District Court
New South Wales
- Amendment notes
Medium Neutral Citation: Inspector Nash v Bulga Underground Operations Pty Ltd (re Newstead) [2015] NSWDC 6 Hearing dates: 11-14/02/2014, 17-21/02/2014, 24-28/02/2014, 03-06/03/2014, 05-09/05/2014, 09-12/09/2014, 15-19/09/2014, 22/09/2014, 04/11/2014, 19/11/2014 Decision date: 05 February 2015 Jurisdiction: Criminal Before: Kearns, DCJ Decision: I find the defendant is guilty of the offence charged and the defendant is accordingly convicted.
Catchwords: OCCUPATIONAL HEALTH AND SAFETY – coal mine workplace accident – longwall mining - worker struck by falling slab of coal when changing picks on maingate cutter drum then within the longwall – foreseeability of slab of coal falling and worker or part of worker’s body being exposed to falling slab – whether worker deliberately and consciously placed himself under unsupported roof knowing he should not do so – whether alternatively he was present under unsupported roof and his presence was aberrant behaviour that could not be predicted by the defendant – location of worker at the time the slab fell – high degree of risk of slab of coal falling - inspection of work site by mine deputy before work undertaken, but findings not communicated – whether any of the following were undertaken or ought to have been undertaken: secondary roof support; picks changed at maingate end; developing a TARP; inspection of roof strata support by a competent person; conducting a risk assessment; compliance with safe work practices and with strata failure management plan; ensuring employees conducted a pre-task risk assessment; ensuring the worker was provided with adequate information and training in and providing copies of safe work procedures to the worker; instructing worker not to access work area until secondary support was installed; provision of supervision – whether alternate steps would have eliminated or merely lessened the risk of injury – whether s 8 required proof that alternative step would have eliminated the risk of injury Legislation Cited: Occupational Health and Safety Act 2000; Evidence Act 1995; Coal Mine Health and Safety Act 2002 Cases Cited: Thiess Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 252; Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; Inspector Nash v Bulga Underground Operations Pty Ltd [2014] NSWDC 186; Simpson Design Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316; Dunlop Rubber Australia Limited v Buckley (1952) 87 CLR 313; Cahill v State of New South Wales (Department of Education and Training and Department of Juvenile Justice) (No.2) [2008] NSWIRComm 246 [772]; WorkCover (Inspector Battye) v Patrick Container Ports Pty Ltd [2014] NSWDC 171 Category: Principal judgment Parties: Jennifer Ann Nash, Director, Mine Safety Performance, NSW Department of Trade and Investment, Regional Infrastructure and Services (Prosecutor)
Bulga Underground Operations Pty Limited (Defendant)Representation: Counsel:
Mr W Roser SC with Mr C Magee, instructed by I.V. Knight, Crown Solicitor for NSW, appeared for the Prosecutor;
Mr D Buchanan SC with Mr M Shume, instructed by Sparke Helmore, appeared for the Defendant
File Number(s): 2012/244559
Judgment
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Details
- Case
- [2015] NSWDC 6
- Decision Date
CaseChat Overview and Summary
Inspector Nash brought proceedings against Bulga Underground Operations Pty Ltd in the context of a coal mine workplace accident that resulted in the injury of a worker. The incident occurred during longwall mining operations when the worker was struck by a falling slab of coal while changing picks on the maingate cutter drum within the longwall. The central dispute before the court was whether the defendant mining company could be held liable under occupational health and safety laws for the incident. The issues included the foreseeability of such an accident, the adequacy of the safety measures in place, and the worker's conduct in being under an unsupported roof.
The court had to determine if the worker deliberately and consciously placed himself under an unsupported roof, which he should not have done. Alternatively, the court examined whether the worker's presence under the unsupported roof constituted aberrant behaviour that could not have been predicted by the defendant. The location of the worker at the time of the incident and the high degree of risk associated with the presence of an unsupported roof were also critical factors. Additionally, the court considered whether the defendant had fulfilled its obligations under the Occupational Health and Safety Act, including conducting inspections, providing secondary roof support, ensuring compliance with a strata failure management plan, and offering adequate information and training to the worker.
The court found that the defendant mining company was guilty of the offence charged. The court's reasoning focused on the foreseeability of the accident, the failure to implement adequate safety measures, and the absence of communication of inspection findings. The court held that the defendant did not take sufficient steps to eliminate or even lessen the risk of the slab falling, which was a breach of their duty under occupational health and safety laws. The court concluded that the defendant's failure to provide adequate support and supervision, and to ensure compliance with safety protocols, directly contributed to the worker's injury. The conviction followed from these findings.
In its final orders, the court convicted the defendant, Bulga Underground Operations Pty Ltd, of the offence charged. The court did not impose any additional penalties but found the defendant guilty as charged based on the evidence and arguments presented. This outcome underscores the importance of stringent adherence to occupational health and safety regulations in high-risk industries such as coal mining.
The court had to determine if the worker deliberately and consciously placed himself under an unsupported roof, which he should not have done. Alternatively, the court examined whether the worker's presence under the unsupported roof constituted aberrant behaviour that could not have been predicted by the defendant. The location of the worker at the time of the incident and the high degree of risk associated with the presence of an unsupported roof were also critical factors. Additionally, the court considered whether the defendant had fulfilled its obligations under the Occupational Health and Safety Act, including conducting inspections, providing secondary roof support, ensuring compliance with a strata failure management plan, and offering adequate information and training to the worker.
The court found that the defendant mining company was guilty of the offence charged. The court's reasoning focused on the foreseeability of the accident, the failure to implement adequate safety measures, and the absence of communication of inspection findings. The court held that the defendant did not take sufficient steps to eliminate or even lessen the risk of the slab falling, which was a breach of their duty under occupational health and safety laws. The court concluded that the defendant's failure to provide adequate support and supervision, and to ensure compliance with safety protocols, directly contributed to the worker's injury. The conviction followed from these findings.
In its final orders, the court convicted the defendant, Bulga Underground Operations Pty Ltd, of the offence charged. The court did not impose any additional penalties but found the defendant guilty as charged based on the evidence and arguments presented. This outcome underscores the importance of stringent adherence to occupational health and safety regulations in high-risk industries such as coal mining.
Orders
Orders of the court
I find the defendant is guilty of the offence charged and the defendant is accordingly convicted.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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