A central Queensland colliery has argued that underground miners employed by a third party in its mineshafts were – to avoid injury liability – specialist subcontractors rather than labour hire employees under its direction and control.
Marc Love’s legal employer, Wilson Mining Services Pty Ltd deployed him for the performance of emergency roof collapse remediation at the North Goonyella mine at Moranbah.
As at August 2010 – when Love was seriously injured underground – only five Wilson employees counted among the total 120 or so colliery personnel.
They wore a distinctive Wilson uniform as opposed to the blue uniform of North Goonyella direct employees. There were several other third party companies who had their employees on site many of whom also wore the NG uniform.
The senior site manager – an employee of Peabody Energy Australia – had directed as many as possible, should for teambuilding purposes, sport the uniform regardless of who was their legal employer.
As might be expected, NG exercised strict controls over those who entered the site and those allowed underground.
At the start of a shift, workers placed their tags on a board at a mine station overseen by a Deputy – employed by NG – who had power under the relevant coal mining legislation to direct all personnel what to do. Specifically, they checked the work being performed by Love and his co-worker Clint Sabida, twice each shift.
That week Love, rather than the roof collapse work Wilson was contracted for, he and Sabida were performing roof bolting work at NG’s direction.
NG assigned them a 50 kg pneumatically driven Rambor machine that relied for the operation its drill motor and extendable leg – that lifted the drill to the mine shaft roof, on a supply of compressed air.
Shortly before the fateful incident, the machine drill got stuck in a coal seam. After fixing a leak in the machine’s water hose, the pair returned to their workstation to free the machine when there was a sudden drop in air pressure causing the extendable leg to collapse and bring the machine crashing down onto the back of Love’s neck.
Clint ran to the Deputy’s station for help. He saw a machinery operator further up the shaft with the disconnected ends of the air hose in each of his hands.
“That’s our air, what are you doing, there’s a bloke in there injured,” he called out.
The unidentified workers replied “Sorry mate, I didn’t know” and ran off never to come forward to identify himself.
In his ensuing injury claim, Love argued there was a lack of system in place to ensure that such intervention did not occur.
This contention was supported by safety engineer Brendan McDougall who testified there should have been a risk management process and instructions given to operators and workers generally not to interfere with their hoses.
The court agreed and that was enough to dispose of the case in Love’s favour.
Justice Duncan McMeekin went on to rule that the unidentified worker was most likely a NG employee for whose actions it was vicariously liable and that because NG exercised such high degree of control over the Wilson employees, it owed “the more extensive duty” of an employer, namely a non-delegable duty of care to do everything reasonable to ensure workers’ safety.
He rejected the argument that the Wilson staff were independent sub-contractors for whom no duty was owed and that in all respects “this was a labour hire agreement”.
General damages for the 37-year-old were assessed at $75k. Past economic loss was allowed $254k. Future economic loss of $750k made up a total award $1.4 million.
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