversized or irregular material. He acknowledged a simpler way to undo the blockage would have been to tip out the contents and remove the offending item. There was an alternative method available that did not require or force the loader operator to put his hand inside the chute:
The action of the worker in inserting his arm into the discharge chute was in my opinion inherently and obviously hazardous. The guiding principle in plant design is, and must always be, the rule that if something imprudent can be done, someone will eventually do it. There is an obligation for designers and users … to undertake a risk assessment, to identify risks and to take steps to reduce them.
40 In his cross-examination Mr Simms agreed that a designer in undertaking a risk management procedure for a piece of machinery needs to identify any foreseeable risk, assess that risk, decide whether and what precautions need to be taken, take into account the specific circumstances of the machine, how it is operated, the environment in which it is operated and determine what is appropriate in the circumstances. He also agreed that the specific type of material being handled by a stemming bucket would have a large impact on how likely a bucket was to be blocked. If the material was uniform in size, graded to take out the bigger bits and the smaller bits, then that would have an impact on how likely it would block. If there was some suggestion of a problem with the flow of material, he would expect a designer or a manufacturer to be cognisant of feedback. He also agreed that in designing equipment and assessing what is an adequate response to risk, it is reasonable for the designer to assume that certain things would not happen with his equipment, if using that equipment attached to a loader in itself would be dangerous, such as standing under a suspended load.
Ioan Sarusi
41 Mr Sarusi was a mechanical engineer. He was employed by Friob at the time of the accident as a senior engineer providing design, manufacturing and engineering advice for all equipment manufactured by Friob.
42 In a similar way to Mr Miller, Mr Sarusi explained the stemming process, the purpose of stemming buckets in that stemming process and how stemming buckets were operated and maintained.
43 The stemming bucket was designed for stemming blast holes on mine sites. The literature recommended size of stemming material was 20 – 25 mm regardless of the diameter of the blast hole. Each stemming bucket had to take into account the particular machine it was attached to. Friob produced 230 stemming buckets of which over 70 were for different customers but there was no site feedback of any complaint. The sliding gate which was made of electrostatic plastic material was very hard. The sliding gate would be replaced when worn out, not serviced. The design of the open top stemming bucket had remained unchanged since he started with Friob with the exception of the location of the hydraulic ram. There had been no feedback from customers, the DMP or anyone else about blockages in the open top stemming bucket.
44 The process of filling a blast hole with stemming material with a stemming bucket attached to a loader was a one-man operation by the operator/driver of the loader. The levers for the hydraulically operated sliding gate for the stemming bucket were located in the cabin of the loader. Apart from a spotter for whom the driver must have 100% visibility, no-one should approach the operating loader. There were visibility issues for the operator/driver of the loader. The Caterpillar Operation and Maintenance Manual referred to various warnings and safety rules for the loader and any attachment such as a stemming bucket.
45 In Mr Sarusi's opinion the functionality and the safety feature of the whole of the stemming bucket had to be considered and the risk analysed. The possibility of inadvertent contact by someone with the rotating part of a lathe was much higher than contact with the sliding gate in the stemming bucket because the person would have to think about it and go into a restricted place to reach the dangerous area. The sliding gate was operated by the operator from the cabin and the sliding gate was in-built in the system. The sliding gate was surrounded by steel parts which meant that a person could not go next to it and touch it but would have to push in something or put their hand into a specific place to reach the sliding part. From a design point of view and as an engineer,
the stemming bucket is using gravity for discharge. The gate has only one role, to keep the material inside the stemming bucket. That means you have to make something which will open 100%, allow the flow of the materials through …. this is even emphasised when it's wet weather because the aggregate, it is wet and sticky and is muddy. Whatever dust is becoming really a mud. That means the flowing needs 100% available section to flow out … Definitely unrestricted.
46 After the accident Mr Sarusi was involved with Alliance Contracting in the proposed modifications to the stemming bucket. He advised Alliance Contracting that the proposal to put a grill above and a grill below the sliding gate was 'a wrong move completely and will increase the hazard'. If there was any problem with blockages the grills would increase the number of blockages. If the blockage was in the discharge chute between the two welded grills its removal was 'a recipe for disaster' because it would be 'a real challenge [for someone] to remove [the] blockage'.
47 In his cross-examination, Mr Sarusi explained that the operator of a stemming bucket would know the gate needed to be replaced if material fell out when the gate was closed. The gate would be replaced in the workshop. If there was a problem with the hydraulics that would be dealt with by the workshop. In each instance if the operator wanted to have a look at the problem on site he must stop the loader engine and put down the stemming bucket. He accepted that no safety revision of the stemming bucket was done at any stage prior to the accident. There was never a request to do so because of a site problem. Apart from the accident there had been no other stemming bucket incident. The Two Cubic Metre Open Top Stemming Bucket Attachment Operation & Maintenance Manual was created by Friob after the accident. There was no stemming bucket manual before that.
48 In his cross-examination, Mr Sarusi agreed any guarded machine is safe if it was used properly but the reason the guards were there was to protect people in the event the machine was not used properly. However, the stemming bucket had an added feature which may not present with other machinery. If a person starts to do something with the discharge chute, he has to keep in mind the bucket has inside it two cubic metres of 2,700 kg per cubic metre of material, and if he manages to dislodge the blockage, he is under 5 tonne of material that starts to pour [out of] a 125 mm hole. He cannot avoid being killed or buried; 'to take out the blockage means the material starts to flow. And you are under [it]'. He went on to say: 'If the engine is not running you can put your hand in and you can clean it, you can wash it, you can do whatever you want with the whole area. It's not harmful. ...'. In his opinion the sliding gate assembly in the stemming bucket was not a recognisable potential hazard. It never entered his mind that someone would put anything in the discharge chute and the operator/driver of the loader would [then] activate the sliding gate. He agreed warning decals were not on the stemming bucket prior to the accident. However, warning decals on the stemming bucket would be hard to maintain because the bucket was in contact with the ground. The main reason there were no warning decals on the stemming bucket was because it was never contemplated that someone other than the operator/driver of the loader would be in that area.
John Gerard Morris
49 Mr Morris was the general manager of Friob at the time of the accident.
50 Friob designed and manufactured stemming buckets. There were different models. The open-top stemming bucket came in two different sizes. Between 1998 and 2015, 74 of the open-top stemming buckets were produced.
51 Prior to the accident he had not received any information that there was a blockage problem with or injuries caused through the use of open-top stemming buckets.
Legal principles
52 Alliance Contracting claims Friob's negligence, breach of contract and breach of statutory duty caused or contributed to Mr Simpson's injuries, loss and damages.
53 Mr Simpson, Alliance Contracting and Friob agreed to consent to judgment for Mr Simpson against Alliance Contracting for $950,000 exclusive of workers' compensation payments of $288,382.65 and costs and disbursements of $63,401.43.
54 Alliance Contracting claims Friob was a tortfeasor who is, or would if sued have been, liable to Mr Simpson in respect of the settlement sum. Alliance Contracting also claims it is entitled to obtain a contribution from Friob in respect of the settlement sum.
Contract
55 Section 5A (2) of the Civil Liability Act 2002 (WA) (CLA) extends pt 1A – Liability for harm caused by the fault of a person, to a claim for damages for harm caused by the fault of a person even if the damages are sought to be recovered in an action for breach of contract.
56 A contract to do work and supply materials, in the absence of special circumstances, will carry with it two implied warranties, that those materials are of good quality and free from latent defects, and that they are reasonably fit for their intended purpose: Helicopter Sales (Australia) Pty Ltd v Rotor-Work Pty Ltd (1974) 132 CLR 1, 8.
57 In its third party's Substituted Defence in Third Party Proceedings, Friob admitted that it was an implied term of the contract with Alliance Contracting that it would use reasonable care in the manufacture and supply of the stemming bucket. It was submitted by Alliance Contracting (and accepted by Friob) that that only created a contractual duty which mirrored Friob's tortious duty under common law or under the CLA.
58 Friob did not accept the claim by Alliance Contracting in its defendant's Substituted Statement of Claim in Third Party Proceedings that there were also implied terms of the contract that Friob would supply the stemming bucket with warning labels adjacent to and indicating all points where moving parts or pinch points including the gate were present; supply the stemming bucket with basic operation and maintenance instructions including the safest procedure for clearing blockages and a warning of crush injury by the gate; comply with s 14(1) of the Mines Safety and Inspection Act 1994 (WA) (MSIA) and r 6.3, r 6.4, r 6.5, r 6.6, r 6.7, r 6.8, r 6.12 and r 6.13 of the Mines Safety and Inspection Regulations 1995 (WA)(MSIR); and design the moving parts of the stemming bucket in accordance with AS 4024.1-1996 – Safeguarding of machinery – Part 1: General principles cl 2.1, cl 3.1, cl 3.3, cl 4.2.4, s 5, s 6, s 7 and s 8.
59 In support of its submission that these terms were not implied terms of the contract, Friob relies upon the statement of the Privy Council in BP Refinery (Western-Port) Pty Ltd v Shire of Hastings (1977) 180 CLR 266, 282 - 283 referred to with approval in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337, 347.
60 Their Lordships do not think it necessary to review exhaustively the authorities on the implication of a term in a contract which the parties have not thought fit to express. In their view, for a term to be implied, the following conditions (which may overlap) must be satisfied: (1) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (3) it must be so obvious that 'it goes without saying'; (4) it must be capable of clear expression; (5) it must not contradict any express term of the contract.
61 In support of its submission that 'a term may be implied to create a contractual duty which mirrors the tortious duty', Alliance Contracting relies upon the statement of the High Court in Astley v Austrust Ltd (1999) 197 CLR 1, 21 - 22. However, at 22 - 23 the High Court went on to state:
The contract defines the relationship of the parties. Statute, criminal law and public policy apart, there is no reason why the contract should not declare completely and exclusively what are the legal rights and obligations of the parties in relation to their contractual dealings. The proposition that, in the absence of express agreement, tort and not contract regulates the duty of care owed by a professional person to a person hiring the professional services is inconsistent with the historical evolution of professional duties of care which, until recently, could be the subject of action only in contract. Moreover, the conceptual and practical differences between the two causes of action remain of 'considerable importance'. The two causes of action have different elements, different limitation periods, different tests for remoteness of damage and … different apportionment rules.
62 In the circumstances of this case and for the reasons that follow, as the parties have essentially proceeded on the basis of tortious liability, it is unnecessary to determine the contentious implied terms of the contract.
Duty of care and standard of care
Section 5B of the CLA provides:
(1) A person is not liable for harm caused by that person's fault in failing to take precautions against a risk of harm unless —
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known);
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) —
(a) the probability that the harm would occur if care were not taken;
(b) the likely seriousness of the harm;
(c) the burden of taking precautions to avoid the risk of harm;
(d) the social utility of the activity that creates the risk of harm.
64 A person who designs, manufactures and supplies a machine intended for commercial use owes a duty to potential users of the machine to exercise reasonable care, skill and diligence in the design and manufacture process to produce a machine which is safe to operate: Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317 [29] and Fitzpatrick v Job t/as Jobs Engineering [2007] WASCA 63 [37] and [196]. A manufacturer owes, to a consumer of the manufacturer's product, the duty to exercise reasonable care to prevent the product causing foreseeable risk of injury or loss to the consumer: Dovuro Pty Ltd v Wilkins [29] and Fitzpatrick v Job t/as Jobs Engineering [38] and [197].
65 In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If there is a foreseeable risk of injury then, in determining the content of the duty of care, that is the standard of care, the tribunal of fact must determine what a reasonable man would do by way of response to the risk, and the perception of the reasonable man's response calls for a consideration of the magnitude of the risk, the degree of probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have: Wyong Shire Council v Shirt (1980) 146 CLR 40, 47 - 48; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 [55]. It is only when those matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to a reasonable man placed in the defendant's position. The judgment in each case of what is a reasonable response to a foreseeable risk depends on the circumstances:Fitzpatrick v Job t/as Jobs Engineering [40] and [197].
66 A risk of injury will be reasonably foreseeable if it is not far-fetched or fanciful. The risk may be reasonably foreseeable even though it is unlikely to occur or is remote: Wyong Shire Council v Shirt (48). The test of reasonable foreseeability must be applied without hindsight. The test is, however, undemanding: Koehler v Cerebos (Australia) Ltd(2005) 222 CLR 44 [54]; Vairy v Wyong Shire Council(2005) 223 CLR 422, 480 - 481 [213]; Fitzpatrick v Job t/as Jobs Engineering [198].
67 It is unnecessary that the defendant should have foreseen the precise risk of injury or how it occurred: [87] and Fitzpatrick v Job t/as Jobs Engineering [199].
68 The general standard of care (that is, the measure of the discharge of the duty of care) applicable to a person who designs, manufactures and supplies a machine intended for commercial use is what, if anything, a reasonably competent engineer in the position of that person would have done, in the circumstances, by way of response to a foreseeable risk that potential users of the machine may suffer injury in the course of operating it:Fitzpatrick v Job t/as Jobs Engineering[200].
69 In more specific terms, the standard of care applicable to a designer and manufacturer of machinery, was stated in Suosaari v Steinhardt [1989] 2 Qd R 477, 489 - 490 as follows:
A manufacturer is under a duty not to put a product into circulation without bringing to it, in the case of machinery, the mind of a reasonably competent engineer to ascertain whether the design of the product is safe.
If a competent engineer would have discovered the defect as one which unreasonably exposed the user to risk then the duty of the manufacturer is twofold: firstly, to actually see the risk, secondly, to take all reasonable steps to eliminate or minimise it, or if it cannot be eliminated or minimised, to clearly warn the user of its existence.
A manufacturer who fails to take both of these steps breaches the duty of care owed to the user of the product (Winward v TVR Engineering [1986] BTLC 366] at 7; Griffiths v Arch Engineering Co Ltd [1968] 3 All ER 217 at 220 – 221).
70 A designer and manufacturer of machinery is not, however, an insurer, and is not under an absolute duty to design and manufacture a product that is accident-proof and free from any defect: Suosaari v Steinhardt (487).
71 A manufacturer is not obliged to take precautions against a risk which may arise when the use to which the product is put is so unusual or improper as to make such a use wholly unforeseeable, it falling outside the range of any reasonable man's contemplation:Suosaari v Steinhardt (488).
72 The determination of what, if anything, a reasonably competent engineer in the position of a person who designs, manufactures and supplies a machine intended for commercial use would have done to avoid a foreseeable risk of harm involves an assessment of what would have been reasonable and practicable for that person to do. This inquiry is not to be undertaken in hindsight: Fitzpatrick v Job t/as Jobs Engineering[203].
73 The obviousness of a risk is a relevant consideration in determining what, if anything, reasonableness requires of a person who designs, manufactures and supplies a machine intended for commercial use. This process of evaluation must be undertaken, however, on the basis that the designer and manufacturer had to take into account the possibility that potential users of the machine, to whom the duty of care is owed, might fail to take proper care for their own safety. Although potential users of the machine ordinarily will be expected to exercise sufficient care, by perceiving and avoiding obvious hazards, some allowance must be made by the designer and manufacturer, if in the circumstances it is reasonable and practical, for carelessness or inadvertence. If the machine in question is inherently extremely dangerous or if the magnitude of the injury likely to be suffered by a potential user who is careless or inadvertent is serious, reasonableness may require the designer and manufacturer to exercise particular skill, care and diligence in its design and manufacture: Adelaide Chemical and Fertiliser Co Ltd v Carlyle (1940) 64 CLR 514 522 – 523 and Fitzpatrick v Job t/as Jobs Engineering[42] - [43] and [204].
74 The significance to be accorded to the obviousness of a risk depends on all the circumstances of the particular case:Fitzpatrick v Job t/as Jobs Engineering[205].
Causation
Section 5C of the CLA provides:
(1) A determination that the fault of a person (the tortfeasor) caused particular harm comprises the following elements —
(a) that the fault was a necessary condition of the occurrence of the harm (factual causation); and
(b) that it is appropriate for the scope of the tortfeasor's liability to extend to the harm so caused (scope of liability).
(2) In determining in an appropriate case, in accordance with established principles, whether a fault that cannot be established as a necessary condition of the occurrence of harm should be taken to establish factual causation, the court is to consider (amongst other relevant things) —
(a) whether and why responsibility for the harm should, or should not, be imposed on the tortfeasor; and
(b) whether and why the harm should be left to lie where it fell.
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm (the injured person) would have done if the tortfeasor had not been at fault —
(a) subject to paragraph (b), the matter is to be determined by considering what the injured person would have done if the tortfeasor had not been at fault; and
(b) evidence of the injured person as to what he or she would have done if the tortfeasor had not been at fault is inadmissible.
(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether and why responsibility for the harm should, or should not, be imposed on the tortfeasor.
In determining liability for damages for harm caused by the fault of a person, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.
76 A defendant will be liable in negligence only if the damage which the plaintiff has suffered was caused by the defendant's negligent act or omission: Fitzpatrick v Job t/as Jobs Engineering [219].
77 It is not necessary that a defendant's negligent act or omission be the sole cause of the plaintiff's damage. Causation will be established if the relevant act or omission materially contributed to the damage: March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 514and Fitzpatrick v Job t/as Jobs Engineering [220].
78 A court may infer causation by reference to the objective facts and probabilities. Direct evidence is not essential: Rosenberg v Percival (2001) 205 CLR 434 [44]and Fitzpatrick v Job t/as Jobs Engineering [221].
Assumption of risk
Section 5N of the CLA provides:
(1) In determining liability for damages for harm caused by the fault of a person, the person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk.
(2) For the purpose of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk.
(1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.
(2) Obvious risks include risks that are patent or a matter of common knowledge.
(3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring.
(4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.
Contributory negligence and tortfeasor's contribution
80 Where damage is suffered by a person as the result of a tort s 7(1)(c) of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA) (CNTCA) provides:
any tortfeasor liable in respect of that damage may recover contribution from any other tortfeasor who is or would if sued have been liable in respect of the same damage whether as a joint tortfeasor or otherwise … .
81 Section 7(2) of the CNTCA provides:
in any proceedings for contribution under this section the amount of the contribution recoverable from any person shall be such as may be found by the Court to be just and equitable … .
82 The test to be applied in making an apportionment under the CNTCA was dealt by the High Court in Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492, 494:
The making of an apportionment … involves a comparison both of culpability, ie, of the degree of departure from the standard of care of the reasonable man … and of the relative importance of the acts of the parties in causing the damage. …
… It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination … .
Findings
83 Friob had a duty of care to Alliance Contracting to design, manufacture and supply the stemming bucket so that it was fit for its intended purpose.
84 Friob had a duty of care to Alliance Contracting to design and manufacture the stemming bucket with reasonable care and skill, so as not to create any unavoidable hazards on the stemming bucket.
85 However, whilst I accept the AS 4024.1–1996 referred to in Mr Simms' evidence provide that a safeguard shall be considered where a risk or hazard cannot be eliminated or avoided, the AS 4024.1–1996 are a guide to, but cannot dictate the standard of reasonable care required in the circumstances of individual cases: Scope Machinery Pty Ltd v Ross [2009] WASCA 100 [43]. I also accept an Australian Standard represents the consensus of professional opinion and practical experience as to sensible safety precautions and a standard of reasonable conduct: Onetech Pty Ltd v Shaw [1999] WASCA 289 [17] and Fitzpatrick v Job t/as Jobs Engineering [94]. In my view, warning labels on or in the stemming bucket pointing out the location of the pinch point on the discharge chute would be impractical because they would be subject to abrasion and removal during normal operation and to being covered in dirt because of the nature of the mine site environment. The most practical location of warning labels was inside the cabin of the loader.
86 I note also that s 14(1) of MSIA and r 6.3, r 6.4, r 6.5, r 6.6, r 6.7, r 6.8, r 6.12 and r 6.13 of MSIR referred to in Mr Miller's evidence do not mandate the installation of guards. The circumstances in which the machinery is to be used and the practicality of incorporating safeguards are to be taken into account in assessing the actions of designers, manufacturers and suppliers of machinery in the position of Friob. In this regard I accept Mr Sarusi's evidence that designs including designs by Friob that predated the commencement of his employment in March 2004 were reviewed and revised on a continuous basis from a practicality or safety point. Changes to design were mainly connected to customer feedback about some problem with the equipment. I also accept Mr Sarusi's evidence that when he designed equipment with moving parts, guards will be put on the moving part if they were affordable and they did not alter the function of the equipment; design is some compromise between functionality and safety.
87 Friob clearly had a duty of care to Alliance Contracting to design and manufacture the stemming bucket in a manner which avoided reasonably foreseeable risk of injury to employees of Alliance Contracting such as Mr Simpson.
88 Friob also clearly had a duty of care to Mr Simpson to design and manufacture the stemming bucket in a manner which avoided reasonably foreseeable risk of injury.
89 However, in this case the risk of an injury of the kind suffered by Mr Simpson, and the general manner in which it might occur, were not reasonably foreseeable for the reasons as follows:
1. The stemming bucket was designed, manufactured and supplied for commercial use for delivering stemming material into a blast hole on a mine site;
2. The stemming bucket was designed, manufactured and supplied as an attachment/work tool for a loader and it was unable to operate in isolation to that loader;
3. The stemming bucket had a small tubular discharge chute fitted to the underside of the bucket and fitted with a hydraulically operated sliding gate between the underside of the stemming bucket and the discharge chute ie, the hydraulically operated sliding gate was in-built not open or exposed;
4. The stemming bucket was designed to be used by a single worker and operated by him by controls within the cabin of the loader;
5. The hydraulically operated sliding gate was not within reach of the operator/driver when he was positioned in the cabin of the loader;
6. The loader operator/driver did not need to be in close proximity to or require access to the hydraulically operated sliding gate in the ordinary course of operating the stemming bucket from the controls within the cabin for the purpose of stemming;
7. Positioned inside the cabin of the loader were safety messages and warning signs to 'Stay Away From Work Tool' and to attach a 'Do Not Operate' warning tag to the start switch or to the controls before servicing or repairing the equipment;
8. The operation and maintenance manual for the loader relevantly provided that
(i) personnel should be clear of the area before the loader was started, moved or operated;
(ii) personnel should stay away from any work tool attached to the loader;
(iii) no work or maintenance should be carried out on any work tool attached to the loader;
(iv) no adjustment should be made whilst the engine of the loader was running;
(v) no servicing or repair of the loader should occur unless it was 'tagged out';
(vi) personnel should stay clear of all rotating and moving parts; and
(vii) while performing any maintenance, any testing or any adjustments to the work tool stay clear of cutting edges, pinching surfaces and crushing surfaces;
9. The mining manager for Alliance Contracting (Mr Miller) accepted that if there was no manual for an attachment to a loader, the loader operator/driver would use the loader operation and maintenance manual kept in the mine site office;
10. The loader operator/driver was licensed to operate the loader;
11. The loader operator/driver was required to carry out Alliance Contracting's training modules in safety rules and operating procedures which were common across the mining industry. Accordingly, the loader operator/driver would know that personnel not operating a machine should be clear of the machine before it was started, moved or operated. An operating machine had an exclusion zone around it; entry by a person within the 50 m zone required positive radio contact, within the 20 m zone the bucket or attachments must be grounded. There should be no work or maintenance on a work tool unless it was properly supported and properly isolated. There should be no work done under a suspended load. No adjustment or maintenance or repair or anything of that nature should be done with power being supplied to any of the systems of the vehicle. Energy systems including electrical, hydraulic and mechanical must be isolated before working on a machine. As part of the isolation process tags should be put on the machine; a personal danger tag to protect the person who isolated the machine and an out of service tag to indicate to others that the machine was not to be used because it was out of service. In special circumstances, predominantly for fault finding and trying to identify what is wrong with a piece of machinery, if there was a 'test and control tag' there could be repair, maintenance and adjustment of the machinery with someone sitting at the controls while the machinery has power that has not been isolated;
12. The mining manager for Alliance Contracting (Mr Miller) accepted that these safety rules and operating procedures were known, broadly in the mining industry, both in terms of the mine operators and the people who were providing machinery. It was also accepted by him that these types of rules would be known to the manufacturer or designer of pieces of equipment and taken into account in terms of the design of the particular tool;
13. Friob had been designing, manufacturing and supplying stemming buckets since 1998. Since 2008 Alliance Contracting had acquired four stemming buckets from Friob. Prior to the accident on 16 February 2014 Friob had not received any feedback from any of its customers including Alliance Contracting or the DMP or anyone else concerning blockages or any other problems associated with the stemming buckets. Prior to the accident on 16 February 2014 Alliance Contracting had not been aware of blockages or any other problems associated with the stemming buckets;
14. The stemming bucket was designed, manufactured and supplied on the basis that the sliding gate did not require maintenance or service. When the plastic sliding gate was worn out that part was replaced. An operator/driver of a loader with a stemming bucket would know that the plastic sliding gate was worn out when stemming material fell from the discharge chute when the gate was closed. If there was a problem with the hydraulics for the sliding gate that was a job for the workshop. There was nothing the loader operator/driver could do to fix a problem with the hydraulics. In any event, it would not involve anything inside the discharge chute, the hydraulics were on the outside;
15. The mining manager for Alliance Contracting (Mr Miller) accepted that an operator/driver of a loader with a stemming bucket would know of the existence and location of the hydraulically operated gate and that he should not go anywhere near rotating and/or moving parts. The loader operator/driver would also know that if there was a blockage/problem with the stemming bucket, he should put down the boom, isolate the loader with his personal danger tags, and remove himself from the controls and the cabin. It was his (the loader operator/driver's) responsibility to clear the blockage on his equipment, not some other loader operator/driver (Mr Simpson). Backfilling was a single loader operation. If a loader operator/driver worked under a suspended load and on a piece of equipment that had not been isolated that would constitute an extreme breach of the administrative safety rules;
16. The stemming bucket was designed, manufactured and supplied for efficiently delivering stemming material into a blast hole. If there was a blockage in the discharge chute, the operator/driver need only empty the material in the stemming bucket on the ground, bang the edge of the stemming bucket on the ground until the blockage fell from the discharge chute, scoop up the material on the ground with the stemming bucket, and continue with the stemming process;
17. When the stemming bucket was on the ground there was no access to the discharge chute;
18. A fixed grill above the sliding gate and a bolted removable bottom guard below the sliding gate would introduce surfaces that would make it easier to produce a blockage and reduce the flow of material by the reducing size of the opening of the discharge chute. From a safety point of view that would increase the risk of persons attempting to clear the blockage. The mining manager for Alliance Contracting (Mr Miller) accepted that since the guards were put into the stemming bucket there have been problems with blockages using the stemming material but 'it's pretty much eliminated the hazard of someone being able to physically get their hand up there';
19. An operator/driver of a loader with a stemming bucket would have appreciated, as obvious and extremely dangerous, the risk posed in approaching another loader whilst it was under operation, positioning himself under an unsecured suspended load in the bucket, and inserting his hand or arm into the discharge chute in an attempt to manually clear a blockage. At the very least if he managed to clear the blockage in the discharge chute he would need to avoid the sudden flow down the discharge chute of the 4½ - 5 tonne of stemming material above the open sliding gate; and
20. In those circumstances it was not reasonably foreseeable to Friob that loader operator/driver employees of Alliance Contracting such as Mr Simpson may use a variety of methods to clear a blockage at the gate of the discharge chute and they could carelessly or deliberately insert their hand or arm into the discharge chute in an attempt to manually clear a blockage at the gate.
90 Alliance Contracting has failed to establish that Mr Simpson's injuries and loss were caused by any breach of contract, breach of duty or breach of statutory duty by Friob.
91 Friob is not a party that is, or would if sued have been, liable to Mr Simpson in respect of the settlement sum.
Conclusion
92 Alliance Contracting's claim in its Substituted Third Party Statement of Claim is dismissed.
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