District Court
New South Wales
Medium Neutral Citation: Stephen James Orr v Cobar Management Pty Ltd [2019] NSWDC 224 Hearing dates: 20-24 November 2017; 27 November 2017, 29 November 2017; 4 - 8 December 2017; 11 December 2017; 27 March 2018; 3 - 7, 10 - 14, 17 - 21, 24, 26 - 28 September 2018; 11 December 2018; 12 - 13 February 2019 Decision date: 27 May 2019 Jurisdiction: Criminal Before: Scotting DCJ Decision: 1 The prosecution has not proved all of the elements of the offence beyond reasonable doubt.
Catchwords: CRIME – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – death of worker
WORK HEALTH AND SAFETY – likelihood of risk occurring – whether defendant had knowledge of risk - whether risk reasonably foreseeable
OTHER – underground mine – worker drowned whilst unblocking drain holeLegislation Cited: Criminal Appeal Act 1912
Occupational Health and Safety Act 2000
Work Health and Safety Act 2011Cases Cited: Baiada Poultry Pty Ltd v R (2012) 246 CLR 92
Bulga Underground Operations v Nash [2016] NSWCCA 37
Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467
Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209
Director of Public Prosecutions v JCS Fabrications Pty Ltd and JMAL Group Pty Ltd [2019] VSCA 50
Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676
Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313
Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267
Inspector Ching v Bros Bins Systems Pty Ltd [2004] NSWIRComm 197
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531
Laing O’Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117
R v Board of Trustees of the Science Museum [1993] 1 WLR 1171
R v Commercial Industrial Construction Group Pty Ltd (2006) 14 VR 321
R v Nelson Group Services (Maintenance) Ltd [1998] 4 All ER 332
Royall v The Queen (1991) 172 CLR 378
Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316
Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304
Smith v Broken Hill Pty Ltd (1957) 97 CLR 337
Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015
Thiess Pty Ltd v Industrial Court of New South Wales (2010) 78 NSWLR 94
WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453
WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd (2004) 135 IR 166
WorkCover Authority of NSW v Atco Controls Pty Ltd (1998) 82 IR 80Category: Principal judgment Parties: Stephen James Orr (Investigator, Department of Industry, Skills and Regional Development)
Cobar Management Pty Ltd (Defendant)Representation: Counsel:
Solicitors:
D Jordan SC with C Magee (NSW Department of Industry, Skills and Regional Development)
A Moses SC with J Alderson (Defendant)
McCulloch Robertson (NSW…
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Details
- AGLC
- Stephen James Orr v Cobar Management Pty Ltd [2019] NSWDC 224
- Case
- [2019] NSWDC 224
- Decision Date
CaseChat Overview and Summary
In the case of Orr v Cobar Management Pty Ltd, the respondent, Cobar Management Pty Ltd, was prosecuted for contravening section 28 of the Work Health and Safety Act 2011 (NSW) following the death of a worker who drowned while unblocking a drain hole in an underground mine. The prosecution alleged that the respondent had failed in its duty to ensure the health and safety of its employees by not taking reasonable steps to prevent the worker from being exposed to a risk of death or serious injury. The matter was heard in the District Court of New South Wales.
The primary legal issues the court had to resolve were whether the respondent had a duty to ensure the health and safety of its employees, and whether the risk of death or serious injury was reasonably foreseeable. Additionally, the court needed to determine if the respondent had knowledge of the risk, and if the risk was reasonably foreseeable, whether the respondent took all reasonable steps to prevent the worker from being exposed to that risk. The court also had to assess if the prosecution had proved all elements of the offence beyond reasonable doubt.
In determining the matter, the court considered the evidence provided by both parties and found that the prosecution had not proved all of the elements of the offence beyond reasonable doubt. The court concluded that while the risk of death or serious injury was reasonably foreseeable, the respondent had taken reasonable steps to prevent the worker from being exposed to that risk. The court found that the respondent had a duty to ensure the health and safety of its employees, but that it had not breached this duty by failing to prevent the worker from being exposed to the risk. As a result, the prosecution's case was dismissed.
The final order of the court was that the prosecution had not proved all of the elements of the offence beyond reasonable doubt. The court dismissed the charges against the respondent, Cobar Management Pty Ltd.
The primary legal issues the court had to resolve were whether the respondent had a duty to ensure the health and safety of its employees, and whether the risk of death or serious injury was reasonably foreseeable. Additionally, the court needed to determine if the respondent had knowledge of the risk, and if the risk was reasonably foreseeable, whether the respondent took all reasonable steps to prevent the worker from being exposed to that risk. The court also had to assess if the prosecution had proved all elements of the offence beyond reasonable doubt.
In determining the matter, the court considered the evidence provided by both parties and found that the prosecution had not proved all of the elements of the offence beyond reasonable doubt. The court concluded that while the risk of death or serious injury was reasonably foreseeable, the respondent had taken reasonable steps to prevent the worker from being exposed to that risk. The court found that the respondent had a duty to ensure the health and safety of its employees, but that it had not breached this duty by failing to prevent the worker from being exposed to the risk. As a result, the prosecution's case was dismissed.
The final order of the court was that the prosecution had not proved all of the elements of the offence beyond reasonable doubt. The court dismissed the charges against the respondent, Cobar Management Pty Ltd.
Orders
Orders of the court
1 The prosecution has not proved all of the elements of the offence beyond reasonable doubt.
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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