Smith v Ulan Coal Mines Limited

Supreme Court of NSW|2020-04-21|Before: Hoeben CJ, Campbell J

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

The evidence

The evidence of the plaintiff in the proceedings comprised: 1. a record of an informal interview between him and Wouter Johan Koppe, a NSW Government Inspector of Mechanical Engineering for Mines, dated 3 June 2014; 2. an evidentiary statement dated 20 December 2016; 3. an amended evidentiary statement dated 5 June 2018; 4. his oral evidence in the trial (T.18-T.84).

Informal Interview

It was common ground that the informal interview was conducted at Sydney Hospital, following an operation on the plaintiff's left hand. The plaintiff was heavily medicated at the time. Mr Koppe made a contemporaneous note of the questions and answers.
Mr Koppe asked the plaintiff to detail the incident and include what he saw and felt and did afterwards (Question 1). The response of the plaintiff to Question 1 was recorded as: "I was doing an electrical code on the feeder, completed the control box and had just cleaned the emergency stop on the walk side of the feeder, right hand side if looking towards the conveyer/outbye. I noticed a cable had some oil on it. I noted a drip of oil on the cable along the side of the feeder just below and to the right/outbye side of the emergency stop I was cleaning. I continued cleaning the emergency stop and saw another drip. I investigated where the leak came from. I removed a rag from some hoses above the cable and felt a sharp sting in my left hand. Some blood pooled on my hand. The shuttle car driver approached. The feeder chain feed was activated. I saw another spurt of oil from the area where the rag had been. The spurt then stopped. I am not sure which hose or fitting was the source of the spurt. I replaced the rag which was soaked in oil back where it came from. … I proceeded to the panel deputy, Adriano Lopes, and told him of the incident. I had a small cut - some blood had come out and I thought it was oil injection. Earlier on the shift I had used the top right hand control to start the feeder. I did not use the umbilical cord control at any time during the shift. … Question (3) How much oil was on the rag? Answer It was soaked in oil. Question (4) What colour was the rag? Answer It was blue. Question (5) What mode was the feeder in? Answer No-one changed the feeder mode. Anthony, the other electrician in the panel had shown me around. Question (6) Did you touch any of the feeder or boot end controls? Answer No. Question (7) Did you tighten or move anything on the feeder besides the blue cloth? Answer No, not before or after the incident except for starting the feeder. Question (8) Were you wearing gloves? Answer No. Question (9) Why were you not wearing gloves? Answer • Gloves are not good for doing electrical work. • They are not good for handling stuff. Question (10) What training have you had on JOY Feeder Breakers? Answer • Not much, know how to stop and start the feeder. • Have had some basic training. • Have only been issued with a blue electrical key which is only used on the DCB. … Question (12) What equipment are you authorised to operate? Answer General electrical work, was going to get a shuttle car authorisation but not yet for the feeder. Question (13) What had you checked on the feeder when the incident occurred? Answer • Had only inspected/cleaned the panel and emergency stop on the walk side of the feeder. • Spent most of the shift cleaning the DAC system. … Question (15) How long were you by yourself just prior to the incident? Answer Around 30 to 40 minutes, although I did speak to the fitter in that time. … Question (19) How would you describe the oil that hit you? Answer It was a spurt not a mist or flow. … Question (22) What do you think of the location of the rag? Answer I was not happy that someone would cover an oil leak with a rag and wondered why it was there. … Question (25) Did you have any reason to touch the umbilical cord controls? Answer No." (The full informal interview is in the Courtbook at p141-146).

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

The plaintiff was born in October 1975. He married his wife, Trina, in March 2001. They have a daughter born January 1994 and a son born in May 2008. The plaintiff was in regular employment between 1991 when he commenced his apprenticeship and April 2014 when he commenced employment with Trade Services as an underground electrician. He was allocated by Trade Services to perform work at the Ulan West Colliery. He was a qualified electrician at the time.
The following additional information was set out in the evidentiary statement: "23 Over the years, I have undertaken medical assessment and functional assessments with Coal Services Health Pty Limited from time to time including such assessments prior to obtaining work in the coal industry. The last of these assessments occurred before commencing work with Trade Services Pty Limited was on or about 22nd April 2014. At the time of those assessments, I was a married man with financial obligations. I needed to work and did not disclose details of my pre-existing psychological conditions as I feared I would not obtain work. 24 My first role when I commenced with Trade Services Pty Limited at the Ulan Colliery were tasks associated with the installation of the longwall at main gate 1. 25 When I commenced work at Ulan West, I took part in a general induction arranged via Trade Services which was undertaken in the training room at the colliery and went for about four hours. It was a "tick and flick" process essentially to do with safety following which was an inspection around the surface of the colliery. 26 By late May 2014, the installation of the longwall at main gate 1 had been completed and I was transferred to work at main gate 2. 27 I was working 12-hour shifts, starting at 11:00am. This was my second shift and so I was unsure about the shift pattern but my rotation was as follows: Afternoon shift 28 Personal Protective Equipment was not provided to me by Trade Services, in particular, no gloves were allocated to me."
The plaintiff thought that there were nine persons in his "crew" comprising the Deputy, Adriano Lopes; a mechanical fitter, five multi-skilled mine workers and two electricians (of which he was one). He identified four of the crew, i.e, Andrew Dean, an operator; Greg Brown, an operator; David Williams, a fitter and Anthony Walker, an electrician.
The plaintiff expected to be shown the "ropes" by the other shift electrician, Anthony Walker. While the plaintiff knew how to perform the various tasks, he was to be supervised until he became familiar with operations at main gate 2.
The plaintiff continued his evidentiary statement as follows: "34 The supervising electrician Anthony Walker was to return to the surface to collect cables that were required for the next shift toll. Anthony instructed me to keep the breaker feeder going as it had been tripping out. The breaker feeder is a machine used to transfer coal from shuttle cars to the conveyor belt. To keep the breaker feeder working, involved pressing the start button each time the machine stopped. 35 In the meantime, I went along with monorail cleaning the DAC units as they were covered in stone dust and an oily substance. I pointed out to the mechanical fitter that the DAC units were covered in this oily substance and we would have to cover them or move the breather that was above them. 36 After cleaning the DAC units, a shuttle car had just pulled away and I went to undertake the daily check on the breaker feeder, including cleaning and a visual inspection of the electrical equipment. I cleaned the main electrical panel on the feeder breaker and the emergency stop on the feeder. While I was clearing the emergency stop, I observed fluid on the cable beneath the emergency stop button. I looked up to see where the fluid was coming from and noticed a blue rag tucked into a valve bank. I took the rag away with my left hand, to have a look when in an instant, I felt a sharp stinging sensation in my left hand and noticed blood and fluid pooling in my hand coming from a hole in my left hand. I immediately picked up the rag with my right hand and grabbed my left hand wondering "what got me"."
The incident occurred at about 3pm. The wound was to the back of the hand at the base of the thumb. The plaintiff notified Adriano Lopes. He was taken to the surface where he received first aid. He was subsequently transferred to the Dubbo Base Hospital and from there to the Sydney Hand Hospital. He recalled that approximately two days after the accident, when he was heavily medicated, a number of people arrived at the hospital and he answered some questions. This was the informal interview already referred to. In relation to that the plaintiff said: "47 … I have been shown a typed version of what appeared to be 25 questions put to me by Wally Koppe, an Inspector of Mechanical Engineers, and Klint Maynard, Manager of Mechanical Engineering from Ulan West. I understand that Andrew Dean, the Health and Safety Representative of Ulan West operations was also present during this interview in hospital. I agree to the best of my recall as I was heavily medicated, with what is recorded in the questions and answers annexed and marked with the letter "A", being a copy of the "Record of Informal Interview" 3 June 2014."
The plaintiff set out his belief as to how his accident was caused. When regard is had to the expert evidence, it is clear that the plaintiff did not understand how the Feeder Breaker worked. On this issue, the plaintiff said: "71 I have been shown limited documents from the Department of Trade Investment including the photographs of the scene of the accident. I make the following comments with respect to that material: a. I was doing a daily code at the time [of] my injury. I understood there was no need to isolate. My electrician supervisor was aware that I was undertaking the daily code task. b. I did see oil dripping when I cleaned the umbilical which is why I removed the blue rag in an attempt to source the leak of oil. I immediately replaced the rag. c. The couplings used on the hose were not to be used underground in this fashion. A belt move had occurred in days leading up to my injury during which time, pressure would have built up in the hoses which did not decrease until release or used again. There was clearly fluid built up in the system which released and injured me. d. The testing done on the hoses by the defendant was performed in a controlled environment where a leak still occurred. Whilst the leak which did occur during the test when radically outwards, there were too many variables in play on that day which could have changed the direction of the leak. e. It is clear to me that Ulan West Operations Pty Limited in particular, and someone in their employ, namely the person who placed the blue rag on the device, which was soaked in oil, was aware of the condition of the hose at that point but did nothing to control the risk which was present, having regard to the circumstances leading up to the incident including the belt move and the build-up of oil and pressure."
The plaintiff provided the following additional information in his amended evidentiary statement: "85 On 22 February 2018 I was charged by NSW Police Force with: Impersonating a police officer, s 546D(1) Crimes Act 1900; and Using a false document to influence exercise of public duty, s 254(b)(iii) Crimes Act 1900; I have taken legal advice and I am to be assessed by a psychiatrist on 4 June 2018 with a view to an application being made under s 32 of the Mental Health (Forensic Provisions) Act 1990. I understand this matter will next be before the court on 21 August 2018."
The plaintiff's amended evidentiary statement was relied upon as his evidence-in-chief.
He was cross-examined in relation to four medical examinations which took place on 15 September 2011, 26 July 2012, 11 September 2012 and 19 November 2012. The plaintiff agreed that at the end of each of the documents setting out the results of the medical examination, he had declared that the answers recorded against all questions were true and correct to the best of his ability (T.23-T.24).
Without setting out the detail, which is repetitive and extensive, the cross-examination established that the plaintiff had deliberately misled examining doctors concerning his past state of health so that he could obtain employment. The disabilities which had not been disclosed were of a serious kind for a person seeking employment underground or in an industrial setting. They included episodes of dizziness and balance problems, a stroke, and a serious episode of self-harm when on 14 January 2010, the plaintiff attempted suicide by injecting petrol/kerosene into his left elbow joint. The stroke, which had been brought about by that incident, left him with weakness on the left side of his body.
On 27 March 2010, the plaintiff had presented at Shell Harbour Hospital suffering from a collapse and seizures. This was not disclosed in any of the four medical examinations. On 15 September 2011, when asked "Apart from wearing glasses, have you had a significant problem with your eyes or vision?", the plaintiff wrote "No". This was untrue because in January 2010, Dr Lee, an ophthalmologist, had tested the plaintiff's eyesight and found that while his vision on the right side was 6/6, he could only observe "hand movements" on the left side. The plaintiff agreed that Dr Lee had told him that there was nothing that could be done to improve the vision in his left eye (T.28, Exhibit 1). The plaintiff agreed that he was advised in 2012 by Dr Vesey, his general practitioner, that his lack of vision in the left eye would give rise to difficulties with spatial perception.
There were other untruths elicited by the cross-examination concerning whether he had taken time off work as a result of an injury and whether he had suffered from back pain. Perhaps the most striking example of this kind of deceit is at p80 of Exhibit 4, which showed that as of 11 September 2012, the plaintiff answered "No" to the following questions when the true position was that they each required an affirmative answer. "(1) Have you ever suffered from fitting, fainting, funny turns or epilepsy? … (3) Have you ever had loss of consciousness or a head injury requiring hospital admission? (4) Have you ever noticed any dizziness or balance problems in the last three years? (5) Have you ever had any temporary unexplained weakness in the limbs? (6) Have you ever had a stroke? … (1) Apart from wearing glasses have you ever had significant problems with your eyes or vision? … (4) Have you ever suffered from a mental illness or psychiatric condition?"
In short, the cross-examination effectively established that there were credit issues potentially affecting the plaintiff's evidence in that he was prepared to deceive not only those conducting the medical examinations but potential employers (by whom the medical examinations were required) for his own benefit. When one has regard to the fact that such deception could involve a serious risk of injury, both for the plaintiff and fellow workers, it matters not that the plaintiff was telling these untruths in order to obtain employment. On that issue, the letter from Dr Vesey, dated 30 January 2014, is important: "Thank you for your fax regarding Steven Smith. Mr Smith has been advised not to climb electricity poles due to severe vision loss in his left eye and a history of seizures in 2010, 2011, 2012 and 2013. The visual loss adversely affects his spatial awareness and the history of seizures makes working at heights unsafe." (Courtbook p1195)
The plaintiff's conviction does not assist his credit in this matter. He was convicted of preparing a false document in order to retain his position in the Rural Fire Service. The conviction was based on a plea of guilty for preparing a false medical certificate purporting to come from Dr Vesey.
Apart from credit issues, under cross-examination the plaintiff's evidence was: "Q. Now, you and Mr Williams had a look at the breaker feeder in question? A. There was myself, Mr Williams and Mr Walker. Q. Mr Walker was the senior electrician? A. Senior electrician, the one that was supervising me. Q. Mr Walker then went to do other duties? A. He went to the surface. Q. And he left you with the task of cleaning-- A. Yeah, code A'ing the feeder breaker. Q. Yes and that means, does it not, cleaning the electrical panels, the-- A. Yes. Q. --stops, the-- A. Yes, yes. Cleaning and visually inspecting everything, yes. Q. And Mr Williams carried out, as you saw, his daily inspection of the machine when you were there? A. No, he was only there for five minutes, if that, and then disappeared." (T.53.48-54.20) "Q. You had some knowledge of the operations of the feeder-breaker, didn't you? A. No. Q. What it did? A. No. I knew - I knew what it did, transferred coal, but that's it. Q. You didn't know in transferring coal that it performed any particular functions? A. No. Q. You were alive, were you not, to the fact that it had high pressure hydraulic systems on it? A. I was aware that it would have had it somewhere, yes. Q. Looking from where you were cleaning, as you say, the electrical control board - A. Emergency stop. Q. - and the emergency stop, looking towards the bulkhead, you could see that that was a high pressure connection point for a hydraulic system. A. No. I - it was hydraulic hoses. There's no difference underground, which is high pressure, which isn't or which is grease and which is oil. Q. You were aware, were you not, that high pressure hydraulic connections were, if they failed, dangerous? A. Yes. Everyone gets told that. Q. You say, don't you, that you saw a fluid on the line, on the hydraulic hose line? A. No, I saw fluid on the cable underneath it, or a wet area - fluid, wet area. Q. Right, and you knew, did you not, from your induction and from your training, that somebody who saw something which was or may be a hydraulic leak, unless they were a mechanical tradesperson, were required to go and inform a mechanical person that there was a leak? A. And also in a code A, which is what I was conducting at the time, it is to investigate. Q. Do you say that as an electrician, it was your job to investigate a fluid leak in the hydraulic system? A. On my electrical cable. Q. The electrical cable where you saw the leak was what distance, do you say, from the bulkhead? A hundred, 200? A. Yeah, something like that, yeah. I didn't have a ruler." (T.58.20-59.15)
It was subsequently clarified that the words "a hundred, 200" were a reference to millimetres. "Q. What distance would you estimate it is from where that wet cable is to where the blue rag is? A. I would say 250, 300 millimetres, as a rough guess. Q. Now, I put it to you that as an electrician, if you suspected that there was a leak coming from the hydraulic hoses that are shown there going into where the blue rag is-- WEBB: Could I just help my friend for a moment, your Honour? SCOTT: Q. If you, as an electrician, came to the view that there was a chance that the hydraulic hoses or fittings going into the area where the blue rag was or is in this photograph, then your obligation was, was it not, to notify a mechanical fitter that you suspected that there was a leak of fluid coming from that hydraulic system? A. Yes, you are meant to do that. At that stage I did not realise or know that there was a leak. I didn't know whether that was water or somebody underground had taken a pee on it. You - they - it's - it could be anything. Q. There were no electrical components, were there, on this machine where the blue rag is? A. Exactly where the blue rag is? Q. Mm. A. No. Q. And the blue rag is situated, is it not, inside what appears to be a red side and a red top that run for some length along the fittings and pipe? A. Yes, there is a blue rag in there and there is a shroud around it, yes. Q. Sorry? A. There is that red cover around it, yes. Q. To reach the blue rag would require you to put your hand inside that top cover and beside the side cover? A. Not all the way in, no. Q. The blue rag is, as we can see in the photograph, inside that area? A. Can I just say something here? That blue rag - this picture is taken after I have jammed the blue rag back in there. HIS HONOUR: Q. But you put the blue rag back where you thought it came from? A. Yes, but is that the exact positioning of it? You may smile about it but a code A, if you've read a code A, says to clean, tidy, remove any foreign material on the machine. SCOTT: Q. You have stated, have you not, that you were investigating what you thought may well be a leak? A. That could have been a number of things in my mind at that stage. I was not familiar with that machine. Q. Do you accept that you have stated that you were investigating a leak of fluid? A. No. HIS HONOUR: No, he said - as I have understood what he said - he was investigating a potential leak, what could be a leak. WITNESS: Exactly. HIS HONOUR: Q. Is that correct? A. Yes, that is correct. At that stage I didn't know what it was." (T.64.21-65.40)
In relation to the transcript of the informal conversation between the plaintiff and Mr Koppe, the following evidence was given: "HIS HONOUR: This is the transcript of an informal discussion between Mr Koppe and Mr Smith, that's right, is it not? SCOTT: It is, your Honour, that the witness has attached to his statement. HIS HONOUR: Yes, I know it's attached to his statement but I'm just satisfying myself that I've got the right understanding of the document. SCOTT: Yes, your Honour. Q. Question, it says there, from Wally, "Wally asked Steven to detail the incident and include what he saw, felt and did afterwards". If you go down to the second dot, "I noticed a cable had some oil on it." The third dot, "I noted a drip" … HIS HONOUR: Are you going to let him answer that or not? SCOTT: I'm sorry. Q. You noted that the cable had some oil on it? A. This statement, before I answer it, was that I have no recollection of this statement 'cause it's the day within 24 hours, even 12 hours, of me having an operation. I was, as you could put it, very high on serious painkillers, and I have no recollection of this statement. From what I have been told, there was a number of people in this room. I was on a drip, I was on everything, so I - honestly I can't answer that. Q. My question to you was it says there "I noticed a cable had some oil on it". Do you now say that you don't - do not say that was what you saw on the day? HIS HONOUR: No, that's not what he was saying at all. Please be accurate. What he is saying is "I may have said it, I may not have said it, I now have no recollection of having said it". Q. Is that correct? A. Yes. Yes, thank you. SCOTT: Q. Do you have a recollection of any of the answers in this document? A. In what, sorry? Q. The document that you've attached as being the conversation between yourself and Mr Koppe? A. No, I don't." (T.66.1) "Q. Do you now say with regard to the statement that you've got there, in paragraph 47: "I agree to the best of my recall, as I was heavily medicated, that what is recorded in the questions and answers annexed and marked with the letter A is a copy of the record of informal interview of 3 June 2014." Do you now say that you agree to the best of your recall with the questions and answers in that document? A. I don't agree with that document. I can't answer for that document, sorry." (T.67.30) "Q. Going back to paragraph 36, you say that you were cleaning the electrical equipment? A. Yes. Q. How were you doing that? A. With a rag and a, what do they call it, like a paintbrush, I've just lost - it's similar to a paintbrush, not a Banis brush, it's a wooden handle, round, I've lost it now, I can't remember to be honest. Q. What did you do with the rag after you were injured? Did you drop it, take it with you? A. It was in my - I put it back in my vest. Q. The rag was in your hand was it when you were looking at the cable that you said was wet? A. The rag was in my right hand, yes. Q. Did it remain in your hand whilst you looked to see where the fluid was coming from? A. Yes, 'cause my hand had the rag in it. I leant on the machine which would have been just up - just above those cables on that red guard, and pulled the rag out. So the rag was in this hand, and I've leant on the machine, so the rag's now between me and the machine in the right hand, and I've just leant and pulled the rag out." (T.67.42-68.15) "Q. The blue rag was quite obvious wasn't it? A. Yes. Q. When you're looking at the machine? A. Yes. Q. If somebody had been carrying out their usual daily inspection, it would have been quite obvious to see the blue rag? A. Yes." (T.68.31) "Q. So at all times, the palm of your hand was facing down? A. Yes. Q. The rag as we can see from the photographs is sitting on top of the valve bank? A. On top of-- Q. Not underneath it. A. On top of those hoses, yes. Q. Yes, on top of the hoses. You've got your valve bank. We can see the injury to your hand is to the base of your thumb on the top of your hand? A. That's correct, right there. Q. Do you say that at any stage you put your hand underneath the valve bank or the connections? A. No." (T.70.3) "Q. How good is you recollection as to how you hurt yourself or how you were hurt? A. It's reasonably good. Q. So that's okay. A. Yes. Q. What parts then do you say you can't remember? You can't remember in detail the statement you made to Mr Koppe? A. That's correct, yes. Q. What else can't you remember? A. I can remember most things but this day is pretty fuzzy and the day before at Dubbo I think it was, or wherever it was, was pretty hazy as well, but with the injury, to answer your question, I remember most of what happened, yes. Q. So your memory is affected once you started receiving treatment? A. Yes, yes, yes." (T.71.3) "Q. You're aware aren't you that the experts have tested the hydraulic system on this machine following your accident? A. You're talking about Pirtek? Q. Pirtek and also Mr Koppe and Mr Maynard on site. A. I just thought they tested it at Pirtek. That's where I thought all the testing was done. Q. You've been informed, haven't you, that the testing that took place failed to find a leak from any of the hoses? A. No, I thought there was a leak in one of the - I thought-- Q. In one of the hoses? A. Yeah, I -- " (T.71.27) "SCOTT: Q. I want you to assume that the hydraulic system, the high pressure hydraulic system, was tested in situ by Mr Koppe and Mr Maynard on 2 June, the day after. A. I can assume that, yes. Q. I want you to assume that the testing failed to find any leak from any of the hoses. A. I - if that's what they say, then that's there. Q. I want you to assume that the testing in situ failed to find any leak from any of the couplings of the hoses. A. If that's what they say." (T.72.22) "Q. I want you to assume that the evidence of the experts is that the machine, the breaker feeder machine hydraulic system, can only have pressure in the hoses that are attached to the bulkhead when a button on the pendant control is depressed. Can you make that assumption for me? A. If that's what they say, I don't know. Q. I secondly want you to assume that the pressure only remains on as long as the button is depressed. Can you make that assumption? A. If that's what the expert says, yes. Q. Did you, during the time that you were looking at the wet cable and removing the blue rag with your left hand, depress any button on the pendant control? A. From recollection, no." (T.73.10) "Q. I put to you that the injury that you suffered on 1 June 2014 at the coal panel at the feeder-breaker, when you were in or around the feeder-breaker, did not occur the way that you have described. A. Well, I'm telling you it did." (T.74.29)
The first defendant relied upon two evidentiary statements of Mathew Piscionieri, dated 18 October 2017 and 13 August 2018 (Courtbook pp147-157; 423-427) and his evidence at trial (T.91-T.97).
Mr Piscionieri had the role of Health Safety and Training Manager at Ulan West underground mine. He graduated in 1998 with a Diploma of Occupational Hazard Management. He had been in a fulltime health and safety role since 1996. In his role with the first defendant, he was responsible for the oversight of the mine's health and safety management system and the training, competency and management system. This included supervising the quality of incident investigations, workers' fitness for work, injury management and rehabilitation and training.
Trade Services supplied labour hire services to the first defendant during 2014. The first defendant engaged Trade Services to provide the services under a purchase order arrangement as and when labour hire services were required at the mine.
In early April 2014, Trade Services nominated Mr Smith to provide services of an underground electrician at the mine. Trade Services nominated Mr Smith through the Induction Approval Process, which required the vendor to supply all necessary information for the first defendant to determine whether the worker was suitable for the role.
In addition to a description of the nominees' relevant skills and experience, the Induction Approval application must contain a medical assessment report which is known as an "Order 41 Medical". In order for the Order 41 Medical to be acceptable, it must have been obtained in the past three years.
The first defendant relied on the Order 41 Medical to understand whether the prospective worker is:

fully able to carry out the required tasks at the mine without modification or under a medical condition management plan;
partially able to carry out the required tasks at the mine and requires modification of duties due to existing injuries or disabilities; or
unable to carry out the required task and is unsuitable to work at the mine.

Mr Smith's induction approval application indicated that he was a very experienced underground electrician, who had obtained a wide range of competencies in tasks that might be required of an underground electrician. His medical assessment indicated that he was in good health and specifically that he had unconditional vision and hearing and, accordingly, the first defendant would not be required to make any modification to the duties that he would be able to perform.
On 23 April 2014, the first defendant accepted the nomination of Mr Smith by approving the Induction Approval application. This is done by the task co-ordinator and the operations manager or delegate signing the front page of the Induction Approval form. On or about 24 April 2014, Mr Smith attended the first defendant's formal induction course. This involved a surface induction and then an underground specific induction.
The first defendant's formal induction course included training and awareness of its health and safety management system which comprised its key management plans, emergency response procedures, fitness for work and hazard identification and control and other key areas of training and safety.
In order to be appointed and authorised to work as an electrical trades person at the mine, individuals must complete specific training and competency requirements to meet the first defendant's Electrical Engineering Management Plan. Typically, the authorisation process takes one full day, however, this can be completed in a shorter period based on the individual's prior learning competencies. Mr Smith completed the authorisation process on 24 April 2014.
If the plaintiff's full medical history and condition were provided to the first defendant, Mr Piscionieri did not believe that the first defendant would have accepted him as a suitable candidate for the underground electrician role as his injuries and disabilities would have prevented him from working safely at the mine.
In his opinion, an individual would present a major risk to himself and others working in and around heavy machinery if that person suffered from epilepsy and uncontrolled seizures. If a worker suffered an epileptic fit or an episode while performing electrical work or interacting with mobile or fixed plant, there could be fatal consequences.
An electrician suffering from partial blindness and poor spatial awareness would present an increased risk to himself and others. Mr Piscionieri stated that spatial awareness is a critical element of working in any heavy industrial environment, especially an underground mine. An individual with poor spatial awareness, would not appreciate risks and hazards that would be identified by a person who was alert and maintaining an awareness of their work environment. These hazards include working in a dynamic underground environment in which there are a number of interactions between individuals, machines and fixed plant.
Mr Piscionieri stated that a worker suffering from poor concentration would also present an increased risk to himself and others. Underground electricians typically worked ten to twelve hour shifts and, in order to carry out the required tasks in a safe manner, were expected to maintain a high level of concentration throughout the shift. He considered that significant levels of concentration were specifically required when working in and around electrical equipment in order to identify hazards or potential risk and maintain the mine's safety standard.

Tram mode is used when the Feeder Breaker is being relocated along the gate road. While the Feeder Breaker is in Tram mode, the coal transfer components, which include the conveyor belt and the crusher, are disabled.
Sequence mode is used when the Feeder Breaker is in coal cutting condition. That is normal operation. In this mode, an operator can only lower the belt lifter as the belt raise (which requires a greater amount of hydraulic pressure) is disabled.
Set up mode is used to set up the conveyor by aligning the tracking of the conveyor belt but does not allow tramming. In this mode, there is no restriction on the hydraulic functions of the Feeder Breaker.

Each of the modes is selected by turning a switch on a control panel which is located on the walkway side of the Feeder Breaker. At the time of the plaintiff's accident, the Feeder Breaker was in normal operation and therefore should have been set to Sequence mode.
On the non-walkway side of the Feeder Breaker, there is a hydraulic pump that supplies hydraulic pressure to the belt raise. When the Feeder Breaker is set to either Set up mode or Sequence mode, the pump is activated and there is pressure available for use.
In Sequence mode, the only function that is available to the discharge end is the Belt Lift Lower. In this mode, pressure is only released when the "Belt Lift Lower" button is activated on a pendant remote that is generally placed near the bulkhead on the walkway side of the Feeder Breaker. The hose that provides high pressure oil to the Belt Lift Lower function is located on the bottom row and on the walkway side of the bulkhead.
The Feeder Breaker is designed in this way to prevent movement of the Belt Lift function while the Feeder Breaker is in operation. In order for the Belt Lift to lower, an operator must hold down the button on the pendant remote for the Belt Lift Lower to operate and the hoses to become pressurised.
When the correct pendant remote button is being held down, hydraulic fluid flows through the hoses which supply pressure to enable the Belt Lifter to move downwards. Unless this occurs, no hydraulic fluid at any pressure would be moving in the hoses. Before any button on the pendant remote is operated, operators are required to ensure that there are no personnel within the proximity of the Belt Lifter.
It is policy at the mine that all personnel wear PPE which includes gloves. It is permitted for workers to remove their gloves to improve dexterity. Before this occurs, workers are required to complete a Take 5 (Personal Risk Assessment). These procedures have been implemented to ensure that before the protective equipment is removed, employees are prompted to consider their surroundings and the potential hazards that may exist. Mr Maynard could see no reason why an electrician would need to remove his gloves in order to clean a Feeder Breaker.

Initial Inspection 1 June 2014

At approximately 5.30pm on 1 June 2014, Mr Maynard arrived at the mine. He attended the site of the plaintiff's accident with Grant Harrison (the Development Mechanical Engineer Co-ordinator at Ulan) and a panel supervisor. He observed that the Feeder Breaker was demarcated and an isolation zone had been established. The isolation zone was marked with red and white "no road" tape. The purpose of the isolation zone was to preserve the site of an accident. Any unauthorised access to an isolation zone by any employee and/or contractor at the mine was prohibited.
Mr Maynard observed a blue rag that had been placed between the bulkhead and the protective guards for the hose fitting. He removed the rag. It was dry. He could not understand why the rag had been placed in this position. However, to ensure that the state of the Feeder Breaker was not altered before a formal inspection with Mr Koppe, he returned the blue rag to its original position.
He gave evidence that it was not normal practice for a rag to be placed on or near any equipment at the mine for any purpose. If a leak were detected on any line or hose on any piece of equipment, whoever first identified the leak was responsible to stop and either repair the leak themselves if they were a mechanical tradesman or if they were not qualified to repair the leak, to arrange for someone that was qualified to immediately repair it. This was referred to at the mine as the "Hydraulic Hose Inspection Tarp" procedure.
Mr Maynard observed only a small amount of oil around the fitting of hose 2, which is the hose that operates the belt raise function. Because of the amount of oil around the fitting and the oil that he observed on the fitting, this appeared to him to be a low release of oil only. Mr Maynard took nine photographs of the Feeder Breaker.
During his inspection of the Feeder Breaker, Mr Maynard did not alter the function setting on it. He concluded his inspection at approximately 6pm and the Feeder Breaker was left isolated.

Subsequent inspection - 2 June 2014

At approximately 1pm on 2 June 2014, Mr Koppe and Mr Maynard inspected the Feeder Breaker. At Mr Koppe's direction, Mr Maynard took 18 photographs on this occasion.
After approximately five minutes of visual inspection, Mr Koppe and Mr Maynard directed an operator to power up the Feeder Breaker. During the initial power up, neither Mr Koppe nor Mr Maynard could identify any leak point. They then instructed the operator to perform a series of function tests of hoses connected to the bulkhead, which included Belt Raise, Belt Lower, Slew Left and Slew Right. Once again, neither Mr Koppe nor Mr Maynard could identify a leak point in the line. Mr Koppe and Mr Maynard then tried to recreate the circumstances leading up to the plaintiff's accident, however, they were not able to do this for the following reasons:

there was no visible leak in any of the four hoses;
the blue rag was dry shortly after the plaintiff's accident and the rag did not have any major evidence of oil staining;
the area around the alleged release point was dusty and not wet with oil which indicated that there had not been a spray of oil at the location of the plaintiff's accident;
there was no evidence of any sprayed oil on the rear guards around the hose connections; and
the Feeder Breaker was operational and should have been in sequence mode and therefore there would not have been any movement of oil in the hoses without an operator selecting the "Belt Lift Lower" function on the pendant remote.

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

Testing - 4 June 2017

On 4 June 2017, Mr Koppe and Mr Maynard attended the Pirtek testing facility at Mudgee in order to test the four hoses and connections that had been removed from the Feeder Breaker. Pirtek specialised in the sale and testing of fluid transfer products and was a preferred supplier to the mine and other Glencore mine sites.
Each hose was tested individually and no leak was observed or recorded in any of the four hoses at either 310 bar or 400 bar.
The hoses were then tested with the associated fittings that had been removed from the Feeder Breaker. This was performed by looping the hoses in a test bench. Pressure was then applied to the hose and a gauge in the circuit indicated the pressure at the time of testing. A minor leak was observed on the taper joint fitting. This leak was not considered to be relevant to the plaintiff's injury as it was on the opposite side of the bulkhead to the area in which the plaintiff sustained his injury.
In addition, the source of the leak was from the fitting and not the hose. In Mr Maynard's opinion, the leak was created when the seal around the fitting had been broken when it had been removed from the Feeder Breaker as no indication of leaking fluid was identified in that area during the two incident scene inspections that he carried out on 1 June or 2 June 2014 or during the removal of the fittings on 2 June 2014. At the time of testing at the Pirtek testing facility, no replacement sealant had been applied. During the testing, Mr Maynard did not observe anything unusual about the hoses or the connections.

Outcome of investigation and testing

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

there should not have been any hydraulic oil travelling through the hoses at any pressure as the Feeder Breaker was reported to be in Sequence mode and no button was being pressed on the pendant remote;
in order for there to be pressure in the hoses, the mode would have been required to have been adjusted and the applicable button on the pendant remote, which corresponded with the mode that was selected, must have been pressed and held down;
during his inspections and throughout testing, there was no leak identified in any of the hoses that were fitted to the Feeder Breaker at the time of the plaintiff's accident; and
the only leak that was observed during testing was a slow release of oil from a connection that was located on the opposite side of the bulkhead to that area in which the plaintiff sustained his injury.

As indicated, one of the evidentiary statements of 10 August 2018, prepared by Mr Maynard, related to the operation of a Feeder Breaker, as shown on a CD. Mr Maynard explained why the Feeder Breaker involved in this incident was not used: "3 At the request of Kerri Thomas, partner of Sparke Helmore Lawyers, I arranged for an inspection of a Feeder Breaker currently located within the Mine to take place. 4 This is not the same machine that is the subject of these legal proceedings (being Feeder Breaker 003), however it is the same make and model of machine that the Plaintiff alleges was the cause of his injuries, the subject of these proceedings. Feeder Breaker 003 is off site undergoing overhaul and accordingly was not available for inspection. … 5 Ms Thomas requested that I obtain video footage of the Feeder Breaker and that I provide some commentary explaining the key components of the machine and how it works."
That process was carried out and the CD was annexed to the evidentiary statement.
In his third evidentiary statement, Mr Maynard responded to the Amended Evidentiary Statement of the plaintiff and to a Supplementary Expert's Report from David Cockbain (the Supplementary Cockbain Report).
Mr Maynard said that the plaintiff was mistaken when he said that he was a "yellow hat" meaning that he was unable to work unsupervised. This was because although other mines used a colour coding system to distinguish workers, at the time of the accident this mine did not.
Mr Maynard explained the meaning of working "unsupervised' in this mine. That explanation was in line with that provided by Mr Piscionieri. He said that most workers should have the required knowledge of safety evacuation proceedings relevant to this mine within eight or nine weeks of starting at the mine. He went on to say: "8 Workers who are working under supervision are required to be working in the line of sight of a more experienced worker, which, when they are underground, may mean workers can be up to 100 metres apart (noting underground workers are required to wear and activate miner's lamps, affixed to their hard hats)."
Mr Maynard then responded to the following: "Whether, in view of the photographic evidence, Mr Maynard's comments regarding the dryness of the rag are likely to be correct given the delay between the time of the incident and Mr Maynard's inspection 11 I note that the Plaintiff says at paragraph 38 of his Amended Statement that the incident occurred at approximately 1500 hours. I attended the accident site at approximately 1730 hours, i.e. some 2.5 to 3 hours after the incident. I also note that at paragraph 71 (e) that the Plaintiff alleges that at or about 1500 hours (i.e. at the time of the accident), the blue rag was "soaked in oil". I also note Mr Cockbain's comment at paragraph 15 that it is likely that any hydraulic oil would have been absorbed into the rag, leaving no external signs of wetness. 12 I also note Mr Cockbain's comments that I "knowingly and deliberately interfered with a preserved incident site"."
Mr Maynard was not working on the day of the incident but was informed at his home by the Control Room Operator that this had occurred. Mr Maynard went to the mine and observed that the accident scene and the Feeder Breaker had been cordoned off with tape. Mr Maynard's evidentiary statement then continued: "15 I proceeded past the blue tape to undertake an inspection of the area noted as the source of a fluid release. Present with me were Adriano Lopes and Grant Harrison, however neither of them touched the rag. Before I moved the rag, I took sequential photographs of the alleged incident scene. Those photographs then formed part of the contemporaneous record documenting the accident scene. 16 In order to inspect the area from which the fluid had allegedly been released required me to move the blue rag, because the rag was obstructing the manifold area and was preventing me inspecting the hoses for a mode of failure. 17 At the time I removed the rag from the manifold area, it was not wet with oil; there were areas of staining on the rag. Hydraulic oil does not evaporate, nor is a significant quantity of it capable of being absorbed into a rag. The expression "soaked" indicates to me a significant volume of fluid has been discharged; evidence to suggest that any significant fluid had been discharged had occurred was not seen by me. The rag still had evidence of stone dust and coal dust on it. 18 Exhibited to me … are photographs taken on 1 August 2018 of the blue rag which was present at the accident site, and was removed by me from the accident site. This has been stored in a plastic bag in my office since shortly after the subject investigation concluded. The rag does not have any oily residue, not does it smell of oil or hydraulic fluid."
Mr Maynard then responded to this observation in the Supplementary Cockbain report: "You will note Mr Maynard's assertion that the wearing of gloves was mandatory 20 At no stage have I asserted that the wearing of gloves was or is mandatory. It is not mandatory for workers to wear gloves; instead, it is mandatory that workers carry gloves at all time they are underground as part of their personal protective equipment (PPE). The Mine's PPE policy which was in place in 2014 stipulates that workers must carry and wear gloves where there is a risk of hand injury and hand protection (i.e. gloves) would prevent or mitigate the risk of such injury. 21 Workers are (and were as at 1 June 2014) able to access PPE (including gloves) via a vending machine located immediately inside the muster room. Workers were able to access PPE in those vending machines either by using a "dongle" or fob provided to them, or by swiping a "smart card". Details of the PPE obtained are then invoiced back to the workers'' employers. 22 If a worker cannot access PPE via the vending machine, he/she can request the supervisor obtain it for the worker, or the worker can obtain PPE from the store room. PPE may also available in the underground crib rooms. 23 The Plaintiff would have either been able to access PPE by using a fob or his smart card. If for any reason he could not obtain the PPE in that way, he was able to obtain it using the other methods discussed above."
Mr Maynard responded to the following contained in the Supplementary Cockbain report: "Whether anything otherwise referred to in Mr Maynard's evidentiary statement causes you to alter the opinions expressed in the original report? 24 I note at paragraph 21 of his Supplementary Report that Mr Cockbain reports "[I]t is the case that a person unbeknown to Mr Maynard may have adjusted the fittings after the Plaintiff's incident and before Mr Maynard arrived". Of the crew of 9 which was working with the Plaintiff at the time of this incident, Dave Williams was the only fitter in that work crew, and the only member of the crew who was qualified and adequately skilled to make any changes to the hydraulic system of the Breaker Feeder. 25 I have examined the log in and log out records on 1 June 2014 to determine the crew members' movements that day. Dave Williams returned above ground at approximately 1515 hours and was absent from the pit for approximately 1.5 hours, returning underground at about 1645 hours. 26 There is no record of anyone being present underground in the vicinity of the accident site who was a qualified fitter or anyone who was otherwise qualified or adequately skilled to make any changes, alterations or repairs to the Breaker Feeder between the time Dave Williams left the scene, and the time I attended the scene at a time between 1730 and 1800. Trade reports entered by Dave Williams do not indicate he carried out any work activity on the feeder post incident reporting and prior to me entering the scene."
Mr Maynard gave evidence at trial and was cross-examined. He gave this evidence concerning the blue rag: "Q. In your investigation of this matter, did you come into possession of what is called the blue rag? A. Yes sir I did. … Q. ln what circumstances did you come into possession of this rag? A. It was first sighted by me on 1 June when I attended underground, 1 June 2014 when I attended underground, and then following on 2 June on an investigation with Wally Koppe, the resource regulator inspector, was where that rag was - I took that - possession of that rag at that point. HIS HONOUR: Q. I think on the very first time you saw it on 1 June you removed it, did you not, and then replaced it? A. That's correct, your Honour, yes. SCOTT: Q. Is it your evidence that prior to removing it you photographed its position? A. That's correct, yeah." (T.101.24)
The blue rag became Exhibit 5.
The CD showing how a Feeder Breaker operated was shown in the court. Although the Feeder Breaker was from the same manufacturer, there were some differences between it and the Feeder Breaker involved in the incident. Particular focus was given to the pendant control and its attached umbilical cord. The four hoses on the right side of the Feeder Breaker were identified as containing hydraulic oil and controlling the function of lifting and lowering for the Feeder Breaker.
In the course of showing the CD, the following exchange took place in relation to what happens when a shuttle car containing coal arrives at the Feeder Breaker: "Q. That's the shuttle car arriving at the feeder-breaker? A. That's correct. Q. The purpose of that is to drop coal into the far end of the feeder-breaker? A. Correct, it drops coal from the shutter car into the feeder-breaker hopper and the feeder-- Q. What happens to the coal when it's in the hopper? A. When the shuttle car stops, the shuttle car operator starts the feeder in sequence mode to allow the conveyor chain to start as well as the crusher to, to rotate. He then feeds the coal into the hopper, and the coal's transferred through the conveyor chain up through the crusher onto the conveyor belt." (T.104.45-.6)
In relation to Mr Maynard's first evidentiary statement, the following evidence was given: "Q. If you go to paragraph 56 for me, and if you have particular regard to paragraph 56(3) for me, where you say, "The area around the alleged release point was dusty and not wet with oil, which indicated there had not been a spray of oil in the location of Mr Smith's accident." In giving that statement to his Honour, can you tell his Honour the basis upon which you make that statement? A. When there is a release of a oil, a fluid, if there is a surface near it or around it, the oil is, is deposited on that surface. Given that oil is viscous, it sticks to the surface. At the time my recollection is that when I looked in the area of, of the alleged release, there was no oil on the inside of the cover that would indicate a significant oil release. It was still dirty, dusty, dry. It is just about when there is an oil release, the oil is deposited on the surface and it sticks there, because it is a viscous product." (T.105.39)
Mr Maynard was cross-examined by senior counsel for the plaintiff. The cross-examiner was critical of the failure of Mr Maynard to record each place where he saw oil on the Feeder Breaker. In the course of that cross-examination, the following evidence was given: "Q. So as far as you're concerned at the moment, the only record of exactly what oil was there is to be found in Mr Koppe's notes. Is that correct? A. No, it's not. The records that I had on the statement, sir, had photos that I took, and the photos indicate me pointing to oil in areas. Albeit there was no notes, there's photo evidence that I did indicate there was oil in, in an area underneath. Q. Is this statement accurate, in the sense that the only references to the appearance of oil are in 56(3) and 49? Is that correct? A. The statement says - is, is - that's correct, what's in the statement, yes. Q. Yes, but there were many other positions clearly set out in Mr Koppe's notes where he described the appearance of oil and had you take a photograph of it. That's correct, isn't it? A. That is correct. My recollection is approximately two others, yes. Q. Did you dispute what he was saying in this context, when he was asking you to take photos of oil? A. No, sir. Q. Did you say he was wrong? A. No, sir." (T.107.46)
Mr Maynard was asked questions in respect of p361 of the Courtbook which contained a photograph which showed the hoses and fittings and the "emergency" button: "Q. Could you come to page 361 please? A. Yes. Q. This was one of the photos which you took on 2 June, wasn't it? A. As far as I recall, yes. … Q. It shows, does it not, immediately to the right of the sign that says "Emergency Stop", it shows first of all the - well, it doesn't show. It shows the flexible hoses which are sleeved. A. Yes, sir. Q. That's correct, isn't it? A. Yes, it is. Q. And then further to the right you have the fittings. A. Yes, that's correct. Q. Am I straight in using those two descriptions? A. That's fine, I understand the comment, yeah. Q. Then at the end of the fittings there's the blue rag? A. Yes. Q. On top and to the side of the bulkhead into which the fittings travel, there are two pieces of polyurethane-- A. Yes. Q. -- red in colour? A. Yes, sir. Q. One vertical, one horizontal? A. Correct." (T.108.34-109.18)
Mr Maynard gave evidence concerning guarding on this part of the Feeder Breaker: "Q. Now, there was no sleeving on the fittings, was there? A. That's correct. Q. And the pieces of polyurethane did not prevent access to the area of the fittings, that's correct too, isn't it? A. That's correct. Q. In fact, you, yourself, established that by putting your hand in the gap and removing the blue rag on 1 June? A. That's correct. It's large enough to fit a hand in, that's correct. Q. So the polyurethane guarding wasn't effective to prevent somebody from being struck by a spurt of hydraulic oil, if it occurred, from the fittings, that's correct, isn't it? A. That depends entirely where the hand is situated. Q. If the hand was put into that gap to remove the blue rag, then there was no guarding preventing injury by a spurt of oil, that's-- A. To -- Q. -- correct, isn't it? A. To remove the blue rag? That's correct. Q. Yes. A. But it's not a normal place of work so it's not intended to be guarded. (Emphasis added) … Q. Did you organise the further guarding of this area on this machine? A. There was no further guarding, no. Q. No, but it was put on afterwards, wasn't it? A. No, sir. Q. Mr Koppe asked you to put some further guarding on this machine after the accident, didn't he? A. Extended guarding and removal of fittings was carried out. So, extended. … Q. I'm sorry, I'll make it clear. Extended polyurethane? A. My recollection is we were asked to and that was done, that's correct." (T.110.6-111.9)
On this issue, further evidence was given: "Q. After the inspection, he asked you-- A. Yes, sir. Q. --to do some work in this area-- A. Yes, he did. Q. --relating to guarding, didn't he? A. Yes, he - yes, he did. Q. And what you did or what the mine did in relation to that advice or order of Mr Koppe was to sleeve the fitting area, wasn't it? A. The fitting area was reduced in length. Q. I didn't ask you that. I asked you whether the mine sleeved the fitting area at the request of Mr Koppe. A. I'll have to say I honestly don't recall the fittings being sleeved. I don't recall that, the fittings themselves. Q. You were there and, in fact, took this video or CD and it was clear on that occasion, on the second feeder-breaker, that you can see that the fitting area is now sleeved, that's correct, isn't it? A. Without seeing the video again - I, I know the fittings were shorting so a sleeve is now visible because fittings were removed." (T.111.23)
Mr Maynard was shown two photographs, which were screenshots from the CD which depicted the other Feeder Breaker, and asked questions as follows: "Q. They definitely show the fittings sleeved, don't they? A. I'll be honest, what I can see is the quick connect couplings have been removed but the fittings themselves not sleeved, no, I don't see that. Q. In the photo I showed you, page 361, the fittings clearly aren't sleeved, are they? A. That's correct. Q. And they're yellow and orange in colour? A. That's correct. Q. They're no longer visible on those screenshots, are they? A. The different feeder. So it's a, it's a different feeder-breaker. They won't be visible, it may not be on those hoses, it's a different feeder-breaker." (T.112.3) "Q. The fittings that you can see on the photograph at page 361-- A. Correct. Q. --are not sleeved, are they? A. The fittings themselves? No, sir. Q. Can you see on those screenshots of your video anything like a fitting which is yellow and orange in colour? A. No, I cannot. Q. And that's because they're sleeved, isn't that right? A. It's because the hose OEM may be different and the hose is not the OEM of the feeder-breaker. So what I can visually see with the quality of the photo is a level of fittings at the bulkhead that are now much shorter. Q. Which photo are you talking about? A. The X and Y photo from Mr Koppe's statement. Q. Right, the screenshots? A. Yes, sir, and they are - because the fitting length has been reduced significantly by removal of the quick connect couplings, it only makes the JIC and NPT fitting very short. I'll say approximately 25 millimetres to 30 at, at the most because the fittings have been reduced in length by removal of their quick connect couplings under direction." (T.112.37-T.113.10) "Q. Do you know when the work was done on the feeder-breaker the subject of the video? A. I don't exactly, sir, no. Q. Because you reported to Mr Koppe, didn't you, that you performed the work that he advised on all three-- A. That's correct. Q. --feeder-breakers-- A. That's correct, we did. Q. --that were in the mine? A. That's correct Q. You said the mine arranged the work. Did you have anything to do with the actual carrying out of the work? A. Not physically, no. I organise but I don't carry out any activity myself, no. Q. Well, who did the work? A. I can't give you a name. I can give you a position. It would be a mechanical tradesperson would have done the work. Q. A mechanical tradesperson from the mine? A. Correct. Q. So you did it internally? A. That's correct." (T.113.30-T.114.6)
Mr Maynard was asked questions about the electrician, Mr Walker. He said that he had not seen him or heard from him for some time. Mr Maynard gave this evidence: "Q. Do you know where he is? A. Not at the moment, sir, no. Q. Have you tried to find out? A. No, I haven't. Q. Did you go to all of the members of this shift and ask them, in specific terms, whether they had cured the leak that occasioned Mr Smith's accident? A. No, sir, I don't recall doing that, no. Q. You didn't make any inquiry of them? A. Not of the individuals, as far as I can recall, no. We relied on statements from those persons. Q. What statements from those persons? A. From the incident kit, sir. Q. What, the handwritten-- A. Yes, sir. Q. The little handwritten statements? A. Yes. Q. But didn't you go around asking these people after the accident whether anybody had found the leak and tightened the fitting? A. I don't recall asking those people post 2 June, no, I don't. Q. Did you ask them on 2 June? A. No. No, sir, because at that point, I still thought there may have been a leak." (T.115.1)
Mr Maynard was asked questions about Exhibit B, being the two page document from the senior inspector, Mr Morgan, which was placed on the colliery noticeboard. "Q. Have you seen this before? A. I do recall seeing it, yes, sir. Q. It was posted up on the notice board for a minimum of 14 days, wasn't it? A. The period, I'm not sure. It was certainly notice - on the notice board, the period I'm not aware of but, yes. Q. Did you see it when it was sent by Mr Morgan in the first instance to the mine? A. Most probably not the first instance, sir, because it would have been issued to Dennis Wallace, being the mining engineering manager of the mines. Q. Did he show it to you? A. I can't recall but I would assume he would. He generally passed information on, yes. Q. This was sent in the first instance, or handed over, by Mr Morgan for the mine's approval, bearing in mind that it was going to be put up on the noticeboard. That's right, isn't it? A. That's correct. That's the process." (T.116.11) "Q. So the mine agreed that this document should be put up on the noticeboard? A. That's correct. Q. It focuses on anyone on the shift who has found a leak and tightened the fitting up prior to the site being isolated. A. Mm-hmm. Q. So you agreed to that document being put up on the noticeboard? A. The process is that, and yes it's part of the process, so it happens. I agree with the process, yes. Q. You were asking the people on the shift whether any of them had found a leak and tightened the fitting up, correct? A. I personally didn't ask. The document did ask them, correct, or gives that indication, that if anyone did have a knowledge, they should come forward. Q. Did anyone come forward to you? A. No sir." (T.116.48-T.117.15)
Mr Maynard gave evidence as to the guarding/protective measures which were in place at the time of the incident. "Q. I just want to make it clear, you say the protective measures that are fitted to the equipment at the mine and were fitted at the time of Mr Smith's accident include Kevlar sleeves over all hoses. HIS HONOUR: Over all hoses, yes. WEBB: Yes. WITNESS: That's correct. WEBB: Q. What you mean by hoses are the flexible hoses which we can see in the contemporaneous photographs are covered by Kevlar sleeves? A. The rubber section hose is covered, yes sir. Q. The hoses are the flexible hoses, not the fixed fittings, that's correct isn't it? A. The hoses have a fixed length on them that cannot be covered, so there's a period of a hose at the end that cannot be covered and it's part of the crimping of the hose. So the fitting has to be exposed to enable you to assemble it, the fittings of the hose. Q. You make that clear where you say it is practical to do so, but just to establish the point again - bear with me - that does not include Kevlar sleeves over the fittings does it? A. That's correct." (T.117.26)
Further questions were then asked concerning Mr Walker: "Q. Just coming back to Mr Walker for a moment, do you know whether anyone from the mine has attempted to find Mr Walker? A. I don't know. Q. Have you ever seen anything from him apart from the handwritten note he made on the day of the accident or shortly after? A. Yes. He did work back at the mine for a period. Q. I'm not sure that was the question. A. Okay, sorry. You asked me if I'd seen him, the answer is yes, I have seen him. Q. So you saw him afterwards, you don't remember how long? A. Don't remember how long the period, no. Q. You don't remember whether you've seen any statement from him or document from him, apart from his handwritten note? A. I have not seen any other statement apart from his handwritten note, no." (T.119.8)
Mr Adriano Lopes gave evidence in the proceedings. It comprised two evidentiary statements, dated 22 May 2018 (Courtbook pp364, 411-416) and 10 August 2018. He also gave evidence at the trial (T.139-T.152).
Mr Lopes was the Shift Deputy in charge of the nine man crew, which included the plaintiff, on 1 June 2014. He provided a short statement, dated 22 May 2018, as follows: "4 In relation to 1 June 2014, I remember that I didn't see the incident but I was the supervisor on duty. 5 I remember seeing Steven at the crib room. This is where I saw Steve with his injury. 6 At this time Steve approached me and told me he had suffered an injury and thought it was a high pressure fluid injection. 7 Steve then showed me his hand and I believe it appeared as though he sustained a fluid injection. 8 I then made appropriate arrangements, reported the matter and arranged for someone to call an ambulance."
In his second statement, Mr Lopes said: "5 I understand that the plaintiff was cleaning the Breaker Feeder when the incident allegedly occurred. I am unable to recall who provided him with instructions to clean the machine. The usual way in which the Breaker Feeder would be cleaned is by using a rag. Sometimes a paintbrush may be used on small components. I was first informed of the incident by the plaintiff. I was in the crib room when he came in and told me that he thought he had sustained a fluid injection while he was cleaning the Feeder Breaker. I am unable to recall if he was holding anything when he came into the crib room. …. 7 I am unable to recall if he was carrying gloves. Gloves (and other PPE) are provided above ground in the muster room. It is standard practice for the crew to have spare gloves in their crib bags which they take underground with them in case the gloves are torn. I invariably have spare gloves in my crib bag. If someone in the crew did not have gloves or other PPE, I would take steps to locate and provide the PPE and if that was not possible, I would send them back to the surface to get required PPE. … 9 I then spoke with the fitter in the crew, Dave Williams, and asked Dave to arrange to drive the plaintiff to the surface which he did. 10 I then located red and white tape and an information tag in the crib room and proceeded to the Breaker Feeder to place that tape and the information tag around the Breaker Feeder in order to isolate it and prevent entry or access. I am unable to recall if I barricaded the machine by myself or if anyone else assisted with the task. 11 Once the Breaker Feeder was isolated and shut down, production and work ceased. I asked the crew to gather in the crib room while we stood by for further instructions from the under manager. I am now unable to recall whether the remaining crew then went to the surface, I assume they did. 12 I remained underground until Clint Maynard and the others arrived at the crib room, which I estimate was some time between 1730 and 1800 hours. Clint and the others then proceeded to the Breaker Feeder. I accompanied them but remained some distance from the Breaker Feeder while they started the investigation. I left shortly afterwards, leaving them at the incident scene. … 14 If any hoses on the Breaker Feeder needed to be changed or fixed, this would require a fitter. Dave Williams was the only fitter in the crew and he accompanied the plaintiff to the surface after the incident. There was no other fitter near the incident site or in the crew who was able to repair any hose on the Breaker Feeder. 15 I am confident in saying that between the time I isolated the Breaker Feeder with tape and the time that Clint Maynard attended it, no-one else touched the Breaker Feeder."
Annexed to his second evidentiary statement were the first two pages of the first defendant's Incident Report and Investigation. The writing on those first two pages was that of Mr Lopes. Under the heading "Detailed Description of the Incident", the following was written: "As described by G Smith - during routine inspection on panel Breaker Feeder it was noticed that hyd oil was dripping from hydraulic hoses near E-.. A rag was placed on top of hyd. fitting. When pulled rag away using his left hand felt a sting to backside of hand and he noticed hyd oil being ejected from fittings."
Mr Lopes said that he had been employed as a Panel Deputy for the first defendant for two years by the time of this incident. As a Panel Deputy, he was allocated to a particular panel within the mine. He had continued in that occupation after he left the employ of the first defendant.
In cross-examination, Mr Lopes was taken to the photo on page 361 of the Courtbook and asked questions about what was there depicted. His evidence conformed with that of other witnesses. In the course of the shift before the plaintiff's injury, Mr Lopes had walked past the Feeder Breaker, but could not recall examining it closely and in particular could not recall observing the hoses, the fittings and the blue rag. He agreed that he had been told about the rag before completing the first two pages of the Incident Report and Investigation.
Under cross-examination, Mr Lopes gave the following evidence: "Q. What did you do after Mr Smith had been taken away in the transport? A. I went to the, to the, to the scene of the incident and I have - I put barriers, no road barriers in it with information tags saying, "No access pending investigation" or something similar to those words."
It took him between 10 and 20 minutes to perform that work. He could not recall whether he saw the blue rag there at that time (T.150.4). He could not recall how Mr Williams and Mr Walker were made aware of the accident but thought he may have told them.
He gave the following evidence concerning Mr Walker: "Q. Have you seen Mr Walker recently? A. No, I haven't. Q. When was the last time you saw him, do you remember? A. I don't remember exactly, but the time I was refuelling my car a few days after - a few years after - and yeah, I seen him in the petrol station. Q. Had he left Ulan at that stage? A. Sorry, I don't know if that was the last time I've seen him since the incident, no. Q. When was the last time you actually saw him? A. Possibly on the following day. Q. But the incident when you were filling your car-- A. Yeah. Q. --when did that occur, before or after the accident? A. A few days after - a few, few years after that incident. Q. A few years after? A. Yes. Q. You hadn't seen him much before that, a few years later? A. No I hadn't seen him much, no. Q. Have you seen him recently? A. No, no I haven't." (T.152.7)
Mr David Williams, the fitter in the plaintiff's crew, provided an evidentiary statement, dated 19 August 2018 (Courtbook pp462-468) and gave evidence at trial (T.122-T.134).
His evidentiary statement had attached to it a contemporaneous note by him made on 1 June 2014 as follows: "A/N shift 1/6/14. Checked oil level and temp on Feeder Breaker 003 … Approx. 2.30PM I was with Steve Smith @ the Feeder. He was cleaning around machine control and display. I left him there and went to the Miner @ about 3.10PM while walking up "A" heading The Deputy informed me that Steve Smith had had Fluid injection."
In his evidentiary statement, Mr Williams said that he remembered the incident involving the plaintiff, which occurred on 1 June 2014. He confirmed that if any member of the crew forgot to take gloves underground, or if replacement gloves were needed while working underground, there was a supply of gloves available in the crib rooms. In relation to the Feeder Breaker, he said: "9 During my shift on 1 June 2014 I undertook an inspection of the machine. That was part of my role as the only fitter in the crew. This included a visual inspection of the control panel to check oil pressure, temperature etc. During that shift, individual crew members were allocated to their own area/jobs to perform e.g. miner, shuttle car etc. As such, they were not all working in the vicinity of the Feeder Breaker. 10 I am aware that the plaintiff alleges that he sustained his injury from a high pressure fluid release from the hoses going into the bulkhead, which is immediately to the right of the control panel. 11 I am unable to recall seeing a rag on or near the hoses when I undertook my inspection. 12 I was in the plaintiff's vicinity in the immediate lead up to the incident. I recall that he was cleaning the feeder breaker. This was not an unusual task for someone to be undertaking, as the feeder breaker becomes very dirty and dusty with coal dust and rock dust. The usual way in which a machine would be cleaned was by using a rag; I assume that is how the plaintiff was cleaning the machine. I cannot recall the colour of any rag he may have been using. Some workers may use a brush to clean the machine; I cannot recall if the plaintiff was using a brush. 13 I recall that the plaintiff was injured around 1510 hours. I was not in the immediate vicinity when the injury happened; I recall that I was with Tony Walker walking down "A" heading when I was told by the deputy that the plaintiff had been hurt. He asked us to go to the crib room and stay with the plaintiff. The decision was made soon after to evacuate the plaintiff to the surface. Tony Walker and I then accompanied the plaintiff to the surface. I recall that as we were driving to the surface, we intercepted the first aid officer who was driving down to meet us. The plaintiff then moved to the vehicle with the First Aid Officer who then took him to the surface. Tony Walker and I proceeded to the Control Room for a camera and returned underground at 16:30. 14 By the time I returned underground, the feeder breaker had been barricaded off and isolated with tape so we did not approach it further. 15 I was underground when Clint Maynard and Grant Harrison arrived to conduct an investigation at 18:30. 16 if any of the hoses on the feeder breaker had been replaced or repaired, a mechanical fitter working under direction from management would normally do that task. 17 I was the only fitter on that crew. Noting that I was above ground from a time shortly after the incident until about 16:30, I was the only fitter who was in the vicinity of the feeder breaker until Clint Maynard arrived. 18 Following the incident, I did not breach the barricade that was in place, nor did I interfere with, alter or otherwise touch the feeder breaker."
Mr Williams gave evidence and was cross-examined. He commenced working for the first defendant as a production fitter, in June 2012 and finished in July 2017.
In cross-examination, Mr Williams agreed that it was part of his duty as a production fitter to do an inspection of the whole area in which his team were working. His evidence was: "Q. Sorry, I didn't mean to mislead you. You'd have the toolbox meeting, then you'd do an immediate inspection of everything, correct? A. I can't say we would do everything in, in order. It would depend on what was happening in the panel, and if there were any problems anywhere else. Like if there was a more demanding problem, if there was an issue with the miner, that would probably - that would be addressed first." (T.125.16)
Mr Williams explained what a "panel" was. It was a term of art used to describe the location where coal was actually being cut. On occasions, that could extend for a few kilometres. In 2014 at Ulan West, there were at least two panels operating at the same time.
In relation to inspecting the Feeder Breaker, Mr Williams' evidence was: "Q. Where did the feeder-breaker come in the line of inspection? A. It would be towards the end, possibly even last. Q. Where did you start normally? A. We'd normally start with either the shuttle car or the miner, because they're both mobile plant and you have to get to those machines when they're still, if you can, to do your general inspections. Like the shuttle car would be tyre pressures. The miner you would go right around and check for hydraulic hoses, whether they're covered correctly. So you would, you would service those machines before you went to the feeder-breaker. Q. Then you'd work your way back to the feeder-breaker? A. Yes. Q. How long would these inspections normally take? A. That depends on the state of the machinery at the time, but I would think generally no more than an hour to get, to get to the feeder-breaker." (T.126.1)
Mr Williams was asked questions about the blue rag: "Q. Did you actually see the blue rag? A. I don't recall seeing the rag. Q. Did you see it at any time? A. Not that I remember, no. Q. You actually later on, when Mr Maynard and I think Mr Harrison, came to do an inspection later in the day, you went down with them but you didn't go close to where they were to the machine. A. I, I recall standing outside the barricade with Clint and Grant inside the barricade. That's all-- Q. So you didn't go adjacent to the-- A. No. Q. --to the feeder-breaker at that point? A. No. … I don't recall seeing it at all. HIS HONOUR: Q. This is the blue rag? A. Yes." (T.127.1)
Mr Williams was asked questions about guards and protective equipment on the Feeder Breaker: "Q. All right. Can I just get exhibit 5. Now, you can see there on exhibit 5, you have already told us that the flexible hoses, which I'm pointing to, adjacent to the emergency stop sign, are sleeved with some material. A. Yes. Q. And then you have to the right of that the fittings which are coloured yellow and orange, to the right of that? That's the -- A. The, the actual hydraulic fittings wouldn't be yellow and orange. The, the hydraulic fittings would be here. That would be part of the sleeving I would, I would think, part of the construction of the hose. Q. Well, they're not sleeved, are they, in this photo which is exhibit 5? A. They're sleeved up to, up to a point. Q. Yes. A. Up to a point. … Q. … But they're unsleeved in this area where there's piping or whatever -- A. I'll agree that -- Q. --you'd like to call it. A. I agree that the fittings themselves are not covered. Q. So in exhibit 5? A. In this one. Q. But they are covered in the two photos A. Yes. Q. --which are 849 and 850. A. Yes." (T.129.44 - T.130.28)
Mr Williams was asked about where he was positioned in relation to the plaintiff: "Q. You said that you remember being in - this is paragraph 12 of your statement - being in the plaintiff's vicinity in the immediate lead up to the incident. Do you remember when it was that you were in his immediate vicinity? A. I think there was somewhere around 2.30 we - I left him, yeah. Q. And he was at that time working cleaning the feeder breaker. A. He was checking, yes, cleaning. Q. You've made some observations about what you can recall and what you can't about that. Where did you go after you left him, do you remember? A. I believe I went to the - back to the miner to do - yeah. Q. Did you stay then in the vicinity of the miner -- A. No, I -- Q. -- up till the time when you had some contact from Mr Lopes? A. No. Tony Walker and I were walking back up A, A heading towards the crib room, when Adriano approached and said Steve had been injured, and he said, "Go to the crib room and stay with him"." (T.131.7) (A heading is a term of art for a roadway formed as coal is cut.)
Mr Williams said that apart from the initial inspection of the Feeder Breaker, he had nothing more to do with it for the rest of the shift. He did not go down to look at the Feeder Breaker but stood outside the barrier tape while Clinton Maynard and Grant Harrison examined the Feeder Breaker.
Mr Williams was asked questions about Tony Walker: "Q. Do you remember Tony Walker? A. The electrician? Yes. Tony and I had worked together for a period of time. Q. Do you remember where he went after the accident? Did he leave Ulan? A. I think he may have gone to Moolarben, which is a mine on the other side of Ulan Road. Q. But close by? Not far away, anyway. A. I don't know where he lived, but I think that's where he was working, yes. Q. When did you last see him, do you remember? A. I haven't seen him since around that time, when he left the mine. HIS HONOUR: Q. Which is - I'm sorry, I've forgotten the earlier answer. When do you say he left the mine, how long ago? A. I can't be certain but I would think it would have been around - not long after the incident, around 2014." (T.132.20)
Mr Williams was asked about his inspection of the Feeder Breaker: "Q. Would you look at your statement please at paragraph 11. You said, "I'm unable to recall seeing a rag on or near the hoses when I undertook my inspection." You're speaking there of the inspection which would have been an hour or more at the beginning of the shift. A. It wouldn't have taken me an hour to inspect the feeder breaker. Q. No, I'm sorry, it's my fault, bad question. You told us about the inspection that you would take of the whole of the area when you came on shift, depending upon whether there was any serious problem that you had to deal with immediately. And I think you said, did you not, that that would take about an hour to do it, starting from the miner and the -- A. Yes, yes. Q. So that's what you're talking about when you use the word "inspection" in paragraph 11, "when I undertook my inspection". A. Yes, that's correct. Q. Did you carry out any other inspection, overall inspection during the shift? A. Of the feeder breaker? Q. Of anything. Did you do any general inspection? A. Well, you're, you're always looking. So I, I - obviously I'd been to the miner, I'd been to the shuttle car. I can't recall what happened after the incident, what we actually did when we came back from getting the camera, where we went, whether we were allocated other duties. I can't. Q. Do you recall whether you went past the feeder-breaker during the rest of the shift? A. The only time I recall going near the feeder-breaker during the rest of the shift was when I was with Grant Harrison and Clint Maynard." (T.132.47-T.133.26)

Expert evidence

Mr Koppe gave expert evidence on behalf of the plaintiff. He qualified as a mechanical engineer at the University of New South Wales. In 1988, he became a NSW Government Inspector of Mechanical Engineering for Mines and ceased that employment in 2015/2016. All in all, he spent 28 years as an Inspector before his retirement. He contributed to a number of investigations, both directly and indirectly related to hydraulic systems at underground coal mines.
Mr Edward Morgan was the Inspector of Coal Mines employed by the Department and Mr Koppe's superior. Late on 1 June 2014, he advised Mr Koppe of the plaintiff's accident and allocated the matter to him for investigation. Mr Koppe decided to attend the mine the following day to perform an inspection. Mr Koppe arrived at the mine at approximately 12.30pm on 2 June 2014. Upon his arrival, he was met by Clinton Maynard and Grant Harrison. While Mr Koppe was on the surface, he spoke with Mr Maynard and Mr Harrison and was briefed as to the details of the plaintiff's accident.
On 2 June 2014, Mr Koppe made contemporaneous notes concerning his inspection of the accident site and the Feeder Breaker. Those notes were subsequently typed and became evidence in these proceedings (Courtbook pp487-493).
He prepared an expert report, dated 11 September 2019, on behalf of the plaintiff. He gave evidence in the proceedings.

Investigation report prepared from handwritten contemporaneous notes

Mr Koppe obtained the following information, primarily from Mr Maynard:

the feeder breaker was a JOY BF44-003;
it had a built in boot end;
the controls for the boot end included lift, tracking and belt raise;
the boot end controls were by push button at the pendant;
in production mode it could not lift the belt as it will not operate when lifted;
the plaintiff was doing 'codes' in area and cleaned E-Stop;
the plaintiff saw oil and more coming;
the plaintiff removed the rag and then was hit;
the plaintiff put the rag back;
the leak could have been at the JIC to nipple;
there was oil on the ground but limited in volume (not a great amount);
there were quick connect couplings on all hoses in the area;
the boot end had not been removed/or replaced since March 2014;
there were four hydraulic hoses in the area;
there was no reference to any feeder 'mode' changes;
for testing it was necessary to lower the boot fully so no pressure remained in cylinders;
Mr Koppe requested pressure gauges be added to the pressure and return lines (after initial leak location testing);
the feeder was reported to have run for some cycles prior to the incident.

Site inspection and underground tests (2 June 2014)

the heading was closed off with a single line of tape;
the photos were taken by Mr Maynard, mostly at Mr Koppe's request as his camera battery was flat;
the blue cloth - • Only a small quantity of oil on it; • No significant oil inject holes in it when stretched out and held to the light;
There was not much oil on the ground;
The outer two hoses have oil on them;
No. 2 hose-top outer was H054;
No. 1 hose - bottom outer was H055;
No. 4 hose-inner top was H053;
No. 3 hose - inner bottom was H050;
hoses further from feeder side were grease hoses;
there was no oil on the grease hoses;
there was no oil on underside of the red poly guard;
there was some oil on inside of vertical red poly side cover;
there was a slight drip on underside of H054 at the small hexagon into the larger hexagon (drip was not moving);
the emergency stop was approximately 250mm from hydraulic fittings;
there was dry stone dust on the vertical steelwork on the out-bye side of the fittings;
there was some oil on the flat steel bracket below the fittings;
there was some oil on the electric cable below the fittings;
when a full feeder of coal was emptied onto the belt, no leaks were visible;
in order to observe any minor leak from a safe distance, a piece of paper was put at two locations close to the fittings and then a full sequence of normal operation of the feeder as well as movements of the boot end was carried out;
the pendant/umbilical control for the boot end was close to the hose fitting area of interest;
as no leaks were observed a synthetic sling was wrapped around the hydraulic hoses and the sling was used to move the hoses whilst hydraulic pressure was applied - again no leaks were detected;
the testing was conducted under very noisy conditions because of the fan nearby;
the mode control for the feeder was rotated/changed;
the belt lift was operated - it was seen to go down, then up with no hydraulic leaks;
the slew was operated - no leaks;
a lift was tried again - no leaks;
the feeder modes were - • 1. set up; • 2. tram; • 3. Sequence;
the feeder was very close to the rib on the opposite side. This was a danger area if the feeder was in tram mode;
Mr Koppe queried whether a warning sign should be added near the mode selection switch saying "do not select tram unless all personnel are clear of the feeder"...
the three hydraulic pressure gauges on the non walk side were examined. Two were at zero and the third went to zero when the gauge isolating valve was opened by Mr Maynard;
tee pieces were added at the two outer hose fittings;
as per Mr Maynard, the top hose fitting had been tight before fitting the tee;
the bottom hose fitting was reported to have been tight;
the result of pressure gauges at the two tees was: • Top -"0" - when in sequence mode; • Lower - "0" - when in sequence mode;
the boot end control was accessible to [the plaintiff's] right hand when the oil injection occurred;
when the boot end slew was operated, the gauges still showed '0';
Mr Maynard obtained 15,000kPA (2,175psi) when set up mode was selected and the boot control was operated. It could not go higher as this could damage the belt. The gauges were not suitable for +3,500psi;
there was no road tape located between the feeder and shuttle car;
the belt lower went to +3,500psi;
the hoses and fittings appeared to be original;
Mr Maynard suggested it was not worth pressure testing the slew hoses by fitting the tee fittings and gauges;
the slew fittings were reported to be tight;
it was observed that the hoses move considerably when pressurised - as the bend tended to straighten; and
it was established that at the time of the test, no pressure occurred in the four hydraulic hoses while the mode selection was in Sequence and the boot end pendant control was not operated (emphasis added).

Other Possible Fluid Injection Sources

During the interview of the plaintiff - the location of his hand when he received the oil injection was verified.
In addition to the location of four hydraulic hoses and numerous hydraulic fittings in the vicinity of his hand there were a number of grease hoses also in the vicinity.
The grease hoses were not considered as the source of the injected fluid.
The four quick connect couplings were also considered as a potential leak source but were discounted for the following reasons: • they were tested both underground and on the surface at Pirtek and did not leak; • they are of a type which when locked in the correct position by the rotation of a sleeve, are not prone to disconnecting and then reconnecting without being moved by a person; and • there was a very minor grease leak on the bulkhead but this was on the opposite side to where the plaintiff was injured.

Proposed further action agreed by Clint Maynard

Replace all four hoses and fittings and test them with safe purpose design test equipment;
protective wrap all fittings at the bulkhead;
extend poly covers so they fully cover the hose ends and fittings;
remove the quick connectors to shorten the length of fittings because couplings are never used during panel moves;
investigate mode changes further and hose pressure for the different modes;
interview [the plaintiff] ASAP;
test hoses and fittings and remove safety sleeving at Pirtek Mudgee in their test bay;
correct boot movement controls direction.

On Tuesday 3 June 2014, Mr Koppe attended the mine and received a copy of the plaintiff's statement and a copy of the photos.

Corrective action to date as per Clint Maynard

The four hydraulic hoses were replaced;
the quick connect couplings were removed;
the MG2 panel was done on 2 June 2014;
the MG3 was to be done today 3 June 2014.

Conclusions after testing at Pirtek

All four hoses did not leak and were OK up to 400 bar;
all fittings were OK when tested underground on 2 June 2014;
the one fitting which leaked during the testing at Pirtek on 4 June 2014 probably leaked because it had been disconnected underground for removal and then re-connected at Pirtek without any sealant. In effect the seal present underground had been broken.
To further substantiate this conclusion: • There were no signs of a radial spray on the underside of the poly cover; • the leak was much larger at the Pirtek test than that described by the plaintiff; • the stone dust and vertical steelwork next to the bulkhead where the fitting is located was dry - not oil soaked.
something had been changed after the injury to close the small leak;
at least one of the boot end controls must have been operated to obtain pressure in the vicinity of the fittings where the injury is reported to have occurred. Normally there is no pressure present (emphasis added);
all statements indicated no controls were being operated at the time of the injury;
both underground and Pirtek surface testing failed to identify the source of the oil found in the vicinity of the fittings where the oil injection was reported to have occurred;
the fluid injection was from hydraulic oil - not grease.

Witness statement of Mr Koppe of 11 September 2019

Mr Koppe was retained by the legal advisers of the plaintiff as an expert and prepared a report in the form of a witness statement, dated 11 September 2019 (Courtbook pp773-810).
Having listed his qualifications and experience, Mr Koppe set out the results of his inspection of the Feeder Breaker on 2 June 2014. Under the heading "Visual Inspection", he gave more detail than had been included in his notes. "Visual Inspection 24 I observed the Feeder Breaker from the walk-side. The Feeder Breaker was positioned up against one wail of the roadway. It was not comfortable to walk past the wall side. 25 The Feeder Breaker was approximately 10 metres long and 2 metres wide. It was a rectangular machine. The purpose of the Feeder Breaker is to push coal through a 'crusher' to break down the size of the coal pieces and smooth out the flow of coal onto the belt conveyor. 26 The Feeder Breaker has a steel flight conveyor belt which runs the length of the machine and allows coal to travel through the machine. 27 Coal is discharged onto one end of the Feeder Breaker by a shuttle car. The steel flight conveyor belt moves the coal through the machine towards the 'crusher'. After the coal is crushed, it is discharged into the 'boot end' of the machine which is attached to the end of Feeder Breaker. The 'boot end' has a fire resistant flexible conveyor belt that catches the crushed coal from the Feeder Breaker and transfers it to the surface. 28 On the walk side of the Feeder Breaker, about halfway along the machine there was an emergency stop. The emergency stop was located about 250mm to the left of four hydraulic fittings which connected four hydraulic hoses to the bulkhead, the other side of which was connected to the boot end. Annexed and marked "B-118", "C-119", are photographs taken on 1 June 2014 picturing the feeder breaker. Annexed and marked "D-124", "E-126", "F-127", "G-135" and "H-136" are photographs taken on 2 June 2014 picturing the feeder breaker. 29 I observed a blue rag as shown in photo numbered 136. Refer to photographs annexed and marked C-119" taken 1 June 2014 and "H-136" taken 2 June 2014, picturing the rag. 30 I pulled the rag out from its position and noticed that there was a small quantity of hydraulic oil on it. The rag was wet but not soaked. The wet parts of the rag were in patches. I held the rag up to the light and stretched it, to observe if there were any holes in it. Had the rag been placed over the source of a high pressure oil leak, the oil may have put a hole in the rag. I observed no significant holes had been pierced through the rag. 31 There was a red polyurethane guard with two sides that connected in an L-shape around the fittings of the feeder breaker. Annexed and marked and "1-121" is a photograph taken on 2 June 2014 picturing the red guarding. Also refer to photographs annexed and marked "B-11", "C-119", "D-124", "E-126", "F-127", "G-135" and "H-136" for pictures of the red guarding. 32 There was no oil found on the underside of the horizontal red polyurethane guard, however there was some oil on the inside of the vertical side of the guard. Refer to photographs annexed and marked "B-118" and "G-135" demonstrating the oil. I have marked these photographs with notations of where the oil was located. 33 The polyurethane guard did not extend to cover the entire length of the fittings and the joins closest to the hoses were left exposed. To my knowledge, the purpose of the polyurethane guard is to protect workers from hot oil or oil injections and to prevent fragile fittings from being damaged by an impact from external sources. The fitting assembly used on this feeder breaker was about 200 mm in length. A normal fitting assembly is approximately less than 100 mm in length. It is my understanding that the longer the fitting the higher the tendency for it to break, because of the longer leverage effect on the cluster of fittings there is greater probability of mechanical overload. … 34 I observed there were eight fittings which connected hoses to the bulkhead. The four inner fittings on the feeder-side of the machine attached four grease hoses to the bulkhead. The four outer fittings on the walk-side of the machine connected four hydraulic hoses to the bulkhead. Refer to photograph annexed and marked "G-135" picturing the fittings." (The material at [35]-[41] is irrelevant as a result of a pre-trial ruling by Campbell J Smith v Ulan Coal Mines Limited). "42 During the investigation I observed that the outer two hydraulic fittings attached to the bulkhead had oil on the metal to metal join … 43 There was a slight oil drip on the underside of the top outer hose. This was on the metal to metal join between the hose and fitting. The drip of oil was not moving. I pointed out this leak to Mr Maynard on 2 June 2014. Refer to photograph annexed and marked "G-135" … … 47 During the investigation 1 observed there was some oil on the cable and the flat bracket directly below the fittings. … 48 During the investigation I observed some oil present on the floor directly below the fittings. … Operational Investigation 49 After the visual inspection concluded, Mr Maynard and I conducted an operational investigation in order to attempt to identify the source of the leak. Mr Maynard and I indicated to an operator to turn on the Feeder Breaker. A full feeder of coal was then emptied onto the belt. A full operational sequence was carried out. No leaks were visible while this process was carried out. 50 Mr Maynard and I then put two pieces of paper onto the machine directly under the top outer hose and on the flat bracket under the bottom outer hose in an attempt to catch any oil. This process allowed Mr Maynard and I to conduct our investigation from a safe distance while still observing any minor leaks if they were present. … 51 With the paper in place, a full operational sequence of the Feeder Breaker was initiated, including movements of the boot end. No leaks were observed on the paper during this process. 52 A synthetic sling was then wrapped around the four hydraulic hoses and this sling was used to move the hydraulic hoses while pressure was applied to the area. No leaks were observed on the paper during this process. 53 We then operated the belt lift, causing it to travel down and then up again. No hydraulic leaks were observed during this process. The lift was operated about six times; however, no leaks were identified on the paper. 54 Based on observations during the operational examination, no leaks could be identified. However, the oil that was present on the fittings and nearby components on the Feeder Breaker was consistent with a conclusion that there was a hydraulic oil leak at some point prior to the investigation on 2 June 2014. 55 There was a stone dusting exercise that is reported to have occurred on the morning of 1 June 2014. After stone dusting it would normally be expected that stone dust would be present on the oily surface of the fittings however this cannot be guaranteed as it depends on the location and effectiveness of the stone dusting. … In conclusion the presence or absence of stone dusting is not a reliable indicator of when the hydraulic oil leak occurred. Hydraulic Pressure Testing: 56 There are three modes that the Feeder Breaker can be set in: 1 Set up - when the Feeder Breaker is in set up mode, the tram function can not be used, however the boot end controls can be operated without restriction. 2 Tram - when the Feeder Breaker is in Tram mode the Feeder can be relocated, however, the crusher and boot end belt lift controls are disabled. 3 Sequence - when the Feeder Breaker is in normal operation it will be in sequence mode. In this mode the crusher can operate, and the belt lower control can operate, however the belt lift control is disabled. The Feeder Breaker's steel flight conveyor can also operate when sequence mode has been selected. 57 There is a portable electrical board attached to the Feeder Breaker which can be used to control and operate the boot end of the machine. The control is attached to the feeder breaker by a long electrical cord allowing the control to be moved around in the vicinity of the Feeder Breaker. This electrical board is called a Pendant or Umbilical control. It can be used to raise or lower the conveyor belt in the boot end or to slew the boot end from side to side. It may have additional uses. 58 It is my understanding that for a pressurised leak to have occurred in the area of the hydraulic fittings, there must have been hydraulic pressure present at the time of the injury. In order to identify potential sources of pressure, after the initial pressure and function testing was performed, Mr Maynard attached pressure gauges to the two outer hydraulic hoses and multiple further tests were performed. … 59 During the investigation, when the Feeder Breaker was put in sequence mode, the two outer hoses recorded a pressure of '0' when the boot end slew was operated, the gauges continued to display a pressure of "0". 60 When the Feeder Breaker was in sequence mode and the operator pressed the bell lower control, the belt actually went up. When the Feeder Breaker is in sequence, the belt lift function should be disabled as it requires significant hydraulic pressure more so than lowering the belt. Accordingly, at the time of the investigation the same electrical fault that allowed the belt to lift while in sequence mode may have existed at the time Mr Smith sustained the oil injection injury. However, it is my opinion that for Mr Smith to have sustained the injury it would also have been necessary to operate the feeder breaker and the pendant control at the same time. (Emphasis added) 61 Alter the sequence mode test, the Feeder Breaker was then put into Set-up mode. It was only when the boot end control was operated by way of interaction with the pendant/umbilical control that pressure was as measured in the two outer hydraulic fittings. The pendant/umbilical control was used to raise the belt. Following this process a reading of 2,175 PSI was given on the pressure gauges attached to the two outer fittings. A higher reading could not be obtained as raising the belt further may have damaged the belt and the pressure gauges provided were not suitable for pressures above 3.500 PSI. The maximum system pressure was approximately 5,000 PSI in the hydraulic system; as a result we needed to carry out further testing at Pirtek. 62 Following the above underground testing, the four hydraulic hoses and fittings were removed from the Feeder Breaker with a view of conducting further investigations at Pirtek in Mudgee on 4 June 2019, where the testing pressure would not be limited to 3,500 PSI. 63 Based on the above investigation, it is my view that pressure could only have been present in some of the hydraulic fittings of interest if the pendant/umbilical control was used to operate a function of the boot end attached to the Feeder Breaker." (Emphasis added) (Paragraph [64] of the report was rejected by Campbell J in a pre-trial ruling as were the last two sentences of paragraph [65] of the report.) "Testing at Pirtek on 4 June 2014 66 On 4 June 2014 … … 68 No leaks were identified when the fittings were tested individually. The fittings were then tested in pairs of two. The test of the pair with larger quick disconnect couplings experienced a leak at the taper connection of the fitting where the joint connected to the bulkhead. On this occasion, the leak sprayed radially outwards, not parallel| down the length of the hose. Due to the stone dust found where the hydraulic fitting meets the bulkhead, it is my opinion that it was necessarily this joint that leaked at the time Mr Smith was injured and/or beforehand." (Paragraph [69] was rejected as part of a pre-trial ruling by Campbell J.)
Mr Koppe set out his conclusions as follows: "Leak: 1 There were multiple components of the Feeder Breaker on which hydraulic oil was found, including the inside of the vertical polyurethane cover, on the blue rag, on the outer two hydraulic fittings and on the cable, flat bracket and floor directly below the two outer fittings. 2 On 1 June 2014, stone dusting was carried out at some time after 11am but prior to 2.50pm based on the oil found on the outer two fittings and the dry stone dust found on the inner fittings, it is my opinion that a leak has possibly occurred subsequent to the stone dusting in the morning of 1 June 2014. While the source of the leak was not identified by the investigation, it is my view that the leak may have possibly occurred prior to 1 June 2014. The presence of the oily blue cloth in the vicinity of the fittings also suggests that a leak occurred prior to the incident. The relatively small amount of oil on the floor and on the cloth suggests the leak was only present for a shot period. 3 At the time of the investigation, it was noted in my report "something has been changed to close the small leak". I formed the view something changed in the fittings following Mr Smith's accident at 2.50pm on 1 June 2014 but prior to my investigation on 2 June 2014. This would only require the use of two shifting spanners and perhaps a spare O ring that would have been included in the spares box in the panel. There is a spares box located at every panel. This is a relatively simply procedure that would have taken approximately 10 minutes for an experienced tradesman. 4 Reasons for my opinion that the leak had been interfered with after the oil injection, and how the interference may have occurred is detailed as follows: a. If the leak was at a joint seated by an O ring, the O ring would normally be cut by the flow of oil whilst it is leaking and high pressure oil is flowing through the leak. The normal procedure to repair the teak would be to replace the O ring using the correct dimensions and durometer hardness O ring. b. (this was rejected by Campbell J in a pre-trial ruling.) c. Basically leaks in hydraulic system hoses or hose connections do not fix themselves, they require the use of tools and deliberate action by persons. 5 I confirm my report relied upon the mine to fully isolate the feeder breaker from production immediately after the report of Mr Smith's injury to Mr Lopes. 6 Upon review of my investigation I confirm that there is the potential that a number of persons employed by the mine had the opportunity to interfere with the Feeder Breaker and associated boot end after the oil injection incident but prior to the formal investigation on 2 June 2014.

Polyurethane Guard and Fittings: 7 The polyurethane guard did not extend to properly cover the hydraulic fittings. As a result, the guard would have been ineffective in protecting a worker from a high pressure fluid injection from many of the fittings. 8 A sleeve could have been placed over the fittings, similar to that which coated the hoses, to protect a worker. Due to the nature of the fittings and the need for periodic inspection, particularly if a leak occurs, the sleeve would need to be of a large diameter so that it could slide back to provide access to the fittings. It is my opinion that while it is physically possible to install a sleeve, it would not render the polyurethane guard obsolete as the weave of the sleeve may still spread when exposed to high pressure. Another practical means to minimise the potential for oil injections is to move the fittings behind effective guards as is common practice on mass produced equipment with high pressure hydraulics. This is addressed within the guidelines at MDG41. In my experience, I have observed this being correctly implemented in surface excavators where the operator is not directly exposed to any leaks from hydraulic components while the operator is in their enclosed cab. I believe that better guarding would have greatly reduced the likelihood of a high pressure fluid injection in Mr Smith's case. 9 In discussions with Mr Clinton Maynard in the weeks following the investigation, I was informed that the four hydraulic hoses and fittings were replaced. I was informed that the quick connect couplings were removed (the balance of this paragraph was the subject of a pre-trial ruling and was rejected by Campbell J.) Pressure: 10 To my knowledge, fluid that has been ejected while under pressure of 600 PSI would be sufficient to penetrate the skin. An ejection of fluid while under pressure of 2000 PSI could cause a significant pressure injury. For Mr Smith to have sustained a high pressure injection injury there must have been pressure in excess of 600 PSI present in the hydraulic fitting for this to have occurred. 11 While it is clear that pressure grater than 600 PSI was present in at least one of the hoses and fittings in the vicinity of Mr Smith at the time of his injury, the exact location of the leak of this pressure is unidentified. (Emphasis added) 12 At least one of the boot end controls must have been operated in order to obtain sufficient pressure in the vicinity of the fittings where the injury occurred. (Emphasis added) 13 There is the potential that there was stored or accumulated pressure in the Feeder Breaker and associated boot end. This pressure includes that from hydraulic cylinders which hold up the boot end. However, these cylinders have pilot operated check valves which prevent any movement or change in hydraulic pressure. It is my view that any stored pressure would be held back at the check valves, and would not be present at the fittings in the vicinity where Mr Smith was injured. (Emphasis added) Guarding: 14 There are generally two types of guarding against injury in this context. The first is polyurethane panels which can be placed around and above hoses and fittings. The second is sleeving which can be placed around hoses and fittings. The combination of the two, specifically made or designed for this purpose, provides the best protection against hydraulic injury from a leak. 15 When I investigated the accident on 2 June 2014, I observed the polyurethane panels and my thumb is in fact pictured pulling back the vertical side of the polyurethane panel. Refer to photograph annexed and marked "G-135" picturing the panels. It can be seen from this photograph that there is no sleeving on the relevant hose end or fittings (there is some sleeving shown in that photograph, but not over the hose ends or fittings implicated in the leak points). 16 This photograph is to be compared with the video taken by Mr Maynard on 31 July 2018 of a different, but similar, feeder breaker at the mine. Annexed and marked "X" and "Y" are screenshots at 01:15 minutes and 01:25 minutes. These photographs also show a longer vertical polyurethane guard and they also show that the horizontal polyurethane guard is missing. The missing horizontal guard increases the risk of future oil injections. 17 It is very unlikely that the incident would have occurred if the following had been carried out prior to the incident: a. If the sleeving had been extended to fully cover the fittings. (This is still not being fully carried out on the Feeder Breaker in the video dated 31 July 2018. Refer to photographs annexed and marked "X" and "Y"). b. If the polyurethane guarding had fully covered access to the fittings from the top and sides. (This is still not the case for the Feeder Breaker in the video dated 31 July 2018, as the top guarding is absent in photographs annexed and marked "X" and "Y")." (The rest of this paragraph was rejected as part of a pre-trial ruling by Campbell J.)

The plaintiff also relied upon the expert report of Mr Cockbain (Courtbook pp494-741) dated 21 December 2016 and a supplementary report of Mr Cockbain dated 6 June 2018. Mr Cockbain had qualifications as a Master of Applied Science specialising in safety management, together with a number of trade qualifications. In evidence he described himself as "a fellow of the Safety Institute of Australia and a chartered journalist professional and a companion member of Engineers Australia".
Senior counsel for the plaintiff accepted that the plaintiff could not rely upon sections of the Work Health and Safety Act 2011 (NSW) and the Coal Mine Health and Safety Act 2002 (NSW) other than as particulars of negligence. He did, however, foreshadow that he would be relying upon breaches of the Work Health and Safety Regulations 2011 and the Coal Mine Health and Safety Regulation 2006 as giving rise to a separate cause of action. This, however, was not the main thrust of the plaintiff's claim. That depended essentially upon establishing negligence in accordance with the common law as modified by the Civil Liability Act 2002 (NSW) (CLA).
By way of illustration, two regulations which were relied upon by the plaintiff were Regulations 35 and 214(e) of the Work Health and Safety Regulation 2011. Those regulations relevantly provided: "35 Managing Risk to Health and Safety A duty holder in managing risks to health and safety must: (a) Eliminate risks to health and safety so far as is reasonably practicable; and (b) If it is not reasonably practicable to eliminate risks to health and safety - minimise those risks so far as is reasonably practicable" "214 Powered Mobile Plant - General Control Risk The person with management or control of powered mobile plant at a workplace must in accordance with Part 3.1 manage risks to health and safety associated with the following: (a) the plant overturning; (b) things falling on the operator of the plant; (c) the operator being ejected from the plant; (d) the plant colliding with any personal thing; (e) mechanical failure of pressurised element of the plant that may release fluids that pose a risk to health and safety."
Mr Cockbain's approach to those regulations can be seen from the following extracts from his report. "9.3 Safety of Plant - fluid power systems 129 It is the writer's experience that pressurised fluid systems present a range of unique safety hazards; one of the most dangerous of all is being struck by high pressure fluid escaping to atmosphere at high velocity. Almost every fluid system in existence has the potential to cause high-pressure injection injuries. Anyone working around these systems could face such dangers. Injuries can range from; minor to severe burns, lacerations and amputations, eye injury and blindness and in some cases death. 130 MDG 41 Guideline for Fluid Power System Safety at Mines (MDG 41) provides that Fluid Power Systems includes pressurised hydraulic and pneumatic compressed air systems for the transmission and control of energy. These include, but are not limited to: (i) fluid power medium hydraulic mineral oil, (ii) air, (iii) emulsion oil, (iv) diesel fuel and (v) water …. … 143 With respect to the specific legislative requirements for the control of fluid power systems at a work place, specifically the First Defendant's underground coal mine, that were in place at the time of the plaintiff's incident, the writer notes that the WHS Regulations required the following: … • Clause 214(e) of the WHS Regulation required the First Defendant to manage the risks to workers associated with the "mechanical failure of pressurised elements of plant that may release fluids that pose a risk to health safety." … 159 As discussed in Part 9.3 of this report, the First Defendant was required to comply with Clause 214(e) of the WHS Regulation which required the First Defendant to manage the risks to workers associated with the "mechanical failure of pressurised elements of plant that may release fluids that pose a risk to health and safety". This required the First Defendant to develop, implement and imbed a safe system of work for the management of risks associated with plant that incorporated fluid power systems … … 257 There were reasonable preventative measures that could and should have been implemented by the First Defendant, which would not have involved excessive expense in either their development or implementation including: … (b) The provision of a physical barrier between the leaking hydraulic hose and the plaintiff so that the plaintiff was not exposed to the risk of high pressure fluid injection as required by clause 35 and clause 214(e) of the Work Health and Safety Regulation 2011. Examples of physical barriers include wrapping of the hydraulic fittings as depicted in Figure 15 or the sleeving of the hydraulic fittings as depicted in Figure 16."

Reliability of evidence

I found the evidence of the mine employees to be both honest and reliable. I include in that assessment Messrs Piscionieri, Maynard, Lopes and Williams. I have concluded that they were doing their best to tell the truth with the major qualification being the precision of their recollections of what happened on 1 June 2014. In particular, I found that Mr Maynard had an accurate recollection of what had occurred on 1 and 2 June 2014 and later at the premises of Pirtek in Mudgee when further testing was carried out. I found him to be non-partisan and doing his best to accurately set out what he observed and was told.
In relation to Mr Koppe, I accept as accurate and reliable his notes taken on the occasion of his visit to the mine on 2 June and then later at and as a result of his attendance at the premises of Pirtek. The same cannot be said of his evidentiary statement and evidence given in the trial. While I did not find that evidence to be untruthful or unreliable, there was a tendency to favour the plaintiff in some of the responses. For example, a comparison of the evidentiary statement with his original notes demonstrated that the evidentiary statement suggested a somewhat greater quantity of hydraulic oil present on the Feeder Breaker than did his original notes.
There was also a significant difference between his evidence and that of Mr Maynard. Mr Koppe said that the blue rag, when he examined it on 2 June 2014, was wet in parts with a significant amount of oil on it although not soaked. The evidence of Mr Maynard was that when he examined the rag on 1 June it was dry, although it could be seen that oil had been present on parts of it. On that issue, I prefer the evidence of Mr Maynard.
That tendency towards partisanship also appeared in the oral evidence of Mr Koppe at trial. For example, the following question and answer included a non-responsive comment intended to assist the plaintiff: "SCOTT: Yes. For it to happen the operator has to be put their hands on the pendant control that you have referred to in your observations? WITNESS KOPPE: You would expect it to be the pendant control if it's deliberately operated. However, the location of the pendant control was such that it was possible to accidentally bump it and get it to operate at the time. If you look at the photographs you will see the location of that pendant control which was in the vicinity of his right hand but not necessarily did he activate it and he stated in his report that he did not activate it." (T.186.26-T.34)
It was conceded by Mr Koppe after he had volunteered that opinion, that there was no evidence of the plaintiff accidentally activating the pendant control in the case (T.187.34). Moreover, Mr Koppe's response leaves out the important consideration that for the pendant control to operate to pressurise the Feeder Breaker, pressure on the button needed to be maintained. This would not occur as a result of a single accidental bumping of the pendant control (T.188.33-.40).
The oral evidence of Mr Cockbain and Mr Parish was reliable and truthful so far as I could assess it. The only qualification I had in relation to that evidence was Mr Parish relying upon the internet to provide part of the basis for his evidence as to the distance which a pressurised squirt of liquid could travel and still penetrate the skin.
In relation to Mr Cockbain's expert report, it would be fair to say that it was an overtly partisan document which accepted in full and uncritically everything which he was told by the plaintiff and which was designed to identify as many breaches of the relevant Acts and Regulations as could be connected to the history given by the plaintiff.
I will set out my assessment of the reliability and truthfulness of the plaintiff's evidence in due course.

The plaintiff's case

The plaintiff put his case as follows. His primary submission was that an unknown person (probably somebody in his work crew at the mine) found a leak in either a hydraulic hose or hydraulic fitting in Feeder Breaker 003. It was submitted that that person used the blue rag to wipe up or cover the oil leak but otherwise did nothing about it. Specifically, that unknown person did not report the fact of the leak, did not bring it to the attention of a person competent to fix it, i.e. a mechanical fitter, and did not warn the plaintiff. That person left the rag covering the source of the leak and did nothing further.
The plaintiff submitted that it would have been reasonably foreseeable by that unknown person that to leave the Feeder Breaker in that state was very dangerous and unless it was repaired, it could result in a high pressure discharge of liquid, which could injure someone working on or near the hydraulic hoses and/or fittings such as in fact occurred. The plaintiff submitted that the first defendant was vicariously liable for the negligent conduct of that unknown person.
The plaintiff relied upon his own evidence of finding the blue rag, which had been placed over the hydraulic hoses and fittings in the Feeder Breaker. He relied on the fact that the blue rag had been observed and examined by other persons, in particular Messrs Maynard and Koppe as corroborating his evidence. I do not agree. Even though Messrs Maynard and Koppe saw the blue rag, its significance still depended upon an acceptance of the plaintiff's evidence.
There was evidence from the Panel Deputy, Mr Lopes, that he had walked past the Feeder Breaker after the commencement of the shift as part of his overall inspection but he could not remember seeing a blue rag. It is implicit in the evidence of Mr Lopes that his inspection was a relatively cursory one and he could not remember any detail about it.
Mr Williams, however, was the Mechanical Fitter in the crew and it was part of his job to inspect all the plant, which was going to be operated by the crew during their shift, including the Feeder Breaker. It was his evidence that he would probably have left his inspection of the Feeder Breaker until last and so would not have inspected it for at least an hour after the shift commenced. It was his evidence and that of the plaintiff that he inspected the Feeder Breaker before the plaintiff suffered his injury. He could not recall seeing a blue rag. In that regard, it should be noted that the plaintiff's evidence was that the blue rag was easy to see when one looked towards the hydraulic fittings and hoses. That evidence is confirmed by the photographs, in particular that on p361 of the Courtbook. Accordingly, it is surprising that Mr Williams did not see the blue rag if it was in that location at the time of his inspection.
There are a number of difficulties with that scenario as described by the plaintiff. One of them is the failure on the part of Messrs Maynard and Koppe, when conducting tests of the Feeder Breaker underground and of its hydraulic hoses and fittings at the Pirtek facility, to find a leak which could account for the plaintiff's injury. Relying upon the evidence of Mr Koppe, the plaintiff answered that difficulty by submitting that the same person who discovered the leak and had left the blue rag covering it, gained access to the hydraulic hoses and fittings on the Feeder Breaker after the plaintiff's injury and repaired the leak without anyone being aware that he had done so.
The first difficulty with that scenario is that it depended entirely upon Mr Koppe's speculation that some unknown person intervened after the plaintiff's injury to carry out the repair and was able to do so without being observed.
The basis for Mr Koppe putting forward that scenario was an attempt to reconcile two apparently irreconcilable propositions, i.e. the undoubted fact that the plaintiff suffered an injury as a result of a high pressure liquid injection and that subsequent extensive testing failed to discover a leak. There is no evidence to substantiate that scenario. Another way of reconciling the two propositions is if the plaintiff was not telling the truth about how he was injured.
There are other problems with the scenario. It assumed that the leak came from one of the fittings and therefore could be rapidly repaired by someone who had the knowledge and skills of a mechanical fitter and had the necessary tools readily available. The only person who would fit that description was Mr Williams, who gave evidence that he did not in any way interfere with the Feeder Breaker after the plaintiff's injury. There is ample evidence of his movements, including he and Mr Walker being together for a period and helping the plaintiff move to the surface. As already indicated, I accept Mr Williams as a witness of truth and I find that he did not in any way repair or otherwise interfere with the Feeder Breaker after the plaintiff's injury.
If the cause of the leak was in a hose, rather than one of the fittings, such a repair would be quite complex and would not be possible below ground. The evidence of Mr Parish and Mr Koppe made that clear and they were not challenged in relation to it.
There are other problems with the scenario. It pre-supposed that the unknown person, who first discovered the leak and covered it with the blue rag, did so knowing, as he must have, that he was leaving the hydraulic fittings and hoses of the Feeder Breaker in a very dangerous condition. He would have done so in circumstances where it would have been a relatively simple matter to report the leak either to a mechanical fitter such as Mr Williams or the Shift Deputy Mr Lopes or some other person in authority. It is difficult to understand why this unknown person would not have taken one of those relatively simple steps rather than do nothing.
Further doubt is placed on the scenario by the proposition that this unknown person returned to the Feeder Breaker and carried out the repair in circumstances where there were a number of people about. This included Mr Lopes who proceeded to isolate the Feeder Breaker and cordon it off. Such an intervention would give rise to a good chance of the unknown person being discovered when carrying out the repair. It remained unexplained as to why this unknown person would place himself at risk in this way when there was nothing to implicate him as the person responsible for leaving the leak unreported and unrepaired.
Another problem with the scenario is that it depended upon the evidence of the plaintiff being accepted. The entire scenario failed if the blue rag had not been placed over the oil leak by an unknown person but had been placed there by the plaintiff. We only have the plaintiff's evidence that the blue rag was there when he was cleaning the Feeder Breaker. His evidence on that issue must be subject to some doubt given that Mr Williams had inspected the Feeder Breaker before the plaintiff's injury and could not remember seeing the blue rag. This was in circumstances where according to the plaintiff it was obvious and when it should not have been in such a location.
Accordingly, except for the plaintiff's evidence in relation to the presence of the blue rag, there is no evidence to support an unknown person negligently leaving the leak unreported and unrepaired and no evidence that the same person repaired the leak after the plaintiff's injury. Those fundamental matters are entirely speculative and not matters of inference.
There is another problem with the acceptance of this scenario and the plaintiff's evidence on that issue. The plaintiff's evidence is that when he was cleaning the Feeder Breaker he observed the presence of the blue rag, reached out with his left hand to remove it and was struck on the back of that hand, at the base of the thumb, by the high pressure leak. The plaintiff was adamant that he did nothing beyond those movements and in particular that he did not operate the pendant control or do anything else such as move the switch which controlled the mode of the Feeder Breaker.
The problem for the plaintiff is that an injury of this kind could only occur if the hydraulic hoses and fittings or a single hydraulic hose or fitting was pressurised. It is common ground that before the injury and at the time of the injury, the Feeder Breaker was in Sequence mode, which meant that the hydraulic hoses and fittings were not pressurised. We know that the Feeder Breaker was in normal production mode, i.e. Sequence mode, because shuttle cars had been coming to and from it with loads of coal to be processed. This could only occur in Sequence mode.
Mr Maynard in his first witness statement, on the basis of all of the testing, concluded that the plaintiff's accident could not have occurred in the manner which had been reported to him. He reached that conclusion for the following reasons: "• there should not have been any hydraulic oil travelling through the hoses at any pressure as the Feeder Breaker was reported to be in Sequence mode and no button was being pressed on the pendant remote. • In order for there to be pressure in the hoses, the mode would have been required to have been adjusted and the applicable button on the pendant remote, which corresponded with the mode that was selected, must have been pressed and held down. • During his inspection and throughout testing, there was no leak identified in any of the hoses that were fitted to the Feeder Breaker at the time of the plaintiff's accident; and • The only leak that was observed during testing was a slow release of oil from a connection that was located on the opposite side of the bulkhead to the area in which the plaintiff sustained his injury." (See [87] hereof)
Conclusions to similar effect were arrived at by Mr Koppe as a result of his testing. "• It was established that at the time of the test, no pressure occurred in the four hydraulic hoses while the mode selection was in Sequence and the boot end pendant control was not operated. • At least one of the boot end controls must have been operated to obtain pressure in the vicinity of the fittings where the injury is reported to have occurred. Normally there is no pressure present." (See [138] hereof); and "57 There is a portable electrical board attached to the Feeder Breaker which can be used to control and operate the boot end of the machine. The control is attached to the Feeder Breaker by a long electrical cord allowing the control to be moved around in the vicinity of the Feeder Breaker. This electrical board is called a pendant or umbilical control. It can be used to raise or lower the conveyor belt in the boot end or to slew the boot end from side to side … 58 It is my understanding that for a pressurised leak to have occurred in the area of the hydraulic fittings, there must have been hydraulic pressure present at the time of the injury. In order to identify potential sources of pressure, after the initial pressure and function testing was performed, Mr Maynard attached pressure gauges to the two outer hydraulic hoses and multiple further tests were performed. … … 63 Based on the above investigation, it is my view that pressure could only have been present in some of the hydraulic fittings of interest if the pendant/umbilical control was used to operate a function of the boot end attached to the Feeder Breaker." (See [140] hereof).
Mr Koppe and Mr Parish in their assessments rejected the proposition that there might have been some kind of residual pressure in the hydraulic hoses and fittings once the Sequence mode became operational. "13 There is the potential that there was stored or accumulated pressure in the Feeder Breaker and associated boot end. This pressure includes that from hydraulic cylinders which hold up the boot end. However, these cylinders have pilot operated check valves which prevent any movement or change in hydraulic pressure. It is my view that any stored pressure would be held back at the check valves, and would not be present at the fittings in the vicinity where Mr Smith was injured." (See [141] hereof) "(d) TIME PRESSURE REMAINS IN THE HOSES AFTER MACHINE IS TURNED OFF If these circuits are operated the pressure dissipation is practically instant down to the tank line return pressure when the control valve is neutralized as indicated before in this report. In the situation of the machine being turned off electrically the pressure in these lines would dissipate immediately as there would be no intensification or accumulation of stored pressure and in particular if there was a leak path of the circuit through a pinhole etc." (See [150] hereof)
It is for the above reasons that Mr Koppe suggested that a possible explanation for how the plaintiff suffered his injury was an inadvertent pressing of the pendant control. As already indicated, that theory is not made out because for pressure to be maintained, the pendant control button needed to be continually engaged. In any event, the plaintiff's evidence is that he did not operate the pendant control.
It was submitted on behalf of the plaintiff that Exhibit B, which was a report on the accident signed by Mr Morgan, the Inspector of Coal Mines, provided support for the theory put forward by Mr Koppe that some unknown person had fixed the leak. I do not read the document in that way. The fact that it was submitted to the first defendant for approval before being placed on the noticeboard at the mine, goes no further than to establish that the first defendant gave its consent to the document being placed on the noticeboard not that it endorsed its content. When one reads the first paragraph, one can see why the first defendant would not have objected to the document. It was highly complimentary of the first defendant and if by some chance there had been some third party intervention, it gave that person an opportunity to come forward. It follows that the document does not advance the plaintiff's case in any way.
For the above reasons, I am not persuaded on balance that the plaintiff has given accurate evidence as to how the accident occurred. Either the plaintiff has left something out, which accounts for the pressurisation of the Feeder Breaker, or the evidence which he has given as to how the accident occurred is not correct.
As earlier indicated, the plaintiff already had difficulties in relation to his credit as a result of the false information provided by him in four medical examinations which he attended within three years of commencing work at the mine. The lies which he told when participating in those medical examinations were deliberately intended to mislead the recipients and produce a result which the plaintiff desired, i.e. that he was cleared to commence work in the mines.
There is another issue which places considerable doubt on the plaintiff's credibility. In his amended evidentiary statement (71(e)) he said that the blue rag was soaked with oil when he picked it up. That is inconsistent with the state of the rag when examined by Mr Maynard the following day. Mr Maynard considered the blue rag to be dry at that time. It is also inconsistent with the state of the blue rag when examined by Mr Koppe on 2 June 2014. As already indicated, I prefer the evidence of Mr Maynard on that issue and accordingly, it gives rise to a further challenge to an acceptance of the plaintiff's evidence as to how the accident occurred.
I have concluded that the plaintiff's accident happened in a way different to that which he has described. I have also concluded that this aspect of the plaintiff's case, i.e. that an unknown person intervened to place the blue rag on the hydraulic fittings and was aware of the presence of a leak before he (the plaintiff) commenced cleaning the Feeder Breaker and did not report it, has not been made out. That version of events depends entirely upon the plaintiff's evidence and is not otherwise supported. Although this was not put to the plaintiff in terms, it is equally possible and no more speculative to postulate that the plaintiff carried out some action which caused a spurt of oil and his injury and that it was he who placed the blue rag in the position observed by Messrs Maynard and Koppe.
Accordingly, I am not satisfied on balance that the factual aspect of the plaintiff's case has been made out.
The plaintiff's case, however, has been put in an alternate way which he submitted did not depend upon an acceptance of his evidence.
The alternative scenario took as its start point the fact that the plaintiff had suffered a high pressure fluid injection injury to his left hand. The submission was to the effect that such an injury could have easily been prevented if a guard or a more complete guard had been placed in position over the hydraulic fittings and/or the hydraulic hoses at the point where they joined the fittings. The cost of extending the polyurethane guards to include those components would have been minimal.
The difficulty with that approach is that it is retrospective and takes as its start point the fact of the injury. That is not the way that the authorities say the question of negligence should be approached. The approach which is to be used is a prospective one, i.e. it is necessary to place one's self in the position of the alleged tortfeasor and to assess whether it was reasonably foreseeable that the plaintiff would be injured in the way in which he was and if so, what was a reasonable response to that foreseeable risk.
That approach has been endorsed in a number of cases:
In Liftronic Pty Limited v Unver [2001] HCA 24; 75 ALJR 867 at [25] McHugh J (with whom Gleeson CJ agreed) said: "25 The judge's directions to the jury did not address any of the considerations that pointed against negligence. His Honour and counsel seemed to have proceeded on the erroneous assumption that, if there was a reasonably foreseeable risk of injury to the plaintiff that could have been avoided by using mechanical means, the defendant was necessarily negligent. But the issue in negligence is always whether reasonable care required the elimination of the risk having regard to the consequences of the risk, the probability of its occurrence and the cost, expense and inconvenience of eliminating it. …"
The difficulty associated with a retrospective approach was again emphasised by McHugh J in Tame v New South Wales [2002] HCA 35; 211 CLR 317. There McHugh J said: "Foreseeability of damage 96 Under the current law, the test of reasonable foreseeability of damage occurring is an undemanding one. In Wyong Shire Council v Shirt, Mason J said: "[A] risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable." 97 But the test of reasonable foreseeability was not always so undemanding. Nor was the content of reasonable care anywhere near as high as it has become in recent years. Until comparatively recently, courts tended to ask whether the defendant had created an unreasonable risk of harm to others that he or she knew or ought to have recognised. A risk was regarded as unreasonable and one to be prevented only if reasonable members of the community would think it sufficiently great to require preventative action. In each case, foreseeability of risk and preventability of harm were defined and applied by reference to each other. Writing in 1957, Professor Fleming said: "What are the considerations upon which the law supposes the reasonable man will guide his conduct? Negligence ... consists in conduct involving an unreasonable risk of harm. Almost any activity is fraught with some degree of danger to others but, if the existence of a remote possibility of harm were sufficient to attract the quality of negligence, most human action would be inhibited. Inevitably, therefore, a person is only required to guard against those risks which society recognizes as sufficiently great to demand precaution. The risk must be unreasonable, before he can be expected to subordinate his own ends to the interests of other." 98 Many of the problems that now beset negligence law and extend the liability of defendants to unreal levels stem from weakening the test of reasonable foreseeability. But courts have exacerbated the impact of this weakening of the foreseeability standard by treating foreseeability and preventability as independent elements. Courts tend to ask whether the risk of damage was reasonably foreseeable and, if so, whether it was reasonably preventable. Breaking breach of duty into elements that are independent of each other has expanded the reach of negligence law. 99 Given the undemanding nature of the current foreseeability standard, an affirmative answer to the question whether damage was reasonably foreseeable is usually a near certainty. And a plaintiff usually has little trouble in showing that the risk was reasonably preventable and receiving an affirmative answer to the second question. This is especially so since Lord Reid said that a reasonable person would only neglect a very small risk of injury if there was "some valid reason" for disregarding it, a proposition that effectively puts the onus on the defendant to show why the risk could not have been avoided. Once these two questions are answered favourably to the plaintiff, there is a slide - virtually automatic - into a finding of negligence. Sometimes, courts do not even ask the decisive question in a negligence case: did the defendant's failure to eliminate this risk show a want of reasonable care for the safety of the plaintiff? They overlook that it does not follow that the failure to eliminate a risk that was reasonably foreseeable and preventable is not necessarily negligence. As Mason J pointed out in Shirt in a passage that is too often overlooked: "The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.""
In Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422, the following statements of principle were made by Gummow J as follows: "60 The determination of the existence and content of a duty is not assisted by looking first to the damage sustained by the plaintiff and the alleged want of care in that regard by the defendant. There is a particular danger in doing so in a case such as the present. The focus on consideration of the issue of breach necessarily is upon the fate that befell the particular plaintiff. In that sense analysis is retrospective rather than prospective. 61 In his reasons in this appeal, Hayne J explains why an examination of the causes of an accident that has occurred does not assist, and may confuse, in the assessment of what the reasonable person ought to have done to discharge the anterior duty of care. Moreover, an assessment of what ought to have been done, but was not done, critical to the breach issue, too easily is transmuted into an answer to the question of what if anything had to be done, a duty of care issue."
Hayne J in the same case said: "105 The central issue in the appeal is whether the Council breached a duty of care it owed to the appellant by not erecting one or more signs warning against, or prohibiting, diving from the rock platform. Resolving that question, a question of fact, hinges critically upon recognising that what has come to be known as the "Shirt calculus" is not to be undertaken by looking back at what has in fact happened, but by looking forward from a time before the occurrence of the injury giving rise to the claim. The several questions described by Mason J in Wyong Shire Council v Shirt are to be asked and answered with that perspective. Thus, before the appellant was injured, would "a reasonable man in the [Council's] position ... have foreseen that his conduct involved a risk of injury to the [appellant] or to a class of persons including the [appellant]"? If the answer to that question is affirmative, "it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk". As Mason J went on to point out: "[t]he perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have." 106 In the present appeal (and in the matter of Mulligan v Coffs Harbour) it is this second set of inquiries (about response to a risk that is foreseeable) which is critical. That is because foreseeability of risk of injury, at least since Shirt, if not before, includes risks which, although quite unlikely to occur, are not far-fetched or fanciful. … 118 That may suggest that an attempt should be made to define the content of the Council's duty of care more precisely. Subject to one qualification, that would not be a useful exercise. The qualification is that it is necessary to recognise that the duty of care, owed by a statutory authority to those who enter land of which the authority has the care, control and management, is not a duty to ensure that no harm befalls the entrant. It is a duty to take reasonable care. Beyond that, however, it is not possible to amplify the content of the duty without reference to particular facts and circumstances. In each case, the content of the duty will turn critically upon the particular facts and circumstances. Breach of duty 119 Recognising that the Council owed those who entered the Norah Head Reserve, including the appellant, a duty to take reasonable care, the central question in this case is what performance of that duty required. The appellant sought to answer that question by referring to the several matters mentioned earlier in these reasons: knowledge of diving, encouragement, knowledge of previous injuries and littoral drift. These were said to require the conclusion (like that reached in Nagle) that the Council should have warned against diving from the rock platform or should have prohibited that practice. … The particularity of the inquiry 121 All the matters relied on by the appellant in connection with breach of duty took as the focus of their attention what was to be done about diving from the rock platform near Soldiers Beach. Is that question too confined? 122 A plaintiff in a negligence action must prove that the defendant owed the plaintiff a duty of care. That duty may be proved to exist by showing that the defendant owed a duty of care to a class of persons of whom the plaintiff was one. But the duty thus established is a duty which the defendant owed to the particular plaintiff. If the analysis is interrupted at this point, the focus in the present case upon what, if anything, the Council ought to have done about diving from the rock platform is well justified. It is well justified because the question is whether the Council breached the duty of care which it owed to the appellant. And it is clear, therefore, that to ask what was to be done about diving from the rock platform near Soldiers Beach was a relevant, indeed a central, question to ask and answer. But, as Romeo v Conservation Commission (NT) demonstrates, while it is necessary to look at what ought to have been done in relation to activities on the rock platform, attention cannot be confined to the precise place at which the events in question took place. In deciding what the response of a reasonable council would have been to the risk of diving injuries it is necessary to recognise that that council would be bound to consider all of the land of which the council had the care, control and management. That consideration may yield different answers for different places but all would have had to be considered. And it is a consideration that must be set into a much wider context than is provided by focusing only upon diving injuries. The duty of care which a council owes to those who enter land of which it has the care, control and management is a duty which is not limited to taking reasonable care to prevent one particular form of injury associated with one particular kind of recreational activity. … 124 Again, because the inquiry is prospective, it would be wrong to focus exclusively upon the particular way in which the accident that has happened came about. In an action in which a plaintiff claims damages for personal injury it is inevitable that much attention will be directed to investigating how the plaintiff came to be injured. The results of those investigations may be of particular importance in considering questions of contributory negligence. But the apparent precision of investigations into what happened to the particular plaintiff must not be permitted to obscure the nature of the questions that are presented in connection with the inquiry into breach of duty. In particular, the examination of the causes of an accident that has happened cannot be equated with the examination that is to be undertaken when asking whether there was a breach of a duty of care which was a cause of the plaintiff's injuries. The inquiry into the causes of an accident is wholly retrospective. It seeks to identify what happened and why. The inquiry into breach, although made after the accident, must attempt to answer what response a reasonable person, confronted with a foreseeable risk of injury, would have made to that risk. And one of the possible answers to that inquiry must be "nothing"." 125 There are fundamental reasons why the inquiry cannot be confined to where the accident happened or how it happened. Chief among them is the prospective nature of the inquiry to be made about response to a foreseeable risk. Look forward or look back? 126 When a plaintiff sues for damages alleging personal injury has been caused by the defendant's negligence, the inquiry about breach of duty must attempt to identify the reasonable person's response to foresight of the risk of occurrence of the injury which the plaintiff suffered. That inquiry must attempt, after the event, to judge what the reasonable person would have done to avoid what is now known to have occurred. Although that judgment must be made after the event it must seek to identify what the response would have been by a person looking forward at the prospect of the risk of injury. 127 There may be more than one place where this risk of injury may come to pass. Because the inquiry is prospective there is no basis for assuming in such a case that the only risk to be considered is the risk that an injury will occur at one of the several, perhaps many, places where it could occur. … 128 If, instead of looking forward, the so-called Shirt calculus is undertaken looking back on what is known to have happened, the tort of negligence becomes separated from standards of reasonableness. It becomes separated because, in every case where the cost of taking alleviating action at the particular place where the plaintiff was injured is markedly less than the consequences of a risk coming to pass, it is well nigh inevitable that the defendant would be found to have acted without reasonable care if alleviating action was not taken. And this would be so no matter how diffuse the risk was - diffuse in the sense that its occurrence was improbable or, as in Romeo, diffuse in the sense that the place or places where it may come to pass could not be confined within reasonable bounds."
Similar observations were made by Hayne J in Mulligan v Coffs Harbour City Council [2005] HCA 63; 223 CLR 486. There his Honour said: "50 As is explained in Vairy, a statutory authority having the care, control and management of land to which the public has access owes each member of the public who enters the land a duty to take reasonable care. In assessing what performance of that duty requires it is necessary to ask first, whether the risk of injury of the kind sustained by the plaintiff was reasonably foreseeable and secondly, what the reasonable person would have done in response to that risk. Although the judgment about what would have been the reasonable response to the risk must be made after the event, the inquiry is directed to identifying what the reasonable response would have been by a person looking forward at the prospect of the risk of injury. That must be assessed having regard to the magnitude of the risk, the degree of probability of its occurrence, the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities the alleged tortfeasor may have. And because the inquiry is prospective, there is no basis for assuming that the only risk to be considered by the reasonable person is the particular kind of risk that came to pass at the place and in the way it did. 51 The appellant was injured when he did something that he had done several times before. It was something that many others had done before him. He launched himself into the water by plunging forward into it. But on the last occasion he did so at a point that was too shallow for him safely to execute the entry he attempted. That a swimmer might do that was reasonably foreseeable. The risk of injury resulting from this activity was not far-fetched or fanciful. But would a reasonable authority having the care, control and management of a reserve beside the creek, or having the care, control and management of the creek itself, respond to that risk by warning against diving or warning that the creek may be too shallow? I would answer that question: no." (See also Hallmark Construction Pty Ltd v Brett Harford; Copeland Building Services Pty Ltd v Hallmark Construction Pty Ltd; Hallmark Construction Pty Ltd v Harford Transport Pty Ltd [2020] NSWCA 41.)
It follows that the plaintiff's approach to this issue, i.e. whether further guarding was required over the hoses and fittings on the Feeder Breaker was fundamentally flawed. That, however, is not the end of the matter. It is necessary to apply the correct test to ascertain whether despite the fallacy in his approach, the plaintiff has in fact made out a case in negligence based on insufficient guarding of components on the Feeder Breaker.
Although the plaintiff was not employed by the first defendant, he was working at premises controlled by it and was subject to its directions. Accordingly, the principles set out in TNT Australia v Christie and Ors [2003] NSWCA 47 apply.
In the plaintiff's Further Amended Statement of Claim he set out what were described as the "obligations upon the first defendant" in paragraph 4. Those obligations are quite specific. I prefer the articulation of duty in the Further Amended Statement of Claim at paragraph 11 which is appropriate, although pleaded at a high level of generality. I find that the duty owed by the first defendant to the plaintiff was a duty to take reasonable care to avoid causing harm to him, i.e. the duty owed by the first defendant to the plaintiff was analogous to that owed by an employer to an employee.
The reason I am critical of the "obligations" referred to in paragraph 4 and have postulated a duty at a high level of generality is to avoid the risk identified in Graham Barclay Oysters Pty Limited v Ryan [2002] HCA 54; 211 CLR 540 of articulating the duty of care by reference to breach.
In Graham Barclay Oyster Pty Limited v Ryan Gummow and Hayne JJ said: "191 An analysis of the competing considerations referred to in Wyong Shire Council is impeded, not assisted, by formulating the relevant duty of care in terms of its breach, which was the approach that the majority in the Full Court appeared to adopt. The use by Kiefel J in the passage quoted in [189] above of the words "sufficient" and "could be regarded" does not deny the cogency of the submission by the Barclay companies that duty was identified in terms of breach. 192 A duty of care that is formulated retrospectively as an obligation purely to avoid the particular act or omission said to have caused loss, or to avert the particular harm that in fact eventuated, is of its nature likely to obscure the proper inquiry as to breach. That inquiry involves identifying, with some precision, what a reasonable person in the position of the defendant would do by way of response to the reasonably foreseeable risk. As Isaacs ACJ observed in 1924, "[n]o conclusion of negligence can be arrived at until, first, the mind conceives affirmatively what should have been done". The trial judge and the majority of the Full Court in the present case failed to identify with the necessary precision, by reference to considerations of the nature of those indicated in Wyong Shire Council, the reasonable response to the risk of harm that existed. In so failing, their Honours fell into an error of law. There is no serious dispute as to the facts to which the law is to be applied. Thus, it is appropriate for this Court to resolve the matter. For the reasons that follow, the proper application of principle requires a conclusion different to that reached in the Federal Court."
As was somewhat belatedly appreciated by the parties because this claim involved a coal mine, the provisions of the CLA apply. Accordingly, having identified the relevant duty of care, it was necessary to consider the issue of breach. The relevant provisions of the CLA are 5B and 5C which provide as follows: "5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm. 5C Other principles In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk."
There is a preliminary difficult in applying the CLA to the facts of this matter in that we do not have all the facts relating to how the plaintiff suffered his high pressure injection injury. Most particularly, we have no explanation for how the hydraulic fittings and hoses became energised. It follows that if because of this lack of evidence it is not possible to establish breach of duty in accordance with the CLA, the plaintiff's claim must fail.
I find that the relevant risk of harm was the risk of a high pressure fluid injury to a person who was positioned at or around the Feeder Breaker when it was in Sequence mode.
I have concluded that such a risk was not foreseeable in that there should have been no pressure in the Feeder Breaker, in particular the hydraulic fittings and hoses, while the machine was in Sequence mode. There is also the unchallenged evidence of Mr Maynard that the guarding was not extended because it was not in "a normal place of work" (at [104] hereof). Accordingly, this was not a risk of which the first defendant knew or ought to have known. Similarly, in the circumstances, the risk was "not significant" in that there should have been no risk of that kind of harm. As a result, there were no precautions which a reasonable person in the first defendant's position should have taken.
It also follows that the probability that harm would occur was, if not non existent, so low as to be most unlikely. I accept that the likely seriousness of the harm was substantial. I also accept that the burden of taking precautions to avoid the risk of harm was low. The social utility of the activity, i.e. the processing of coal, was substantial.
I have reached the above conclusion because all of the evidence at trial was to the effect that when the Feeder Breaker was in Sequence mode, it was not energised and therefore it was not possible for such an injury to occur. There was no evidence at trial to the contrary. It was agreed by Messrs Maynard, Koppe and Parish that there would need to be some intervention in the nature of either operating the pendant control or changing the mode before the possibility of such an injury could arise.
The plaintiff relied upon the evidence of oil on various parts of the hydraulic system as being corroborative of his evidence, i.e. that there was a pre-existing leak and that someone appeared to have tried to wipe up the leak with the blue rag and had simply left the rag in position.
This does not necessarily follow. The presence of oil as found and recorded by Mr Koppe, is equally consistent with the fact of the plaintiff's injury. He suffered a high pressure fluid injury. Of its nature, this involved the discharge of some quantity of liquid. Accordingly, the presence of oil where indicated by Mr Koppe was simply consistent with the nature of the injury. It is also consistent with there being a second discharge, which was described by the plaintiff in his initial statement to Mr Koppe. Accordingly, the plaintiff is still left with a failure to explain how such an injury could have occurred with the Feeder Breaker in Sequence mode and if the pendant control had not been operated.
If I am wrong in that assessment, and this risk of harm was foreseeable, the risk of such an injury occurring was extremely low. This is because of the job which had been allocated to the plaintiff. He was required to clean the machine which meant wiping it down with a rag and inspecting the electrical parts visually but not in any invasive way. There was no suggestion anywhere in the evidence that during this shift, the Feeder Breaker was going to change its mode of operation from Sequence mode.
The work which the plaintiff was performing at and about the Feeder Breaker did not involve him moving aside the polyurethane/Kevlar guard so as to get access to the hydraulic fittings or hose ends. For a person performing the job allocated to the plaintiff, there was no need for there to be an increase in the guarding of the fittings and hose ends beyond that which already existed. A similar observation can be made in relation to a person operating the Feeder Breaker, although the only evidence on this issue was that such an operator was especially trained and would stand next to the Feeder Breaker holding the pendant control. It also follows from those considerations that a reasonable person in the first defendant's position would not have taken the precaution of extending the guard so that it covered the fittings and the hose ends as they were connected to the fittings.
I accept that if one ignores the problem created by the Feeder Breaker being in Sequence mode at the time when the plaintiff said he was injured and assumes the plaintiff's first scenario, i.e. an unknown person finding the leak, doing nothing about it and then subsequently repairing the leak, s 5B of the CLA is made out. For the reasons already indicated, however, I find that that scenario involves speculation built upon speculation and should be rejected.
It is also significant that no scenario was put forward by the plaintiff which would explain why any worker, be it a specially trained Feeder Breaker operator or someone performing the relatively simple task allocated to the plaintiff, would place his hand or hands inside the polyurethane/Kevlar guard while the hydraulic system on the Feeder Breaker was pressurised. Without such a scenario, the risk of harm in this case was simply not reasonably foreseeable. It matters not that Mr Koppe directed the first defendant to extend the guards so that they included the hydraulic hose ends and fittings. All that he was doing was responding to something which was known to have happened, even though he was unable to explain how it had happened without resorting to speculation.
The various breaches of regulation under the Coal Mine Health and Safety Act and the Work Health and Safety Act do not take the matter any further for the plaintiff. Nowhere in his extensive report does Mr Cockbain explain how an accident of this kind could have occurred with the Feeder Breaker in Sequence mode or without the plaintiff depressing the button on the pendant control. Accordingly, his report does not assist in establishing how this risk of harm was foreseeable in accordance with the provisions of s 5B CLA.
It follows from the above analysis that the plaintiff has failed to establish liability in negligence pursuant to the CLA.
As an alternative, the plaintiff sought to rely upon the principle of res ipsa loquitur.
The concept of res ipsa loquitur was considered by the High Court in Schellenberg v Tunnel Holding [2000] HCA 18; 200 CLR 121. The facts of that case involved a workman using a handheld grinder when the hose delivering high pressure to the grinder became loose and swung upwards striking him in the face and causing him injury. The worker sued his employer in negligence. At the trial he failed to establish any specific allegation of negligence but was allowed to amend the statement of claim to allege that the fact that the air hose separated from its fitting was in itself evidence of negligence.
Having reviewed the history of the matter, both at first instance and on appeal, and having examined the authorities relevant to the application of the principle, Gleeson CJ and McHugh J found the following: "24 What flows from these statements of principle is that, while res ipsa loquitur may ameliorate the difficulties that arise from a lack of evidence as to the specific cause of an accident, the inference to which it gives rise is merely a conclusion that is derived by the trier of fact from all the circumstances of the occurrence. When it applies, the trier of fact may conclude that the defendant has been negligent although the plaintiff has not particularised a specific claim in negligence or adduced evidence of the cause of the accident. But it does nothing more. For example, it does not reverse the onus of proof or displace the principle in Jones v Dunkel. 25 Piening v Wanless and Anchor Products Ltd v Hedges as well as other cases in this Court make it clear that a plaintiff may rely on res ipsa loquitur even though he or she has also pleaded particular acts or omissions of negligence on the part of the defendant provided that the tribunal of fact concludes that: 1. there is an "absence of explanation" of the occurrence that caused the injury; 2. the occurrence was of such a kind that it does not ordinarily occur without negligence; and 3. the instrument or agency that caused the injury was under the control of the defendant. … 27 In our opinion, the defendant's argument is correct in asserting that the principle of res ipsa loquitur had no application once the learned trial judge found that the hose separated from the jamec coupling. The question then became whether the plaintiff had proved that the separation of the hose from the jamec coupling occurred in circumstances of negligence. The relevant occurrence in the present case was the accident - the detachment of a hose, carrying compressed air, swinging around and striking the plaintiff in the face. If accidents of that kind do not occur if those who have control of the hose and its attachments use proper care, the plaintiff was entitled to rely on res ipsa loquitur to make out a prima facie case of negligence and it was then for the judge to hold whether the occurrence constituted negligence having regard to all the other circumstances of the case. But once the cause of the occurrence was proved, the principle could play no part in the proceedings. 28 Here the trial judge held that the occurrence was caused by the separation of the hose from the jamec coupling. Once that was proved, res ipsa loquitur ceased to apply as a reasoning process. This is clear from Piening v Wanless where this Court had to consider the application of the principle in circumstances where a car had run off the road as the result of a steering failure. Barwick CJ, who gave the leading judgment, said: "But the majority of the Supreme Court have said that the failure of the steering was the occurrence which bespoke negligence. To this there are, in my opinion, two answers. In the first place, the occurrence which had to be examined to ascertain whether it furnished evidence of negligence on the part of the driver was the accident, that is to say, the running off the road. The failure of the steering was, I think, the explanation of that occurrence..."."
Applying that reasoning to the facts of this case, the cause of the injury was established, i.e. a high pressure liquid injury. It was not established, nor could it be on this evidence, that such an incident would not occur without negligence. It could not be described as one falling within the common knowledge and experience of mankind. Where an occurrence is outside the experience of the layperson and the evidence does not establish that such an occurrence ordinarily does not occur without negligence, res ipsa loquitur is inapplicable.
In this case, once the cause of the injury was determined, the question became whether the evidence revealed that the occurrence was caused by the first defendant's negligence. For the above reasons, that has not been proved.
I have concluded that the concept of res ipsa loquitur does not assist the plaintiff in this case.

Conclusion

It follows from the above analysis that the plaintiff has failed to establish his case on liability and that there should be a verdict for the defendant.
I make the following orders: 1. Verdict for the defendant and judgment accordingly. 2. That the plaintiff pay the defendant's costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 April 2020

Coal Mine Health and Safety Act 2002(NSW)

Mental Health (Forensic Provisions) Act 1990(NSW)

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