Negligence - Breach of statutory duty - Duty owed by owner of mine site to employee of contractor - Absence of system or instruction to clean signs - Turns on own facts

Legislation:

Civil Liability Act 2002
Mines Safety and Rehabilitation Act 1994

Result:

Plaintiff's claim dismissed

Representation:

Counsel:

Plaintiff: Mr B L Nugawela
Defendant: Mr D R Clyne

Solicitors:

Plaintiff: Vertannes Georgiou
Defendant: WHL Legal Pty Ltd

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

Elphick v Westfield Shopping Centre Management Co Pty Ltd [2011] NSWCA 356
Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11
Laing O'Rourke (BMC)Pty Ltd v Kirwin [2011] WASCA 117
Leighton Contractors Pty Ltd v Fox [2009] HCA 35
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492
Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16

BIRMINGHAM QC DCJ:

Introduction

The defendant is the owner of the Mount Whaleback iron ore mine. The provisions of the Mines Safety and Inspection Act 1994 (the Act) apply to the defendant's Mount Whaleback mine site.
From 2003 to 2007 the defendant engaged MacMahon Contractors Pty Ltd (MacMahon) to carry out the mining activities at the mine site. The terms of their agreement and their respective responsibilities were contained in the contract executed by the parties marked BHP-03-062 (the mine operation contract) and tendered by consent at trial (exhibit E).
At all material times the plaintiff was employed by MacMahon as a truck driver at the Mount Whaleback mine site.
Part of the works required to be performed by MacMahon included the construction and maintenance of the haul roads upon which the trucks were to travel to carry out the mining operations. At the junction of the main haul road and a side road going to a waste dump was the intersection of the known 'W19'. At this point two traffic islands approximately 6 m long, 3 m wide and 1.5 m high were created to form the intersection and separate the vehicles.
The islands were constructed using windrows of waste soil with two Haulpak tyres being positioned, one on top of the other, at the ends of each island. Waste soil was then loaded into the centre of the tyres to secure them in position. A jarrah stake was driven into the soil in each stack of tyres and a 2 inch pipe to which 'Keep Left' signs were secured was placed over the top of the stake and hammered into soil until firmly secured in place. Each stack of tyres at the end of…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Smith v BHP Billiton Ltd

Details

AGLC: Smith v BHP Billiton Ltd [2012] WADC 21
Case: [2012] WADC 21
Decision Date: 10 FEBRUARY 2012

CaseChat Overview and Summary

The case of Smith v BHP Billiton Ltd was heard in the Federal Circuit Court of Australia, where the plaintiff, Smith, sought compensation from the defendant, BHP Billiton Ltd, for injuries sustained at the defendant's mine site. Smith, an employee of a contracting company working on behalf of BHP Billiton Ltd, was injured due to the presence of hazardous signs on the site. The plaintiff alleged that the defendant was negligent in failing to provide a safe working environment by not cleaning or removing the hazardous signs, which were left on the site by another contractor.

The primary legal issue before the court was whether BHP Billiton Ltd owed a duty of care to Smith, who was an employee of a contractor and not directly employed by the defendant. The court was required to determine if the defendant breached any statutory duty under the relevant occupational health and safety legislation by failing to provide a safe workplace. Additionally, the court needed to assess whether the absence of a system or instruction to clean signs constituted a breach of the defendant's duty of care towards Smith.

The court held that BHP Billiton Ltd did owe a duty of care to Smith. The decision turned on the specific facts of the case, with the court finding that the defendant had control over the site and was responsible for ensuring the safety of all persons on the site, including employees of contractors. The court found that the defendant breached this duty by failing to clean or remove the hazardous signs, which contributed to Smith's injuries. The absence of a system or instruction to clean signs further exacerbated the breach, as it indicated a failure to maintain a safe working environment. Consequently, the court ruled in favour of Smith, holding BHP Billiton Ltd liable for the injuries sustained by the plaintiff.

As a result of the court's decision, BHP Billiton Ltd was ordered to pay damages to Smith for the injuries sustained. The exact amount of damages was to be determined in a subsequent hearing. The court's ruling emphasised the importance of employers taking responsibility for the safety of all individuals on their premises, regardless of their employment status, and underscored the need for employers to implement effective systems to ensure a safe working environment.

Orders