Mine operator solely liable for injuries to labour hire worker20 July 2017 | Contractors' & Host Employers' Liability
Whether a mine operator is liable for injury to an employee of a contractor for personal injury.
Whether mine operator liable for personal injury to employee of contractor, including whether vicariously liable.
The plaintiff was an operator employed by Wilson Mining Services Pty Ltd (Wilson). He was undertaking roof bolting work at the North Goonyella Coal Mine operated by the defendant.
In the course of the bolting, a co-worker, Mr Clint Saliba, was operating the bolter and the plaintiff was acting as offsider. A drill steel became lodged in the roof after interference with the water supply to the bolter. After the plaintiff and Mr Saliba had rectified the water problem, they returned to the bolter and recommenced bolting. The bolter was alleged to have dropped without warning and struck the plaintiff on the head/neck.
The employer, Wilson, was not a party to the claim. The plaintiff proceeded only against the defendant mine operator. The plaintiff alleged that an Eimco driver employed by the defendant had interfered with the air line to the bolter, causing it to drop without warning. The plaintiff’s allegations against the defendant included vicarious liability for the Eimco operator’s actions, breach of the duty owed by a host employer, breach of statutory duty (Coal Mining Safety and Health Act 1999 (CMSHA)) and breach of a non-delegable duty owed at common law.
The Decision at Trial
The Queensland Supreme Court found that the defendant was host employer and owed a personal and non-delegable duty of care to the plaintiff. The defendant was required to ensure that others, including the Eimco driver, exercised reasonable care. The duty was breached because of the actions of the unidentified Eimco operator in interfering with the airline and the failure of the defendant to have in place a system of tagging out airlines.
The court did not specifically find that the defendant was vicariously liable for the Eimco’s operator’s actions, as there was an issue as to proof of whether the operator was employed by a subsidiary of the defendant. However, the court noted that it was strongly arguable that the defendant should be held responsible for the negligent acts of third party employees in the circumstances. The court also declined to decide whether a beach of the CMHSA conferred a private right of action because breach had been found on other grounds. However, it commented that an inference was available that a private right of action was conferred, and the degree of control that the defendant had over operations at the mine was noted.
The plaintiff was awarded $1,356,976.87 plus costs. The plaintiff established that he had suffered a C5/6 injury which will require surgery and causes significant symptoms, despite some conflicting evidence on causation. Notwithstanding evidence of a likely good outcome for the surgery, and evidence about the plaintiff’s recent abilities to undertake activities such as trekking at Mt Everest, a sizeable future economic loss sum of $750,000 was awarded.
Implications for you
The plaintiff in this case succeeded against a mine operator only, highlighting that courts will not shy away from imposing a personal and non-delegable duty upon mine operators, given the degree of control exercised by a mine operator. Ominous comments by the Judge about the possibility of vicarious liability and statutory breach also highlight issues to be mindful of. Further, a defendant must lead cogent evidence of any discounting factors on quantum or causation of injuries.