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Bulga Underground Operations Pty Ltd v Nash

Bulga Underground Operations Pty Ltd v Nash

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Case Copied 11 March 2016 74 min read

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
Hearing dates: 13 November 2015
Date of orders: 11 March 2016
Decision date: 11 March 2016
Before: Bathurst CJ; Hidden J; Davies J
Decision:
1 Appeal dismissed;
2 Appeal against penalty allowed;
3 Order that in lieu of the penalty imposed by the trial judge, a penalty of $100 000 be imposed on the appellant;
4 Grant the respondent leave to appeal against the costs order made by the trial judge;
5 Allow the appeal against the costs order;
6 Order that the appellant pay 50% of the respondent’s costs in the court below.

Catchwords:
CRIMINAL LAW – breach of duty of employer under former OHS Act – whether employer failed to ensure the health, safety and welfare at work of its employees – whether failure to take steps that only minimise or manage risk can constitute breach of duty – whether particularised measure would have prevented exposure to risk – whether causal nexus between omission and risk

CRIMINAL LAW – appeal – where appeal under s 5AA Criminal Appeal Act – where appellate court finds error in proving charge on one particular, whether court can find appellant should have been convicted on a different particular – whether court has power to order a retrial

SENTENCE APPEAL – whether failure to consider objective seriousness of offence – whether trial judge erred in measuring quantum of fine against extent of employee’s injury – whether failure to include in fine components for specific and general deterrence – whether trial judge wrongly took into account defendant’s remorse – whether court should resentence
COSTS – whether error in apportioning costs
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912 (NSW)
Occupational Health and Safety Act 1983 (NSW)
Occupational Health and Safety Act 2000 (NSW)
Occupational Health and Safety Amendment Act 2011 (NSW)
Occupational Health and Safety Regulation 2001 (NSW)
Supreme Court Act 1970 (NSW)
Cases Cited: ABC Development Learning Centres Pty Ltd v Wallace [2007] VSCA 138; 16 VR 409
AK v State of Western Australia [2008] HCA 8; 232 CLR 438
Alcan (NT) Alumina Pty Ltd v The Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; 239 CLR 27
Allianz Australia Ltd v GSF Australia Pty Ltd [2005] HCA 26; 221 CLR 568
Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; 246 CLR 92
Baxter v R [2007] NSWCCA 237; 172 A Crim R 284
Brayson Motors Pty Ltd (in liq) v Federal Commissioner of Taxation [1985] HCA 20; 156 CLR 651
Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280
Capral Aluminium Ltd v WorkCover Authority of NSW [2000] NSWIRComm 71; 49 NSWLR 610
Certain Lloyd’s Underwriters v Cross [2012] HCA 56; 248 CLR 378
Conway v The Queen [2002] HCA 2; 209 CLR 509
Gilmour v Environment Protection Authority…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] NSWCCA 37
Decision Date: 11 March 2016

CaseChat Overview and Summary

In Bulga Underground Operations Pty Ltd v Nash, the respondent, an employee, brought an action against his employer, the appellant company, alleging a breach of the employer's duty under the Occupational Health and Safety Act to ensure the health, safety and welfare at work of its employees. The court had to determine whether the employer's failure to take steps that only minimised or managed risk could constitute a breach of duty and whether a particularised measure would have prevented exposure to risk. Additionally, the court needed to assess whether there was a causal nexus between the employer's omission and the risk to which the employee was exposed.

The court found that the employer had failed to ensure the health and safety of its employees by not taking sufficient steps to prevent the risk of injury. It held that a failure to take steps that only minimised or managed risk could constitute a breach of duty if it was shown that a particularised measure would have prevented exposure to risk. The court also established that there was a causal nexus between the employer's omission and the risk to which the employee was exposed. Regarding the appeal, the court held that it could find the appellant should have been convicted on a different particular if it found an error in proving the charge on one particular. The court also found that it had the power to order a retrial in such circumstances.

The court further determined that the trial judge had failed to consider the objective seriousness of the offence, had erred in measuring the quantum of the fine against the extent of the employee's injury, had failed to include in the fine components for specific and general deterrence, and had wrongly taken into account the defendant's remorse. Consequently, the court resentenced the appellant. Finally, the court found that there was an error in apportioning the costs between the parties and ordered a reassessment of the costs.

Orders