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District Court 5 February 2015

Inspector Nash v Bulga Underground Operations Pty Ltd (re Newstead)

[2015] NSWDC 6

Other
OCCUPATIONAL HEALTH AND SAFETY COAL MINE WORKPLACE ACCIDENT LONGWALL MINING PICKS CHANGED AT MAINGATE END DEVELOPING A TARP CONDUCTING A RISK ASSESSMENT

Citation: Inspector Nash v Bulga Underground Operations Pty Ltd (re Newstead) [2015] NSWDC 6
Court: District Court of New South Wales
Date: 5 February 2015
Judge(s): Kearns DCJ

Background

On 14 August 2010, a worker employed at the defendant's Beltana Longwall underground coal mine was seriously injured when a slab of coal fell from an unsupported roof and struck him while he was changing picks on a maingate cutter drum. The drum was positioned within the longwall at a point where the roof was not supported by the chocks, with approximately 1.5 metres of exposed roof between the tips of the supports and the coal face. The mine was in its bolt-up phase, meaning that Huesker mesh was in place and the supports could not be advanced closer to the face.

The inspector charged the defendant employer with failing to ensure the health, safety and welfare at work of the injured worker, contrary to s 8(1) of the Occupational Health and Safety Act 2000. The prosecutor alleged multiple specific failures, including the absence of secondary roof support, failure to conduct a proper risk assessment, inadequate inspection, and failure to instruct the worker not to proceed until the roof was bolted.

The defendant denied the breach and relied on the statutory defence under s 28 of the Act, which excuses non-compliance where it was not reasonably practicable to comply. The defendant also argued that any risk arose from the worker's own deliberate and conscious decision to enter under unsupported roof in breach of the mine's "golden rule."

Legal Issues

  • Whether the defendant breached s 8(1) of the Occupational Health and Safety Act 2000 by failing to ensure the health, safety and welfare of the worker
  • Whether the risk of roof failure and injury was foreseeable to the defendant
  • Whether the worker deliberately placed himself under unsupported roof in breach of the mine's golden rule, or was in an aberrant position the defendant could not have predicted
  • Whether the prosecution must prove that any omitted measure would have prevented, rather than merely minimised, the risk of injury under s 8
  • Whether each of the specific particularised failures constituted a breach, including: failure to install secondary roof support; failure to change picks on the previous shift; failure to conduct a proper risk assessment; failure to comply with safe work procedures; failure to adequately inspect the worksite; and failure to instruct the worker to roof bolt before proceeding
  • Whether the defendant's s 28 defence of "not reasonably practicable" was established in respect of any particular

Decision

Preliminary: Standard of liability and proof of alternative measures

The court confirmed that the duty under s 8(1) is absolute: the employer must "ensure" the health, safety and welfare of employees, and a breach occurs wherever a possibility of detriment to safety exists (at [8]). The defendant argued that the prosecution was required to prove that any omitted measure would have prevented the injury, not merely lessened the risk. The court declined to resolve this point definitively, but indicated that a measure which lessens or minimises an identifiable risk is sufficient to engage liability if not taken (at [14]). The court followed the approach taken by Judge Curtis in an earlier related decision as a matter of comity (at [14]).

Worker's location and deliberate conduct

The court rejected the defendant's contention that the worker had walked at least one metre beyond the tips of the canopies to a position within half a metre of the face. The court accepted the worker's account that his head and torso were under the canopy tips with only his lower body under exposed roof (at [49]). Physical evidence, including the trajectory and breakage of the fallen slab against the cutter drum, was inconsistent with the defendant's hypothesis (at [50], [53]). The court also rejected the submission that the worker had deliberately and consciously breached the mine's golden rule against entering under unsupported roof. The worker was found to be a truthful and reliable witness, the factual basis for the defendant's argument was not established, and it was inconceivable that a conscientious and experienced miner would intentionally court a risk of serious injury or death (at [58]-[62]).

Foreseeability and the risk of roof failure

The 1.5-metre tip-to-face span constituted unsupported roof at a high risk of failure (at [35]). The defendant's own documents, including a document that specifically identified "Struck by roof or rib" as a hazard in the pick-changing process, demonstrated that the risk was known (at [75]). The defendant's argument that the absence of prior injuries indicated the risk was not foreseeable was rejected: prior incidents had occurred under fundamentally different conditions involving much smaller tip-to-face spans and arguably supported roof (at [48]). The risk of roof failure in the prevailing circumstances was readily foreseeable to the defendant (at [46]).

Particular failures established by the prosecution

Failure to install secondary roof support: The defendant did not install secondary roof support such as roof bolts before pick changing commenced. This was a simple step that any crew member could have undertaken. Had it been done, the risk would have been significantly minimised (at [91]-[93]).

Failure to change picks on the previous shift: The maingate cutter drum picks were sufficiently worn to require changing on the previous shift, when the shearer was at the maingate road under supported roof. The opportunity existed, and the defendant's own longwall coordinator acknowledged this. Failure to change the picks on that occasion was a significant contribution to the risk (at [42]-[43], [103]-[105]).

Failure to conduct a proper risk assessment: No formal risk assessment, job safety analysis, or "Take Five" mini-assessment was undertaken before pick changing commenced. The presence of Huesker mesh created an unusual and foreseeable hazard that specifically called for a risk assessment. A proper assessment would have identified the roof failure risk and led to the implementation of secondary support. Conducting a risk assessment in these circumstances was a simple and quick task (at [129]-[138]).

Failure to comply with safe work procedures (inspection): The mine's own safe work procedure required a mining official to inspect before pick changing. The longwall supervisor Mr Power conducted an inspection and identified the excessive tip-to-face span, but then kept that information entirely to himself and took no remedial action. That inspection did not comply with the safe work procedure, which required the identified hazard of "Struck by roof or rib" to be recognised and appropriate controls implemented (at [142]-[144]).

Failure to instruct the worker to roof bolt: Mr Power inspected the worksite and identified the hazardous conditions, yet gave no instruction to the worker to install secondary roof support before proceeding. Having identified a high risk of roof failure, the defendant was required to convey that finding and direct the crew to roof bolt. The failure to do so was a major and significant cause of the risk (at [175]-[177]).

Particulars not established

The prosecution did not succeed on all particulars. The allegation of failure to develop a trigger action response plan (TARP) failed because the court accepted such a plan was not practicable in an ongoing and dynamic production environment (at [108]-[109]). The particular about failure to inspect by a competent person failed because an inspection was in fact conducted (at [112]-[115]). The particular about failure to ensure the worker conducted a pre-task risk assessment failed because no causal nexus between that failure and the risk was proved (at [170]). Several supervision-related sub-particulars also failed (at [204]-[207]). The strata failure management plan particular failed because the court found that document did not apply to the work being performed (at [165]).

Section 28 defence

The defendant's defence of "not reasonably practicable" was rejected in respect of each established particular. Secondary support was simple to install; the picks could have been changed on the previous shift when the shearer was at a gate end; conducting a risk assessment was quick and straightforward; and conveying the inspection findings to the crew was a simple act. None of the measures required imposed an impractical or disproportionate burden on the defendant (at [94], [105]-[106], [139], [145], [186]).

Orders Made

  • The defendant was found guilty of the offence charged and convicted.

Key Takeaways

  • The District Court confirmed that the duty under s 8(1) of the Occupational Health and Safety Act 2000 is absolute, requiring an employer to ensure employee health, safety and welfare, and that a breach occurs where any possibility of detriment to safety exists, regardless of whether personal injury results (at [8], [16]).

  • A roof span of 1.5 metres between the tips of longwall supports and the coal face constituted unsupported roof at a high risk of failure; the court treated this assessment as plainly established and not dependent on the presence of additional adverse features such as undercutting (at [35], [41]).

  • Where a supervisor inspects a worksite, identifies a hazardous condition, and then fails entirely to communicate that finding or implement remedial measures, the employer's duty to ensure safety is not discharged simply because the inspection took place; the operative failure is keeping safety-critical information from those who need it (at [77], [198]-[202]).

  • An omitted safety measure need not be shown to have entirely prevented the risk of injury in order to establish a breach of s 8(1); a measure that would have significantly minimised the risk is sufficient (at [14]-[15]).

  • Under s 28, the "not reasonably practicable" defence will not succeed where the steps the prosecution alleges should have been taken were simple, quick, and readily available to the employer at the time of the breach (at [94], [105]-[106], [139], [145], [186]).

Legislation and Cases Referenced

Legislation
- Occupational Health and Safety Act 2000; Evidence Act 1995; Coal Mine Health and Safety Act 2002

Cases
- 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