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7
Supreme Court 2 February 2018

Nash v Resource Pacific Pty Ltd (No 3)

[2018] NSWSC 45

Other
OCCUPATIONAL HEALTH AND SAFETY TRIAL NOT GUILTY PLEAS DEFENDANT OPERATOR OF COAL MINE DEFENDANT FOUND NOT GUILTY CHARGES DISMISSED

Citation: Nash v Resource Pacific Pty Ltd (No 3) [2018] NSWSC 45
Court: Supreme Court of New South Wales
Date: 2 February 2018
Judge(s): Walton J

Background

The defendant operated the Ravensworth Underground Mine near Singleton, New South Wales. Part of the mine's operations involved transporting coarse reject material (a by-product of the coal washing process) from a large loading hopper known as Reject Bin 802 into trucks for disposal. The loading cycle was controlled by a programmable electronic control system, which was designed to ensure trucks were correctly positioned before material was released from the bin.

On the night shift of 17 to 18 February 2009, a truck driver named Mr Oldknow was fatally injured when reject material was released from Bin 802 onto the cabin of his truck. The incident occurred because of a flaw in the automated operating system: a photoelectric sensor cell became occluded (obstructed), causing the system to behave incorrectly in relation to the truck's position under the chute.

The prosecutor, an investigator appointed under the Coal Mine Health and Safety Act 2002 (NSW), charged the defendant with one breach of section 8(2) and one breach of section 10(2) of the Occupational Health and Safety Act 2000 (NSW) (the OHS Act). The defendant pleaded not guilty to both charges.

  • Whether the prosecution proved beyond reasonable doubt that the defendant contravened section 8(2) of the OHS Act by failing to ensure the health, safety and welfare of its employees, having regard to the specific particulars alleged.
  • Whether the prosecution proved beyond reasonable doubt that the defendant contravened section 10(2) of the OHS Act in relation to persons other than employees who may be affected by the conduct of the undertaking.
  • Whether, in relation to certain particulars where a contravention was arguably established, the defendant proved on the balance of probabilities that it was not reasonably practicable to comply with the relevant duty.
  • Whether certain particulars of the charges were valid and whether some charges were brought out of time.

Decision

Walton J examined each of the numerous particulars that underpinned both charges in considerable detail. In relation to the section 8(2) charge, the court found that the prosecution failed to prove beyond reasonable doubt that the defendant had contravened the section in respect of the majority of particulars. These included alleged failures relating to software design and certification, the installation of additional sensors, the writing of software logic to prevent unsafe gate operations, the provision of adequate information to drivers, and the adequacy of risk assessments.

For two of the section 8(2) particulars, the court found that the defendant had affirmatively proved on the balance of probabilities that it was not reasonably practicable for it to have complied with the relevant duty. In particular, the defendant established that it was not reasonably practicable to have installed a different form of fall protection structure (a FOPS, or Falling Object Protective Structure) on the trucks, or to have taken the first of two alternative measures particularised in relation to that issue.

In relation to the section 10(2) charge, the court found that the prosecution had failed to prove the defendant committed any of the contravened particulars to the required standard. The prosecution's case included allegations that the defendant should have ensured the plant was certified to applicable Australian Standards, that the programmable logic controller (PLC) code was written to prevent unsafe operation, and that additional protective measures were implemented. The court rejected each of these particulars on the evidence.

The court also found that the prosecution's late introduction of substantially revised expert evidence on the FOPS question (through additional expert reports filed after a court-ordered conclave process) was inconsistent with court orders and would have caused unfairness to the defendant. That evidence was not permitted to be relied upon to the extent it went beyond the scope of the orders made.

Orders Made

No orders were made in this decision.

Key Takeaways

  • The Supreme Court dismissed both charges under sections 8(2) and 10(2) of the (now repealed) Occupational Health and Safety Act 2000 (NSW), finding the prosecution had not proved the alleged contraventions beyond reasonable doubt across the full range of particulars.
  • A defendant facing OHS charges may discharge the statutory defence by proving on the balance of probabilities that it was not reasonably practicable to comply with the relevant duty. Here, the defendant succeeded in doing so in respect of two specific particulars concerning fall protection structures on trucks.
  • The court's analysis proceeded particular by particular, reflecting the principle that the prosecution's case is defined and constrained by the specific particulars it pleads. A failure to prove any one particular on its own terms is a failure as to that element of the charge.
  • Where a court orders a conclave process and a joint expert report by consent, a party who subsequently seeks to file substantially revised expert evidence that changes the foundation of its case may be refused leave to rely on that material. The Supreme Court found that permitting such evidence would have been oppressive and unfair to the defendant.
  • Under the OHS Act's transitional provisions, charges brought under that (repealed) legislation continued to be assessed under it by virtue of Schedule 4 of the Work Health and Safety Act 2011 (NSW), which preserved the OHS Act's operation for proceedings already on foot.

Legislation and Cases Referenced

Legislation:
- Occupational Health and Safety Act 2000 (NSW), ss 8(2), 10(2), 47B, 106(1)(c)
- Work Health and Safety Act 2011 (NSW), Sch 4
- Coal Mine Health and Safety Act 2002 (NSW)
- Coal Mine Health and Safety Regulation 2006 (NSW)
- Occupational Health and Safety Regulation 2001 (NSW)
- Evidence Act 1995 (NSW)
- Uniform Civil Procedure Rules 2005 (NSW)
- Mining Act 1992 (NSW)

Key Cases:
- Baiada Poultry Pty Ltd v R (2012) 246 CLR 92; [2012] HCA 14
- Director of Public Prosecutions (Cth) v Poniatowska (2011) 244 CLR 408; [2011] HCA 43
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- Hunter Quarries Pty Ltd v Morrison; Badior v Morrison [2017] NSWCCA 326
- Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249
- Area Concrete Pumping v Inspector Childs (2012) 223 IR 86; [2012] NSWCA 208
- Chevalley and Another v Industrial Court New South Wales and Others (2011) 82 NSWLR 634; [2011] NSWCA 357
- Edwards v National Coal Board [1949] 1 KB 704
- Austin Rover Ltd v Inspector of Factories [1990] 1 AC 619
- Burns v The Queen (2012) 246 CLR 334; [2012] HCA 35