Citation: McColm v Endeavour Coal Pty Limited [2022] NSWDC 307
Court: District Court of New South Wales
Date: 3 August 2022
Judge: Russell SC DCJ
Background
Endeavour Coal Pty Limited operated Appin Colliery, an underground coal mine located approximately 30 kilometres north-west of Wollongong. On 8 June 2019, workers were installing a scraper conveyor in the mine's conveyor drift when a serious workplace incident occurred. One worker activated the conveyor while another, Mr Rapley, was walking along its top guards. Mr Rapley's right foot entered an exposed inlet hole and became entangled in the conveyor's moving metal flights.
The incident caused severe and lasting injury. Mr Rapley required amputations of toes and suffered chronic pain, nerve damage, and a "club foot" diagnosis. His recovery was complicated by further injuries sustained during rehabilitation, including a fall that fractured his wrist and a cycling accident in which a brake lever narrowly missed his femoral artery. His Victim Impact Statement described feeling entirely disregarded by the company in the aftermath.
Endeavour Coal pleaded guilty to failing to comply with its health and safety duty under section 19 of the Work Health and Safety Act 2011 (NSW), thereby exposing Mr Rapley to a risk of death or serious injury, contrary to section 32 of that Act. The maximum penalty for the offence was a fine of $1,500,000.
Legal Issues
- What was the appropriate penalty for a section 32 WHS Act offence, having regard to objective seriousness, mitigating factors, and the guilty plea?
- What weight should be given to the defendant's early plea of guilty?
- Whether prosecution costs should be ordered against the defendant.
Decision
The court found that Endeavour Coal had committed multiple failures bearing on the risk that materialised. These included failing to develop and implement an adequate installation and commissioning procedure for the new conveyor, failing to comply with its own procedures for introducing new plant to the mine, failing to isolate the conveyor from its power source, failing to provide adequate instruction to workers, failing to ensure adequate lighting in the conveyor drift, and failing to have appropriate safety signage in place or reinstate guardrails around the exposed tail end.
On objective seriousness, the court assessed the offending as sitting at a moderate level on the scale of seriousness for this type of offence. The risk was foreseeable and the failures multiple, but the court weighed those considerations against any applicable mitigating factors.
In fixing the penalty, the court determined the appropriate base fine was $400,000. That figure was then reduced by 25 percent to reflect the early guilty plea, bringing the final fine to $300,000. Pursuant to section 122(2) of the Fines Act 1996 (NSW), the court ordered that 50 percent of the fine be paid to the prosecutor. The court also took into account Mr Rapley's ongoing physical suffering and his sense of abandonment by the company following the incident, as expressed in his Victim Impact Statement.
Orders Made
- Endeavour Coal Pty Limited convicted.
- Fine of $300,000 imposed (reduced from a base of $400,000 by 25% for the early guilty plea).
- Pursuant to section 122(2) of the Fines Act 1996 (NSW), 50% of the fine to be paid to the prosecutor.
- Endeavour Coal Pty Limited to pay the prosecutor's costs.
Key Takeaways
- A 25 percent discount on the base fine was applied to reflect an early guilty plea under the Work Health and Safety Act 2011 (NSW), consistent with the general sentencing discount principles operating in NSW.
- Multiple concurrent failures, including absence of isolation procedures, inadequate lighting, missing signage, and absent guardrails, contributed to the court's assessment of objective seriousness, even where the ultimate penalty sat at a moderate level on the available scale.
- Under section 122(2) of the Fines Act 1996 (NSW), the court directed that half the fine be paid to the prosecutor, a mechanism available in WHS prosecutions.
- Victim impact evidence, including ongoing chronic pain, secondary injuries sustained during rehabilitation, and the worker's perception of corporate indifference, was taken into account at sentence.
- The District Court confirmed that a mine operator's duty under section 19 of the WHS Act extends to contracted workers engaged through service agreements, not only directly employed staff.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 3, 19, 32
- Work Health and Safety (Mines and Petroleum Sites) Act 2013 (NSW), s 7A
- Work Health and Safety Regulation 2017 (NSW), cll 204, 207
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 26, 27, 28, 30A, 30B, 30E
- Fines Act 1996 (NSW), ss 6, 122
Cases:
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- Nash v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
- Regan v Endeavour Coal Pty Ltd [2011] NSWIRComm 141
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566