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[2010] QSC 470
General information, not legal advice.
Supreme Court of Queensland
2010-12-14
McMeekin J
Original judgment source is linked above.
[1] McMEEKIN J: The plaintiff, Mr John Osborne, claims damages for personal injuries suffered in the course of his employment with the defendant, Downer EDI Mining Pty Ltd, on 6 May 2005 at a gold mine at Cracow conducted by the third party, Newcrest Mining Ltd.
[2] The defendant and the third party have resolved the issues between them on the basis that they will share equally any liability found in the defendant. Quantum of damages is agreed at $1,150,000 inclusive of the refund due to WorkCover Queensland.
[3] The only remaining live issue is the liability of the defendant to the plaintiff.
[4] Mr Osborne was, at the relevant time, a long hole driller of some 20 years experience. He was injured when he fell down an open stope - effectively a hole in the mine floor - at the end of a tunnel identified as tunnel 2166 south. It is not known how Mr Osborne came to fall over the edge of the stope and there is no direct evidence of how he came to be at the edge.
[5] There was a significant factual contest. The essential disputes were:
(a) What instructions were given to Mr Osborne at the start of his shift?
(b) In order to arrive at the stope edge did Mr Osborne pass by two barriers alerting him to the presence of the stope?
(c) Whether the barriers were present or not, what brought Mr Osborne to the stope edge - the legitimate pursuit of his duties or was he on a frolic of his own?
(d) Had the defendant done all that was reasonably practicable to protect Mr Osborne?
(e) If not, was Mr Osborne himself guilty of contributory negligence?
[6] As will be seen, whatever view one takes of the evidence it involves an acceptance, to some degree, of an improbable course of events. Essentially I have to choose between the improbabilities to arrive at a conclusion. I have done so based on my views of the reliability of the witnesses, my assessment of their characters and how they were likely to behave, and what seems to me to be the least improbable of the alternatives. I bear in mind that I am not obliged to choose between competing versions and that this might be one of those rare cases where the facts are so obscure that no conclusions can be drawn, but I am satisfied to the requisite degree that the evidence does persuade me to a view as to the more probable course of events.
[7] To an extent, the resolution of the factual contests depended on the assessment of credit of the various witnesses called. A vigorous attack was made on witnesses on both sides. I was satisfied that each witness was doing their best to tell the truth as they presently believed it to be - which of course is not the same thing as accurately recalling the events in question. The three significant witnesses were the plaintiff, the present mine manager and the then production engineer, Mr Nick Strong, and the plaintiff's foreman on the shift in question, Mr Ray Furness.
[8] The plaintiff impressed as a man in considerable pain who struggled at times with his concentration. While he had fixed views on what he believed had occurred, he seemed ready enough to respond to questions promptly and do his best to be accurate. However it was evident that his memory was not accurate in significant respects and, on his own account, ended at some point prior to the fall into the stope.
[9] The most significant indication of the plaintiff's difficulties in recollection was his view about the symbol used to indicate the places at which the drilling of bolt holes was to be done. Mr Strong and a surveyor, Mr Ahern, each gave evidence that a certain symbol was used (a circle with a cross through it). Mr Osborne not only denied that, but said that the symbol was one used to show where drilling should not be done. Whatever attack might be made on Mr Strong based on his interest in the matter, there is no good reason to disbelieve Mr Ahern's evidence. Each man said that the symbol they identified was the universal one used in the industry. Mr Osborne must have seen it used thousands of times in his working life. As well, there was much force in Mr Strong's observation that they did not mark places that did not need to be drilled.[1]
[10] I conclude that the long period of time out of the industry since his accident and his apparently devastating injuries have so impacted on Mr Osborne that his recollections, to a degree are, at the least, suspect.
[11] Mr Strong was an intelligent, articulate witness. In many ways he was an impressive witness, however it was evident in several of his responses that he was there to defend the company. He seemed to me to strongly identify with the defendant. I note that he had risen from production engineer to mine manager at a young age, which had been his goal.
[12] One example of that identification of interests could be seen in his response to questioning about the state of cleanliness of a sign depicted in photographs hanging from a chain. The sign had obviously been cleaned by someone at some point. Yet he suggested an alternative explanation and one that was not seriously credible as Mr Diehm's cross examination displayed. There were other examples.
[13] I concluded that he was not ready to concede any point that might reflect adversely on the defendant's position if he thought that there was any argument that he could put up. While I do not think that he would actively lie about matters, his strong identification with the defendant meant that his own memory of events needed to be treated with some caution.
[14] Mr Ray Furness impressed as an open, engaging man. On more than one occasion he conceded points put to him. He was far from dogmatic in his views. If he was in doubt about a matter he frankly said so. While I am conscious of not putting too much weight on the performance in the witness box,[2] his manner appeared to be quite free of any wish to bring about any particular outcome in the case.
[16] It is uncontroversial that Mr Osborne was given instructions which required him to go to a designated tunnel, 2166 south, and there drill cable bolt holes. This was an every day task for him. The holes were required to be drilled at a predetermined and marked location. He was given three or four tasks to perform and this task required in all probability that he be told of the depth and angle of the drill holes. His shift started at 7am and this was his first task for the day. He was dropped off by a workmate shortly after the start of the shift, obtained the cable bolt hole drilling machine, called a Simba, and drove the machine to the entry to the tunnel. He went to locate the marks identifying the drilling location. His last memory was of walking along the tunnel seeking the marks. He has no memory of seeing any barriers barring entry to the tunnel or to the area near the stope. He was found in the tunnel below 2166, tunnel designated 2150, and some distance back along it, seriously injured, at about 10am. At the end of tunnel 2166 was an open stope - effectively a hole in the floor of the mine leading down to tunnel 2150. Blood stains were found on the left hand side of the bottom of the stope under a small ledge which was at the top of the stope. Mr Osborne had plainly fallen through the stope.
[17] It is common ground that Mr Osborne was given instructions at the start of the shift, at about 7am, as to the work that he was to perform in the course of the shift. It is common ground that his first task was to go to tunnel 2166 and drill cable bolt holes. The location where the holes had to be drilled had been marked the previous day by Mr Strong.
[18] What is in dispute is the precise content of the instructions and who provided them to the plaintiff. The defendant and the third party contended that both Mr Strong and Mr Furness had given Mr Osborne instructions as to where precisely the holes were to be drilled - a distance of about 30 metres into the tunnel. Mr Osborne denies that. He recalls only Mr Furness giving him instructions and there being no statement of the place where the markings were. That is of significance because the stope into which Mr Osborne fell was located 140 metres into the tunnel and the only justification for Mr Osborne being anywhere near that area is if he was still looking for the markings indicating where he was to drill the bolt holes. That would only make sense if he had not been told where they were with some degree of precision.
[19] It seems to me that the probabilities are against the submission made by the defendant and the third party.
[20] First, Mr Furness had no recollection of either the instructions that he gave nor of Mr Strong being present and he giving the plaintiff precise instructions.
[21] Secondly, it was Mr Furness' job to give out the instructions, not Mr Strong's job. There was no reason why a production engineer, as Mr Strong then was, would be bothered giving out instructions about so mundane a matter as the drilling of bolt hole cables. As Mr Strong himself said, it was a "very simple task" and one that the drillers undertook every single working day.[3] There was no suggestion that it was his usual practise to do so.
[22] Thirdly, Mr Strong's account requires that he provided detailed instructions to Mr Osborne immediately followed by Mr Furness doing the same thing but without Mr Strong intervening to explain that Mr Osborne knew all that nor Mr Osborne speaking up to say that the man standing next to them both - Mr Strong - had just explained it all. That is not how people usually behave.
[23] Fourthly, there is the difficulty of Mr Osborne being 140 metres into the tunnel, not just the 30 metres supposed to have been mentioned to him, if he was not looking for his job site. He was unlikely to forget an instruction given to him only a very short time before if it had located the markings close to the entrance to the tunnel. If he had not forgotten the instruction then the only alternative explanation was that he was on a frolic of his own. That seems highly unlikely.
[24] I hold that view for several reasons. The defendant's submission was that Mr Osborne might have gone to the edge of the stope to look at his handiwork, he having created that edge some three weeks before. As well the mine had adopted a new approach which entailed placing shotcrete on the rill of the stope (the sloping edge of the stope) and it was suggested to him that he might want to look at that. Both suggestions seemed to me to be fanciful.
[25] At the time of the incident Mr Osborne was 51 years of age. He was a very experienced driller. He in fact was qualified as a supervisor. He had no doubt seen many hundreds of stopes and made many hundreds of stope edges. Shotcrete was used extensively throughout mines. It would have been no novel experience for him to see it or to see his own handiwork.
[26] Mr Osborne presented in the witness box as a staid, mature man. No one suggested that it was his habit in his working life of going off on frolics of his own when he was supposed to be working. Indeed Mr Strong said to the contrary. Mr Osborne had been at this mine for about three months before his injury. He was said by Mr Strong to appear to know what he was doing and to follow instructions, as one would expect.[4]
[27] While it might be a relatively small point, the very occurrence of the accident is to some extent against the defendant's submission. If Mr Osborne went deliberately to the edge to see what was there he could not but have been aware of its precise position. It makes the chance of him falling less likely. But if he went there attempting to find marks on a wall, as he asserts, then his concentration could well have been elsewhere than on his feet or the ground immediately ahead of him thereby increasing the chance of the fall.
[28] It was submitted that I should draw an adverse inference about Mr Osborne because at some earlier time he had lost his employment at another mine thorough some unidentified breach of safety regulations. Knowing nothing more about that matter I am not prepared to do so. It seems to me that having such an unfortunate experience would tend to concentrate the mind on ensuring no further breach occurred rather than demonstrate a tendency to breach regulations and instructions, particularly at his age where obtaining employment in the mining industry might not be so easy.
[29] It seems to me that the probabilities strongly favour the view that Mr Osborne entered the tunnel not knowing precisely where the markings were that he had to locate because no-one had told him and he had not thought to ask.
[30] There is a significant dispute about the presence or otherwise of barriers. The barriers in question were chains slung across the tunnel onto which were hung signs such as "Danger No Unauthorised Entry" and "Danger Open Stope Below".
[31] The defendant's contention is that there were two such barriers in the tunnel, one near to the entry to the tunnel and one near to the stope. The first such barricade had a sign "Danger No Unauthorised Entry" and the second had both signs that I have mentioned slung on it. I am satisfied that was so.
[32] The plaintiff said that there were no signs at all. As to the absence of the first sign near the entrance he was supported, to an extent, by a Mr Dicocco who had driven into the tunnel earlier in the shift but said he saw no such sign. The difficulty with Mr Dicocco's evidence was that he had not been asked to recall these matters until long after the events, such signs were commonplace in entrances to the tunnels and the presence or absence of one was of no concern to him at the time. As well the extent to which he drove into the tunnel was far from clear.
[33] On the other hand there was a formidable body of evidence against the plaintiff's account.
[34] First, the signs were seen in place at about 4am - about four hours before the subject accident - by a supervisor, Mr Files. As conceded by the plaintiff's counsel, Mr Diehm of senior counsel, there is no good ground to doubt his account.
[35] Secondly, the signs were seen in place after the accident by Mr Furness and Mr Strong. Mr Furness conceded that his recollections concerning the first barricade were not clear, although he thought that the barricade was in place. Mr Strong was certain. Indeed Mr Strong took photos of the two barricades shortly after leaving the tunnel where Mr Osborne was found injured.
[36] Thirdly, it was the practice to have such signs in place and no good reason was shown as to why, if they were in place at 4am, anyone would want to take them down. The intention was to blast that area later that day. It seems highly unlikely that any employee connected with that work would not have been very conscious of the importance of alerting fellow employees to keep clear of the tunnel. It seems equally unlikely that any employee unconnected with that work would have any interest in coming to the tunnel and taking down barriers.
[37] Fourthly, the work within the mine is controlled. Miners are not simply wandering the tunnels looking for things to do. Each man is allotted his tasks at the start of the shift. At the end of the shift each man reports on the tasks completed. Records are made at the start and end of the shift to record these events. That is essential for the defendant as it charges the third party for the work its men accomplish and it cannot do so accurately without records. There is no record of any man being instructed to enter the tunnel between 4am and the time of the subject incident. There is no record of any man reporting that he had entered the tunnel and performed any work there in that time. No supervisor or worker has come forward to admit to being in the tunnel or of any knowledge of anyone being in the tunnel. This is not a huge workforce - there are only some 12 or 15 people on duty on one shift. Thus for the plaintiff's hypothesis to be accepted one or more workers has entered the tunnel without written instruction, performed work which has not been recorded or required, and in a tunnel that was on the point of being subjected to blasting. All this seems highly improbable.
[38] Fifth, it cannot be assumed that there is any positive evidence that the second barrier was not in place. The only person to assert that was the plaintiff. But Mr Osborne's memory ends at some unspecified time and there is no reason to assume that it ends after he passed the barricade as opposed to some time before he arrived at the barricade.
[39] Sixth, Mr Osborne must be the victim of a significant and unlikely conspiracy if the barriers were removed before his accident and replaced afterwards. Whoever took the barrier down has not come forward to say so. While such a reluctance to come forward is possible given that the culprit must have known that there had been a serious accident and he might have been reluctant to expose himself to any disciplinary proceedings, it seems unlikely that such an attitude would be common amongst workers who, as Mr Strong said, usually have a strong and supportive bond.
[40] But even if the barriers were taken down, someone had to put them up again after the accident. If Mr Strong is to be believed in his account of going straight up to the tunnel after attending to Mr Osborne, and I do believe his account, then in that time an unidentified person has put the barrier up and again not come forward to say so. That seems very unlikely. What was the motivation?
[41] If they did not know of the occurrence of the accident when putting the barrier back into place then why not come forward? There could be no criticism of their conduct. They were doing their best to keep workers safe. You would need to be particularly vindictive towards Mr Osborne, and uncaring about future safety in the mine, not to inform management or the investigators of finding the barrier down and of your actions in putting it back in place.
[42] Alternatively, whoever put the barrier back up did so knowing that the accident had occurred and therefore meant to cover up the defect in the normal safety precautions. Again why would a fellow worker be concerned to do that? The timing of the change in shifts suggests that the worker responsible for taking the barrier down, assuming that had happened, would not be on duty after the accident to put the barrier up. Management might have an interest in preserving the reputation of the mine and avoiding any penalty. But why be concerned, at management level, about concealing a casual act of negligence of an unidentified worker in leaving the barrier down? Particularly when that unidentified worker might well later come forward and reveal that they had left the barrier down thereby exposing management to the far more serious crime of deliberately concealing inadequacies in the safety measures taken and misleading investigators from the relevant government department that investigates all significant accidents in mines - careers would almost certainly end if that was shown.
[43] Mr Diehm submitted that Mr Furness had the opportunity to put the barrier back into place. That is true. Mr Furness visited the tunnel twice on that shift before Mr Osborne was discovered in his injured state and he could easily have walked to the end of the tunnel, seen the barrier down, and put it back up. It was submitted that his evidence that the first thought that came into his mind when he found Mr Osborne not at his station on his second visit there was that he had fallen down the stope reveals a mind armed with the knowledge that he, Mr Furness, had seen the barrier down earlier in the day.
[44] There are several matters that suggest that is unlikely. First, there is the one I have just referred to. Why would Mr Furness do such a thing? He could not know that whoever had put the barrier down would not come forward and say so - indeed he would expect him to. By not speaking up about his own involvement in re-erecting the barrier he potentially exposed himself to very serious problems and the possible end of his career. For what? It was not his fault that the barrier was down.
[45] Secondly, Mr Furness was, as I have said, particularly impressive in the witness box. If he was committing perjury, as he had to be for this theory to be accepted, he is a very good actor.
[46] Thirdly, why would he say that the first thing to come into his mind was the possible fall down the stope if he was trying to conceal his knowledge that the barrier was down? Why not assert that he had gone to the end of the tunnel and found the barrier up? If he was determined to lie then he went about it without even a modicum of thought.
[47] The conspiracy that I spoke of earlier would of necessity have involved at least two people and possibly more. The alternative hypotheses are that Mr Strong should not be believed when he says that he and two companions went to the scene after the accident and found the barriers up or that they should be believed. In the latter case there are at least two involved - the person who took the barrier down and the person who put the barrier up after the accident. In the former case those involved are Mr Strong and his companions and the person(s) who took the barrier down. In either case the conspirators are acting independently and quite unconscientiously. While possible, all this is unlikely. Certainly I had the impression that no witness that I saw would actively lie, even though their memories night now deceive them, as I think occurred with Mr Strong and the instructions he believes that he gave.
[48] The most significant point that the plaintiff made against this case was that the supervisor, Mr Files, claims to have seen not only the chain barrier in place near to the stope at 4am, but also a bund - a low earth wall protecting the edge of the stope. It is common ground that the bund was not there at about 10am when Mr Strong came to the scene after the accident. So, the submission went, the bund had to have been removed by someone and why not the chain with it?
[49] The alternative possibility is that Mr Files was mistaken in what he thought he saw. It needs to be borne in mind that his observation was made with the restricted vision available of the cap lamp and with the presence or otherwise of the bund being of no great moment at the time. It seems highly unlikely that significant work would be carried out that was both unrequested and unreported, and as best I can judge unneeded, in so highly regulated an environment. As well there is the evidence that Mr Strong gave of having washed down the edge of the stope only the day before. There was no suggestion of any bund wall being present then and no record of any request that it be put in place after that or record of such work being done. I am satisfied that Mr Files' recollection on this point is not reliable.
[50] Thus I proceed on the basis that the barriers were in place and bearing the signs that Mr Strong photographed after the event.
[51] That being so, the next issue to consider is why Mr Osborne went past the barriers to the edge of the stope.
[52] Mr Osborne's account is that he expected to find the markings indicating the place where he was to drill the holes on what the miners call the hanging wall, not the foot wall. He did so because in his experience that was where the drilling was invariably done. While his present recollection on that point may not be right, it was not in contest that the drilling was usually done on the hanging wall side. It is entirely explicable that without precise instruction to the contrary he would look to that side.
[53] Thus as he looked for the marks he was looking, principally at least, at the hanging wall side, which was to his right as he walked along the tunnel, not the other. He was wearing a cap lamp, that being his only form of illumination and the tunnel otherwise being completely dark, it being a long way underground.
[54] A cap lamp throws a good but limited light. It is completely directional - where you point your head is where you can see. Mr Osborne had good vision for about 10 to 15 metres ahead of himself as he went up the tunnel. There is limited peripheral vision.
[55] As I have said, I think it more probable that Mr Osborne was still pursuing his task as he went up the tunnel. The fact that he was able to miss the markings placed by Mr Strong the day before is explained by the limited directional light available and his concentration on the wrong side of the tunnel. The tunnel was about four metres wide. The markings were over, at the most, about ten metres of tunnel wall. Ten or so paces of looking to one side and the marks were missed. Once he missed the markings then he could only continue to look until he thought that he must have gone too far.
[56] According to Mr Strong's measurements, the place where the marks were was in fact 45m into the tunnel. The stope edge was another 85m further on. The second barrier was six meters from the stope. I do not necessarily accept the accuracy of all measurements, particularly the last one, as quite different estimates were given of that ranging up to 15 metres from the stope.[5] Nonetheless they are no doubt generally accurate enough.
[57] After missing the marks the only significant clue left for Mr Osborne was the ending of the supply of services - compressed air and water. He needed those to do his task of drilling. The marks would not normally be past that point. The poly pipe carrying the services ended about 25 metres back from the stope edge. Mr Osborne must have missed that clue too to have continued on. Again that seems to me quite possible given the concentration on the task of finding marks on the hanging wall, the location of the services on the back (or roof) of the tunnel and the lack of peripheral vision because of the restrictions of the lighting from the cap lamp.
[58] The defendant contended that Mr Osborne had no authority to pass the second barrier given the signs that were on it. Mr Osborne accepted that was so. However his acceptance of that proposition is in the same category as his view that the marks showing the place to drill were not as the other witnesses would have it in that he is far from reliable on his memory of how things were. Mr Furness indicated that if there had been the two signs confronting Mr Osborne, as were in place on that second barrier, then he was entitled to pass by it if he had been told to do a job that required it.[6] I appreciate that the answer was given after Mr Furness had been speaking of the first barrier but he did not qualify that answer as only being relevant to a location such as the first barrier.
[59] That being so Mr Osborne, acting conscientiously, was entitled to pass by the barrier assuming that his job required him to do so. To do so he had to step over it or duck under it. There was no physical difficulty in doing so but one could not inadvertently do so.
[60] Once it is accepted that Mr Osborne came to pass the second barrier in the pursuance of his lawful duties, then the probabilities favour him slipping inadvertently over the edge as he continued his task of seeking the marks on the side wall. True it is that it would not have taken much for him to spy the presence of the stope and true it is that the second barrier and the sign on it should have alerted him that it could not be far off. But the alternative, as I have said, seems considerably less probable - a deliberate approach of the edge, perhaps to see his handiwork.
[61] The defendant argued that the location of blood below a ledge on the foot wall side in the tunnel into which Mr Osborne fell provides some basis for a finding that Mr Osborne ventured onto that ledge on the edge of the stope and so confirming its theory about Mr Osborne seeking to look at his handiwork. That seems to me to be little more than speculation. Precisely how Mr Osborne fell, what he did to try and save himself as he fell, and what happened after he landed are all unknown.
[62] The issue then is whether in these circumstances the defendant has breached the duties said to be owed to Mr Osborne and thereby caused his injuries.
[63] It is not in issue that the defendant owed the usual duties imposed on an employer under the general law. It was in issue as to whether Mr Osborne had any private right of action under the legislation governing safety on a mine site, the Mining and Quarrying Safety and Health Act 1999 (Qld).
[64] I have determined that the defendant did breach the duties owed under the general law and so need not consider what seems to me to be the difficult issue of the availability of a private right of action under the statute.
[65] The duty on an employer has been expressed in various ways. Counsel have taken me to the usual authorities. For example in Hamilton v Nuroof (WA) Pty Ltd it was said that the duty of an employer is "... to take reasonable care to avoid exposing [its] employees to unnecessary risks of injury."[7] In Vozza v Tooth & Co Ltd, the Court explained that for a plaintiff to succeed it must appear that the defendant unreasonably failed to take measures or adopt means, reasonably open to him in all the circumstances, which would have protected the plaintiff from the dangers of his task without unduly impeding its accomplishment.[8] Those statements make plain, as counsel for the defendant and the third party reminded me, that an employer is not required to guard against all risks of injury.[9]
[66] If the plaintiff establishes the following four matters then he will have discharged the obligation on him of demonstrating negligence in, or breach of contract by, the employer:
(a) That the task involved a foreseeable risk;
(b) That there were reasonably practical means of obviating the risk;
(c) That the plaintiff's injury belonged to the class of injury to which the risk exposed him;
(d) That the employer's failure to eliminate the risk showed a want of reasonable care for the plaintiff's safety.[10]
[67] The risk of falling over the edge of a stope was plainly foreseeable. It was not only foreseeable but foreseen. That was why the barriers were erected.
[68] In my view, there were two ways in which the defendant could have avoided or significantly reduced the risk of this accident occurring which were reasonably practical means of obviating the risk.
[69] First, the defendant should have caused Mr Osborne to be provided with precise written instructions about the location of the markings. That would have removed entirely the risk of Mr Osborne going too far. That measure was identified after the accident as the practice the mine would adopt in future albeit that, for other reasons, it was not in fact adopted for tasks such as this. There was nothing impractical about the suggestion and it would be a cheap and effective means of meeting the obvious risks. Mr Fisher, an acknowledged expert in mine safety and who investigated the accident, identified this as a defect in the defendant's system of work. As well it would appear that such instructions were given in other metalliferous mines.[11] It needs to be borne in mind that Mr Osborne was given a number of tasks for the day and it is easy to forget such detail.
[70] Secondly, the defendant should have had in place a bund immediately before the stope. The evidence from Mr Strong indicated that it was cheap and easily put into place. The mine subsequently adopted bunds instead of alternative means of protecting the edges of stopes because of those factors. If there had been a regular practice of so delimiting the edge of a stope prior to the subject accident then Mr Osborne would have known that he could go no further in his search for the marks once he reached the bund.
[71] In my view the employer's failure to adopt these measures showed a want of reasonable care for the plaintiff's safety. In so finding it seems to me the significant matters are that mining work presents particular hazards not normally found in any workplace. The environment is constantly changing with blasting and mining activities. The men work in pitch darkness with limited vision. The tunnels can have stopes in them which present the risk of falling, in this case, some 16 metres onto very hard surfaces. Even without stopes there are hazards that justify keeping men to precise and defined areas where risks can be better controlled. The chances of injury are high and the seriousness of potential injury could hardly be greater. Further, it is well accepted that employers are required to bring into account the possible inadvertence of workers in going about their tasks. As Mr Diehm submitted, in these circumstances best practice represents reasonable practise. The measures were cheap, obvious and in fact adopted by the defendant after the event.[12]
[72] The facts of this case, in my view, are not to be compared, as the defendant and third party urge, to McLean's Roylen Cruises Pty Ltd v McEwan[13] or Hill-Douglas v Beverley[14] where the employee was performing a task, the particular means of execution of which had to be decided by himself, and where the employee was qualified by training and/or experience to choose the mode of performance of the task. Here, the plaintiff did not intentionally choose a method of work that deliberately courted a known danger. He was attempting to follow his inadequate instructions in a very difficult environment.
[73] I am satisfied that the plaintiff has made out his case.
[74] Finally there is the question of contributory negligence. While the assessment is governed by s 307 of the Workers' Compensation and Rehabilitation Act 2003 (Qld), that Act has little to say that is relevant here save that it is permissible to make a finding of contributory negligence.
[75] The relevant principles were explained in Podrebersek v Australian Iron & Steel Pty Ltd:
"The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man (Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] UKHL 4; [1953] AC 663 at 682; Smith v McIntyre [1958] TASStRp 11; [1958] Tas SR 36 at 42-49 and Broadhurst v Millman [1976] VicRp 15; [1976] VR 208 at 219, and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance."[15]
[76] I am satisfied that Mr Osborne has fallen below the standard of care to be expected of someone in his position. While it was explicable that his attention be directed to the hanging wall it is inexplicable that he was not on high alert once he passed the second barrier. He ought then to have recognised the danger that could only lie a short distance ahead. In those circumstances there was no excuse for him not scanning the area carefully before proceeding forward. Whether the stope was six metres or 15 metres from the second barrier he should have very quickly identified precisely where it was and avoided it.
[77] He evidently did not do so and I find that his failure to do so was a significant departure from the standard of care expected of an experienced miner. It was a significant contributing factor to the occurrence of his accident.
[78] Generally speaking the cases show that courts are not particularly demanding in their assessment of the blame to be attributed to a worker. The worker's mistakes usually occur, and did in this case, when their attention is distracted and when they are doing their best to achieve the ends of their employer. The employer's mistakes are taken in the comfort of the board room, with expert advice available as to the systems that ought to be in place, with the experience of other similar businesses to call on, and without the immediacy of decision making that confronts the worker.
[79] The defendant and third party contended for a finding of 50% contribution in the circumstances as I have found them to be. Of the various cases cited to me, in only one has so high an apportionment been found, Wylie v ANI Corporation Ltd,[16] and there the worker placed himself in a position of obvious danger involving inevitable injury. That is not this case.
[80] Doing my best to balance out these various factors, I consider that the plaintiff should be held to have contributed to the extent of 35% to his accident.
[81] The plaintiff is entitled to judgment against the defendant in the sum of $432,201.80.[17] The settlement between the third party and the defendant requires that the third party contribute $373,750 to the judgment payable by the defendant.
[82] I will hear from counsel as to the appropriate form of orders and as to costs.
[5] Although I note that Mr Cover, who placed a concrete block at the edge of the stope after the accident, thought the distance from barrier to stope edge was 6 meters: T2-32/55.
[7] [1956] HCA 42; (1956) 96 CLR 18 at 25.
[9] Finn v The Roman Catholic Trust Corporation for the Diocese of Townsville [1997] 1 Qd R 29 at 41 per Williams J.
[10] See Glass, McHugh and Douglas, The Liability of Employers, 2nd Ed at p16.
[11] Exhibit 24 and Mr Ahern's evidence at T3-78.
[15] [1985] HCA 34; (1985) 59 ALR 529 at 532-33, per Gibbs CJ, Mason, Wilson, Brennan and Deane JJ.
[17] ($1,150,000 x 65%) less WorkCover refund of $315,298.20: Negric v Albion Scrap Steel Pty Ltd [1978] Qd R 362.
Osborne
Downer EDI Mining Pty Ltd & Anor [2010] QSC 470
(1956) 96 CLR 18
(1984) 54
ALR 3
(1985) 59 ALR 529
(1964) 112 CLR 316
(1956) 96 CLR 10
(2003) 214 CLR 118
(1984) 54 ALR 3