Australia: Employee found to have significantly contributed to the occurrence of the incident

Last Updated: 10 February 2011
Article by Erin Irvine

Osborne v Downer EDI Mining Pty Limited & Anor [2010] QSC 470 (14 December 2010)


The Queensland Supreme Court recently considered the liability of an employer and the contributory negligence of an employee in relation to a mining accident where an experienced mine worker passed two barriers before falling down a hole in the mine floor, known as a 'stope'.

The decision is a reminder of the potential for moderate discounts for the contributory negligence of injured workers, balanced against the high level of responsibility placed on employers, particularly in hazardous environments.


The plaintiff claimed damages for personal injuries suffered in the course of his employment with the defendant, Downer EDI Mining Pty Limited, on 6 May 2005 at a gold mine at Cracow, conducted by the third party, Newcrest Mining Limited.

The plaintiff was a long hole driller with 20 years experience and was qualified as a supervisor. He had been at this particular mine for three months, before his injury. On the day of the incident, he was given instructions which required him to go to a designated tunnel and there drill cable bolt holes, which was an every day task for him. The holes were required to be drilled at a predetermined and marked location, about 30m inside the tunnel. This was his first task for the day.

He went to locate the marks identifying the drilling location. His last memory was of walking along the tunnel seeking the marks. He has no memory of seeing any barriers barring entry to the tunnel or to the area near the stope.

He was found seriously injured, 140m into the tunnel.


Prior to trial, the defendant and the third party resolved the issues between them, equally sharing any liability found against the defendant.

The real issue was the liability between the plaintiff and the defendant. The Court had to firstly resolve significant factual contests regarding the instructions given to the plaintiff at the start of his shift and whether the plaintiff passed by two barriers alerting him to the presence of the stope.

The Court also had to resolve the following issues:

  • What brought the plaintiff to the stope edge – was it a legitimate pursuit of his duties or was he on a frolic of his own?
  • Had the defendant done all that was reasonably practicable to protect the plaintiff?
  • Was the plaintiff guilty of contributory negligence?


In resolving the factual disputes, the Court found that:

  • The plaintiff entered the tunnel not knowing precisely where the markings were that he had to locate because noone had told him and he had not thought to ask
  • There were two barriers in the tunnel: one near the entry to the tunnel which read, 'Danger No Unauthorised Entry', the other was near the stope which read 'Danger Open Stope Below'.

Having resolved the factual issues, the Court found that:

  • The plaintiff was entitled to pass beyond the second barrier near the stope, on the assumption that the task required him to do so. His accident therefore occurred in a legitimate pursuit of his duties

    'The plaintiff did not intentionally choose a method of work that deliberately courted a known danger. He was attempting to follow his inadequate instructions in a very difficult environment'
  • The risk of falling was foreseeable, and in fact foreseen, as demonstrated by the erection of the barriers
  • The defendant employer breached its duty of care by failing to take reasonable measures by:
  • Providing the plaintiff with precise written instructions about the location of the drill markings, which would have removed the risk of the plaintiff going too far into the tunnel
  • Placing a bund (safety wall) immediately before the stope, which was a cheap and easy means to address the risk. This measure was implemented post-incident.

Whilst the Court recognised the potential for the inadvertence of workers and noted that the plaintiff's attention may have been directed to the wall in attempting to locate the drill markings, the Court found that:

  • The plaintiff departed significantly from the standard of care expected of an experienced miner
  • It was inexplicable that the plaintiff was not on high alert once he passed the second barrier which was located near the stope
  • There was no excuse for the plaintiff in not scanning the area carefully before proceeding forward. He should have very quickly identified precisely where the stope was and avoided it
  • This was a significant contributing factor to the occurrence of his accident. In balancing the various factors, the Court came to the conclusion that the plaintiff had significantly contributed to the occurrence of the accident and assessed his contribution at 35%.


Whilst it is often difficult for defendant employers to escape liability in workplace accidents, this case serves as a reminder as to the potential for significant discounts to be made for an injured workers' contributory negligence.

Evidence regarding the instructions provided to a worker and the presence of relevant warning signs, particularly to an experienced worker, may greatly assist in reducing the overall claims exposure for defendant employers.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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