Van Opstal v Australian Iron & Steel Pty Limited [2000] NSWSC 1082

New South Wales Supreme Court

CITATION : Van Opstal v Australian Iron & Steel Pty Limited [2000] NSWSC 1082 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC W 200110/96 HEARING DATE(S) : 17 - 21 July 2000 JUDGMENT DATE : 24 November 2000

PARTIES : Peter Van Opstal (Plaintiff) Australian Iron & Steel Pty Limited (Defendant) JUDGMENT OF : Dunford J

COUNSEL : Mr P Hall QC / Mr B Ingram (Plaintiff) Mr J Gleeson QC / Mr P Menary (Defendant) SOLICITORS : Maguire & McInerney (Plaintiff) Sparke Helmore (Defendant) CATCHWORDS : NEGLIGENCE - employer/employee - coal miner hits head on roof bolt - assessment of damages LEGISLATION CITED : Workers Compensation Act 1987, Part 5 DECISION : Judgment for plaintiff; damages see paras 46 & 47.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DUNFORD J Friday, 24 NOVEMBER 2000 W 200110/96 PETER VAN OPSTAL v AUSTRALIAN IRON & STEEL PTY LIMITED JUDGMENT 1 HIS HONOUR: In these proceedings the plaintiff claims damages for personal injuries allegedly suffered by him on 8 May 1995 in the course of his employment by the defendant at the Appin Colliery, which it is said caused significant aggravation to degenerative changes, resulting amongst other things in his inability to continue working. The proceedings are governed by Part 5 of the Workers Compensation Act 1987. 2 The plaintiff was a deputy employed in the Colliery and for two weeks prior to 8 May had been working on "belt patrol", but on that day he was asked to return to the Brennan Panel (where he had previously worked) to replace another deputy on the afternoon shift from 12.45 to 8.30 pm. The Brennan Panel which was some 500 metres underground consisted of a number of "roadways" and in one of the roadways a "continuous miner" machine operated by Peter Gordon was cutting coal at the coal face. From the continuous miner, the coal was transferred to a shuttle car and then to a further shuttle car for it to be withdrawn from the mine, but because the lengths of cable used to operate the shuttle cars were not long enough, the coal was being stored in another roadway known as 28 LW Face Heading which ran at right angles to the roadway in which the continuous miner was working. The storage of coal is apparently referred to in the industry as "stowing". 3 The plaintiff said that on commencing his shift he went to the Deputies' Station where he had a number of tasks to perform and then went to various parts of the panel doing a number of inspections required, such as roof, ribs, (walls of roadways), gas levels, ventilation and stoppings. At about 3.30 pm he came to where the continuous miner was operating and the driver, Peter Gordon, told him that it was dusty and warm and the gas levels were considerably high, so he went to investigate. He proceeded outby, checking first the ducting from the fan and then the fan itself for any problems and then walked back inby to the junction of the panel where the continuous miner was operating and 28 LW Face Heading where he found there was more air going into the former than required. He therefore decided to enter 28 LW Face Heading to check the ducts and regulator in that heading. 4 Having done so, whilst scrambling over the stowed coal to get to the regulator at the end of the heading he hit his head on a protruding roof bolt which had a loop attached to it. His head, neck and shoulders were sore and he sat on the ground for a while and then proceeded to the end of the heading where he found that the regulator had fallen off the end of the vent tube, so he replaced it and put a wedge in the joint to make it tighter. On his way out he attempted to, but could not, remove the loop as it was too tight so he pushed some white paper through it to make it more prominent. He then went back to the Deputies' Station, and continued his duties until the end of his shift. 5 He described the roof bolt as being approximately 8 foot long and an inch wide fixed into the roof of the roadway, and said that it was badly installed, as it was protruding from the roof a lot further than the other bolts. He said that loops on the end of roof bolts were generally used for putting a chain block through for lifting heavy objects, and when they were not being used for such a purpose they were normally unscrewed and removed, to be used again. 6 At the time of the accident he was wearing a safety helmet with a light on it, but did not see the bolt because the area was very black and he was scrambling along, bent over, looking where he was going because of the loose coal on the floor. The height from the floor to the ceiling was approximately 3 metres and the head clearance was approximately 1.5 metres. The coal was stowed in uneven piles from the left hand rib to the right hand rib, right back to about 20 metres from the intersection and the area was approximately 5 metres wide. The coal had been deposited there by shuttle cars and accumulated over more than one shift. 7 The defendant's procedures for the "Stowing of Coal in Development Panels" (Ex. B) was tendered, paragraph 6 of which provides: "A throughway for deputies inspections is to be maintained along at least one side of the stowage area."