Citation: Linnane (NSW Department of Planning and Environment) v Cummings [2020] NSWDC 587
Court: District Court of New South Wales
Date: 1 October 2020
Judge: Scotting DCJ
Background
The defendant was an opal miner and small business owner who operated at the Grawin Opal Fields in outback New South Wales. He entered a profit-sharing arrangement with another miner, under which the defendant supplied a hydraulic hoist and other equipment while his partner provided access to an underground mine. A third worker assisted with mining operations.
On 4 November 2016, the hoist malfunctioned in a known failure mode called an "overspool," causing the bucket to become stuck at the top of the shaft. The deceased worker entered the sump at the bottom of the main shaft and inadvertently activated the lower limit switch, cutting power to the hoist. The bucket, weighing 130 kilograms when empty, free-fell down the shaft and struck and killed him.
The defendant was prosecuted under section 32 of the Work Health and Safety Act 2011 (NSW) for breaching his health and safety duty. Two alternative charges were brought: one alleging breach of the duty of a person with management or control of plant (section 21), and one alleging breach of the duty of a plant supplier (section 25). The particulars alleged the defendant failed to modify the hoist with any one of three available engineering controls.
Legal Issues
- Whether the defendant had "management or control" of the hoist within the meaning of section 21 of the Act
- Whether the defendant was a "supplier" of the hoist within the meaning of section 25 of the Act
- Whether the defendant failed to comply with his health and safety duty by not installing one or more of three specified engineering controls
- Whether the cost and practicability of each modification were grossly disproportionate to the risk
- Whether a causal relationship existed between the defendant's failures and the risk to which the deceased was exposed
Decision
Issue 1: Management or control of the hoist
Scotting DCJ found the defendant retained management or control of the hoist throughout the mining operation. The defendant owned the hoist, could withdraw it at any time, and was consulted and arranged repairs when major problems arose. Although the workers managed day-to-day operation, that did not displace the defendant's overarching control (at [117]-[121]). The court was satisfied beyond reasonable doubt that Element 1 of the first charge was established (at [122]).
Issue 2: Supply of the hoist
The court was also satisfied that the defendant supplied the hoist in the course of his undertaking, making Element A of the second charge out (at [126]-[127]). However, as both charges were proven, the court entered a verdict only on the first charge.
Issue 3: Failure to install engineering controls
The court found the defendant should have known that cutting power to the hoist while the cable was in overspool, for any reason, could cause the bucket to free-fall (at [142]-[143]). A key finding was that pressing the emergency stop button and activating the lower limit switch both produced the same outcome, namely loss of power to the electric motor, and so the risk was reasonably foreseeable from either event (at [143]).
Three engineering controls were assessed. A slack wire switch could be fabricated from commonly available materials for under $1,000, and the necessary knowledge was available from other miners on the opal fields (at [151]-[155]). A dual-acting counterbalance valve or a blocking spool valve could each be sourced for between $342 and $459, and even accounting for the cost of engaging a qualified person to travel from Dubbo, total installation costs in the range of $3,000 to $5,000 were not grossly disproportionate to a grave risk of death (at [163]-[164]). The defendant's lack of personal hydraulic expertise did not relieve him of the duty to engage a suitably qualified person to perform the work (at [157]-[158]). The court found all three measures were each reasonably practicable (at [155], [164]).
Issue 4: Causation
The defendant had identified the overspool risk and attempted to control it through an administrative measure requiring workers not to enter the shaft beneath a suspended load. The court held that administrative controls alone were insufficient where engineering controls were reasonably practicable, particularly given the defendant's knowledge that the deceased was a risk taker with a propensity not to follow instructions (at [145], [170]). The failure to modify the hoist was a cause of the deceased being exposed to a risk of death or serious injury, and the causal relationship between the defendant's failures and the pleaded risk was established beyond reasonable doubt (at [171], [175]).
Orders Made
- The defendant was found guilty of the section 32 offence relating to the breach of section 21 of the Work Health and Safety Act 2011.
Key Takeaways
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Retaining ownership of plant and being responsible for arranging major repairs is sufficient to establish "management or control" of that plant under section 21 of the Work Health and Safety Act 2011, even where workers handle day-to-day operation (at [117]-[121]).
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Where a known failure mode creates a risk of death, the hierarchy of controls under the Work Health and Safety Regulation 2011 requires a duty holder to consider engineering controls before relying on administrative controls such as verbal instructions to workers (at [146]).
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A duty holder's lack of personal technical expertise does not excuse failure to implement an engineering control; the duty extends to engaging suitably qualified persons to diagnose and carry out the necessary modifications (at [157]-[158]).
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Under the reasonably practicable test, total modification costs of $3,000 to $5,000 were not grossly disproportionate to a risk that included a grave likelihood of death, even accounting for travel costs to a remote location (at [163]-[164]).
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The District Court confirmed that a duty holder must plan for human error, including the foreseeable failure of a worker known to take risks and disregard safety instructions; an administrative control that depends entirely on worker compliance does not discharge the duty where engineering modifications are reasonably practicable (at [170]).
Legislation and Cases Referenced
Legislation
- Occupational Health and Safety Act 2000
- Work Health and Safety Act 2011
- Work Health and Safety (Mines and Petroleum) Sites Act 2013
- Work Health and Safety Regulation 2011
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
- Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313
- Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267
- Inspector Ching v Bros Bins Systems Pty Ltd [2004] NSWIRComm 197
- Kirk v Industrial Court of New South Wales (2010) 239 CLR 531
- Laing O’Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117
- McMillan Britton and Kell Pty Ltd v WorkCover Authority (NSW) (1999) 89 IR 464
- R v Board of Trustees of the Science Museum [1993] 1 WLR 1171
- R v Commercial Industrial Construction Group Pty Ltd (2006) 14 VR 321
- R v Nelson Group Services (Maintenance) Ltd [1998] 4 All ER 332
- 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
- Smith v Broken Hill Pty Ltd (1957) 97 CLR 337
- Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015
- Thiess Pty Ltd v Industrial Court of New South Wales (2010) 78 NSWLR 94
- WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453
- WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd (2004) 135 IR 166
- WorkCover Authority of NSW v Atco Controls Pty Ltd (1998) 82 IR 80
- WorkCover Authority of NSW v Woolworths Ltd [1994] NSWIRComm 207