Orr v Hunter Quarries Pty Ltd

Case [2019] NSWDC 634

District Court


New South Wales

Medium Neutral Citation: Orr v Hunter Quarries Pty Limited [2019] NSWDC 634
Hearing dates: 16-19, 24, 27 April 2018; 1-4, 7-11, 14-18, 21-23 May 2018; 8 June 2018; 26 July 2018; 27 August 2018; 7, 11 September 2018; 9, 19, 26 October 2018; 12, 19, 23 November 2018; 1, 6 February 2019; 4 March 2019; 2-5 April 2019; 23, 29 May 2019; 11-12 June 2019
Date of orders: 08 November 2019
Decision date: 08 November 2019
Jurisdiction:Criminal
Before: Russell SC DCJ
Decision:

(1)   The prosecution has not proved all of the elements of the offence beyond reasonable doubt.
(2) Final orders will not be entered until the prosecution has had an opportunity to consider an application pursuant to s 5AE of the Criminal Appeal Act 1912 (NSW).
(3) The matter will be listed on a date for entry of final orders or argument on the proposed questions of law to be stated to the Court of Criminal Appeal.

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of person undertaking business – risk of death or serious injury

PROCEDURAL – elements of offence – whether defendant owed a health and safety duty – whether there was a failure to comply with that duty – whether that failure exposed workers to the risk of death or serious injury

PROCEDURAL – reasonable practicability – likelihood of the risk – knowledge of the risk – what the defendant ought reasonably to have known

 

PROCEDURAL – foreseeability – whether there was a causal relationship between the act or omission and the risk - measures to guard against a risk to safety that are reasonably practicable – guard against inadvertence to fullest extent practicable – not always possible to foresee inadvertence by a disobedient worker

 

OTHER – unforeseen behaviour of worker – no one could have foreseen operation of the excavator in that location, in that fashion – worker had been instructed to perform other tasks, not to operate excavator on rocky slope – no breach in failing to risk assess potential for excavator to overturn on rocky slope – risk unknown and therefore unforeseen

  OTHER – ROPS – Roll Over Protective Structure – excavators not on list of vehicles on which ROPS were required to be fitted – equipment not covered by ROPS standards must be the subject of a Risk Assessment – no ROPS required if excavator used on a flat area – risk of earthmoving machines overturning increases as variables increase – risk of excavators rolling over in mines and quarries
Legislation Cited: Criminal Appeal Act 1912 (NSW)
Mine Health and Safety Act 2004 (NSW)
Occupational Health & Safety Act 1983 (NSW)
Occupational Health and Safety Regulation 2001 (NSW)
Work Health and Safety Act 2011 (NSW)
Work Health and Safety Regulation 2011 (NSW)
Cases Cited: Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92
Bulga Underground Operations v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338

Continue reading Orr v Hunter Quarries Pty Ltd

Sign in free to access the full text

Details
AGLC
Orr v Hunter Quarries Pty Limited [2019] NSWDC 634
Case
[2019] NSWDC 634
Decision Date

CaseChat Overview and Summary

Orr v Hunter Quarries Pty Ltd involved a prosecution under work health and safety laws. The defendant, Hunter Quarries Pty Ltd, was charged with an offence related to the risk of death or serious injury to workers. The case was heard in the criminal court. The key issue before the court was whether the defendant owed a duty to ensure the health and safety of its workers, and whether there was a failure to comply with that duty that exposed workers to the risk of death or serious injury.

The court considered whether the defendant had breached its duty by failing to implement measures to guard against risks to safety that were reasonably practicable. The court examined the foreseeability of the risk and whether the defendant could have reasonably been expected to foresee the risk posed by the operation of an excavator in a particular manner. The court concluded that the operation of the excavator in the manner that caused the incident was unforeseen and could not have been reasonably anticipated by the defendant. The worker had been instructed to perform other tasks and was not authorised to operate the excavator on a rocky slope. The court found that there was no breach in failing to risk assess the potential for the excavator to overturn on a rocky slope, as the risk was unknown and therefore unforeseen.

The court held that the prosecution had not proved all of the elements of the offence beyond reasonable doubt. The court found that the defendant had not breached its duty to ensure the health and safety of its workers. The court ordered that final orders would not be entered until the prosecution had had an opportunity to consider an application pursuant to section 5AE of the Criminal Appeal Act 1912 (NSW). The matter was listed for entry of final orders or argument on the proposed questions of law to be stated to the Court of Criminal Appeal.

Orders

Orders of the court

(1) The prosecution has not proved all of the elements of the offence beyond reasonable doubt.

(2) Final orders will not be entered until the prosecution has had an opportunity to consider an application pursuant to s 5AE of the Criminal Appeal Act 1912 (NSW).

(3) The matter will be listed on a date for entry of final orders or argument on the proposed questions of law to be stated to the Court of Criminal Appeal.

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.