Citation: Inspector Nash v Bulga Underground Operations Pty Ltd [2014] NSWDC 186
Court: District Court of New South Wales
Date: 5 November 2014
Judge: Curtis J
Background
Bulga Underground Operations Pty Ltd operated the Beltana Coal Mine in the Hunter Valley, where coal was extracted using a retreating longwall mining system. This system involved a large cutting machine (a Shearer) that swept along the coal face, followed by a line of 173 hydraulically operated roof supports that automatically advanced to fill the void left behind. Workers walked along a narrow walkway formed by the base plates of those roof supports.
On 23 April 2010, longwall miner Steven McNab suffered severe injuries when his body was crushed between the toe of an automatically advancing roof support and the side of the armoured face conveyor (the metal channel that carries cut coal away). He was found semi-conscious and pinned between the two pieces of machinery. A piece of roof stone was lying across his thigh, and he had a fresh graze on his temple consistent with his helmet having been dislodged before the crushing event. He had no recollection of how he came to be lying in the path of the advancing support.
The mine operator was charged under section 8(1) of the Occupational Health and Safety Act 2000 with failing to ensure the health, safety and welfare of its employee. The prosecution alleged the defendant had failed to implement several reasonably practicable measures to eliminate or reduce foreseeable risks associated with the system of work.
Legal Issues
- Whether the risk of a worker being crushed by an automatically advancing roof support was reasonably foreseeable to the defendant
- Whether the preventative measures pleaded by the prosecution would have eliminated or sufficiently reduced that risk
- Whether the defendant had taken all reasonably practicable steps to protect workers from the identified risks, including the risk of being struck by fly rock from the Shearer's cutting drums, slipping or falling in the walkway, and being crushed by advancing supports
- Whether activating tilt switches on remote controls held by drum operators was a reasonably practicable measure
- Whether deploying an additional crew member solely to observe drum operators and stop roof support advancement if a worker became disabled was a reasonably practicable measure
Decision
Curtis J found that the circumstances in which Mr McNab was injured were foreseeable to a reasonable person standing in the position of the defendant. The court rejected the submission that a reasonably prudent mining employer could not have anticipated that a miner might become unconscious in the path of an advancing roof support. Evidence that a similar event had not previously occurred did not establish that it could not occur. The court also noted that at least one employee, Mr Brock, had received training to activate an emergency stop ("dump the face") whenever a worker was observed to have fallen or become unconscious, which was inconsistent with any claimed absence of foreseeability.
The court identified a critical failure in the defendant's approach to risk assessment. The defendant had assessed the dangers created by the Shearer's movement but had not separately assessed the dangers arising from the relatively autonomous operation of the roof support system. These were two distinct sources of risk requiring distinct analysis. After the Shearer stopped for any reason, the roof supports would continue to advance automatically until a preset headway was achieved, meaning an incapacitated worker in the walkway remained at risk even after the cutting machine had halted.
Of the several preventative measures advanced by the prosecution, the court accepted that the defendant had failed to take one particular measure that was reasonably practicable: deploying an additional miner in the crew whose sole task was to observe the drum operators and stop the advancement of roof supports if a drum operator became disabled. The court did not find it necessary to make findings on all of the measures pleaded, and the judgment as reproduced does not detail specific findings on each of the remaining proposed measures (such as tilt switch activation or requiring drum operators to remain behind the last advanced support).
Curtis J found the defendant guilty as charged and convicted the company. Sentencing was stood over for further submissions from the parties.
Orders Made
- The defendant was convicted.
- The matter was stood over for the parties to be heard on further orders (including sentence).
Key Takeaways
- The District Court confirmed that the absence of any prior identical incident does not establish that a risk was not foreseeable; foreseeability is assessed by reference to a reasonable employer in the defendant's position.
- A conviction was entered where the employer had conducted risk assessments focused on one component of a system (the Shearer) but failed to separately assess risks arising from an adjacent, semi-autonomous component (the roof support system) that continued operating independently after the cutting machine stopped.
- Where credible evidence showed that existing training addressed the exact scenario the defendant claimed was unforeseeable, that evidence was treated as inconsistent with the defendant's foreseeability defence.
- Under the Occupational Health and Safety Act 2000, it was sufficient for the prosecution to establish that at least one of the pleaded preventative measures was reasonably practicable and had not been implemented; the court found deploying a dedicated observer to monitor drum operators and stop roof support advancement satisfied that requirement.
- The decision illustrates that in complex, multi-component industrial systems, each substantially autonomous source of risk may warrant its own discrete risk assessment, separate from assessments conducted on interrelated machinery.
Legislation and Cases Referenced
Legislation:
- Occupational Health and Safety Act 2000 (NSW), s 8(1)
- Work Health and Safety Act 2011 (NSW)
Cases:
- 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 ER 516