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Written by Peter Carter

January 13, 2016

A cement-truck driver who sustained serious spinal injuries when his head struck the roof of the cab as it traversed a rocky portion of a decline at a Mt Isa mine has blamed a sub-standard driver’s seat for his injury.

Austen Conway’s case was that during his Christmas Day shift in 2010 – because he “hit the retarder brake to 75%” after the first impact with the rocks – he was thrown around in his seat and into the roof.

He engaged solicitors who delivered a notice of claim against Mt Isa Mines and Jetcrete in August 2011 that included allegations they failed to provide training and “adequate safety equipment” to avoid such injury.

A lawsuit was filed in September 2012 particularising Jetcrete’s and MIM’s liability. The allegations included “failure to take reasonable precautions to avoid foreseeable risk of injury whilst the plaintiff was undertaking work at the mine”.

In March 2015 Conway’s new lawyers gave notice that they intended to amend the pleading to include new allegations that the plaintiff had not been adequately trained to make suitable seat adjustments; the absence of suitable seat belt restraints; the use of inappropriate radial tyres; and providing a driver’s seat that could not be easily adjusted to accommodate the driver’s height and weight.

The seat pressure in the truck – it was “pumped to the max like you couldn’t get it any higher or stiffer” –  was found to have “caused excessive bouncing on rough roads” and significantly hindered the seat’s shock absorption properties.

Jetcrete objected to the proposed amendments contending, that they constituted a new cause of action and did not arise out of substantially the same facts as a cause of action for which relief had already been claimed as required by UCPR 376(4).

Supreme Court Justice James Douglas ruled in July 2015 that the amendments did not constitute any new cause of action concluding that the new allegations “could properly be described as particulars of the existing allegations of negligence” of Jetcrete’s failures take reasonable precautions to avoid foreseeable risk of injury.

On appeal (in which Mount Isa Mines was not a party), Jetcrete asserted that the negligence allegation was only directed to the state of the “decline” and therefore particulars of negligence relating to the driver’s seat, were entirely new.

Not so ruled Justice Peter Applegarth who gave the lead decision on behalf of the appeal judges.

Because the “story” already narrated and pleadings included a description of the rocky “decline” as well as Conway being tossed about in the driver’s seat, the “broad allegation” of “failure to take reasonable precautions” must be held to relate to all matters the subject of such narrative.

He then went on to note that “minds may reasonably differ about on which side of the dividing line additional facts introduced by amendment fall”.

“This is a case in which the view could reasonably be taken that the relevant amendments involve more detailed pleading of the same pathway to liability already pleaded”.

Thus it was unnecessary as regards those amendments – as decided trial judge – to even consider whether it arose out of “substantially the same facts”.

Judge Applegarth the further amendment notified, namely breach of the Mining and Quarrying Safety and Health Act – which was indeed a new cause of action – arose out of “substantial same facts” of the cause of action already pleaded.

He concluded that the allegation of breach of statutory duty merely “gave content to [Jetcrete’s] common law duty of care and allegations of negligence.”

Because the allegation arose out of “substantially the same story which would have to be told to support the original cause of action” the criteria specified in UCPR 376 should be considered as having been met.

Likewise the allegations of insufficient training and the inadequate condition of the truck.

The appeal judges also dismissed Jetcrete’s claim that the trial judge failed to give sufficient weight to the prejudice it might suffer given that “the vehicle was no longer in its possession and its seat and tyres were unlikely to be in the same condition as they were at the date of accident”.

“Any prejudice which Jetcrete might encounter stood to be assessed in light of its previous inspections and investigations and the investigations undertaken by other parties,” the court ruled.

The appeal was dismissed and Jetcrete was ordered to pay Conway’s costs of the appeal.

The court records do not disclose the damages that were awarded but given the nature of the injury are likely to have been significant.

Jetcrete Oz Pty Ltd v Conway & Anor [2015] QCA 272 Fraser JA and Applegarth and Henry JJ 11/12/2015

Categories: Personal Injury , Litigation & Law Practice

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