Citation: Inspector Nash v Macmahon Mining Services Pty Limited (re Junk) [2016] NSWDC 171
Court: District Court of New South Wales
Date: 19 August 2016
Judge: Kearns DCJ
Background
In March 2013, a worker employed by a mining contractor died on a mine site near Cobar, New South Wales. He was riding inside a large steel bucket called a "kibble," which was being raised through a narrow platform aperture. As the kibble passed through the platform, the worker leaned his head outside the kibble's confines, apparently to communicate with another worker. His head was caught in the pinch point between the kibble and the platform, causing fatal injuries.
The defendant was a mining contractor engaged by the mine operator to extend the mine's No.1 shaft to 1,500 metres depth. The defendant employed the deceased worker and had designed and installed the infrastructure used in the shaft extension, including the kibble and dual platform stage system, known as a "blind sink" technique.
The prosecution charged the defendant under the Work Health and Safety Act 2011 with a breach of its primary duty of care. The defendant pleaded guilty.
Legal Issues
- What was the appropriate penalty for the defendant's breach of its primary duty of care under s 19(1) of the Work Health and Safety Act 2011, having regard to the objective seriousness of the offence?
- What weight should be given to the foreseeability of the specific risk, including prior use of equivalent infrastructure without incident?
- How should the court assess the availability and utilisation of risk control measures in the industry?
- What discount applied for the guilty plea, and how should factors such as remorse, post-incident remediation, cooperation, likely costs liability, and victim impact be weighed?
Decision
Kearns DCJ placed the offence at the low end of objective seriousness. The risk of a worker placing a body part outside the kibble while it passed through the platform was foreseeable in a general sense, and the Gearing Report commissioned by the defendant had specifically flagged pinch points as a matter to be considered. However, the probability of the incident occurring was low. Workers were well aware from training and common sense that they should remain wholly within the kibble, and the work records showed no prior incidents of workers extending body parts during operation across multiple shaft sinking projects dating back to 2007.
The court also found that the measures which could have minimised the risk had not been adopted by anyone else operating in the industry at the time. The defendant had extensive safety systems in place before the incident. The combination of low probability, general industry practice, and the defendant's pre-existing safety framework supported the finding that the offence sat at the lower end of the objective seriousness scale.
On subjective factors, the court noted the defendant had accepted responsibility, was unlikely to reoffend, had cooperated fully with the regulator, and had taken extensive remedial steps after the incident. The court treated the defendant's likely liability for prosecution costs of approximately $250,000 as a relevant factor in sentencing, though not on a dollar-for-dollar basis. The victim impact statements from the deceased's mother, sister, and partner and her children were acknowledged and taken into account; the court extended its condolences to the family.
A 25% discount was applied for the guilty plea. Starting from a pre-discount figure consistent with the offence's position at the low end of seriousness, and against a maximum penalty of $1,500,000, the court arrived at a fine of $75,000.
Orders Made
- The defendant was convicted of the offence under s 32 of the Work Health and Safety Act 2011.
- The defendant was fined $75,000, with a moiety (half the fine) payable to the prosecutor.
- The defendant was ordered to pay the prosecutor's costs as agreed or assessed.
Key Takeaways
- A guilty plea in Work Health and Safety Act proceedings can attract a discount of up to 25%, with the precise discount depending on the circumstances of each case.
- Placing an offence at the low end of objective seriousness requires examining foreseeability of the specific risk, the probability of harm occurring, and whether available control measures were actually used elsewhere in the industry. Where risk control measures were not in use across the industry, this bears on the assessment of culpability.
- The District Court confirmed that a defendant's likely liability for prosecution costs is a factor that can be taken into account in fixing a penalty, though it cannot be offset on a dollar-for-dollar basis against the fine.
- Pre-existing safety systems, post-incident remediation, cooperation with the regulator, and acceptance of responsibility are all relevant mitigating considerations in Work Health and Safety Act sentencing, even where a fatality has resulted.
- Under s 32 of the Work Health and Safety Act 2011, the maximum penalty for a corporation is $1,500,000, and the court treated this ceiling as a legislative signal that such offences are to be treated seriously, reserving the maximum for only the most extreme cases.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19(1) and 32
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases cited: No cases were cited in the portions of the judgment provided.