AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
2
District Court 27 May 2019

Stephen James Orr v Cobar Management Pty Ltd

[2019] NSWDC 224

Other
CRIME PROSECUTION WORK HEALTH AND SAFETY DUTY OF PERSONS UNDERTAKING BUSINESS DUTY OF EMPLOYERS RISK OF DEATH OR SERIOUS INJURY

Citation: Stephen James Orr v Cobar Management Pty Ltd [2019] NSWDC 224
Court: District Court of New South Wales
Date: 27 May 2019
Judge: Scotting DCJ

Background

The defendant, Cobar Management Pty Ltd, operated the CSA copper mine at Cobar, one of Australia's deepest underground mines. A worker, James Hern, was employed on the mine's services crew. At approximately 11.15pm on 11 June 2014, Mr Hern attempted to unblock a drain hole at the base of a flooded underground sump. His leg was sucked into the drain hole and the water pressure was so great that he could not be freed for some time. He drowned.

The prosecutor, a Work Health and Safety Inspector, charged the defendant under section 32 of the Work Health and Safety Act 2011 (NSW). The charge alleged that the defendant, as a person with a health and safety duty under section 19(1) of that Act, failed to comply with that duty and thereby exposed Mr Hern to a risk of death or serious injury.

The defendant conceded that two of the four elements of the offence were established beyond reasonable doubt. The contested issues were whether the defendant had failed to comply with its duty by not taking the steps specified in the prosecution's summons, and whether any such failure exposed Mr Hern to the relevant risk.

  • Whether the defendant failed to comply with its health and safety duty by not implementing the specific control measures and safe work procedures particularised in the amended summons (Element 3).
  • Whether, if such a failure existed, it exposed Mr Hern to a risk of death or serious injury within the meaning of section 32 of the Work Health and Safety Act 2011 (Element 4).
  • Whether the pleaded risk was reasonably foreseeable, including an assessment of what the defendant knew or ought to have known about the risk of workers entering flooded sumps to unblock drain holes.
  • Whether post-mortem alcohol readings established that Mr Hern was intoxicated at the time of the incident, and whether intoxication was relevant to causation.

Decision

Element 3: Failure to comply with the health and safety duty

The court examined each particular of breach alleged in the summons, including the absence of a formal safe work procedure for working in and around sumps, gaps in training, failure to enforce existing procedures, and inadequate supervision. Scotting DCJ assessed whether the pleaded risk (a worker entering a flooded sump to unblock a drain hole and being trapped) was reasonably foreseeable given what the defendant knew. The court considered the mine's existing safety management systems, its inspections regime, and the evidence about general practices at sumps prior to the incident. The defendant had a comprehensive safety framework, including a Mine Safety Management Plan, job safety analyses, and a dedicated Health, Safety, Environment and Training department.

Element 4: Exposure to risk of death or serious injury, and causation

Even accepting findings on Element 3, the prosecution was required to prove beyond reasonable doubt that the breach exposed Mr Hern to the relevant risk. The court found the prosecution had not established this element to the required standard. A significant portion of the analysis on Element 4 concerned causation and the intoxication issue.

The intoxication issue

Post-mortem toxicological analysis detected alcohol in Mr Hern's blood and urine. The prosecution and defence each called expert evidence. Dr Judith Perl, the prosecution's expert, opined that the alcohol detected was likely produced post-mortem through bacterial activity in the water. Dr Michael Robertson, the defence expert, considered the readings more consistent with pre-death alcohol consumption. The court preferred Dr Robertson's evidence, finding Dr Perl's opinion relied on assumptions that did not correlate well with the circumstances of Mr Hern's submersion, including assumptions about bacterial levels in the water and Mr Hern's blood sugar levels. However, Scotting DCJ found that even on the basis of pre-death consumption, the readings were relatively low, and the court was not satisfied that Mr Hern would have suffered any appreciable impairment of his physical or mental faculties at the time he entered the water. Accordingly, intoxication was not established as significant to causation.

The prosecution ultimately failed to prove all four elements of the offence beyond reasonable doubt, and the defendant was acquitted.

Orders Made

  • The defendant was acquitted of the charge.
  • The matter was adjourned to 24 June 2019 to allow the prosecutor to consider its position in relation to an appeal pursuant to section 5AE of the Criminal Appeal Act 1912.

Key Takeaways

  • A prosecution under section 32 of the Work Health and Safety Act 2011 requires proof beyond reasonable doubt of all four elements, including both a failure to comply with the relevant duty and that the failure exposed the worker to a risk of death or serious injury. Failure to establish any single element is fatal to the prosecution.

  • The District Court treated the reasonable foreseeability of the specific pleaded risk, rather than a generalised risk, as a central question in assessing Element 3. The particularity with which a risk is pleaded in a WHS summons shapes what the prosecution must establish.

  • Where competing expert evidence is adduced on post-mortem toxicology, courts will examine the assumptions underlying each opinion and assess whether those assumptions are grounded in the specific circumstances of the incident rather than general literature.

  • Even where post-mortem alcohol readings are found to be more consistent with pre-death consumption, a court may still decline to find that intoxication was causally significant if the readings, on extrapolation, suggest no appreciable impairment at the relevant time.

  • The existence of comprehensive safety management systems, including mine safety management plans, job safety analyses, safe work procedures, and a dedicated safety department, formed part of the factual matrix the court considered when assessing the defendant's compliance with its duty.

Legislation and Cases Referenced

Legislation

  • Work Health and Safety Act 2011 (NSW), ss 19(1), 32
  • Criminal Appeal Act 1912 (NSW), s 5AE
  • Occupational Health and Safety Act 2000 (NSW)

Cases

  • Baiada Poultry Pty Ltd v R (2012) 246 CLR 92
  • Bulga Underground Operations v Nash [2016] NSWCCA 37
  • Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467
  • Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209
  • Director of Public Prosecutions v JCS Fabrications Pty Ltd and JMAL Group Pty Ltd [2019] VSCA 50
  • Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676
  • Kirk v Industrial Court of New South Wales (2010) 239 CLR 531
  • R v Board of Trustees of the Science Museum [1993] 1 WLR 1171
  • Royall v The Queen (1991) 172 CLR 378
  • Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316
  • Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304
  • Thiess Pty Ltd v Industrial Court of New South Wales (2010) 78 NSWLR 94
  • Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015