Skinner v Byrnecut Mining Pty Ltd
[2001] WADC 44
•7 MARCH 2001
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: SKINNER -v- BYRNECUT MINING PTY LTD & ANOR [2001] WADC 44
CORAM: VIOL DCJ
HEARD: 1-7 NOVEMBER 2000
DELIVERED : 7 MARCH 2001
FILE NO/S: CIV 4638 of 1998
BETWEEN: PAUL BERNARD SKINNER
Plaintiff
AND
BYRNECUT MINING PTY LTD
DefendantBORAL RESOURCES (SA) LTD
Third Party
Catchwords:
Negligence - Extent to which defendant and third party as contractor on mine site liable for plaintiff's injuries - Turns on own facts
Legislation:
Nil
Result:
Defendant and third party negligent - the defendant to the extent of 30 per cent, and the third party, 70 per cent.
Representation:
Counsel:
Plaintiff: Not applicable
Defendant: Mr A J Power
Third Party : Mr P P McCann
Solicitors:
Plaintiff: Not applicable
Defendant: Jackson McDonald
Third Party : Phillips Fox
Case(s) referred to in judgment(s):
Australian Safeway Stores Pty Ltd v Zaluzna (1986‑1987) 162 CLR 479
Bryan v Maloney (1995) 182 CLR 609
Coles & Ors v Montague Grant Architects Pty Ltd & Anor, unreported; FCt SCt of WA; Library No 950374; 12 June 1995
Jaensch v Coffey (1984) 155 CLR 549
Mounsey v Orange Grove Bricks Pty Ltd & Ors, unreported; FCt SCt of WA; Library No 960105; 29 February 1996
Riden v A C Billings & Sons Ltd [1957] 1 QB 46
Case(s) also cited:
Cant v Fleay & Anor; FCt SCt of WA; Library No 960381; 18 July 1996
Crombie v Uniting Church in Australia Property Trust (WA) (1977) 17 WAR 291
Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18
Kondis v State Transport Authority (1984) 154 CLR 672
McLean v Tedman (1984) 155 CLR 306
O'Connor v The Commissioner for Government Transport (1954) 100 CLR 225
Pennington v Norris (1956) 96 CLR 10
Podrebersek v Australian Iron & Steel Pty Ltd ((1985) 59 ALJR 492
Union International (WA) Pty Ltd v Mazurak & Anor [1999] WASCA 272
Valkonen & Anor v Jennings Constructions Ltd & Ors (1995) FCt SCt of SA; Library No SCGRG 681 of 1991
Western Australia v Dale & (1996) 15 WAR 464
Wyong Shire Council v Shirt (1980) 146 CLR 40
VIOL DCJ: The plaintiff, who at all material times was employed by the defendant as a machine operator and underground miner, was injured at work at the Pilara Mine Site ("the mine site"), near Fitzroy Crossing, on 5 July 1998.
The plaintiff commenced proceedings for damages against the defendant alleging, in his statement of claim, that the accident was due to the negligence of the defendant. In its defence, the defendant denied such negligence. The defendant also issued a statement of claim against the third party, alleging that the accident was due to the negligence of the third party, and sought indemnification (or, alternatively, contribution), from the third party "to the full extent of the plaintiff's claim".
In turn, the third party, in effect, denied that it was negligent as alleged by the defendant, and alleged that the accident was caused solely, or was contributed to, by the defendant's negligence.
The basis of the various pleas are to be seen in the amended pleadings.
At trial, it was conceded by counsel for the defendant that the defendant was, to some extent, negligent. Further, notwithstanding the conduct of the third party's case from the beginning of the pleadings (including the cross‑examination of the defendant's witnesses at trial, on the basis that the third party was not in any way negligent), it was conceded at the close of the case for the third party (and, obviously, for the first time in the proceedings) that there was some negligence on the part of the third party. The timing of this concession is relevant to, and will affect the question of costs, inter alia, in due course.
Prior to trial, the parties settled the plaintiff's claim on the terms and conditions set out in annexure 1 to a Statement of Agreed Facts and Issues presented to the court. The annexure was a copy of a letter from the defendant's solicitors to the plaintiff's solicitors dated 25 August 2000. Subject to the terms contained in the letter, it was agreed that the plaintiff should receive damages in the sum of $1.6 million, exclusive of any payments made pursuant to the Workers' Compensation & Rehabilitation Act 1981. The judgment debt was not to be paid to the plaintiff until judgment was ordered in the third party proceedings between the defendant and the third party.
The relevant result of the settlement was a necessity to determine the extent of negligence of each of the defendant and third party and thus, an apportionment of responsibility between the defendant and third party for the accident, and the plaintiff's injuries.
The evidence
A review of the evidence is best commenced by a summary of the operation being carried out at the mine site. Various parties were involved in the work. The principal of the mine was a company known (shortly) as Western Metals. The registered Mine Manager was an employee of Western Metals. The winning of ore from the face of the mine (blasting, bogging and transferring it to the top) was contracted to the defendant, Byrnecut. The dozing of the ore at the top (described below) was contracted to a company known (shortly) as Cockatoo. The loading of the ore from the ore dump to the crusher was contracted to the third party, Boral.
The ore involved was zinc sulphide - that ore having a certain property which is relevant to these proceedings. The ore has a propensity to "stick" or "stand up", also "to cook". That means that it has a propensity to bind together so that if it is left undisturbed for any length of time, it compacts, sometimes to the point of needing to be re‑blasted.
This was an underground mine operation. Employees of the defendant would drill the face of the mine underground, charge it with explosive, and then this would be detonated. Such employees would then bog out the waste ore ie. load this from the face into trucks. The trucks would then be driven up the declines out of the mine on to the surface.
The defendant's trucks would then take the waste or mullock or the ore to a dump on what was a pad known as a "run of mine pad" or a "ROM pad". This system of dumping was known as "paddock dumping". This dumping involves the trucks dumping their loads in a row close to the edge of the ROM pad, and then dumping their loads on a series of rows working out from the first row dumped. In other words, the rows would be created progressively away from the edge of the ROM pad.
After that, bulldozers driven by employees of Cockatoo would then doze the ore off the edges and over the crest of the ROM pad and on to and down the face of the ROM pad where it met the level ground at the bottom of the face. After the ore had been pushed over the side of the ROM pad, employees of the third party would then, by the use of front end loaders, take the ore from the face of the ROM pad from the ground level at the bottom of the face and deliver it to the crusher for crushing and further dealing with the ore.
It appears to be the case that the mine had not been operated for a great length of time before the accident. In the months before the accident, much of the material being taken out of the mine and up to the surface was waste, although in the month or so before the accident, ore was being taken to the surface to be dealt with in the manner already referred to. In the days before the accident, the third party was in the process of removing the ore from the face and delivering it to the crusher. The faces of the ROM pad obviously surround and make up the edges of the ROM pad. The face was generally four to five metres high. And the ROM pad is, in effect, in the nature of a plateau. It was generally agreed that the face was usually at an angle of approximately 45 degrees.
The trucks delivering the ore to the ROM pad weigh 30 tonnes when empty and in the vicinity of 68 tonnes when fully loaded.
As the dozers push the ore to the edge, the dozer operators would almost invariably create a "bunk wall" at the edge of the ROM pad. This bunk wall or windrow was formed in roughly a triangular shape along the edge of the ROM pad at the top of the face for the purpose of warning drivers delivering ore where the edge of the ROM pad was and preventing them from going over the edge of the ROM pad when delivering their loads of ore.
The question of when the ore was to be loaded on to the ROM pad (and, in turn, dozed off) and removed from the face, and who determined that, was a matter of some issue at trial.
It can be appreciated that once the ore begins to be delivered from the mine, the various activities described above are continuous and, as the evidence disclosed, there is an element of urgency in the delivery of the ore and its ultimate taking away for crushing.
The plaintiff was born on 2 March 1966 and is now aged 35. Until he began work with the defendant in late 1993, the plaintiff had some experience in the mining industry. He began working at Mt McClure in the Kimberleys as a machine operator and did so for 2‑1/2 years, this involving some truck driving but also the operating of boggers underground. The bogger is, in effect, a front end loader specifically designed for underground work. For the 4‑1/2 years he spent underground, he was involved in truck driving at least once a week. He also worked for the defendant, truck driving in the Northern Territory for about a year before he came to the mine site. He began work at the mine site about 10‑1/2 months before the accident ie. mid 1997. After working about four months as a charge up operator, the plaintiff went back to truck driving and did this for about six months before the accident.
The plaintiff described how the mine was commenced, waste material was first taken out of the mine and used to create a very large platform upon which the ore pads could be made. The ROM pad was built whilst the plaintiff was there and this was made up of ore, as previously described. Whilst the plaintiff was there, there were in fact some of the jobs normally done by the defendant's employees which were also done by employees of Western Metals such as driving trucks, firing the stopes and removing the ore. The mill had, in fact, begun to operate several weeks before the accident. The plaintiff described the operation of dumping the ore and then the dozing of the ore over the edge of the ROM pad where it would "reel" down the face to the bottom plateau where the loaders employed by the third party operated. He said that the loaders had only been working down at the face of the ROM pad for three or four days before the accident. The plaintiff described the method of dumping the ore as above and also the creation of the windrows to prevent the trucks backing over the edge when dumping the ore. The ore pad changed shape as the ore was dumped and the aim was to dump as many loads of ore as possible on the ROM pad. At the time of the accident, the plaintiff assumed that the loader operators taking the ore from the face to the crusher were employed by Western Metals but, in fact, he ascertained after the accident that they were employed by the third party. He was aware of the fact that the loader operators were working below the ROM pad for the three or four days before the accident but appeared to believe that they were building a pad for the primary crusher down there and he was unaware that they were in fact loading the primary crusher. He did not see them digging any ore from the face - at night, sometimes, he could see lights moving - that was all.
The plaintiff told me that before each shift, a shift boss from the defendant would meet with people from Western Metals and a mud map was drawn on a whiteboard to show where the ore was to be dumped by the defendant's employees during that shift. The foreman for Western Metals was Peter Sculthorpe ("Scully"), however, the plaintiff did not have anything to do with him directly, he would take his orders from the shift boss employed by the defendant.
On the day of the accident, the plaintiff was to start work at 6.15. The shift boss was Rod Paulin ("Rocket"). He was to work a 12 hour shift, 6.30 to 6.30. Although it was night time, it was actually, he said, quite light with the moon and stars bright enough to cast shadows.
The plaintiff got his first load of ore and drove up to the ore pad. He saw that there had been a load placed on the corner of the ROM pad on the left hand side and was going to tip his load next to that that was already there. He was aware that the ore had been pushed over the side recently and saw the windrow on the left hand side as he drove up to on to the ROM pad. He could see the windrow in the lights of his vehicle as he drove towards it, on his left hand side. He then drove forward and began reversing, looking out the left hand window of his truck. He said he had absolutely no difficulty seeing the point at which he was to dump his load. He had four spotlights on the back of his truck. He was able to see the ore pile that was already dumped there and the windrow, which, he said, was in very good condition. He said that as he got to about three to five metres from the tipping face, the front of his truck started to rise; this, he said, was not uncommon because the weight is over the back wheels. The plaintiff thought immediately that he had fallen into a pothole. The rear wheels of his truck, he thought, were about three to five metres from the windrow. There was then a lot of noise and the truck started to go backwards and he knew immediately that he was going over the ledge, or at least flipping over. In fact the truck rolled backwards and over the edge of the ROM pad and ended upside down on the lower level - he was conscious when the accident finished.
Significantly, the plaintiff told me that when he was undertaking the reversing that evening, he was unaware that dirt had been taken away from the face beneath the ROM pad.
He said that on some previous occasions, there had been a lighting plant on the ROM pad with halogen lamps facing directly towards the windrow. He said that they did not assist him on those occasions because, as one swung around to check the windrow and then back, one would face directly into the lights and they would "actually blind you". The result of this was that it was difficult to ever get any advantage from the lamps shining towards the windrow. The plaintiff found it easier to do the operation without the lighting pylons. The truck that he was driving that night did not have reversing mirrors fitted to it, however, the plaintiff said that that did not affect his ability to reverse the truck towards the windrow because usually, they were covered in mud and dirt and the humidity underground and combined with the cool air outside usually fogged them up. In addition, there is a sprinkler system which sprays water on the decline to stop dust movement and the dust and the water also causes problems - it covers the mirrors.
The plaintiff advised me that he had never stopped the truck to inspect where he was reversing because of problems with time and the fact that the truck took considerable time to warm up after it had been stopped and restarted. He worked in tandem with another truck and, although it was possible to hear that truck coming up to the ROM pad, that driver would not be able to see him until he was actually on top of the ore pad. He would not be able to communicate with him other than with the use of arms and signs.
The plaintiff said that had he got out of the truck and walked towards the end of the ROM pad (ie. to the windrow) without walking to the very edge and looking down, he would not have been able to see at all. He would not have considered it safe to get out of the truck and walk on to the ROM pad at night because it would be unsafe in the sense of having people around heavy machinery.
In the weeks leading up to his accident, he had never known it to be the practice of the defendant shift bosses to inspect the faces of the ROM pad. He knew that Peter Sculthorpe from Western Metals inspected the ROM pad at the end of each day shift.
In the days leading up to the accident when the plaintiff had been tipping ore, he had not seen the dozer operator working whilst he was tipping.
As to training, the plaintiff undertook a written test as to his ability to drive the truck and was watched by an occupational health and safety representative. This took place six months before the accident.
In cross‑examination, the plaintiff said that the shift bosses' meeting was between the defendant and Western Metals and he could not recall the third party being present at any such meeting. He though that the ore pad was about 30 to 35 metres in diameter – he confirmed by reference to a plain Exhibit 1 that an arrow thereon indicated his direction of travel as he backed towards the windrow. The plaintiff said that even though he took his vision off the windrow for a short time when he stopped his vehicle to commence its reversing, he was going slowly and had a good look at the windrow and continued to do so as often as he could. Although he said that the windrow was in good condition, he was referred to a statement he had made whilst he was recovering from the operation (and on morphine) to the effect that he thought the windrow was a bit low. He said, however, that the photographs he had seen demonstrated that the windrow was not in fact low, although having seen some photographs, he agreed that part of the windrow was lower than the rest. He thought, having seen the photographs, that the windrow in the photographs was not the windrow over which he had been backing, however, later evidence appeared to confirm that it was in fact the case. He persisted with his evidence as to the usefulness of any floodlights and felt that it may have been more helpful if the lights had been higher, for example, using a permanent light tower. He confirmed that the only instructions he received that night as to where to dump the ore was from the previous truck driver. He was not instructed by any of his superiors from the defendant company where to dump his ore. He confirmed that there was a sketch on the whiteboard similar to the one dated 21 June 1998 which gave him an idea and then in effect his instructions as to where to dump. He did not recognise it as the sketch that was on the board on the night of his accident. The plaintiff confirmed that at the time of the accident, he was not aware that anyone was actually loading out from below the area where he was dumping, he in fact thought that they were still in the process of building the primary crusher ie. he knew they were working down there but did not know they were taking dirt away from the face of the ROM pad. He agreed that it was poor practice to dump ore over a live face ie. a face on which loading was taking place. He said that if he had been told that there was a live face, he probably would not have dumped there that night, but that necessarily, he would have asked whether or not they wanted him to tip at that place. In effect, he said he would have put it to his employer to make the decision as to whether he should dump there or at some other place. There were no warning signs on the top of the road to warn that there was a live face, nor were any spotters in use. No reflective tape was used to suggest that there should be no tipping in the particular area he was working at. He agreed that in order to make a good income, it was necessary for all people involved to work as quickly as possible.
In re‑examination, the plaintiff confirmed that he had never been guided by a spotter on a ROM pad before this date.
The plaintiff impressed me as an articulate and intelligent person and someone who appeared to be honest and reliable as a witness. The opinions expressed by the plaintiff as to the various facets of the operation appeared to be firmly and honestly held by him, and the result of "on the job" experience.
Mark Arthur Roderick has had a long experience in the mining industry and has been involved in underground mining for some 12 years. He worked in different capacities. He worked as a shift supervisor, foreman and then site manager at a mine near the mine site for some time and then became the site manager of the mine. Although only 36 years of age, Mr Roderick impressed me as a confident young man whose evidence was accurate and fair. His job as site manager was to start the site up, hire the necessary employees and liaise with the client, Western Metals. He confirmed that the chain of command for the defendant's employees was from himself, to the foreman and then to the various shift supervisors. He confirmed also that the third party began taking the ore from the face of the pad to the crusher about a month before the accident. According to Mr Roderick, Peter Sculthorpe from Western Metals determined where the ore was to be dumped on the ROM pad. Before the information was passed on to the employees on the shifts, Mr Sculthorpe (Western Metals) would meet with Mr Roderick and his supervisors and then the information would be passed onto the crews. Sculthorpe himself would not attend any of the meetings of the defendant. Western Metals were the co‑ordinating entity, controlling the work of Cockatoo, the defendant and the third party.
Mr Roderick was not at the site on the day of the accident, having left two to three days before. He "handed over" to a foreman, George Dodds, before he went, and in particular, he checked the ROM pads to make sure they were in good condition. The ROM pad was about three‑quarters full of paddock dumped ore. The face on which the plaintiff had his accident he thought was in good condition and was at a normal angle of about 55 to 60 degrees. No part of the face appeared to be at a steeper angle than that when he inspected it. The windrows were still in place and although some of the ore was adjacent to the windrows, other parts were two to three and one to two metres away. When he left, the third party was digging about 30 to 40 metres east of the position in which the accident occurred. The ore was being dumped some 50 to 60 metres from the face where the loader was digging. He had not seen a loader operated by the third party working in that area before that particular day.
Had he been told, he said, that the loader would be digging out the face under the areas where the trucks were dumping, he would have stopped the trucks going up there and required Western Metals to get another area to dump - this was because it was unsafe; digging underneath where the trucks were dumping led to a good chance of the trucks going over the edge. Mr Roderick was in no position, he said, to tell the loader operators to stop digging - it was necessary for him to contact Western Metals.
He described the method of digging ore from the face, ie. in such a way to make the dirt "reel" ie. to make it flow down so that it sat at a normal angle.
When he returned to the site, and after the accident, he inspected the accident area. He found that there was no earth beyond the windrows ie. the back half of the windrow was not there. It was as, he said, if the back of the windrow had been eaten away by the digging from the Boral operators. In order for him to see this, he had to have a view from within five metres of the accident site, walking on top of the windrow wall. Some of the parts of the wall were in fact vertical.
He then went down to the bottom and looked at the face from the position where the third party had been working. He saw the face was "under cut" ie. the dirt was dug out was standing straight up and down. In fact, he said, the top was protruding out further than the bottom. There was, in other words, some over‑hanging. The view of Mr Roderick could be seen in the photographs, Exhibit 1.
Mr Roderick had never experienced the use of spotters on the ROM pad and said that if the ROM pad was in good condition, a spotter was not necessary. In his view, it was not safe to have someone on foot at night directing dump trucks on top of a ROM pad.
Mr Roderick confirmed in cross‑examination that, because the windrow was at the edge of the wall to be removed, there would be times when that windrow was removed by the reclamation activity and then reformed up again by the dozer operator. He agreed that where reclamation activity was taking place, that would be considered a live face whether there was a windrow there or not and that it was not good practice to dump in or adjacent to that live face. He agreed that the lights that had been in operation before the accident were sufficient to light the area where dumping was occurring. He was aware that the light was not operative when he left and that the night shift operation was to continue without the lights being there. He agreed that the defendant had a contract with Western Metals to provide illumination and that the defendant was in breach of that contract.
Mr Roderick agreed that signs were available on‑site on 5 July if necessary to warn drivers of any particular hazards on the ROM pad. He also agreed that had he known that there was work being done on the windrow before the plaintiff commenced his shift, he would have prohibited dumping in that area. Although, he said, his own supervisors should have attended to that matter, the ultimate responsibility was that of Western Metals – ie. the defendant chose to leave that decision to Western Metals. Mr Roderick thought that one of the reasons why the plaintiff chose to dump in a particular area was because it was closest to the crusher.
After the accident, changes were made in which the work was co‑ordinated on the ROM site stockpile. The third party began to be invited to the shift meetings with Western Metals and representatives of the defendant were present. Before the accident, this arrangement was intermittent. The defendant relied on Western Metals to advise it where Boral would be taking the ore from, from the face of the ROM pad. As to this, after the accident, a system was implemented whereby dumping and reclamation always occurred in different areas. New lights were obtained and measures were taken to restrict access to live faces ie. pads were completely blocked off by piles of dirt and the windrows were built further on to the pad ie. further away from the live face so that reclamation could occur on one side without undermining the windrow. Mr Roderick agreed that a number of measures which were implemented after the accident should have all been in place before the accident ie. the lights should have been there, the window should have been further in, dumping should have occurred in an area separate from where the reclamation was happening and Boral should have been present at the meetings. Also, he said, the requirement for inspection of the pad by the defendant was also changed after the accident ie. the shift supervisor was required to check at the start and finish of every shift by driving up to the ROM pad on their vehicle and inspecting both the top and the bottom. Mr Roderick advised me that if the pad was clean ie. did not have ore upon it, the face should not be worked at all by Boral, to avoid the windrow moving. He was of the view that on this particular day of the accident, there should not have been any reclamation work going on at all because there were other piles of ore which could be removed. In other words, Boral should not have been taking any ore at all from the position where the accident occurred. Mr Roderick confirmed that there should, in fact, have been a buffer zone of something like 50 metres or so between the area where the ore was being dumped and the reclamation work was taking place - that was a system which was possibly implemented and enforced after the accident. Ultimately, Mr Roderick agreed that if the defendant decided out of an excessive caution to have a spotter, that person could have been used in co‑ordination with the issuing of suitable equipment to the spotter to protect his safety.
As to that, in re‑examination, Mr Roderick said that he had known torches to fail and people on foot to have been injured by moving machinery. Mr Roderick confirmed his view that working as a spotter on foot on top of the ROM pad was unsafe.
Mr Roderick also said that if it was to be the situation that ore was going to be taken from a pad where the trucks were tipping and there was a danger to the defendant, then Western Metals had been in the practice of advising the defendant of this.
Mr Roderick struck me as being a witness who was very certain and fair in his evidence and I had no reason to doubt his honesty and reliability. Once again, as with the plaintiff Mr Roderick's opinions came from practical mining experience.
Troy William Davey was employed in 1998 by Cockatoo. He was an experienced dozer driver. He arrived at the mine site at about 10.00 am in the morning of the accident. Prior to that he had been working on the ROM pad for about four days. When he arrived on the ROM pad, there was basically a full shift of ore loads on the site. The loads had been paddock dumped as previously described and he began dozing the material off the face of the ROM pad towards the crusher feeding point. He was pushing the ore off in a position basically where the accident occurred. The aim was to push the ore over and leave enough material to make the bund walls on the edge of the ROM pad. When he finished his job and left his work, the bund walls were complete and he had pushed off all available ore. While he was doing that, he saw loaders taking the ore from the face of the stockpile to the crusher. He demonstrated on Exhibit C1 where that took place. The loaders were in fact those of the third party. The loaders were eating into the ore that he was pushing over at the time. This occurred within the first hour of his work with the dozer. He was in fact trying to build a ramp out and he was concerned that the loaders were digging out the freshly dozed dirt off the ROM pad. He asked Peter Sculthorpe, his supervisor, whether that was appropriate. The reason for such enquiry to Mr Peter Sculthorpe was that he had been instructed that the Boral loaders were to be working somewhere else and that they were taking away the ore as he was dozing it. He thought that this practice was unsafe, and also that it was achieving nothing because he was actually attempting to extend the pad out towards the crusher. It was unsafe because of the danger of falling rocks occurring as he was dozing, combined with the loading taking place below. He noticed that after he made the complaint to Mr Sculthorpe the loader stopped for a time but then continued the same work again.
When this occurred he stopped his machine and went down the face and spoke to the loader driver. He advised him that he was not supposed to be digging there and pointed out an area where he thought that the loader operator should be digging. He had seen Boral loaders digging at the face of the ROM pad on occasions before this. He said that he had walked about three quarters of the way down the face in order to speak to the operator. The man apparently acknowledged what he had said by saying "yep, no worries" and Mr Davey walked back up and continued to finish his work. He said that the face he walked down was a natural pushing face of about a bit less than 45 degrees. The area he had walked down was basically where the accident took place.
The next day he went and inspected the accident scene - he was shown photograph 14 of Exhibit 1. This is a photograph taken from the top of the ROM pad where the truck fell. He was able to point out the ore which he had been pushing over on the day of the accident. At that time he said that the face of the ore was about 45 degrees. He described the bund wall which he had left. Such a wall he said was "basically normal" about two to 2‑1/2 metres in width and about 1‑1/2 metres high. It was about one to 1‑1/2 metres he thought from the edge of the ROM pad. The bund wall had been left by him as a safety practice to protect trucks and anyone working on the top of the ROM pad. When he went back the next day, he saw that the bund wall which he had left was almost entirely removed in some places with a very steep angle to the face. The condition of the wall the next day (confirmed by photographs he saw) was not the same as he had left it the day before. He described the condition of the face as being "very, very unsafe". At page 161 of the transcript, he said that he felt it was unsafe because of "the fact that there's hang ups there and over hangs and a fresh excavation. There was, like, cracks there. It was unstable - the ground was unstable, so I immediately stepped back and didn't go back near it. Actually after that I think I had tagged out some tape and actually flagged the area off". He was unable to describe the loader operator he spoke to but thought that there had been two loaders working from time to time at the face. He could not recall waving to any loader operator that day but felt that he may have. He was referred to a previous statement he had made to the Department of Minerals and Energy. He explained a statement in the statement to the effect that he didn't speak to the driver of the loader on the basis that that meant that he did not speak to the loader operator on top of the ROM pad. The context of the statement appears to confirm this evidence. Of significance is the fact that the statement was taken by another person and not written by the witness. At all times in the cross‑examination he was firm in his evidence that he had walked down the stockpile and had spoken to the loader driver.
In re‑examination he confirmed that he rarely walked down the face of a stockpile.
I had been able to observe Mr Davey give his evidence and being cross‑examined - he did not attempt to prevaricate in the course of his evidence. Prima facie, I had no doubts as to his veracity and reliability. In particular, the cross‑examination provided an insufficient basis upon which I could doubt his evidence.
Rodney Bruce Paulin was the shift supervisor underground at the relevant time working for the defendant. He was in fact the shift boss, his immediate superior being Mr Mark Roderick. He was in charge of the shift when the accident occurred on 5 July 1998. Having received instructions from Western Metals (Mr Sculthorpe) as to where the ore was to be dumped, he passed that on to the relevant drivers. It was not the practice before the accident for shift bosses employed by the defendant to inspect the ROM pad before each shift.
After the accident, he inspected the accident site from the bottom of the face. He thought the top was flagged off. Rather than being about 43 degrees, which was the normal case, he said the faces of the ROM pad on either side of where the truck came down were almost vertical. Had he known that he would not have allowed his drivers to be dumping ore in that area because it was unsafe. No one told him at the start of the night shift that the faces on the southern side of the stockpile or ROM pad were at a steeper angle then 43 degrees. He was not made aware of the fact that before the start of the shift. Had he been told that there had been some loaders employed by the third party digging ore from the face he would have inspected the area to ensure that it was safe to dump there before he sent his men up there. He felt that the ore on the face at that time was relatively fresh ore. He agreed in cross‑examination that before the accident, the third party was not represented at the defendant's shift meetings. He agreed that on any given shift there was a white board with a mud map to show where the dumping was to occur, as instructed by Western Metals. Generally, he said his communications with Mr Sculthorpe getting instructions took about two minutes, although he would always ensure that he understood the instructions. He could not recall whether he had been told at the time that the lights were not working on the ROM pad.
He confirmed that if he had seen the state of the face before the shift commenced he would have spoken to Sculthrope to find out where else the dumping could have taken place ie away from a face that was "going to be attacked" from the bottom by the loaders. As far as he was concerned, dumping in the area of a live face was forbidden. He confirmed that he was the most senior person on behalf of the defendant on duty that night.
Mr Paulin appeared to me to be a truthful witness and a witness upon whose evidence I could rely.
Alfred George Dodds is an experienced underground miner and was the underground foreman at the relevant time with his immediate superior being Mr Roderick. Mr Paulin was the nightshift boss and Mr Davey the dayshift boss and the time both were answerable to Mr Dodds.
Mr Dodds confirmed that Western Metals gave the instructions as to where the ore was to be dumped on the ROM pad and how those instructions were given. Having visited the scene of the accident the next day he confirmed that the tyre marks of the truck disappeared at the edge over which the truck had fallen. The same could be said of some dozer marks that he saw. As to the decision whether all of the dump material was to be pushed over the edge of the face that was in the hands of Western Metals. He confirmed that the face where the accident occurred was undercut and that a loader from the third party had dug out those areas - he said that the bund was "sitting up there like a crust sort of thing ready to collapse in places". Significantly, he said that one could not see that from looking from the top of the ROM pad - he had made his observation from below. He confirmed that after the accident there was a change in the way in which areas which were being dug out below were marked out. The markings are made by empty drums with painted arrows on them.
In cross‑examination he could not recall going on a tour of the mine site and the stockpile with Mr Roderick before he left on his break shortly before the accident. He did remember, however, going to the stockpile during the period or two to three days before the accident to inspect it with Mr Roderick. He confirmed that he removed the lighting plant from the ROM pad so that the dozer would not damage it in any way. The lighting was also giving difficulties. When cross‑examined as to various places where the light could have been positioned, Mr Dodds appeared to have some reservations, saying that there were positions which might possibly have been unsafe or have shone in the eyes of the dozer operators. He confirmed that at some points the windrow was uneven and that on the "load out" side of the windrow the face was steep, possibly vertical, and even undercut. He said that one could not see this situation ie. the state of the face unless one was standing on the top of the bund itself ie. unless one obviously was standing in an unsafe position bearing in mind his evidence that there could be a crust which forms and under which it could be undercut. He confirmed that if he had known that the defendant's drivers were dumping next to a live face he would have stopped it. There were various means by which this could have been stopped and he detailed these.
He confirmed that the lighting lit up a fair amount of the pad possibly up to 100 to 150 metres, however, it would not shine over the top of the bund wall. This obviously includes the face of the wall beyond the bund and going down to the other side where the third party's loaders would have removed the ore.
In re‑examination Mr Dodds confirmed that if he had been told that the face over which the truck went had been dug out in the way in which evidence had been given, he would have stopped the ore trucks dumping immediately.
Mr Dodds was an honest and straightforward witness whose evidence was reliable in my view.
Gary John Auld is a senior rock mechanics engineer with considerable and lengthy experience in mining. He confirmed that a face of the type next to the ROM pad in this case, had a natural angle of repose which had a tendency to hang up "or cook or form a crust" which may fall down to its natural angle of repose at any given time. This is particularly the case if there is a weight on top of the edge where there is a steeper angle then normal. His evidence was that the proper way to move a face was to take it away in such a way that the angle of repose could be recreated in a controlled manner. This can be achieved by digging at different spots along the length of the face, in addition to working at different heights. In his experience, it was very important for the loader operator given the job of digging out a face, to know these different ways of controlling the collapse of the face; firstly for the loader driver's self‑preservation, secondly to protect anyone who may be at the top of the rill or at the top of the face because of the difficulty in seeing what is being done on the face itself and down below. Mr Auld's opinion was that when the face was being removed it was critically important to have a system of continuous inspection of the face. The person in the best position to access any danger created by digging was the loader operator or some other person down below. In Mr Auld's view on the basis of his previous opinion, the entity at the bottom, who was in fact changing the shape of the face, was the party who should be in charge of the whole ROM pad, that is the material coming in and out and going out. There should, he said, be a continuous communication between the truck drivers delivering the ore and the loader operators down below. The loader operator would be required to tell the truck driver whether or not the face was dangerous ie. undercut and not to go there. He also said there should be a system by which the loader operator could tell those delivering at the top whether or not the face was dangerous. In his view, an undercut face would be dangerous and that information should, in his view, be passed on to the truck driver by the loader operator. Having given the circumstances of this matter and the assumption set out on page 231 of the transcript, it was his view that it would not have been safe to use a spotter as suggested by the third party, even if that person had a torch and reflective clothing, in his view he would have not regarded it as safe. Further, he said, that bearing in mind the type of trucks involved the provision of a mirror would not have removed all blind spots. As to the failure of the face with the truck on top of it, Mr Auld told me that sometimes the failure was instantaneous and any cracks that might be by way of a warning would be obliterated by the vehicle and the wheels moving backwards and forwards. In his view also it would have been dangerous for the driver of a truck firstly to get out of the truck per se to inspect the edge of the ROM pad but, more particularly, to stand near the edge of the ROM pad if it was in fact in a dangerous condition. On the basis of Mr Auld's evidence it is difficult to see how it would have been practical and not dangerous for an on‑foot inspection of the edge to have been conducted by the driver in the place of the plaintiff.
In cross‑examination Mr Auld confirmed that it was dangerous to dump near a live face but would not accept that if one were on a stockpile it was straightforward to know where the live face was. It may be possible, he agreed, to have a better idea of the shape of the face if one were to drive around to the face but would not accept that if one were on a stockpile it was straightforward to know where the live face was. Thus, he agreed that if one were to drive around to the face one could, given certain restrictions, be able to ascertain the state of the face. The restrictions involved the necessity to have a very good lighting system and to be able to have a panoramic view of the face from the bottom.
In Mr Auld's view, to use lights at the top of the stockpile could, in certain circumstance, make the position worse because it could get in the eyes of those operating the dump trucks. If, in some way, that could be avoided, he said it could be an advantage to have the lights. In any event he said even with the lights it would not have assisted the driver to be become aware of the undercut situation of the face. He also confirmed that it would have been good practice for a person instructing the drivers to ensure where the live face was and give instructions to avoid dumping taking place at that live place. He agreed that it was not good practice for there to be a situation where the supervisor would not be aware of where the live face was, the key he said was to separate the two activities of dumping and removing the live face.
As far as the need for a spotter was concerned, if such a person could observe the situation on the downstream side of the operation to ascertain what was happening on the face and be able to inform those unloading at the top where it may or may not be dangerous; in such a case, however, there would need to be communication between that person and those at the top of the ROM pad. He was of the view that the loader driver would be in a good position to know the state of the face - this appears to be common sense. Communication with the truck drivers could be by radio, there would be no necessity for the person communicating from below to see the driver. He agreed with the proposition that it would be necessary for the plaintiff's supervisors (ie. from the defendant) to know the condition of the stockpile ie. the face before the plaintiff began his shift. It was his view that the person controlling the face would be the one who would be able to determine where it was safe to dump the ore ie. third party rather than the defendant. It was his view that not only should there be a meeting at the beginning to determine where the dumping was to take place and in relation to the state of the face but there should be a two‑way communication during the whole of the operation.
In re‑examination Mr Auld confirmed that if there was a situation where the face was undercut and there was a radio system in existence then the loader operator down below should warn the dozer operators above.
There was no question as to the credibility of Mr Auld - his evidence as an expert will be commented on in due course.
John Stewart Ferguson Dunlop is a consulting mining engineer. He has a number of relevant qualifications and has worked in the mining industry for some 30 years. He has had a practical experience in mining for many years. He was retained as an expert witness on behalf of the plaintiff and was present in court to hear the evidence up to the time he was called to give evidence.
He confirmed that the type of ore involved in this case namely zinc sulphides had a propensity to "hang up" but, more importantly, when dug, a free face would tend to stand up at an angle greater then the natural angle of repose.
Significantly, he said that if one was unaware of that propensity and the face was at a steeper angle than 45 degrees, then to an inexperienced operator there would be nothing other than the angle to indicate that it might be unstable. An experienced operator driving a loader down below might be able to see in the face that it was under-cut and/or overhanging. Similarly an experienced driver at the top may be able to see some tension cracks.
It was his view that given a five metre face of the type involved in this case the safe working practice so far as the loader operator was concerned was not to undercut the face. An experienced loader operator would be able to use the bucket controls to ensure that the face came down in such a way that a progressive failure was maintained and a natural angle of repose was also maintained. If the face was undercut then it would be potentially unsafe for people above. As one cut the face from below it was necessary to correct any undercutting from time to time. It was his view that under normal circumstances the face should never be left undercut. In his view it was normal working practice and the proper way to leave the face at approximately a 45 degree angle when the loading out job was complete. It was his view that if he had been working as a loader operator, he would warn the truck drivers at the top of any unsafe condition of the face.
His evidence was that if he was a supervisor of an inexperienced loader driver ie. someone who would not know the danger involved in undercutting a face, he would ensure that he kept an eye on the situation. If he found that the situation was unsafe he would go as a supervisor to the top and warn the truck drivers and or their supervisors. He agreed previous evidence as to the lack of safety involved in having a spotter on foot whilst the dozing operation was proceeding. In his experience use of spotters and artificial lighting is by no means the general rule. As to the use of flags and other things to mark out areas where it was unsafe to dump he stated the obvious, that is, that one would need to know where to put them and the fact that a hazard existed. Such a hazard would include the undercutting of the edge sufficient to cause it to collapse in the manner which occurred in this case.
Once again as with other witnesses in cross‑examination Mr Dunlop agreed that it was not good practice to dump near a live face. He agreed that the best practice was for the operator to move along the face wherever possible leaving a 45 degree slope or better, to the crest. Mr Dunlop confirmed that the responsibility for ensuring that the face was safe to be worked or for work to take place above it was primarily the responsibility of Western Metals. Mr Dunlop confirmed the advice he gave to the plaintiff's solicitors as to shortcomings in the defendant's operation leading up to the accident. These matters have largely been mentioned by previous witnesses and in particular the absence of any inspection system for the possible hazard to be detected, was highlighted. Contrary to the evidence of some other witnesses Mr Dunlop felt that lighting may have assisted drivers to perceive the hazard. He did note that the driver may be able to see the top of the windrow however in the light of the evidence that I have received to this date I doubt whether the drivers would have been able to see the state of the face. He confirmed that there were difficulties with lighting as previously described by Mr Skinner.
In re‑examination, Mr Dunlop was of the view that absence of additional lighting was a causal factor in the accident but not a major one. He confirmed that in his report he had attributed failures on behalf of all parties including the third party, as to the cause of the accident.
Finally Mr Dunlop mentioned that had the windrow been set back three metres and the truck started to collapse at the edge at five metres the position of the windrow would not have made any difference. This tends to suggest that if the face is inherently dangerous then the position of the windrow may not be necessarily relevant.
Mr Dunlop was a very reasonable and fair witness and in my view credible.
Aubrey Daniel Greatorex is an underground grader driver. Apart from some limited experience with the third party as a loader driver Mr Greatorex's main experience was with the Main Roads Department as a grader driver and driving loaders. When he arrived at the mine site the removal of ore from the stockpile had commenced but was not in a continuous process because the mine was just being opened up. When he did work on the face it was a "round the clock" exercise and he was working day shift. On 5 July 1998 he was working as a loader driver and another man employed by the third party one Gary Patullo was operating the crusher. He had been given instructions by one Chris Ward to reclaim the ore from the face and those instructions were to the effect that he was taken to the face and told to proceed with the job. At the time of the accident Mr Ward had been absent from the site for two to three days. Mr Greatorex had been at a handover meeting with Kevin Beahan and Tyson Cawte, who had been on the nightshift. The only instruction he received was to carry on taking the ore from the face from the area they had finished off.
When he started the work he noticed the windrow at the top; he knew the name of the dozer operator - Troy Davey. As he worked on the face he saw activity on the top of the stockpile and saw Troy Davey pushing dirt there with the bulldozer. He said that he was about 15 metres to one side of the area where Troy Davey was pushing the ore over the side. He said he had no contact at all with Mr Davey - he just gave him a wave. When he was asked whether he spoke to Mr Davey his answer was "no contact, no". The last time he saw Mr Davey was 2.00 pm that day on the edge of the face where he was taking dirt from where the accident occurred. Mr Greatorex said that after he had then finished his work at 5.30, he drove his loader up to confirm that the windrow was intact. He was of the view that it was safe and looked at it about 15 metres back from the edge. He was not aware that any dumping was going to occur in the area he was working on after his shift finished because it was a live face where he was working.
When he was cross‑examined Mr Greatorex confirmed that he had given a statement to an inspector of the Department of Mines (Mr Giffin) two days after the event and told him that he had not worked on a mine before.
Mr Greatorex conceded no one had taught him to dig away the face in that way; that he had in fact received no instructions as to the right or wrong way of digging the face of the ROM pad.
When he went to work on 5 July 1998, his instructions were that he was to dig ore along the southern face including the area where the truck fell - the exact position of where he was to take ore was left to him; in addition the amount of ore taken, and the method used was left to him.
It appeared that Mr Greatorex was untrained as to the digging of ore from a face and was working entirely on his own instructions. He was aware that if there were trucks on the ROM pad they would be involved in the dumping of ore. He was also aware of the fact that paddock dumping as described by previous witnesses would be taking place.
He was aware that when he finished work on 5 July, that paddock dumping would begin on the nightshift - he did not know where the trucks would be dumping on the next shift and for all he knew it could have been along the same face that he had been working on.
He then confirmed his previous evidence to the effect that he checked at the end of his shift about 5.30 pm to see if the windrow was in tact. He then confirmed that he had made a statement to Mr Giffin to this effect: "In the afternoon, I went up on top of the top section of the ROM. The dozer had gone. I drove the loader up. I went up to see how much windrow was along that bank next to the face that I had been bogging. There was a windrow all the way along. I came back down and continued to work the face. When I finished at 5.30, I didn't go back up". This is, in my view, a significant inconsistency and was not adequately explained by him. He was cross‑examined as to whether he could see the windrow from the bottom and said that he could although he did go to the top "just to have a look". His evidence was not particularly satisfactory on this point. He admitted that he went to the top to have a look because he was concerned that his digging at the face might have created a dangerous situation. Notwithstanding this, he did not report his concern to Mr Patullo. He said that he realised at the time that the edge of the ROM pad was unstable he would have told Mr Patullo and would have made sure that something was done about it. In particular he would have ensured that no trucks would be backing up to the edge near where the unsafe condition lay.
Mr Greatorex admitted that he was concerned about the accident having occurred as it did and that when he spoke to Mr Griffin he was keen to show him that he had done everything that he could have possibly done - and that is why he had told him that he had checked the windrow before he finished work. He then admitted, notwithstanding his previous evidence, that he went up and checked the ROM pad and the windrow, then went down and did more digging and finished work. This was contrary to his evidence in chief.
Similarly he admitted that he did not actually drive his loader onto the ROM pad. In fact his loader only got as far as the access road. It is clear to me that he had been attempting, in examination in chief, to suggest that he drove his loader on to the top of the ROM pad when he in fact, as he agreed, was "not right on top" of the ROM pad. His evidence at this point of the cross‑examination was most unsatisfactory in my view. In his statement to Mr Griffin, he had in fact said, as he said in examination in chief, that he went up on top of the top section of the ROM pad - there was no mention of simply going up to the access road.
He denied that he had spoken to Mr Davey in the terms mentioned by Mr Davey in his evidence.
Having seen Mr Greatorex giving his evidence and noting the contents of it, I found that he was an unsatisfactory witness and one who was very concerned to ensure that he could not be blamed for the happening of the accident. Perhaps this is natural but he was an unreliable witness and I had some considerable doubts as to his credibility. He was a witness who could not be relied upon, in my view, by the third party to promote its case and one upon whom I could not rely in terms of making factual findings. As to one of the key questions whether or not he spoke to Mr Davey, in the light of the circumstances and of the findings I have already made, I find on the balance of probabilities that in fact a conversation did take place between Mr Davey and Mr Greatorex in the terms mentioned by Mr Davey.
Kevin William John Beahan had considerable experience working in the crushing industry and had been at the site several months before the accident. He also worked as a loader operator. When he got to the position where the accident had occurred he did not look at the condition of the ore pad or the face. He said that before the accident the windrows were pushed up to the edge of the face but that had changed after the accident.
Gary Desmond William Patullo is a plant operator with considerable experience. He was employed by the third party as a crushing operator and leading hand and was in charge of the site in the absence of Chris Ward who was, in fact, absent for several days including the day of the accident. In cross‑examination Mr Patullo confirmed that no instructions were given to him or to anyone else working on the face as to where the digging should take place. He recalled that when he was doing the digging, the face was being dug from the face and that freshly dumped ore was being loaded there on the top of the ROM pad. He confirmed that he gave no instructions to Mr Greatorex as to any part of the digging process.
After the accident the third party was required to go to meetings with the Western Metal supervisor to receive instructions as to where the face was to be dug. Further, the third party would be told about the dumping proposals on the ROM pad. He confirmed that it was unsafe to be on foot near the working of machinery of the sort involved in this matter.
Mr Patullo was an apparently honest and reliable witness.
Christopher Leo Ward was a site manager at the mine site and was involved in commissioning the crushing plant. He confirmed that after the accident, the VHF radio was placed in the loader so that the defendant could be contacted. He spoke of other changes in the arrangements after the accident. He had little knowledge of the exact work being done on the ROM pad or the face at the time of the accident. Contrary to what Mr Patullo said, Mr Ward said that he did give instructions to Mr Patullo as to where the loader should continue working.
Ian Webster Loxton is a semi‑retired mining engineer with considerable experience in private and deep metal mining. When he was asked his opinion as to a safe position for windrows to be located his answers were not particularly firm in my view; he thought within the region of five metres but was prepared to say that a windrow locater on the edge of a stockpile where dumping was occurring would be a "waste of time". He confirmed that there should have been meetings to confirm where the dumping was taking place and in relation to the work on the face. This opinion was the same as most other witnesses. He spoke of the need for spotters, flagging off areas and lighting unless a written exemption from the district inspector was required. He thought also the trucks needed reversing mirrors. In cross‑examination, Mr Loxton said the following:
1.If a face was severely undercut it could be dangerous.
2.That knowledge is required of that danger.
3.That any danger should be reported.
4.If the dangerous condition in the face has been brought about by a loader operator he should report it to someone - if the loader operator did not have sufficient experience to know whether what he had done was dangerous then his supervisor should report it.
He did not accept that there was danger in someone being on foot on the ROM pad at night if he was properly instructed. Mr Loxton agreed that if one was on top of the ROM pad and one could not see the face that is undercut, having lighting on the top would not assist. The same could be said about rear vision mirrors.
Findings on fact and liability
It was a recurring basis of cross‑examination, especially by the third party that the ultimate decision as to the dumping of ore on the ROM pad, and hence the movement of trucks thereon as part of the continuous process of dumping and removal of ore from the face, was in the hands of Western Metal and that the third party worked under the direction and supervision of Western Metal. It was the submission on behalf of the third party that its operations therefore were effectively in the hands of Western Metal and that it could shield behind Western Metal on the question of liability. Various authorities were cited as to this aspect.
It should be remembered, however, that the extent to which the third party can so shield behind Western Metals depends upon the circumstances existing at the time, whether or not the third party was under a duty of care itself to other users of the site, and whether this duty was breached (see Riden v A C Billings & Sons Ltd [1957] 1 QB 46. Also, see Mounsey v Orange Grove Bricks Pty Ltd & Ors, unreported; FCt SCt of WA; Library No 960105; 29 February 1996). In the latter case the first respondent was an occupier of the site on which the plaintiff was, as an invitee, injured. The first respondent had engaged the second respondent to carry out potentially dangerous operations on the site, but remain in control of the site. The second respondent, however, through its employee, was in control of a bulldozer which was carrying out potentially dangerous operations such that persons too close to the work could possibly be injured. The Full Court found both the first and second respondents liable on the basis that both respondents had such a relationship of proximity to the plaintiff that a duty to take reasonable care to avoid a foreseeable risk of injury to the plaintiff arose in respect of both respondents. Reference was made by the Supreme Full Court to Australian Safeway Stores Pty Ltd v Zaluzna (1986‑1987) 162 CLR 479 at 488 and Jaensch v Coffey (1984) 155 CLR 549 at 580 per Deane J. The Full Court also cited the dicta of Mason CJ, Deane and Gordron JJ in Bryan v Maloney (1995) 182 CLR 609. At page 617, their Honours said:
"The cases in this Court establish that a duty of care arises under the common law of negligence of this country only where there exists a relationship for a proximity between the parties with respect to both the relevant class of act or omission and the relevant kind of damage. In more settled areas of the law of negligence concerned with ordinary physical injury to the person or property of a plaintiff caused by some act of the defendant, reasonable foreseeability of such injury will commonly suffice to establish that the facts fall into a category which has already been recognised as involving a relationship of proximity between the parties with respect to such an act and such damage and as 'attracting a duty of care, the scope of which is settled;'"
In the present case, a number of circumstances point to there being such a relationship of proximity between the plaintiff and the third party that a duty of care on the part of the third party arose towards the plaintiff ie.:
1.It is clear that in the several days before the accident, it was the third party and not Western Metals which decided the position on the face from which ore was to be removed.
2.It was the third party, not Western Metals, which determined which of its employees would do the work (and hence make a decision as to the level of training such a driver may have).
3.It was the third party and not Western Metals which determined how the work was to be carried out and how much ore was to be removed.
4.It was the third party and not Western Metals which determined whether and to what extent there would be any supervision of the work of the loaders on the face.
Generally, it was the third party and not Western Metals, which was in the best position to know at the earliest opportunity of whether its work had the potential to create a danger to other users of the site, including drivers such as the plaintiff. Similarly, the third party was in the best position to avoid such damage. Thus, in my view, it is clear that it is no answer in this case for the third party to rely on the position of Western Metals as the principal of the mine – and because of that much of the cross‑examination of various witnesses on behalf of the third party was of little value.
It was, in fact, ultimately conceded by counsel for the third party that it was negligent, such concession inherently accepting that a duty lay towards the plaintiff and that there was a breach of that duty of care by the third party.
On the basis of the consideration of the evidence above, and in the final analysis, many facts were not in issue eg.:
1.The operation was a dynamic one in which there were a number of parties working on the site using large machinery shifting large volumes of ore from various places at the same time.
2.There was little ongoing communication between the various parties in the course of these operations.
3.Similarly, there was little ongoing communication between the parties as to the state of the work at the end of each shift and therefore a lack of a proper basis on which the new shifts could be instructed as to where to work and the possibility of any dangers existing.
4.The work was carried out at night with the additional risks ie. the difficulty of seeing the state of the windrows on the face side in particular, and of the face itself.
5.The need for speed to ensure productivity and of course the rates of pay received by the operators from time to time.
With this background, it is appropriate to approach the positions of the defendant on the one hand and then the third party. It was conceded, as I have already said at an early stage of trial, that the defendant was negligent. It is appropriate to look at the various allegations of negligence made by the third party against the defendant. It was alleged in par 8.1 that the defendant failed to provide or construct an adequate windrow set back from the edge of the ore pad so as to warn the plaintiff of his proximity to the edge of the ore pad and to prevent the plaintiff from driving his vehicle near the edge of the ore pad. The plaintiff, in particular, did not accept that this was the position and the evidence generally suggests in my view that the windrow was of an adequate size and shape and that it was set back at a reasonable distance from the edge of the face. His evidence was confirmed by Mr Davey. It is clearly the evidence that the windrow was damaged by the work of Mr Greatorex (the loader driver) as he took ore from the face and in fact under-cut it on some occasions to such an extent that the windrow was to some extent removed. I do not accept that the defendant was negligent in this respect.
In par 8.2, the third party alleges that the defendant was negligent in failing to provide lighting at the ore pad to assist the plaintiff to carry out the unloading procedure. On the basis of the evidence already canvassed, it is clear that it was the opinion of employees and also some of the experts that lighting on the ore pad may have assisted the plaintiff in the course of the operation of unloading ore generally but it is a reasonable conclusion to draw from the evidence that the lighting as suggested would not have assisted the plaintiff in the position he was driving, and in the course of the operation to see the face side of the windrow and the state of the face at night. It is also the case that the lighting suggested by the third party in cross‑examination could well have constituted a danger in the manners suggested by the various witnesses including the plaintiff and, in particular, Mr Auld.
It was alleged in par 8.3 that the defendant was negligent in failing to install reversing mirrors on the plaintiff's vehicle. Once again, I am not satisfied that the reversing mirrors could have assisted the plaintiff or the defendant's employees generally in seeing the state of the face – it appears to be not uncommon for vehicles to be driven without reversing mirrors in the industry.
It was alleged in par 8.4 that the defendant failed to provide a "spotter" to assist the plaintiff reversing his vehicle towards the edge of the ore pad. Once again, the evidence suggests that the use of spotters could involve dangers and in the context of the industry and the operation which I have described it is my conclusion that the use of a spotter on the ground though the vehicles of the size and the operation generally would have itself constituted a danger and would have taken the minds of the plaintiff and the fellow drivers off the job they were doing. Further, as Mr Auld told me, the value of a spotter was dependent upon proper communication at all times. I do not consider the defendant to have been negligent in this regard.
Par 8.5 suggests that the defendant failed to provide the plaintiff with any adequate instruction and training – on the evidence of the plaintiff I am unable to find that this allegation has been made out.
As to par 8.6 I find this difficult to understand. The suggested requirement, in any event, does not accord with the accepted practice. This allegation has not been made out.
Par 8.7 suggests that the defendant was negligent in failing to warn the plaintiff by various means as to the area of the stockpile on which the third party had been carrying out its works and which was either known to the defendant or should have been known to them. The same type of allegation is in par 8.8 in that it is alleged that the defendant failed to implement and enforce any system or proper system of supervision of the plaintiff's work, or inspection of the stockpile to ensure that the plaintiff was adequately instructed and/or warned as to a safe area to unload his vehicle and as to the risk of driving his vehicle in the area where the third party was carrying out the works.
These two allegations go to the crux of this matter in my view. It is clear, in my view, that the defendant failed to provide an adequate system of communication and instruction to its employees as to the state of the work from time to time on the ore pad. It is my view that had there been in place on the part of the defendant a system by which at the beginning of each shift the face was inspected and the drivers were informed of the state of the face and any dangers in it, and had the defendant thus known of the state of the face, the accident may have been avoided. On the other hand, it is clear in my view that as stated below, that the state of the face was caused by the third party and that it, the third party, was in the best position to inspect the face and to report on it. Indeed, the third party was, in the circumstances, the only party in this matter which would have been aware of the unsafe condition of the face and the extent to which it was unsafe.
I find that there was negligence on the part of the defendant on the basis that I have already mentioned.
Par 8.9 alleges that the defendant was negligent in failing to ensure that the ore pad was constructed in such a manner as to provide an incline to the working edge of the ore pad and therefore to prevent the plaintiff's vehicle from falling – this was not the work of the defendant and was in fact in the hands of the third party.
Finally, as to par 8.10, it was alleged that the defendant was negligent in not allowing the plaintiff to get out of his vehicle to check the area where he intended to unload the vehicle – the plaintiff himself spoke of the dangers inherent in this and they are clear on the evidence of other witnesses – this allegation of negligence is not made out in my view.
The defendant, I repeat, was negligent. Had it had systems in operation where such advice could have been received and become known to its shift bosses and passed on to the shift drivers, the plaintiff could well have been placed in a position where he was aware of the danger which existed and thus avoided injuring himself.
Turning to the position of the third party, it is clear in my view that its employees were given insufficient training and little, if any, supervision by it. Mr Greatorex in particular lacked relevant experience in loading from faces and was given little training and supervision, the evidence suggested that these were necessary even for an experienced person working on faces of this nature. Mr Greatorex was given no instruction as to this particular face and it is clear that his method of loading from the face was flawed, had the third party been properly supervising his work and inspecting it from time to time, this deficiency in Mr Greatorex's work would have become obvious to it.
I have already said that Mr Greatorex was warned by Mr Davey but, notwithstanding that, continued to work on the face knowing that trucks were operating in such an area so as to make the continued operation by them dangerous. I also confirm that Mr Greatorex did inspect the face but not particularly carefully but even having done so continued and being apparently concerned that it could be dangerous, did further work on it thereafter, and then in a deficient manner.
It is clear that Mr Greatorex left the face in a dangerous condition and failed to warn anyone of this position, including his own employers.
It is clear also that the third party did not have a system in existence to check the work of its employees or to communicate the dangerous condition of any face to drivers on the ROM pad.
In this particular case, the dangerous condition of the ROM pad and hence the danger to users of the ROM pad was caused by the third party, in my view, through its employee Mr Greatorex. These conclusions confirm that the third party, in my view, was negligent in the manners alleged in par 11 of the defendant's statement of claim against the third party.
The real question is the extent to which each of the defendant and the third party were negligent. It is not a case in my view in which it could be said that they both were equally negligent. In this case, the primary cause of the dangerous condition of the site was the failure of the third party to properly load from the face and leaving it in an unsafe condition. Further, the third party was in the best position to know of the dangerous condition of the face and failed to warn the users of the site of this.
Because the negligence of the third party created the dangerous condition of his face in circumstances where the third party failed to advise other users of the situation, I consider that the third party should bear a high proportion of the blame for the accident, and of course, the plaintiff's injuries (see Coles & Ors v Montague Grant Architects Pty Ltd & Anor, unreported; FCt SCt of WA; Library No 950374; 12 June 1995).
An appropriate apportionment is 70 per cent against the third party and 30 per cent against the defendant.
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