Smith v BHP Billiton Ltd - [2012] WADC 21

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: SMITH -v- BHP BILLITON LTD [2012] WADC 21

CORAM: BIRMINGHAM QC DCJ

HEARD: 24-27 & 30 AUGUST 2010, 11 & 12 JANUARY, 24 JUNE & 12 AUGUST 2011

DELIVERED : 10 FEBRUARY 2012

FILE NO/S: CIV 1872 of 2008

BETWEEN: WAYNE KINGSLEY SMITH
Plaintiff
AND
BHP BILLITON LTD
Defendant

Catchwords:

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 each windrow was approximately 1.5 m (5 feet) high and 3 m (9 feet) wide.
It is the plaintiff's case that on 6 December 2005, whilst standing on one of the tyre stacks at the W19 intersection to clean the road signs, he fell to the ground and suffered an injury to his right leg (the incident). The plaintiff attributed his fall to the soft fine powdery uncompacted soil described as 'bulldust' used in the tyres.
The plaintiff was initially compensated in respect of the injury suffered by MacMahon and its statutory workers' compensation insurer. As the plaintiff was unable to satisfy the statutory threshold he is precluded from pursuing any claim against MacMahon outside of the Workers' Compensation and Rehabilitation Act 1981.
In June 2008 the plaintiff's statutory workers' compensation entitlements were exhausted.
In August 2008 the plaintiff commenced proceedings against the defendant as the owner of the Mount Whaleback mine site – alleging breaches of a duty owed to him under the Act and at common law.

Pleadings

Statement of Claim

Omitting the formal parts, the plaintiff pleads his claim against the defendant as follows:
4.At all material times, MacMahon had a contract with the Defendant to cart high grade ore and waste at the mine site.
5.At all material times the Defendant was:
5.1in control and occupation of the mine site and/or;
5.2carried on mining operations within the meaning of Section 4 of the Mines Safety & Inspection Act 1994 at the mine site;
5.3responsible for traffic and safety management of the roads at the mine site.
6AThere was a sufficient relationship of proximity between the Plaintiff as truck driver for MacMahon at the mine site and the Defendant as occupier of the mine site and or the Defendant being in control of traffic and safety management of the roads at the mine site for the Defendant to owe the Plaintiff a duty of care at common law.
6.1to take all reasonable care for the Plaintiff's safety whilst he was on the mine site;
6.2to take all reasonable care not to expose the Plaintiff to the risk of foreseeable injury whilst he was on the mine site;
6.3to take all reasonable steps to provide a safe mine site;
6.4to take reasonable care to ensure that the Plaintiff did not suffer injury as a result of danger due to the state of the premises.
6BFurther or alternatively pursuant to Section 13 of the Mines Safety & Inspection Act 1994, the Defendant as principal employer of the mine site, owed the Plaintiff a duty to take such measures as were practicable to ensure that the mine site and the means of access to and egress from the mine site was such that the Plaintiff were not exposed to hazards.
6CFurther or alternatively pursuant to Section 15A of the Mines Safety & Inspection Act 1994, the Defendant as the principal employer owed a duty to the Plaintiff as if the Defendant were the employer of the Plaintiff to:
(a)provide and maintain a workplace, plant and system of work of a kind that so far as was practicable, did not expose the Plaintiff to hazards;
(b)provide such information, instructions and training to and supervision of the Plaintiff as was necessary to enable him to perform his work in such a manner that he was not exposed to hazards;
(c)consult and cooperate with safety and health representatives and other employees at the mine site regarding operational safety and health at the mine site.
7.On 6 December 2005 at or about 7.30am, the Plaintiff was required to clean road signs at the intersection on W19 at the Defendant's mine site whilst employed by MacMahon. The task of cleaning consisted of washing dust and soil from signs that were secured inside two Haulpak tyres on tracks at the mine site. The task involved the Plaintiff using a bucket of water and a rag and parking his vehicle in a safe location and then climbing onto the Haulpak tyres so as to wipe the sign with the rag. There were four signs located in the centre of the main haul road, two on either side of the intersection with W19. Between each of the two signs on either side, there was a wind row of soil approximately 5 feet high. The poles of the signs were buried in soil inside two Haulpak tyres which were stacked on top of each other. Each Haulpak tyre was approximately 2.5 feet high and 9 feet wide. The two Haulpak tyres were filled with soil to hold the sign in place. The Plaintiff was required to step onto the tyres onto the soil in order to access the sign and clean the sign with the rag. The Plaintiff cleaned three signs in this manner and the soil inside the first three tyres had been compact and firm and the Plaintiff was able to stand inside the soil in the first three signs without incident. The Plaintiff then proceeded to clean the fourth sign and placed his right leg onto the soil inside the two Haulpak tyres and unbeknown to the Plaintiff, the soil was not compact or solid and did not support the Plaintiff's weight, resulting in the Plaintiff's right leg sinking into the soil and the Plaintiff lost balance and fell from a height of about 5 feet onto the ground below ('the accident').
8AThe accident was caused by the breach of the duty of care referred to in paragraph 6A above by the Defendant, its servants or agents.
PARTICULARS OF NEGLIGENCE
8.1Failed to warn the Plaintiff of the risk of injury arising from climbing onto or into the tyres to access and clean the sign;
8.2Failed to supply the Plaintiff with a long handled broom with a scraper similar to those used to clean windscreens in garages to clean the signs instead of climbing onto or into the tyres;
8.3Failed to employ or design a system of cleaning of the signs by instructing or requiring the Plaintiff to use long shanked brooms to avoid the necessity to step on or into the tyres to obtain the required height to clean the signs;
8.4Failed to ensure that the soil inside the Haulpak tyres was solid and compacted;
8.5Failed to inspect the condition of the soil inside the Haulpak tyres so as to determine whether or not it was a safe working platform to stand on.
8BFurther or alternatively the accident was caused by the breach of the duty of care specified in paragraph 6B above.
PARTICULARS OF BREACH OF SECTION 13
OF THE MINES SAFETY & INSPECTION ACT 1994
(a)failed to warn the Plaintiff of the risk of injury arising from climbing onto or into the tyres to access and clean the sign;
(b)failed to supply the Plaintiff with a long handled broom with a scraper similar to those used to clean windscreens and garages to clean the signs instead of climbing onto or into the tyres;
(c)failed to employ or design a system of cleaning of the signs by instructing or requiring the Plaintiff to use long shanked brooms to avoid the necessity to step on or into the tyres to obtain the required height to clean the signs;
(d)failed to ensure that the soil inside the Haulpak tyres was solid and compacted;
(e)failed to inspect the condition of the soil inside the Haulpak tyres so as to determine whether or not it was a safe working platform to stand on.
8CFurther or alternatively the accident was caused by the breach of the duty of care referred to in paragraph 6C above.
PARTICULARS OF BREACH OF SECTION 15A
OF THE MINES SAFETY AND INSPECTION ACT 1994
(a)Failed to provide and maintain a safe workplace, plant and system of work so as to avoid exposing the Plaintiff to hazards and the Plaintiff will rely on paragraphs 8.1 to 8.5 above as particulars of the breach;
(b)Failed to provide such information, instructions to enable him to perform his work in such a manner that he was not exposed to hazards and the Plaintiff will rely on paragraphs 8.1 to 8.5 above as particulars of the breach;
(c)Failed to consult and cooperate with safety and health representatives at the mine site regarding occupational safety and health at the mine and the Plaintiff will rely on paragraphs 8.1 to 8.5 above as particulars of the breach.
9.As a result of the accident, the Plaintiff suffered injuries.
PARTICULARS OF INJURIES
9.1Nervous shock;
9.2Right knee injury;
9.3Right calf injury.

Defence

By its defence, the defendant:
(a)admits that it was the owner of the mine site;
(b)does not admit that it carried on mining operations within the meaning of the Act, or that it was in control of the mine site and responsible for traffic and safety, maintenance (par 3 of the Defence);
(c)denies that it owed the plaintiff the duty alleged;
(d)puts the plaintiff to proof of the circumstances of the incident and the injury suffered by him;
(e)pleads specifically an 'independent contractor' defence – that is to say, that if the plaintiff suffered the injury, such loss was caused by the negligence of the plaintiffs actual employer (MacMahon) who was an independent contractor. The defendant says it used all reasonable care and skill and care in selecting and supervising MacMahon and that in the circumstances is not liable to the plaintiff (pars 11 – 14);
(f)alleges that the plaintiff was guilty of contributory negligence (par 15);
(g)pleads by way of special defence, that the risk arising from climbing onto the Haulpak tyres to clean the signs was an 'obvious risk' as defined in s 5F of the Civil Liability Act 2002 (CLA). Accordingly the plaintiff is presumed to have known the risk such that the defendant was under no duty to warn him of such an obvious risk (pars 16 – 17);
(h)says that the plaintiff's injury and loss was caused or contributed to by the plaintiff's pre-existing unrelated medical conditions (par 18).

Reply

By his reply, filed pursuant to leave granted at the completion of evidence on 12 August 2011, the plaintiff relies on s.15A (5) of the Act in response to the defendants 'independent contractor' defence.
Pursuant to s. 15A(2) of the Act, s. 9 of the Act has effect as if the defendant was the employer of MacMahon and any employee of MacMahon in relation to matters over which it had the capacity to control.
The duty imposed on an employer by s. 9 of the Act was, so far as it is practicable, to provide and maintain a safe working environment, including the provision and maintenance of the workplace, plant and systems of work, such that the employees are not exposed to hazards.
Section 15A(5) of the Act provides for the purpose of that section, an agreement or arrangement is void if it purports to give control to a contractor or any person employed by the contractor of any matter that comes within s 9 and it is a matter over which the principal has the capacity to exercise control.
The plaintiff contends that the defendant, as the owner of the mine who engaged MacMahon to undertake the mining operations on the mine site, yet retained control of the work to be undertaken by MacMahon, is within the definition of 'principal employer' within the meaning of s 4 of the Act.
It follows that if the plaintiff is correct in the characterisation of the relationship between the defendant and MacMahon, the defendant's plea that the plaintiff's injury was caused by the negligence of an independent contractor for whose negligence the defendant is not liable, is not open to the defendant by way of defence. The defendant cannot simply point to MacMahon and assert its careful selection of the plaintiff's employer, MacMahon, in answer to the plaintiff's claim under s 15A of the Act. Pursuant to the Act, the defendant remains liable as if it was the principal employer of the plaintiff.

Issues for determination

The issues for determination on the pleading are:
(a)whether the defendant owes the plaintiff a duty of care at common law and/or pursuant to the Act. This issue will require consideration of, inter alia, the defendant's activities on the mine site and the extent to which it remains in control and occupation of the site;
(b)the nature of the duty owed to the plaintiff, if any, and what response was required of the defendant in discharge of that duty;
(c)the circumstances of the incident, including whether the plaintiff's injury occurred as a consequence of any breach of duty on the part of the defendant;
(d)whether the risk of injury to the plaintiff was an 'obvious risk' within the meaning of such term in the CLA such that no warning was necessary;
(e)whether the plaintiff was guilty of contributory negligence;
(f)whether the plaintiff suffered the injury alleged; and if so;
(g)what is the measure of loss and damages suffered by the plaintiff.
The plaintiff says that the defendant was the entrepreneur who sought to benefit from the conduct of mining operations whilst retaining the capacity to control MacMahon on the mine site. Accordingly it owed a common law duty to exercise reasonable care for the safety of persons who it knew were likely to attend the mine: Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16.
In Elphick v Westfield Shopping Centre Management Co Pty Ltd [2011] NSWCA 356 Whealy JA (Young JA and Sackville AJA agreeing) [60] ‑ [61] summarised the relevant principles.
There have been many cases, especially in recent times, where an employee injured in a workplace or industrial situation, has sought to include within the ambit of liability persons and corporations beyond his immediate employer. This is understandable in the light of contemporary legislation, part of the cycle of tort reform, which has sought to restrict significantly the damages payable by an employer to his worker. Moreover, especially in the building industry, the immediate employer may turn out to be a 'man of straw'. For that reason, also, the injured worker often looks to find and impose liability upon a more substantial defendant.
Against this background, decided cases have shown at times an uncertainty of approach. This uncertainty has, in a number of respects, been resolved by recent decisions of the High Court of Australia. The primary judge referred to several of these in his reasons for decision. However, it may be convenient to summarise in very brief form the principles I see as being relevant to the resolution of the issues here. This is not intended to be an exhaustive summary, or, for that matter, a comprehensive analysis. The relevant principles in the present matter are, as I see them, as follows:
(a)The duty of care owed by Westfield to Mr Elphick was that of an occupier. This duty was succinctly stated in Australian Safeways Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488:
… the fact that [injured person] was a lawful entrant upon the land of the [occupier] establishes a relationship between them which of itself suffices to give rise to a duty on the part of the [occupier] to take reasonable care to avoid a foreseeable risk of injury to the [injured party].
(b)This duty, in circumstances where the occupier engages an independent contractor to carry out aspects of its enterprise, does not give rise to a duty of care towards an employee of the independent contractor akin to the duty of an employer to his employee (see Leighton Contractors v Fox at [48]:
The relationship between principal and independent contractor is not one which, of itself, gives rise to a common law duty of care, much less to the special duty resting on employers to ensure that care is taken.)
(c)In certain circumstances, the duty to take reasonable care will, however, extend to responsibilities involved in the system of work utilised by the independent contractor. Whether this is so or not will depend on a fact-intensive investigation to determine whether there is the necessary interdependence of the activities carried out in the enterprise under consideration. As Mason J said in Brodribb at 31:
The interdependence of the activities carried out in the forest, the need for co-ordination by Brodribb of those activities and the distinct risk of personal injury to those engaged in the operations, called for the prescription and provision of a safe system by Brodribb. Omission to prescribe and provide such a system would expose the workers to an obvious risk of injury. Although the obligation to provide a safe system of work has been regarded as one attaching to an employer, there is no reason why it should be so confined. If an entrepreneur engages independent contractors to do work which might as readily be done by employees in circumstances where there is a risk to them of injury arising from the nature of the work and where there is a need for him to give directions as to when and where the work is to be done and to co-ordinate the various activities, he has an obligation to prescribe a safe system of work. The fact that they are not employees, or that he does not retain a right to control them in the manner in which they carry out their work, should not affect the existence of an obligation to prescribe a safe system. Brodribb's ability to prescribe such a system was not affected by its inability to direct the contractors as to how they should operate their machines.
(d)Where, however, the occupier has engaged the services of an independent contractor whose task it is to control its employee's systems of work without supervision by the occupier, there may, depending once again on a fact-sensitive enquiry, be no liability imposed on the occupier for a failure by the independent contractor to control its own system of work. As Brennan J said in Brodribb at 47 ‑ 48:
The circumstances may make it necessary for the entrepreneur to retain and exercise a supervisory power or to prescribe the respective areas of responsibility of independent contractors if confusion about those areas involves a risk of injury. But once the activity has been organized and its operation is in the hands of independent contractors, liability for negligence by them within the area of their responsibility is not borne vicariously by the entrepreneur. If there is no failure to take reasonable care in the employment of independent contractors competent to control their own systems of work, or in not retaining a supervisory power or in leaving undefined the contractors' respective areas of responsibility, the entrepreneur is not liable for damage caused merely by a negligent failure of an independent contractor to adopt or follow a safe system of work either within his area of responsibility or in an area of shared responsibility.

The plaintiff further maintains his claim against the defendant on the basis that the defendant is within the definition of a 'principal employer' within the meaning ascribed in s 4 of the Act and accordingly owes a duty of care to the plaintiff pursuant to s 13 and s 15A of the Act.
Pursuant to s4 of the Act, 'principal employer':
(a)in relation to a mine (other than a mine where only exploration operations are being carried out), means the employer who is the proprietor, lessee, or occupier of the mine and who has overall control and supervision of the mine, mining operations at the mine and the manager of the mine; and
(b)in relation to a mine where only exploration operations are being carried out, means the employer who has overall control and supervision of the exploration operations at the mine and the exploration manager appointed for those operations;
Section 13 of the Act is in the following terms:
13. Principal employers and managers, duties of
The principal employer at and the manager of a mine must take such measures as are practicable to ensure that the mine and the means of access to and egress from the mine are such that persons who are at the mine, or use the means of access to or egress from the mine, are not exposed to hazards.
The plaintiff says that pursuant to s 13 of the Act the defendant owes a duty of care akin to that of an occupier to ensure that persons on the mine site such as the plaintiff are not exposed to hazards.
Section 15A of the Act is in the following terms:
15A. Contract work arrangements
(1)This section applies where a person (the principal) in the course of mining operations engages a contractor (the contractor) to carry out work for the principal.
(2)Where this section applies, sections 9 and 9A have effect -
(a)as if the principal were the employer of -
(i)the contractor; and
(ii)any person employed or engaged by the contractor to carry out or assist in carrying out the work concerned,
in relation to matters over which the principal has the capacity to exercise control; and
(b)as if -
(i)the contractor; and
(ii)any person referred to in paragraph (a)(ii),
were employees of the principal in relation to matters over which the principal has the capacity to exercise control.
(3)…
(4)…
(5)An agreement or arrangement is void for the purposes of this section if it purports to give control to -
(a)a contractor; or
(b)a person referred to in subsection (2)(a)(ii),
of any matter that -
(c)comes within section 9 or 15D(2); and
(d)is a matter over which the principal has the capacity to exercise control,
but this subsection does not prevent the making of a written agreement as mentioned in section 15D(3).
(6)…
(7)…
Pursuant to s 9 of the Act an employer has a duty to persons working on the site. So far as it is practicable, an employer must provide and maintain a safe working environment including, inter alia, providing and maintaining workplaces, plant and systems of work whereby the employees are not exposed to hazards. A 'hazard' is 'anything that may result in injury to the person or harm to the health of the person' (s 4 of the Act).
It is the plaintiff's case that the defendant owes a duty of care to the plaintiff as if it was the plaintiff's employer.
In Laing O'Rourke (BMC)Pty Ltd v Kirwin [2011] WASCA 117 the Court of Appeal considered the extent of the duty owed by a defendant pursuant to s 19(1) of the Occupational Safety and Health Act 1984 – the terms of which (including the relevant definitions) mirror s 9 of the Act.
At [30] - [36] Murphy AJ, with Martin CJ and Mazza J concurring, expressed the duty owed by the owner of a mine site to those deemed to be its employees and the appropriate response, in the following terms:
The duty imposed on an employer by s 19(1) is not an absolute duty: Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249, 251 (Brennan J); Interstruct Pty Ltd v Wakelam (1990) 3 WAR 100, 108, 109 (Wallace J, Rowland J agreeing); Wylie v South Metropolitan College of TAFE [2003] WASCA 34 [45]; Tobiassen v Reilly [2009] WASCA 26; (2009) 178 IR 213 [59]. Important in this regard is the phrase 'so far as is practicable', which qualifies the duty in s 19(1). The words 'practicable' and 'risk' are defined in s 3(1) as follows:
practicable means reasonably practicable having regard, where the context permits, to -
(a)the severity of any potential injury or harm to health that may be involved, and the degree of risk of it occurring; and
(b)the state of knowledge about -
(i)the injury or harm to health referred to in paragraph (a); and
(ii)the risk of that injury or harm to health occurring; and
(iii)means of removing or mitigating the risk or mitigating the potential injury or harm to health; and
(c)the availability, suitability, and cost of the means referred to in paragraph (b)(iii);
risk, in relation to any injury or harm, means the probability of that injury or harm occurring;
It follows from the definition of 'practicable' that the obligation imposed on an employer by s 19(1) is an obligation to provide and maintain a working environment in which its employees are not exposed to hazards only so far as is reasonably practicable. The words 'reasonably practicable' are ordinary words, bearing their ordinary meaning and simply call for the making of a value judgment in light of all the facts: Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304, 322 (Gaudron J). Hindsight may mislead. As Harper J said in Holmes v RE Spence & Co Pty Ltd (1992) 5 VIR 119, 123 - 124, in relation to the equivalent provision in the Victorian legislation:
The Act does not require employers to ensure that accidents never happen. It requires them to take such steps as are practicable to provide and maintain a safe working environment. The courts will best assist the attainment of this end by looking at the facts of each case as practical people would look at them: not with the benefit of hindsight, nor with the wisdom of Solomon, but nevertheless remembering that one of the chief responsibilities of all employers is the safety of those who work for them.
That approach has been adopted in Western Australia: see MacCarron v Future Engineering & Communication Pty Ltd (Unreported, WASC, Library No 980350, 23 June 1998) 11; Shepherd v Co-Operative Bulk Handling Ltd [2001] WASCA 413 [55].
The 'state of knowledge' relating to, inter alia, the injury, the risk of injury and the means of removing or mitigating the risk, referred to in the definition of 'practicable', is objective. It is that possessed by persons generally who are engaged in the relevant field of activity and not merely the actual knowledge in fact possessed by a specific employer in the particular circumstances: Hamersley Iron Pty Ltd v Robertson (Unreported, WASC, Library No 980573, 2 October 1998) 22; Wylie v South Metropolitan [45]; Silent Vector Pty Ltd v Shepherd [2003] WASCA 315 [12] (although that case concerned s 22 of the Act, the same consideration applies to s 19); Reilly v Devcon Australia Pty Ltd [2008] WASCA 84; (2008) 36 WAR 492 [60].
The word 'risk' appears in the definition of 'practicable' in pars (a) and (b)(ii) and (iii). In s 3 of the Act 'risk' is defined to mean the 'probability' of the relevant injury or harm occurring, which means no more than the 'likelihood' of the injury or harm occurring: Hamersley Iron Pty Ltd v Robertson (18). This will require some consideration of the question of foreseeability: Chugg v Pacific Dunlop Ltd (265); Hamersley Iron Pty Ltd v Robertson (18). That, in turn, involves consideration of whether it is shown that the employer knew, or that a reasonable employer in the position of the employer would have appreciated or foreseen the risk of the injury or harm to health occurring: Wylie v South Metropolitan College of TAFE [45]; Reilly v Devcon [60]; Silent Vector Pty Ltd v Shepherd [11] - [12].
In some cases, the duty to, so far as is practicable, maintain a safe workplace may involve a consideration of matters which are beyond the employer's own area of expertise. Although the employer's duty remains unaltered, the employer's lack of direct control over such matters may affect its knowledge and, in consequence, the question of what was 'reasonably practicable' in the circumstances. This court in Reilly v Devcon [68] quoted with approval Stuart-Smith LJ's observations in R v Associated Octel Ltd [1994] 4 All ER 1051, 1063:
… the question of control may be very relevant to what is reasonably practicable. In most cases the employer/principal has no control over how a competent or expert contractor does the work. It is one of the reasons why he employs such a person - that he has the skill and expertise, including knowledge of appropriate safety precautions which he himself may not have. He may be entitled to rely on the contractor to see that the work is carried out safely, both so far as the contractor's workmen are concerned and others, including his own employees or members of the public; and he cannot be expected to supervise them to see that they are applying the necessary safety precautions. It may not be reasonably practicable for him to do other than rely on the independent contractor.
But there are cases where it is reasonably practicable for the employer to give instructions how the work is to be done and what safety measures are to be taken …
The question of what is reasonably practicable is a matter of fact and degree in each case.
Steytler J's observations in Hamersley Iron Pty Ltd v Robertson concerning a similar duty imposed by s 9(1) of the Mines Safety and Inspection Act 1994 (WA) are also apposite here: Reilly v Devcon [64]. Steytler J said [20]:
Here, the personal duty imposed upon the employer is, as I have said, that of providing a safe workplace, so far as is practicable. If that, in turn, requires the employer to call upon expertise which it does not itself have then there is no reason why it should not do so and, indeed, every reason why it should ... If the task undertaken by the independent contractor is one which demonstrably falls within its area of expertise and outside that of the employer and if the task reasonably appears to the employer ... to have been carefully and safely performed by the independent contractor then it would ordinarily be difficult to conclude that the employer had breached the duty put upon it by the Act. It would not, in circumstances of that kind, ordinarily have been practicable for it to have done more. (emphasis in original)
See also Slivak v Lurgi (319) (Gleeson CJ, Gummow and Hayne JJ).
It follows that, if liable under the Act, the defendant is required to provide and maintain a working environment in which those deemed to be its employees are not exposed to hazards only so far as is reasonably practicable.
This will call for the making of a value judgment in light of all the facts and will be a matter of fact and degree examined as practical people, without the benefit of hindsight, but mindful of an employer's responsibility for the safety of those who work or are deemed to work for them.
The 'state of knowledge' relating to, inter alia, the injury, the risk of injury and the means of removing or mitigating the risk, in determining what is required by way of response is to be assessed objectively.
To the extent that there is a duty owed pursuant to s 13 of the Act, it is akin to the duty owed as an occupier to persons on the mine site – to exercise reasonable care for the safety of persons who it knew were likely to attend the mine. In the present case it would encompass safeguarding persons such as the plaintiff from any concealed danger such as that which may be created by the presence of bulldust-like soil in areas where persons may be required to work.

Evidence

Plaintiff's case

The plaintiff

The plaintiff was born on 3 May 1958. He left school at a young age and worked generally in labouring positions for much of his early years. He later obtained work as a storeman at Derby Regional Hospital and a reticulation officer with the East Pilbara Shire. From 1999 to 2005 the plaintiff worked as an air-conditioning technician before commencing work with MacMahon as a truck driver on 25 March 2005.
The plaintiff says that when first engaged by MacMahon he was required to undergo a mine site safety induction program established by the defendant – including a 'Take 5' hazard analysis and identification program prior to being permitted to commence work on the mine site. At the time of the incident the plaintiff was one of the nominated safety representatives at the mine.
The plaintiff says that on 6 December 2005, while he waited for other workmen to arrive at the mine site, he decided to clean the traffic signs at the W19 intersection. He says that it was the usual practice for those MacMahon employees who lived locally to look for jobs to do until the other 'fly in - fly out' employees arrived at the site and mining operations commenced.
The plaintiff says that no-one instructed him to clean the signs or indeed to do any task that morning. It was the plaintiff's evidence that it was solely his decision to clean the signs at the W19 intersection and to adopt the manner of doing that task. He acknowledged in cross ‑examination that he had never seen anyone else cleaning the signs with a cloth whilst standing on the tyres. It was his decision to clean the signs and to use that method.
The plaintiff said that the signs had been erected in the tyres at the intersection at W19 prior to him commencing at the site nine months earlier. He said that he had cleaned the signs on a prior occasion.
Having cleaned three of the signs at the intersection, the plaintiff climbed onto the windrow of soil and then onto the stack of Haulpak tyres to clean the fourth sign using a bucket and cloth.
The plaintiff described the soil in the tyres holding the first three signs as firm underfoot and well compacted. The plaintiff said he stepped on to the fourth stack of tyres and began to wipe the fourth sign. The sign was fixed to a post that had been driven into the soil in the centre of the tyres and rigid. The plaintiff said the soil in the tyre was of a soft powdery 'bulldust' consistency. As he placed his full weight on the soil his right leg sank into the centre of the tyre up to his crotch - a depth he estimated to be approximately 3 feet.
The plaintiff said that as he tried to pull his leg out of the soil, he fell backwards off the top tyre and onto the ground below, striking his head on the ground and his right knee on a rock.
The plaintiff says he walked to his vehicle and drove to the administration building to report the incident and complete an accident report form (exhibit D). In that report, the plaintiff described the incident as one of being involved in a 'fall' while 'cleaning road sign'. He described the injury as a 'cut' to 'right knee'. The plaintiff says that the cut on his knee was treated at the defendant's site medical centre. He said that he was given an icepack by the site occupational health nurse for his swollen knee and calf. The plaintiff said that his knee was so badly swollen Dr Flahive was called. Dr Flahive referred the plaintiff for an x‑ray of his knee and instructed him to consult his general practitioner.
The plaintiff saw Dr Ittermann the next day (7 December 2005) and was certified fit for restricted work until 12 December 2005.
The plaintiff's progress medical certificates were tendered by consent and marked exhibits 4.1 to 4.63.
In the medical certificate issued on 7 December 2005 (exhibit 4.1), Dr Ittermann recorded the plaintiff's description of the injury as 'painful swelling right anterior patella'. The circumstances giving rise to the injury were described as a 'fall on a rock'. Dr Ittermann's clinical findings and medical assessment was 'mild swelling r (right) ant (anterior) patella W small laceration and surrounding induration'; 'DD: injury r knee'.
The plaintiff was examined by Dr Ittermann on 10 December 2005. Dr Ittermann findings as to the plaintiff's medical progress were recorded in the certificate (exhibit 4.2) as 'reduced swelling/small local induration/normal ROM'.
On 12 December 2005, following examination by Dr Itterman, the plaintiff was certified as fit for unrestricted work. At that time Dr Ittermann recorded in what was expressed to be the 'final' medical certificate (exhibit 4.3), the following description: 'mild local inflammation/will heal/avoid hitting dashboard or else'.
I consider that the reasonable inference arising from the reference to 'avoiding hitting the dashboard' is that the plaintiff's complaint of injury was focused on his right knee only.
On 15 December the plaintiff was reviewed by Dr Ittermann. On this occasion the plaintiff reported pain in his right calf muscle. Dr Ittermann recorded (exhibit 4.4) the plaintiff's condition as follows: 'swelling r calf/r 46cm/l 44.5cm/tender r calf muscle/D Dimer +0.9'; 'DD: DVT r calf' and that it correlated with the injury described by the plaintiff. As the presence of a thrombosis was suspected, the plaintiff was certified totally unfit for work and sent to Port Hedland for further examination.
I note that this was the first occasion that any complaint in respect of the plaintiff's right calf was recorded in the plaintiff's medical history.
An ultrasound conducted on 19 December 2005 ruled out the presence of a deep vein thrombosis. The plaintiff was then certified as fit for restricted work. The plaintiff returned to normal duties but was limited to driving light vehicles and instructed to avoid prolonged sitting.
The plaintiff says that whilst he was able to carry out his normal driving duties, his calf would swell after a period of time. Exercise together with the wearing of a stocking was prescribed.
By 6 January 2006, when examined by Dr Green, the plaintiff's condition had improved and the plaintiff was certified fit to return to his pre-incident duties. Thereafter until to 17 July 2006, the plaintiff carried out his normal duties as a Haulpak driver.
The plaintiff says that he returned to full duties because he was aware that the MacMahon contract at Mount Whaleback was coming to an end and he was keen to ensure that he was offered a position with MacMahon at another site. He says he put up with some pain for about six months notwithstanding that his calf kept swelling up after about an hour of work and he experienced pins and needles. The plaintiff was prescribed painkillers.
Following an examination by Dr Skinner on 17 July 2006, the plaintiff was certified as fit to undertake restricted light work on a full time basis for the period from 25 July 2006 to 1 November 2006 – that is to say, not driving heavy vehicles. The plaintiff's reduced capacity was attributed to the effects of the medication that the plaintiff was then taking for the pain in his calf. The plaintiff was then concerned as to his capacity to safely drive heavy vehicles while taking such medication.
On 1 November 2006, following examination, the plaintiff was certified fit to return to his pre-incident employment, including operating a Haulpak or water cart.
At about this time the plaintiff was referred to Dr Desmond Williams, a consultant orthopaedic surgeon, for assessment at the request of the plaintiff's solicitors.
The plaintiff's account of the incident including the mechanics of his fall to Dr Williams was recorded in Dr Williams' report dated 6 November 2006 in the following terms:
He was standing on two Haulpak tyres, some 5 feet off the ground, washing a sign and he turned and put his foot in the middle of the tyre stack and fell backwards to the ground and hit the back of his head and lacerated his right knee and abrasions.

Following pressure tests being performed on the plaintiff's calf muscle by Dr Taylor, Dr Williams considered that the plaintiff's right calf injury was a compartment syndrome.
The plaintiff's description of his injury to Dr Williams was later recorded in Dr Williams' medico-legal report dated 25 January 2007 to the plaintiff's solicitors, was in the following terms:
The injury occurred when he was standing on two haul-pack [sic] tyres some 5 feet off the ground washing a sign and he turned and put his foot in the middle of the tyre stack and his leg was to calf level when he fell backwards to the ground and struck the back of his head and lacerated his right knee and had abrasions. His whole body weight therefore swung on his right leg as it was held between the two haul-pack tyres with his leg penetrating down to calf level and it was with the force of a big man falling.' (emphasis added)
During the period from 5 December 2006 to 7 February 2007 the plaintiff was certified by his then treating doctor, Dr Green, as being fit to undertake his pre-incident duties.
On 25 January 2007 the plaintiff was examined by Dr Green and certified as fit to undertake his pre-incident duties for the three-week period from 25 January 2007 to 15 February 2007. The plaintiff was scheduled to be reviewed by Dr Green on 15 February 2007.
On 30 January 2007 the plaintiff was informed by MacMahon that it did not have a position for him on any of its other contracts and that he was to be retrenched at the completion of the Mount Whaleback contract. The plaintiff advised MacMahon that he would not accept a redundancy.
On 31 January 2007 the plaintiff was retrenched by MacMahon.
On 7 February 2007, notwithstanding that he was not scheduled to be re‑examined until 15 February, the plaintiff attended Dr Green for review. At that review the plaintiff gave Dr Green a copy of Dr Williams' medico‑legal report dated 25 January 2007 that the plaintiff had received from his solicitors.
The plaintiff informed Dr Green that he had been retrenched by MacMahon and requested that he be certified as unfit to undertake his pre‑incident duties.
Dr Green complied with the plaintiff's request and certified the plaintiff totally unfit for work - initially for four weeks to 7 March 2007 ‑ and subsequently to 22 June 2007.
I pause to observe that Dr Green's reports and notes were tendered without Dr Green being called to testify. The certificate issued by Dr Green on 7 February 2007 recorded the date of Dr Green's examination of the plaintiff as 25 January 2007. Further, Dr Green's note of an attendance by the plaintiff on 7 March inferred that the cancellation of the certificate of fitness dated 25 January 2007 was premised on the plaintiff having been made redundant (exhibit 5.7 page 12).
This aspect of the evidence not addressed during the plaintiff's case. The possibility of an adverse inference being drawn was brought to the attention of those representing the plaintiff. In accordance with observations of the High Court in Kuhl v Zurich Financial Services Australia Ltd[2011] HCA 11[69] ‑ [72], I allowed the plaintiff's application to re-open his case to adduce evidence from Dr Green. I shall refer to Dr Green's evidence more fully later in these reasons.
The thrust of Dr Green's evidence was that there was no change in the plaintiff's physical state or working capacity from 25 January 2007 (when he certified the plaintiff as fit for his pre-incident employment) and when he reviewed the plaintiff on 7 February 2007. Dr Green said that he issued the certificate on the basis of the contents of Dr Williams' letter to the plaintiff's solicitors and, more particularly, the fact that the plaintiff had been made redundant notwithstanding that he may still require physiotherapy and other treatment to be paid for.
The plaintiff was recalled for further cross-examination on this issue. The plaintiff acknowledged that he had provided a copy of Dr Williams' letter to Dr Green and that he requested Dr Green to certify him as unfit for work. The plaintiff said he did so because he thought that 'compo covered redundancies. They (MacMahon) still had to pay me'. The plaintiff further acknowledged that he was then aware that Dr Williams had recommended relatively minor treatment limited to include swimming, stretching and strengthening exercises with the possibility of some local physiotherapy.
In February 2007, the plaintiff considered that he should have been given a new position with MacMahon and, further, that he could not be made redundant while he was certified as unfit to engage in his pre‑incident employment. Thereafter the plaintiff commenced proceedings in the Australian Industrial Relations Commission (AIRC) against MacMahon for wrongful dismissal.
Inconsistencies in the plaintiff's account of the incident at trial and his witness statement dated 8 May 2007 filed in the AIRC proceedings (exhibit B) were put to the plaintiff in cross-examination.
In pars 16 and 17 of his statement (exhibit B) the plaintiff described the incident as follows:
After I cleaned the third sign, I walked along the windrow of soil between the third and fourth signs and I walked on top of the tyre of the fourth sign, which was approximately 2 feet wide and had washed the sign.
At around 7:30 am I finished cleaning the fourth sign. I then turned around and placed my right leg inside the tyre onto the soil, with the intention of walking across the soil to get to the other side of the tyre. However, as I stepped into the soil, my right leg sunk into the soil up to my right knee. As I went to pull my right leg out, I lost my balance and fell backwards onto the main haul road, hitting the back of my head and hitting my right knee on a rock on the road. When I fell, I ripped the backside and the right knee of the trousers I was wearing at the time.' (emphasis added)
When cross-examined in relation to the inconsistency with his evidence at trial, the plaintiff's evidence was as follows:
CLYNE, MR From where - from where you're standing now. Assume that you've got the sign - - ----Well, the sign's there.
Yes---I turned around - - -
Yes---- - - lost balance, placed my right leg in the tyre, sunk to my crutch, panicked, pulled my leg out and head over turkey I went, below.
You're sure you went down that far---I sure did. I had the sand marks. I blew the back side out of my strides and ripped all my leg and my strides.
Isn't it the case you only went in up to your knee---No.
All right. You hadn't - do you agree that - sorry. Have you ever said before that you went in up to your knee---I might have, yes.
But - - ----But I think you'll find if you look through the records I also stated crutch.
All right. Now, perhaps, then, we ought to look at a witness statement that you gave through your solicitors to the workers' compensation directorate. One for your Honour, one for the witness and one for my friend. Now, firstly, down the bottom, is that your signature on the first page---Yep.
Second page, third page, fourth page, fifth, sixth and finally on the last page---Yep.
And as we can see from the last page, this was signed by you on 8 May 2007---Yep.
Correct---Yep.
And you recall this was prepared at a time when you were trying to get workers' compensation payments---Yes. Maybe, yeah. (ts 114 - 115)

The plaintiff's cross-examination continued (ts 120).

CLYNE, MR: Around 7.30 I'd finished cleaning the fourth sign and then turned around and placed my right leg inside the tyre onto the dirt with the intention of walking across the dirt to get to the other side of the tyre. Is that right---Yeah, it could have been. Yes. Yes.
And you then say, and just read this carefully: However, as I stepped into the dirt, my right leg sunk into the dirt up to my right knee.---Mm.
Knee---Yep.
Not thigh---Yeah.
Now, this is a statement you made 3 years ago---Mm.
I suggest that your recollection then was better than it is now---Well, it most probably was, yeah.
So you only went in up to your knee---No, I'm certain I said crutch in other statements or somewhere.

In late May 2007 the plaintiff moved from Newman to Perth. Up until that time the plaintiff had continued to consult Dr Green and was certified as totally unfit for work.
In July 2007 the plaintiff consulted a new GP, namely Dr Koh. Dr Koh continued to certify the plaintiff unfit for work.
In August 2007 the plaintiff was reviewed by Dr Home, at the request of MacMahon's solicitors and assessed for workers' compensation purposes.
Dr Home's unchallenged record of the plaintiff's description of the incident detailed in his report dated 27 August 2007 (exhibit G1, page 6) was as follows:
Mr Smith states that at the time of the accident, he was working as a truck driver for MacMahon's. He was undertaking duties cleaning the signs. The signs were positioned over a windrow that was held in place by four Haulpak tyres, that is two stacks of two, lying at either end of the windrow. He was standing atop of one of the tyre stacks cleaning a sign when he placed his foot into the centre area of soil in the middle of the tyre. He anticipated that the soil would be compacted but it was not so. He tells me that his leg penetrated the softer soil to the level of his groin.
He then managed to extract his leg but lost his balance and fell off the top of the tyre stack, landing over his right side and in particular striking the front of his right knee. He recalls further abrasions to his nose and chin. (emphasis added)
I note that this was the first occasion that the plaintiff asserted that he sank to the depth of his groin (or crutch) – such statement being made approximately 20 months after the incident and three months after his witness statement (exhibit B) in the AIRC proceedings.
In September 2007 the plaintiff undertook a work trial as a storeman. This was done as part of his rehabilitation organised by Workfocus Rehabilitation Agency.
In October 2007 the plaintiff undertook a one-day forklift course, and was certified as fit for restricted return to work.
In December 2007 the plaintiff underwent vocational assessment.
In January 2008, the Plaintiff was certified by Dr Koh as unfit to drive a truck for two years.
In February 2008 the plaintiff commenced a work trial with Peters Discount Salvage working as a storeman.
On 18 February 2008, seemingly upon becoming distressed that he was the subject of covert surveillance by assessors on behalf of MacMahon's workers' compensation insurers, the plaintiff attempted suicide. The plaintiff was admitted to Armadale hospital. He was discharged later that day. Thereafter the plaintiff continued to undertake a restricted work trial with Peters Discount Salvage until the funding available for assisted work rehabilitation was exhausted in June 2008.
The plaintiff has not engaged in his pre-accident occupation, nor unrestricted employment in any other capacity since being certified as being unfit to do so by Dr Green on 7 February 2007.

Observations on plaintiff's evidence

The plaintiff as a 53-year-old man with limited education is seemingly not unintelligent and was fully appreciative of the issues involved in the trial of this matter and the importance of his account as to the circumstances relating to the incident.
The plaintiff is the only witness in respect of the events that occurred on 6 December 2005 and I need to be satisfied as to the truthfulness, reliability and accuracy of his account.
The plaintiff's account as to the circumstance of the incident and, particularly the depth to which his leg is alleged to have sunk into the soil in the tyre has varied considerably over time.
In the amended statement of claim filed in September 2009, the incident is pleaded in terms:
… The Plaintiff then proceeded to clean the fourth sign and placed his right leg onto the soil inside the two Haulpak tyres and unbeknown to the Plaintiff, the soil was not compact or solid and did not support the Plaintiff's weight, resulting in the Plaintiff's right leg sinking into the soil and the Plaintiff lost balance and fell from a height of about 5 feet onto the ground below.
Significantly there is no reference to the depth that his right leg sank into the soil or that he fell as he attempted to extract his leg. It is assumed that the pleading is drawn in accordance with the plaintiff's instructions.
In the incident report (exhibit A1) the plaintiff's account of the incident as recorded by MacMahon employees based upon information provided by the plaintiff mentioned that the soil was comprised of 'bulldust'. Significantly, there was no reference to the plaintiff's leg having penetrated into the soil in the manner alleged. Further, the fact that the plaintiff's leg penetrated the surface of the soil in the tyre was not mentioned at all in the incident report completed by the plaintiff on the day it occurred (exhibit D). The plaintiff described the incident as a 'fall' causing him to 'cut his right knee'.
If the incident had occurred in the manner described by the plaintiff, one could reasonably expect that he would have described it in such terms when first seeking medical assistance and advising as to the mechanics of the injury suffered. Given that the plaintiff was a nominated site safety officer for MacMahon who, on his account had encountered a workplace condition that he described as a dangerous concealed hazard, it is astonishing that it was not reported and described in detail by him at that time.
Further, the circumstance of the incident alleged was not mentioned in Dr Williams report dated 6 November 2006. The first documented report is found in the report of Dr Williams dated 25 January 2007 wherein it is recorded that the plaintiff's leg had sunk to 'calf level.'
In May 2007, the plaintiff deposed in the AIRC proceedings that his leg had sunk to a depth of 'up to my right knee'.
When examined by Dr Home in August 2007 the plaintiff said that his leg had sunk into the soil 'up to his groin'.
At that time the plaintiff then had a copy of Dr Williams' report in which the significance of the relationship between the mechanism of the injury and the diagnosis of compartment syndrome had been noted.
The plaintiff's description of the incident at trial was to the effect that he sank to the full length of his leg, 'up to his crotch' in the powdery soil.
The plaintiff is a tall man. To suggest that the soil was so powdery and loose that the plaintiff's right leg could penetrate the surface of the soil in the tyre (in which the sign and post is rigidly held in position) to a depth of almost a metre strains credibility. It is wholly against the probabilities.
I do not accept that the plaintiff could honestly believe that the incident occurred as he described. I do not accept his evidence at trial was a truthful account of the incident. I consider that the plaintiff was grossly exaggerating the incident and its effect. His various accounts as to the depth his leg is said to have sunk into the soil are inconsistent and unreliable.
Further, the fact that the plaintiff requested Dr Green to certify him as totally unfit in February 2007 to facilitate his recovery of workers' compensation entitlements - notwithstanding his redundancy - when he must have then known that there was no change in his physical condition or capacity to work impacts on his credit and reliability as a witness of truth.
I consider that his motivation for requesting the change to the fitness certificate was premised on his redundancy and the belief that he was being unfairly treated by his employer. I am fortified in that view by the fact that the plaintiff thereafter considered himself to be wholly unfit ‑ that is to say, unable to undertake any work whatsoever and pursued a wrongful dismissal claim in which he significantly exaggerated the circumstances of the incident.
Throughout this period the plaintiff did not undertake the exercise regime recommended by Dr Williams in January 2007 that seemingly offered resolution of his injury and proceeded to challenge his retrenchment by MacMahon on the basis that he was incapacitated from engaging in his pre-incident employment or indeed, any employment whatsoever.
In my opinion such conduct demonstrates that the plaintiff was prepared to be untruthful in an effort to bolster or support a claim in respect of an injury that did not otherwise preclude him from continuing full time in his pre-incident occupation.
I was left with the impression that the plaintiff's exaggerated description of the incident and severity of the trauma on his calf, particularly in relation to the depth that his leg penetrated the soil, was directed to providing support for Dr Williams' diagnosis in respect of a calf injury that was not readily apparent upon clinical examination and did not otherwise physically prevent him from continuing in his pre-incident occupation in January 2007 had he had not been made redundant.
Further, as observed by Dr Home in his report of 23 January 2008 (exhibit G3 page 1), there is an inconsistency in the plaintiff's reported difficulty in driving for extended periods such that it resulted in him being certified by Dr Koh in January 2008 as unable to drive a truck for two years notwithstanding that, the plaintiff, who then resided in Forrestfield, drove some 50 km to Hillarys to consult Dr Koh.
I consider that if the incident had in fact occurred in the more dramatic manner as it is now described by the plaintiff, one could be confident that the plaintiff would have described it in such terms when first seeking medical assistance and reporting the mechanics of the incident and how his injury occurred.
The fact that the plaintiff sought to maintain the erroneous description of the mechanism of his fall and seemingly embellish it over time goes to his credit generally. I formed an unfavourable view of the plaintiff's evidence and do not regard it as reliable or, in several instances, truthful. I find that his evidence in relation to the circumstances of the incident on 6 December 2005 to be incapable of acceptance by me. In the absence of credible supporting evidence that is accepted by me I am not prepared to accept the plaintiff's evidence on any matter.

Kenneth Lee

Mr Lee was employed by MacMahon's as a truck driver at the mine site in 2005.
Mr Lee said that he specifically recalled the day of the incident when the plaintiff was injured. He said that the superintendent, Mr Seymour, had instructed him to drive the water cart and the plaintiff to take a specified light vehicle and go and clean the signs. Mr Lee said that he had seen MacMahon's employees clean road signs in the past.
In cross-examination Mr Lee said he had a clear recollection of that day as 'it was the day a work colleague was injured'. Mr Lee said that the plaintiff had told him about the incident shortly after he had returned from seeing 'God' - a derogatory reference to his superintendent Mr Seymour. Mr Lee gave the impression that he neither liked nor respected Mr Seymour for whatever reason.
Whilst Mr Lee was adamant that the plaintiff had been instructed to clean signs by Mr Seymour, such evidence does not accord with the plaintiff's account. I gained the impression as Mr Lee gave his evidence that he was keen to assist the plaintiff's case with his testimony. Mr Lee's evidence was inconsistent with the plaintiff. Further, given that the nature and extent of the plaintiff's calf injury was seemingly not apparent until several days after the event, Mr Lee's explanation as to the reason why he remembered the event with such clarity is improbable. I consider Mr Lee's evidence unreliable and accord it little weight.

Timothy Jess

In December 2005 Mr Jess was employed by the defendant at Mount Whaleback as a contract superintendant. Together with Mr Ian Garnett, Mr Jess was engaged by the defendant to, inter alia, undertake daily inspections of MacMahon's work area and ensure compliance with the requirements of the mine operations contract and management plan.

In the light of the findings I have made as to the circumstances of the incident, I find that the plaintiff is responsible to the substantial degree for his injury and must bear the brunt of his loss. I consider a just and equitable apportionment of responsibility between the parties to be reduced by 80% in the event that there was a duty of care by the defendant, that it breached that duty and that such breach was causative of loss and damage.

Extent of injury suffered by plaintiff

The plaintiff pleads in par 9 of his statement of claim that as a result of the accident he suffered injuries, namely: nervous shock, right knee injury and right calf injury. It is further pleaded (par 12) that as result of the injuries the plaintiff suffered permanent 2% right lower limb impairment and psychiatric illness sounding in a loss of earnings and earning capacity as particularised in par 13 of the statement of claim.
I am not in a position, in the absence of evidence that I accept, to make any conclusion as to what happened save that I accept that the plaintiff fell on the morning of 6 December 2005 and thereby injured his knee. I am not satisfied that he fell from the top of tyre stack as he has described. Further, I am not satisfied on the evidence that the plaintiff's calf injury was occasioned by the fall.
I am unable to conclude on the evidence from where and how the plaintiff fell or what caused him to be injured that day save that I accept he did fall and cut to his right knee.
The plaintiff first described the injury suffered as striking his knee on a rock (exhibit D). His injuries were later recorded by Dr Ittermann as a laceration and swelling to right anterior patella, that is to say, a cut to the front of and swelling to his right knee.
The plaintiff subsequently described the incident to Dr Home as a fall whereby he struck the front of his right knee; cutting his knee and suffering abrasions to his nose and chin.
Whilst I accept that there is no evidence of any other incident that may have caused the plaintiff to suffer an injury to his calf muscle, I observe that the plaintiff did not immediately report any injury to his calf to Dr Ittermann the next day. It was not until some nine days after the incident that the plaintiff expressed concern about his calf and then in relation to a possible thrombosis.
In support of his diagnosis of a compartment syndrome injury Dr Williams places considerable weight upon the traumatic nature of the tearing of the calf muscle - a severe muscle stretch/strain type injury - as a consequence of the mechanism of the plaintiff's fall. Dr Williams expressed the incident as a traction injury to the calf caused by the leg being stuck in the soil when he fell.
I note that the dramatic and painful fall such as that described by the plaintiff in his evidence was not reported in such terms to Dr Ittermann the next day. If the plaintiff had suffered an extension muscle strain type injury in the manner as it was described by Dr Williams in his evidence, one would have expected such description to be found in the initial report of the incident. I consider the fact that it was not immediately reported in such terms is remarkable.
Save for one pressure test in December 2006 - one year after the incident - and some differences in the measured calf muscle circumference from time to time, there are few symptoms readily discernible in respect of the plaintiff's injury.
In his report dated 20 January 2009 (exhibit 8.38) Dr Williams observed that upon clinical examination of the plaintiff minor differences in calf measurements were noted. The measurements taken 10 cm below the patella, showed the diameter of the left gastrocnemius as 42 cm and the right 43 cm. At 15 cm below the patella, the left was measured at 43.9 cm and the right at 44 cm.
I note that on 15 December 2005, when the plaintiff first reported his calf pain to Dr Ittermann, the plaintiff's calf diameter measurements were recorded as 46 cm to the right calf and 44.5 cm for the left calf – a difference of 1.5 cm (exhibit 4.5).
Clinical examination and other testing including the MRI lend little support for such diagnosis.
Having regard to the findings I have made as to the plaintiff's credibility as a witness, his complaint of calf muscle pain should be viewed with considerable caution.
Those medical practitioners engaged to review the plaintiff generally have relied on the plaintiff's subjective account of the pain suffered and his restrictions in mobility. To the extent that their observations as to the seeming genuine nature of the plaintiff's complaints were solicited by the plaintiff counsel during their evidence, I note that such observations were made without the benefit of hearing all of the evidence presented in the case and was restricted to those occasions that the plaintiff attended scheduled appointments to be assessed by them in relation to his claim.
As Dr Home said, 'It is a most unusual diagnosis'.
Notwithstanding the clinical observation as to the differences in the circumference of the calf muscles mentioned above, as noted by Dr Home, there was no noticeable change observed following exertion. Further, the relative differences noted by Dr Williams from those measurements taken in 2006 show a consistent variation. For the relative differences in calf measurements to be meaningful, benchmark pre‑incident measurements are required for comparison. Regrettably no such information has been provided.
Dr Home and Mr Hardcastle each observed there is an absence of any tightening of the muscle following exercise that might otherwise support a compartment syndrome diagnosis.
I am not satisfied on the balance of probabilities that the plaintiff suffers the restriction to his right calf to the extent as he claims.
Further, I not satisfied on the evidence that the plaintiff's calf injury occurred as a result of the incident. Whilst it may be open to infer, in the absence of any other explanation, that the plaintiff's calf muscle was injured at the time of his fall on 6 December 2005, the circumstances of the incident and the reported injury as I find them to be do not support such conclusion.
Significantly, the mechanics of the fall that are relied on by Dr Williams in respect of his compartment syndrome injury diagnosis are not established by the evidence accepted by me.
Absent the description as to the mechanism of the fall, there is seemingly no basis to suggest that the plaintiff's compartment syndrome injury occurred at the time of the incident – save for the reference to the plaintiff being provided with an ice pack.
Dr Koh recorded the history provided by the plaintiff in July 2007 as being calf pain that emerged a week later.
Further, the calf muscle was seemingly asymptomatic for some nine days after the incident. It was then believed to be a possible thrombosis – rather than the result of a significant muscle strain or similar injury.
If the injury suffered by the plaintiff affecting his calf is a compartment syndrome I am not satisfied on the evidence that such injury is causally related to the incident.
I accept the observations and opinion of Dr Home as to the plaintiff's injury. Dr Home observed that it is usual with a compartment syndrome injury to expect tightening in the muscle following activity. Dr Home observed that such symptoms were not apparent when the plaintiff engaged in measured activity. In Dr Home's opinion, the complaint of tightness in the muscle following relative inactivity such as driving was inconsistent with such diagnosis.
I find Dr Home's explanation more consistent with the evidence that I accept – particularly in relation to the circumstances of the incident.
In contrast Dr Williams' opinion is substantially based upon the subjective account of the plaintiff as to the pain suffered and the description of the mechanics of the incident.
I prefer the evidence of Dr Home to that of Dr Williams.
I am not satisfied that the plaintiff has suffered the loss claimed by reason of his lost capacity to engage in his pre-incident employment. I am satisfied on the evidence that the plaintiff was capable of performing his pre‑incident duties as a truck driver up until he was retrenched on 30 January 2007. I am fortified in this view by the extent to which the plaintiff was able to engage in his usual occupation until he was retrenched and then, seemingly without any change in his physical condition was certified by Dr Green wholly unfit for work at his request.
Further, even if the plaintiff did suffer any injury to his calf, I find that the injury suffered by the plaintiff was of such a nature that no surgical intervention was required and its treatment required nothing more than light exercise and perhaps some physiotherapy as recommended by Dr Williams in late 2006.
The plaintiff did not undertake the course of treatment recommended and proceeded to challenge his retrenchment from MacMahon at a time when he had been falsely certified as unfit to engage in his pre-incident occupation - there having been no alteration to his physical symptoms that warranted such assessment.
The plaintiff did not adduce any evidence of having suffered nervous shock as result of the incident and accordingly that aspect of his claim must fail.
As to the plaintiff's claim that he has suffered a psychiatric illness as result of the incident I make the following observations and finding:
Dr Williams said that the neuropathic pain which subsequently emerged as a more significant problem could have been treated if the plaintiff had had a more active physical rehabilitation with a course of exercise, swimming or stretching together with measured response by Lyrica. In his opinion the plaintiff's injury would have resolved by June 2007. He said that once the plaintiff's pain became chronic, it was a more difficult neuropathic problem to deal with. Dr Williams considered that the denial that the plaintiff's injury by MacMahon's insurers was significant. He considered that the effect of rushing to get the plaintiff back to work with a disregard his symptoms was such that the plaintiff's symptoms became chronic. Dr Williams said that with the chronic nature of his symptoms came the depression where the plaintiff felt he was going in circles and not getting anywhere.
Mr Manners has described as to how the plaintiff's symptoms have developed to one of psychiatric illness and not simply an adjustment disorder.
Dr Cheng says that the psychological disorder is not a consequence of the injury but rather a factor such as being made redundant.
To the extent that the plaintiff subsequently developed any psychiatric disorder, I prefer the evidence of Dr Cheng and find that it is more likely that it was an adjustment disorder consequent upon the plaintiff being retrenched, rather than any significant psychiatric illness. It is more probable that it is an adjustment disorder, given the history of events that followed the plaintiff's redundancy including his request to be declared unfit (seemingly in an attempt to prolong his entitlement to workers' compensation), the challenge to his redundancy and his subsequent exaggeration of the circumstances of the incident generally.
I find that the onset of any depressive condition did not result from the injury or a failure to diagnose the injury but rather as an adjustment disorder consequent upon the plaintiff's inability to accept his redundancy.

Evidence of the plaintiff as to extent of injury

Provisional assessment

Notwithstanding the findings I have made as to liability and as the credibility of the plaintiff generally, I am required to proceed with the assessment of the plaintiff's damages lest I have erred in law or fact on issue of liability.
I find that the plaintiff was fit to engage in his pre-incident employment up until his retrenchment from MacMahon and thereafter. I do not accept the plaintiff's evidence as to his ongoing symptoms following his redundancy and the extent to which he says they impacted upon him.
The plaintiff was certified as wholly unfit for his pre-accident employment by Dr Green on 7 February notwithstanding that there had been no change to the plaintiff's physical state from when he was considered fit on 25 January 2007. The only relevant changed circumstance was the plaintiff's retrenchment by MacMahon on 31 January 2007. The plaintiff challenged his redundancy unsuccessfully and thereafter seemingly focused on his injury – an injury that then only required mild treatment including some physiotherapy and swimming and was not such as to prevent him from engaging in his pre-accident employment.
The plaintiff was distressed that he was filmed by the defendant's insurers and that people did not believe him in relation to his injury. Given the extent of activity seemingly able to be undertaken by him this is not surprising.
I do not accept that he has an ongoing disability, the responsibility for which should rest at the defendant's door.
I am satisfied that the plaintiff was fit to work on 7 February 2007 - save for needing some tablets for any pain that may arise and a mild exercise regime with perhaps some local physiotherapy. I find that there was no material change in his physical health from when the plaintiff was certified fit on 25 January 2007. The only justification for the change in certification was the plaintiff's request consequent upon him being made redundant. The fact that Dr Williams had recommended an exercise program and perhaps some local physiotherapy was not such as to preclude the plaintiff from engaging in his pre-incident employment.
Thereafter the plaintiff resisted his redundancy and went down the path of claiming to be incapacitated and pursuing such relief as was available to him against his employer under workers' compensation legislation. The natural response for his employer, MacMahon, was to do all that was necessary to enable the plaintiff to be rehabilitated. This included assisting the plaintiff to obtain trial work through a rehabilitation agency. When the funds were exhausted, the plaintiff was advised that he had no further avenue to pursue against MacMahon.
The plaintiff commenced proceedings against the defendant on 5 August 2008.
To the extent that the plaintiff was certified unfit to resume his pre-disability activities after February 2007, I placed little weight upon such certificates. The certificates rely principally upon the plaintiff's subjective account as to the extent to which he suffered the disability complained.
Dr Williams in his report dated 12 March 2007 then considered that the plaintiff would benefit from a graduated return to work and light sedentary activities, initially up to three days a week, starting half a day and building up to a full day and then increasing from three to five days a working week over a period of six to eight weeks, depending on the plaintiff's response. The plaintiff's return to work would necessarily have to allow for his continued intensive rehabilitation efforts centred around swimming, exercise schedules and stretching programs.
When cross‑examined, Dr Williams qualified such assessment as simply dealing with the muscle contusion injury - the soft tissue elements of the injury.
To the extent that the plaintiff says that he suffered discomfort in his right calf, I note that he has done little if anything by way of rehabilitation as directed. Indeed, when the statutory allowances in respect of his workers' compensation entitlement from his employer MacMahon was exhausted, the plaintiff has done nothing by way of rehabilitation thereafter.
To the extent to which the plaintiff's physical condition has deteriorated over the ensuring period, if at all, I consider it to be a consequence of the plaintiff's failure to engage in the exercise regime recommended by Dr Williams in November 2006 and other physical factors unrelated to the incident including diabetes and blood pressure – illnesses for which he has been receiving treatment from Dr Koh.
To the extent that the plaintiff subsequently developed a psychiatric disorder, as noted above, I accept the evidence of Dr Cheng and find that it is more likely that it was an adjustment disorder consequent upon the plaintiff being retrenched, rather than any significant psychiatric illness.
Whilst Mr Hardcastle considered that surgery might alleviate the plaintiff symptoms by releasing any pressure in the muscle, the plaintiff expressly disavowed such option. Accordingly I make no an allowance in respect of the cost of such possible future surgery.
It follows that I consider that the extent of any injury suffered by the plaintiff is modest.
In respect of the plaintiff's claim for lost earning capacity and lost income I make the following observations.
I accept the evidence of Mr Hardcastle and Dr Home as to the extent of the plaintiff's injury and the plaintiff's capacity to engage in his pre‑accident employment as a truck driver.
I am satisfied that there was no significant change in the plaintiff's physical condition from 7 February 2007.
As the plaintiff was employed with MacMahon in his pre‑incident capacity from the date of the incident on 6 December 2005 until his retrenchment on 31 January 2007 it is accepted that the plaintiff did not suffer any loss of earnings or earnings capacity during that time consequent upon any injuries he suffered.
I find that following his redundancy the plaintiff then remained fit to undertake his pre‑incident employment.
Whilst Dr Manners had recommended that the plaintiff undertake a modest exercise program including swimming, stretching and strengthening with the possibly some local physiotherapy for a short period, there was no suggestion that the plaintiff would not be able to undertake his pre-accident employment. As Dr Green acknowledged, there had been no change in the physical capacity of the plaintiff to undertake his pre‑accident occupation at the time of receiving Dr Williams' report and recommendation that would have prevented the plaintiff from engaging in full time employment.
Accordingly, I find that the plaintiff suffered no loss of earning capacity from such injury as he sustained in his fall and is not entitle to any award in respect of such loss claimed by him.
To the extent that the plaintiff is entitled to be compensated by the defendant in respect of any injury, loss or damage suffered at the hand of the defendant, I am satisfied that only a modest award is warranted. Such award of general damages should include an allowance in respect of medication and approximately six months mild rehabilitative treatment to relieve the calf symptoms as was recommended by Dr Williams in November 2006.
I consider that the appropriate measure for the damages established by the evidence consistent with my findings in respect of loss of amenities is an award of general damages in the order of $20,000 in respect of pain and suffering from the knee injury and the degree of discomfort for a period of six months where it could be reasonably be expected have resolved with a relatively modest exercise program and perhaps some local physiotherapy.
I further allow the sum of $1,500 in respect of medical and pharmaceutical costs to the extent that the plaintiff may require prescriptions of Lyrica from time to time and possibly some physiotherapy.

Provisional Assessment

General damages: $20,000.00
Special Damages: $ 1,500.00