Smith v Ulan Coal Mines Limited (No 2)

[2020] NSWSC 416

Supreme Court

New South Wales

Medium Neutral Citation:	Smith v Ulan Coal Mines Limited (No 2) [2020] NSWSC 416
Hearing dates:	14.10.2019; 15.10.2019; 16.10.2019; 18.10.2019; 10.12.2019
Decision date:	21 April 2020
Jurisdiction:	Common Law
Before:	Hoeben CJ at CL
Decision:	(1)   Verdict for the defendant. (2)   Plaintiff to pay the defendant’s costs.
Catchwords:	NEGLIGENCE ­– LIABILITY – injury to contractor in a coal mine – position of contractor analogous to that of an employee – plaintiff suffered high pressure fluid injury to hand – credit difficulties confronting plaintiff – analysis of evidence – whether plaintiff established that an unknown person found a leak in a hydraulic hose and ignored it – whether plaintiff’s version of facts established on balance – whether plaintiff’s injury reasonably foreseeable – problems with plaintiff’s evidence – whether an unknown person intervened to repair hydraulic fitting – whether plaintiff failed to establish how accident occurred – consequences of failure by plaintiff to establish how accident occurred – whether plaintiff successful in establishing a failure to guard – error in plaintiff’s hindsight approach to that question – application of Civil Liability Act 2002 – failure of plaintiff to establish liability – verdict for defendant.
Legislation Cited:	Civil Liability Act 2002 (NSW) – ss 5B, 5C Coal Mine Health and Safety Act 2002 (NSW) Coal Mine Health and Safety Regulation 2006 Crimes Act 1900 (NSW) – ss 254(b)(iii), 546D(1) Mental Health (Forensic Provisions) Act 1990 (NSW) – s 32 Work Health and Safety Act 2011 (NSW) Work Health and Safety Regulations 2011
Cases Cited:	Graham Barclay Oysters Pty Limited v Ryan & Ors [2002] HCA 54; 211 CLR 540 Hallmark Construction Pty Ltd v Brett Harford; Copeland Building Services Pty Ltd v Hallmark Construction Pty Ltd; Hallmark Construction Pty Ltd v Harford Transport Pty Ltd [2020] NSWCA 41 Liftronic Pty Limited v Unver [2001] HCA 24; 75 ALJR 867 Mulligan v Coffs Harbour City Council [2005] HCA 63; 223 CLR 486 Schellenberg v Tunnel Holding [2000] HCA 18; 200 CLR 121 Smith v Ulan Coal Mines Limited [2019] NSWSC 1263 Tame v New South Wales [2002] HCA 35; 211 CLR 317 TNT Australia v Christie and Ors [2003] NSWCA 47 Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422
Category:	Principal judgment
Parties:	Steven Smith – Plaintiff Ulan Coal Mines Limited – First Defendant Trade Services Pty Ltd – Second Defendant
Representation:	Counsel: P Webb QC/DR Benson – Plaintiff M Scott/A Cameron – First Defendant   Solicitors: Kells – Plaintiff Sparke Helmore Lawyers – Defendants
File Number(s):	2016/173109
Publication restriction:	Nil

JUDGMENT

1. HIS HONOUR:

Nature of proceedings

The first defendant was at all relevant times the operator of the Ulan West Coal Mine. The plaintiff was at all relevant times an employee of Trade Services Pty Ltd (Trade Services). The first defendant contracted with Trade Services for the supply of labour hire personnel. On or about 24 April 2014, Trade Services supplied the plaintiff to the first defendant for the plaintiff to perform the work of an underground electrical tradesman.

2. On 1 June 2014, while at the mine and in the vicinity of Feeder Breaker machine 003 (the Feeder Breaker), the plaintiff’s left hand was injured in a manner consistent with a high-pressure injection injury.

3. The plaintiff has brought a claim against the first defendant for damages in respect of that injury.

4. The plaintiff’s claim against Trade Services, the second defendant, was settled. In these proceedings, there has been agreement between the first defendant and the plaintiff as to the quantum of his claim. Accordingly, the only matter before the Court was the question of the first defendant’s liability to the plaintiff for the injury to his left hand.

5. On 23 September 2019, Campbell J granted leave to the plaintiff to rely upon a Further Amended Statement of Claim (FASOC) and an amended evidentiary statement of Mr Koppe (Smith v Ulan Coal Mines Limited [2019] NSWSC 1263). In doing so, Campbell J refused leave for the plaintiff to rely upon parts of the FASOC and parts of Mr Koppe’s amended evidentiary statement.

The evidence

6. The evidence of the plaintiff in the proceedings comprised:

1. a record of an informal interview between him and Wouter Johan Koppe, a NSW Government Inspector of Mechanical Engineering for Mines, dated 3 June 2014;

2. an evidentiary statement dated 20 December 2016;

3. an amended evidentiary statement dated 5 June 2018;

4. his oral evidence in the trial (T.18-T.84).

Informal Interview

7. It was common ground that the informal interview was conducted at Sydney Hospital, following an operation on the plaintiff’s left hand. The plaintiff was heavily medicated at the time. Mr Koppe made a contemporaneous note of the questions and answers.

8. Mr Koppe asked the plaintiff to detail the incident and include what he saw and felt and did afterwards (Question 1). The response of the plaintiff to Question 1 was recorded as:

“I was doing an electrical code on the feeder, completed the control box and had just cleaned the emergency stop on the walk side of the feeder, right hand side if looking towards the conveyer/outbye.

I noticed a cable had some oil on it.

I noted a drip of oil on the cable along the side of the feeder just below and to the right/outbye side of the emergency stop I was cleaning.

I continued cleaning the emergency stop and saw another drip.

I investigated where the leak came from. I removed a rag from some hoses above the cable and felt a sharp sting in my left hand. Some blood pooled on my hand.

The shuttle car driver approached.

The feeder chain feed was activated.

I saw another spurt of oil from the area where the rag had been.

The spurt then stopped. I am not sure which hose or fitting was the source of the spurt.

I replaced the rag which was soaked in oil back where it came from.

…

I proceeded to the panel deputy, Adriano Lopes, and told him of the incident.

I had a small cut – some blood had come out and I thought it was oil injection.

Earlier on the shift I had used the top right hand control to start the feeder.

I did not use the umbilical cord control at any time during the shift.

…

Question (3)

How much oil was on the rag?

Answer

It was soaked in oil.

Question (4)

What colour was the rag?

Answer

It was blue.

Question (5)

What mode was the feeder in?

Answer

No-one changed the feeder mode. Anthony, the other electrician in the panel had shown me around.

Question (6)

Did you touch any of the feeder or boot end controls?

Answer

No.

Question (7)

Did you tighten or move anything on the feeder besides the blue cloth?

Answer

No, not before or after the incident except for starting the feeder.

Question (8)

Were you wearing gloves?

Answer

No.

Question (9)

Why were you not wearing gloves?

Answer

•   Gloves are not good for doing electrical work.

•   They are not good for handling stuff.

Question (10)

What training have you had on JOY Feeder Breakers?

Answer

•   Not much, know how to stop and start the feeder.

•   Have had some basic training.

•   Have only been issued with a blue electrical key which is only used on the DCB.

…

Question (12)

What equipment are you authorised to operate?

Answer

General electrical work, was going to get a shuttle car authorisation but not yet for the feeder.

Question (13)

What had you checked on the feeder when the incident occurred?

Answer

•   Had only inspected/cleaned the panel and emergency stop on the walk side of the feeder.

•   Spent most of the shift cleaning the DAC system.

…

Question (15)

How long were you by yourself just prior to the incident?

Answer

Around 30 to 40 minutes, although I did speak to the fitter in that time.

…   

Question (19)

How would you describe the oil that hit you?

Answer

It was a spurt not a mist or flow.

…

Question (22)

What do you think of the location of the rag?

Answer

I was not happy that someone would cover an oil leak with a rag and wondered why it was there.

…

Question (25)

Did you have any reason to touch the umbilical cord controls?

Answer

No.”

(The full informal interview is in the Courtbook at p141-146).

Plaintiff’s evidentiary statements of 20 December 2016 and 5 June 2018 (Courtbook p131-140; p371-382)

9. The plaintiff was born in October 1975. He married his wife, Trina, in March 2001. They have a daughter born January 1994 and a son born in May 2008. The plaintiff was in regular employment between 1991 when he commenced his apprenticeship and April 2014 when he commenced employment with Trade Services as an underground electrician. He was allocated by Trade Services to perform work at the Ulan West Colliery. He was a qualified electrician at the time.

10. The following additional information was set out in the evidentiary statement:

“23   Over the years, I have undertaken medical assessment and functional assessments with Coal Services Health Pty Limited from time to time including such assessments prior to obtaining work in the coal industry. The last of these assessments occurred before commencing work with Trade Services Pty Limited was on or about 22nd April 2014. At the time of those assessments, I was a married man with financial obligations. I needed to work and did not disclose details of my pre-existing psychological conditions as I feared I would not obtain work.

24   My first role when I commenced with Trade Services Pty Limited at the Ulan Colliery were tasks associated with the installation of the longwall at main gate 1.

25   When I commenced work at Ulan West, I took part in a general induction arranged via Trade Services which was undertaken in the training room at the colliery and went for about four hours. It was a “tick and flick” process essentially to do with safety following which was an inspection around the surface of the colliery.

26   By late May 2014, the installation of the longwall at main gate 1 had been completed and I was transferred to work at main gate 2.

27   I was working 12-hour shifts, starting at 11:00am. This was my second shift and so I was unsure about the shift pattern but my rotation was as follows:

Afternoon shift

28   Personal Protective Equipment was not provided to me by Trade Services, in particular, no gloves were allocated to me.”

11. The plaintiff thought that there were nine persons in his “crew” comprising the Deputy, Adriano Lopes; a mechanical fitter, five multi-skilled mine workers and two electricians (of which he was one). He identified four of the crew, i.e, Andrew Dean, an operator; Greg Brown, an operator; David Williams, a fitter and Anthony Walker, an electrician.

12. The plaintiff expected to be shown the “ropes” by the other shift electrician, Anthony Walker. While the plaintiff knew how to perform the various tasks, he was to be supervised until he became familiar with operations at main gate 2.

13. The plaintiff continued his evidentiary statement as follows:

“34   The supervising electrician Anthony Walker was to return to the surface to collect cables that were required for the next shift toll. Anthony instructed me to keep the breaker feeder going as it had been tripping out. The breaker feeder is a machine used to transfer coal from shuttle cars to the conveyor belt. To keep the breaker feeder working, involved pressing the start button each time the machine stopped.

35   In the meantime, I went along with monorail cleaning the DAC units as they were covered in stone dust and an oily substance. I pointed out to the mechanical fitter that the DAC units were covered in this oily substance and we would have to cover them or move the breather that was above them.

36   After cleaning the DAC units, a shuttle car had just pulled away and I went to undertake the daily check on the breaker feeder, including cleaning and a visual inspection of the electrical equipment. I cleaned the main electrical panel on the feeder breaker and the emergency stop on the feeder. While I was clearing the emergency stop, I observed fluid on the cable beneath the emergency stop button. I looked up to see where the fluid was coming from and noticed a blue rag tucked into a valve bank. I took the rag away with my left hand, to have a look when in an instant, I felt a sharp stinging sensation in my left hand and noticed blood and fluid pooling in my hand coming from a hole in my left hand. I immediately picked up the rag with my right hand and grabbed my left hand wondering “what got me”.”

14. The incident occurred at about 3pm. The wound was to the back of the hand at the base of the thumb. The plaintiff notified Adriano Lopes. He was taken to the surface where he received first aid. He was subsequently transferred to the Dubbo Base Hospital and from there to the Sydney Hand Hospital. He recalled that approximately two days after the accident, when he was heavily medicated, a number of people arrived at the hospital and he answered some questions. This was the informal interview already referred to. In relation to that the plaintiff said:

“47   … I have been shown a typed version of what appeared to be 25 questions put to me by Wally Koppe, an Inspector of Mechanical Engineers, and Klint Maynard, Manager of Mechanical Engineering from Ulan West. I understand that Andrew Dean, the Health and Safety Representative of Ulan West operations was also present during this interview in hospital. I agree to the best of my recall as I was heavily medicated, with what is recorded in the questions and answers annexed and marked with the letter “A”, being a copy of the “Record of Informal Interview” 3 June 2014.”

15. The plaintiff set out his belief as to how his accident was caused. When regard is had to the expert evidence, it is clear that the plaintiff did not understand how the Feeder Breaker worked. On this issue, the plaintiff said:

“71   I have been shown limited documents from the Department of Trade Investment including the photographs of the scene of the accident. I make the following comments with respect to that material:

a.   I was doing a daily code at the time [of] my injury. I understood there was no need to isolate. My electrician supervisor was aware that I was undertaking the daily code task.

b.   I did see oil dripping when I cleaned the umbilical which is why I removed the blue rag in an attempt to source the leak of oil. I immediately replaced the rag.

c.   The couplings used on the hose were not to be used underground in this fashion. A belt move had occurred in days leading up to my injury during which time, pressure would have built up in the hoses which did not decrease until release or used again. There was clearly fluid built up in the system which released and injured me.

d.   The testing done on the hoses by the defendant was performed in a controlled environment where a leak still occurred. Whilst the leak which did occur during the test when radically outwards, there were too many variables in play on that day which could have changed the direction of the leak.

e.   It is clear to me that Ulan West Operations Pty Limited in particular, and someone in their employ, namely the person who placed the blue rag on the device, which was soaked in oil, was aware of the condition of the hose at that point but did nothing to control the risk which was present, having regard to the circumstances leading up to the incident including the belt move and the build-up of oil and pressure.”

16. The plaintiff provided the following additional information in his amended evidentiary statement:

“85   On 22 February 2018 I was charged by NSW Police Force with:

Impersonating a police officer, s 546D(1) Crimes Act 1900; and

Using a false document to influence exercise of public duty, s 254(b)(iii) Crimes Act 1900;

I have taken legal advice and I am to be assessed by a psychiatrist on 4 June 2018 with a view to an application being made under s 32 of the Mental Health (Forensic Provisions) Act 1990. I understand this matter will next be before the court on 21 August 2018.”

17. The plaintiff’s amended evidentiary statement was relied upon as his evidence-in-chief.

18. He was cross-examined in relation to four medical examinations which took place on 15 September 2011, 26 July 2012, 11 September 2012 and 19 November 2012. The plaintiff agreed that at the end of each of the documents setting out the results of the medical examination, he had declared that the answers recorded against all questions were true and correct to the best of his ability (T.23-T.24).

19. Without setting out the detail, which is repetitive and extensive, the cross-examination established that the plaintiff had deliberately misled examining doctors concerning his past state of health so that he could obtain employment. The disabilities which had not been disclosed were of a serious kind for a person seeking employment underground or in an industrial setting. They included episodes of dizziness and balance problems, a stroke, and a serious episode of self-harm when on 14 January 2010, the plaintiff attempted suicide by injecting petrol/kerosene into his left elbow joint. The stroke, which had been brought about by that incident, left him with weakness on the left side of his body.

20. On 27 March 2010, the plaintiff had presented at Shell Harbour Hospital suffering from a collapse and seizures. This was not disclosed in any of the four medical examinations. On 15 September 2011, when asked “Apart from wearing glasses, have you had a significant problem with your eyes or vision?”, the plaintiff wrote “No”. This was untrue because in January 2010, Dr Lee, an ophthalmologist, had tested the plaintiff’s eyesight and found that while his vision on the right side was 6/6, he could only observe “hand movements” on the left side. The plaintiff agreed that Dr Lee had told him that there was nothing that could be done to improve the vision in his left eye (T.28, Exhibit 1). The plaintiff agreed that he was advised in 2012 by Dr Vesey, his general practitioner, that his lack of vision in the left eye would give rise to difficulties with spatial perception.

21. There were other untruths elicited by the cross-examination concerning whether he had taken time off work as a result of an injury and whether he had suffered from back pain. Perhaps the most striking example of this kind of deceit is at p80 of Exhibit 4, which showed that as of 11 September 2012, the plaintiff answered “No” to the following questions when the true position was that they each required an affirmative answer.

“(1)   Have you ever suffered from fitting, fainting, funny turns or epilepsy?

…

(3)   Have you ever had loss of consciousness or a head injury requiring hospital admission?

(4)   Have you ever noticed any dizziness or balance problems in the last three years?

(5)   Have you ever had any temporary unexplained weakness in the limbs?

(6)   Have you ever had a stroke?

…

(1)   Apart from wearing glasses have you ever had significant problems with your eyes or vision?

…

(4)   Have you ever suffered from a mental illness or psychiatric condition?”

22. In short, the cross-examination effectively established that there were credit issues potentially affecting the plaintiff’s evidence in that he was prepared to deceive not only those conducting the medical examinations but potential employers (by whom the medical examinations were required) for his own benefit. When one has regard to the fact that such deception could involve a serious risk of injury, both for the plaintiff and fellow workers, it matters not that the plaintiff was telling these untruths in order to obtain employment. On that issue, the letter from Dr Vesey, dated 30 January 2014, is important:

“Thank you for your fax regarding Steven Smith. Mr Smith has been advised not to climb electricity poles due to severe vision loss in his left eye and a history of seizures in 2010, 2011, 2012 and 2013. The visual loss adversely affects his spatial awareness and the history of seizures makes working at heights unsafe.” (Courtbook p1195)

23. The plaintiff’s conviction does not assist his credit in this matter. He was convicted of preparing a false document in order to retain his position in the Rural Fire Service. The conviction was based on a plea of guilty for preparing a false medical certificate purporting to come from Dr Vesey.

23. Apart from credit issues, under cross-examination the plaintiff’s evidence was:

“Q. Now, you and Mr Williams had a look at the breaker feeder in question?

A. There was myself, Mr Williams and Mr Walker.

Q. Mr Walker was the senior electrician?

A. Senior electrician, the one that was supervising me.

Q. Mr Walker then went to do other duties?

A. He went to the surface.

Q. And he left you with the task of cleaning--

A. Yeah, code A’ing the feeder breaker.

Q. Yes and that means, does it not, cleaning the electrical panels, the--

A. Yes.

Q. --stops, the--

A. Yes, yes. Cleaning and visually inspecting everything, yes.

Q. And Mr Williams carried out, as you saw, his daily inspection of the machine when you were there?

A. No, he was only there for five minutes, if that, and then disappeared.” (T.53.48-54.20)

“Q. You had some knowledge of the operations of the feeder-breaker, didn't you?

A. No.

Q. What it did?

A. No. I knew - I knew what it did, transferred coal, but that's it.

Q. You didn't know in transferring coal that it performed any particular functions?

A. No.

Q. You were alive, were you not, to the fact that it had high pressure hydraulic systems on it?

A. I was aware that it would have had it somewhere, yes.

Q. Looking from where you were cleaning, as you say, the electrical control board -

A. Emergency stop.

Q. - and the emergency stop, looking towards the bulkhead, you could see that that was a high pressure connection point for a hydraulic system.

A. No. I - it was hydraulic hoses. There's no difference underground, which is high pressure, which isn't or which is grease and which is oil.

Q. You were aware, were you not, that high pressure hydraulic connections were, if they failed, dangerous?

A. Yes. Everyone gets told that.

Q. You say, don't you, that you saw a fluid on the line, on the hydraulic hose line?

A. No, I saw fluid on the cable underneath it, or a wet area - fluid, wet area.

Q. Right, and you knew, did you not, from your induction and from your training, that somebody who saw something which was or may be a hydraulic leak, unless they were a mechanical tradesperson, were required to go and inform a mechanical person that there was a leak?

A. And also in a code A, which is what I was conducting at the time, it is to investigate.

Q. Do you say that as an electrician, it was your job to investigate a fluid leak in the hydraulic system?

A. On my electrical cable.

Q. The electrical cable where you saw the leak was what distance, do you say, from the bulkhead? A hundred, 200?

A. Yeah, something like that, yeah. I didn't have a ruler.” (T.58.20-59.15)

25. It was subsequently clarified that the words “a hundred, 200” were a reference to millimetres.

“Q. What distance would you estimate it is from where that wet cable is to where the blue rag is?

A. I would say 250, 300 millimetres, as a rough guess.

Q. Now, I put it to you that as an electrician, if you suspected that there was a leak coming from the hydraulic hoses that are shown there going into where the blue rag is--

WEBB: Could I just help my friend for a moment, your Honour?

SCOTT:

Q. If you, as an electrician, came to the view that there was a chance that the hydraulic hoses or fittings going into the area where the blue rag was or is in this photograph, then your obligation was, was it not, to notify a mechanical fitter that you suspected that there was a leak of fluid coming from that hydraulic system?

A. Yes, you are meant to do that. At that stage I did not realise or know that there was a leak. I didn’t know whether that was water or somebody underground had taken a pee on it. You - they - it’s - it could be anything.

Q. There were no electrical components, were there, on this machine where the blue rag is?

A. Exactly where the blue rag is?

Q. Mm.

A. No.

Q. And the blue rag is situated, is it not, inside what appears to be a red side and a red top that run for some length along the fittings and pipe?

A. Yes, there is a blue rag in there and there is a shroud around it, yes.

Q. Sorry?

A. There is that red cover around it, yes.

Q. To reach the blue rag would require you to put your hand inside that top cover and beside the side cover?

A. Not all the way in, no.

Q. The blue rag is, as we can see in the photograph, inside that area?

A. Can I just say something here? That blue rag - this picture is taken after I have jammed the blue rag back in there.

HIS HONOUR:

Q. But you put the blue rag back where you thought it came from?

A. Yes, but is that the exact positioning of it? You may smile about it but a code A, if you’ve read a code A, says to clean, tidy, remove any foreign material on the machine.

SCOTT:

Q. You have stated, have you not, that you were investigating what you thought may well be a leak?

A. That could have been a number of things in my mind at that stage. I was not familiar with that machine.

Q. Do you accept that you have stated that you were investigating a leak of fluid?

A. No.

HIS HONOUR: No, he said - as I have understood what he said - he was investigating a potential leak, what could be a leak.

WITNESS: Exactly.

HIS HONOUR:

Q. Is that correct?

A. Yes, that is correct. At that stage I didn’t know what it was.” (T.64.21-65.40)

26. In relation to the transcript of the informal conversation between the plaintiff and Mr Koppe, the following evidence was given:

“HIS HONOUR: This is the transcript of an informal discussion between Mr Koppe and Mr Smith, that’s right, is it not?

SCOTT: It is, your Honour, that the witness has attached to his statement.

HIS HONOUR: Yes, I know it’s attached to his statement but I’m just satisfying myself that I’ve got the right understanding of the document.

SCOTT: Yes, your Honour.

Q. Question, it says there, from Wally, “Wally asked Steven to detail the incident and include what he saw, felt and did afterwards”. If you go down to the second dot, “I noticed a cable had some oil on it.” The third dot, “I noted a drip” …

HIS HONOUR: Are you going to let him answer that or not?

SCOTT: I’m sorry.

Q. You noted that the cable had some oil on it?

A. This statement, before I answer it, was that I have no recollection of this statement 'cause it's the day within 24 hours, even 12 hours, of me having an operation. I was, as you could put it, very high on serious painkillers, and I have no recollection of this statement. From what I have been told, there was a number of people in this room. I was on a drip, I was on everything, so I - honestly I can't answer that.

Q. My question to you was it says there “I noticed a cable had some oil on it”. Do you now say that you don't - do not say that was what you saw on the day?

HIS HONOUR: No, that's not what he was saying at all. Please be accurate. What he is saying is “I may have said it, I may not have said it, I now have no recollection of having said it”.

Q. Is that correct?

A. Yes. Yes, thank you.

SCOTT:

Q. Do you have a recollection of any of the answers in this document?

A. In what, sorry?

Q. The document that you've attached as being the conversation between yourself and Mr Koppe?

A. No, I don't.” (T.66.1)

“Q. Do you now say with regard to the statement that you've got there, in paragraph 47:

“I agree to the best of my recall, as I was heavily medicated, that what is recorded in the questions and answers annexed and marked with the letter A is a copy of the record of informal interview of 3 June 2014.”

Do you now say that you agree to the best of your recall with the questions and answers in that document?

A. I don't agree with that document. I can't answer for that document, sorry.” (T.67.30)

“Q. Going back to paragraph 36, you say that you were cleaning the electrical equipment?

A. Yes.

Q. How were you doing that?

A. With a rag and a, what do they call it, like a paintbrush, I've just lost - it's similar to a paintbrush, not a Banis brush, it's a wooden handle, round, I've lost it now, I can't remember to be honest.

Q. What did you do with the rag after you were injured? Did you drop it, take it with you?

A. It was in my - I put it back in my vest.

Q. The rag was in your hand was it when you were looking at the cable that you said was wet?

A. The rag was in my right hand, yes.

Q. Did it remain in your hand whilst you looked to see where the fluid was coming from?

A. Yes, 'cause my hand had the rag in it. I leant on the machine which would have been just up - just above those cables on that red guard, and pulled the rag out. So the rag was in this hand, and I've leant on the machine, so the rag's now between me and the machine in the right hand, and I've just leant and pulled the rag out.” (T.67.42-68.15)

“Q. The blue rag was quite obvious wasn't it?

A. Yes.

Q. When you're looking at the machine?

A. Yes.

Q. If somebody had been carrying out their usual daily inspection, it would have been quite obvious to see the blue rag?

A. Yes.” (T.68.31)

“Q. So at all times, the palm of your hand was facing down?

A. Yes.

Q. The rag as we can see from the photographs is sitting on top of the valve bank?

A. On top of--

Q. Not underneath it.

A. On top of those hoses, yes.

Q. Yes, on top of the hoses. You've got your valve bank. We can see the injury to your hand is to the base of your thumb on the top of your hand?

A. That's correct, right there.

Q. Do you say that at any stage you put your hand underneath the valve bank or the connections?

A. No.” (T.70.3)

“Q. How good is you recollection as to how you hurt yourself or how you were hurt?

A. It's reasonably good.

Q. So that's okay.

A. Yes.

Q. What parts then do you say you can't remember? You can't remember in detail the statement you made to Mr Koppe?

A. That's correct, yes.

Q. What else can't you remember?

A. I can remember most things but this day is pretty fuzzy and the day before at Dubbo I think it was, or wherever it was, was pretty hazy as well, but with the injury, to answer your question, I remember most of what happened, yes.

Q. So your memory is affected once you started receiving treatment?

A. Yes, yes, yes.” (T.71.3)

“Q. You're aware aren't you that the experts have tested the hydraulic system on this machine following your accident?

A. You're talking about Pirtek?

Q. Pirtek and also Mr Koppe and Mr Maynard on site.

A. I just thought they tested it at Pirtek. That's where I thought all the testing was done.

Q. You've been informed, haven't you, that the testing that took place failed to find a leak from any of the hoses?

A. No, I thought there was a leak in one of the - I thought--

Q. In one of the hoses?

A. Yeah, I -- ” (T.71.27)

“SCOTT:

Q. I want you to assume that the hydraulic system, the high pressure hydraulic system, was tested in situ by Mr Koppe and Mr Maynard on 2 June, the day after.

A. I can assume that, yes.

Q. I want you to assume that the testing failed to find any leak from any of the hoses.

A. I - if that's what they say, then that's there.

Q. I want you to assume that the testing in situ failed to find any leak from any of the couplings of the hoses.

A. If that's what they say.” (T.72.22)

“Q. I want you to assume that the evidence of the experts is that the machine, the breaker feeder machine hydraulic system, can only have pressure in the hoses that are attached to the bulkhead when a button on the pendant control is depressed. Can you make that assumption for me?

A. If that's what they say, I don't know.

Q. I secondly want you to assume that the pressure only remains on as long as the button is depressed. Can you make that assumption?

A. If that's what the expert says, yes.

Q. Did you, during the time that you were looking at the wet cable and removing the blue rag with your left hand, depress any button on the pendant control?

A. From recollection, no.” (T.73.10)

“Q. I put to you that the injury that you suffered on 1 June 2014 at the coal panel at the feeder-breaker, when you were in or around the feeder-breaker, did not occur the way that you have described.

A. Well, I'm telling you it did.” (T.74.29)

27. The first defendant relied upon two evidentiary statements of Mathew Piscionieri, dated 18 October 2017 and 13 August 2018 (Courtbook pp147-157; 423-427) and his evidence at trial (T.91-T.97).

28. Mr Piscionieri had the role of Health Safety and Training Manager at Ulan West underground mine. He graduated in 1998 with a Diploma of Occupational Hazard Management. He had been in a fulltime health and safety role since 1996. In his role with the first defendant, he was responsible for the oversight of the mine’s health and safety management system and the training, competency and management system. This included supervising the quality of incident investigations, workers’ fitness for work, injury management and rehabilitation and training.

29. Trade Services supplied labour hire services to the first defendant during 2014. The first defendant engaged Trade Services to provide the services under a purchase order arrangement as and when labour hire services were required at the mine.

30. In early April 2014, Trade Services nominated Mr Smith to provide services of an underground electrician at the mine. Trade Services nominated Mr Smith through the Induction Approval Process, which required the vendor to supply all necessary information for the first defendant to determine whether the worker was suitable for the role.

31. In addition to a description of the nominees’ relevant skills and experience, the Induction Approval application must contain a medical assessment report which is known as an “Order 41 Medical”. In order for the Order 41 Medical to be acceptable, it must have been obtained in the past three years.

32. The first defendant relied on the Order 41 Medical to understand whether the prospective worker is:

• fully able to carry out the required tasks at the mine without modification or under a medical condition management plan;

• partially able to carry out the required tasks at the mine and requires modification of duties due to existing injuries or disabilities; or

• unable to carry out the required task and is unsuitable to work at the mine.

33. Mr Smith’s induction approval application indicated that he was a very experienced underground electrician, who had obtained a wide range of competencies in tasks that might be required of an underground electrician. His medical assessment indicated that he was in good health and specifically that he had unconditional vision and hearing and, accordingly, the first defendant would not be required to make any modification to the duties that he would be able to perform.

34. On 23 April 2014, the first defendant accepted the nomination of Mr Smith by approving the Induction Approval application. This is done by the task co-ordinator and the operations manager or delegate signing the front page of the Induction Approval form. On or about 24 April 2014, Mr Smith attended the first defendant’s formal induction course. This involved a surface induction and then an underground specific induction.

35. The first defendant’s formal induction course included training and awareness of its health and safety management system which comprised its key management plans, emergency response procedures, fitness for work and hazard identification and control and other key areas of training and safety.

36. In order to be appointed and authorised to work as an electrical trades person at the mine, individuals must complete specific training and competency requirements to meet the first defendant’s Electrical Engineering Management Plan. Typically, the authorisation process takes one full day, however, this can be completed in a shorter period based on the individual’s prior learning competencies. Mr Smith completed the authorisation process on 24 April 2014.

37. If the plaintiff’s full medical history and condition were provided to the first defendant, Mr Piscionieri did not believe that the first defendant would have accepted him as a suitable candidate for the underground electrician role as his injuries and disabilities would have prevented him from working safely at the mine.

38. In his opinion, an individual would present a major risk to himself and others working in and around heavy machinery if that person suffered from epilepsy and uncontrolled seizures. If a worker suffered an epileptic fit or an episode while performing electrical work or interacting with mobile or fixed plant, there could be fatal consequences.

39. An electrician suffering from partial blindness and poor spatial awareness would present an increased risk to himself and others. Mr Piscionieri stated that spatial awareness is a critical element of working in any heavy industrial environment, especially an underground mine. An individual with poor spatial awareness, would not appreciate risks and hazards that would be identified by a person who was alert and maintaining an awareness of their work environment. These hazards include working in a dynamic underground environment in which there are a number of interactions between individuals, machines and fixed plant.

40. Mr Piscionieri stated that a worker suffering from poor concentration would also present an increased risk to himself and others. Underground electricians typically worked ten to twelve hour shifts and, in order to carry out the required tasks in a safe manner, were expected to maintain a high level of concentration throughout the shift. He considered that significant levels of concentration were specifically required when working in and around electrical equipment in order to identify hazards or potential risk and maintain the mine’s safety standard.

41. In his second evidentiary statement, Mr Piscionieri said that he noted paragraphs 46 and 47 of the report of Mr Cockbain, which described how workers at the mine had access to, and were provided with, personal protection equipment (PPE) including gloves. Mr Piscionieri also noted that the plaintiff made certain comments about the availability of PPE in his amended evidentiary statement.

42. Mr Piscionieri referred to the relevant section from the first defendant’s PPE Policy which was in effect at the date of the plaintiff’s injury. These documents formed part of a presentation provided to all persons being inducted before working at the mine. This document noted the following:

“Gloves are always carried and worn in all applications where there is a risk of incurring a hand injury and hand protection would:

•   prevent hand injury;

•   mitigate hand injury outcomes;

•   ensure gloves are suitable for the task and adhere to risk management tool requirements;

•   PVC, rubber, leather, vitron, nitrile …”

43. Mr Piscionieri said that PPE dispensers were located immediately inside the main entry to the muster room at the mine. These dispensers had been present at the mine since at least 2012 and were in situ at the time that the plaintiff worked at the mine.

44. Mr Piscionieri explained that the usual manner in which workers obtained PPE (including gloves) was from these vending machines. Workers (including contractors) were provided with a fob or “dongle”, which could be swiped against the vending machine to register the worker’s details, and details of his/her employer (in order for the relevant employer to be invoiced for the cost of any PPE provided). If a contractor was not provided with his or her own fob, his or her supervisor would have a fob and the worker could access PPE by making a request to the supervisor.

45. The gloves, which are currently dispensed from the vending machines, differed from those which were available in 2014. It was Mr Piscionieri’s understanding that Ansell grade four gloves were available at that time.

46. If the worker was unable to obtain PPE from the vending machines, that worker could either speak to his or her supervisor to advise of that fact and request the supervisor to obtain PPE from the vending machine. If that was not possible, the worker could access the storeroom and obtain the necessary PPE there. It also was and remains routine for boxes of PPE to be placed underground in crib rooms.

47. It was Mr Piscionieri’s understanding that the plaintiff was undertaking a generalised inspection of the Feeder Breaker at the time of his injury. Mr Piscionieri did not understand that he was undertaking any work which required any manual dexterity of fine touch which would require him to remove his gloves.

43. Mr Piscionieri explained that the question of whether a worker required supervision at the mine was related not to the worker’s skill to undertake a central trade or job; rather it was related to a particular worker’s knowledge of safety procedure relating to this particular mine. Workers who were new to the site at the mine were instructed that they needed to be supervised by a co-worker (who was capable of and authorised to work unsupervised) so that in the case of an emergency or evacuation, the more experienced worker was in a position to provide assistance to the less experienced worker.

44. The time between a worker’s start at the mine and the date that he or she was certified fit to work on an unsupervised basis depended on that worker’s general experience working in mines. However, what was critical to the decision was the individual worker’s familiarity and understanding of safety procedures in the mine. The usual expectation was that a worker would be sufficiently knowledgeable within eight to nine weeks of working at the mine to pass the relevant assessment/interview to be authorised as capable of working unsupervised.

45. Mr Piscionieri explained that the term “supervision” meant that the less experienced worker was to be in the line of sight or within verbal instruction distance of the more experienced worker. In an underground scenario, that could mean that workers could be a considerable distance apart and still be in each other’s line of sight and within verbal communication range, noting that all underground workers are required to be illuminated with a miner’s lamp (affixed to the helmets) at all times. “Supervision” did not necessarily mean that the more experienced worker was required to be inspecting or otherwise checking the task that less experienced workers were performing.

46. Mr Piscionieri was cross-examined on the contents of his evidentiary statements. He was also cross-examined on a document which became Exhibit B. This was a document prepared by Edward Morgan, who was the then Inspector of Coal Mines and Mr Koppe’s superior. Mr Piscionieri remembered seeing that document on a notice board at the mine. He agreed that the procedure in relation to these reports was that it was signed by Mr Morgan and sent to the mine for consideration by the mine administration. The mine administration then had the opportunity to comment on the report or seek to make alterations to it. That is what happened in this case. The Production Manager of the mine considered the document, signed it and then arranged for it to be placed on the notice board for a minimum of 14 days.

47. Mr Piscionieri said that he was unaware of any response to the document. He was, however, aware that “there was an extensive questioning and follow up to determine if anything had happened” as set out in Exhibit B but to his knowledge, no-one responded to the invitation in the document to the men on shift to disclose whether any of them had tightened up the fitting to close a leak in the Feeder Breaker.

48. Mr Piscionieri thought that the questioning was carried out by Mr Maynard. (Exhibit B is at pp879 and 880 of the Courtbook.)

49. When asked under cross-examination whether Anthony Walker, the senior electrician in the plaintiff’s crew, was still working at the mine, Mr Piscionieri responded that he could not really say but did not believe that he was.

50. The first defendant relied upon the evidence of Clinton Maynard. He prepared three evidentiary statements, one of which was dated 24 October 2017, and the other two were dated 10 August 2018 (Courtbook pp215, 224, 389-391; 393-401). Annexed to one of those statements was a computer disc (CD) which showed the operation of a Feeder Breaker, similar to but not identical to, that which was involved in the plaintiff’s injury. Mr Maynard was also cross-examined in the trial (T.101-T.119).

51. Mr Maynard was employed in the statutory role of Mechanical Engineering Manager at the mine. In 1989, he had completed an apprenticeship as a fitter/turner. From 1989 to 2003, he held the positions of Mechanical Tradesman, Shift Leading Hand, Longwall Mechanic Engineer and Engineering Projects Co-ordinator.

52. In 2003, he obtained an Advanced Engineering Diploma and qualified for a Mechanical Certificate of Competency from the Department of Primary Industries. This certification allowed him to hold the statutory role of Mechanical Engineering Manager.

53. Mr Maynard commenced working in that role at the mine in 2011. He was responsible for managing the mechanical engineering activities at the mine. This included developing and implementing engineering standards and practice, monitoring machine performance, co-ordinating safety and carrying out incident investigations.

54. In order to operate the mine, the first defendant engaged various contractors to supply goods and services. In 2014, it engaged Trade Services to provide temporary labour hire services. From mid April 2014 to June 2014, the plaintiff was supplied by Trade Services to the first defendant as an underground electrician. Mr Maynard never worked with the plaintiff and did not recall meeting him.

55. At approximately 4pm on 1 June 2014, Mr Maynard received a telephone call from the Control Operator at the mine notifying him of the plaintiff’s accident. The day of 1 June 2014 was a Sunday and Mr Maynard was not working at the mine at the time of notification. As well as notifying relevant personnel from the first defendant, Mr Maynard also contacted Mr Koppe to advise him of the accident. At the time, an accident of this kind was a notifiable accident.

56. Mr Koppe did not answer his telephone when called and Mr Maynard was not able to speak to him until 2 June 2014. Mr Maynard noted that in 31 years of working in underground mines, he had never directly experienced a worker suffering from a fluid injection injury, although he was aware of the risk.

57. Mr Maynard said that all the equipment which was used at the mine was fitted to meet the protective guarding intent, as set out in MDG–41 “Fluid Power System Safety”, which is a mine design guideline published by the Department of Planning and Environment. He said that the protective measures that were fitted to the equipment at the mine and were fitted at the time of the plaintiff’s accident, included Kevlar sleeves over all hoses and guarding over all hose joints where it was practicable to do so.

58. Mr Maynard described Feeder Breaker No 3 and its function. Feeder breaker No 3 was manufactured by JOY. It was approximately 10 metres long, 3 metres wide and 2.5 metres high. It was used in conjunction with shuttle cars and coal cutting equipment in order to mine roadways for installation of the primary coal extraction infrastructure.

59. The Feeder Breaker’s function is to receive coal from a shuttle car into a hopper end by way of a chain conveyor. The coal is transferred on the chain conveyor from the hopper end of the Feeder Breaker through a crusher to the discharge end of the Feeder Breaker. The crusher reduces the product size to a manageable dimension.

60. At the discharge end, the coal is transferred onto a rubber conveyor belt which is known as the “gate road conveyor”. At the discharge end of the Feeder Breaker, there is a hydraulic belt tracking system which aligns the belt to the middle of the pulley. Once the Feeder Breaker is set up in position and the belt tracked, there should be no reason for the hydraulic belt tracking system to be operational.

61. The Feeder Breaker hydraulic belt tracking system includes a hydraulic belt lifter that is used to lift the top section of the conveyor belt to enable the installation of an H-frame structure that supports the conveyor belt and the conveyor belt idlers on which the conveyor belt sits. Unless the Feeder Breaker is being moved along the roadway as part of the panel advance sequence, the hydraulic belt should not be operational.

62. There is a bulkhead that mounts hydraulic hoses from the middle of the Feeder Breaker to the integrated boot end which is positioned directly underneath the discharge end.

63. The Feeder Breaker has three modes: Tram, Sequence and Set up.

• Tram mode is used when the Feeder Breaker is being relocated along the gate road. While the Feeder Breaker is in Tram mode, the coal transfer components, which include the conveyor belt and the crusher, are disabled.

• Sequence mode is used when the Feeder Breaker is in coal cutting condition. That is normal operation. In this mode, an operator can only lower the belt lifter as the belt raise (which requires a greater amount of hydraulic pressure) is disabled.

• Set up mode is used to set up the conveyor by aligning the tracking of the conveyor belt but does not allow tramming. In this mode, there is no restriction on the hydraulic functions of the Feeder Breaker.

69. Each of the modes is selected by turning a switch on a control panel which is located on the walkway side of the Feeder Breaker. At the time of the plaintiff’s accident, the Feeder Breaker was in normal operation and therefore should have been set to Sequence mode.

70. On the non-walkway side of the Feeder Breaker, there is a hydraulic pump that supplies hydraulic pressure to the belt raise. When the Feeder Breaker is set to either Set up mode or Sequence mode, the pump is activated and there is pressure available for use.

71. In Sequence mode, the only function that is available to the discharge end is the Belt Lift Lower. In this mode, pressure is only released when the “Belt Lift Lower” button is activated on a pendant remote that is generally placed near the bulkhead on the walkway side of the Feeder Breaker. The hose that provides high pressure oil to the Belt Lift Lower function is located on the bottom row and on the walkway side of the bulkhead.

72. The Feeder Breaker is designed in this way to prevent movement of the Belt Lift function while the Feeder Breaker is in operation. In order for the Belt Lift to lower, an operator must hold down the button on the pendant remote for the Belt Lift Lower to operate and the hoses to become pressurised.

73. When the correct pendant remote button is being held down, hydraulic fluid flows through the hoses which supply pressure to enable the Belt Lifter to move downwards. Unless this occurs, no hydraulic fluid at any pressure would be moving in the hoses. Before any button on the pendant remote is operated, operators are required to ensure that there are no personnel within the proximity of the Belt Lifter.

74. It is policy at the mine that all personnel wear PPE which includes gloves. It is permitted for workers to remove their gloves to improve dexterity. Before this occurs, workers are required to complete a Take 5 (Personal Risk Assessment). These procedures have been implemented to ensure that before the protective equipment is removed, employees are prompted to consider their surroundings and the potential hazards that may exist. Mr Maynard could see no reason why an electrician would need to remove his gloves in order to clean a Feeder Breaker.

Initial Inspection 1 June 2014

75. At approximately 5.30pm on 1 June 2014, Mr Maynard arrived at the mine. He attended the site of the plaintiff’s accident with Grant Harrison (the Development Mechanical Engineer Co-ordinator at Ulan) and a panel supervisor. He observed that the Feeder Breaker was demarcated and an isolation zone had been established. The isolation zone was marked with red and white “no road” tape. The purpose of the isolation zone was to preserve the site of an accident. Any unauthorised access to an isolation zone by any employee and/or contractor at the mine was prohibited.

76. Mr Maynard observed a blue rag that had been placed between the bulkhead and the protective guards for the hose fitting. He removed the rag. It was dry. He could not understand why the rag had been placed in this position. However, to ensure that the state of the Feeder Breaker was not altered before a formal inspection with Mr Koppe, he returned the blue rag to its original position.

77. He gave evidence that it was not normal practice for a rag to be placed on or near any equipment at the mine for any purpose. If a leak were detected on any line or hose on any piece of equipment, whoever first identified the leak was responsible to stop and either repair the leak themselves if they were a mechanical tradesman or if they were not qualified to repair the leak, to arrange for someone that was qualified to immediately repair it. This was referred to at the mine as the “Hydraulic Hose Inspection Tarp” procedure.

78. Mr Maynard observed only a small amount of oil around the fitting of hose 2, which is the hose that operates the belt raise function. Because of the amount of oil around the fitting and the oil that he observed on the fitting, this appeared to him to be a low release of oil only. Mr Maynard took nine photographs of the Feeder Breaker.

79. During his inspection of the Feeder Breaker, Mr Maynard did not alter the function setting on it. He concluded his inspection at approximately 6pm and the Feeder Breaker was left isolated.

Subsequent inspection – 2 June 2014

80. At approximately 1pm on 2 June 2014, Mr Koppe and Mr Maynard inspected the Feeder Breaker. At Mr Koppe’s direction, Mr Maynard took 18 photographs on this occasion.

81. After approximately five minutes of visual inspection, Mr Koppe and Mr Maynard directed an operator to power up the Feeder Breaker. During the initial power up, neither Mr Koppe nor Mr Maynard could identify any leak point. They then instructed the operator to perform a series of function tests of hoses connected to the bulkhead, which included Belt Raise, Belt Lower, Slew Left and Slew Right. Once again, neither Mr Koppe nor Mr Maynard could identify a leak point in the line. Mr Koppe and Mr Maynard then tried to recreate the circumstances leading up to the plaintiff’s accident, however, they were not able to do this for the following reasons:

• there was no visible leak in any of the four hoses;

• the blue rag was dry shortly after the plaintiff’s accident and the rag did not have any major evidence of oil staining;

• the area around the alleged release point was dusty and not wet with oil which indicated that there had not been a spray of oil at the location of the plaintiff’s accident;

• there was no evidence of any sprayed oil on the rear guards around the hose connections; and

• the Feeder Breaker was operational and should have been in sequence mode and therefore there would not have been any movement of oil in the hoses without an operator selecting the “Belt Lift Lower” function on the pendant remote.

82. After they had function tested the Feeder Breaker, Mr Koppe released the site to allow the removal of the hoses and fittings for testing purposes. The hoses and fittings were tagged before removal to ensure that the mine was able to identify the position that the hoses were in at the time of the accident. After this had occurred, Mr Koppe instructed Mr Maynard that the isolation zone was no longer required and that the Feeder Breaker could be returned to general use. Replacement hoses and connections were fitted to the Feeder Breaker and it was returned to operation shortly thereafter. Mr Maynard was not aware of any malfunction being reported in relation to the operation of the Feeder Breaker either before or after the plaintiff’s accident.

Testing – 4 June 2017

83. On 4 June 2017, Mr Koppe and Mr Maynard attended the Pirtek testing facility at Mudgee in order to test the four hoses and connections that had been removed from the Feeder Breaker. Pirtek specialised in the sale and testing of fluid transfer products and was a preferred supplier to the mine and other Glencore mine sites.

84. Each hose was tested individually and no leak was observed or recorded in any of the four hoses at either 310 bar or 400 bar.

85. The hoses were then tested with the associated fittings that had been removed from the Feeder Breaker. This was performed by looping the hoses in a test bench. Pressure was then applied to the hose and a gauge in the circuit indicated the pressure at the time of testing. A minor leak was observed on the taper joint fitting. This leak was not considered to be relevant to the plaintiff’s injury as it was on the opposite side of the bulkhead to the area in which the plaintiff sustained his injury.

86. In addition, the source of the leak was from the fitting and not the hose. In Mr Maynard’s opinion, the leak was created when the seal around the fitting had been broken when it had been removed from the Feeder Breaker as no indication of leaking fluid was identified in that area during the two incident scene inspections that he carried out on 1 June or 2 June 2014 or during the removal of the fittings on 2 June 2014. At the time of testing at the Pirtek testing facility, no replacement sealant had been applied. During the testing, Mr Maynard did not observe anything unusual about the hoses or the connections.

Outcome of investigation and testing

87. As a result of Mr Maynard’s physical inspections of the incident site, the functionality of the Feeder Breaker and testing of the hoses, he did not believe that the plaintiff’s accident could have occurred in the manner that had been reported to him. This opinion was based on the following:

• there should not have been any hydraulic oil travelling through the hoses at any pressure as the Feeder Breaker was reported to be in Sequence mode and no button was being pressed on the pendant remote;

• in order for there to be pressure in the hoses, the mode would have been required to have been adjusted and the applicable button on the pendant remote, which corresponded with the mode that was selected, must have been pressed and held down;

• during his inspections and throughout testing, there was no leak identified in any of the hoses that were fitted to the Feeder Breaker at the time of the plaintiff’s accident; and

• the only leak that was observed during testing was a slow release of oil from a connection that was located on the opposite side of the bulkhead to that area in which the plaintiff sustained his injury.

88. As indicated, one of the evidentiary statements of 10 August 2018, prepared by Mr Maynard, related to the operation of a Feeder Breaker, as shown on a CD. Mr Maynard explained why the Feeder Breaker involved in this incident was not used:

“3   At the request of Kerri Thomas, partner of Sparke Helmore Lawyers, I arranged for an inspection of a Feeder Breaker currently located within the Mine to take place.

4   This is not the same machine that is the subject of these legal proceedings (being Feeder Breaker 003), however it is the same make and model of machine that the Plaintiff alleges was the cause of his injuries, the subject of these proceedings. Feeder Breaker 003 is off site undergoing overhaul and accordingly was not available for inspection. …

5   Ms Thomas requested that I obtain video footage of the Feeder Breaker and that I provide some commentary explaining the key components of the machine and how it works.”

89. That process was carried out and the CD was annexed to the evidentiary statement.

90. In his third evidentiary statement, Mr Maynard responded to the Amended Evidentiary Statement of the plaintiff and to a Supplementary Expert’s Report from David Cockbain (the Supplementary Cockbain Report).

91. Mr Maynard said that the plaintiff was mistaken when he said that he was a “yellow hat” meaning that he was unable to work unsupervised. This was because although other mines used a colour coding system to distinguish workers, at the time of the accident this mine did not.

92. Mr Maynard explained the meaning of working “unsupervised’ in this mine. That explanation was in line with that provided by Mr Piscionieri. He said that most workers should have the required knowledge of safety evacuation proceedings relevant to this mine within eight or nine weeks of starting at the mine. He went on to say:

“8   Workers who are working under supervision are required to be working in the line of sight of a more experienced worker, which, when they are underground, may mean workers can be up to 100 metres apart (noting underground workers are required to wear and activate miner's lamps, affixed to their hard hats).”

93. Mr Maynard then responded to the following:

“Whether, in view of the photographic evidence, Mr Maynard's comments regarding the dryness of the rag are likely to be correct given the delay between the time of the incident and Mr Maynard's inspection

11   I note that the Plaintiff says at paragraph 38 of his Amended Statement that the incident occurred at approximately 1500 hours. I attended the accident site at approximately 1730 hours, i.e. some 2.5 to 3 hours after the incident. I also note that at paragraph 71 (e) that the Plaintiff alleges that at or about 1500 hours (i.e. at the time of the accident), the blue rag was "soaked in oil”. I also note Mr Cockbain's comment at paragraph 15 that it is likely that any hydraulic oil would have been absorbed into the rag, leaving no external signs of wetness.

12   I also note Mr Cockbain's comments that I “knowingly and deliberately interfered with a preserved incident site”.”

94. Mr Maynard was not working on the day of the incident but was informed at his home by the Control Room Operator that this had occurred. Mr Maynard went to the mine and observed that the accident scene and the Feeder Breaker had been cordoned off with tape. Mr Maynard’s evidentiary statement then continued:

“15   I proceeded past the blue tape to undertake an inspection of the area noted as the source of a fluid release. Present with me were Adriano Lopes and Grant Harrison, however neither of them touched the rag. Before I moved the rag, I took sequential photographs of the alleged incident scene. Those photographs then formed part of the contemporaneous record documenting the accident scene.

16   In order to inspect the area from which the fluid had allegedly been released required me to move the blue rag, because the rag was obstructing the manifold area and was preventing me inspecting the hoses for a mode of failure.

17   At the time I removed the rag from the manifold area, it was not wet with oil; there were areas of staining on the rag. Hydraulic oil does not evaporate, nor is a significant quantity of it capable of being absorbed into a rag. The expression “soaked” indicates to me a significant volume of fluid has been discharged; evidence to suggest that any significant fluid had been discharged had occurred was not seen by me. The rag still had evidence of stone dust and coal dust on it.

18   Exhibited to me … are photographs taken on 1 August 2018 of the blue rag which was present at the accident site, and was removed by me from the accident site. This has been stored in a plastic bag in my office since shortly after the subject investigation concluded. The rag does not have any oily residue, not does it smell of oil or hydraulic fluid.”

95. Mr Maynard then responded to this observation in the Supplementary Cockbain report:

“You will note Mr Maynard’s assertion that the wearing of gloves was mandatory

20   At no stage have I asserted that the wearing of gloves was or is mandatory. It is not mandatory for workers to wear gloves; instead, it is mandatory that workers carry gloves at all time they are underground as part of their personal protective equipment (PPE). The Mine’s PPE policy which was in place in 2014 stipulates that workers must carry and wear gloves where there is a risk of hand injury and hand protection (i.e. gloves) would prevent or mitigate the risk of such injury.

21   Workers are (and were as at 1 June 2014) able to access PPE (including gloves) via a vending machine located immediately inside the muster room. Workers were able to access PPE in those vending machines either by using a “dongle” or fob provided to them, or by swiping a “smart card”. Details of the PPE obtained are then invoiced back to the workers'’ employers.

22   If a worker cannot access PPE via the vending machine, he/she can request the supervisor obtain it for the worker, or the worker can obtain PPE from the store room. PPE may also available in the underground crib rooms.

23   The Plaintiff would have either been able to access PPE by using a fob or his smart card. If for any reason he could not obtain the PPE in that way, he was able to obtain it using the other methods discussed above.”

96. Mr Maynard responded to the following contained in the Supplementary Cockbain report:

“Whether anything otherwise referred to in Mr Maynard's evidentiary statement causes you to alter the opinions expressed in the original report?

24   I note at paragraph 21 of his Supplementary Report that Mr Cockbain reports “[I]t is the case that a person unbeknown to Mr Maynard may have adjusted the fittings after the Plaintiff's incident and before Mr Maynard arrived”. Of the crew of 9 which was working with the Plaintiff at the time of this incident, Dave Williams was the only fitter in that work crew, and the only member of the crew who was qualified and adequately skilled to make any changes to the hydraulic system of the Breaker Feeder.

25   I have examined the log in and log out records on 1 June 2014 to determine the crew members' movements that day. Dave Williams returned above ground at approximately 1515 hours and was absent from the pit for approximately 1.5 hours, returning underground at about 1645 hours.

26   There is no record of anyone being present underground in the vicinity of the accident site who was a qualified fitter or anyone who was otherwise qualified or adequately skilled to make any changes, alterations or repairs to the Breaker Feeder between the time Dave Williams left the scene, and the time I attended the scene at a time between 1730 and 1800. Trade reports entered by Dave Williams do not indicate he carried out any work activity on the feeder post incident reporting and prior to me entering the scene.”

97. Mr Maynard gave evidence at trial and was cross-examined. He gave this evidence concerning the blue rag:

“Q. In your investigation of this matter, did you come into possession of what is called the blue rag?

A. Yes sir I did.

…

Q. ln what circumstances did you come into possession of this rag?

A. It was first sighted by me on 1 June when I attended underground, 1 June 2014 when I attended underground, and then following on 2 June on an investigation with Wally Koppe, the resource regulator inspector, was where that rag was - I took that - possession of that rag at that point.

HIS HONOUR:

Q. I think on the very first time you saw it on 1 June you removed it, did you not, and then replaced it?

A. That's correct, your Honour, yes.

SCOTT:

Q. Is it your evidence that prior to removing it you photographed its position?

A. That's correct, yeah.” (T.101.24)

98. The blue rag became Exhibit 5.

99. The CD showing how a Feeder Breaker operated was shown in the court. Although the Feeder Breaker was from the same manufacturer, there were some differences between it and the Feeder Breaker involved in the incident. Particular focus was given to the pendant control and its attached umbilical cord. The four hoses on the right side of the Feeder Breaker were identified as containing hydraulic oil and controlling the function of lifting and lowering for the Feeder Breaker.

100. In the course of showing the CD, the following exchange took place in relation to what happens when a shuttle car containing coal arrives at the Feeder Breaker:

“Q. That's the shuttle car arriving at the feeder-breaker?

A. That's correct.

Q. The purpose of that is to drop coal into the far end of the feeder-breaker?

A. Correct, it drops coal from the shutter car into the feeder-breaker hopper and the feeder--

Q. What happens to the coal when it's in the hopper?

A. When the shuttle car stops, the shuttle car operator starts the feeder in sequence mode to allow the conveyor chain to start as well as the crusher to, to rotate. He then feeds the coal into the hopper, and the coal's transferred through the conveyor chain up through the crusher onto the conveyor belt.” (T.104.45-.6)

101. In relation to Mr Maynard’s first evidentiary statement, the following evidence was given:

“Q. If you go to paragraph 56 for me, and if you have particular regard to paragraph 56(3) for me, where you say, “The area around the alleged release point was dusty and not wet with oil, which indicated there had not been a spray of oil in the location of Mr Smith's accident.” In giving that statement to his Honour, can you tell his Honour the basis upon which you make that statement?

A. When there is a release of a oil, a fluid, if there is a surface near it or around it, the oil is, is deposited on that surface. Given that oil is viscous, it sticks to the surface. At the time my recollection is that when I looked in the area of, of the alleged release, there was no oil on the inside of the cover that would indicate a significant oil release. It was still dirty, dusty, dry. It is just about when there is an oil release, the oil is deposited on the surface and it sticks there, because it is a viscous product.” (T.105.39)

102. Mr Maynard was cross-examined by senior counsel for the plaintiff. The cross-examiner was critical of the failure of Mr Maynard to record each place where he saw oil on the Feeder Breaker. In the course of that cross-examination, the following evidence was given:

“Q. So as far as you're concerned at the moment, the only record of exactly what oil was there is to be found in Mr Koppe's notes. Is that correct?

A. No, it's not. The records that I had on the statement, sir, had photos that I took, and the photos indicate me pointing to oil in areas. Albeit there was no notes, there’s photo evidence that I did indicate there was oil in, in an area underneath.

Q. Is this statement accurate, in the sense that the only references to the appearance of oil are in 56(3) and 49? Is that correct?

A. The statement says - is, is - that's correct, what's in the statement, yes.

Q. Yes, but there were many other positions clearly set out in Mr Koppe’s notes where he described the appearance of oil and had you take a photograph of it. That’s correct, isn't it?

A. That is correct. My recollection is approximately two others, yes.

Q. Did you dispute what he was saying in this context, when he was asking you to take photos of oil?

A. No, sir.

Q. Did you say he was wrong?

A. No, sir.” (T.107.46)

103. Mr Maynard was asked questions in respect of p361 of the Courtbook which contained a photograph which showed the hoses and fittings and the “emergency” button:

“Q. Could you come to page 361 please?

A. Yes.

Q. This was one of the photos which you took on 2 June, wasn't it?

A. As far as I recall, yes.

…

Q. It shows, does it not, immediately to the right of the sign that says “Emergency Stop”, it shows first of all the - well, it doesn't show. It shows the flexible hoses which are sleeved.

A. Yes, sir.

Q. That's correct, isn’t it?

A. Yes, it is.

Q. And then further to the right you have the fittings.

A. Yes, that's correct.

Q. Am I straight in using those two descriptions?

A. That's fine, I understand the comment, yeah.

Q. Then at the end of the fittings there’s the blue rag?

A. Yes.

Q. On top and to the side of the bulkhead into which the fittings travel, there are two pieces of polyurethane--

A. Yes.

Q. -- red in colour?

A. Yes, sir.

Q. One vertical, one horizontal?

A. Correct.” (T.108.34-109.18)

104. Mr Maynard gave evidence concerning guarding on this part of the Feeder Breaker:

“Q. Now, there was no sleeving on the fittings, was there?

A. That’s correct.

Q. And the pieces of polyurethane did not prevent access to the area of the fittings, that’s correct too, isn’t it?

A. That’s correct.

Q. In fact, you, yourself, established that by putting your hand in the gap and removing the blue rag on 1 June?

A. That’s correct. It’s large enough to fit a hand in, that’s correct.

Q. So the polyurethane guarding wasn’t effective to prevent somebody from being struck by a spurt of hydraulic oil, if it occurred, from the fittings, that’s correct, isn’t it?

A. That depends entirely where the hand is situated.

Q. If the hand was put into that gap to remove the blue rag, then there was no guarding preventing injury by a spurt of oil, that’s--

A. To --

Q. -- correct, isn’t it?

A. To remove the blue rag? That’s correct.

Q. Yes.

A. But it’s not a normal place of work so it’s not intended to be guarded. (Emphasis added)

…

Q. Did you organise the further guarding of this area on this machine?

A. There was no further guarding, no.

Q. No, but it was put on afterwards, wasn’t it?

A. No, sir.

Q. Mr Koppe asked you to put some further guarding on this machine after the accident, didn’t he?

A. Extended guarding and removal of fittings was carried out. So, extended.

…

Q. I’m sorry, I’ll make it clear. Extended polyurethane?

A. My recollection is we were asked to and that was done, that’s correct.” (T.110.6-111.9)

105. On this issue, further evidence was given:

“Q. After the inspection, he asked you--

A. Yes, sir.

Q. --to do some work in this area--

A. Yes, he did.

Q. --relating to guarding, didn’t he?

A. Yes, he - yes, he did.

Q. And what you did or what the mine did in relation to that advice or order of Mr Koppe was to sleeve the fitting area, wasn’t it?

A. The fitting area was reduced in length.

Q. I didn’t ask you that. I asked you whether the mine sleeved the fitting area at the request of Mr Koppe.

A. I’ll have to say I honestly don’t recall the fittings being sleeved. I don’t recall that, the fittings themselves.

Q. You were there and, in fact, took this video or CD and it was clear on that occasion, on the second feeder-breaker, that you can see that the fitting area is now sleeved, that’s correct, isn’t it?

A. Without seeing the video again - I, I know the fittings were shorting so a sleeve is now visible because fittings were removed.” (T.111.23)

106. Mr Maynard was shown two photographs, which were screenshots from the CD which depicted the other Feeder Breaker, and asked questions as follows:

“Q. They definitely show the fittings sleeved, don’t they?

A. I’ll be honest, what I can see is the quick connect couplings have been removed but the fittings themselves not sleeved, no, I don’t see that.

Q. In the photo I showed you, page 361, the fittings clearly aren’t sleeved, are they?

A. That’s correct.

Q. And they’re yellow and orange in colour?

A. That’s correct.

Q. They’re no longer visible on those screenshots, are they?

A. The different feeder. So it’s a, it’s a different feeder-breaker. They won’t be visible, it may not be on those hoses, it’s a different feeder-breaker.” (T.112.3)

“Q. The fittings that you can see on the photograph at page 361--

A. Correct.

Q. --are not sleeved, are they?

A. The fittings themselves? No, sir.

Q. Can you see on those screenshots of your video anything like a fitting which is yellow and orange in colour?

A. No, I cannot.

Q. And that’s because they’re sleeved, isn’t that right?

A. It’s because the hose OEM may be different and the hose is not the OEM of the feeder-breaker. So what I can visually see with the quality of the photo is a level of fittings at the bulkhead that are now much shorter.

Q. Which photo are you talking about?

A. The X and Y photo from Mr Koppe’s statement.

Q. Right, the screenshots?

A. Yes, sir, and they are - because the fitting length has been reduced significantly by removal of the quick connect couplings, it only makes the JIC and NPT fitting very short. I’ll say approximately 25 millimetres to 30 at, at the most because the fittings have been reduced in length by removal of their quick connect couplings under direction.” (T.112.37-T.113.10)

“Q. Do you know when the work was done on the feeder-breaker the subject of the video?

A. I don’t exactly, sir, no.

Q. Because you reported to Mr Koppe, didn’t you, that you performed the work that he advised on all three--

A. That’s correct.

Q. --feeder-breakers--

A. That’s correct, we did.

Q. --that were in the mine?

A. That’s correct

Q. You said the mine arranged the work. Did you have anything to do with the actual carrying out of the work?

A. Not physically, no. I organise but I don’t carry out any activity myself, no.

Q. Well, who did the work?

A. I can’t give you a name. I can give you a position. It would be a mechanical tradesperson would have done the work.

Q. A mechanical tradesperson from the mine?

A. Correct.

Q. So you did it internally?

A. That’s correct.” (T.113.30-T.114.6)

107. Mr Maynard was asked questions about the electrician, Mr Walker. He said that he had not seen him or heard from him for some time. Mr Maynard gave this evidence:

“Q. Do you know where he is?

A. Not at the moment, sir, no.

Q. Have you tried to find out?

A. No, I haven’t.

Q. Did you go to all of the members of this shift and ask them, in specific terms, whether they had cured the leak that occasioned Mr Smith’s accident?

A. No, sir, I don’t recall doing that, no.

Q. You didn’t make any inquiry of them?

A. Not of the individuals, as far as I can recall, no. We relied on statements from those persons.

Q. What statements from those persons?

A. From the incident kit, sir.

Q. What, the handwritten--

A. Yes, sir.

Q. The little handwritten statements?

A. Yes.

Q. But didn’t you go around asking these people after the accident whether anybody had found the leak and tightened the fitting?

A. I don’t recall asking those people post 2 June, no, I don’t.

Q. Did you ask them on 2 June?

A. No. No, sir, because at that point, I still thought there may have been a leak.” (T.115.1)

108. Mr Maynard was asked questions about Exhibit B, being the two page document from the senior inspector, Mr Morgan, which was placed on the colliery noticeboard.

“Q. Have you seen this before?

A. I do recall seeing it, yes, sir.

Q. It was posted up on the notice board for a minimum of 14 days, wasn’t it?

A. The period, I’m not sure. It was certainly notice - on the notice board, the period I’m not aware of but, yes.

Q. Did you see it when it was sent by Mr Morgan in the first instance to the mine?

A. Most probably not the first instance, sir, because it would have been issued to Dennis Wallace, being the mining engineering manager of the mines.

Q. Did he show it to you?

A. I can't recall but I would assume he would. He generally passed information on, yes.

Q. This was sent in the first instance, or handed over, by Mr Morgan for the mine's approval, bearing in mind that it was going to be put up on the noticeboard. That's right, isn't it?

A. That's correct. That's the process.” (T.116.11)

“Q. So the mine agreed that this document should be put up on the noticeboard?

A. That's correct.

Q. It focuses on anyone on the shift who has found a leak and tightened the fitting up prior to the site being isolated.

A. Mm-hmm.

Q. So you agreed to that document being put up on the noticeboard?

A. The process is that, and yes it's part of the process, so it happens. I agree with the process, yes.

Q. You were asking the people on the shift whether any of them had found a leak and tightened the fitting up, correct?

A. I personally didn't ask. The document did ask them, correct, or gives that indication, that if anyone did have a knowledge, they should come forward.

Q. Did anyone come forward to you?

A. No sir.” (T.116.48-T.117.15)

109. Mr Maynard gave evidence as to the guarding/protective measures which were in place at the time of the incident.

“Q. I just want to make it clear, you say the protective measures that are fitted to the equipment at the mine and were fitted at the time of Mr Smith's accident include Kevlar sleeves over all hoses.

HIS HONOUR: Over all hoses, yes.

WEBB: Yes.

WITNESS: That's correct.

WEBB:

Q. What you mean by hoses are the flexible hoses which we can see in the contemporaneous photographs are covered by Kevlar sleeves?

A. The rubber section hose is covered, yes sir.

Q. The hoses are the flexible hoses, not the fixed fittings, that's correct isn't it?

A. The hoses have a fixed length on them that cannot be covered, so there's a period of a hose at the end that cannot be covered and it's part of the crimping of the hose. So the fitting has to be exposed to enable you to assemble it, the fittings of the hose.

186. For the above reasons, I am not persuaded on balance that the plaintiff has given accurate evidence as to how the accident occurred. Either the plaintiff has left something out, which accounts for the pressurisation of the Feeder Breaker, or the evidence which he has given as to how the accident occurred is not correct.

187. As earlier indicated, the plaintiff already had difficulties in relation to his credit as a result of the false information provided by him in four medical examinations which he attended within three years of commencing work at the mine. The lies which he told when participating in those medical examinations were deliberately intended to mislead the recipients and produce a result which the plaintiff desired, i.e. that he was cleared to commence work in the mines.

188. There is another issue which places considerable doubt on the plaintiff’s credibility. In his amended evidentiary statement (71(e)) he said that the blue rag was soaked with oil when he picked it up. That is inconsistent with the state of the rag when examined by Mr Maynard the following day. Mr Maynard considered the blue rag to be dry at that time. It is also inconsistent with the state of the blue rag when examined by Mr Koppe on 2 June 2014. As already indicated, I prefer the evidence of Mr Maynard on that issue and accordingly, it gives rise to a further challenge to an acceptance of the plaintiff’s evidence as to how the accident occurred.

189. I have concluded that the plaintiff’s accident happened in a way different to that which he has described. I have also concluded that this aspect of the plaintiff’s case, i.e. that an unknown person intervened to place the blue rag on the hydraulic fittings and was aware of the presence of a leak before he (the plaintiff) commenced cleaning the Feeder Breaker and did not report it, has not been made out. That version of events depends entirely upon the plaintiff’s evidence and is not otherwise supported. Although this was not put to the plaintiff in terms, it is equally possible and no more speculative to postulate that the plaintiff carried out some action which caused a spurt of oil and his injury and that it was he who placed the blue rag in the position observed by Messrs Maynard and Koppe.

190. Accordingly, I am not satisfied on balance that the factual aspect of the plaintiff’s case has been made out.

191. The plaintiff’s case, however, has been put in an alternate way which he submitted did not depend upon an acceptance of his evidence.

192. The alternative scenario took as its start point the fact that the plaintiff had suffered a high pressure fluid injection injury to his left hand. The submission was to the effect that such an injury could have easily been prevented if a guard or a more complete guard had been placed in position over the hydraulic fittings and/or the hydraulic hoses at the point where they joined the fittings. The cost of extending the polyurethane guards to include those components would have been minimal.

193. The difficulty with that approach is that it is retrospective and takes as its start point the fact of the injury. That is not the way that the authorities say the question of negligence should be approached. The approach which is to be used is a prospective one, i.e. it is necessary to place one’s self in the position of the alleged tortfeasor and to assess whether it was reasonably foreseeable that the plaintiff would be injured in the way in which he was and if so, what was a reasonable response to that foreseeable risk.

194. That approach has been endorsed in a number of cases:

195. In Liftronic Pty Limited v Unver [2001] HCA 24; 75 ALJR 867 at [25] McHugh J (with whom Gleeson CJ agreed) said:

“25   The judge's directions to the jury did not address any of the considerations that pointed against negligence. His Honour and counsel seemed to have proceeded on the erroneous assumption that, if there was a reasonably foreseeable risk of injury to the plaintiff that could have been avoided by using mechanical means, the defendant was necessarily negligent. But the issue in negligence is always whether reasonable care required the elimination of the risk having regard to the consequences of the risk, the probability of its occurrence and the cost, expense and inconvenience of eliminating it. …”

198. The difficulty associated with a retrospective approach was again emphasised by McHugh J in Tame v New South Wales [2002] HCA 35; 211 CLR 317. There McHugh J said:

“Foreseeability of damage

96   Under the current law, the test of reasonable foreseeability of damage occurring is an undemanding one. In Wyong Shire Council v Shirt, Mason J said:

"[A] risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable."

97   But the test of reasonable foreseeability was not always so undemanding. Nor was the content of reasonable care anywhere near as high as it has become in recent years. Until comparatively recently, courts tended to ask whether the defendant had created an unreasonable risk of harm to others that he or she knew or ought to have recognised. A risk was regarded as unreasonable and one to be prevented only if reasonable members of the community would think it sufficiently great to require preventative action. In each case, foreseeability of risk and preventability of harm were defined and applied by reference to each other. Writing in 1957, Professor Fleming said:

“What are the considerations upon which the law supposes the reasonable man will guide his conduct? Negligence ... consists in conduct involving an unreasonable risk of harm. Almost any activity is fraught with some degree of danger to others but, if the existence of a remote possibility of harm were sufficient to attract the quality of negligence, most human action would be inhibited. Inevitably, therefore, a person is only required to guard against those risks which society recognizes as sufficiently great to demand precaution. The risk must be unreasonable, before he can be expected to subordinate his own ends to the interests of other.”

98   Many of the problems that now beset negligence law and extend the liability of defendants to unreal levels stem from weakening the test of reasonable foreseeability. But courts have exacerbated the impact of this weakening of the foreseeability standard by treating foreseeability and preventability as independent elements. Courts tend to ask whether the risk of damage was reasonably foreseeable and, if so, whether it was reasonably preventable. Breaking breach of duty into elements that are independent of each other has expanded the reach of negligence law.

99   Given the undemanding nature of the current foreseeability standard, an affirmative answer to the question whether damage was reasonably foreseeable is usually a near certainty. And a plaintiff usually has little trouble in showing that the risk was reasonably preventable and receiving an affirmative answer to the second question. This is especially so since Lord Reid said that a reasonable person would only neglect a very small risk of injury if there was "some valid reason" for disregarding it, a proposition that effectively puts the onus on the defendant to show why the risk could not have been avoided. Once these two questions are answered favourably to the plaintiff, there is a slide - virtually automatic - into a finding of negligence. Sometimes, courts do not even ask the decisive question in a negligence case: did the defendant's failure to eliminate this risk show a want of reasonable care for the safety of the plaintiff? They overlook that it does not follow that the failure to eliminate a risk that was reasonably foreseeable and preventable is not necessarily negligence. As Mason J pointed out in Shirt in a passage that is too often overlooked:

"The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position."”

199. In Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422, the following statements of principle were made by Gummow J as follows:

“60   The determination of the existence and content of a duty is not assisted by looking first to the damage sustained by the plaintiff and the alleged want of care in that regard by the defendant. There is a particular danger in doing so in a case such as the present. The focus on consideration of the issue of breach necessarily is upon the fate that befell the particular plaintiff. In that sense analysis is retrospective rather than prospective.

61   In his reasons in this appeal, Hayne J explains why an examination of the causes of an accident that has occurred does not assist, and may confuse, in the assessment of what the reasonable person ought to have done to discharge the anterior duty of care. Moreover, an assessment of what ought to have been done, but was not done, critical to the breach issue, too easily is transmuted into an answer to the question of what if anything had to be done, a duty of care issue.”

200. Hayne J in the same case said:

“105   The central issue in the appeal is whether the Council breached a duty of care it owed to the appellant by not erecting one or more signs warning against, or prohibiting, diving from the rock platform. Resolving that question, a question of fact, hinges critically upon recognising that what has come to be known as the "Shirt calculus" is not to be undertaken by looking back at what has in fact happened, but by looking forward from a time before the occurrence of the injury giving rise to the claim. The several questions described by Mason J in Wyong Shire Council v Shirt are to be asked and answered with that perspective. Thus, before the appellant was injured, would “a reasonable man in the [Council's] position ... have foreseen that his conduct involved a risk of injury to the [appellant] or to a class of persons including the [appellant]”? If the answer to that question is affirmative, “it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk”. As Mason J went on to point out:

“[t]he perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.”

106   In the present appeal (and in the matter of Mulligan v Coffs Harbour) it is this second set of inquiries (about response to a risk that is foreseeable) which is critical. That is because foreseeability of risk of injury, at least since Shirt, if not before, includes risks which, although quite unlikely to occur, are not far-fetched or fanciful.

…

118   That may suggest that an attempt should be made to define the content of the Council's duty of care more precisely. Subject to one qualification, that would not be a useful exercise. The qualification is that it is necessary to recognise that the duty of care, owed by a statutory authority to those who enter land of which the authority has the care, control and management, is not a duty to ensure that no harm befalls the entrant. It is a duty to take reasonable care. Beyond that, however, it is not possible to amplify the content of the duty without reference to particular facts and circumstances. In each case, the content of the duty will turn critically upon the particular facts and circumstances.

Breach of duty

119   Recognising that the Council owed those who entered the Norah Head Reserve, including the appellant, a duty to take reasonable care, the central question in this case is what performance of that duty required. The appellant sought to answer that question by referring to the several matters mentioned earlier in these reasons: knowledge of diving, encouragement, knowledge of previous injuries and littoral drift. These were said to require the conclusion (like that reached in Nagle) that the Council should have warned against diving from the rock platform or should have prohibited that practice.

…

The particularity of the inquiry

121   All the matters relied on by the appellant in connection with breach of duty took as the focus of their attention what was to be done about diving from the rock platform near Soldiers Beach. Is that question too confined?

122   A plaintiff in a negligence action must prove that the defendant owed the plaintiff a duty of care. That duty may be proved to exist by showing that the defendant owed a duty of care to a class of persons of whom the plaintiff was one. But the duty thus established is a duty which the defendant owed to the particular plaintiff. If the analysis is interrupted at this point, the focus in the present case upon what, if anything, the Council ought to have done about diving from the rock platform is well justified. It is well justified because the question is whether the Council breached the duty of care which it owed to the appellant. And it is clear, therefore, that to ask what was to be done about diving from the rock platform near Soldiers Beach was a relevant, indeed a central, question to ask and answer. But, as Romeo v Conservation Commission (NT) demonstrates, while it is necessary to look at what ought to have been done in relation to activities on the rock platform, attention cannot be confined to the precise place at which the events in question took place. In deciding what the response of a reasonable council would have been to the risk of diving injuries it is necessary to recognise that that council would be bound to consider all of the land of which the council had the care, control and management. That consideration may yield different answers for different places but all would have had to be considered. And it is a consideration that must be set into a much wider context than is provided by focusing only upon diving injuries. The duty of care which a council owes to those who enter land of which it has the care, control and management is a duty which is not limited to taking reasonable care to prevent one particular form of injury associated with one particular kind of recreational activity.

…

124   Again, because the inquiry is prospective, it would be wrong to focus exclusively upon the particular way in which the accident that has happened came about. In an action in which a plaintiff claims damages for personal injury it is inevitable that much attention will be directed to investigating how the plaintiff came to be injured. The results of those investigations may be of particular importance in considering questions of contributory negligence. But the apparent precision of investigations into what happened to the particular plaintiff must not be permitted to obscure the nature of the questions that are presented in connection with the inquiry into breach of duty. In particular, the examination of the causes of an accident that has happened cannot be equated with the examination that is to be undertaken when asking whether there was a breach of a duty of care which was a cause of the plaintiff's injuries. The inquiry into the causes of an accident is wholly retrospective. It seeks to identify what happened and why. The inquiry into breach, although made after the accident, must attempt to answer what response a reasonable person, confronted with a foreseeable risk of injury, would have made to that risk. And one of the possible answers to that inquiry must be “nothing”.”

125   There are fundamental reasons why the inquiry cannot be confined to where the accident happened or how it happened. Chief among them is the prospective nature of the inquiry to be made about response to a foreseeable risk.

Look forward or look back?

126   When a plaintiff sues for damages alleging personal injury has been caused by the defendant's negligence, the inquiry about breach of duty must attempt to identify the reasonable person's response to foresight of the risk of occurrence of the injury which the plaintiff suffered. That inquiry must attempt, after the event, to judge what the reasonable person would have done to avoid what is now known to have occurred. Although that judgment must be made after the event it must seek to identify what the response would have been by a person looking forward at the prospect of the risk of injury.

127   There may be more than one place where this risk of injury may come to pass. Because the inquiry is prospective there is no basis for assuming in such a case that the only risk to be considered is the risk that an injury will occur at one of the several, perhaps many, places where it could occur. …

128   If, instead of looking forward, the so-called Shirt calculus is undertaken looking back on what is known to have happened, the tort of negligence becomes separated from standards of reasonableness. It becomes separated because, in every case where the cost of taking alleviating action at the particular place where the plaintiff was injured is markedly less than the consequences of a risk coming to pass, it is well nigh inevitable that the defendant would be found to have acted without reasonable care if alleviating action was not taken. And this would be so no matter how diffuse the risk was - diffuse in the sense that its occurrence was improbable or, as in Romeo, diffuse in the sense that the place or places where it may come to pass could not be confined within reasonable bounds.”

201. Similar observations were made by Hayne J in Mulligan v Coffs Harbour City Council [2005] HCA 63; 223 CLR 486. There his Honour said:

“50   As is explained in Vairy, a statutory authority having the care, control and management of land to which the public has access owes each member of the public who enters the land a duty to take reasonable care. In assessing what performance of that duty requires it is necessary to ask first, whether the risk of injury of the kind sustained by the plaintiff was reasonably foreseeable and secondly, what the reasonable person would have done in response to that risk. Although the judgment about what would have been the reasonable response to the risk must be made after the event, the inquiry is directed to identifying what the reasonable response would have been by a person looking forward at the prospect of the risk of injury. That must be assessed having regard to the magnitude of the risk, the degree of probability of its occurrence, the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities the alleged tortfeasor may have. And because the inquiry is prospective, there is no basis for assuming that the only risk to be considered by the reasonable person is the particular kind of risk that came to pass at the place and in the way it did.

51   The appellant was injured when he did something that he had done several times before. It was something that many others had done before him. He launched himself into the water by plunging forward into it. But on the last occasion he did so at a point that was too shallow for him safely to execute the entry he attempted. That a swimmer might do that was reasonably foreseeable. The risk of injury resulting from this activity was not far-fetched or fanciful. But would a reasonable authority having the care, control and management of a reserve beside the creek, or having the care, control and management of the creek itself, respond to that risk by warning against diving or warning that the creek may be too shallow? I would answer that question: no.”

(See also Hallmark Construction Pty Ltd v Brett Harford; Copeland Building Services Pty Ltd v Hallmark Construction Pty Ltd; Hallmark Construction Pty Ltd v Harford Transport Pty Ltd [2020] NSWCA 41.)

202. It follows that the plaintiff’s approach to this issue, i.e. whether further guarding was required over the hoses and fittings on the Feeder Breaker was fundamentally flawed. That, however, is not the end of the matter. It is necessary to apply the correct test to ascertain whether despite the fallacy in his approach, the plaintiff has in fact made out a case in negligence based on insufficient guarding of components on the Feeder Breaker.

203. Although the plaintiff was not employed by the first defendant, he was working at premises controlled by it and was subject to its directions. Accordingly, the principles set out in TNT Australia v Christie and Ors [2003] NSWCA 47 apply.

204. In the plaintiff’s Further Amended Statement of Claim he set out what were described as the “obligations upon the first defendant” in paragraph 4. Those obligations are quite specific. I prefer the articulation of duty in the Further Amended Statement of Claim at paragraph 11 which is appropriate, although pleaded at a high level of generality. I find that the duty owed by the first defendant to the plaintiff was a duty to take reasonable care to avoid causing harm to him, i.e. the duty owed by the first defendant to the plaintiff was analogous to that owed by an employer to an employee.

205. The reason I am critical of the “obligations” referred to in paragraph 4 and have postulated a duty at a high level of generality is to avoid the risk identified in Graham Barclay Oysters Pty Limited v Ryan [2002] HCA 54; 211 CLR 540 of articulating the duty of care by reference to breach.

206. In Graham Barclay Oyster Pty Limited v Ryan Gummow and Hayne JJ said:

“191   An analysis of the competing considerations referred to in Wyong Shire Council is impeded, not assisted, by formulating the relevant duty of care in terms of its breach, which was the approach that the majority in the Full Court appeared to adopt. The use by Kiefel J in the passage quoted in [189] above of the words "sufficient" and "could be regarded" does not deny the cogency of the submission by the Barclay companies that duty was identified in terms of breach.

192   A duty of care that is formulated retrospectively as an obligation purely to avoid the particular act or omission said to have caused loss, or to avert the particular harm that in fact eventuated, is of its nature likely to obscure the proper inquiry as to breach. That inquiry involves identifying, with some precision, what a reasonable person in the position of the defendant would do by way of response to the reasonably foreseeable risk. As Isaacs ACJ observed in 1924, “[n]o conclusion of negligence can be arrived at until, first, the mind conceives affirmatively what should have been done”. The trial judge and the majority of the Full Court in the present case failed to identify with the necessary precision, by reference to considerations of the nature of those indicated in Wyong Shire Council, the reasonable response to the risk of harm that existed. In so failing, their Honours fell into an error of law. There is no serious dispute as to the facts to which the law is to be applied. Thus, it is appropriate for this Court to resolve the matter. For the reasons that follow, the proper application of principle requires a conclusion different to that reached in the Federal Court.”

207. As was somewhat belatedly appreciated by the parties because this claim involved a coal mine, the provisions of the CLA apply. Accordingly, having identified the relevant duty of care, it was necessary to consider the issue of breach. The relevant provisions of the CLA are 5B and 5C which provide as follows:

“5B    General principles

(1)    A person is not negligent in failing to take precautions against a risk of harm unless:

(a)    the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b)     the risk was not insignificant, and

(c)    in the circumstances, a reasonable person in the person’s position would have taken those precautions.

(2)    In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

(a)    the probability that the harm would occur if care were not taken,

(b)    the likely seriousness of the harm,

(c)    the burden of taking precautions to avoid the risk of harm,

(d)    the social utility of the activity that creates the risk of harm.

5C    Other principles

In proceedings relating to liability for negligence:

(a)    the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and

(b)    the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and

(c)    the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.”

208. There is a preliminary difficult in applying the CLA to the facts of this matter in that we do not have all the facts relating to how the plaintiff suffered his high pressure injection injury. Most particularly, we have no explanation for how the hydraulic fittings and hoses became energised. It follows that if because of this lack of evidence it is not possible to establish breach of duty in accordance with the CLA, the plaintiff’s claim must fail.

209. I find that the relevant risk of harm was the risk of a high pressure fluid injury to a person who was positioned at or around the Feeder Breaker when it was in Sequence mode.

210. I have concluded that such a risk was not foreseeable in that there should have been no pressure in the Feeder Breaker, in particular the hydraulic fittings and hoses, while the machine was in Sequence mode. There is also the unchallenged evidence of Mr Maynard that the guarding was not extended because it was not in “a normal place of work” (at [104] hereof). Accordingly, this was not a risk of which the first defendant knew or ought to have known. Similarly, in the circumstances, the risk was “not significant” in that there should have been no risk of that kind of harm. As a result, there were no precautions which a reasonable person in the first defendant’s position should have taken.

211. It also follows that the probability that harm would occur was, if not non existent, so low as to be most unlikely. I accept that the likely seriousness of the harm was substantial. I also accept that the burden of taking precautions to avoid the risk of harm was low. The social utility of the activity, i.e. the processing of coal, was substantial.

212. I have reached the above conclusion because all of the evidence at trial was to the effect that when the Feeder Breaker was in Sequence mode, it was not energised and therefore it was not possible for such an injury to occur. There was no evidence at trial to the contrary. It was agreed by Messrs Maynard, Koppe and Parish that there would need to be some intervention in the nature of either operating the pendant control or changing the mode before the possibility of such an injury could arise.

213. The plaintiff relied upon the evidence of oil on various parts of the hydraulic system as being corroborative of his evidence, i.e. that there was a pre-existing leak and that someone appeared to have tried to wipe up the leak with the blue rag and had simply left the rag in position.

214. This does not necessarily follow. The presence of oil as found and recorded by Mr Koppe, is equally consistent with the fact of the plaintiff’s injury. He suffered a high pressure fluid injury. Of its nature, this involved the discharge of some quantity of liquid. Accordingly, the presence of oil where indicated by Mr Koppe was simply consistent with the nature of the injury. It is also consistent with there being a second discharge, which was described by the plaintiff in his initial statement to Mr Koppe. Accordingly, the plaintiff is still left with a failure to explain how such an injury could have occurred with the Feeder Breaker in Sequence mode and if the pendant control had not been operated.

215. If I am wrong in that assessment, and this risk of harm was foreseeable, the risk of such an injury occurring was extremely low. This is because of the job which had been allocated to the plaintiff. He was required to clean the machine which meant wiping it down with a rag and inspecting the electrical parts visually but not in any invasive way. There was no suggestion anywhere in the evidence that during this shift, the Feeder Breaker was going to change its mode of operation from Sequence mode.

216. The work which the plaintiff was performing at and about the Feeder Breaker did not involve him moving aside the polyurethane/Kevlar guard so as to get access to the hydraulic fittings or hose ends. For a person performing the job allocated to the plaintiff, there was no need for there to be an increase in the guarding of the fittings and hose ends beyond that which already existed. A similar observation can be made in relation to a person operating the Feeder Breaker, although the only evidence on this issue was that such an operator was especially trained and would stand next to the Feeder Breaker holding the pendant control. It also follows from those considerations that a reasonable person in the first defendant’s position would not have taken the precaution of extending the guard so that it covered the fittings and the hose ends as they were connected to the fittings.

217. I accept that if one ignores the problem created by the Feeder Breaker being in Sequence mode at the time when the plaintiff said he was injured and assumes the plaintiff’s first scenario, i.e. an unknown person finding the leak, doing nothing about it and then subsequently repairing the leak, s 5B of the CLA is made out. For the reasons already indicated, however, I find that that scenario involves speculation built upon speculation and should be rejected.

218. It is also significant that no scenario was put forward by the plaintiff which would explain why any worker, be it a specially trained Feeder Breaker operator or someone performing the relatively simple task allocated to the plaintiff, would place his hand or hands inside the polyurethane/Kevlar guard while the hydraulic system on the Feeder Breaker was pressurised. Without such a scenario, the risk of harm in this case was simply not reasonably foreseeable. It matters not that Mr Koppe directed the first defendant to extend the guards so that they included the hydraulic hose ends and fittings. All that he was doing was responding to something which was known to have happened, even though he was unable to explain how it had happened without resorting to speculation.

219. The various breaches of regulation under the Coal Mine Health and Safety Act and the Work Health and Safety Act do not take the matter any further for the plaintiff. Nowhere in his extensive report does Mr Cockbain explain how an accident of this kind could have occurred with the Feeder Breaker in Sequence mode or without the plaintiff depressing the button on the pendant control. Accordingly, his report does not assist in establishing how this risk of harm was foreseeable in accordance with the provisions of s 5B CLA.

220. It follows from the above analysis that the plaintiff has failed to establish liability in negligence pursuant to the CLA.

221. As an alternative, the plaintiff sought to rely upon the principle of res ipsa loquitur.

222. The concept of res ipsa loquitur was considered by the High Court in Schellenberg v Tunnel Holding [2000] HCA 18; 200 CLR 121. The facts of that case involved a workman using a handheld grinder when the hose delivering high pressure to the grinder became loose and swung upwards striking him in the face and causing him injury. The worker sued his employer in negligence. At the trial he failed to establish any specific allegation of negligence but was allowed to amend the statement of claim to allege that the fact that the air hose separated from its fitting was in itself evidence of negligence.

223. Having reviewed the history of the matter, both at first instance and on appeal, and having examined the authorities relevant to the application of the principle, Gleeson CJ and McHugh J found the following:

“24   What flows from these statements of principle is that, while res ipsa loquitur may ameliorate the difficulties that arise from a lack of evidence as to the specific cause of an accident, the inference to which it gives rise is merely a conclusion that is derived by the trier of fact from all the circumstances of the occurrence. When it applies, the trier of fact may conclude that the defendant has been negligent although the plaintiff has not particularised a specific claim in negligence or adduced evidence of the cause of the accident. But it does nothing more. For example, it does not reverse the onus of proof or displace the principle in Jones v Dunkel.

25   Piening v Wanless and Anchor Products Ltd v Hedges as well as other cases in this Court make it clear that a plaintiff may rely on res ipsa loquitur even though he or she has also pleaded particular acts or omissions of negligence on the part of the defendant provided that the tribunal of fact concludes that:

1.   there is an "absence of explanation" of the occurrence that caused the injury;

2.   the occurrence was of such a kind that it does not ordinarily occur without negligence; and

3.   the instrument or agency that caused the injury was under the control of the defendant.

…

27   In our opinion, the defendant's argument is correct in asserting that the principle of res ipsa loquitur had no application once the learned trial judge found that the hose separated from the jamec coupling. The question then became whether the plaintiff had proved that the separation of the hose from the jamec coupling occurred in circumstances of negligence. The relevant occurrence in the present case was the accident - the detachment of a hose, carrying compressed air, swinging around and striking the plaintiff in the face. If accidents of that kind do not occur if those who have control of the hose and its attachments use proper care, the plaintiff was entitled to rely on res ipsa loquitur to make out a prima facie case of negligence and it was then for the judge to hold whether the occurrence constituted negligence having regard to all the other circumstances of the case. But once the cause of the occurrence was proved, the principle could play no part in the proceedings.

28   Here the trial judge held that the occurrence was caused by the separation of the hose from the jamec coupling. Once that was proved, res ipsa loquitur ceased to apply as a reasoning process. This is clear from Piening v Wanless where this Court had to consider the application of the principle in circumstances where a car had run off the road as the result of a steering failure. Barwick CJ, who gave the leading judgment, said:

“But the majority of the Supreme Court have said that the failure of the steering was the occurrence which bespoke negligence. To this there are, in my opinion, two answers. In the first place, the occurrence which had to be examined to ascertain whether it furnished evidence of negligence on the part of the driver was the accident, that is to say, the running off the road. The failure of the steering was, I think, the explanation of that occurrence...”.”

224. Applying that reasoning to the facts of this case, the cause of the injury was established, i.e. a high pressure liquid injury. It was not established, nor could it be on this evidence, that such an incident would not occur without negligence. It could not be described as one falling within the common knowledge and experience of mankind. Where an occurrence is outside the experience of the layperson and the evidence does not establish that such an occurrence ordinarily does not occur without negligence, res ipsa loquitur is inapplicable.

225. In this case, once the cause of the injury was determined, the question became whether the evidence revealed that the occurrence was caused by the first defendant’s negligence. For the above reasons, that has not been proved.

226. I have concluded that the concept of res ipsa loquitur does not assist the plaintiff in this case.

Conclusion

227. It follows from the above analysis that the plaintiff has failed to establish his case on liability and that there should be a verdict for the defendant.

228. I make the following orders:

1. Verdict for the defendant and judgment accordingly.

2. That the plaintiff pay the defendant’s costs.

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Decision last updated: 21 April 2020