Mining companies argue over liability for injured worker

TWO mining companies are arguing over liability for a worker buried under rubble inside a dumper truck after a wall collapse on a Blackwater site.

BM Alliance Coal Operations has launched legal action seeking $814,638.32 damages, plus interest, from John Holland amid claims the company breached its contact in failing to list BM as co-insurer on a liability-related insurance policy.

BM was managing the Blackwater mine but had contracts with John Holland, which plans to defend the action.

Kenneth Herd, then 43, reversed a dump truck onto a ramp under a highwall so a digger could load into the tray on September 28, 2007, but the wall collapsed and buried the truck under dirt and boulders.

He suffered a head injury, spinal injuries - including burst fracture of T7 - as well as rib, collarbone and shoulder fractures, a hip dislocation and scarring.

In claim documents filed in Queensland Supreme Court on February 1, 2013, BM says Herd sought and was entitled to $1.47 million damages for his physical and psychological injuries, past and future economic losses as well as medical expenses.

Solicitor Jonathan King-Christopher alleged, in the claim, that John Holland did not update job safety analyses or other risk management processes as conditions changed, failed to install pegs for operators to use as guides to construct the soft highwall to the plan and failed to install barriers to keep people and equipment away from the highwall.

He alleged the company's excavator operator constructed a 70-degree highwall batter and not a 45-degree soft highwall batter as specified in plans and had failed to implement technical advice to manage the risk of wall collapse.

John Holland denies these allegations, arguing it was unaware of any requirement for a 45-degree soft high wall and pointing to notes BM had requested the 70-degree batter.

The company said, in respondent documents filed on April 9, that updating job safety analysis was BM's responsibility.

Barry Nilsson Lawyers, acting for John Holland, argued the open cut examiners inspected the highwall eight days before the incident and identified "unstable cracked areas" to BM.

John Holland says "any reasonable person" in BM's position "would have immediately instigated and enforced a closure of the entire section of highwall until necessary remedial work was undertaken".

The company suggests BM directly caused the injury through wilful conduct and gross negligence.

Mr King-Christopher said BM sought indemnity for failing to monitor John Holland's compliance with the mining technical plan and its supervisory inspections to identify unsafe workplace conditions.

He said, alternatively, it claimed indemnity because it alleged John Holland's performance of the services caused the injury or that the company was negligent.

The case is yet to reach hearing stage.