Smith v Ulan Coal Mines Limited (No 2)

HIS HONOUR:

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

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

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

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

The evidence of the plaintiff in the proceedings comprised:

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:

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:

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:

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:

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:

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

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.

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:

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:

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

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

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:

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

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.

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:

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.

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.

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:

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:

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:

Mr Maynard then responded to the following:

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:

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

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

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

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:

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

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:

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:

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

On this issue, further evidence was given:

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

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:

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.

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

Further questions were then asked concerning Mr Walker:

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:

In his second statement, Mr Lopes said:

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:

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:

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:

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:

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:

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:

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:

Mr Williams was asked questions about the blue rag:

Mr Williams was asked questions about guards and protective equipment on the Feeder Breaker:

Mr Williams was asked about where he was positioned in relation to the plaintiff:

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:

Mr Williams was asked about his inspection of the Feeder Breaker:

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.

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

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.

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.

Mr Koppe set out his conclusions as follows:

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:

Mr Cockbain’s approach to those regulations can be seen from the following extracts from his report.

As can be seen, these asserted breaches of regulation are expressed in such general terms that they in effect require proof of negligence before they are effective in giving rise to a separate cause of action.

Apart from anything else, there is considerable doubt as to whether regulation 214(e) could apply to the Feeder Breaker since that regulation applies to “a powered mobile plant”. It is difficult to see how the Feeder Breaker would come within that definition.

Given the emphasis by the plaintiff on common law negligence, and the very generic way in which the breaches of regulation were approached in the trial, I have concluded that unless the plaintiff establishes negligence in accordance with the requirements of the Civil Liability Act, he will not be able to rely upon the allegations of breach of regulation to establish liability against the first defendant.

The first defendant relied upon the expert opinion of Mr Parish. His qualifications were mainly those of a tradesman, although his experience with hydraulic equipment was extensive. His employer was Metropolitan Hydraulic Services and he was in charge of the engineering part of that company. He described his qualifications as follows:

The content of Mr Parish’s expert report was as follows:

The report concluded with various references to JOY Equipment and an attachment being the IEEE Hydraulic Hose Structure.

In a further report, dated 9 October 2019, Mr Parish answered the following questions from the solicitors for the First Defendant.

The experts gave evidence concurrently and were cross-examined. Messrs Parish and Koppe were present in court and Mr Cockbain was in contact by telephone. Before the concurrent evidence of the experts, Mr Koppe gave evidence and was cross-examined.

Mr Koppe was asked:

During the course of the concurrent evidence, the following evidence was given:

Mr Parish was asked further questions concerning his understanding of whether there was adequate guarding of the fittings.

There was a dispute between Mr Koppe and Mr Parish as to the distance over which skin can be penetrated by a high pressure release of liquid. Neither Mr Koppe nor Mr Parish was particularly convincing in their analysis of the issue. Mr Parish suggested 10cms was the appropriate range, whereas Mr Koppe suggested 30cms, i.e. in old terminology, the issue was between 4 inches and 12 inches. At this stage I am prepared to accept that as a range. The true position probably being somewhat less than 30cms but somewhat more than 10cms.

When the concurrent evidence concluded, I put the following question to the experts:

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:

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 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:

Conclusions to similar effect were arrived at by Mr Koppe as a result of his testing.

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.

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:

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:

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

Hayne J in the same case said:

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

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:

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:

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:

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.

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: