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KREMER -v-  SANDFIRE  RESOURCES NL [2020] WADC 130 (25 September 2020)

Last Updated: 29 September 2020

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH

CITATION : KREMER -v-  SANDFIRE  RESOURCES NL [2020] WADC 130

CORAM : TROY DCJ

HEARD : 27 & 28 AUGUST, 2 SEPTEMBER 2020

DELIVERED : 25 SEPTEMBER 2020

FILE NO/S : CIV 1460 of 2018

BETWEEN : ERIN BERNARDUS KREMER

Plaintiff

AND

 SANDFIRE  RESOURCES NL

Defendant

Tort - Personal injury - Negligence - Whether employer in breach of duty of care - Turns on own facts

Legislation:

Mines Safety and Inspection Act 1994 (WA), s 9
Occupiers' Liability Act 1984 (WA), s 5

Result:

Plaintiff's claim dismissed

Representation:

Counsel:

Solicitors:

Case(s) referred to in decision(s):

Allied Pumps Pty Ltd v Hooker [2020] WASCA 72

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540

Prince Alfred College Inc v ADC [2016] HCA 37; (2016) 258 CLR 134

Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431

Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9; (2002) 208 CLR 460

Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

Xavier v ROPS Engineering Australia Pty Ltd [2019] WADC 146

TROY DCJ:

Introduction

1. On 2 November 2015 the defendant company,  Sandfire  Resources NL ( Sandfire ), held a function to commemorate the Melbourne Cup horse race at their DeGrussa Copper and Gold Mine, some 900 km north-east of Perth.  Sandfire  is a mining and exploration company and was the owner and operator of this mine site.  Sandfire  set up and encouraged its employees to use a designated recreational zone. The 2015 Melbourne Cup function was held in this recreational zone.
2. As of 2 November 2015 the plaintiff, Mr Erin Kremer, was a 42-year-old senior underground geological technician whom  Sandfire  employed at the mine site. He attended the function.
3. As part of the function,  Sandfire  organised a number of Melbourne Cup themed, team-based activities for its employees. Each activity attracted a 'score' to enable a 'winning' and 'losing' team to be identified at the end of the function. The final such activity was a competitive relay race at the function. This was a 'tie-breaker' to determine if the geology team or the safety team placed last. Mr Kremer participated in this race, as did another employee, a Mr Juan Manuel Santos. Mr Santos worked in the safety department. There were four participants in each team. The relay race required each participant to place a wooden 'hobby-horse' between their legs. They would then line up next to their opponent around a rectangular shaped cricket pitch and race each other.
4. Mr Kremer contends that as he and Mr Santos approached a left-hand turn in their relay leg, Mr Santos tripped him from behind, causing him to stumble and fall to the ground, landing on his outstretched right arm. He indisputably suffered injury to his right shoulder and arm.
5. The particulars of breach of duty  Sandfire  owed as Mr Kremer's employer, as pressed at trial were, by reference to par 14 of the amended statement of claim of 28 August 2020 that:

The accident was caused by the negligence of  Sandfire  and its employees and/or servants and/or agents:

(a) Failed to provide any or any adequate supervision of attendees at the function;
(b) Failed to provide any or any adequate supervision of the relay race;
...
(f) Failed to conduct any or any adequate risk assessment.

6. Further or alternatively, the particulars of the breach of duty  Sandfire  owed as an occupier under the Occupiers' Liability Act 1985 (WA) pressed at trial were, by reference to par 16 of the amended statement of claim, in identical terms to par 14, together with the following particular:

(g) Tripping the plaintiff in the course of the relay race (an action undertaken by Juan Santos for which the defendant is vicariously liable by reason of the employer/employee relationship that existed between the defendant and Mr Santos).

7. Further or alternatively, the particulars of breach of statutory duty owed by  Sandfire  by virtue of s 9 of the Mines Safety and Inspection Act 1994 (WA) pressed at trial were, by reference to par 18 of the amended statement of claim, that:

(a) Failed to provide and maintain a workplace and system of work in which Mr Kremer was not exposed to hazards;
(b) Failed to provide such information, instruction and supervision to its employees, including Mr Kremer, to enable Mr Kremer to attend and be present in his workplace without being exposed to hazards;
(c) The particulars of negligence already referred to as particulars of the defendant's breach of statutory duty.

8.  Sandfire  accepts that it was at all material times the occupier of the mine site within the meaning of s 2 of the Occupiers' Liability Act.  Sandfire  also accepts that it was the owner and operator of the DeGrussa Copper and Gold Mine bringing it within the ambit of the Mines Safety and Inspection Act.
9.  Sandfire  accepts that it owed a duty of care at common law to Mr Kremer to take all reasonable precautions to prevent the foreseeable risk of injury or harm to him whilst he was employed by them.
10. With respect to the Occupiers' Liability Act the duty owed, under s 5, was one to take such care as in all the circumstances was reasonable to see that Mr Kremer did not suffer injury or damage while he was at the mine site. With respect to the Mines Safety and Inspection Act the duty owed was one to provide and maintain, so far as was practicable, a working environment in which its employees, including Mr Kremer, were not exposed to hazards.
11. I agree with Mr Kremer's submission that the scope and content of the statutory duties that  Sandfire  owed under the Occupiers' Liability Act and the Mines Safety and Inspection Act are analogous to the duty it owed at common law.
12.  Sandfire  accept that Mr Kremer fell to the ground while participating in the race, but denies that Mr Santos tripped him. Rather,  Sandfire  contend that, insofar as it can be discerned, Mr Kremer either fell over his own feet or his hobby-horse.
13. 'Trip' is an ordinary English word and denotes an action whereby one suddenly catches or entangles another person's foot.  Sandfire  notes Mr Kremer no longer asserts that the incident was in some way alcohol related.  Sandfire  assert that Mr Kremer's case from his pleadings and throughout the trial is not that Mr Santos was in any way negligent in making physical contact with him. Rather, his case is that Mr Santos deliberately tripped him.
14. Mr Kremer does not accept that either the amended statement of claim or the plaintiff's answers to further and better particulars confine his case to a circumstance where Mr Santos intentionally tripped him. In written closing submissions counsel for Mr Kremer submits that:

[211] Mr Santos was uniquely positioned to observe the plaintiff and to avoid tripping the plaintiff, intentionally or otherwise, by coming into contact with the plaintiff's lower left leg.
[212] There was no suggestion in any of the evidence that the plaintiff had moved suddenly or in any unanticipated way into Mr Santos' path.

Statement of Issues

15. The first, and really the fundamental issue for resolution, is whether Mr Santos, intentionally or otherwise, tripped Mr Kremer in the course of the race. If Mr Kremer is unable to establish this assertion on the balance of probabilities his case fails. If he does, then the remaining issues are:
    • The extent of  Sandfire 's undoubted duty of care to Mr Kremer and whether, even if Mr Santos tripped Mr Kremer, that duty was discharged;
    • Whether a reasonable employer would have done any more than  Sandfire  did on 2 November 2015 to guard against a foreseeable risk of injury;
    • Whether, therefore,  Sandfire  was in breach of its duty of care;
    • Whether Mr Kremer's injuries were caused by any proven breach of duty;
    • Whether  Sandfire  is vicariously liable for Mr Santos' actions in tripping Mr Kremer; and
    • Whether any contributory negligence by Mr Kremer has been established.
16. The quantum of any damages that would flow from a finding of liability was agreed prior to the trial.

The accident

17. On the evidence before me the relay race took place at approximately 8.30 pm. Mr Kremer testified that he had purchased a six pack of full strength beer at about 6.00 pm, but there was no evidence of how many beers he had consumed by 8.30 pm. A person called 'Kylie', who to Mr Kremer's recollection was one of three organisers, informed Mr Kremer and others that his team and the safety team had to engage in a tie-breaker to determine who was going to be dead last. She explained that one person from each team was to run around cones that had been placed near the corners of an indoor cricket pitch. The pitch comprised a multi-use outdoor astroturf area with full netting around it and a roof over the top.

The nature of the race

18. The first pair of racers were to run anticlockwise. The second person in each team was then to be tagged by handing over the hobby-horse each racer was 'riding'. The hobby-horse was effectively the relay baton. The second person was to run clockwise, the third person anticlockwise and then the fourth and final person would run back clockwise.
19. Mr Kremer recalled the cricket pitch was approximately 30 m long by 15 m wide with a cone at each corner. The hobby-horse was a broomstick, about 1.5 m long, with a plastic horse's head on one end. He did not recall anything on the other end. Mr Kremer understood, implicitly from the instructions provided by Kylie, that participants were to hold the hobby-horse between their legs when they were running. He accepted in cross-examination that this instruction was given just before they started the race.
20. Mr Kremer called Jason Brett to give evidence. Mr Brett was, and still is, employed by  Sandfire  as an underground technician. He described the cricket pitch as a rectangle, roughly 40 m or 50 m long and 20 m wide with a concrete surface.
21. Mr Kremer also called a mine geologist Craig Butler to give evidence. Mr Butler was employed by  Sandfire  between 2010 and 2017. His recollection of the Melbourne Cup function was 'sketchy' although he was part of the social club that organised it. He recalled that the surface was like an astroturf, similar to a hockey pitch. He described the hobby-horse as a horse's head with a long pole that had wheels on the bottom of it. He understood that the people in the event had to hold the horse in one hand and keep the wheels on the ground while navigating the circuit.
22. In cross-examination, Mr Butler accepted that this rule was put in place to moderate the speed of the race. It required participants to keep the wheels on the ground at all times. He was one of the organisers who helped put that rule in place.
23. Mr Kremer also called a senior pit technician, Paul Delaney to give evidence.  Sandfire  employed Mr Delaney between about 2011 and 2019. He recalled the dimensions of the cricket courts as being maybe 25 m by 10 m, with the surface comprised of astroturf lining but on a concrete base. Mr Kremer was one of his best friends.
24. Mr Delaney testified that to stop people 'running off into the distance', participants had to keep the wheel of the horse touching the ground the whole time. That was part of a rule instituted, he thought, by Kylie who was one of the geologists and also part of the social club. That rule was followed as best as people could. Holding the hobby-horse was very awkward, because it was built for a child and Mr Kremer, in particular, was quite tall. Mr Delaney thought that this rule would 'kind of go out of the window' after a while.
25. In contrast to all other witnesses, Mr Delaney seemed to suggest that the race in which Mr Kremer was injured was not the first race of its type. Mr Delaney testified that there was one particular race, where Mr Kremer had his accident, where participants used a small little toy horse with a head on a stick hanging off it. One had to race around a little course inside the cricket nets to simulate the horse race. Mr Delaney said they had done a couple of those races and Mr Kremer's race turned out to be the last race of the night. Mr Delaney said that he was a participant but not in the particular race where Mr Kremer fell.

The start of the race

26. Mr Kremer's recall of the start of the race was fairly limited. He recalled that there was a start line put across the track but could not describe it. Nor was he able to distinctly say how and by whom the race was started. He explained that he was the first runner on his team and that Mr Santos was his opposing first-leg runner. They would each be running anticlockwise. Mr Kremer had known Mr Santos really well for nearly four years and they got along well. Mr Kremer occupied the inside line with Mr Santos on his outside to his right. They were each jostling before the race. Mr Kremer said something along the lines of 'I'm not afraid to take you out.' Mr Santos responded along the lines of 'bring it on, big boy'. At the start line they were pushing each other a little bit, 'just gentle bumping and nudging each other, shoulder-to-shoulder bumping into each other'. This went on for less than a minute.
27. Mr Kremer agreed in cross-examination that there was no aggression or hostilities between him and Mr Santos. His discussion with Mr Santos at the starting point was nothing more than light-hearted banter. He did not necessarily expect any contact from Mr Santos but he was not surprised when it occurred.
28. Mr Brett testified that when the race first started he was about 5 m behind Mr Kremer and Mr Santos, just outside the caged court area. He was a spectator. He was watching the race, but there was a lot of other people around and he was still interacting with those other people.

Mr Kremer's fall

29. Mr Kremer described that when the race started he and Mr Santos both ran as fast as they could. He was in front of Mr Santos. About three-quarters of the way along the first straight stretch, and so before the first corner, Mr Kremer felt the outside of his left leg, slightly above his ankle, get knocked across behind his right leg. He knew straight away he had been tripped over. He had expected to be bumped or knocked into at some stage. He fell heavily forward and landed on his outstretched right arm. He did not see what knocked into his left leg. It was not a hard kick, it was a tap.
30. Rather than holding the hobby-horse between his legs as he should have done, Mr Kremer accepted that he had it in his right hand, to try and win. He asserted that the hobby-horse could not have come into contact with the outside of his left ankle and lower leg because he was holding it on the right hand side of his body.
31. Mr Brett testified that he saw the two men start the race off. They were pretty much level. There was a little bit of 'light jostling' going on, 'like shoulder to shoulder', and they kept on going until Mr Kremer fell down on the corner. Mr Santos continued around the corner, for some 15 m, until he realised that Mr Kremer had fallen over and then stopped and raced back to check on him.
32. Mr Brett expanded that Mr Santos was on the inside corner and Mr Kremer was on the outside. They were shoulder to shoulder when Mr Kremer fell. He did not see how that happened. He was 40 m or 50 m away. With other people standing around, Mr Brett did not actually see how Mr Kremer came to fall down, save to say that he fell down pretty hard.
33. Both Mr Brett and Mr Butler acknowledged in cross-examination that they did not see Mr Santos trip Mr Kremer.
34. Mr Delaney recalled that Mr Kremer was on the inside track with Mr Santos outside of him. He would not have thought that there was any contact between Mr Kremer and Mr Santos at the start line.
35. Mr Delaney thought that the rules of this particular race required the hobby-horse wheel to be touching the ground. He described that as the two men got to the first corner they 'got kind of tangled up a little bit' trying to take 'the racing line' coming around the first corner.
36. Mr Delaney thought that 'the stick has obviously gone towards tripping up Erin and that's where he's taken his fall.' I formed the impression from his evidence that this was an assumption as opposed to an actual observation.
37. He confirmed in cross-examination his impression that Mr Santos arrived at the corner first, just slightly ahead of Mr Kremer.
38. Mr Delaney referred to 'that little horse device', noting that the stick itself was between their legs, so that 'wouldn't have helped the issue'. They were shoulder to shoulder coming round the corner as far as he could tell and the sticks between their legs had become an obstacle. Mr Santos would have been leading at the time.
39. After the fall, Mr Santos would have stumbled a little bit, kept his footing and carried on, as far as Mr Delaney could remember, but Mr Kremer hit the ground and stayed there. Mr Santos would not have realised for a couple of seconds afterwards.

The immediate aftermath of the fall

40. In his evidence, Mr Kremer had said that as he fell forward Mr Santos jumped over him said, 'ha, ha, ha' and carried on running.
41. There was no support for that contention from any other witness called by Mr Kremer. In particular, in cross-examination, Mr Brett stated that he did not see Mr Santos jump over Mr Kremer after he had fallen.

 Sandfire 's position

42. I note that there was no evidence that Mr Kremer ran at Mr Santos in an attempt to 'take him out of the race', as  Sandfire  had contended at par 7 of the amended defence dated 16 March 2020.
43. The only witness called by  Sandfire  was Mr Santos. I found Mr Santos to be an unimpressive witness. His professed lack of recall for any significant detail arising out of these events was unconvincing. I appreciate that the race was nearly five years ago, but Mr Santos would have been aware from the outset that the person he was racing against had been injured. There is no evidence as to when Mr Santos would have been aware for the first time that it was being suggested that he was in some way responsible for Mr Kremer's injuries. But I consider that from the moment the accident happened, Mr Santos would have had at least some reason to reflect upon the events leading up to Mr Kremer's fall, as opposed to someone who is suddenly called upon to recollect an inconsequential event five years earlier.
44. Mr Santos' evidence that he did not hold a hobby-horse at the time of the race, which he maintained throughout his cross-examination, is completely inconsistent with every other witness to the relevant events.
45. I put Mr Santos' evidence to one side, but note, of course, that on this fundamental issue it is the plaintiff that has the evidentiary onus, not the defendant.

Post-accident events

46. According to Mr Kremer, after it became obvious that he was injured, Mr Santos walked with him out of the indoor cricket pitch area. Mr Delaney held some netting open and asked Mr Kremer what had happened. Mr Kremer told him that he was 'fucked'. Mr Delaney was not asked about this conversation, but it is consistent with Mr Delaney's evidence that he had not seen with any precision what had caused his friend Mr Kremer to fall. It does not appear that in the immediate period after the accident, Mr Kremer told Mr Delaney that he had been tripped.
47. Exhibit 4, as tendered at trial, is the DeGrussa Copper Mine Medical Treatment Form completed on 2 November 2015. It appears to have been completed by Mr Santos. The recorded history reads that Mr Kremer, 'fell when running, R elbow contacting ground.' Given that there was no evidence that Mr Kremer was the source of this report, it is not open for me to draw any inference adverse to Mr Kremer from this history of injury.

Medical reports and compensation form

48. Of some significance, however, is Exhibit 5 which is one page of a triage/nursing assessment form at Joondalup Hospital dated 3 November 2015. This document records that at 10.55 am on that date Mr Kremer told a nurse that he fell. He did not tell the nurse that he was tripped. On his behalf, counsel submits that this is unsurprising given that Mr Kremer was in significant pain at the time and that the hospital staff were performing a triage/nursing assessment, not a detailed analysis of the precise cause of his injuries.
49. Exhibit 1 is a workers' compensation claim form dated 17 November 2015, that on the evidence Mr Kremer almost entirely dictated and his wife, Mrs Trine Kremer wrote up. Page 1 of that form has a box headed, 'Occurrence Details'. There is then a section headed, 'Describe the occurrence, include' with the first subsection reading, 'What action was involved (i.e. fall, struck by object?)'. Mr Kremer dictated and his wife wrote the word 'fall'.
50. The second subsection is entitled, 'What object, machine, substance was involved'. Mr Kremer dictated and his wife wrote the word, 'running.' Mr Kremer testified that he and his wife argued about this at length. Mr Kremer was aware that Mr Santos was going to get in a lot of trouble for the tripping event. He did not have any ill feeling to Mr Santos. Mr Kremer stated that he just wanted it to go away, and he honestly did not think that he was that injured at that point. He did not lie in the form but maybe he 'glossed over the fact somewhat'. His wife thought he was being stupid for trying to protect Mr Santos' job.
51. In cross-examination, Mr Kremer accepted that he did not say 'tripped', but given that he was running, he thought that was the appropriate action to nominate. Although the form had a section 'what object, machine etc caused the incident' he accepted that he did not answer that he was tripped by a fellow worker.
52. Mr Kremer made the decision to record what is set out on this form. His wife argued with him because she wanted him to put down what she understood had actually occurred.
53. In her evidence, Mrs Trine Kremer testified that she wanted her husband to state what had happened, whereas Mr Kremer wanted to put down that he had a fall. Mrs Kremer said he should tell the truth and say that he was tripped.
54. Mr Kremer's case is that he harboured no ill will to Mr Santos when he completed this form. He did not want Mr Santos to get into trouble for tripping him and he did not then appreciate the severity of his injury. Accordingly, it is easily understandable that he described the mechanism of injury in this way. He did so in a manner that adequately described the event but also shielded Mr Santos from any ramifications.
55. Exhibit 6 is an extract from a report to WorkCover authored by a Dr Michael Beinart of Sonic HealthPlus on 4 August 2016. Dr Beinart does not record that Mr Kremer told him that he was tripped. Dr Beinart does report that Mr Kremer described that he fell forward on an outstretched arm in a running race. In cross-examination, Mr Kremer testified that he told Dr Beinart that he was tripped as well as that he fell forward and was injured.
56. I am quite satisfied that if Mr Kremer had indeed told Dr Beinart that he was tripped, Dr Beinart would have recorded that account. There would be no reason not to. It would have required the insertion of perhaps an extra three words. Dr Beinart recorded details such as the time of 8.30 pm, that Mr Kremer was participating in a social club event and that the location was an indoor cricket pitch. It is not a realistic possibility that Dr Beinart would have regarded an assertion that 'I was tripped' as interchangeable with 'I fell.'
57. So, nine months after the event, on its face, Mr Kremer was still relaying that he simply fell as opposed to being tripped. He would not, on his case, have seen what caused his fall, because he was ahead of Mr Santos. He would, however, have been aware from the outset that he had been struck by something which caused him to fall. And the only person who could have done that was Mr Santos. As Mr Kremer said in his evidence, he knew straight away he had been tripped over.

Analysis

58. I return to the fundamental question of whether it is more likely than not that, as asserted at par 11 of the amended statement of claim, Mr Santos tripped Mr Kremer over causing him to fall to the ground.

Principles governing fact-finding

59. As I noted in Xavier v ROPS Engineering Australia Pty Ltd,[1] I must make a finding on the evidence and not assume the existence of a fact. The evidence must go beyond guesses and speculation. I am required to be actually persuaded as to the probability of a fact being true. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which as the tribunal of fact I may reasonably be satisfied. I must have the appropriate degree of confidence in a particular fact's existence or correctness based on or judged according to reason. The test of balance of probabilities is not satisfied by evidence which fails to do more than establish a possibility. No court should act upon mere suspicion, surmise or guesswork in any case. In a civil case, fair inference may justify a finding upon the basis of preponderance of probability.
60. In a personal injury case the ultimate burden is on the plaintiff to establish the extent of his injuries caused by the conduct of the defendant. Mr Kremer's primary task, therefore, is to satisfy me that whilst he was competing in this race another employee tripped him causing him to fall, resulting in the injuries complained of. The existence of that factual assertion is a condition precedent to Mr Kremer's right to maintain his action.
61. In Fox v Percy[2] Gleeson CJ, Gummow and Kirby JJ encouraged trial judges to limit reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. Their Honours noted that this does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.

Analysis of witnesses of fact

62. I regarded Messrs Brett, Butler and Delaney as broadly impartial, doing their honest best to recall an event that occurred nearly five years ago and which unfolded entirely unexpectedly.
63. It would have been no easy thing for Mr Santos to trip Mr Kremer in the manner he describes. He could conceivably have reached out with his left hand and 'ankle-tapped' his opponent as sometimes occurs in a game of rugby union. To do so requires quite some considerable skill. I am far from convinced that Mr Santos would have had the skill to strike Mr Kremer's ankle with his left hand, and in particular to do so without himself falling forward onto his face.
64. It seems to me that it would have been easier for Mr Santos to have flicked the outside of Mr Kremer's left leg with his own foot. But it would not have been easy to simultaneously run and strike Mr Kremer's outside leg with sufficient force to cause that leg to get knocked across behind his right leg.
65. Whilst it would also have been possible for Mr Santos to knock Mr Kremer's left leg across his right leg using the hobby-horse, to do so with sufficient force to cause this accident, would have been challenging if combined with running. And I would have expected one of Messrs Brett, Butler and Delaney to have seen the deliberate use of a hobby-horse to trip Mr Santos if that had occurred. It would, it seems to me, have been quite a startling episode if it had occurred in that way.

Failure to document a trip

66. In assessing the credibility and reliability of Mr Kremer's actions I look at how he acted soon after the events to see whether he acted in a way that I might expect a person in his position, that is a person who had been deliberately tripped resulting in a painful and serious shoulder injury, to act after the events of which he has given evidence.
67. I find that Mr Kremer's conduct is inconsistent with the allegation that grounds this statement of claim. He did not tell Mr Delaney, his close friend, that he had been tripped moments after the incident. I do not find, as Mr Kramer contended in cross-examination that he thought that his answers on the workers' compensation form adequately captured the flavour of what had occurred. Rather, as he explained in answers to questions I asked about the nature of the argument with his wife, he expressed himself as he did in order to protect Mr Santos.
68. This form was completed 12 days after the relevant events. Mr Kremer had ample opportunity to reflect on his entries. It was completed in conjunction with his wife. Mr Kremer would by then have been aware of the seriousness of his injury. I find it inconceivable that if he had been tripped, as he asserts he knew straight away he had been, that he would have omitted such detail.
69. I conclude that his priority would have been to ensure that an important document was as accurate and as comprehensive as it could be. It was very much in his interests to do so. Whilst he would not necessarily have harboured any particularly strong feelings adverse to Mr Santos, given their friendship prior to this incident, if he had been deliberately tripped by Mr Santos he would have given a full and frank account. I am not persuaded that Mr Kremer had concluded that foolishly tripping another person, but without ever intending to cause them particular injury, would jeopardise that person's employment.
70. There is no evidence that Mr Kremer was motivated by a desire to protect Mr Santos when he also omitted that detail when presenting at the emergency department at Joondalup Hospital the day after he was injured. His priority, I find, at that time, would have been to assist those who were about to treat him for a serious and painful injury, by telling them exactly what had happened to him.
71. Even when Mr Kremer spoke to the author of a medical report under the Workers' Compensation and Injury Management Act 1981 (WA), nine months later, I find that he still did not reveal that he had been tripped.

Conclusion on tripping issue

72. The evidence does not permit the assertion that, 'the evidence of Mr Brett, Mr Butler and Mr Delaney was broadly consistent with the evidence of the plaintiff' as asserted in Mr Kremer's closing submissions.[3]
73. The contention that Mr Santos tripped Mr Kremer from behind is inconsistent with Mr Brett's evidence that the two men were shoulder to shoulder when Mr Kremer fell. It is also inconsistent with Mr Delaney's evidence that Mr Santos arrived at the corner first, just slightly ahead of Mr Kremer. Whilst not determinative, I also note that Mr Barry, who had, to an extent at least, been watching the two men, did not see Mr Santos trip Mr Kremer.
74. As noted, the assertion of a deliberate trip is inconsistent with Mr Kremer's post event conduct.
75. The calibre of the evidence adduced by Mr Kremer falls significantly short of satisfying me that it is more likely than not that Mr Santos tripped him.
76. Whilst no more need be said in order to determine this claim, out of deference for the arguments advanced on behalf of Mr Kremer and  Sandfire  I will deal with the issues that would have arisen, in the event that I have been satisfied on the balance of probabilities that Mr Santos had tripped Mr Kremer.

The extent of the duty of care to Mr Kremer and whether that duty was discharged

77.  Sandfire  accepts that it owed a duty, as the employer, to its employee Mr Kremer; in particular a non-delegable duty of care to take reasonable care to avoid exposing Mr Kremer to unnecessary risk of injury.
78. The applicable principles are conveniently set out in the judgment of Buss P and Vaughan JA in Allied Pumps Pty Ltd v Hooker[4] which I gratefully adopt, whilst generally omitting citations.
79. As the employer,  Sandfire  owed a duty to its employees, including Mr Kremer, to take reasonable care to avoid exposing the employees to unnecessary risk of injury. The duty includes an obligation to take reasonable steps to provide a safe place of work.
80. The duty is that of a reasonably prudent employer. The employer must take into account the possibility of thoughtlessness, inadvertence or carelessness by its employees. It is said that the standard of care is not a low one. However, the duty is not to safeguard a worker completely from all perils.
81. As was the case in Allied Pumps Pty Ltd v Hooker, the question of breach is governed by the applicable principles under the general law rather than the statutory provisions of the Civil Liability Act. Mason J's classic formulation in Wyong Shire Council v Shirt[5] provides:

In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk.
The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.

82. Mason J described a risk of injury as being foreseeable if it was 'not far-fetched or fanciful'.[6] Thus a risk of injury which was remote, in the sense that it was extremely unlikely to occur, may nevertheless constitute a foreseeable risk.[7]
83. In assessing whether a risk of injury is foreseeable, it is sufficient if the kind of injury is foreseen as a possible consequence of particular conduct. It is not necessary to be able to foresee the particular injury. Nor is it necessary that the precise sequence of events leading to injury be foreseen. In short, it is not necessary that an injury of any particular severity, or the particular mechanism of any such injury, be foreseeable.[8]
84. The general law test of foreseeability has been described as 'undemanding'. Whether a risk is reasonably foreseeable is determined objectively.[9]
85. Reasonable foreseeability of risk of injury is not the end of the inquiry in assessing whether there has been a breach of duty. The existence of a foreseeable risk of injury does not in itself dispose of the question of breach.[10]
86. In this respect foreseeability of the risk of injury and the likelihood of that risk occurring are two different things.[11]
87. In assessing a reasonable response to a risk one must first accurately identify the relevant risk (ie the 'actual risk') of injury faced. Second, the question of breach must be assessed prospectively and not retrospectively. Third, the response to a foreseeable risk is to be judged by the criterion of reasonableness, not some more stringent requirement of prevention. Hence why it is that an employer's duty is not to safeguard a worker completely from all perils. The necessary evaluation is one of 'a contextual and balanced assessment of the reasonable response to a foreseeable risk'.[12]
88. Allied to that last proposition is the accepted position that mere failure to eliminate a reasonably foreseeable risk does not of itself establish negligence. Moreover, in some circumstances reasonableness may require no response to a foreseeable risk. The obviousness of a risk, and the remoteness of the likelihood that other people will fail to observe and avoid it, are often factors relevant to a judgment about what reasonableness requires as a response.[13]
89. Factors to be considered in deciding whether an employer is in breach of a duty to take reasonable care have been said to include:
    • The degree of risk of an accident occurring;
    • The degree of injury likely to result from such an accident; and
    • The nature and extent of the remedial action suggested to be taken.[14]
90. Whether a risk of injury is reasonably foreseeable, and the magnitude of that foreseeable risk, involves a factual judgment. So too does that part of the assessment of breach in which a trier of fact determines what a reasonable person in the position of the defendant would do by way of response to a reasonable risk.[15]
91. It is not necessary that the particular injury or its severity, or the mechanism or sequence of events causing the injury be foreseeable, as it is sufficient that the injury is one of a class or kind that the defendant should have foreseen in a general way.[16]
92. Reasonable foreseeability is determined objectively. Regard is had not only to what the defendant knew, but also what a reasonable person in the defendant's position ought reasonably to have known, or ought to have found out.[17]

Mr Kremer's contentions

93.  Sandfire  organised and supervised the Melbourne Cup function.  Sandfire  was aware that Mr Kremer and Mr Santos would be running as fast as they could (although it must be observed that each was intentionally handicapped by the hobby-horse) on a hard surface. The foreseeable risk of a participant being tripped so as to fall onto the surface of the cricket pitch so as to suffer injury was heightened by:
    •  Sandfire 's encouragement of competition and 'Departmental Rivalry';[18]
    •  Sandfire  permitting 'jostling' and 'trash talk' or 'talking smack'[19] between Mr Kremer and Mr Santos at the start line of the race;
    • A failure of the defendant to enforce the rules of the event - presumably a reference to Mr Kremer's own departure from the rules concerning the position of the hobby-horse; and
    • The fact that the final race was, to the knowledge of Mr Kremer and Mr Santos, a race to determine which team came last in the competition.

Analysis - Did  Sandfire  breach its duty?

94. The nature of the Melbourne Cup events at the mine site were light-hearted recreational activities, barely deserving of the descriptor 'sporting activity.' To repeat, the critical event involved grown adults running around a cricket pitch with a child's wooden hobby-horse grasped between their legs. The participants were directed to maintain that position in order to limit their speed. Mr Kremer, as he acknowledged, broke that rule.
95. The suggestion that Exhibit 3, in referring to departmental rivalry created an enhanced risk must be rejected. This was an email dated 31 October 2015 which begins with the observation, 'Department v Department!!!' The event was described as a fun (my emphasis), sporting parody, horse themed, site social event.
96. The email encouraged employees to 'join in the friendly banter and competition.' The event was declared to be "fun, teambuilding and a good old fashion [sic] bit of 'departmental rivalry'". Participants were encouraged to come up with a ludicrous team name and the rules for the event were described as 'FUN!!'
97. The email observed in bold:

Please note there are three main rules to this events [sic]:
Have fun!
No injuries. If you have a sore back don't volunteer to be a horse or rider.
BAC readings of 000 are expected the next morning. So have fun and be responsible.

98. The email concluded with the observation 'come on down and have fun' with a smiley emoji.
99. It is impossible to conceive what more could have been said to convey to all participants that this was a fun as opposed to an intensely competitive event. Clearly there was an element of competition and equally clearly, given that was the case, one department would inevitably come last. I am not persuaded that any element of competition, however innocuous, gives rise to a heightened foreseeable risk of injury.
100. There was no evidence that physical contact between participants was encouraged. The only evidence of any physical contact between anybody was confined to the jostling between Mr Kremer and Mr Santos that I have described and which occurred for less than a minute before the start.
101. There was no evidence, that anyone, other than Mr Kremer and Mr Santos, was likely to have heard the words that they spoke to each other, still less encouraged it. Certainly no witness spoke of hearing any words exchanged between the two men. There was little or no opportunity for  Sandfire  to prevent such physical contact or to instruct, direct or warn the two men to desist. As previously noted, Mr Kremer agreed in cross-examination that there was no aggression or hostilities between him and Mr Santos. His discussion with Mr Santos at the starting point was nothing more than light-hearted banter.
102. There was a minimal gap between Mr Kremer's breach of the rules, by switching the position of the hobby-horse, and his fall. The evidence does not suggest that he breached this rule prior to the race even commencing. Rather, it was at some point prior to reaching the first corner. In any event I do not regard it as reasonable for  Sandfire  to have intervened at that point to enforce the rules. At most, Mr Kremer might have been subsequently disqualified for taking such an unfair advantage.
103. There was no evidence of inappropriate provision of alcohol. To the contrary,  Sandfire  limited the supply of alcohol by a token system and required a blood alcohol concentration of 0.00 the following morning.[20]
104. Although Mr Santos was a member of the safety team and was in some respect a member of medical staff, plainly at the relevant time he was not there in that capacity, rather he was a participant in the race.
105. In the light-hearted or jovial environment that all witnesses spoke of, I am not satisfied that there was any requirement on  Sandfire  to specifically instruct participants not to make physical contact with each other whilst running.
106. The nature of the event did not require a formal risk assessment process.
107. In Woods v Multi-Sport Holdings Pty Ltd[21] Gleeson CJ noted at [44] that the trial judge and the Full Court of the Supreme Court of Western Australia were criticised in argument for their reliance on the comment of Kirby J in Romeo v Conservation Commission of the Northern Territory[22] that:

Where a risk is obvious to a person exercising reasonable care for his or her own safety, the notion that the occupier must warn the entrant about that risk is neither reasonable nor just.

108. Gleeson CJ considered that it was right to describe that observation as a comment rather than a proposition of law. His Honour continued:[23]

What reasonableness requires by way of warning from an occupier to an entrant is a question of fact, not law, and depends on all the circumstances, of which the obviousness of a risk may be only one. And, as a proposition of fact, it is not of universal validity. Furthermore, the description of a risk as obvious may require closer analysis in a given case. Reasonableness would not ordinarily require the proprietor of an ice skating rink to warn adults that there is a danger of falling; but there may be some skaters to whom such a warning ought to be given. Nevertheless, as a generalisation, what Kirby J said is, with respect, fair comment. That is how French DCJ and the Full Court understood it, and they did no more than indicate that they regarded it as apposite to the present case.

109. I have also had regard to the observations of Hayne J at [144] - [145] and Callinan J at [159].
110. In the event that Mr Kremer had established that he was accidently tripped by Mr Santos, I would have concluded that reasonableness did not require  Sandfire  to warn participants against such a risk.
111. I am satisfied that a reasonable employer conducting this function would have done no more than  Sandfire  did on 2 November 2015. No amount of training or supervision would have prevented one participant in this race accidentally tripping or entangling with another participants so as to cause him to fall.

Vicarious Liability

112. I finally considered the position if I had been satisfied that Mr Santos deliberately tripped Mr Kremer. I considered and applied the judgment of the majority (French CJ, Kiefel, Bell, Keane and Nettle JJ) in Prince Alfred College Inc v ADC.[24] I also considered the observations of Gageler and Gordon JJ at [130] - [131].
113. If I had been satisfied, as a matter of fact, that Mr Santos deliberately tripped Mr Kremer I would have concluded that such incident occurred in circumstances were both men were participating in the same race because they were both employees of  Sandfire . Although Mr Santos was only in a position to be able to trip Mr Kremer because he was employed by  Sandfire  and was present at the relatively remote mine site where the event occurred, the fact that employment affords an opportunity for the commission of a wrongful act is not of itself a sufficient reason to attract vicarious liability.
114. If Mr Santos had deliberately tripped Mr Kremer, whilst it would have been a wrongful act for which his employment provided an opportunity, I would have concluded that it was, nonetheless, entirely unconnected with Mr Santos' employment. This is not a case where Mr Santos used or took advantage of the position in which the employment placed him vis-à-vis Mr Kremer. They were off-duty employees who had chosen, under no obligation, to participate in an innately light-hearted recreational event.
115. It cannot be said that  Sandfire  had assigned any special role to Mr Santos so as to thereby place him in a position vis-à-vis Mr Kremer where vicarious liability properly arises. There are no particular features such as authority, power, trust, control and the ability to achieve intimacy with Mr Kremer. This is not a case where on any view Mr Santos took advantage of his position with respect to Mr Kremer so as to require a conclusion that a deliberate trip, and therefore a wrongful act was committed in the course or scope of employment so as to render  Sandfire  vicariously liable.

Contributory negligence

116. The question of contributory negligence would only arise if I had been satisfied that Mr Kremer was tripped in the manner alleged and there is no utility in considering, hypothetically, the question of any contributory negligence by Mr Kremer in the event that he had succeeded.

Conclusion

117. Mr Kremer has not established on a balance of probabilities that Mr Santos tripped him.

Orders

118. The plaintiff's claim is accordingly dismissed.
     

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

MW
Associate to Judge Troy

25 SEPTEMBER 2020

[1] Xavier v ROPS Engineering Australia Pty Ltd [2019] WADC 146 [17] - [18] (citations omitted).
[2] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [31] - [32].
[3] Paragraph 218.
[4] Allied Pumps Pty Ltd v Hooker [2020] WASCA 72 [4] - [14].
[5] Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, 47 - 48.
[6] Wyong at [48].
[7] Allied at [7].
[8] Allied at [8].
[9] Allied at [9].
[10] Allied at [10].
[11] Allied at [11].
[12] Allied at [12].
[13] Allied at [13].
[14] Allied at [14].
[15] Allied at [15].
[16] Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 [87].
[17] Allied Pumps at [116].
[18] As shown by Exhibit 3.
[19] An expression used by Mr Santos in evidence.
[20] Exhibit 3.
[21] Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9; (2002) 208 CLR 460.
[22] Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 [123].
[23] Woods v Multi-Sport Holdings Pty Ltd at [45].
[24] Prince Alfred College Inc v ADC [2016] HCA 37; (2016) 258 CLR 134 [3], [38] - [39], [80] - [81] and [84].