A mining employer has been ordered to pay an injured labour-hire worker - who fell from a steep ladder on a 50-tonne dump truck - more than $1.2 million, after the NSW Court of Appeal confirmed that "common practice was not necessarily prudent practice".

A full bench unanimously dismissed Roche Mining Pty Ltd's appeal against the damages order, finding the employer could have minimised the fall risk by replacing the dangerous ladder with a transverse retractable stairway.

In April 2003 the worker was using his usual method to climb into the 785B dump truck's cabin, which involved negotiating the difficult last two steps of the ladder by reaching up to a bar under the windscreen and pulling himself up, when his hand slipped and he fell 2.5 metres, injuring his hip, pelvis and lower back.

Prior to the fall, his method of accessing the truck had been assessed as appropriate by a Roche safety officer.

As reported by OHS Alert in October last year, Supreme Court Justice Clifton Hoeben awarded the worker damages, after he found the access ladder was "primitive" and too steep to comply with the relevant Australian Standard, and that the absence of continuous handholds constituted a "design flaw".

He found the incident was foreseeable, and that Roche's insistence that drivers always keep three points of contact on the ladder showed it was aware of the risk. Justice Hoeben found that fitting a transverse stairway to the vehicle for a "relatively minor" cost of $20,000, as recommended by a 2002 mining guideline, would have reduced the risk of injury.

Australian Standards overlooked

On appeal, Roche argued that fitting a transverse stairway was not common practice in the industry, and that it was impractical to retrofit all 42 of its 785B dump trucks.

It also argued that it should not be held liable for the defect in the original design of the truck.

But Court of Appeal Justice Ruth McColl found the defect was obvious, and Roche failed to take reasonable precautions to protect the worker from it.

She found the employer was aware of the fall risk, and said that fitting a transverse stairway was a reasonable precaution and not one "advocated with the benefit of hindsight".

The Australian Standards on angle and handrail continuity both predated the accident, as did the mining guideline that recommended the stairway, she said.

The Standards and guideline were "cogent evidence" that those regulating the industry were aware of the fall risk and the need to reduce it.

"In other words, common practice was not necessarily prudent practice," Justice McColl said.

The company was required to take into account "inadvertence or miscalculation". Roche's three-point contact requirement was an "inadequate response".

Justices John Basten and Murray Tobias agreed.

However, Justice Basten found the primary judge had underestimated the cost of fitting the dump truck with a stairway.

Roche Mining Pty Limited v Graeme Wayne Jeffs [2011] NSWCA 184 (6 July 2011)