Citation: Orr v LakeCoal Pty Ltd (In Liquidation) (No. 2) [2019] NSWDC 360
Court: District Court of New South Wales
Date: 26 July 2019
Judge: Russell SC DCJ
Background
The defendant, LakeCoal Pty Ltd, operated Mannering Colliery, an underground coal mine at Doyalson in New South Wales. As a person conducting a business or undertaking (PCBU), the company owed health and safety duties to its workers under the Work Health and Safety Act 2011 (NSW) (WHS Act). By the time of trial, the company was in liquidation. A prior judgment had confirmed that prosecution could continue without leave, notwithstanding the liquidation.
On 22 January 2016, a worker, Mr Benjamin Pedersen, suffered serious injury underground. Vehicles operating in the mine had made contact with the roof of a roadway, fracturing a W-strap (a steel roof support element). The fractured W-strap then made contact with the canopy of a vehicle and entered the operator cabin space, causing serious injury to Mr Pedersen.
The prosecutor charged the defendant with a Category 2 offence under section 32 of the WHS Act, alleging that the company failed to comply with its primary health and safety duty and that this failure exposed Mr Pedersen to a risk of death or serious injury. The trial proceeded on an undefended basis over two days, with no appearance for the defendant or its liquidator.
Legal Issues
- Whether the defendant was a PCBU that owed a health and safety duty under section 19(1) of the WHS Act to workers engaged by it.
- Whether the defendant failed to comply with that duty, specifically by failing to implement adequate safe systems of work (including an audit of underground roadways for vehicle roof clearance) and by failing to provide adequate training and instruction to workers to report damage to roofs and W-straps.
- Whether that failure exposed Mr Pedersen to a risk of death or serious injury.
- Whether the measures identified by the prosecution were reasonably practicable for the defendant to have implemented.
- Whether there was a sufficient causal nexus between the identified failures and the exposure to risk.
Decision
The District Court found all elements of the offence proved beyond reasonable doubt and entered a verdict of guilty. The court was satisfied that the defendant was plainly a PCBU operating an underground coal mine and that it owed the relevant health and safety duty to workers, including Mr Pedersen, under section 19(1) of the WHS Act.
On the question of failure, the court identified two distinct limbs to the charge. The first concerned the absence of an adequate safe system of work, specifically the failure to conduct an audit of underground roadways to assess the operational roof clearance available for vehicles travelling those routes, followed by remedial action where clearance was insufficient. The second concerned the failure to train and instruct workers to identify and report damage to mine roofs and W-straps so that hazardous conditions could be acted upon promptly.
The court accepted that the risk of injury from contact between underground vehicles and roof supports was foreseeable. Departmental guidelines, industry publications, and the defendant's own workplace risk assessment records (referred to as WRACs) demonstrated awareness of the type of hazard that ultimately caused Mr Pedersen's injury. The court was satisfied that the risk was not merely theoretical, and that there was tangible evidence of prior damage in the mine consistent with vehicles having contacted the roof.
On reasonable practicability, the court concluded that both the roadway audit system and the training and instruction measures were reasonably practicable steps the defendant could and should have taken. The court was also satisfied that a causal nexus existed between each of the identified failures and Mr Pedersen's exposure to the relevant risk of death or serious injury.
Orders Made
- The elements of the offence in the Amended Summons filed 3 June 2019 were proved beyond reasonable doubt.
- The defendant is guilty of the offence.
- The matter was listed for sentence on a date suitable to the prosecutor.
- The prosecutor was directed to notify the liquidator of these orders and provide a copy of the judgment.
Key Takeaways
- The District Court confirmed that a WHS prosecution under section 32 of the WHS Act can proceed against a company in liquidation without leave, as established in the earlier judgment in this matter.
- Under section 32 of the WHS Act, the prosecution must prove that the defendant had a health and safety duty, failed to comply with it, and that the failure exposed an individual to a risk of death or serious injury. Proof of actual injury, while potentially evidencing risk, is not itself a required element.
- A conviction does not require proof that an accident was inevitable. The word "risk" under the WHS Act means the mere possibility of danger, not actual or certain danger.
- Foreseeability of a risk can be established through a combination of sources, including regulatory guidelines, industry publications, and a defendant's own internal risk assessment documents, even where the defendant does not appear at trial to contest the evidence.
- The duty to "ensure" health and safety under section 19 of the WHS Act imposes a high standard, equivalent to a guarantee or certainty of safety, subject only to what is reasonably practicable.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 3, 7, 12A, 14, 16, 17, 19, 32
- Work Health and Safety (Mines and Petroleum Sites) Act 2013 (NSW)
- Work Health and Safety (Mines) Regulation 2014 (NSW)
- Work Health and Safety Regulation 2011 (NSW)
- Coal Mine Health and Safety Regulation 2006 (NSW)
- Corporations Act 2001 (Cth)
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW)
Key Cases:
- Orr v LakeCoal Pty Limited [2019] NSWDC 178 (earlier judgment in same matter)
- Kirk v Industrial Court of New South Wales (2010) 239 CLR 531
- Baiada Poultry Pty Ltd v R (2012) 246 CLR 92
- Bulga Underground Operations v Nash [2016] NSWCCA 37
- Hunter Quarries Pty Limited v Morrison; Badior v Morrison [2017] NSWCCA 326
- Thiess Pty Limited v Industrial Court of New South Wales [2010] 78 NSWLR 94
- R v Board of Trustees of the Science Museum [1993] 1 WLR 1171
- Carrington Slipways Pty Limited v Callaghan (1985) 11 IR 467
- Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304
- SafeWork (NSW) v Tamex Transport Services P/L t/as Tamex [2016] NSWDC 295
- Simpson Design Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316