Factual background
6 Except as otherwise indicated, I find that the following facts have been established. The plaintiff was born in May 1964. He went to school in Ipswich, Queensland and left school half way through Year 10 when he was 15. Thereafter he worked in a number of jobs including those of a storeman, factory labourer, fencing contractor and residential care officer. Most of his jobs involved heavy labouring work.
7 In 1988 he commenced work as a plant operator. He became qualified to drive all types of heavy equipment used in civil engineering works, i.e. tractors, graders, dozers and dump trucks. He worked for a variety of employers and had no difficulty in obtaining work. The work was almost always in Queensland.
8 The plaintiff married for the first time in 1982 but the marriage only lasted 12 months. There were two children by that marriage, who are now adults. The plaintiff remarried in 1991 but 8 months later his second wife was killed in a motor vehicle accident. There were no children from that marriage. The plaintiff married his present wife in 1993. They have three children, one from his wife's previous relationship and two children of their own aged 16 and 9. Both those children are still at school.
9 In 1991 the plaintiff suffered an injury to his left shoulder. He underwent an operation in 1994 in which the outer end of his left clavicle was excised. He has not undergone any further treatment in relation to his left shoulder since 1994 and it has not subsequently interfered with his ability to work as a plant operator.
10 The plaintiff continued to work as a plant operator in civil engineering works until 26 November 2001 when he commenced working for Henry Walker Elton Contracting Pty Limited (HWEC), a company involved in the provision of contracting services to the coal industry. The plaintiff moved into the coal industry because of the very good money which was available at the time. His brother had worked in the coal industry for some time.
11 When the plaintiff commenced with HWEC he was employed at the Ebenezer Mine near Ipswich. He was employed to drive various items of plant associated with that open cut colliery. When he started at the Ebenezer Mine, it was common knowledge that the mine was going to close and like other HWEC employees, he was advised to look for job opportunities that might come up elsewhere in the mining industry.
12 The plaintiff continued to work for HWEC at Ebenezer until 1 November 2002. At that time he learned that Damstra was looking for employees to work in the mines in the Hunter Valley. The plaintiff approached Damstra and was told that the company was looking for plant operators to work at Wambo.
13 The plaintiff was told that his work with Damstra would initially be that of a part-time casual. In late November 2002 the plaintiff and his family moved to Muswellbrook and on 9 December 2002 he commenced working at Wambo.
14 Before commencing work at Wambo, the plaintiff underwent induction training at Mr Damstra's house in Singleton. This consisted of basic OH and S training associated with working in coal mines. The plaintiff was already familiar with most of those matters because of his experience in Queensland.
15 When he commenced working at Wambo the plaintiff underwent further induction training from Roche and was passed as qualified to operate three different types of machines. These were the Komatsu 830E Dump Truck, a D11 Dozer and a 16G Grader. Before being passed on those pieces of equipment, the plaintiff had to demonstrate to a Roche safety officer that he was familiar with the safe operation of each of those items of equipment.
16 Subsequently as part of his employment at the Wambo Coal Mine, the plaintiff was passed on the Cat 785B and the 992 Loader. Once again he had to demonstrate to a Roche safety officer that he could operate the machines safely.
17 The workforce at the Wambo Mine was a mixture of Roche personnel and Damstra personnel. Damstra personnel made up about 20 percent of the workforce. Damstra personnel wore Damstra uniforms and Roche personnel wore Roche uniforms.
18 The plaintiff's work at Wambo was controlled on a day-to-day basis by a site supervisor employed by Roche. That person would give the plaintiff directions as to what work he was to carry out. During the night shift on weekends, a Damstra shift foreman would be present but during the rest of the time the shift foreman would be a Roche employee.
19 The safety officer at the mine was an employee of Roche. He gave directions to the plaintiff and other Damstra employees as to matters relating to occupational health and safety. The safety officer used to conduct toolbox meetings and was responsible for passing personnel on particular items of machinery. If the plaintiff required maintenance to be carried out on any vehicle, he would report the matter to the Roche shift foreman, who would then report it to the Roche workshop supervisor.
20 The plaintiff occasionally saw senior Damstra personnel at the site. On those occasions they were usually involved in meetings in the offices with Roche executives. The plaintiff said that he did not see senior Damstra personnel in the open cut mine very much.
21 The plaintiff's evidence on these issues was confirmed by a letter from the Roche safety officer at Wambo to the District Inspector of Mines, dated 5 May 2003 (exhibit P), which was sent following the plaintiff's accident. It is useful to set out the contents of that letter:
"Roche Mining Wambo used Damstra Mining Services as a labour hire resource to man the weekend shifts and to top up crews on Mondays and Fridays.
There are currently 47 Damstra employees inducted at Wambo of which approximately 25 work set shifts on a regular basis.
Prior to employment Damstra Mining Services perform a reference check in addition to a set interview process determining current competencies and previous safety performance. Roche Mining is then supplied with copies of the employee's drug and alcohol test results, resume and any relevant prior learning for review.
If the person is suitable they attend a site induction where they are introduced to Roche Mining procedures, including emergency procedures, first aid facilities, site traffic rules, the site drug and alcohol policy, tagging and isolation and site amenities. The induction concludes with a pit tour.
The employee is then assessed and appointed to operate the required machinery while at Wambo, and added to the site training matrix.
All Damstra personnel are under direct supervision of the Shift O.C.E. and are required to participate in Roche Safety Systems, as listed.
Roche Mining hazard reporting system,
Pre Shift Information Meetings,
monthly toolbox talks,
monthly safety contacts by the shift O.C.E.,
internal and external safety alert discussions,
participation in JHA development,
random D/A testing.
In summary, Damstra Mining Personnel slot into the fixed roster and workforce following the same induction and machine authorisation process as Roche employees.
They are then party to all systems including the application of the Roche Management System and supervision of the O.C.E., in an equivalent manner to Roche employees.
This cover note serves to answer a number of questions on the attached audit as noted."
22 The plaintiff enjoyed the work at Wambo. The money was good and he wanted to continue working there. Shortly before he was injured he spoke to one of the Roche senior personnel (Mr McAuliffe) and asked him whether he could get a fulltime job with Roche. Mr McAuliffe said "Yes, when one becomes available".
23 As part of the system of work at Wambo, the plaintiff was instructed by Roche to park any vehicle that he had been using during his shift on a hard stand area with the front wheels in a "V" drain. This was a depression dug by a grader, approximately half a metre deep. The plaintiff was told that the trucks were to be parked in that way so that if the handbrake mechanism failed, the truck would not roll away.
24 In relation to the Cat 785B (the best photographs of which are in exhibit 1), access was gained to the driver's cabin (which was on the left side of the truck) by means of two ladders. There was a flexible ladder beneath the bumper bar and a rigid ladder comprising five steps above the bumper bar. The ladder above the bumper bar was made of metal with non-slip steps. It was inclined at an angle of about 75 degrees to the horizontal. When the truck was standing with its front wheels in the "V" shaped trench, it was agreed that the angle of the ladder became 80 degrees to the horizontal. The ladder was equipped with handrails on each side, but those handrails extended only slightly beyond the top step of the ladder.
25 In his evidentiary statement the plaintiff described the means of access to the Cat 785B as follows:
"24 On the 785B it was necessary to climb up to the bumper bar by ascending the three bottom steps, whilst holding the bottom of the handrail that can be seen in photographs 1 and 3 annexed to Dr Grigg's report. Having accessed the bumper bar one then had to climb five steps. You could use the side rails as handholds until you got to the third step. It was then necessary to find other handholds to negotiate the top step and, from the top step, to the platform that ran around the front of the driver's cabin. For some reason (it is unclear to me why) the handrails on the ladder which was under the driver's cabin did not extend all the way up. On the opposite side of the vehicle (as can be seen in photograph number 1) the handrails do extend the whole way up."
26 It was common ground that the ladder on the right front of the vehicle could not have been used by the plaintiff for gaining access to the driver's cabin since it was for use in emergencies if the other ladder could not be used.
27 The plaintiff described his usual method of gaining access to the cabin of the truck in his evidentiary statement as follows:
"26 I developed a practice, when climbing the ladder under the driver's cab on the 785B to climb up to the third from the top rung (ie the third rung above the bumper bar). Once having reached that rung, and with both my feet on that step, I would transfer my right handhold to the upright part of the guardrail … I would then reach out with my left hand to take hold of the horizontal bar which runs across the front of (and just below) the windscreen of the driver's cabin. After doing that I then climbed up to the second top rung with my left hand still holding the horizontal bar … After getting both feet on the second top rung I would then pull myself up to the top rung of the ladder, then twist to turn right stepping with my right foot onto the platform. The method of climbing the ladder which I have described above is the same as I always used right from the very first time I accessed a 785B during my passing out assessment. I was never instructed to use another method of climbing the ladder."
28 The plaintiff said that as of the 14th April 2003 he knew and had known for years that it was important to keep a three point contact at all times when ascending or descending that or any other ladder.
29 When the plaintiff's ability to operate the Cat 785B was assessed, a twelve item checklist was used by the assessor. That assessment took place on 16 January 2003. One of the items which was assessed at that time was "boarding and alighting technique". This item was ticked, indicating that the plaintiff had been assessed as competent in that activity.
30 Evidence was given by two experts. Dr Grigg, a chartered professional engineer, provided reports and gave evidence on behalf of the plaintiff. Mr Underwood, an occupational health and safety mechanical engineer, provided a report and gave evidence on behalf of the defendant. There was a high level of agreement between these experts.
31 They agreed that the ladder above the bumper bar on the Cat 785B would be classified as a "step ladder" for the purposes of Australian Standard 1657. They agreed that AS 1657 applied to the ladder. They agreed that the Standard also provided that "the angle of slope of stepladders shall not be less than 60 degrees nor more than 70". They agreed that the use of the word "shall" in the Standard indicated that a requirement was mandatory. They agreed that because the ladder had an angle of 80 degrees, it did not comply with the standard.
32 They agreed that the requirement in clause 5.5.5 of the Standard applied to the ladder. This clause required:
"The bottom of the handrails shall commence at a point not greater than 900 millimetres above the floor or lower landing and, except as provided in clause 5.2, the handrail shall extend above the upper landing to a height of not less than 900 millimetres and be connected to the guard railing of the landing."
33 They agreed that the ladder on the Cat 785B did not comply with clause 5.5.5 of the Standard. They agreed that it was not a ladder which was exempted from compliance with clause 5.5.5 because of the provisions of clause 5.2.
34 Both experts agreed that the upright of the guardrail (which they described as the stanchion) was not well placed to be used as a handhold. This was because it might be level with or on occasions even behind the centre of gravity of the person using the ladder. On that issue Dr Grigg said:
"Coming back to this other issue, whether or not the stanchion on the guardrail of the landing at the top is suitable, bearing in mind that there's nothing on the left hand side is somewhat dependent on just how tall the person is and how far they are up the ladder, of course, and if the person is standing about half way up then the top of the ladder would be around waist height, I would expect, or maybe a bit lower, and so there's still a fair way to go to actually get to the point where they can reach the handrail across the front of the windscreen." (T169.10)
35 Both experts agreed that the ladder providing access to the driver's cabin had an apparent design flaw in that the side handrails did not extend up to the grab rail under the windscreen. The experts contrasted that with the handrail on the ladder on the right front of the truck.
36 The conclusion arrived at by Mr Underwood in his report was as follows:
" Conclusion
43 The Cat 785B dump truck (Roche Mining Unit 385) had several inherent design weaknesses that contributed to the risk of falling from the ladder at or near the transition point (where the operator was required to move laterally from the ladder to the access platform). The parking of the vehicle so that it was facing slightly downhill only marginally exacerbated the risk of a person overbalancing if they were using the ladder handrails and the grab rails provided for the ladder access since it only marginally increased the angle of inclination of the ladder.
44 The risk of falling was significantly greater if the person boarding the dump truck used the access platform stanchion as one of the three points of support (the actions being taken by Mr Jeffs at the time he slipped and fell) rather than the grab rail under the windscreen. The risk would also be greatly increased if any load being carried up the ladder was to shift during the climb (and particularly if it shifted when the person was at the top of the ladder section), or the person attempted to readjust the load being carried while they were standing on the ladder."
37 In the course of his evidence, Mr Underwood said:
"The only thing that I think we can both say, Dr Grigg and myself, is that the system, the actual arrangement was not a particularly good design. It had inherent faults that I think had some factors in the actual event occurring." (T174.20)
38 Doctor Grigg in his evidence noted that the steepness of the ladder required extra reliance to be placed on secure handgrips. He said:
"Look, I agree that it would be less likely, but I think there is a tendency here to focus just on the rails. You bear in mind that these steps are steep and that creates a situation that I think you said the plaintiff was saying he was sort of pulling himself up. Now, that occurs because the steps are steep." (T181.40)
39 In his first report on this issue Dr Grigg said:
"Although the ladder is equipped with handrails on each side, at the top of the ladder there is a vertical surface facing a person climbing the ladder, and the next available handhold, other than the vertical posts supporting the guard rails on each side at the top of the ladder, is a horizontal rail mounted on top of the sloping surface in front of the driver's windscreen. Thus when approaching the top of the ladder, there is a need to transfer the hands, probably first to the vertical posts of the guard rails and then to the horizontal rail in front of the windscreen.
These transfers would all have to occur whilst standing on the narrow treads of the ladder and since the treads would be expected to be horizontal when the truck was horizontal, if it was adopting a nose down attitude due to its front tyres resting in a ditch, there would be a slight forward slope on each of the treads.
Based on the description of the incident, it was whilst in the process of transferring the handgrip from the rails on each side of the ladder, to the grab rail that the incident occurred. Thus the lack of continuity of the handrails appears to have been a significant factor in the causation of the incident. The relatively narrow treads on the ladder would mean that in the absence of a secure grip on the hand or grab rails the feet would be unable to provide any significant degree of stability that could assist in preventing a fall.
In all the circumstances, although the ladder fitted to the front of the truck provided a means of access to the driver's cabin, it required a much higher level of care than would be required on alternative access systems and especially so when wet."
40 In his second report Dr Grigg set out the following observations and conclusions:
"3. I agree with Mr Underwood that the Cat 785B dump truck has an inherent design weakness and I believe that the requirement to move sideways from the top of the ladder to the access platform in a region where the handrails are not continuous involves a significant risk of a person falling. While the risk of overbalancing and falling might be exacerbated by movement of a slung load, it is normal practice for drivers of such machines to carry such items when mounting and dismounting and the access system should cater for this probability.
4. Although I agree with Mr Underwood that the access platform stanchion is poorly positioned to provide a good means of stabilising a person relying on it as a means of support, it is the only member providing a semblance of continuity of a handrail above the top of the ladder. The grab rail below the windscreen is relatively remote and there is nothing leading close to it on the left hand side at the top of the ladder.
Conclusions
1. The access ladder being used by the plaintiff could best be described as primitive and not in conformance with Australian Standard As 1657 or Mining Industry Guidelines in New South Wales.
2. A step access system could have been fitted to the truck at moderate cost and it would be expected to significantly reduce the risk of a fall and of injury such as those suffered by the plaintiff."
41 There is an issue as to exactly how the plaintiff's accident occurred. I have concluded that ultimately not much turns on which version of events is accepted. In deference to the submissions which were made, however, I will set out the competing versions.
42 On the evening of 14 April 2003 the plaintiff's shift commenced at 8pm. It had been raining that day although the last fall of rain was recorded as having occurred at 2pm. The ground conditions were described in the post accident reports as "muddy".
43 At the beginning of the shift the plaintiff gathered with his co-workers in the crib hut where the Roche supervisor told them what their duties were to be. He was allocated vehicle 385 which was a Cat 785B. After being assigned his task, he was driven to the hard stand where the truck was located.
44 As well as his hardhat, the plaintiff had a backpack which contained a small torch, a book, a packet of biscuits and a small drink bottle. He said that the backpack had two shoulder straps and when he was climbing into vehicle 385, the backpack was on his back with his arms through both shoulder straps.
45 After reaching the hard stand, the plaintiff carried out a safety inspection of vehicle 385. This involved checking the tyres, checking for oil leaks and checking for any damage from the prior shift. To do that he used the small torch which he carried in his backpack.
46 In his evidentiary statement the plaintiff described what next occurred as follows:
"31 I followed my usual course of climbing the ladder with both hands on the rails as I moved a foot, and then when both feet were on a step, I would move one hand at a time not really releasing the rail simply relaxing my grip on it and sliding the hand up.
32 I got to the stage where I was at the step third from the top. I had both feet on it and my left hand on the left hand rail. My right hand was holding on to the upright of the guardrail. I then took hold of the horizontal bar under the windshield with my left hand. I then went to pull myself up to the second top rung of the ladder. Just as my left foot was unloading weight from the third rung, my left hand slipped. The sudden jerking movement meant that I lost my balance. I still retained my right hand hold on the upper vertical bar of the safety rail. The jerking motion caused me to lose balance so that my feet slipped off the narrow rungs of the ladder and I fell. I maintained my right hand grip for a very brief period but as I fell I was unable to maintain my grip with the right hand and I fell to the ground."
47 In his evidence in chief, the plaintiff described what happened as follows:
"Q. Having taken the upright with your right hand, what did you do then?
A. I then released my left hand grip from the ladder and reached up and took hold of the handrail below the windscreen.