Citation: McColm (NSW Department Planning and Environment) v Moolarben Coal Operations Pty Ltd [2023] NSWDC 255
Court: District Court of New South Wales
Date: 13 July 2023
Judge: Scotting DCJ
Background
Moolarben Coal Operations Pty Ltd (MCO) operated an open cut coal mine near Ulan, New South Wales. On 17 May 2017, a shotfirer employed by MCO detonated a blast at the mine while the blast crew of six workers observed from a position approximately 246 metres from the blast area. This placed the crew inside the mine's designated 500-metre Personnel Exclusion Zone (PEZ), which was required to be kept clear of all personnel during a blast.
The blast projected a piece of flyrock roughly the size of a football, which struck one of the crew's vehicles and caused the workers to take evasive action. Post-blast fumes then travelled toward the crew, who were also within the mapped Fume Management Zone, requiring them to relocate until the fumes dissipated. MCO acknowledged that both flyrock and toxic fumes posed serious risks to personnel, including risk of death.
The NSW Department of Planning and Environment prosecuted MCO under section 32 of the Work Health and Safety Act 2011, alleging that MCO had failed to comply with its health and safety duty under section 19(1) of that Act, thereby exposing the blast crew to a risk of death or serious injury.
Legal Issues
- Whether MCO failed to comply with its health and safety duty by failing to take the specific steps particularised in the prosecution summons (Element 3), including providing adequate systems, training, monitoring, and supervision around the PEZ.
- Whether any such failure by MCO exposed the blast crew to a risk of death or serious injury (Element 4).
- Whether a common practice had developed at the mine of shotfirers detonating blasts from within the PEZ, and if so, whether MCO's omissions were a substantial and significant cause of that practice.
Decision
MCO admitted Elements 1 and 2 of the charge (that it was a person with a health and safety duty and that it owed that duty to the blast crew as workers). The contested issues were Elements 3 and 4.
On Element 3, Scotting DCJ examined the prosecution's particularised allegations in detail, including whether MCO failed to include an express prohibition on shotfirers being within the PEZ, failed to provide adequate training, failed to require post-blast logging of firing locations, failed to supply measuring devices, used inadequate maps, and failed to adequately supervise the Drill and Blast Superintendent. The court assessed each particular at length.
On the common practice issue, a central factual dispute was whether shotfirers had developed a practice of firing from within the PEZ based on a belief that they were exempt. The court found that the CFE Procedure was clear in applying to "all personnel," and that any non-compliance arose from two intervening factors: the poorly worded exemption in Appendix L of Australian Standard AS 2187, and the failure of the explosives training provider Orica to inform shotfirers that site-specific procedures could override that exemption. These external factors, the court held, broke the chain of causation between MCO's omissions and the crew's exposure to risk.
On Element 4, Scotting DCJ was not satisfied beyond reasonable doubt that MCO's omissions were a substantial and significant cause of the blast crew being exposed to a risk of death or serious injury. Because the prosecution failed to prove Element 4, the overall charge was not established, and MCO was found not guilty.
Orders Made
- The prosecution is to pay the defendant's costs of the proceedings as agreed or assessed pursuant to section 257G of the Criminal Procedure Act 1986.
- The Second Amended Summons is dismissed.
- Exhibits are returned.
Key Takeaways
- The District Court found that a clear written safety procedure prohibiting "all personnel" from entering an exclusion zone was not itself sufficient to establish that the defendant caused non-compliance, where external training materials and industry standards introduced an ambiguous exemption that the defendant did not create.
- Causation in WHS prosecutions requires proof beyond reasonable doubt that the defendant's breach was a substantial and significant cause of the exposure to risk. Intervening factors attributable to third parties can break that causal link.
- A poorly worded exemption in an external industry standard (Appendix L of AS 2187) and a training provider's failure to clarify that site-specific procedures could override that exemption were treated as intervening causes capable of defeating the prosecution's case.
- The court confirmed that a shotfirer's status as an authorised person does not eliminate the physical risks posed by flyrock and fumes; the characterisation of someone as "authorised" does not reduce the objective hazard.
- In dismissing the summons, the court noted that the matter was appropriate for the retention of senior and junior counsel by both parties, given its length and complexity, providing a basis for the costs order in the defendant's favour.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Work Health and Safety (Mines and Petroleum Sites) Regulation 2014 (NSW)
- Criminal Procedure Act 1986 (NSW), s 257G
- Explosives Act 2003 (NSW)
- Explosives Regulation 2013 (NSW)
- Occupational Health and Safety Act 2000 (NSW)
Cases:
- Baiada Poultry Pty Ltd v R (2012) 246 CLR 92
- Kirk v Industrial Court of New South Wales (2010) 239 CLR 531
- Bulga Underground Operations v Nash [2016] NSWCCA 37
- Grasso Consulting Engineers Pty Ltd v SafeWork NSW [2021] NSWCCA 288
- Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676
- Director of Public Prosecutions v JCS Fabrications Pty Ltd and JMAL Group Pty Ltd [2019] VSCA 50
- Fox v Percy (2003) 214 CLR 118
- Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209
- Day v Perisher Blue Pty Ltd (2005) 62 NSWLR 731
- Armargas Ltd v Mundogas SA (The Ocean Frost) [1985] 1 Lloyd's Rep 1
- Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560