On 1 June 2014, an underground electrician at Ulan West Coal Mine sustained a high-pressure injection injury whilst working in the vicinity of a Feeder Breaker machine. The worker was sub-contracted to the operator of the mine, who was the defendant in these proceedings.
- The decision considers whether the operator of the mine was vicariously liable for the alleged negligence of a co-worker in failing to report an alleged fault with a piece of machinery, which subsequently caused injury to the worker.
The worker was employed by a labour hire company who supplied services to the mine operator. The worker sustained a high-pressure injection injury whilst cleaning a Feeder Breaker machine in the course of his employment as an underground electrician. The worker's primary submissions was that an unknown person, likely someone in his work crew, had used a blue rag to wipe up or cover the oil leakage from the hydraulic hose or hydraulic fitting in the machine, and failed to report the issue to anyone or attempt to have someone fix it. Subsequent to this when the worker was cleaning the Feeder Breaker, it is alleged that he attempted to grab the blue rag when he was struck on the back of that hand by the high pressure leak. The worker argued that the mine operator was vicariously liable for the negligent conduct of the co-worker who attempted to wipe up the oil leak from the Feeder Breaker.
Upon inspection of the Feeder Breaker after the incident, it was observed that a blue rag had been placed in the machine between the bulkhead and the protective guards for the hose fitting, and that there was no oil identified on the rag. The machine was at the time observed as being in 'Sequence Mode' and should therefore have not been emitting hydraulic pressure. A second inspection and subsequent testing on the machine also revealed that there was no identifiable leak in the machine. At the conclusion of the testing and investigation of the Feeder Breaker, it was found that the worker's accident could not have occurred in the manner that had been reported. At trial, the worker provided evidence that an unknown person may have come back to fix the machine after the incident had occurred which resulted in no issues with the machine being identified upon inspection. A number of witnesses gave evidence at trial indicating the unlikelihood of the incident occurring in the manner pleaded.
Prior to the worker commencing employment at the mine, he was required to complete a medical assessment and induction approval application. At trial, it came to light that the worker failed to disclose some underlying health conditions as part of his medical assessment, including psychological issues, a lack of vision in his left eye giving rise to difficulties with spatial perception, pre-existing back pain, as well as sporadic instances of fits, turns and epilepsy.
Whether the injury occurred in the manner pleaded by the plaintiff was very much a 'threshold issue'. If the worker's account of events was dismissed, then the Court would be forced to make a finding against liability of the mine operator. Placing significant reliance on the credibility of evidence adduced at trial, the Court considered that the worker had failed to establish the requirements of s5B of the Civil Liability Act 2002 (NSW), and dismissed the claim. The Court considered that there was no evidence adduced which supported the worker's proposition that an unknown person negligently failed to report or bring to anyone's attention that there was a leak in the Feeder Breaker.
In determining this, the Court identified a number of key difficulties with the scenario described by the worker:
- It was entirely speculative that an unknown person had come to fix the machine after the incident and prior to the machine going for testing;
- It assumed that the leak came from one of the fittings and could therefore be rapidly repaired by someone who had the knowledge and skills of a mechanical fitter (of which there was only one person on site meeting this description, who gave evidence that he did not fix the machine);
- It pre-supposed that the unknown person who identified the leak, covered it with a blue rag knowing it was highly dangerous, whereas it would have been just as easy to report the issue to a person in a position of authority;
- It was highly likely that a person attempting to fix the machine would have been noticed, and he would have been placing himself at a high risk of suffering injury by doing so;
- Only the worker gave evidence that the blue rag was in the machine at the time when he commenced cleaning it. No one who inspected the machine prior to the worker cleaning it observed a blue rag.
- The machine was in a mode at the time whereby no hoses or fittings were pressurised, so would be unable to cause a high-pressure injury;
- That the worker's history of providing false medical information in obtaining his position at the mine meant it was more likely that his evidence was not credible, and may not have provided an accurate account of events.
The Court identified the relevant risk of harm was the risk of a high pressure fluid injury to a person who was positioned at or around the machine when it was in 'Sequence Mode'. However, due to the fact there was no identifiable cause for the hose or hydraulic fittings becoming energised, the risk of harm was not a foreseeable one. As such, it was concluded that the risk was not one which the defendant ought to have known, and there were no precautions a reasonable person in the defendant's position should have taken.
Implications for you
The decision highlights that it is not enough for an injured worker to establish that a duty was owed and an injury was sustained. The allegation must be supported by sufficient evidence in order for a connection between the duty owed and the cause of the injury. Where a plaintiff provides uncorroborated and unconvincing evidence at trial, the employer may not be liable for the injury sustained. In order for a plaintiff to be successful it must be found that the incident occurred in the manner pleaded, and mere speculation over the cause of the incident advanced at trial will generally not help a plaintiff's claim succeed.