Tarbotton v Citic Pacific Mining Management Pty Ltd
[2015] WADC 159
•22 DECEMBER 2015
TARBOTTON -v- CITIC PACIFIC MINING MANAGEMENT PTY LTD [2015] WADC 159
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WADC 159 | |
| Case No: | CIV:3443/2010 | 19-21 OCTOBER 2015 | |
| Coram: | WAGER DCJ | 22/12/15 | |
| PERTH | |||
| 26 | Judgment Part: | 1 of 1 | |
| Result: | Plaintiff's claim against first, second and third defendant dismissed | ||
| PDF Version |
| Parties: | MURRAY JOHN TARBOTTON CITIC PACIFIC MINING MANAGEMENT PTY LTD OTRACO INTERNATIONAL PTY LTD BUCYRUS MINING AUSTRALIA PTY LTD |
Catchwords: | Occupiers' liability Occupiers' Liability Act 1985 (WA) Civil Liability Act 2002 (WA) Common law principles Duty of care Causation Turns on its own facts |
Legislation: | Civil Liability Act 2002 (WA) s 5B, s 5C Occupiers' Liability Act 1985 (WA) s 4, s 5 |
Case References: | Department of Housing and Works v Smith [No 2] [2010] WASCA 25 Transfield Services (Australia) Pty Ltd v Wieland [2014] WASCA 41 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
CITIC PACIFIC MINING MANAGEMENT PTY LTD
First Defendant
OTRACO INTERNATIONAL PTY LTD
Second Defendant
BUCYRUS MINING AUSTRALIA PTY LTD
Third Defendant
Catchwords:
Occupiers' liability - Occupiers' Liability Act 1985 (WA) - Civil Liability Act 2002 (WA) - Common law principles - Duty of care - Causation - Turns on its own facts
Legislation:
Civil Liability Act 2002 (WA) s 5B, s 5C
Occupiers' Liability Act 1985 (WA) s 4, s 5
Result:
Plaintiff's claim against first, second and third defendant dismissed
Representation:
Counsel:
Plaintiff : In person
First Defendant : Mr D Clyne
Second Defendant : Mr D Clyne
Third Defendant : Mr D M McKenna
Solicitors:
Plaintiff : Not applicable
First Defendant : CCS Insurance Law
Second Defendant : CCS Insurance Law
Third Defendant : Jarman McKenna
Case(s) referred to in judgment(s):
Department of Housing and Works v Smith [No 2] [2010] WASCA 25
Transfield Services (Australia) Pty Ltd v Wieland [2014] WASCA 41
1 WAGER DCJ: This trial deals only with the issue of liability. The plaintiff, Mr Tarbotton is self-represented. He relies on pleadings and related documents drafted by a firm of solicitors on his behalf who have now ceased to act. The first, second and third defendants are represented by counsel.
2 The first defendant, Citic Pacific Mining Management Pty Ltd (Citic Pacific) owned and occupied the Sino Iron Ore Magnetite project at Cape Preston in the Pilbara (the site).
3 The second defendant, Otraco International Pty Ltd (Otraco) carried out tyre-fitting on large scale heavy duty mining equipment such as excavators and haul packs. Otraco was contracted by Citic Pacific to perform this work on equipment at the site.
4 The third defendant, Bucyrus Mining Australia Pty Ltd (Bucyrus), constructed heavy duty mining equipment. Bucyrus was contracted by Citic Pacific to assemble heavy duty mining equipment such as haul packs, both off and on the site.
5 Otraco was required to fit tyres to the heavy duty equipment onsite once Bucyrus had finished assembly. There was no contract between Bucyrus and Otraco.
6 Mr Tarbotton was employed by Otraco to fit tyres to the heavy duty equipment that had been assembled by Bucyrus on the site at the direction of Citic Pacific.
7 On 19 June 2009 following direction from Citic Pacific, Otraco directed Mr Tarbotton and his co-worker Mr Iraia to fit tyres to a haul pack truck that had been assembled by Bucyrus. This task was carried out on an unsealed dirt build yard provided by, and overseen by, Citic Pacific.
8 Mr Tarbotton was operating a forklift in order to fit the tyres. In the course of tyre-fitting he got out of the forklift and walked towards his co-worker Mr Iraia, rolling his left ankle in the process. As a result of this injury, Mr Tarbotton could not continue working and required medical assistance.
9 Mr Tarbotton pleads against the first, second and third defendants that each:
1. Failed to inspect the assembly area to ensure that it was safe.
2. Failed to make a proper inspection of the assembly area which would have revealed it was unsafe.
3. Failed to remove rocks, potholes and areas of unevenness from the ground of the assembly area or failed to ensure that those steps were taken.
4. Failed to grade or otherwise level out the ground of the assembly area or failed to ensure that those steps were taken.
5. Failed to concrete, bituminise or otherwise seal the ground of the assembly area or failed to ensure that those steps were taken.
10 The first defendant Citic Pacific admits it owed Mr Tarbotton a duty of care as occupier of the mine pursuant to s 4 and s 5 Occupiers' Liability Act 1985 (WA) and pursuant to the Civil Liability Act 2002 (WA) and at common law generally. The duties included to:
(a) exercise such care as reasonable to see that he was not exposed to the risk of injury or harm due to dangers arising from the state of the mine or anything done or omitted to be done to the mine; and
(b) take such measures as practicable to see that the mine was such that the plaintiff was not exposed to hazards whilst performing his work in the mine.
11 Otraco, the second defendant, admits it owed Mr Tarbotton a duty of care as his employer. This is pleaded in the following terms:
17. At all material times the second defendant owed the plaintiff a common law duty, and/or it was a term of the contract of employment, so far as practicable to provide and maintain a working environment in which the plaintiff was not exposed to hazards, which included a duty to provide and maintain workplaces, plant and systems of work such that, so far as practicable, the plaintiff was not exposed to hazards whilst performing his work.
12 Bucyrus, the third defendant, denies that it had any degree of control or management of the assembly area, although it admits being provided with the build yard for the purpose of assembling new haul pack trucks. Bucyrus disputes it had any involvement whatsoever in the work being performed by Mr Tarbotton at the time of the accident and claims the scope of that work was solely between Citic Pacific and Otraco and accordingly, Bucyrus pleads it did not owe Mr Tarbotton a duty of care.
13 The first, second and third defendants each plead that Mr Tarbotton caused any unevenness to the build site surface because he operated the forklift in a haphazard fashion causing disruption to the uncompacted soil ground surface when he knew or ought to have known that he would have to walk on the same area when carrying out his duties. Mr Tarbotton denies that he caused any disruption. The first, second and third defendants also plead that Mr Tarbotton was negligent in failing to keep a proper lookout. Mr Tarbotton denies this.
14 The first and second defendants further plead that if any negligence is established against them, Mr Tarbotton is guilty of contributory negligence pursuant to s 5K of the Civil Liability Act 2002 (WA).
15 The second defendant also pleads that as an employee, Mr Tarbotton's conduct amounted to mere inadvertence, inattention and misjudgement or to negligence rendering him responsible in part for the damage and that, if Otraco is liable, then Mr Tarbotton is guilty of contributory negligence.
16 Mr Tarbotton was the only witness to give evidence on behalf of the plaintiff. Mr Iraia, Mr Smith and Mr Latter were called as witnesses on behalf of the first and second defendants. Mr Kemp and Mr Tickner were called as witnesses on behalf of the third defendant.
The evidence
17 Much of the evidence is not in dispute or has not been challenged. At the time of the injury the site was a greenfield site, that is, it was in the development phase and mining had not yet commenced. The assembly and tyre fitting for haul packs was carried out on a build yard that was an unsealed area of approximately 300 m by 200 m provided by, maintained and overseen by Citic Pacific.
18 There was a concrete pad located on the unsealed build yard. The concrete pad was not used for haul pack truck assembly or tyre fitting because the weight of the haul pack would have caused damage to the concrete pad. This was because it was purpose built for the assembly of the RH400 face shovel excavators. They needed a stable base for supports in specific locations for assembly and for tyres to be fitted. The concrete was thicker at the areas where the stability was required. As a result of wear and tear and weather events the concrete pad had cracked. Although it had been repaired, it was not a surface that was used for tyre fitting for haul packs. The practice on the site was that the assembly and tyre fitting for haul pack trucks was carried out on the unsealed surface of the build yard.
19 It was standard procedure on site that any worker who carried out a task was required to complete a form called a 'Take Five' to identify potential hazards. If a hazard was identified or if the worker was working in a new area, they were required to complete a job hazard assessment (JHA). The JHA was a more detailed assessment than the Take Five, setting out details of the area in which the work would be performed, any potential hazard and details of the work.
20 The JHA was signed off by the worker and the worker's supervisor.
21 If a hazard was identified in the JHA then, once signed off, the supervisor had a duty to notify Citic Pacific. Citic Pacific had an obligation to rectify any hazard identified before the job commenced. Although a JHA relevant to the date of the injury, 19 June 2009 is not in evidence, the evidence of all parties is consistent with a JHA probably being completed for the job because of the nature of the work and its location.
22 A JHA in respect of the concrete pad dated 12 June 2009 was tendered in evidence as exhibit 33. That JHA refers to the location being the Terex Concrete Build Pad, Terex being the former entity that owned and operated Bucyrus, and the personnel involved in the development of the JHA are Graham Latter, Otraco Supervisor, Murray Tarbotton, Otraco tyre fitter, Tim King, DEM Engineer and Kerry Iraia, Otraco tyre fitter. The job is jacking RHR of MT6300.
23 The recorded hazards to consider are, in respect of people – lifting/push/pull. In respect of the work environment – poor ergonomics, body positioning, vibration/jolt/jarring, dust, falling objects, foreign objects, gravity, pressure (fluids/air), energy release, noise, sharp objects, slip/trip/falls, housekeeping, ground stability, air movement and work surface space. The environment issue noted is dust. The hazards with equipment are listed as 'caught in/between, rotating parts, hand tools, line of fire, stored energy, stains, uncont/movement and object weight'. The task is broken down into six logical steps. The implemented additional controls (what is in place to make the job as safe) are noted as 'make sure correct jack head is used (mushroom head). Using steel plates. Under jack for additional stability'. Special considerations or comments are:
Jacking on thicker section of Terex build yard concrete (outer edge of pad). Unsure of exact thickness of concrete (600mm quoted) but using steel plate for added safety. Inner section of concrete, which was thinner, previous jack attempts by Terex have caused concrete to subside and crack.
24 The consideration is consistent with the concrete being thicker in places to support the weight of the excavator.
25 The work on 19 June 2009, the day relevant to Mr Tarbotton's injury, was carried out seven days later, on the unsealed build yard and the work was performed on a haul pack truck not in respect of jacking an RHR of MT6300.
26 The issue of whether, if a JHA was in existence, it contained the concerns Mr Tarbotton says were raised and whether the defendant's failed to act upon his concerns prior to work being commenced on 19 June 2009 are issues to be determined. The state of the build yard when Mr Tarbotton was carrying out his duties and the circumstances of his injury are in dispute.
The plaintiff's evidence – Murray John Tarbotton
27 At the time of the injury Mr Tarbotton was a 43-year-old qualified tyre fitter. He had been employed by Otraco on 2 September 2008 as a heavy duty tyre fitter. It was his role to carry out maintenance and removal and fitting of tyres on the site. As part of his qualifications he held certificates in occupational safety and health. Otraco had also put him through a number of familiarisation and safety courses over a period of time before he had been permitted to work on the site.
28 Mr Tarbotton's work schedule was to work two weeks on site and one week off. The work shift was a 12 hour shift although he was required to get up at 4.30 am in order to get ready and leave his accommodation in time to be at the site for pre-start meetings at about 6.00 am.
29 In June 2009 Mr Iraia was Mr Tarbotton's regular work partner. On 18 June 2009 Mr Tarbotton and Mr Iraia were required by Otraco to fit tyres to a haul pack on the unsealed build yard. Mr Tarbotton describes the surface as being 'very rubblely, very pott-holey'. He describes the unsealed surface as being like a paddock after a grader had gone over it so that 'toes', which are rocks that stick out but have not been removed, were visible and dips were left in the surface.
30 Mr Tarbotton says in evidence that he had repeatedly asked his employer for sheeting to be put around the build yard and for a different or better prepared surface to be provided. This assertion was not pleaded by Mr Tarbotton nor was it the subject of cross-examination by Mr Tarbotton of his supervisor at Otraco or any other of the defendant's witnesses. Accordingly, I will not consider this evidence when determining the issue.
31 Mr Tarbotton says that given the poor state of the surface, he would have noted the problems with ground stability on his 'Take Five'. He would have been required to complete a Take Five and also a JHA. Neither document is in evidence. He says that although others may have been responsible for ensuring the surface was in a good condition prior to the job commencing and throughout the course of the job he was unaware of them carrying out these tasks and unaware of any inspectors being around or of any grading or other work on the relevant area of the build site between the time of the completion of the Take Five and the JHA and the commencement of work. There was no inspection or grading throughout the morning. He says he felt that pressure was put on him to complete the job as soon as possible because of the expense involved in having to use cranes to lift the haul pack so that the tyres could be fitted. He describes the indirect pressure on him of people coming up and saying 'how much longer would you have to do on the job, we have large cranes on hire'.
32 Mr Tarbotton says 'to me, I would interpret that as could you go a bit quicker please' (ts 8).
33 Mr Tarbotton says the whole job of tyre fitting on the haul pack would have taken at least two days. The haul pack needed to have six tyres mantled and each tyre took a good couple of hours to be fitted.
34 On the first day of the job, 18 June 2009, the haul pack was lifted at the front by a 250 tonne crane and at the back by a 450 tonne crane so that the tyres could be fitted. Mr Tarbotton and Mr Iraia completed tyres at positions 1 and 2 of six positions on the first day. This meant that the crane at the front of the haul pack could be de-hired for 19 June 2009. On 19 June they were working on positions 3, 4, 5, and 6, requiring the 450 tonnes crane to continue holding the back of the haul pack up.
35 Mr Tarbotton describes how the fitting of the tyres required not just the placement of the tyre, but also the fitting of a flange and bead protector onto the rim. He clarifies that the flange is a large steel rim that goes over the rim to protect the bead of the tyre. In order to fit the rim to the tyre, one of the two Otraco workers would operate a forklift. The other would stand close to the tyre to direct the forklift operator as a spotter. It was then necessary to use the forklift with extended tines to gently nudge the rim into place onto the tyre. Finally, both tyre fitters had to manually lift the rim in order to lock the rim into place.
36 Mr Tarbotton describes difficulties in putting the tyres onto the haul pack on 18 and 19 June 2009. He accepts that when operating the forklift he may have spun the wheels of the forklift in the process of assembly but he says the wheels would not have carved an indent or hole to a depth of 30 cm. In cross-examination he says in relation to causing a rut with the wheels:
That is a very strong possibility because the ground condition, and if you understand the application of a forklift on uneven ground, when you are putting it will create an unevenness kick, and there is a very good chance that the wheels will spin on the forklift on uneven ground, as they will on solid ground (ts 33).
37 He says it is highly likely it would have been a large area that was affected by the wheels because there are two dual wheels. Any hole created would have been visible to walk into but, had he dug such a hole, he would have taken measures to fix it.
38 Mr Tarbotton asserts that if a depth of 30 cm was reached, the wheel of the forklift would be 30 cm lower than the rest of the forklift and the bottom of the front tray would therefore hit the ground. This had not occurred.
39 Mr Tarbotton says that when he went to fix the rim in place Mr Iraia was on one side of the rim, carrying out the role of spotter. Because Mr Tarbotton was the person operating the forklift he reversed away from Mr Iraia so that there was room for the extended tines of 2.5 m - 3 m that were at the front of the forklift to rest on the ground and not interfere with the area where he and Mr Iraia needed to stand to put the rim in place. He turned off the forklift and got out of the cab on the left-hand side. He used three-point contact, that is, he says that he had each hand and a foot on the rail when he alighted and he says he maintained three-point contact until he was on the ground.
40 In cross-examination by the third defendant he says that he was familiar with the jacking procedure of Otraco best practice consistent with exhibit 5.37. He accepts that, consistent with the procedure document, he knew he was required to maintain three points of contact when moving on or off a machine and had he not done so, he would have been in breach of a procedure. He also accepts that the procedure includes 'look at the landing zone to make sure there are no rocks or potholes that could cause you to trip or fall when you step down'.
41 Mr Tarbotton says that once on the ground, he started walking towards Mr Iraia and rolled his left ankle on the ground as he walked forward. In cross-examination Mr Tarbotton agrees that he did not really know what he had tripped on (ts 33). However he says he was aware of the state of the ground and took action accordingly. He denies that he failed to look at the landing zone to make sure there were no rocks or potholes that could cause him to trip. In cross-examination by counsel for the first and second defendant, he responds to the proposition 'Is it possible you trod in the indent you made when you spun the wheels?':
I find that highly unlikely for – it would have been a large area. You've got two dual wheels. It would have been a large, large hole, visible to walk into. Now I personally would not blatantly just walk into a hole. If I had dug a hole with the machine, for one, I would have tried to cover it over. I would have known I had done that sized hole with the machine, and walked around it and taken measures to fix it. (ts 33)
42 Mr Tarbotton repeats in cross-examination that he would have made a complaint about the poor ground condition in the Take Five and that he would have pointed this out to Mr Graham Latter, his supervisor. He repeats that management did not take any action before or during the work. Mr Tarbotton also says that they, referring to management on site, 'were very strict, very strict on the fact that you did that paperwork for the safety reasons' (ts 30). He says that Mr Adam Bradbury who was in charge of specific dealings on site was very firm on safety. Mr Tarbotton says that the surface on the build yard on 19 June 2009 had potholes, and rubble, and toes hanging out the ground. He disputes that the surface looked like the photograph (exhibit 55.296) that Mr Tarbotton describes as showing a beautiful flat, rolled, compact ground. That is what he would have liked to see on the day of his injury, he says.
43 Mr Tarbotton recalls Mr Latter was present on 18 June 2009. He says he made a complaint about the condition of the build yard to Mr Latter on that date. He recalls that Mr Latter flew out from site on 18 June and was not present on 19 June 2009 contrary to making a complaint to Mr Latter on that date.
Evidence called on behalf of the first defendant and second defendant
Kerry Iraia
44 Mr Iraia also worked as a tyre fitter for Otraco on the site. He had been Mr Tarbotton's work partner for a few months and confirms that he was working with him on 19 June 2009 when Mr Tarbotton sustained the injury. Mr Iraia's recollection of the job being performed differs from that of Mr Tarbotton. Mr Iraia says that the job on 19 June 2009 was only to attach rims to tyres that had previously been fitted. For that reason cranes were not involved. He says that the rims being fitted were only to tyre positions 3 and 4 and not to all six tyre positions, and that the truck was on the base on stands.
45 Mr Iraia says that they had trouble trying to fit a rim. They were taking it in turns on the forklift. Mr Iraia would be a spotter and then Mr Tarbotton would be a spotter and then an operator. At the time of the injury Mr Tarbotton was the operator and Mr Iraia was the spotter. Mr Iraia describes that they were trying to bring the rim onto the forklift, and had to balance the rim on the tines then onto the truck. He says they were having trouble positioning the rim onto the right location and the tyres of the forklift started to dig into the ground which made a big divot. Mr Iraia says that he stopped Mr Tarbotton in the forklift and got him to reverse so that Mr Tarbotton reversed back out of the hole that the wheels had dug. Mr Iraia describes there being four tyres and so there were four holes.
46 After reversing, Mr Tarbotton climbed out of the forklift and rushed around towards Mr Iraia and fell into one of the holes. Mr Iraia describes him sort of falling back onto the forklift and sliding down and resting on the ground. Although Mr Tarbotton had exited the forklift on the left-hand side he ended up on the right-hand side when he came to rest. Prior to the injury Mr Tarbotton was not in a happy mood. In cross-examination, Mr Iraia agrees that his mood was just frustration relating to the job. After hurting himself, Mr Tarbotton threw a spanner. Although it was forbidden to throw any hand tools on site, they were not conducting any work at the time when Mr Tarbotton threw the tool. The throwing of a tool is denied by Mr Tarbotton but in any event it would not have contributed in any way to his injury.
47 Mr Iraia agrees that when operating the forklift on the build yard it was common place to spin the wheels excessively. He did not estimate the depth of the holes made by the four wheels but in his opinion a depth of 30 cm would not stop the forklift from digging or operating.
48 Mr Iraia also confirms that having concerns about the ground surface of the build yard was a daily occurrence. He says that there were always inspections although he was not part of the inspection team. He had raised concerns with Mr Latter about the condition of the yard and the ground.
49 Mr Iraia recalls completing the Take Five questionnaire before commencing work on 19 June 2009, however, he has no recollection of completing a JHA. He notes that different jobs have different circumstances. Mr Iraia recalls inspections being carried out generally. He says they were probably carried out by Mr Smith who worked for Citic Pacific and Mr Latter who worked for Otraco. A couple of health inspectors were probably also involved.
Robert Smith
50 Mr Robert (Bob) Smith was employed by Citic Pacific. He had been in the mining industry for 37 years and had been on the site from 12 September 2008. His role on 19 June 2009 was to advise on hydraulic shovels and to advise the main contractor. He agrees he had a responsibility for the condition of the build yard. In his opinion the build yard was always in good shape. If a grader was required to grade the build yard then the company that had a contract with Citic Pacific to grade the build site, CMC, would be called over to grade it. CMC had equipment at the ready and were situated adjacent to the build yard. The build yard was watered down two times each day to curb dust and Mr Smith visited the build yard personally three or four times a day to check on its surface and on any issues in relation to work safety generally. It was part of his role to ensure that everyone on the build yard was safe. Had he noted or been advised of a hole or a rut in the build yard he would have called CMC over to deal with it straight away.
51 Mr Smith confirms in cross-examination by counsel for the third defendant that Bucyrus relied solely on Citic Pacific to deal with any matters in respect of maintenance of the build yard and that Bucyrus did not have a role in maintaining the build yard.
Graham John Latter
52 Mr Latter was the site manager for Otraco at the relevant time. He had been involved in tyre fitting for 23 years and had worked for Otraco for nearly 13 years. He describes the build yard as being standard to any other mine site that he had been involved in. It was constructed of materials on-site or from site. It was compacted and watered and graded up. If there were any problems with the build yard he would contact CMC who were the contractors on site and they would grade the area of concern straight away as requested. He was not aware of any particular issues or problems with the build yard in June 2009.
53 Mr Latter recalls that he was away from site on R and R in June 2009. On return to the site he recalls seeing Mr Tarbotton walking with a limp and Mr Tarbotton told him that he had stepped in a hole and twisted his ankle. Mr Latter is not aware of the date nor of the precise words of the conversation with Mr Tarbotton, however the evidence is consistent with Mr Latter being on site on 19 June 2009 or soon after.
54 It was not Mr Latter's role to carry out inspections of the build yard and he was not aware of how many times the build yard was inspected during the course of the day. Mr Latter confirms that if work was being carried out in the designated Otraco area of the build yard then the Otraco worker would be required to complete a Take Five. If work was carried out in an area that was not the designated area for Otraco then a JHA would be completed on a daily basis. He considers that a JHA would have been completed for 19 June 2009 because the build yard was not a designated Otraco area. If an issue of ground stability had been noted in the JHA, then Mr Latter would have called the CMC grader to grade the build yard up as required prior to the job commencing. If a problem arose during the course of the job then it was the responsibility of the senior tyre fixer employed by Otraco to report the matter and to ensure that the instability was fixed before the job proceeded further. Mr Latter confirms that he would have acted on any report he received straight away.
Evidence called on behalf of the third defendant
Richard Kemp
55 Mr Kemp was the national assembly manager for Bucyrus from 2007 until 17 July 2015. He was on site from October/November 2008 until January 2009. His role as assembly manager involved him being responsible for the layout of the site, the site safety requirements and the terms and conditions of getting people onto site. He was required to ensure that the assembly builds were completed to standard, on time and to specification. It was Mr Kemp's role to liaise with the Citic Pacific manager for assembly. Mr Kemp was part of a group that ensured that the build yard complied with Australian standards. He was also involved in ensuring that access to the build yard was restricted.
56 Mr Kemp confirms that Bucyrus was contracted to do the major assemblies of the haul packs and other machinery in Perth and to then transport the machinery to site and finalise the assemblies. However, once completed, the fitting of tyres and rims was Citic Pacific's responsibility and Bucyrus had no involvement apart from ensuring that the cranes that lifted the haul packs were in the correct position. Given that the fitting of tyres did not involve Bucyrus personnel, Bucyrus personnel were not permitted to be in the area of the build yard when tyres were being fitted by Otraco on behalf of Citic Pacific. Mr Kemp says Citic Pacific took responsibility for the maintenance of the build yard and carried out regular inspection. He was aware that scalpings which are made of fine grade material from the overburden on the mine site were put on the surface of the build yard. Specifically on this site the scalpings were low grade oxide iron ore that was crushed and could then be used for road base and as fill. Once placed on the build yard the scalpings were graded regularly.
57 Mr Kemp confirms that Bucyrus required its personnel to complete a Take Five questionnaire for every job undertaken and it was anticipated that there would be two or three Take Five forms completed per worker per day. If any hazard was identified in a Take Five form then a JHA would be completed. It was Citic Pacific's responsibility to ensure that any problem identified on a JHA was addressed by an action plan. Citic Pacific was also required to ensure that the build yard was made safe prior to work commencing. Mr Kemp notes that safety was a serious business because there was $100 million dollars' worth of equipment on site. For that reason photographs of any hazards were kept on file by Bucyrus. However, since 2009 Bucyrus has changed its company structure and company entity on three occasions. As a result of structural changes, individual records were not kept and the photographs cannot be located.
58 Mr Kemp says that the build yard received a graded surface of scalping in November 2008. This was completed by Citic Pacific because it was Citic Pacific's responsibility and it was graded and inspected by Citic Pacific thereafter.
59 In February 2009 the build yard was damaged as the result of a cyclone when the surface was softened, however this was rectified by Citic Pacific soon after. It was not challenged in evidence by Mr Tarbotton that Bucyrus did not have any role in fitting tyres nor did it have any responsibility in respect of the condition of the build yard.
Rafael Anton Price
60 Mr Price was employed by Bucyrus as a technical advisor from 2007 and has remained employed by Bucyrus and its subsequent entities. Mr Price says it was a policy on the site that Bucyrus' employees had to comply with all safety requirements. If Citic Pacific's policies required a more stringent level of safety than the level adopted by Bucyrus, the higher level of safety applied. That is whichever policy required the higher safety level was the policy that was adopted on site.
61 Mr Price was involved in the booking of cranes to assist Otraco personnel with the tyre fitting. Once the crane was arranged, Bucyrus did not have any role in fitting the tyres and Bucyrus personnel were not physically present when tyres were being fitted.
62 Mr Price states that he arranged for the cranes to be booked so that the fitting of the tyres to the haul pack by Otraco could commence on 18 June 2009. He also confirms that the job proceeded as scheduled.
63 Mr Price says that he may have been present generally on site during the course of the fitting of the tyres on 19 June 2009, however he would have been located in an area such as an office or at another machine in close proximity at the time of Mr Tarbotton's injury. He does not recall seeing any hazards that would have made it unsafe for the tyre fitters to work on fitting tyres and rims to the haul pack on 18 June 2009 nor was any complaint made to him about the condition of the build site during the course of 19 June 2009.
64 Mr Price confirms that non-necessary employees were kept away from the immediate area where the tyres were being fitted so that the tyre fitters could do their work. He was aware that there were daily yard inspection sheets and that formal inspections occurred, at a minimum, each month. If a hazard was identified it would be corrected by Citic Pacific arranging for CMC to attend and fix the surface. Mr Price also confirms that there was a water cart that came through daily for dust suppression.
65 It was everybody's responsibility on site to report any hazards that were identified. The Take Five questionnaires were a personal risk assessment to identify hazards and if the answer to any of the questions on the Take Five was 'no', that is, if a hazard was identified, then the Take Five document would direct the worker to speak to a supervisor who in turn would ensure that a JHA was completed.
66 Mr Price says that he did not conduct investigations in relation to the activities of other contractors unless those activities directly impacted in some way on Bucyrus or its employees.
67 Given Mr Price's role as a supervisor, he was directly involved in safety every day and worked with his team to ensure that Bucyrus staff were involved daily in all aspects of safety. He would go through any safety issues with employees at a pre-start meeting at the beginning of the shift and then continue to do so throughout the day. He confirms that he sent an email to Mr Kemp on 15 June 2009 confirming that the site had been kept neat and tidy. The site he was referring to was the build yard.
68 In cross-examination, Mr Price confirms that he remembers discussing jobs before anybody would start in a particular area. The discussion occurred to establish what was needed to be done, the requirements of the task and anything else related to the task.
69 Although he does not recall who signed the JHA on 19 June 2009, he confirms that a JHA would have been signed on Bucyrus' behalf because the work involved a crane lift that had been arranged by Bucyrus. A JHA would have been a requirement. Mr Price confirms that he spoke to Mr Latter who was Mr Tarbotton's supervisor regularly about matters on site.
Christopher Tickner
70 Mr Tickner was employed by Bucyrus as a project manager in 2009. Mr Tickner confirms that the concrete build pad referred to as the Terex build pad was installed for large operations only. The unsealed build yard was used for all other assemblies. The unsealed build yard was frequently inspected by Citic Pacific. He recalls this being at least once or twice per week but if a lot of work was being carried out on the build yard then inspections were more frequent. Mr Tickner believes that Citic Pacific may have been responsible for maintaining the build yard. Bucyrus had no equipment for maintenance and the procedure in place was that Bucyrus would notify Citic Pacific if the build yard needed repairs or maintenance. Citic Pacific would then conduct the work.
71 Mr Tickner confirms that he had worked on a number of mine sites throughout the Pilbara including all of the Rio Tinto sites. He had also worked on a number of sites in the Goldfields. Most of the mine sites allocated an open air area similar to the unsealed build yard on the site for haul pack construction. This would be a graded area that was away from other operations consistent with the unsealed build yard on the site. The reason why the surface was not sealed was because of the weight the surface had to bear. If sealed it would crack under the weight.
Findings of fact
The condition of the build yard
72 The build yard was unsealed. It had scalpings on the surface that had been in place since 2008.
73 I accept Mr Tarbotton's evidence that given that the surface was unsealed it was not perfectly flat. Mr Iraia also confirmed that there were issues with the surface on 19 June and on other occasions. I accept that an unsealed surface is going to have issues relating to dust, potholes and rubble on a daily basis.
74 I also accept that if the surface had significant dips and rubble then its condition would be noted in a Take Five and/or a JHA. If noted, action would have been taken by Citic Pacific before work was performed on the surface. I reach this conclusion because Mr Smith from Citic Pacific, Mr Latter from Otraco, Mr Kemp from Bucyrus, Mr Price from Bucyrus and Mr Tickner from Bucyrus each confirmed that the build yard was inspected and maintained and that site maintenance was the responsibility of Citic Pacific. Although the witnesses differed in the number and type of measures they said were employed on a daily basis, I am satisfied that the dust was watered down at least once per day, that inspections occurred informally throughout the day, that a formal inspection occurred at least once per month and that all workers on site understood their obligations to report hazards in relation to the surface to their respective supervisors.
75 Mr Tarbotton acknowledged that safety on site was very important. He confirmed that he had completed safety courses specifically relevant to the site before he commenced on the site and that he attended a pre-start meeting prior to starting work on the build yard on 19 June 2009. Mr Tarbotton was familiar with the Take Five document and the JHA and believed that he had completed both on 19 June 2009.
76 Citic Pacific was the occupier of the build yard and had responsibility for its maintenance. There is no evidence that Bucyrus had any responsibility for the surface of the build yard at the time when Otraco was carrying out the work of fitting tyres to the haul pack. I find that Bucyrus was not responsible for the build yard nor did it have any contractual obligation to Otraco.
77 Mr Tarbotton asserted that although he reported a hazard in respect of the build yard surface to Mr Latter on 19 June 2009 by completing the JHA that Mr Latter had failed to act. Mr Latter's evidence is equivocal as to whether he was on-site at the time when Mr Tarbotton was carrying out the assigned task on the haul pack prior to injury. However Mr Tarbotton did not identify anyone else acting as supervisor at the relevant time. Mr Tarbotton referred to communications with Mr Latter in relation to the injury on 19 June 2009. I accept that Mr Latter was present and conducting the role of supervisor at the time or soon after the injury was sustained. Another employee of Otraco may have been only in the role of supervisor prior to the job commencing on 19 June 2009. In any event I find that given that the safety procedures on site were adopted by Citic Pacific, Otraco and Bucyrus and that the requirement for every employee to complete a Take Five and/or a JHA applied to all work on site, the same procedures would have been adopted whether it was Mr Latter who was the supervisor or another supervisor who carried out that role on 19 June 2009. Any concern Mr Tarbotton raised about the unsealed surface in a JHA on 19 June 2009 would have been rectified before work commenced.
Circumstances of the work performed on 19 June 2009
78 At the time of the injury, only Mr Tarbotton and Mr Iraia were in the vicinity. Mr Iraia said that the job did not involve cranes and only involved the fitting of rims. I do not accept that this was the scope of the work on 19 June because Bucyrus were responsible for the placement of cranes on 18 and 19 June. I accept Mr Price's evidence that Bucyrus was involved in arranging cranes for the tyre fitting carried out by Otraco on those days.
79 Mr Iraia was however an experienced tyre fitter who had worked with Mr Tarbotton for some months. I find Mr Iraia to be an honest witness who was mistaken about the scope of the work performed on 19 June 2009.
80 Mr Tarbotton accepts that when working with forklifts on an unsealed surfaces gouges or holes are likely to be created. Mr Iraia who was spotter immediately before Mr Tarbotton sustained his injury was positioned on the ground and had a clear view of the forklift. He said the four wheels caused four holes. I accept that he saw this.
81 I accept that, in the process of operating the forklift, Mr Tarbotton caused ruts or holes in the unsealed surface. The holes were not so deep as to cause the forklift to have difficulty operating but deep enough to have gouged out an area of unevenness on the unsealed surface.
82 Given Mr Tarbotton's experience and training as a tyre fitter on the site, he was aware that the unsealed surface could be rough and 'pott-holey' and aware of the likelihood of the forklift wheels causing holes or ruts.
Circumstances of the injury
83 Both Mr Tarbotton and Mr Iraia gave evidence of the frustrations in fitting the rims on 19 June 2009. I accept that Mr Tarbotton perceived that he was under pressure on site because of the expense of having the cranes hired to lift the haul pack. I accept that when, on 19 June 2009, the rims were not going into position, Mr Tarbotton became frustrated in part as a result of that pressure. The job was not going well. In attempting to put the rim in place Mr Tarbotton was required to go back and forward in the forklift. This is why the holes or ruts were created.
84 Mr Tarbotton asserted that had the holes been dug by the forklift he would have reported the uneven surface before proceeding further. I accept that in hindsight Mr Tarbotton considers that this is what he would have or should have done. Consistent with his evidence and the evidence of Mr Iraia however I find that as a result of perceived pressure and the frustration experienced by Mr Tarbotton because the job was proceeding badly, Mr Tarbotton did not report the unevenness once he stopped the forklift. Mr Tarbotton immediately got out of the forklift cab intending to go directly to Mr Iraia so that the fitting of the rim could be completed. I accept that he followed three point contact when alighting from the cab but, consistent with Mr Iraia's evidence, once Mr Tarbotton hit the ground he moved rapidly towards Mr Iraia away from the forklift and fell. Mr Tarbotton did not notify his supervisor or anyone else on site about the unevenness of the surface after the holes were created and before he left the forklift cab.
85 Given his frustration and the desire to complete his task, Mr Tarbotton failed to keep a proper lookout and, consistent with his evidence, did not really know what he had tripped on.
86 I find on the balance of probabilities that Mr Tarbotton's injury was caused by him falling or tripping on the hole or rut that had been created by the forklift tyres immediately before he alighted from the forklift.
Citic Pacific's duty to Mr Tarbotton
87 Citic Pacific was the occupier of the build yard and had duties under s 5 of the Occupiers' Liability Act 1985 (WA). Relevantly s 5 states:
Duty of care of occupier
(1) Subject to subsections (2) and (3) the care which an occupier of premises is required by reason of the occupation or control of the premises to show towards a person entering on the premises in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier is by law responsible shall, except in so far as he is entitled to and does extend, restrict, modify or exclude by agreement or otherwise, his obligations towards that person, be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger.
(2) The duty of care referred to in subsection (1) does not apply in respect of risks willingly assumed by the person entering on the premises but in that case the occupier of premises owes a duty to the person not to create a danger with the deliberate intent of doing harm or damage to the person or his property and not to act with reckless disregard of the presence of the person or his property.
(3) A person who is on premises with the intention of committing, or in the commission of, an offence punishable by imprisonment is owed only the duty of care referred to in subsection (2).
(4) Without restricting the generality of subsection (1), in determining whether an occupier of premises has discharged his duty of care, consideration shall be given to –
(a) the gravity and likelihood of the probable injury;
(b) the circumstances of the entry onto the premises;
(c) the nature of the premises;
(d) the knowledge which the occupier of premises has or ought to have of the likelihood of persons or property being on the premises;
(e) the age of the person entering the premises;
(f) the ability of the person entering the premises to appreciate the danger; and
(g) the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person.
(a) The gravity and likelihood of the probable injury. Mr Tarbotton worked on the unsealed build yard on a regular basis. He is a trained tyre fitter and had undertaken courses relating to work safety and specific to the site through Otraco prior to commencing employment. He was aware of the requirement to maintain three-point contact and to keep a lookout for any potential hazards on the unsealed surface consistent with Otraco best practice procedures. The injury was sustained when he twisted his foot. Although the injury may have had significant repercussions for Mr Tarbotton, the gravity and likelihood of the probable injury was at the lower end of the scale.
(b) The circumstances of the entry onto the premises. Mr Tarbotton was working on the build yard. He was familiar with the conditions and had received training specifically relating to safety on a mine site.
(c) The nature of the premises. The build yard was an area that required all workers to be vigilant and follow safety rules because an unsealed build yard where work is carried out on heavy machinery has the potential for significant injury.
(d) The knowledge which the occupier of premises has or ought to have of the likelihood of persons or property being on the premises. The occupier was well aware that employees of Otraco were working on the premises.
(e) The age of the person entering the premises. Mr Tarbotton was aged 47 and an experienced tyre fitter when he entered the premises. There is no suggestion that he was not physically healthy at the time he carried out his duties on 19 June 2009.
(f) The ability of the person entering the premises to appreciate the danger. Mr Tarbotton was well aware of the unevenness of the unsealed build yard's surface. He accepts additional holes in the unsealed surface may have been created by the spinning of the tyres of the forklift. He was in a position to appreciate the danger.
(g) The burden on the occupier of eliminating the danger or protecting the person entering the premise from the danger as compared to the risk of the danger to the person. I accept the evidence that the fitting of haul pack tyres could not proceed on the concrete build site area. Mr Tarbotton was trained as a tyre fitter for heavy duty machinery. Greenfields mine sites similar to the site used unsealed build yards for the assembly of haul packs and the fitting of tyres. Employees including Mr Tarbotton were trained in safety requirements in respect of unsealed surfaces. The risk of danger was low, although it could not be eliminated given the nature of the mine site, the size of the haul pack, the nature of the work required and the unsealed work surface of the build yard.
89 The Civil Liability Act2002 (WA) legislates for the determination of issues of duty and breach. Sections 5B and s 5C state:
5B General principles
(1) A person is not liable for harm caused by that person's fault in failing to take precautions against a risk of harm unless –
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known);
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) –
(a) the probability that the harm would occur if care were not taken;
(b) the likely seriousness of the harm;
(c) the burden of taking precautions to avoid the risk of harm;
(d) the social utility of the activity that creates the risk of harm.
5C General principles
(1) A determination that the fault of a person (the tortfeasor) caused particular harm comprises the following elements –
(a) that the fault was a necessary condition of the occurrence of the harm (factual causation); and
(b) that it is appropriate for the scope of the tortfeasor's liability to extend to the harm so caused (scope of liability).
(2) In determining in an appropriate case, in accordance with established principles, whether a fault that cannot be established as a necessary condition of the occurrence of harm should be taken to establish factual causation, the court is to consider (amongst other relevant things) –
(a) whether and why responsibility for the harm should, or should not, be imposed on the tortfeasor; and
(b) whether and why the harm should be left to lie where it fell.
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm (the injured person) would have done if the tortfeasor had not been at fault –
(a) subject to paragraph (b), the matter is to be determined by considering what the injured person would have done if the tortfeasor had not been at fault; and
(b) evidence of the injured person as to what he or she would have done if the tortfeasor had not been at fault is inadmissible.
(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether and why responsibility for the harm should, or should not, be imposed on the tortfeasor.
90 Citic Pacific also had a common law duty of care to Mr Tarbotton: Department of Housing and Works v Smith[No 2] [2010] WASCA 25 [77] (Buss JA).
91 It is well established that the standard of care is to be resolved prospectively and not retrospectively. In Department of Housing and Works v Smith [No 2] Pullin JA said [34]:
The standard of care determines what it is that the person under the duty must do to discharge a duty of care. At common law the question to be asked is what, if anything, a reasonable person in that person's position would have done by way of response to the foreseeable risk of that injury. If s 5B(1)(c) of the CLA operates at this stage of the inquiry the same question arises, that is, whether 'in the circumstances a reasonable person in [the appellant's] position' would have taken the precautions which the respondent alleged should have been taken. It is necessary to look forward to identify what a reasonable person would have done, not backward to identify what would have avoided the particular injury or damage. See New South Wales v Fahy[2007] HCA 20; (2007) 232 CLR 486 [57]. Reasonableness may require no response to a foreseeable risk. See Thompson v Woolworths (Qld) Pty Ltd[2005] HCA 19 ; (2005) 221 CLR 234 at [36]. This is a case where the relevant facts have been fully found and where this court is in as good a position as the trial judge to decide the point at issue.
92 Pullin JA also said, in the context of the Department of Housing and Works v Smith [No 2], a case relating to an elderly resident of aged accommodation who fell in a depression in the lawn that had been known about for a period of time and had not been fixed by the appellant, Homeswest [75]:
In my opinion, a reasonable person in the position of the appellant would have done nothing by way of remedial work to deal with the risk of injury which might be caused by the slight depression in the lawn …
93 Citic Pacific conducted regular inspections, regular grading and immediate repairs once notified of a concern from a Take Five or a JHA. Mr Tarbotton was aware of his obligation to report the creation of any hazard. This is a case where reasonableness required no response to the foreseeable risk. The hole or rut should have been obvious to Mr Tarbotton and he was aware of the dangers of an unsealed surface and had been trained to deal with those dangers. Had he kept a proper lookout when moving from the forklift towards Mr Iraia he would not have fallen and sustained injury.
Otraco's duty to Mr Tarbotton
94 Otraco was not an occupier of the build yard. All responsibilities for the condition and maintenance of the build yard fell to Citic Pacific. The Occupier's Liability Act 1985 (WA)and the Civil Liability Act 2002 (WA)have no application to the duty Otraco owed to Mr Tarbotton. Otraco had a non-delegable duty to take reasonable care for Mr Tarbotton as its employee. The duty of an employer is described by Pullin JA in Transfield Services (Australia) Pty Ltd v Wieland [2014] WASCA 41 [18]:
There is no doubt that the employer has a duty to take reasonable care for the safety of its employees … The obligation is to take reasonable steps to provide a safe place of work. The duty is that of a reasonably prudent employer and the duty is not to 'safeguard a worker completely from all perils': see MR & RC Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt [No 2] [2012] WASCA 110 [156]. The response to a foreseeable risk is to be judged by the criterion of reasonableness, and not some more stringent requirement of prevention: Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330 [69].
95 Consistent with my finding that a JHA would have been completed for the build yard on 19 June 2009 I find that, had a hazard been identified, Otraco would have acted upon the potential hazard by notifying Citic Pacific. In any event Otraco were not in a position to rectify the hole or rut in the surface caused by the forklift tyres because Mr Tarbotton had not reported the damage to the surface caused by the forklift before alighting. His action in getting out of the forklift cabin occurred immediately after the hole had been created.
96 Otraco had discharged its obligation to take reasonable steps to provide a safe place of work for Mr Tarbotton.
Duty of Bucyrus to Mr Tarbotton
97 Bucyrus was not responsible for setting up or maintaining the build yard. Bucyrus did not work with Otraco in respect of tyre fitting. The haul pack had already been assembled by Bucyrus prior to Otraco attending on site to fit tyres. Bucyrus was responsible for the positioning of the crane that supported the haul pack but the crane was not related to Mr Tarbotton's injury in any way.
98 Bucyrus did not owe Mr Tarbotton a duty of care. It did not expose Mr Tarbotton to a risk of injury or harm because Bucyrus did not do or omit to do anything in respect of the state of the build yard.
99 Bucyrus was not at the location where Mr Tarbotton was injured on site at the time the tyres were fitted on 19 June 2009. Bucyrus would not have known of the existence of any hole in the unsealed surface nor was Bucyrus required to do anything to prevent or rectify any hazard to the surface because it did not have such an obligation. The state of the build yard was Citic Pacific's responsibility.
100 Given my findings in respect of Bucyrus' duty, Bucyrus has no contributory claim against Citic Pacific or Otraco.
101 I dismiss the plaintiff's claims against the first, second and third defendants.
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