Nash v Daracon Mining Pty Ltd

[2015] NSWIC 14

Industrial Court

New South Wales

Medium Neutral Citation:

Nash v Daracon Mining Pty Ltd [2015] NSWIC 14

Hearing dates:

8 September 2015

Date of orders:

19 October 2015

Decision date:

19 October 2015

Before:

Walton J, President

Decision:

In all the circumstances, and for the reasons given, the Court makes the following orders:

 

(1)   The defendant is convicted of the offence as charged;

 

(2)   The defendant is fined the sum of $80,000 with a moiety to the prosecutor;

 (3)   The defendant shall pay the costs of the prosecutor as agreed or, in default, as assessed for these proceedings.

Catchwords:

OCCUPATIONAL HEALTH AND SAFETY — prosecution under s 8(2) of the Occupational Health and Safety Act 2000 — plea of guilty – sentencing — fatal incident – several entities involved in operating a mine – defendant engaged in removal of reject material from mine site for disposal — reject material loaded into trucks by opening hydraulic gates to release it from base of storage Bin – loading cycle involved programmable electronic control program to facilitate correct positioning of truck when load released – worker killed when 10 tonnes of reject material was released onto cabin of truck — agreed statement of facts – proceedings delayed – coronial inquiry – doubt as to the authority of the prosecutor – victim impact statement received and acknowledged – relevant principles — objective features – objective seriousness of offence – defendant failed to protect contracted drivers against risk of being injured or killed by material falling onto them through the roof of the cabins of their trucks during a loading cycle — failure to ensure that contract drivers adopted a procedure by which it was not possible to activate the control program of the Bin so as to release reject material from the Bin when the cabin of a truck and dog combination was positioned beneath the Bin gates - defendant failed to ensure that the routine inspection and maintenance of the Bin included routine inspection and cleaning of the positioning sensors – measures could have been taken to obviate risk — defendant should have required a functional safety assessment of the possible effects of change to using truck and dog combinations with the Bin – defendant should have ensured work method adopted by contract drivers prevented cabin of trucks being located beneath the Bin when Bin gates were permitted to open – defendant should have ensured electronic sensors were inspected and cleaned as agreed – aggravating factors — fatality manifests the seriousness of the risk - risk foreseeable – simple remedial measures available - maximum penalty – general deterrence - continued risk as operating in dangerous industry - specific deterrence – mitigating factors – safety system was in place – risk not known or actually foreseen by defendant - risk partially outside the control or influence of the defendant – defendant was informed system was ‘failsafe’ – inappropriate to undertake process of apportionment or assess culpability of other entities – subjective features – steps…