HANN v CLARENCE COLLIERY [2012] NSWSC 475

Supreme Court New South Wales

Medium Neutral Citation: HANN v CLARENCE COLLIERY [2012] NSWSC 475 Hearing dates: 25-29 July, 4-5 August 2011 Decision date: 11 May 2012 Jurisdiction: Common Law Before: RS HULME J Decision: Verdict and judgment for the Defendant Catchwords: Negligence - air-lock in coal mine Legislation Cited: Workers Compensation Act 1987 Category: Principal judgment Parties: Russell Noel HANN (Plaintiff) Clarence Colliery (Defendant) Representation: P: DGT Nock SC/M Vesper D: M Joseph SC/D Stanton P: Barry F Cosier & Associates D: Sparke Helmore File Number(s): 2010/60690

Judgment 1RS HULME J: On 16 June 2007, the Plaintiff in these proceedings was injured in the course of his employment in a coalmine when his wrist became jammed between two doors of an airlock in one of the shafts. 2The airlock was formed by placing, some metres apart, two pairs of doors and their frame across the shaft and sealing by bricks or some other building materials between the frame and the boundaries of the shaft. The purpose of the airlock was to minimise the passage of air through the shaft, a pair of doors when shut being roughly airtight. One pair of doors - the "in-bye doors" - opened into the airlock. The other pair - the "out-bye doors" - opened in the same direction, ie, out of the airlock. Differences in air pressure meant that there was a tendency for air to flow from upstream of the out-bye doors through the airlock or any gaps in the sealing and thence downstream of the in-bye doors. At the time of the Plaintiff's injury, he and a co-worker driving a front-end loader were attempting to negotiate the airlock, proceeding upstream in the air-flow. The normal method whereby this would be done would be to open the in-bye doors, enter the airlock, close the in-bye doors, open the out-bye doors, leave the airlock, and then close the out-bye doors. 3The evidence indicates that each of the four doors is 2 metres wide. There is some conflict in the evidence as to the length and width of the airlock. I shall refer below to this evidence but it appears that the length of the airlock was at least 8.9 metres and its width something over 4 metres. The evidence as to the width of the doors and of the returns or walls between the door frame and the sides of the shaft so indicates. 4The front-end loader referred to was by brand an "Eimco" and was so referred to generally in the evidence. Because the size of the Eimco relative to the size of the airlock undoubtedly contributed to the Plaintiff being injured, I should refer to it. A plan included in the report of Professor Thomas indicates the Eimco in standard configuration was 8.4 metres long although that length could be reduced somewhat by movement of the bucket. The machine width varied between 1830 mm and 1990 mm and the bucket was 2100 mm wide. The evidence indicated that probably a larger than standard bucket was on the machine at the time but I do not regard the evidence as to the extent to which this increased the length as, on its own, sufficiently firm to be relied on. I accept however that it is probable that this larger bucket increased the length of the machine to some extent. There is also, in the form of a Minute referred to below, further evidence of the actual length. 5The Eimco is an articulated vehicle. Its rear is not in one plane and does not meet the sides of the vehicle at right angles; the outside thirds of the rear of the vehicle are angled. The result of these two factors is that, as Professor Thomas said, given space to the side of the vehicle its length can be further reduced to some extent. 6On the day in question, according to the Plaintiff, the Eimco was driven close to the in-bye set of doors by a co-worker, Mr Troy Cameron. The vehicle stopped. The Plaintiff, then on foot, removed some items out of the bucket of the Eimco. The Plaintiff then opened the doors which opened into the airlock and away from the Eimco. The Plaintiff then placed the items he had removed from the bucket in an area to the side of the shaft and outside the airlock. While he was doing this, Mr Cameron drove the Eimco into the airlock and again stopped. 7The Plaintiff then walked into the airlock and reached a position near the left rear corner of the machine. He said that he grabbed the nearby door with his right hand to close it, pulled the door and it hit the back of the Eimco. He asked Mr Cameron to move forward. He said that he thought his "instruction" to Mr Cameron was, "I need an inch, mate." 8The Plaintiff was challenged in respect to the measurement, it being put to him that the lengths of the airlock and Eimco were both 8.9 metres and that the machine therefore had to move more than a metre in order for there to be clearance for the in-bye doors to close. The Plaintiff was firm in his denial of this. 9The Plaintiff said that as soon as the Eimco moved, he felt a current of air and the door he was near swung at him. He put his hands on it to stop it from knocking him over, skipped back with it, trying to control its closing until it hit the door frame. The Plaintiff said that he feared that it would knock the airlock out - by which I understand him to mean damage the in-bye doors or supporting structure. At that stage and while the Plaintiff's arm or hand was still on the door, the other door of the pair slammed on the Plaintiff's right wrist jamming it between the doors. 10The Plaintiff screamed, Mr Cameron came and tried to pull the doors apart but could not. Mr Cameron then returned to the Eimco, drove it through the upstream doors and closed them. He then returned to the downstream doors which he was then able to open and help the Plaintiff. 11It was suggested to the Plaintiff that he should have walked between the Eimco and the side of the shaft. However for some distance that would have entailed the Plaintiff walking between one of the open doors and the Eimco and while the Plaintiff agreed that if he had walked far enough in that would have placed him out of any risk associated with the doors, he said that there was a greater risk walking between the Eimco and the open door. He added that the hydraulics on the Eimco were not very good and the miners had been told not to go near the back of those vehicles because of the hydraulics. Where he was, he was out of the articulate swing. (I note that Professor Thomas' evidence as to the manoeuvrability of the Eimco provides some support for the Plaintiff's evidence of instructions.) 12It was also put to the Plaintiff that he could have positioned himself immediately behind the Eimco and moved forward with it. He agreed but added also that he did not do this because he had to go to the door to grab it to shut it. 13The Plaintiff denied that he knew when he was standing near the door he intended to close that Mr Cameron was going to crack open the upstream set of doors. He said that he did not know before the accident that the bucket was going to hit the upstream doors. 14There are lights on the front of the Eimco. The Plaintiff said that he could not see where the bucket was in relation to the upstream doors nor whether those doors were open or closed but he also agreed that he did not look. He said that he did not know when he asked Mr Cameron to move forward how close to the upstream doors the bucket of the Eimco was or that the bucket would hit those doors or that Mr Cameron was going to open those doors. 15He denied that there was a risk of the upstream doors being opened if Mr Cameron drove forward. Although his evidence in this regard did not come through as clearly as it might have, the tenor of it was that he believed that there was space in the airlock for the Eimco. The Plaintiff also said that he had never seen doors cracked (open) as occurred on the occasion of his injury. 16Asked why he could not see in the lights of the Eimco whether the far doors were open or closed, the Plaintiff said that the vehicle was in front of him and he could not see over it. 17The Plaintiff also said that he had no idea that the cracking of the front doors would impact on the back doors. I take his answer three questions later to be a recognition now of the possibility that such could occur. 18The area where the accident happened was not one where the Plaintiff usually worked. He and Mr Cameron had passed trough the airlock earlier that night in a much smaller vehicle but the Plaintiff had not taken the Eimco to this airlock previously. 19There were also admitted into evidence some business records. The Defendant's Incident Report Form, Exhibit F, records under the heading "Immediate Actions taken by Deputy/Supervisor/Person":- WHY DON'T EIMCO FIT THROUGH DOUBLE DOORS!!! 20Under the heading "Action Required" it is noted, "Doors repositioned to enable adequate space for Eimco + trailer". 21The Defendant's "Notifiable Incident Information Form", Exhibit G, records:- Route (sic) cause was the double doors not far enough apart to allow passage of Eimco And, under a heading of actions taken to prevent the incident from happening again, Stopping erected and doors moved farther apart. Adequate air lock now created. 22A "Coal Notification of Incident Form" from either the Department of Primary Industries or Department of Mineral Resources, Exhibit H, contains similar entries. A minute annexed indicates that the mine standard required doors to be set apart to "allow passage of an Eimco and trailer". It described that "apparent cause of the incident" as "Double doors not installed far enough apart to allow passage or Eimco" and was signed by the Production Superintendent. One document annexed indicates that the mine standard required doors to be set apart to allow passage of an Eimco and trailer. The document went on to say that the doors where the Plaintiff was injured were rectified on 17 June 2007 and the mine conducted an audit on all other machine doors and developed a work list to ensure all doors are to standard. An attached Memorandum on the letterhead of the Defendant said that the current standard requires sufficient distance between sets of doors to allow an Eimco towing a trailer to park between the doors and allow the return side doors to be open and that the total minimum clearance required between door sets is 22 metres. An annexed Mine Safety Operations Investigation Decision Form contains the notation "mine history (for this event) - rare". 23The Minute referred to also recorded that the double doors were set 8.9 metres apart and the Eimco (with a bucket and no trailer) was 8.9 metres long. 24It is clear from these documentary records that airlocks were a common feature of the mine. It is clear also that, if airlocks were to achieve their purpose yet allow the passage of vehicles or persons, that they needed two sets of doors. It is an elementary aspect of the airlocks' use that only one set of doors should be open at a time and that this could be achieved only if the length of the airlock was sufficient to accommodate any vehicle using it with sufficient additional room to allow the in-bye doors to be shut. 25It is elementary also that unrestrained doors, open to roughly 90 degrees (as these were) in any situation are liable to be blown shut quickly and with considerable force if there is a significant current of air blowing through the doorway. I have no doubt that the standard for airlocks referred to in the documents reflect a recognition of these matters. 26It may well be that prior to the Plaintiff's accident, the Defendant had been accustomed to move smaller items of equipment through the airlock in which the Plaintiff was injured, but, be that as it may, once a decision was made to use the Eimco in that area, the Defendant did not ensure that it had a safe system and place of work. Indeed, given the tenor of the post-accident reports as to the alteration of this and other air locks, including the absence of any suggestion of difficulty or undue cost in altering them, I am satisfied that the Defendant did not take reasonable care prior to the Plaintiff's accident to have a safe system and place of work or of the Plaintiff. 27In totality the evidence makes it clear that the principal cause of the Plaintiff's injury was that the airlock was, in practical terms, too short for the Eimco. Probably the airlock was in absolute terms too short for the Eimco to fit in leaving sufficient room for the in-bye doors to be shut. Given that Mr Cameron was not called, and the evidence as to the lengths of the Eimco and airlock was not precise, one should recognise the possibility that the vehicle might have fitted in and that the cause of the out-bye doors being opened was that Mr Cameron drove into them as the result of misjudgement as to precisely how much room he had. It is of course theoretically possible that there was adequate room and that Mr Cameron simply drove into them due to an inability or failure to stop the vehicle prior to it hitting the doors. However, this was not suggested either in evidence or more importantly, in the Defendant's records as to the cause(s) of the accident and accordingly I am persuaded that the cause of the Plaintiff's injury so far as the Defendant was concerned was that the airlock was too short for the Eimco. 28Was the Plaintiff guilty of contributory negligence? In my view he was not. The relativity between the height of the Plaintiff and the Eimco as depicted on the plan of it included in Professor Thomas' report leads to the view that if the Plaintiff had looked he could have seen the top of the out-bye doors. However, there was no reason why he should have looked. Mr Cameron was driving the Eimco, not the Plaintiff. There was no occasion for the Plaintiff to check that Mr Cameron was doing his job properly. And even if the Plaintiff had looked, the Plaintiff was some 8 metres or so away from the doors, about twice as far away as Mr Cameron. He was in a dark coal mine and it is by no means apparent to me that the little lighting available - which would seem to be the headlights of the Eimco and head lamps of the Plaintiff and possibly Mr Cameron would have lit up such portion of the doors as were visible to the Plaintiff from the rear of the machine to such a degree as to inspire doubt on the Plaintiff's part as to whether the Eimco would fit. The Plaintiff had never come across this problem before and the Defendant's own documents lead to the conclusion that it was unexpected. 29Nor do I see any fault on the part of the Plaintiff in asking Mr Cameron to move the Eimco without the Plaintiff himself going to the front of a machine to see if there was space available. And although his request to Mr Cameron to move the Eimco has been referred to as an "instruction", given the respective tasks upon each was engaged, it is impossible to regard what the Plaintiff said as in any way an "order". I see no fault either on the part of the Plaintiff in positioning himself as he did near the rear of the machine. He had no reason not to place himself where he did, nor to foresee the risk of the front doors being opened and the rear doors closing in the way they did. The Plaintiff had at some stage to close the doors and, indeed he had commenced on that task prior to Mr Cameron being asked to, and then moving the Eimco. It was also not unreasonable, if in retrospect unwise, for the Plaintiff to attempt to stop the door he was near from slamming. 30It was further submitted on behalf of the Defendant that I should infer that the cause of the accident was that the Eimco was taken through the two sets of doors in one continuous motion. Mr Joseph sought to support the this submission by selective references to various statements or documents but I am satisfied that the events did not occur in any such fashion. I should add to what I have said that, with the exception of his evidence as to not being able to see over the Eimco and notwithstanding an attack on his credibility referred to below, I accept what the Plaintiff said in respect of the circumstances of the accident. 31I should add that, in arriving at the conclusions I have, I have not disregarded various Occupational Health and Safety provisions to which I was referred, nor various statements in the report of the opinions of Dr Thomas. To the extent to which they support my conclusions I have not found it necessary to rely on them and I am satisfied that in no significant respect do they argue against my conclusions.