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District Court 28 February 2018

Inspector Orr v Perilya Broken Hill Limited

[2018] NSWDC 28

Other
CRIMINAL LAW PROSECUTION WHETHER THERE WAS A RISK WHETHER RISK FORESEEABLE WHETHER CORRECT PPE USED WHETHER PPE USED WAS DEFECTIVE

Citation: [2018] NSWDC 28
Court: District Court of New South Wales
Date: 28 February 2018
Judge: Kearns DCJ

Background

The defendant, Perilya Broken Hill Limited, operated an underground silver, lead, and zinc mine at Broken Hill. In June 2012, mine personnel needed to calibrate load cells (instruments measuring the weight of ore in a weigh flask) because inconsistent weight readings had been causing operational problems. The proposed solution involved hanging approximately 10 tonnes of weights from the bottom of a weigh flask located down a haulage shaft.

On 8 June 2012, a rigger employed by the defendant, Mark Pollard, attempted to carry out this task by working from the raised bucket of a loader positioned in the haulage shaft. He attached himself to the bucket using a fall arrest harness and lanyard. During the task, both the weights and Mr Pollard fell from the bucket. His lanyard snapped. He suffered a traumatic amputation of his right leg and other serious injuries. A second employee, Mr Rowbotham, was working alongside him at the time.

The defendant was charged under section 32 of the Work Health and Safety Act 2011 (NSW) with a Category 2 offence, on the basis that it had failed to comply with its primary duty of care under section 19(1), thereby exposing Mr Pollard and Mr Rowbotham to a risk of death or serious injury. The defendant pleaded not guilty.

  • Whether a risk of the kind that materialised was present and foreseeable at the relevant time
  • Whether the defendant's duty to minimise risk arose even if the risk could theoretically have been eliminated entirely
  • Whether the defendant's prohibition on using a loader bucket as a work platform was adequate, and whether that prohibition was required to be in writing
  • Whether the Job Safety Analysis (JSA) prepared for the task was adequate
  • Whether the personal protective equipment (PPE) system, including the selection and condition of equipment, was appropriate
  • Whether the defendant provided adequate information, training, instruction, and supervision
  • Whether the defence of mistake of fact under the common law (as recognised in Proudman v Dayman) was available, namely whether the defendant genuinely and reasonably believed that no one would use the loader bucket as a work platform and that no work at heights was required

Decision

Kearns DCJ found that a foreseeable risk of serious injury or death existed in connection with the calibration task. Working from the bucket of a loader inside a haulage shaft created obvious dangers, including the risk of falling and the risk that the bucket contents could shift or be displaced. The court found that this risk was or should have been known to those responsible for planning and supervising the task.

The court examined each of the prosecution's particulars in detail. It found deficiencies in several areas: the JSA prepared for the task failed to adequately identify and address the risks of working at height from a loader bucket; the PPE provided was not appropriate to the circumstances and the lanyard that failed had not been properly assessed for the task; and the defendant's prohibition on using the loader bucket as a work platform had not been formalised in writing or adequately communicated to those involved. Supervision on the day was also found to be inadequate.

On the mistake of fact defence, the defendant argued that it genuinely believed no one would use the loader bucket as a work platform and that no work at height was contemplated. The court rejected this defence. The belief was not reasonably held given the planning process that had occurred, the communications between personnel in the weeks leading up to the incident, and the nature of the task itself. Reasonable inquiries would have revealed that working at height from the bucket was in fact being planned and carried out.

The defendant was found guilty of the charge.

Orders Made

No orders were made in this decision.

Key Takeaways

  • A Category 2 offence under the Work Health and Safety Act 2011 (NSW) can be established where a person conducting a business or undertaking fails to take adequate measures to address foreseeable risks, even where those risks arise partly from the conduct of workers acting contrary to employer policy.

  • The District Court confirmed that the availability of a complete alternative method (one that would eliminate the risk entirely) does not automatically discharge the duty to minimise risk; the duty to ensure health and safety extends to the practical reality of how work is actually being carried out.

  • Where a JSA is prepared for a hazardous task, it must genuinely identify and address the specific risks present, including working at height. A JSA that fails to do so contributes to a finding of breach of duty.

  • The common law defence of mistake of fact requires that the defendant's belief be both genuinely and reasonably held. The District Court found the defence unavailable where the planning communications and circumstances known to the defendant's personnel were inconsistent with the claimed belief.

  • Unwritten workplace policies prohibiting hazardous practices carry less weight in a safety prosecution when personnel involved in a task were not clearly and specifically informed of those prohibitions before undertaking the work.

Legislation and Cases Referenced

Legislation:
- Work Health and Safety Act 2011 (NSW), ss 17, 18, 19, 32
- Mine Health and Safety Regulation 2007
- Occupational Health and Safety Act 1983 (NSW)

Cases:
- Proudman v Dayman (1941) 67 CLR 536
- He Kaw Teh v The Queen (1985) 157 CLR 523
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- Safe Work NSW v Wollongong Glass P/L [2016] NSWDC 58
- WorkCover Authority of NSW v Kellogg Aust Pty Ltd [1999] NSWIRComm 453
- WorkCover Authority of NSW (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248
- WorkCover Authority of NSW (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd (2001) 105 IR 81
- Genner Constructions Pty Ltd v WorkCover Authority of NSW (Inspector Guillarte) (2001) IR 57
- WorkCover Authority of NSW (Inspector Woodington) v Australand Holdings Limited and Sassall Glass & Joinery Pty Limited [2008] NSWIRComm 153