Australia: Getting your story straight - the legal danger of the ever-evolving version of events

Quinn v Coal Mine Services Pty Limited [2012] NSWSC 1158

Introduction

The New South Wales Supreme Court recently found in favour of the defendants where a plaintiff gave varying accounts of the circumstances surrounding his injury and exposed the cause of his injury to be his own inadvertence.

Facts

The plaintiff, Kyle Quinn, was employed as a mine operator by the first defendant (Coal Mine Services) at Mandalong mine. The mine was operated by the second defendant (Centennial). The plaintiff alleged sustaining a lower back injury on 19 April 2007 when he fell from a retractable platform on the continuous miner.

The plaintiff's version of events varied at different stages of the proceedings. In his pleadings, the plaintiff alleged that he was standing on a retractable platform on the left hand side of the miner when a piece of the wall of the mine fell in. The plaintiff alleged that in an attempt to avoid being caught between the piece of the wall and the miner, he instinctively stepped off the miner and fell to the ground. Relevantly, five days after the incident, the plaintiff completed an incident report which made no mention of the wall falling in.

In his final submissions, the plaintiff departed from the allegations in his pleadings and attempted to rely on an entry in the incident report which suggested that the plaintiff's co-worker, Mr Broderick, had retracted the platform without informing the plaintiff, which contributed to his fall.

The plaintiff alleged the defendants were liable for his incident for failing to ensure that the miner had rails or an additional rib sprag to reduce the risk of falling from the work platform. The plaintiff also alleged that Centennial had been negligent for failing to warn him that the work platform had been retracted.

The defendants relied on the evidence of Mr Broderick, who had been working with the plaintiff on the continuous miner at the time of the incident. Mr Broderick saw the plaintiff take a step with his left foot, which slipped out and off the platform onto the ground. Mr Broderick gave evidence that he did not see any piece of wall fall in either before or after the accident nor did he see the plaintiff step backwards to avoid being hit by a piece of wall.

Mr Broderick was unable to recall whether he or the plaintiff had retracted the platform but considered it to be more likely that it was the plaintiff, since he was closer to the controls. In any event, Mr Broderick stated that it was his usual practice to tell his co-worker when he was retracting the platform as it was a matter of safety.

Decision

The Court noted that the different versions of events given by the plaintiff were not necessarily the product of dishonesty given the time that had lapsed since the incident. However, it considered that the plaintiff had filled in the contemporaneous incident report accurately and that if a piece of the wall had fallen, which in turn caused him to fall, the plaintiff would have referred to it in the report.

The Court held that the accident had not been caused by the wall falling in but rather it occurred when the plaintiff's left foot slipped off the edge of the platform in a moment of inadvertence.

The Court concluded that although both Coal Mine Services and Centennial owed the plaintiff a duty of care and the risk of someone missing their footing or losing their balance from the platform was foreseeable and not insignificant, on the evidence before the Court, the plaintiff's case had to fail. The Court highlighted that the plaintiff was an experienced coal miner of eight years and had been inducted and received training regarding hazards relevant to his position including those relevant to the continuous miner and to the mining conditions (being low lighting and a changing surface area). It was also noted that a rigorous risk assessment had been carried out of the miner which identified the risk of slipping/falling from the miner. However, no recommendations were made for the installation of guard rails to minimise the risk suggesting that the existing controls were adequate.

The Court also held that the likely seriousness of the harm suffered if there were no guard rails was relatively small due to the low height of the platform (400-500mm). The Court went on to state that the implementation of a guard rail could actually have had a converse effect, giving rise to greater and more serious risks.

As for the plaintiff's allegations regarding the retraction of the platform, the Court was not satisfied that:

• Mr Broderick had retracted the platform and, if he did that he did not tell the plaintiff about it;
• the plaintiff did not know that the platform had been retracted; and
• even if the platform had been retracted, it had anything to do with the plaintiff's fall.

The Court held the plaintiff failed to establish that any act or omission on the part of either of the defendants was negligent or causative of his fall.

Implications

It is not uncommon for plaintiffs to report varying descriptions of an incident in the course of a claim. The version contained in the incident report will often differ from the description provided to medical practitioners and what is contained in the Notice of Claim. Whilst often these discrepancies are inconsequential, this case serves as a useful reminder that they ought not be glossed over.

The case also highlights the importance of undertaking comprehensive risk assessments and providing training which deals with the unique hazards of particular tasks.

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