Written by Peter CarterDecember 30, 2010
A seriously injured mine-worker overcame “improbable” facts “that might have been so obscure that no conclusions could be drawn”, to defeat the combined resistance of his employer Downer EDI and mine-owner Newcrest, in a pre-Christmas court ruling out of the Supreme Court in Rockhampton*.
In the absence of any direct evidence as to how John Osborne fell over the edge of an open “stope” (a vertical shaft) – or even any evidence as to how he came to be there – the court decided to conclude which of various improbable unknown events were more probable.
Relevant were the knowns: the driller plaintiff was a 20 year veteran; his task for the morning was to drill cable bolt holes at predetermined marked locations in an underground mine tunnel; and his unconscious and bloody body was found 16m below the top edge of the stope.
In dispute were the unknowns: how and why the plaintiff encountered the stope; and whether or not a barrier chain with a warning sign, had been in position to warn him of the hazard.
The company’s production engineer – who had by the date of trial been promoted to mine manager and who was seen to be “there to defend the company” – swore that he instructed the plaintiff that the drill point location marker was about 30 m into the tunnel. The plaintiff denied being given any instruction as to its location.
His honour meticulously analysed the events. The only explanation for him being anywhere near the stope, decided the court, was if Osborne was still looking for the marking indicating where to drill and had not been precisely instructed as to the marker’s location:
“It seems to me that that the probabilities strongly favour the view that Mr Osborne entered the tunnel not knowing precisely where the markings were that he had to locate, because no one had told him and he had not thought to ask.”
The second issue was whether or not a chain with a warning sign had been slung across the tunnel. His honour accepted the existence of the barrier (against the memory-deficient and contrary allegation of the plaintiff) but ruled, on the evidence of the mine company’s surveyor, that the plaintiff would in any event have been entitled to pass by the barrier to carry out his authorized duties.
The court thus concluded the unknowns in favour of the plaintiff and on those findings, a fall from the edge was “plainly foreseeable”.
The employer could have avoided the risk of injury by providing a worker “with precise written instructions about the location of the markings” and by erecting a “bund” immediately before the stope.
And because mine work is particularly hazardous – requiring work in pitch darkness with limited vision – the failure to adopt “best practice” represented in this case, a failure to take reasonable care.
The plaintiff was nevertheless found to have been contributorily negligent: “there was no excuse to him not scanning the area carefully before proceeding forward”. Failing to do so was a “significant departure from the standard of care expected of an experienced miner”.
Given the earlier findings of “limited directional light” and his “concentration on the task of finding marks on the wall”, Mr Osborne is entitled to feel just a little unlucky with this outcome.
His honour assessed contributory negligence at 35%, well below the 50% contended for by the defendants. Quantum had been agreed before trial. The resulting judgement for the plaintiff was for $432,000.
A certain outcome can still be far more satisfactory than the unknown – however probable one may have thought a different result to have been.
* Osborne v Downer EDI Mining Pty Ltd & Newcrest Mining Ltd  QSC 470