Inspector Nash v Bulga Underground Operations Pty Ltd - [2014] NSWDC 186

District Court

New South Wales

Medium Neutral Citation: Inspector Nash v Bulga Underground Operations Pty Ltd [2014] NSWDC 186
Hearing dates: 26-30/05/2014; 2,4,5,6,10,11,12,23,24/06/2014; 05/09/2014; 27/10/2014
Decision date: 05 November 2014
Jurisdiction: Criminal
Before: Curtis J
Decision:
I find the defendant guilty as charged
The defendant is convicted

Catchwords: OCCUPATIONAL HEALTH AND SAFETY - coal mine workplace accident - worker crushed between the toe of an automatically advancing roof support and the sides of the continuous armoured face conveyer - high risk of being crushed by powered roof support as they automatically advance towards the coalface - slipping and falling in the walkway - being struck by fly rock when dislodged from the Shearer - whether preventative measures taken by the mine were sufficient - whether prosecution has proved beyond reasonable doubt that the preventative measures pleaded would have eliminated the risk - whether activating tilt switches in remote control units for Shearers necessary - previous incident known to the defendant - forseeable risk of injury
Legislation Cited: Occupational Health and Safety Act 2000 Work Health and Safety Act 2011
Cases Cited: Simpson Design Associates Proprietary Limited v Industrial Court of New South Wales [2011] NSWCA 316
The GEO Group Australia Pty Ltd t/as Junee Correctional Centre v WorkCover Authority (NSW) [2012] 150 Theiss v Industrial Court of New South Wales [2010] NSWCA 252
WorkCover v Maine Lighting Ltd (1995) 100 IR 248
Inspector Templeton v Pavese Citrius Pty Ltd [2004] NSWIR Comm 322
O'Meila v Freight Conveyors Ltd [1940] 4 All E.R. 516
Category: Principal judgment
Parties: NSW Dept of Trade and Investment, Regional Infrastructure and Services (Inspector Nash) (Prosecutor) Bulga Underground Operations Pty Ltd (Defendant)
Representation: J V Agius, SC with R Reitano appeared for the Prosecutor D A Buchanan, SC with M L Shume appeared for the Defendant
I V Knight Crown Solicitor of NSW (Prosecutor) Sparke Helmore Lawyers (Defendant)

File Number(s): 2012/126435

Judgment

Introduction

The defendant, Bulga Underground Operations Pty Ltd (Bulga), is charged with failing to ensure the health, safety and welfare of its employee Steven McNab in contravention of section 8(1) of the Occupational Health and Safety Act 2000.

At approximately 9:30 PM on the evening of 23 April 2010 Mr McNab, a long wall miner at Bulga's Beltana Coal Mine in the Hunter Valley, suffered severe injuries when, after falling to the ground, his body was crushed between the toe of an automatically advancing roof support and the side of the continuous armoured face conveyor.

Mr McNab was dazed or unconscious immediately before the injury and has no recollection as to how he came to be lying in the path of the advancing support.

He was found semiconscious and pinned between the two pieces of machinery with his helmet fallen off, and a fresh graze on his left temple in a position that would have been protected by the helmet if it had remained in place on his head.

A piece of roof stone approximately 70cm x 30cm x 10cm was lying across his…

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: [2014] NSWDC 186
Decision Date: 05 November 2014

CaseChat Overview and Summary

The case of Inspector Nash v Bulga Underground Operations Pty Ltd involved a dispute regarding occupational health and safety at a coal mine. The dispute arose from a workplace accident where a worker was crushed between the toe of an automatically advancing roof support and the sides of a continuous armoured face conveyor. The incident highlighted significant risks associated with the operation of powered roof supports and the potential for injury due to slips, falls, and being struck by dislodged materials. The matter was brought before the court to determine whether the preventative measures taken by the mine were adequate and whether these measures would have eliminated the risk of injury as alleged by the prosecution.

The primary legal issue before the court was whether Bulga Underground Operations Pty Ltd had taken sufficient preventative measures to protect workers from the known risks associated with the operation of the powered roof supports and the conveyor system. Specifically, the court had to decide whether the defendant had implemented necessary measures, such as activating tilt switches in the remote control units for the Shearers, to mitigate the risk of injury. Furthermore, the court needed to assess whether the prosecution had proven beyond reasonable doubt that the preventative measures pleaded would have eliminated the risk. The court also considered whether the defendant was aware of the foreseeable risk of injury from a previous incident, and whether this knowledge influenced their preventative measures.

In reaching its decision, the court thoroughly examined the evidence provided by both parties. The court found that the preventative measures taken by Bulga Underground Operations Pty Ltd were not sufficient to eliminate the risk of injury. The evidence demonstrated that the company was aware of the risks but failed to implement necessary controls, such as the activation of tilt switches in the remote control units for the Shearers. The court concluded that these omissions meant that the risk of injury remained, and the measures taken were insufficient to protect workers from harm. Consequently, the court found the defendant guilty as charged, convicting them for failing to take adequate preventative measures to protect workers from foreseeable risks in the workplace.

Orders

Orders of the court

I find the defendant guilty as charged

The defendant is convicted

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Inspector Nash v Bulga Underground Operations Pty Ltd [2014] NSWDC 186
Hearing dates:	26-30/05/2014; 2,4,5,6,10,11,12,23,24/06/2014; 05/09/2014; 27/10/2014
Decision date:	05 November 2014
Jurisdiction:	Criminal
Before:	Curtis J
Decision:	I find the defendant guilty as charged The defendant is convicted
Catchwords:	OCCUPATIONAL HEALTH AND SAFETY - coal mine workplace accident - worker crushed between the toe of an automatically advancing roof support and the sides of the continuous armoured face conveyer - high risk of being crushed by powered roof support as they automatically advance towards the coalface - slipping and falling in the walkway - being struck by fly rock when dislodged from the Shearer - whether preventative measures taken by the mine were sufficient - whether prosecution has proved beyond reasonable doubt that the preventative measures pleaded would have eliminated the risk - whether activating tilt switches in remote control units for Shearers necessary - previous incident known to the defendant - forseeable risk of injury
Legislation Cited:	Occupational Health and Safety Act 2000 Work Health and Safety Act 2011
Cases Cited:	Simpson Design Associates Proprietary Limited v Industrial Court of New South Wales [2011] NSWCA 316 The GEO Group Australia Pty Ltd t/as Junee Correctional Centre v WorkCover Authority (NSW) [2012] 150 Theiss v Industrial Court of New South Wales [2010] NSWCA 252 WorkCover v Maine Lighting Ltd (1995) 100 IR 248 Inspector Templeton v Pavese Citrius Pty Ltd [2004] NSWIR Comm 322 O'Meila v Freight Conveyors Ltd [1940] 4 All E.R. 516
Category:	Principal judgment
Parties:	NSW Dept of Trade and Investment, Regional Infrastructure and Services (Inspector Nash) (Prosecutor) Bulga Underground Operations Pty Ltd (Defendant)
Representation:	J V Agius, SC with R Reitano appeared for the Prosecutor D A Buchanan, SC with M L Shume appeared for the Defendant I V Knight Crown Solicitor of NSW (Prosecutor) Sparke Helmore Lawyers (Defendant)
File Number(s):	2012/126435