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340
Court of Criminal Appeal 11 March 2016

Bulga Underground Operations Pty Ltd v Nash

[2016] NSWCCA 37

Also reported as (2016) 93 NSWLR 338
Other
CRIMINAL LAW APPEAL WHETHER COURT SHOULD RESENTENCE COSTS WHETHER ERROR IN APPORTIONING COSTS

Citation: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
Court: NSW Court of Criminal Appeal
Date: 11 March 2016
Judge(s): Bathurst CJ; Hidden J; Davies J

Background

The appellant was a company that operated an underground longwall coal mine. On 23 April 2010, an employee was found crushed beneath an automatically advancing powered roof support while working as a shearer operator. The trial judge in the District Court convicted the appellant under s 8(1) of the Occupational Health and Safety Act 2000 (NSW) for failing to ensure the health, safety and welfare of the employee.

The conviction rested on one particularised omission: the failure to employ a Support Advance Controller (SAC), a dedicated person who would monitor the advancing roof supports and observe the operator so that, if the operator became incapacitated, the SAC could activate the emergency stop. The trial judge imposed a fine of $50,000 and ordered the appellant to pay 20% of the prosecutor's costs.

The appellant appealed against its conviction. The Attorney General and the prosecutor cross-appealed against both the penalty and the costs order. They also challenged the trial judge's rejection of a separate ground, relating to the failure to install tilt switches that would detect if an operator had fallen.

  • Whether a failure to take steps that would only minimise or manage risk, rather than eliminate it entirely, can constitute a breach of the employer's duty under s 8(1) of the OHS Act 2000
  • Whether the employer's duty can be breached by failing to prevent an existing risk from crystallising into injury, where the employee was already exposed to that risk before any intervention could occur
  • Whether a sufficient causal nexus existed between the failure to employ an SAC and the employee's exposure to the risk of being crushed
  • Whether, on a prosecution appeal under s 5AA of the Criminal Appeal Act 1912 (NSW), an appellate court can dismiss a conviction appeal on a ground different from the one accepted by the trial judge, particularly one the trial judge expressly rejected
  • Whether the appellate court has power to order a retrial under s 5AA of the Criminal Appeal Act 1912
  • Whether the trial judge made sentencing errors, including failing to assess objective seriousness, measuring the fine by reference to the extent of the injury rather than the gravity of the offence, omitting deterrence components, and wrongly crediting remorse
  • Whether the costs apportionment of 20% was erroneous

Decision

Conviction appeal dismissed

The Court of Criminal Appeal held unanimously that a breach of s 8(1) does not require the omitted measure to have been capable of entirely eliminating the risk. A failure to take steps that are necessary but insufficient on their own to ensure safety, or that would limit rather than wholly remove risk, can still constitute a breach. The Court also confirmed that the duty extends to preventing a risk, to which an employee is already exposed, from materialising into harm.

On causation, the Court held that the relevant question is whether the particularised omission was a substantial and significant cause of the employee's exposure to the risk. The inquiry is not whether the omission caused the actual injury; it is whether there was a causal relationship between the omission and the risk itself. Applying common sense to the facts, and bearing in mind the objects of the OHS Act, the Court found that the failure to employ an SAC met that standard.

Appellate court powers under s 5AA (obiter)

The Court expressed doubt, without needing to decide the point, that an appellate court could dismiss a conviction appeal under s 5AA by substituting a different basis for guilt that the trial judge had expressly rejected, particularly where doing so would require contrary findings of fact. The Court also expressed the obiter view that no power to order a retrial can be implied into s 5AA of the Criminal Appeal Act 1912.

Penalty and costs appeals allowed

The Court found that the trial judge had erred in sentencing. While the trial judge had regard to the known risk, he failed to consider the implications of his own contrary findings on liability when assessing objective seriousness, and he did not adequately factor in deterrence. These were relevant sentencing considerations that were not properly addressed. The Court resentenced the appellant, doubling the fine to $100,000. On costs, the Court found the 20% apportionment was too low, given that the prosecution succeeded on the principal question of the breach, and increased the appellant's liability to 50% of the respondent's costs below.

Orders Made

  • Conviction appeal dismissed
  • Penalty appeal allowed; penalty of $100,000 imposed in lieu of the original fine
  • Leave granted to the respondent to appeal against the costs order; costs appeal allowed
  • Appellant to pay 50% of the respondent's costs in the court below
  • Appellant to pay the respondent's costs of the appeal

(Note: Order 7, as originally made, was subsequently deleted by the Court on 28 July 2016.)

Key Takeaways

  • Under s 8(1) of the Occupational Health and Safety Act 2000 (NSW), an employer's duty to ensure health, safety and welfare is not limited to measures that would entirely eliminate a risk. A failure to take steps that would meaningfully reduce or manage risk can constitute a breach even if the risk would not have been wholly removed.

  • A breach can also be established where the employer failed to take action that would have prevented an existing risk from crystallising into injury, even if the employee was already exposed to that risk at the time of the omission.

  • Causation in OHS prosecutions requires proof that the particularised omission was a substantial and significant cause of the employee's exposure to the risk, assessed by applying common sense to the facts and with reference to the objects of the legislation. Proof of a causal link to the actual injury is not required.

  • In dismissing the conviction appeal, the Court of Criminal Appeal indicated that it would be doubtful practice under s 5AA of the Criminal Appeal Act 1912 for an appellate court to reject a conviction appeal on a different factual basis from that found by the trial judge, especially where the alternative basis had been expressly rejected at trial. The Court also doubted that s 5AA carries an implied power to order a retrial.

  • Sentencing courts in OHS matters must address objective seriousness, deterrence, and all relevant factors consistently with findings made on liability. Failing to take into account contrary liability findings, or measuring the fine principally by reference to the extent of the employee's injury rather than the seriousness of the offence, constitutes a sentencing error warranting intervention on appeal.

Legislation and Cases Referenced

Legislation
- Occupational Health and Safety Act 2000 (NSW), s 8(1)
- Occupational Health and Safety Act 1983 (NSW)
- Occupational Health and Safety Regulation 2001 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5AA
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Supreme Court Act 1970 (NSW)

Key Cases
- Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531
- Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; 246 CLR 92
- Allianz Australia Ltd v GSF Australia Pty Ltd [2005] HCA 26; 221 CLR 568
- Alcan (NT) Alumina Pty Ltd v The Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; 239 CLR 27
- Certain Lloyd's Underwriters v Cross [2012] HCA 56; 248 CLR 378
- Conway v The Queen [2002] HCA 2; 209 CLR 509
- AK v State of Western Australia [2008] HCA 8; 232 CLR 438
- Gilmour v Environment Protection Authority [2002] NSWCCA 399; 55 NSWLR 293
- Simpson Design and Associates Pty Ltd v Industrial Court of NSW [2011] NSWCA 316
- ABC Development Learning Centres Pty Ltd v Wallace [2007] VSCA 138; 16 VR 409
- Haynes v C I & D Manufacturing Pty Ltd (1994) 60 IR 149
- Capral Aluminium Ltd v WorkCover Authority of NSW [2000] NSWIRComm 71; 49 NSWLR 610
- House v The King [1936] HCA 40; 55 CLR 499