Lepolo v Emperor Gold Mining Ltd [2010] FJHC 114; HBC009.2002L (9 April 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 9 of 2002L

BETWEEN:

JOSAIA LEPOLO
Plaintiff

AND:

EMPEROR GOLD MINING LIMITED
Defendant

FINAL JUDGMENT

Judgment of: Inoke J.

Counsel Appearing: Mr A Patel for the Plaintiff
Ms A Watkins for the Defendant

Solicitors: S B Patel & Co for the Plaintiff
A K Narayan & Co for the Defendant

Date of Hearing: 3, 4, 5, 11, 12, 18 September 2007
Date of Judgment: 9 April 2010

INTRODUCTION

[1] This is one of those outstanding judgments after a hearing that first took place on 3 September 2007. I have been asked by the parties to deliver the judgment based on the Court papers and the trial Judge’s hand written notes. The trial was heard over 6 days and there were 203 pages of notes taken by the trial Judge’s.

THE PLEADINGS

[2] The Writ of Summons was filed on 18 January 2002. The Statement of Claim states that the Plaintiff was 29 years old when he was injured in an accident whilst working for the Defendant’s gold mine on 10 June 2001. A heavy rock fell on his leg causing an open fracture to his left tibia and fibula. Later, his leg had to be amputated below the knee. His Statement of Claim alleges that his injuries were caused by the Defendant’s breach of statutory duty, negligence and/or breach of his contract of employment. He claimed special damages, general damages, interest or, in the alternative, Worker’s compensation.

[3] Particulars of the breaches were pleaded as follows:

(a) Exposing the Plaintiff to a risk of damage or injury of which they knew or ought to have known;

(b) Failing to take any or any adequate precautions for the safety of the Plaintiff while he was engaged upon the said work;

(c) Causing or permitting the Plaintiff to work in a place where there were loose rocks, which they knew or ought to have known were dangerous and likely to fall, and in dangerous conditions;

(d) Failing to take any measures or any adequate measures to prevent the Plaintiff from being injured by falling rocks;

(e) Failing to provide or maintain any or any proper or safe system of working while carrying on mining operations at Vatukoula;

(f) Failing to take any or any adequate or sufficient measures whether by way of examination, inspection, testing or otherwise to ascertain whether the said place where the Plaintiff was working was safe;

(g) In the premise, failing to provide or maintain any or any proper or safe system of working;

(h) Further, and in the alternative, the Plaintiff will rely on the principle of "res ipsa loquitur" as evidence of the negligence of the Defendant company, its servants or agents failing to provide any way safe or proper system of work when a heavy rock fell on the Plaintiffs left leg.

[4] Further Particulars of breach of statutory duty were pleaded[1] as follows:

At all material times the Defendant Company, its servants or agents were engaged in mining at Vatukoula and the said premises constituted a mine within the meaning of the Mining Act.

The Plaintiff repeats the particulars (set out above) and will further rely on the provisions of the Mining Act, and Regulations made thereunder.

[5] The Defendant, EGM, admits that the Plaintiff suffered the injuries alleged and that it owed the usual duties of care to the Defendant but denies that it breached its duties. The Defendant further alleges in its Defence that the accident and the Plaintiffs injuries were caused or contributed to by the Plaintiffs own negligence. Further, or in the alternative, the Defendant says that the Plaintiff knew the risks involved in his work and voluntarily assumed those risks. The Defendant also says that the subsequent amputation was caused by the negligence of the medical staff at the hospital. The Plaintiff offered alternative employment but the Defendant refused to take the offer up.

[6] On 21 May 2004, by consent, the sum of $16,894.80 was paid out by the Labour Office to the Plaintiff without prejudice to the Plaintiffs right to recover damages under common law.

ADMITTED FACTS AND ISSUES IN DISPUTE

[7] It was admitted that the Plaintiff was injured on 10 June 2001 in the course of his employment. He was 29 years old at the time. He was a Machine Miner. It was also admitted that it was the duty of the Defendant to take all reasonable precautions for the safety of the Plaintiff. The Plaintiff suffered fractures to his left tibia and fibula and received treatment at hospital and eventually received a below the knee amputation. The allegation that the amputation was caused by negligence of the medical staff was later abandoned before the trial.

[8] What is not agreed is the extent of the Defendant’s duty of care and whether the Plaintiff was negligent himself in contributing to his own injuries.

THE HEARING

PW1 – The Mine Inspector

[9] The Plaintiffs first witness was Ian Fong, the Principal Engineer at the Mines Minerals and Resources Department and Mines Inspector. He was referred to a letter dated 11 June 2001 from the EGM Production Manager to him reporting the accident (Exh P8), Minutes of the Safety Board Inquiry held on 25 and 27 June and 4 July 2001 (Exh P9) and the EGM Safety Officer Injury Investigation report (Exh P10). These documents were admitted by consent. He acknowledged receiving them. He said the area had a geological discontinuity prior to the accident. He described two types of discontinuities: a "shear" which is a geological discontinuity in the roof and a "dyke" which is one in the side walls. According to him the rock that fell on the Plaintiff was dislodged from the side wall. There are a number of measures to provide support to make the work area safe. Rock bolts 2 to 6 feet long can be inserted into the wall to anchor wire mesh or straps to hold up the entire wall. You need trained people to identify a discontinuity, such as the Mine Geologist, the Mine Manager and the Mine Captain. When a discontinuity is identified, it is marked in yellow spray paint by the Geologist and white by the Mine Manager. According to the Reports, the area was last marked on the Thursday before the accident. Between Thursday and the Sunday of the accident there would have been work progressing in the area. The paint can easily be washed off by moisture and dust from the blasting and subsequent wash down. Under the regulations it is the responsibility of the Team Leader and the Mine Captain to ensure the work place is safe. Under regulation 220 the Mine Captain must visit once every two days and the Team Leader once in every shift. The Captain was required to co-ordinate with the Team Leader on safety, the work to be done and resources required. The latter then liaises with others.

[10] When asked for his opinion on the report P10 finding that the "last support from the face = 2.5m" Mr Fong said the company standard was 1.5 to 2.0m and the distance here of 2.5m was in excess. The face of the Drive was 3.7m by 3.7m. There were two shears and a dyke across the face. The report stated that the sidewalls needed to be supported. The rock dislodged 1.5m from the face upper right corner of the Drive from the shear structure. It weighed about 60 kg. The dislodged rock ended up 3.1m from the face. In Mr Fong’s opinion, there was inadequate support here. Rock bolts should have been used.

[11] In respect of the ventilation, he said the company standard was 3m to 9m from the face so 19.8m in this case was a bit too far. It is related to safety in that without ventilation it would be harder for the miners to cool down. Heat stress has to be managed by frequent breaks and showers underground. If not managed the miner’s judgment may be affected.

[12] As to the significance of the bar being 2.3m long he said, the height of the roof was 3.7m and the floor area had been cleared. If the miner is of average height, 1.6 to 1.7m, then when he puts the bar up he would be standing right underneath the area he is trying to make safe. The length of the bar here was inadequate. The lack of rubber on the bar also reduced the effectiveness of barring.

[13] Mr Fong explained "scaling" was another way of making the work area safe. The miner takes the bar and strikes the rocks above and on the walls to dislodge any loose rocks.

[14] The Plaintiff had to go to the workplace where he was injured because the miner that was working there had to go to a funeral. Under the regulations, before a miner is assigned to another workplace, the team leader should have conducted a briefing and made an assessment. Also, at the beginning of a shift the new miners must be informed of any changed conditions. It is the responsibility of the team leader and the mine captain to do that.

[15] In cross examination he acknowledged that machine miners undergo training on how to do proper scaling and to choose the correct length bar and to look at the area around them to see if it is safe. eHeHeeHe agreed that miners are trained not to sit near any area not made safe. The Plaintiff was sent to scale down the area. He was sitting having a cool down shower when the rock fell, according to the report. Mr Fong could not say that the Plaintiff was suffering heat stress. He says mine standards for this area is for the Plaintiff to be 3m to 10m from the work face where drilling takes place. A rock falling down, especially in an area that has just been dynamited as in this case, is not uncommon.

[16] The Minutes of the Safety Board Inquiry (the "BOI Report") (Exh P9) recorded the following conclusions:

- The place of injury was not properly scaled and supported and a rock fell from the hanging wall and caused the injury.

- There was no hand over communication from the Team Leader to the new crew moving into the workings.

[17] Mr Fong believed this latter conclusion meant that no proper verification process of instructions were being received and understood. He acknowledged that this area was a high risk area.

PW3 – The Plaintiff

[18] The Plaintiff gave evidence. He started working for EGM at 18 years old as a trainee miner. He became a miner in 1998 and progressed to Machine Miner at the time of the accident. At 8.00am on 10 June 2001 he went down to work at the Philips

[19] shaft. He reported to the Mine Captain, Eliki, who told him to go to work at 1547 flatmake. He was told to "wash the face nicely, after barring". He was working 15 levels underground which was about 1,000 feet below the surface. The flatmake is at the end of a tunnel. He was there for the day. His Team Leader was one Samuela. Samuela should have but did not go to the flatmake. Whilst at the flatmake, the Mine Captain sent a trainee miner to tell him to go and work at a place further down the tunnel. He, accompanied by the trainee, then walked further down to 1547 strike drive. The reason he was asked to go down to 1547 strike drive was that the person assigned to that area, Epeli Naua, had gone to a funeral. The Plaintiff was to finish off the work Epeli Naua was doing. He did not know what he had to do. The trainee told him that they were to wash and bar and to start drilling the face of the strike drive with the machine. He was to drill holes 6 feet into the rock face to put tapping rods inside the holes and insert dynamite for blasting. He would have to drill 30 holes. Before drilling he would have to make the place safe.

[20] When they got to 1545 strike drive, a Toro machine was striking the face and bogging the area i.e. clearing the area. They decided to have lunch at a place about 10m away from the face. The bogging operation was completed at about 1.00pm and the machine drove away. They rested for a while because the smoke from the Toro was in the strike drive. They then went inside. The strike drive is a tunnel about 4m high and 1.5m wide. He did not see any red, yellow or white paint in the strike drive that day. He saw a shear on the wall but not one on the side wall. He did not see any paint on the shear. There had been a crew working there prior to him going into the strike drive. He started barring on the face. He did not have a long bar to bar the roof. The only bar available was a 6 foot bar. There were no other bars in the gear rack. There was no other equipment that would enable him to stand on and reach up to the roof.

[21] He drilled a number of holes into the face. The ventilator was 19m away from the face. He was feeling hot. He stopped drilling and sent the trainee to get another miner to help. He said the "pusher" was too slippery. He needed help. He sat down about 2m from the face and started to have a shower from the hose that he disconnected from the drill. It was a common practice for miners to do this to cool down. After he finished his shower a rock fell from the roof onto his left leg. His leg was crushed.

[22] In his statement to the Board of Inquiry (Exh P9), which was given in Fijian and translated, the Plaintiff said:

I was on Day shift on the 10 June 2001 at Philip Shaft with the assistant miner, Rupeni Taito.

The Mine Captain (Eliki) instructed me on surface to proceed to 1545 flatmake, make the area safe and drill a pin hole for the scraper operator then to complete bogging face at 1545 strike drive.

We proceeded to 1545 flatmake as instructed, performed the task as required before making our way down to 1545 strike drive. When we arrived at the strike drive the Toro was in the process of bogging the face. I then decided that we have our lunch while waiting.

The Toro finally bogged out the face at about 12.30pm. We moved in re-bar making the area safe before rigging up to commence drilling.

The 1545 strike drive has been partly drilled by Naua our task was to complete boring the face.

We had completed all top half holes cut and easier.

I then instructed Rupeni to call Naua’s assistant miner to assist him in keeping pusher leg in position as it keeps on slipping.

Whilst waiting for Rupeni to return, I used the bar to test and scale loose rocks.

I came to this particular spot where a shear was exposed on the hanging wall about 2m away form the face. I sounded the area but I was not totally convince(d) that it was safe. I began to scale down the area around the shear.

After a few attempts to remove bad ground had failed, I place the bar on the footwall and sat down directly below the suspected fault to rest.

Suddenly a rock fell from above where I had previously scaled and landed on my left shin. I yelled with great pain asking for assistance and help.

Samu (Team Leader) arrived with some workers they lifted me manually from the injury spot to the water valve about 16m away. I was then finally placed on a stretcher at the valve and carried to the 15L plat then to surface.

[23] He was then taken to the company’s dispensary then transferred to Lautoka Hospital then to the Suva Private Hospital where his leg was amputated. He was then transferred back to the Lautoka Hospital and eventually discharged on 25 July; a total of 45 days in hospital.

[24] In cross examination the Plaintiff said he underwent 3 months training when he started work. He was taught various aspects of safety including the 5 key points of scaling. This was recorded in the Plaintiffs test results dated 4 August 1993 (Exh 6 at page 24). He did not disagree with Counsel’s questions on the procedures for barring and scaling. But he disagreed that the bar was 0.3m shorter than the work face. It was 0.6m according to him. He had to do the safety test twice in 2001, the last in March in which he got very good marks.

[25] After being pressed in cross examination, the Plaintiff remembered that he met Eliki at about 12.30 who instructed him to go down to the strike drive to make the area safe. He was instructed to scale down the area and to finish installing the support bolts for the roof. But he did not agree that when he got to the strike drive, Naua was there and that Naua had told him that he had installed one bolt and that the Plaintiff was to complete the job. He did not agree with what Naua had said in his statement to the Board of Inquiry (Exh P9). He checked the bar and was satisfied with its length and its condition so he proceeded to scale down the face. He checked the ventilation but it was far away. He saw the shear on the side 2m from the face. He was referred to his statement to the Board of Inquiry in which he said he scaled the area but "was not totally convinced that it was safe". His oral testimony at the trial was to the contrary. He said he was in hospital at the time the statement was taken (10 days after the accident on 20 June 2001) and was in great pain.

[26] He was not moved in cross examination that he saw the shear on the side wall. It was 2m from the face. He then scaled and barred down the side wall before sitting down. The only areas he had difficulty with were on the face. Not on the side wall. He sat down because it was too hot. He did not agree that the area had not been supported. He said the rock that fell on him had an aluminium galvanized rock bolt in it – a split set. It was put there by the night workers.

[27] In re-examination, he said he gave his statement to the investigator in Fijian and was sedated with morphine at the time he gave it. He denied what he said in his statement that Eliki instructed him at the surface (second paragraph of his statement) but denied what was stated in the next paragraph. There were holes already drilled on the face. He completed drilling the holes on the top half of the face. He said he used a 0.6m bar to scale the roof and the face. He stood on the drilling machine to reach the roof. He was of the view that it was safe. He said when he got to the strike drive there was one support on the roof – a split set. He explained that it consisted of a galvanized iron rod inserted into a hole drilled 6 feet into solid rock. When the rod is pushed in the end expands and stays in place. Then an 18 inch square plate is attached at the other end of the rod to hold the roof up.

DW1 – The Mine Captain

[28] The Mine Captain, Eliki, gave evidence for the Defendant. He recalls the accident. He was working on that Saturday. It was reported to him by the Plaintiff. His machine miners that day were Naua and the Plaintiff. Naua had requested to work for half the day only but he told them that the work had to be done. He told Naua to go and water down the face and start barring. He then told the Plaintiff to go and bar the area and water down 1547 flatmake rise and when Naua came to the surface, the Plaintiff was to go and work at 1547 strike drive. The instructions were given by him to both of them at the surface.

[29] I reproduce this passage of his cross examination by Mr Patel, Counsel for the Plaintiff:

Q: At (the) beginning of (the) shift does (the) team captain go down to check (the) condition of mine?

A: No miners and team leaders first then team captain.

Q: You recall saying in Examination in Chief you had gone down to 1545 Strike Drive and met Naua there.

A: Yes, he was there.

Q: And you went down roughly at 10.00am.

A: Yes

Q: And you saw him watering and barring.

A: Yes

Q: And did Naua properly bar the whole area?

A: Yes, he barred it properly.

Q: And you say that you spray painted the face.

A: I marked the top face.

Q: The place where people to drill and advance the tunnel.

A: Yes

Q: You marked the face then you marked the rock bolts.

A: I marked the place where rock bolts to be installed and asked Naua and Sakeasi to install one.

Q: You marked 5 areas.

A: Yes

Q: Before machining the face all these supports had to be in place for safety purposes.

A: Only sometimes.

Q: You put rock bolts to make area safe for all workers.

A: Machine miner does it.

Q: Your job to ensure they did it.

A: Yes

Q: And it was Naua’s job to make sure the 5 areas were bolted.

A: Yes

Q: And you had to ensure supports put in place before face drilled.

A: Yes, that is procedure.

Q: And you had to drill 6 feet into the rocks.

A: Yes

Q: Did Naua insert rock bolts into the 5 areas you assessed were dangerous.

A: No, only 1.

Q: Why not other 4.

A: Face had to be cleaned first.

Q: And you asked your men to drill 8 holes into the rock face.

A: Yes, we have to stand where we support.

Q: So it wasn’t safe was it?

A: From experience I knew it to be safe.

Q: What did you do to ensure the 5 areas you marked as unsafe was made safe – the 5 areas on the hanging wall was safe?

A: We scaled it properly. Relied on 30 year experience.

Q: But you did not ensure that the five areas you marked as dangerous was properly supported?

A: No, I’ve seen it was a good place.

Q: So what you marked was not dangerous?

A: No, it was dangerous.

Q: And you took the risk on your 30 years of experience of drilling into the face because you thought it won’t fall down?

A: I can’t understand what you talking about.

Q: You said 5 key points – scale, bar, support. You never followed that procedure yourself?

A: We supported 1 and we stood down.

Q: Shouldn’t you support the roof first? You didn’t do it?

A: No, we didn’t.

Q: And you took risk because you..?

A: No, I stand by my support.

Q: What could you not support remaining 4 areas?

A: It was still covered.

Q: So why not move the muck away and put the 4 remaining supports before you drilled the wire face?

A: If we had to clear the place it would have taken the whole day.

Q: There is a pile of ore – you couldn’t put 4, only put 1?

A: Because it was covered. Wasn’t enough room.

Q: So why not lower the muck to a level you could put support?

A: We had to wait for the Toro.

Q: Why didn’t you wait for the Toro before you started mining the face?

A: Because if Toro cleared the area would have been hard putting up the top drill.

Q: You can’t wait?

A: Company’s system was ...

Q: You said you identified 5 suspect areas on roof?

A: Yes

Q: And purpose of doing that was to make the working area safe?

A: Yes

Q: And you told Court before you start machining face work area must be made safe?

A: Yes

Q: And you said you couldn’t put 4 remaining rock bolts because there was a pile of ore too close to the roof?

A: Yes

Q: And you said it is the Company system that Toro when it comes in must remove all the ore?

A: Correct.

Q: If as you say, why didn’t you remove part of the ore to create a platform sufficient to support the roof?

A: Toro is small – that is not the only place it works.

Q: Why not get a shovel?

A: It is too much – would take the whole day.

Q: Did company provide other suitable materials to create a platform? What could you have done to create a platform to just ... in?

A: Only Toro

Q: So why not use the Toro to make a platform?

A: Job of Toro was to clear the place. We were waiting for the Toro to come and clear the area.

Q: Why didn’t you do that before you started drilling? You took a risk didn’t you? Did you ask Toro to come and make platform?

A: Yes I had already asked for Toro to come and clear.

Q: So why did you not wait for Toro?

A: I went back down to 16 to see other areas.

Q: So why didn’t you wait and tell joining team to wait?

A: I already told them to wait for Toro

Q: But you have already drilled 8 holes into face?

A: I was thinking that if Toro comes to clear the area it will be very hard for them to machine the roof.

Q: That is what I am saying – to create a platform?

A: No, the Toro is small.

Q: So you say Toro can’t do it?

A: No, it can be done.

Q: So why not wait for Toro to create safe platform to place rock bolts before machining started?

A: Because the Toro not there yet.

Q: So why not wait?

A: Because we had already put rock bolts where we stand.

Q: So what was the purpose of the other 4 markings?

A: To put rock bolts into the holes.

Q: When?

A: When face cleared.

Q: Other tools?

A: Delicom pick. But very hard and takes a long time. There is only 1 Toro one level.

Q: Why didn’t you refuse to work till 5 rock bolts put in?

A: It is not me to put the rock bolt in.

Q: You were there to look after interest of the miners. Why didn’t you close down that area till rock bolts placed?

A: Because I knew Toro would come and I had put support to place we were standing.

Q: You risked your safety, that of your miners and Mr. Lepolo?

A: No, I was standing where we had already supported.

Q: You knew Lepolo would come and work there?

A: We couldn’t place rock bolt until place cleared. I had already told Naua to clear the place before drilling.

Q: Why didn’t you go and check that Naua had put rock bolts in place before Lepolo started?

A: I had already told Naua and what to tell Lepolo.

Q: You only saw Lepolo on surface?

A: Yes

Q: And you told him after lunch go and work. Strike Drive?

A: Yes

Q: Nothing else?

A: No

Q: You didn’t tell him it was a very dangerous place?

A: I told Naua that.

Q: You didn’t tell Lepolo?

A: We’d been working there everyday. Agree rock falls happen all the time. People have died. People have had limbs cut off.

Q: Height was 3.7 meters from floor?

A: Yes

Q: And width of the drive was 3.7 meters?

A:

Q: There were 2 shears on roof and a dyke across the face?

A: Yes

Q: How could a miner drill a hole onto roof 3.7 meters from the ground?

A: By using right size drill – 8 feet drill – 2 meters drill.

Q: How you gonna get 2 meters up at 90º angle?

A: We have extension drill to suit the height.

Q: According to Mining Inspector you needed a platform?

A: Yes, could have used the Toro to lift you up after clearing to lift you at the right angle.

Q: 1545 Strike Drive was a particularly dangerous area because of 2 shears and dyke?

A: Yes

Q: Why didn’t you put a mesh?

A: Had already use split sets.

Q: That day it was important to reach firing target time 3.45 pm?

A: Yes, time was important. That will make the Company to grow.

Q: And miners take that risk all the time to achieve that?

A: No, they have to follow safety procedure.

Q: And that is the reason you took the risk?

A: No, I was standing where it had been already supported.

Q: And another reason is the contract bonus?

A: At the end of the month.

Q: And if miners don’t achieve firing at end of shift they are taken to task?

A: Yes, they will be asked why it was late and the place where the next shift has to continue from.

Q: You never gave Mr. Lepolo any special warning?

A: I told him at the flatmake when Naua went up, he has to go down and Lepolo knows we were mining along the shear. I told him to continue where Naua left off. I know him. I know he knew.

.

.

Q: Ventilation important because it gets hot in the mine?

A: Yes

Q: And workers bath to cool down?

A: Yes

Q: They pull hose out of the machine to bath?

A: Yes

Q: Barring exercise you have a long way to bar?

A: Yes – up to 12 feet

Q: And you have to bar at an angle of 45 degrees?

A: That is right

Q: Height of hanging shear was 3.7m. How would you bar it?

A: Use the Toro to stand on to lift you up if you got a 8 feet, 10 feet bar.

Q: What would be the distance you have to stand back to achieve 45 degrees? You would barely reach it?

A: Would if you use the right size or let Toro stand you up to do that.

Q: If Toro not available you take the risk?

A: No, you have got the right to see the boss.

Q: And you knew the ventilation bag was 19.5m from the face?

A: No

Q: And that was the distance found after the accident?

A: That was after bogging and clearing away the place. Sometimes the Toro drags the fan to the back.

Q: And what do you do to prevent that?

A: The machine miner should see that it is hanged up properly.

Q: And I put it to you the maximum distance of the ventilation should be 5 to 10m?

A: Should be 10m. If it is too close to the face it can get damaged?

Q: The rock that fell was 0.5m by 2.7m wide?

A: Not my job.

Q: You said you saw the rock?

A: I never measured the rock.

Q: And the Report doesn’t mention it was spray painted white. Did you know that?

A: Yes.

.

.

Q: According to Naua there were only 2 rock bolts to be inserted.

A: No. I marked 5 areas because it was a big face – 3m.

In re-examination, he explained the proper procedure as follows:

A: We scale properly, first thing to do is to bar the place properly to make it safe and to see where to place the rock bold and install it. We stand on the place that is protected and machine the top holes. After that we disconnect the machines, clean them out and call for the Toro to come and bog. I had told Naua I would check the work at number 16 level area.

Q: When you left Naua and last spoke to Lepolo, what were your instructions to proceed with machining the area?

A: I told Naua to tell Lepolo to start where Naua stopped working and also told Naua to tell Jo that the place was not a safe place and to be careful and to see the place properly and to fire the face at the end of the shift.

DW2 – Machine Miner

[30] Naua gave evidence. He was working at the 1545 Strikedrive on the day of the accident. He started work at 8.00am and finished halfway at 12.00 noon. The Plaintiff took over from him. He explained to the Plaintiff what was left to do – that one side had already been supported and he had to do the other side. Naua said he got his instructions from his boss, Eliki, to support and machine the top wall. The following questions and answers in his examination-in-chief were recorded by the trial Judge:

Q: How did you know where to machine or support?

A: If the soil is there I have to support.

Q: Was there an area indicated to support?

A: It was empty – on the other side it was full. First thing I had to do was barring then start supporting.

Q: What did you support with?

A: Machine and drilling and use dolly to attach the support.

Q: What is the process?

A: Use the machine first and then drill.

Q: What did you do after that?

A: After talking to him I knocked off.

In cross examination:

Q: Was there any other mine manager appointed for that day?

A: No.

Q: You have a mine captain?

A: Yes.

Q: Who was it that day?

A: Eliki.

Q: Is mine captain answerable to the mine manager?

A: Yes.

.

.

Q: And you know what a mine manager job is?

A: Yes.

Q: Isn’t it his duty to visit work places during the day?

A: Only sometime he visits the places; not every day.

Q: 10 June 2001 was a Sunday?

A: Yes. [He recalls it was a Sunday]

Q: You went to church that day?

A: No I took half day to attend a funeral.

Q: Whose funeral?

A: My brother in law – my wife’s brother.

.

.

Q: When did you tell your boss you had to leave half day?

A: On Sunday morning.

Q: What was the condition of strike drive when you first went there? Explain.

A: It is 2.5m – the back on top had a shear.

Q: How high was the shear from the ground?

A: 3m.

Q: Fairly high wasn’t it?

A: Yes.

.

Q: Do you know there was an enquiry conducted into this accident by Mr Ian Bignell?

A: Yes.

Q: You attended the Board of Inquiry?

A: No I didn’t attend.

Q: According to the minutes of the meeting you were there?

A: I can’t remember. It was a long time ago.

Q: According to the report, the height of the drive was 3.7m?

A: Yes.

Q: What was the width of the workplace – the drive?

A: 2.5m.

Q: Were there any marks on the wall?

A: Yes, the mark of the support. When I went down there was no mark there.

Q: What kind of marks?

A: A spray mark. There were 5 marks there. I inserted only 1 support.

Q: When you go into an area for the first time are you not required to scale and bar the roof of the strike drive and the walls?

A: Yes.

Q: How many split sets were available that day?

A: None.

Q: Any in the gear rack?

A: No.

Q: Is that why you only supported one?

A: Yes.

Q: And you had to support 4 others on the roof?

A: Yes.

Q: And if you had the split sets you could have supported the other 4?

A: Yes – the other one was crowded.

Q: Which others?

A: The one I told Joe to do.

Q: So why didn’t you support all 5 marked out?

A: I looked for it and only found one. Checked gear rack and found only one.

Q: Who marked the 5 areas?

A: Eliki.

Q: And out of the 5 areas there was enough space to bar 4 of the 5?

A: Yes.

Q: But you barred only one?

A: Yes.

Q: And you barred only one because there was only one set available?

A: Yes.

Q: You said the fifth one was not accessible to you?

A: That is right.

Q: Why was it not accessible?

A: It was crowded by the dirt which only the Toro could clear.

Q: Could you not call for the Toro to take out the muck to make the fifth area accessible to properly bar it?

A: The Toro was busy.

Q: Did you call for the Toro so you cold do it?

A: No.

Q: Was Eliki present when you put the first bar?

A: Yes.

Q: And did you tell Eliki I can only support one because there was only one split set available?

A: Yes, I told him.

Q: And did you tell him the other 3 could not be supported because no split sets were available?

A: Yes.

Q: And the last one was not accessible?

A: Yes.

Q: To machine into the face the mine captain’s job is to mark out holes on the face to make proper blasting?

A: His job is just to mark the place.

Q: Usual practice is for the mine captain to come and visit the face and his duty is to mark the whole of the face where drilling is to take place?

A: Yes.

Q: He marks these with paint?

A: Yes.

Q: The purpose of that is to prevent over breaks?

A: Yes.

Q: And the second purpose is for machine to drill in a straight line?

A: Yes.

Q: On 10 June 2001, the whole face was not marked, was it?

A: Only on top.

Q: If the mine captain does his job properly, he would mark the whole face?

A: Yes.

Q: And on the day in question, it was not done?

A: That’s correct.

Q: Because part of the face was covered by mud and was not accessible?

A: Yes.

Q: And normally, before the face is marked, the whole of the drive, access to the face is all scaled down and barred down?

A: Yes.

Q: And it is not normally to start drilling holes in the face till the whole area is scaled and barred down first?

A: Yes.

Q: And if that is not done, the miner should not do work on the face?

A: Yes.

Q: He can say, it is dangerous, I am going away?

A: Yes.

Q: That is what the book says?

A: Yes.

.

.

Q: One supported?

A: Yes.

Q: 3 not supported and accessible?

A: Yes.

Q: And one not accessible?

A: Yes.

Q: And you and Eliki started machining?

A: Yes.

Q: So even though the book says you should do all these things, it is not followed in Vatukoula?

A: Yes [agrees].

Q: And before 10 June 2001 that happened on many previous occasions?

A: Yes.

Q: At EGM contract bonus is paid?

A: Yes.

Q: In respect of advance miners achieve during the shifts?

A: Yes.

Q: How far you get into the ore?

A: Yes.

Q: The more ore produced, the more your bonus?

A: Yes.

Q: In your time you ever paid bonuses?

A: Yes.

Q: Average bonus payment per month?

A: $800. Sometimes up to $1,000.

Q: In a year, how much would you have earned in bonus payments?

A: about $1600.

Q: In the whole year?

A: Yes.

Q: In 2001?

A: In 2001 I didn’t finish. I was sacked.

Q: Why?

A: I missed too much work.

Q: How many months you worked in 2001?

A: 7 months.

Q: How much was your bonus for 7 months?

A: Can’t recall.

Q: You earned as much as the previous year?

A: No. The previous year I earned more.

Q: So how much you earned for the 7 months?

A: $6,000.

.

.

Q: Have you ever worked where you took over from someone?

A: Yes.

Q: 1455 Strike drive way bigger than usual?

A: Yes.

Q: It is dark?

A: Yes.

Q: Is it lit?

A: Rely on helmet lamp.

Q: Any other artificial light so you can see where to scale?

A: No.

Q: In a large area did the mine provide any other type of lighting so you can see better?

A: At the workplace no lighting provided – no external leads.

Q: Put it to you that the headlamp is insufficient to help you with work?

A: No. It’s sufficient.

Q: You would have needed the Toro to make the whole face (light up)?

A: No.

Q: You ..?

A: When the soil is still there we have to mark the top of the face first.

Q: In this case there was ore after blasting covering part of the face?

A: Yes.

Q: And part of the face to be blasted that day was still covered with muck?

A: ...

Q: ?

A: On the time we were doing machining barring down was going on as well.

Q: You said no split set so how could you do barring as well?

A: One side barring and one side machining. We attached split set that day. We didn’t do the other four.

Q: And now you were machining the face.

A: Yes.

Q: Despite all the safety regulations and despite the fact that your mining captain was there, you started machining the face because the mine captain was scared of losing his job?

A: yes.

Q: And you were in a hurry that day to attend to your duties as a relative?

A: Yes.

Q: There are two shears running on the roof?

A: Yes.

Q: Pretty dangerous for the mining team?

A: Yes.

Q: Not the same mining conditions you face in the other drives?

A: Yes.

Q: There are 3 sizes of normal barring instrument?

A: Yes.

Q: 3, 6, 8?

A: Yes.

Q: They are kept in the gear rack?

A: No, only the 8 feet.

Q: On 10 June 2001 did you scale with a bar?

A: Yes.

Q: And what instrument did you use?

A: The bar- the 8 feet bar which was the only one available.

Q: And the bar didn’t have a proper handle did it?

A: No.

Q: Why didn’t you use another bar?

A: There was none there.

Q: You told Eliki?

A: Yes.

Q: What did he say?

A: To go up in lunch hour and bring one down.

Q: The 2.3m bar is 8 feet?

A: Yes.

Q: There is no 12 m bar?

A: It is used in another place where it is very high.

Q: Where does the 12 feet bar exist?

A: Only used in place where there is the jumbo. Jumbo is an electric machine used to machine the face. On 10 June 2001, jumbo not at strike drive. A hand machine was used there.

Q: Only instruction you gave to Lepolo was to support one area?

A: Yes.

Q: Not the other three?

A: No.

Q: You didn’t give him any warning?

A: No.

Q: You didn’t tell him the area was dangerous?

A: No.

Q: You didn’t warn Joe at all?

A: Yes.

Q: And didn’t tell him to put in one support?

A: I told him.

Q: And I put to you Eliki didn’t mark the 5 places?

A: He marked it.

His re-examination went like this:

Q: You were asked about split sets. Was there any other place where they were kept?

A: No where they were kept it was finished.

Q: Any other place?

A: Yes some other place but it was short where place is low, which could be used close to the surface; 4 feet can only be used for small holes, where workplace is low height.

Q: Any other places where is stored?

A: No.

Q: Contractual bonus – is it possible you could get less?

A: The smallest is $200. The range is $200 to $1,000.

Q: You marked the top face when soil was still there?

A: Yes because it is easy. After that we machine the top face standing on the soil. When the soil is there it is easy for us to do the machining.

Q: Explain?

A: I went down with Sakeasi at 8 o’clock. When we reached there we turned on the fan and after the fumes went out we watered the whole place, barred and after that we prepared the equipment. The mark was done by Eliki. The soil was there in the work place.

Q: Where was the soil when Eliki came down?

A: It was there, starting from where the face was coming inside. The dirt stayed there. When I knocked off the Toro came to clear the face.

Q: What was the next thing to be done?

A: Machining is done when the place is clean.

DW3 – The Underground Manager

[31] The next witness for the Defendant was Saimoni Mara. He was working on 10 June 2001, on standby. He received a message from the mine captain, Eliki, at 2.30pm of the incident at 1545 Strike drive. He was at Smith drive that day. He was to red-tape the place. He visited the workplace at 4.30pm with the mine captain and the team leader. He checked the gear rack and saw 2 bars still lying there, 6 split sets in the gear rack, one 8 feet bar and 6 feet bar. He saw the water hose and machine on the face. He checked the back – the roof on top and saw the face already drilled and saw 5 marks – one already installed and another 4 left. He saw the rock which fell and it had a white mark on it – white mark from the mine captain to install the rock bolt. The fan bag was there. It was supposed to have been installed for ventilation. He saw a small 4 feet bar there. He said if they had checked the gear rack they would have found the right size bar there. One rock bolt was on either side of where the rock fell. It was supposed to have been barred down. He did not know why Lepolo sat there. His training required him to go to the water vault or refuge bay 100m back.

In cross examination, he said he was the underground manager at the time. He first noticed on the roof the geologist had marked on Friday. What he saw on the face was not safe enough to work. He saw the mine captain’s marks on the face – 4 marks, one installed and another 3 not and a fifth one. He insisted that there were split sets and bars at the gear rack. He was adamant that it would not have been unsafe had Lepolo done what he was trained to do. He blamed Lepolo for the accident. The trial Judge’s notes recorded the following cross-examination:

Q: What your board of inquiry recommended was: "when work crews in an area are changed during the shift, the supervisor must immediately visit each such working place and ensure that safety instructions previously given are carried out and adhered to by the new crew".

A: Yes.

Q: If Eliki did not do it he failed in his duty?

A: Yes

Q: And barring down should have been done?

A: Yes.

Q: And it is also the duty of the mine captain to come and check if the miner has properly scaled and barred and supported the roof?

A: Yes.

Q: And if not done, it is the fault of the mine captain isn’t it?

A: Both of them.

Q: I am asking about the mine captain.

A: It is his job to check that the work area is safe.

Q: After, secure, barred and supported then drilling of the face can continue?

A: Yes.

Q: And the mine captain marks the face of the drive to be drilled?

A: Yes.

Q: Naua, the assistant miner and Eliki went down to Strikedrive?

A: Agree.

Q: There were 5 areas on the roof marked to be supported?

A: Yes.

Q: Should that have been done before Naua started drilling?

A: They did one.

Q: Shouldn’t they have ensured that first?

A: Yes. They are supposed to do that.

Q: You have been tutored to give evidence?

A: No.

Q: But couldn’t be done because of muck pile – not enough space?

A: Yes.

Q: Where was the muck pile?

A: Right on the face.

Q: Could they not have flattened the muck pile to do the remaining 4 rock bolts?

A: No.

Q: Shovel it?

A: No, because there was 30-40 tons of muck pile in the drive. Couldn’t be shoveled.

Q: So why not use a front end loader?

A: The canopy of the loader would be too high.

Q: After blasting, there would be 40-50 tons on the face?

A: Yes.

Q: How is it removed?

A: By the Toro.

Q: Why didn’t the Toro come and mark out first..?

A: The top holes wouldn’t have been able to be drilled properly.

Q: So bog it out properly to put in a 6 inch bolt to make safe?

A: Normally done.

Q: The area was unusually high – 3.7m?

A: Yes.

Q: Why couldn’t the Toro have come and cleared the muck and fit in the 4 remaining rock bolts.

A: That’s what Lepolo was supposed to do.

Q: Naua’s first job was to support the roof, and Eliki?

A: Yes.

Q: So why couldn’t they bog out the area and put the bolts in?

A: Yes they can do that.

Q: And why didn’t they do that?

A: That was Eliki’s and Naua’s judgment.

Q: If bogged out, couldn’t a platform be provided to stand on and drill 3.7m up?

A: Can’t do it.

Q: So if they couldn’t do it how could Lepolo have done it..?

A: [Witness now says they could have done that]

Q: Should they have done it?

A: Yes they can do it.

Q: How?

A: 8 ft pusher could have been used.

Q: But it wasn’t in the gear rack as you said earlier?

A: The pusher was there.

Q: You didn’t say that earlier? Should Eliki and Naua have made the area safe by doing that before drilling started?

A: Depends on Eliki.

Q: The company is supposed to provide as safe work place?

A: Yes.

Q: And that means bolting of rocks on the roof?

A: Yes.

Q: Was anything provided to lower the muck pile?

A: Nothing provided by the company.

Q: And unless and until the roof is properly secure, there shouldn’t have been any mining on the face?

A: If the mine captain and Naua know it is safe, can drill on the face. It is their judgment.

Q: There were two shears on the roof and two on the sidewall?

A: Agree.

Q: Dangerous area to work in?

A: Not dangerous if work done properly.

Q: And the mine manager and the mine captain knew that the place had to be properly supported?

A: Yes.

Q: Because of the two shears there was extra danger?

A: Correct.

Q: What did you do to ensure the area was made safe knowing that this was a specifically dangerous area?

A: To check it every shift.

Q: What did you do to ensure the roof was properly bolted down? Did you go down with the mine geologist on the Thursday?

A: Yes.

Q: And you saw the shears on the roof and sidewall?

A: Yes.

Q: And it’s a dangerous area?

A: Yes.

Q: So what did you personally do to see the area made safe? Did you rock bolt the roof?

A: No.

Q: Did you check to see someone else did it?

A: Yes.

Q: Who did it?

A: Some of the miners.

Q: What did you do personally as the Manager to ensure people working in that area would be aware of dangerous conditions?

A: Explained the danger of shears.

Q: When did you do that on 10 June 2001?

A: Morning meeting – mine captain did it. I didn’t do that on 10 June 2001.

Q: [Reg. 107 read]: "... Manager responsible for accident unless he can show that he took all proper precautions to avoid accident?"

A: Yes I know that.

Q: So what precautions you took on 10 June 2001 to prevent Mr Lepolo’s accident?

A: I only visited the place of the accident on the afternoon when the accident occurred.

Q: You attended the Board of inquiry which said that what you found in the mine was a 2.3m bar. Correct?

A: That’s what I saw on the face that afternoon.

Q: [Referring to the Report] Where is the rock you say fell down and had a white mark?

A: It was brought up by the Production manager. I cannot say if the company still has it.

Q: Where in the Inquiry Report does it say the rock that fell had a white cross mark on it?

A: [Witness reads it]. No I never find anything.

Q: Can you show me in P3 anything where anybody says that the mine captain made 5 crosses on the roof indicating where split sets were to be inserted?

A: No, nothing.

Q: Wouldn’t you expect the Board of Inquiry to mention it being a very important point?

A: Yes.

Q: And equally important to tell the inquiry that the rock found had a cross on it?

A: Yes.

Q: But you didn’t say so nor did anyone else?

A: Yes.

Q: You know Reg. 113?

A: Not at the moment.

Q: [Reg. 113 read]. Correct?

A: Yes.

Q: Was the Board of Inquiry (held pursuant to that) Regulation?

A: Yes.

Q: Chairman – Ian Bignell?

A: Yes.

Q: Production manager of Cayzer Shaft?

Q: Yes.

Q: You underground manager?

A: Yes.

Q: [Reads through list]

A: [Witness agrees]

Q: All these people were employed in management of the mine?

A: Yes.

A: And the Regulation says no one who manages a mine should be appointed to such a Board of Inquiry?

A: Yes.

Q: No independent person in the Board of Inquiry was there?

A: Yes.

Q: Did you discuss the evidence you were to give?

A: No. I’ve come because I made a statement to the Board of Inquiry.

Q: But your statement is not in the Board of Inquiry exhibits?

A: No it’s not here. I cannot say why they didn’t put my statement there.

Q: There were no marks on the roof?

A: I just mentioned here what I saw that afternoon.

Q: I put it to you Lepolo went down and barred the roof with the only available bar he had- a 2.3m bar?

A: 2.4m bar used by the previous crew because it was too low.

Q: And when Lepolo went down the Toro was bogging out the face and he had to wait till the muck was cleared?

A: Yes.

Q: And he used a 2.4m bar?

A: I never saw that bar – only 4 feet one.

Q: The standard that you have on the gear rack was 4 ft, 6 ft and 8ft?

A: Yes.

Q: There was no 12 ft bar on the gear rack?

A: No, never saw the one.

Q: ?

A: Agree that mostly miners pull out hose and shower down at the face. Agree that this practice was well known and never prevented.

Q: And where Lepolo was working was a very hot place?

A: Yes.

Q: And under Reg. 175 it is the duty of the mine owner to (install) ventilation to the satisfaction of the Inspector?

A: Yes.

Q: And ventilation should be 5m away from the face?

A: Yes.

Q: When you went down how far was the ventilation?

A: Very far from the place it was supposed to be.

Q: Whose job is it to see it closer to the face?

A: Miner’s job too.

Q: And if moved by the driver of the Toro, should he replace it?

A: Yes.

Q: Did you try to ascertain how it was moved so far from the face – 19.7m away?

A: They pull out the fan bag before firing so as not to damage the bag.

Q: But no firing on Lepolo shift?

A: Yes, the firing happened on the previous shift.

Q: So whose job was to bring it 5m to the face?

A: Mine captain was supposed to ensure that was done.

Q: In P9 can you show me anything to explain how bag was 19.7m from the face?

A: No.

DW4 – Human Resource Manager

[33] The fourth witness for the Defendant was Akesh Sharma. He was the EGM personnel manager in 2001. He was aware of the accident and the Plaintiffs injuries. He confirmed the financial information relating to the Plaintiff tendered as exhibits in this action.

ANALYSIS OF THE EVIDENCE

[34] I have quoted extensively from the trial Judge’s notes because what I consider to be the material evidence on which this case turns is rather conflicting. However, where I consider the evidence is conflicting I accept as persuasive the Defendant’s own documentary evidence, in particular, the Minutes of the Board of Inquiry (the BOI Report) held soon after the accident on 25 and 27 June and 4 July 2001.

[35] I do not think that the proper approach to the evidence is to focus on the individual incidents in isolation. It is the Court’s duty to look at all the facts and circumstances as properly proved at the hearing. For example, the Defence put a lot of emphasis on the fact that the Plaintiff sat directly underneath the rock that fell on him. It says that the Plaintiffs "resulting injury was caused or contributed to by his own negligence (by choosing) to sit beneath the area that he knew was not safe".[2] I think it is a rather simplistic view to take of the evidence and puts too much emphasis on this fact alone. It still begs further inquiry.

[36] Such is the approach that I have taken of the evidence and a convenient point to start is the events as determined by the Board of Inquiry and I quote from the BOI Report:

The 1545 SDR was fired on the night shift immediately preceding the day shift when the injury occurred. The drive was 3.7 metres high and therefore the face had to be drilled in two sessions, first the support and top holes would be drilled while standing on the muckpile, and thereafter the face would be bogged out and the rest of the holes on the face would be drilled.

The mine captain, Eliki Lawacabala, (the Mine Captain) visited the 1545 SDR at the beginning of the day shift and issued instructions to the machine miner, Naua, to scale the area and to install support (two split sets) and then to drill the top holes on the face. The area was scaled in Eliki’s presence and after marking up the face, he left (this was prior to the commencement of the support installation).

Naua installed one of the split sets but could not install the other due to insufficient space between the muckpile and the hanging wall. After drilling the top holes on the face Naua left the area and the loader arrived and cleaned out the face. After the face was cleaned out Josaia (the Plaintiff) and Rupeni moved into the SDR and proceeded to drill on the face (no scaling down was carried out and the second split set was not installed).

After drilling five holes Josaia stopped to rest and he sat down – 2 metres from the face to cool himself down with water. While sitting in this position a rock dislodged from the back and struck him on the left leg, resulting in a compound fracture of the left lower leg.

[37] The Report concluded:

- The place of injury was not properly scaled and supported and a rock fell from the hanging wall and caused the injury.

- There was no hand over communication from the Team Leader to the new crew moving into the workings.

[38] I accept these findings of fact and conclusions as more reliable because of the contemporaneousness of the Report. The fact that the Inquiry did not comply with Mining Regulation 113 is no impediment to my accepting its findings.

[39] I also make the following further findings of fact from the evidence heard at the trial. Mr Naua and his assistant barred and scaled the area using the only bar that was available, a 2.3m bar without any rubber on one end. The Mine Captain, Eliki, then marked 5 areas on the roof that needed to be supported by rock bolts. There were two noticeable shears on the roof and one dyke on the face. Four of the marked areas were accessible for drilling for the rock bolts but one was not because of the presence of the muckpile from the previous shift’s blasting. Naua only rock-bolted (split-set) one of the marked areas because there was only one rock bolt available. He and his assistant then drilled 8 holes on the top half of the face by standing on the muckpile. Naua then left at about 12 noon to go to his brother-in-law’s funeral.

[40] The Plaintiff was working at the 1545 Flatmake rise. Assistant miner Rupeni Taito then came and told him that they were to go to 1545 Strike drive and complete the work left by Naua. When they got there, the Toro was bogging the area so they decided to have their lunch while waiting for the bogging to be completed. I accept the Plaintiffs evidence that Naua had already left when he and his assistant got to the Strike drive. I also find that Naua and his assistant had already installed one rock bolt and one of the reasons they did not install a second one was there was no other set available. It was about 1.45 pm when the rock fell on the Plaintiffs left leg. The Plaintiff was sitting with his back to the face and was cooling himself down with the water hose that he had disconnected from his drill. The rock fell from the hanging wall/sidewall intersection about 2 meters from the face.

[41] I do not accept that the Plaintiff knew or should have known that his work area was not safe. I think in the circumstances and for the additional reasons I give below, it was quite reasonable for him to assume that it was safe for him to continue drilling.

[42] I think the pressure to perform put on miners by the system of bonuses and company set targets of blasting at the end of each shift had a large bearing on this case. In this particular case, the Plaintiff only had about two hours to drill the majority of the remaining holes so that the face could be fired at the end of the shift.

[43] The Plaintiff took over from another miner that had attempted to secure part of the work area and had in fact done some drilling. The rock that fell and injured the Plaintiff, according to the Mine Captain, had been marked by him as likely to fall. The Plaintiffs evidence, which I accept, was that the rock that fell was infact the one that was drilled and rock-bolted by Naua. The only rock bolt available had already been installed and there were no other rock bolts left for the other four suspect areas.

[44] As far as the proper scaling and barring of the work area is concerned, I do not think that it was properly done by Naua and his assistant because according to the Mine Inspector, the bar that was available and used would not have been appropriate and adequate for proper barring and scaling of the area. And even if the Plaintiff was required to finish off scaling and barring, he would have been as equally ineffective.

[45] The pusher that was provided to the Plaintiff was not adequate so he had to send his trainee miner to seek assistance from a third miner. I think this would have added to the discomfort of the Plaintiff and the need to stop drilling and cool down.

[46] The ventilation bag was some 20 meters away from his work area. The area was hot. He did what was normally done and accepted as common practice. He stopped and cooled himself down using his drill water hose not being aware that a rock was about to fall on him.

[47] It seems to me that in all these circumstances it is quite reasonable, and not surprisingly in my view, for the Plaintiff to work in the area without first ensuring that it was safe for him to do so. I think whether the Plaintiff sat where he should not have sat would not have made any difference because it was an accident waiting to happen through no fault of his.

THE LAW

THE COMMON LAW

[48] Counsel for the Plaintiff cited the following cases as setting out the common law principles: Kilgollan v William Cooke & Co Ltd [1956] All E R 294, 300; Smith v Baker & Sons [1891] AC 325, 362; Wilsons and Clyde Coal Co v English [1937] UKHL 2; [1938] AC 57, 84; Paris v Stepney Borough Council [1950] UKHL 3; [1951 Ac 367, 384; Cavanagh v Ulster Weaving Co Ltd [1960] AC 145, 166. These principles are summarised by the following obiter in the Court of Appeal[3] judgment in Rauqe v Attorney General of Fiji [2003] FJCA 9; ABU0040U.2000S (28 February 2003):

It is the duty of an employer to take reasonable care for the safety of its employees. Part of that duty requires an employer to have in place a safe system of work and to provide safe means of access to that work. It is also the duty of an employer to ensure that the system it has devised is instituted and maintained. For this purpose it usually employs managers or supervisors to oversee the operations and undertake reasonable steps to ensure that the system is being observed by those employed to carry it out; see generally The Law of Torts, Fleming (5th edition, 1977) at pp. 482-4.

[49] In Smith v Baker & Sons [1891] AC 325, 3362, Ld Herschell said that the duty that an employer owes to his servant is:

the duty of taking reasonable care to provide proper appliances, and to maintain them in a proper condition, and so to carry on his operation as not to subject those employed by him to unreasonable risk.

[50] The duty is further explained by Slade J in Harris v Brights Asphalt Contractors Ltd [1953] 1 QB 617, 626 that it is:

A duty not to subject the employee to any risk that the employer can reasonably foresee and which he can guard against by any measures, the convenience and expense of which are not entirely disproportionate to the risk involved.

[51] I find very helpful and respectfully adopt the statement of principle in the House of Lords decision in Cavanagh v Ulster Weaving Co Ltd [1960] AC 145, 166 per Ld Keith:

[T]he fundamental principle (is) that an employer is bound to take reasonable care for the safety of his workmen, and in every case the question is whether the circumstances are such as to entitle a judge or jury to say that there has or has not been a failure to exercise reasonable care. It is immaterial, in my opinion, whether the alleged failure of duty is in respect of an act of omission or an act of commission. But where it is an act of omission that is alleged, I think it will be found, in the absence of evidence of practice, that the circumstances will rarely, if ever, lead a judge or jury to hold that there was negligence unless the precaution which it is suggested should have been taken is one of a relatively simple nature which can readily be understood and commends itself to common intelligence as something to be required.

THE STATUTORY PROVISIONS

[52] Section 68 of the Mining Act [Cap 146] gives the Minister power to make regulations prescribing all matters which are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out of or giving effect to the provisions of the Act, and in particular for "the employment and registration of labourers, the payment of wages and duties of employers and the safety of employees".[4] PART XI - SAFETY OF MINES - of the Mining Regulations are relevant:

Duty of employees to satisfy themselves of safety of appliances and to report danger

101. Every person employed in or about a mine shall use ordinary and reasonable precautions to ascertain that his working place and the tubs, buckets, chains, tackle, windlass, ropes or other appliances he uses are not unsafe and shall cease to use anything unsafe. Every such person shall forthwith report to the manager, mine foreman or shift boss if he sees anything likely to produce danger of any kind and on leaving work shall report to the man relieving him on the state of his working place.

.

.

Duties and responsibilities of manager

106. Every manager shall be responsible for enforcing the observance of all the provisions of this Part and of all regulations made under the provisions of the Explosives Act, relating to the handling, storage and use of explosives, at the mine and works under his charge, and shall, immediately after the occurrence thereof, report in writing to the nearest inspector or the Director, any contravention of any of such provisions, committed at such mine or works, whether the person committing the same was employed at such mine or works or not. (Cap. 189.)

Responsibility for accident occurring with incompetent workmen

107. Where an accident occurs at any mine or in any part thereof as a result of the incompetence or inexperience of any workman employed thereat, the manager of such mine or part thereof shall be held responsible for such accident unless he can prove that he took all proper precautions to prevent such an accident occurring.

Manager shall provide for the safety and discipline of workmen

108.-(1) Every manager of a mine or part thereof shall provide for the safety and proper discipline of the men employed at such mine or in the part thereof under his charge, and shall appoint such persons as may be necessary to ensure that the provisions of this Part and of all regulations made under the provisions of the Explosives Act relating to the handling, storage and use of explosives, are observed correctly. (Cap. 189.)

(2) For the purpose of paragraph (1), the manager of a mine or any part thereof may make and publish special rules as to the general conduct of the work, the duties of particular persons and the exclusion of unauthorised persons from the mine or any of the works thereof.

Manager or deputy to inspect and report

109. Every manager, or his deputy approved by an inspector, shall, once in each week, carefully examine the mine and works under his charge, and shall record in writing, in the Record Book his opinion as to their condition and safety, and any repairs and alterations required to ensure greater safety to the persons employed therein.

Inquiries into accidents

.

.

113.-(1) In the event of any accident attended by loss of life or serious injury to any person occurring at any mine the Director may direct that an inquiry be held into such accident by a Board of Inquiry.

(2) A Board of Inquiry shall consist of a Chairman who shall be appointed by the Director and 2 assessors who shall wherever possible be persons having experience in mining and shall be appointed by the Chairman:

Provided that no person having any personal interest in, or who is employed in the management of, the mine at which the accident in respect of which the Board of inquiry is appointed occurred, shall be appointed to such Board of Inquiry.

(3) For the purpose of any inquiry held by a Board of Inquiry under the provisions of this regulation the Chairman shall have all of the powers of a magistrates' court of compelling the attendance of witnesses and the production and giving of evidence as well as of taking the evidence of witnesses on oath or affirmation.

(4) Any person who, having been summoned to appear before a Board of Inquiry fails to appear before the Board of Inquiry at the time and place appointed in such summons, or fails to produce any document in his possession, or having appeared before the Board of Inquiry refuses to take the oath or affirmation or to answer any questions put to him by the Board of Inquiry, shall be guilty of an offence and liable to a fine not exceeding $50.

(5) On completion of an inquiry held under the provisions of this regulation the Board of Inquiry shall state its opinion on the cause of the accident the subject of such inquiry and forward such opinion in writing signed by the Chairman and the assessors to the Director.

[53] In Kippion v Attorney-General [1994] VUSC 1; Civil Case 120 of 1994 (1 January 1994), Mr Justice Downing of the Supreme Court of Vanuatu, although finding that there was no actionable breach of statutory duty in that case, said, for a plaintiff to succeed in a claim for breach of statutory duty he must show:

(a) the injury he has suffered is within the ambit of the statute.

(b) the statutory duty imposes a liability to civil action.

(c) the statutory duty was not fulfilled and

(d) the breach of duty has caused injury.

[54] In Butler (or Black) v Fife Coal Co Ltd [1911] UKLawRpAC 74; [1912] AC 149, the plaintiff was killed in a mining accident when he was overcome by carbon monoxide gas which had seeped into his work area. The provisions of the Coal Mines Regulation Act, 1887 (UK) imposed duties on the mine owner to conduct daily inspections of the mine before the miners went to work and to appoint a "competent person" to ascertain the condition of the mine and the presence of gas and general safety. The provisions provided that, if at any time it is found by the person for the time being in charge of the mine that by reason of inflammable gases prevailing the mine or for any cause whatever the mine is dangerous, every workman shall be withdrawn and a competent person appointed for the purpose shall inspect the mine and make a report of its condition; and a workman shall not be readmitted into the mine until the same is stated by the appointed person not to be dangerous. It was found as fact that the seepage of poisonous gas should have been obvious to the mine managers but they failed to take steps to prevent it. The failure was in breach of the provisions of the Act. In deciding whether such failure could give rise to a claim for negligence for breach of statutory duty, the House of Lords said (per Ld Kinnear)[5]:

If the duty be established, I do not think there is any serous question as to civil liability. There is no reasonable ground for maintaining that a proceeding by way of penalty is the only remedy allowed by the statute. The principle explained by Lord Cairns in Atkinson v Newcastle Waterworks Co [1851] EngR 417; (1877) 2 Ex D 441 and by Lord Herschell in Cowley v Newmarket Local Board [1892] UKLawRpAC 42; [1892] AC 345 solves the question. We are to consider the scope and purpose of the statue and in particular for whose benefit it is intended. Now the object of the present statute is plain. It was intended to compel mine owners to make due provision for the safety of the men working in their mines, and the persons exposed to danger. But when a duty of this kind is imposed for the benefit of particular persons, there arises at common law a correlative right in those persons who may be injured by its contravention. Therefore I think it is quite impossible to hold that the penalty clause detracts in any way from the prima facie right of the persons for whose benefit the statutory enactment has been passed to enforce civil liability. I think this has been found both in England and Scotland in cases in which the point was directly raised, the case of Groves v Lord Wilborne [1898] UKLawRpKQB 138; [1898] 2 QB 402 in England and Kelly v Glebe Sugar Refining Co (1893) 20 R 833 in Scotland

See also: Reg. v Dep. Gov. of Parkhurst, Ex p. Hague [1992] 1 AC 146, 170

[55] In the unreported decision of Fero Tabakisuva v Sant Kumar and Eroni Tokailagi, Civil Case No 12 of 1982 (delivered 30 July 1983) the Court of Appeal said:

As to statutory duty, the test of breach of duty is much stricter. It is not gauged by what a reasonable man would or would not have done; the statute or the regulation defines the required standard of conduct. What has to be determined is only whether the act complained of transgresses the provisions of the statute. Even then, no cause of action arises unless the plaintiff is among the class of persons whom the statute is designed to protect. In special classes of statutory duty, such as those created by legislation governing factories, or mines or similar places where regulations have been passed to require safety standards to be observed, it is not difficult to conclude that the worker is the person designed to be protected, and therefore he is the person to whom the duty is owed.

CONTRIBUTORY NEGLIGENCE

[56] I take as the leading case in this area: Rauqe v Attorney General of Fiji [2003] FJCA 9; ABU0040U.2000S (28 February 2003). The facts were that two professional deep sea divers died of the bends trying to recover an anchor from the bottom of the ocean. The Court found that the supervisor of the diving operation did not properly supervise the divers. This case, in my opinion, established two principles:

1. The onus of proving contributory negligence lies with the employer.

2. If the employer fails to properly supervise the employee and that failure is the cause or principal cause of the accident and the employee’s injury, then the employee cannot be found to have contributed to his injury.

[57] As a more general proposition, the second principle can be put in this way: Where the person in control allows a chain of events to continue and the plaintiff is thereby injured, that person will be held responsible for the plaintiffs injuries without the plaintiff being found to have contributed to his injuries. I think such a general proposition is supported by the Court of Appeal decision in Singh v Bui [2007] FJCA 2; ABU0112.2005S (9 March 2007). In that case, the Court of Appeal had to decide whether a villager who was injured in an accident involving the carrier that he was travelling in had contributed to his own injury by using the carrier. The Court of Appeal disagreed with the trial Judge’s finding of two-thirds contribution by the plaintiff and held that he had not contributed to his injuries at all. In coming to that conclusion, the Court took into account the "economic imperatives" that may have forced him to use this mode of transport. The Court also accepted that the villager may not have appreciated the fact that the vehicle was illegally modified and unlicensed and without seat belts.

APPLICATION OF THE LAW TO THE FACTS

[58] I am of the view that the facts as I have outlined above clearly support a finding that the Defendant had not provided a safe system of work, had not provided tools and equipment of a reasonable standard and have not properly supervised the carrying out of the mining operation and the Plaintiffs work for the day of the accident.

[59] There were no proper hand-over instructions or communications between the previous crew and the Plaintiffs crew and between the previous machine miner, Naua, and the Plaintiff. The ventilation and cooling fan and system was either inadequate or if adequate was not properly set up and working. The provision of proper or additional lighting may have allowed the Plaintiff to see the danger that he was in more clearly. There was no evidence that the "common practice" of miners disconnecting the drill hose and showering themselves was accepted industry practice. The Defendant could have extended hoses for water and air from the safe bay so that miners do not have to cool themselves down so close to the work area or have to walk long distances to the safe bay. The costs involved I would have thought not disproportionate. The bar that was provided was not adequate in length and without the rubber handle for Mr Naua to properly scale and bar the work area and, even if the Plaintiff did attempt to bar and scale, he would be as equally ineffective in making his work area safe.

[60] I am also of the view that the Defendant had breached Mining Regulations 101, 106, 108 and 109.

[61] The Plaintiff is clearly within the class of persons who were intended to be protected by the provisions of the Mining Act and Regulations. Those breaches caused the accident and the Plaintiffs injuries. From the case authorities that I have referred to above, the Plaintiff is entitled to damages for breach of those provisions.

[62] Further, Mining Regulation 107 makes the manager responsible for the accident in the absence of proof that he took all proper precautions to prevent it. The onus of proof is on him and he failed to do so here. In fact, the evidence suggested the contrary. The Defendant is therefore vicariously liable for the manager’s failure.

[63] I also find that the Plaintiff did not contribute at all to the accident and his injuries. The lack of proper supervision and provision of proper tools and safe system of work led to a chain of events which made the accident inevitable. The rock was bound to fall and the Plaintiff was put in a situation where he had no reasonable choice but to sit and cool himself down where he did.

[64] I therefore find that the Defendant had been negligent at common law as well as in breach of its duties under the Mining Act and Regulations.

[65] Such negligence and breaches had caused the Plaintiffs injuries and the Defendant is therefore liable for those injuries.

QUANTUM

Pain and Suffering and Loss of amenities

[66] The Plaintiff suffered an open fracture to his left tibia and fibula. Dr Mareko testified that the Plaintiff had suffered a "compartment fracture" which is crushing of the bone. Attempts to save his leg were unsuccessful so the leg had to be amputated below the knee. The Plaintiff suffered severe pain and had to be administered strong pain killers including morphine. The pain and suffering will continue into the future and I note from the trial Judge’s notes that on several occasions the hearing had to be adjourned because of the Plaintiffs condition. He was hospitalised for 48 days. He has not adapted well to his prosthesis. I accept his evidence that he was active in sport before the accident and his participation in those activities have been severely curtailed since his accident. The amputation of his leg has caused him some embarrassment.

[67] Comparative awards for pain and suffering are as follows:

a. Sharma v Prasad [HBU 40/88, Civ Appeal 73/91] – amputation of leg - $100,000.

b. Attorney-General of Fiji v Sharma [1994] FJCA 27; Abu0041u.93s (12 August 1994) – the Plaintiff broke his right leg playing soccer in August 1992. As a result of gross negligence of the medical staff that treated him, his leg became gangrenous, he suffered prolonged pain eventually leading to his leg being amputated below the knee in January 1983 – Australian $50,000.

c. Kotoiwasawasa & Another v Govind & the Attorney General [Civil Action 192/2000], one of the Plaintiffs suffered an open fracture to his left leg in a motor vehicle accident in 1996, similar to that suffered by the Plaintiff in this case, which got infected resulting in amputation of his leg below the knee. Justice Pathik awarded $95,000 for pain and suffering in a judgment delivered in 2003 which was reduced to $60,000 by the Court of Appeal in Attorney-General of Fiji v Kotoiwasawasa [2003] FJCA 56; ABU0004.2003S (14 November 2003).

d. Flour Mills of Fiji Ltd v Raj [2001] FJCA 35 – injury to right arm resulting in amputation above the elbow - $85,000.

e. Dre v Ministry of Health [2009] FJHC 129; HBC020.2007 (24 June 2009) – infection of right hand leading to amputation of the arm below the elbow - $70,000.

f. FSC & Anor v Subramani & Anor [HBU47/93] – loss of both eye sight- 75 % - $37,500.

g. Salaitoga v Anderson [Civ Appeal 26/94] – severe head injury - $85,000.

h. AG v Waqabaca [Civ Appeal 18/98] – cerebral palsy – loss of all bodily function - $85,000.

i. Tuwere v Headteacher, Qalitu District School, Bagata, Cakaudrove [2009] FJHC 130; HBC021.2008 (24 June 2009) – burns to bottom of the plaintiff child’s feet - $43,000.

[68] Unfortunately, a copy of the Sharma v Prasad (supra) judgment is not available to the Court for consideration. The injury suffered by the plaintiff in AG v Sharma (supra) is similar to that suffered by the Plaintiff in this case. The award of AUD$50,000 was not disturbed on appeal in August 1994. That amount, if awarded today, would be close to $90,000 but it would probably be much less in value now than it would have been in 1994. Kotoiwasawasa (supra) was decided about 10 years ago for an accident that happened five years before the accident in this case so I think an award of $60,000 would be too low now.

[69] As was said by the Court of Appeal[6] in Sharma (supra), awards arrived at by comparison of similar cases, "reflecting society's view of current values, cannot be assumed to remain static in the presence of high inflation and substantial increases in the cost of living". Taking all these matters into account, I think an award under this head of $100,000 is justified.

Other Heads of Damages

[70] The Plaintiff also claims special damages, in particular loss of wages and loss of future earnings. Unfortunately, the written submissions already filed by Counsel are not very clear to me on this aspect of the Plaintiffs claim so I would like to hear oral submissions and further written submissions if required, limited to the quantum of special and other general damages (including interest) other than for pain and suffering and loss of amenities of life. The situation is exacerbated by the passage of time and the volume of material tendered at the trial and to what extent that material is admitted or contested is not clear from the trial Judge’s notes.

COSTS

[71] I will hear the parties on costs at the hearing on damages

ORDERS

[72] The Orders that I make for the moment are therefore as follows:

1. The Defendant shall pay to the Plaintiff the sum of $100,000 as damages for pain and suffering and loss of amenities of life.

2. The Court will hear oral submissions and receive further written submissions if required, on the quantum of the other heads of damages claimed by the Plaintiff and costs on a mutually convenient date.

Sosefo Inoke
Judge

---

^[1] At para 8
^[2] Defendant’s submissions filed 24/10/07
^[3] Reddy P, Kapi and Sheppard JJA.
^[4] S 68(20) of the Act.
^[5] [1912] AC 149, 165-6
^[6] Sir Moti Tikaram P, Sir Peter Quilliam, Ian R. Thompson JJA.