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District Court 8 November 2019

Orr v Hunter Quarries Pty Limited

[2019] NSWDC 634

Other
CRIMINAL LAW PROSECUTION WORK HEALTH AND SAFETY DUTY OF PERSON UNDERTAKING BUSINESS ELEMENTS OF OFFENCE REASONABLE PRACTICABILITY

Citation: Orr v Hunter Quarries Pty Limited [2019] NSWDC 634
Court: District Court of New South Wales
Date: 8 November 2019
Judge: Russell SC DCJ

Background

The defendant company owned and operated a hard rock quarry at Karuah in New South Wales. It employed the deceased, Mr Ryan Messenger, as a Leading Hand and Machine Operator. On 9 September 2014, Mr Messenger was found operating an excavator on an uneven, rocky slope at the northern end of the quarry. The excavator rolled over, crushing him inside the cabin. He died from his injuries.

The prosecution brought a charge under section 32 of the Work Health and Safety Act 2011 (NSW), alleging that the defendant, as a person conducting a business or undertaking (PCBU), had failed to comply with its duty under section 19(1) to ensure the health and safety of its workers so far as was reasonably practicable. The particulars of breach related to two matters: the absence of a Roll Over Protective Structure (ROPS) fitted to the excavator, and deficiencies in the defendant's systems of work.

The defendant pleaded not guilty. The court was required to determine whether the prosecution had proved each element of the offence beyond reasonable doubt.

  • Whether the defendant was conducting a business or undertaking
  • Whether the defendant owed Mr Messenger a health and safety duty under section 19(1) of the Work Health and Safety Act 2011 (NSW)
  • Whether the defendant failed to comply with that duty by not fitting a ROPS to the excavator and by failing to implement adequate systems of work (the "plant charge" and the "systems charge" respectively)
  • Whether any such failure exposed Mr Messenger to a risk of death or serious injury
  • What knowledge the defendant had or ought reasonably to have had about the relevant risk, and whether the risk was foreseeable

Decision

The court accepted that the first two elements were satisfied: the defendant was clearly a PCBU conducting a business, and it owed Mr Messenger a health and safety duty as an employee at work in its undertaking. The central contest was over the third and fourth elements.

On the plant charge (the absence of ROPS), the court found that excavators were not included in the list of vehicles on which ROPS were required to be fitted under the applicable standards. Where equipment fell outside those standards, a risk assessment was required. Critically, ROPS was not required on an excavator used on flat areas, and the risk of a rollover increased only as relevant variables such as slope and instability increased. The court found no breach in this respect given how the excavator was ordinarily used at the site.

On the systems charge, the evidence established that Mr Messenger had been given specific instructions less than an hour before the incident directing him to perform different tasks and not to operate the excavator in that area. The area where the rollover occurred was a designated "no-go" zone, physically cordoned off by a bund (a compacted earth barrier). Mr Messenger had dismantled that barrier without authority and entered the restricted area. He then operated the excavator on a rocky slope in a manner contrary to his training and all applicable work procedures, including sitting across the slope with the boom fully extended while slewing the turntable.

The court concluded that no one could reasonably have foreseen that Mr Messenger would act in that way. His conduct was not only contrary to his instructions but was also wholly inconsistent with his previously excellent work record and with any observed behaviour at the site. Because the risk arose from circumstances that were entirely unforeseeable, the prosecution failed to establish both that there was a breach of the defendant's duty and, independently, that any failure exposed Mr Messenger to the relevant risk. The prosecution did not prove all elements of the offence beyond reasonable doubt, and the defendant was acquitted.

Orders Made

  • The prosecution was found not to have proved all elements of the offence beyond reasonable doubt.
  • Final orders were not entered immediately, to allow the prosecution to consider an application pursuant to section 5AE of the Criminal Appeal Act 1912 (NSW).
  • The matter was listed for entry of final orders or argument on proposed questions of law to be stated to the Court of Criminal Appeal.

Key Takeaways

  • A PCBU's duty under section 19(1) of the Work Health and Safety Act 2011 (NSW) extends only to risks that are, or ought reasonably to be, foreseeable. Where a worker's fatal conduct was wholly contrary to instructions, established procedures, and any observed site behaviour, that conduct may fall outside the scope of what the PCBU was required to guard against.

  • Foreseeability plays a significant role in assessing both breach and exposure to risk in a section 32 prosecution. The District Court found that the causal link between any act or omission by the defendant and the risk of death was broken by the entirely unforeseeable behaviour of the deceased worker himself.

  • Under the applicable standards and the Work Health and Safety Regulation 2011 (NSW), ROPS was not mandated for excavators in all circumstances. Where equipment falls outside prescribed ROPS requirements, a risk assessment is required, but the obligation to fit ROPS does not automatically arise unless the assessed risk warrants it.

  • Strict liability for the offence under section 32 does not eliminate the requirement for the prosecution to prove each element beyond reasonable doubt, including that the failure to comply with the duty actually exposed the worker to a risk of death or serious injury.

  • The presence of physical safety barriers, documented work procedures, specific verbal instructions, and training does not guarantee a conviction will follow a workplace fatality. Where those controls were all in place and a worker circumvented them in an unforeseeable manner, the court found the prosecution's case was not made out.

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 Regulation 2011 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5AE
- Mine Health and Safety Act 2004 (NSW)
- Occupational Health and Safety Act 1983 (NSW)
- Occupational Health and Safety Regulation 2001 (NSW)

Cases
- Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531
- Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92
- Bulga Underground Operations v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- Nash v Silver City Drilling Pty Ltd [2017] NSWCCA 96
- Slivak v Lurgi (Aust) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304
- R v Board of Trustees of the Science Museum [1993] 1 WLR 1171
- Carrington Slipways Pty Limited v Callaghan (1985) 11 IR 467
- Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209
- Simpson Design & Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316; (2011) 214 IR 373
- Orr v Cobar Management Pty Limited [2019] NSWDC 224
- Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015
- R v Commercial Industrial Construction Group Pty Limited [2006] VSCA 181
- Laing O'Rourke (BMC) Pty Ltd v Kinwin [2011] WASCA 117
- Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378