Citation: Nash v Bulga Underground Operations Pty Ltd (re Newstead) [2015] NSWDC 76
Court: District Court of New South Wales
Date: 26 May 2015
Judge(s): Kearns DCJ
Background
A mining company operating a longwall mine was found guilty of a breach of section 8(1) of the Occupational Health and Safety Act 2000 following a roof fall incident. The breach arose from the hazards associated with changing picks on a cutter drum when that drum was positioned along the longwall face rather than in the gate road. In that position, part of the operator's body was exposed under unsupported roof, where a tip-to-face span of 1.5 metres existed.
The incident injured a mine worker (referred to throughout as Mr Newstead). The sentencing proceedings addressed penalty, the character of the defendant's safety systems, and who should bear the costs of the prosecution.
Legal Issues
- Whether the offence should be categorised as objectively serious, having regard to foreseeability of the risk and its consequences, and the availability of preventive measures
- Whether the breach arose from a systemic failure or from the conduct of individual employees in the presence of adequate systems
- What weight to give mitigating factors, including the defendant's safety record, contrition, and remedial action taken after the incident
- Whether costs should be apportioned between the parties, or whether the defendant should pay the whole of the prosecution's costs
Decision
Objective seriousness and foreseeability
The risk of roof fall in longwall mining was plainly foreseeable. Unsupported roof will fall, and the 1.5-metre tip-to-face span in this case left part of the operator's body exposed during pick changing (at [6]-[7]). The court rejected the defendant's argument that the risk was unforeseeable because competent officers, knowing of the risk, would not fail to act on that knowledge. Humans do not always act according to established systems and protocols, and even qualified employees can act inadvertently or by oversight (at [9]). The consequences of roof fall, including the potential for fatal injuries, were equally foreseeable, and means to avoid the risk were readily available (at [11]-[12]). On this basis, the offence was categorised as serious (at [13]).
Nature of the systems failure
The defendant had a well-developed and robust health and safety management system covering longwall mining operations, including pick changing, and that system was audited (at [16]). The gap was specific: the systems did not expressly address the added hazards arising when picks were changed with one drum out along the face while Huesker mesh was deployed (at [16]). The court found that the truth lay between a pure systems failure and a pure behavioural failure, but that it lay considerably in the defendant's favour. To the extent the breach constituted a systems failure, it was at the low end of any scale of such failure (at [18]).
Mitigating factors and penalty
The defendant acted immediately after the incident to strengthen its safety systems, which operated in its favour (at [22]). Its prior record was minimal, with only one prior and unrelated conviction, which counted in its credit (at [23]). The contrition expressed was tempered, however, by the fact that the defendant did not admit guilt in relation to the offence itself, did not renew Mr Newstead's contract, and by the expressed views of two of the relevant officers that they had done nothing wrong (at [25]). The court declined to give weight to specific deterrence, but treated general deterrence as significant given the high-risk nature of the industry (at [19]-[20]). Taking all matters into account, and noting the maximum penalty of $825,000, the court imposed a fine of $75,000 (at [27]).
Costs
The Prosecutor succeeded on the single charge and on each of the particulars in the summons. The court adopted the guiding principle from Morrison v Defence Maritime Services Pty Limited that costs may be apportioned where the prosecutor has failed on a dominant, separable and substantial issue (at [31]). No such issue was identified here. In several instances where the Prosecutor pressed arguments that ultimately failed, it was the defendant's own conduct in supplying documents as relevant to pick changing that had led the Prosecutor to pursue those issues (at [32]). The court ordered the defendant to pay the whole of the Prosecutor's costs.
Orders Made
- The defendant is fined $75,000, with a moiety payable to the Prosecutor.
- The defendant is to pay the Prosecutor's costs, agreed or assessed.
Key Takeaways
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The District Court confirmed that the foreseeability of risk in a high-hazard environment is not defeated by arguing that competent, qualified employees would not have failed to follow established protocols. Human inadvertence and oversight are recognised realities that an employer's safety system must account for (at [9]).
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A well-developed and audited safety management system is a significant mitigating factor on sentence, even where the breach arose from a gap in that system. Where the systemic failure was narrow and specific, the court placed the offence at the low end of a systems-failure scale (at [16], at [18]).
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Expressions of contrition carry reduced weight when they do not extend to the offence itself, and when the conduct of officers and management after the incident is inconsistent with genuine remorse (at [25]).
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Under the principle drawn from Morrison v Defence Maritime Services Pty Limited, costs will be apportioned only where a prosecutor has failed on a dominant, separable and substantial issue. Success on the overall charge and on each summons particular was sufficient to support a full costs order here, even where some sub-particulars were not made out (at [31]-[32]).
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A fine of $75,000 was imposed against a maximum of $825,000 for a serious breach of the Occupational Health and Safety Act 2000 in a longwall mining context, reflecting the defendant's otherwise sound safety culture, minimal prior record, and prompt remedial action.
Legislation and Cases Referenced
Legislation
- Occupational Health and Safety Act 2000
Cases
- Inspector Nash v Bulga Underground Operations Pty Ltd [2014] NSWDC 186; Morrison v Defence Maritime Services Pty Limited (2007) 156 LGERA 365