Australia: Retrofitting 42 dump trucks with a safer access ladder at a cost of $850,000 was a reasonable precaution to be taken by a mining company

Last Updated: 27 July 2011
Article by Nicholas Gordon

Judgment date: 6 July 2011

Roche Mining Pty Limited v Graeme Wayne Jeffs [2011] NSWCA 184

Court of Appeal1

In Brief

  • The Court of Appeal considered the application of s 5B(1) and (2) of the Civil Liability Act 2002 (CLA).
  • The Court considered whether the risk of falling from the ladder was foreseeable and not insignificant and whether a reasonable person would have retrofitted a transverse stair access system to a 50 tonne dump truck designed and manufactured by an experienced international company.
  • The onus of proving any fact relevant to the issue of causation is always borne by the plaintiff pursuant to s 5E of the CLA. A plaintiff does not have to establish that an action or precaution would have obviated the risk of injury. It is sufficient to establish that the action would have reduced the risk.


On 14 April 2003 the plaintiff sustained injuries following a work place accident at the Wambo Coal Mine, (Wambo) when he fell approximately 2.5 m whilst using a ladder to climb a dump truck to access its cabin. The plaintiff gave evidence that on ascending the ladder he went to pull himself up to the second top rung but his left hand slipped and he lost balance falling to the ground below.

The plaintiff commenced working at Wambo on 9 December 2002 and was passed by the defendant's safety officer as competent in his boarding and alighting technique for the Caterpillar 785B (Cat 785B).

The plaintiff was employed by Damstra Mining Services Pty Limited (Damstra). Damstra was a labour hire company which provided skilled employees to Roche Mining Pty Limited (the defendant). The defendant was in charge of the running of Wambo and owned the plant and equipment used at the mine including the Cat 785B rear dump truck which the plaintiff fell from.

Supreme Court Decision

The primary judge, Hoeben J found that the relationship between the defendant and the plaintiff, whilst not being co-extensive with that of an employer or employee, was significantly closer than that between a principal and an independent contractor. The defendant was found to have full charge of all operations at the mine and to have had the responsibility of ensuring that the machinery, apparatus and equipment was maintained in a safe working condition.

The primary judge accepted the plaintiff's submission that the nature of the defendant's duty of care was "to use reasonable care to avoid unnecessary risks of injury to the plaintiff and to minimise other risks of injury", applying Stevens v Brodribb Sawmilling Co Pty Limited2. The primary judge found that "the content of the duty owed by Roche to the plaintiff was to exercise reasonable care in providing him with a safe system of work and a safe plan with which to carry out his work".

The primary judge noted that determinations of negligence were to be made based on the CLA.

Pursuant to s 5B of the CLA:

"(1) A person is not negligent in failing to take precautions against a risk of harm unless:

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b) the risk was not insignificant, and

(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

(a) the probability that the harm would occur if care were not taken,

(b) the likely seriousness of the harm,

(c) the burden of taking precautions to avoid the risk of harm,

(d) the social utility of the activity that creates the risk of harm."

Pursuant to s 5C of the CLA:

"In proceedings relating to liability for negligence:

(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and

(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and

(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk."

Pursuant to s 5E of the CLA:

"In determining liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation".

The primary judge concluded that applying ss 5B and 5C of the CLA, the risk of a driver falling while using the rigid ladder on the Cat 785B to gain access to its cabin was foreseeable, that the risk was not insignificant in that there was a real likelihood of it occurring and if it did occur, the consequences for the driver would be serious in that the potential fall was in excess of 2.5 m.

The experts agreed there was a design flaw in the access ladder and that it did not comply with Australian Standard 1657 as there was an absence of a handrail extending above the upper landing to a height of not less than 900 mm and it was not connected to the guard railing of the landing. The primary judge was satisfied that a reasonable person, in the defendant's position, would have responded to the risk by retrofitting a transverse stair access system to a Cat 785B. This was so notwithstanding a cost of approximately $20,000 per truck. Retrofitting all 42 trucks in the fleet would have cost $850,000.

The primary judge also found that there was no real issue in relation to causation, as the expert evidence was unanimous that the fitting of a transverse stairway would have significantly reduced the risk of injury.

The primary judge found Damstra's notional liability for the purposes of s 151Z(2) of the Workers Compensation Act 1987 (NSW) was 20%. His Honour refused to find the plaintiff guilty of contributory negligence.

For the above reasons the primary judge found in favour of the plaintiff. The defendant appealed to the Court of Appeal in respect of the primary judge's findings of breach of duty and causation.

Court of Appeal Decision

McColl JA, who wrote the leading judgment for the unanimous court, found that, insofar as the content of the defendant's duty of care was concerned, the primary judge was correct in adopting Brennan J's formulation in Stevens v Brodribb Sawmilling Co Pty Limited in terms of a duty "to take reasonable care to avoid unnecessary risks of injury and to minimise other risks of injury". McColl JA noted that this is a less stringent duty than that owed by an employer to employees, as shown in such cases as Leighton Contractors Pty Limited v Fox; Calliden Insurance Limited v Fox3. McColl JA also found that the primary judge did not err in formulating that the content of the defendant's duty of care was to provide the plaintiff with a safe system of work and safe plant with which to carry out his work.

McColl JA concurred with the primary judge's conclusion that the mechanism of the accident was the absence of continuous handrails, and that the defendant had failed to devise a safe system of work to obviate the risk to which it exposed drivers such as the plaintiff.

The defendant also submitted that in light of the numerous uses of the ladder without incident, the primary judge's conclusion that it ought to have taken precautions to guard against the recognised risk was one made with the benefit of hindsight.

McColl JA acknowledged that the primary judge had noted that he had to be careful not to assess the position of the defendant with the benefit of hindsight (see Roads & Traffic Authority of NSW v Dederer4). In rejecting the defendant's submissions McColl JA found it was open to the primary judge to infer that there was a reasonably foreseeable risk that a failure to take steps to obviate that risk could cause injury to a person like the plaintiff as per s 5B(1)(a) of the CLA, and that such a risk, in this case being a fall from 2.5 m, was not insignificant as per s 5B(1)(b) of the CLA.

McColl JA also found it was open to the primary judge to conclude that in the circumstances the precaution the defendant should have taken as per s 5B(1)(c) of the CLA – the retrofitting of a transverse stair access system – was a reasonable precaution and was not one advocated with the benefit of hindsight.

The defendant's submissions that this was not reasonable because the ladder conformed with industry practice, Australian Standards were only a guide, there had been no other reported falls from the ladder and there had been specific training in the use of the ladder did not find favour with the Court of Appeal.

In relation to causation the defendant submitted that had it been aware of the risk of injury and contacted Caterpillar it would have been told that the company did not retrofit Cat 785Bs, and that a reasonable response did not require it to do anything further. It was further submitted there would have been insufficient time to retrofit the 42 Cat 785Bs prior to the plaintiff's accident.

McColl JA rejected the defendant's submissions on causation, noting that the primary judge accepted the expert evidence that a system could have been put in place which would have significantly reduced the risk of injury and that was sufficient to discharge the plaintiff's burden of proof. McColl JA also specifically rejected the defendant's contention that the plaintiff had to establish that the transverse stair access system would have obviated the risk of injury and found that it was sufficient to establish that the system would have reduced the risk in accordance with Varga v Galea5.

In a separate judgment Basten JA expressed surprise there was no challenge to the primary judge's findings on contributory negligence. His Honour also noted even though the experts identified an "inherent design weakness" which required a structural remedy, no claim of negligent design was brought against the manufacturer.

For the above reasons the defendant's appeal was unsuccessful on all grounds.


The decision confirms that the court should always first look to the CLA in determining whether or not a party has been negligent. If a risk is foreseeable and not insignificant a defendant must take reasonable precautions to alleviate the risk. What is reasonable is to be determined in accordance with s 5B(2).

In relation to causation the Court of Appeal confirmed that whilst the onus of proving any fact relevant to the issue of causation is always borne by the plaintiff pursuant to s 5E of the CLA, that does not mean that a plaintiff has to establish that an action would have obviated the risk of injury. It is sufficient to establish that the action would have reduced the risk (see Varga v Galea).

Where there is evidence of an inherent design fault, defendants should consider whether a claim in contract or tort may exist against the manufacturer.

The fact an accident was caused by inadvertence or inattention does not necessarily mean there should be no reduction for contributory negligence. In determining whether a person has been contributorily negligent in failing to take precautions against a risk of harm within the meaning of s 5R(1) of the CLA, a court must apply the same principles which are applicable in determining whether a person has been negligent as set out in s 5B of the CLA: Reed v Warburton6.

1 McColl JA, Basten JA, Tobias AJA
2 [1986] HCA 1
3 [2009] HCA 35
4 [2007] HCA 42
5 [2011] NSWCA 76
6 [2011] NSWCA 98

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