AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 21 July 2023

Andrew John McColm v Tritton Resources Pty Ltd

[2023] NSWDC 270

Other
CRIMINAL LAW PROSECUTION WORK HEALTH AND SAFETY DUTY OF PERSONS UNDERTAKING BUSINESS RISK OF DEATH OR SERIOUS INJURY

Citation: McColm v Tritton Resources Pty Ltd [2023] NSWDC 270
Court: District Court of New South Wales
Date: 21 July 2023
Judge: Strathdee DCJ

Background

The defendant, Tritton Resources Pty Ltd, operated the Tritton Copper Mine near Hermidale in western New South Wales, an underground mine running 24 hours a day. The mine used haul trucks to transport extracted material from underground workings to the surface via a single-lane tunnel called the Main Decline. The defendant employed or engaged approximately 412 workers during the relevant period in June 2018.

On 15 June 2018, the defendant became aware of a hole in the exhaust flex pipe of one of its haul trucks, UTH16. Although a replacement part was ordered, the truck was not taken out of service. On 20 June 2018, a Sandvik representative advised the defendant's maintenance supervisor to remove UTH16 from service pending repair. The truck was nonetheless returned to service. The replacement part arrived on 22 June 2018 but was not fitted. On 23 June 2018, a fire occurred in the Main Decline involving UTH16.

The prosecutor, a government investigator authorised under the Work Health and Safety (Mines and Petroleum Sites) Act 2013 (NSW), charged the defendant with a Category 3 offence under s 33 of the Work Health and Safety Act 2011 (NSW). The charge alleged that the defendant failed to comply with its duty under s 19(1) of that Act to ensure, so far as reasonably practicable, the health and safety of workers while at work. The trial ran across multiple days from July to November 2022.

  • Whether the defendant failed to comply with its health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (NSW), contrary to s 33 of that Act.
  • Whether the prosecution established, beyond reasonable doubt, that a risk of fire existed by reason of the hole in the exhaust flex pipe of UTH16.
  • Whether a sufficient causal connection existed between the defendant's acts or omissions (continuing to operate UTH16 with the defective exhaust) and any risk to the health and safety of workers.
  • Whether the third element of the offence, that the defendant actually failed to comply with its duty, was proved to the requisite standard.

Decision

Strathdee DCJ found that the first two elements of the offence were not in dispute. The defendant was a person conducting a business or undertaking, and it owed a health and safety duty under s 19(1) of the WHS Act to the identified workers. The contest centred entirely on whether the defendant had failed to comply with that duty.

The court found that the prosecution had not proved the alleged risk to the requisite standard. The risk as pleaded in the Amended Summons was a risk of fire from the hole in the exhaust flex pipe. However, the prosecution did not assert that the fire that actually occurred on 23 June 2018 was caused by that hole, and no evidence was adduced at trial of any similar fire occurring as a result of an exhaust flex defect on any haul truck anywhere.

Strathdee DCJ found that the evidence raised a reasonable doubt about whether a risk of fire in fact arose from the defect. The court observed that holes in exhaust flex hoses were a common defect in trucks of this type, yet not one instance of a fire attributable to such a defect had been put before the court, either at this mine or elsewhere. Without proof of the risk as charged, there was no causal link between the defendant's acts or omissions and any failure to ensure worker health and safety.

The Amended Summons was ordered to be dismissed with costs. However, the court declined to enter final orders immediately, noting that the prosecution should be given the opportunity to consider an application under s 5AE of the Criminal Appeal Act 1912 (NSW) before those orders were formalised.

Orders Made

  • The prosecution did not prove all elements of the offence beyond reasonable doubt.
  • Final orders were not entered immediately, to allow the prosecution to consider an application under s 5AE of the Criminal Appeal Act 1912 (NSW).
  • The matter was listed for directions on 21 August 2023 to determine the appropriate course.

Key Takeaways

  • A Category 3 WHS offence under s 33 of the Work Health and Safety Act 2011 (NSW) requires proof beyond reasonable doubt of all three elements: that the defendant had a health and safety duty, that the duty was owed to the relevant workers, and that the defendant failed to comply with that duty.
  • Where a prosecutor frames the charge around a specific risk, proof of that precise risk is essential. Failing to establish the alleged risk beyond reasonable doubt will be fatal to the charge, even if there is clear evidence of a workplace defect and an actual incident.
  • No causal link between an employer's acts or omissions and a failure to ensure worker safety can be established if the underlying risk alleged in the charge is not itself proved.
  • The absence of any prior instance of the alleged hazard causing the alleged type of harm, across an entire industry, was a significant evidentiary factor in raising reasonable doubt about whether the risk existed at all.
  • The District Court noted the distinction between civil and criminal standards: the purpose of the inquiry is to attribute legal responsibility in a criminal matter, and proof must meet the criminal standard throughout.

Legislation and Cases Referenced

Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19(1), 33, 155, 230
- Work Health and Safety Regulation 2011 (NSW)
- Work Health and Safety (Mines) Act 2013 (NSW)
- Work Health and Safety (Mines) Regulation 2014 (NSW)
- Work Health and Safety (Mines and Petroleum Sites) Act 2013 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5AE
- Evidence Act 1995 (NSW)
- Occupational Health and Safety Act 2000 (NSW)

Cases:
- Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) (2010) 239 CLR 531
- Baiada Poultry Pty Ltd v The Queen [2012] HCA 14
- Bulga Underground Operations v Nash [2016] NSWCCA 37
- Chen v R (2018) 97 NSWLR 915
- Howard Smith and Patrick Travel Pty Ltd v Comcare [2014] NSWCA 215
- ASIC v Rich [2005] NSWSC 152; (2005) 190 FLR 242
- Edwards v National Coal Board [1949] 1 KB 704
- Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of NSW (Inspector Ch'ng) [1999] NSWIRComm 341
- Director of Public Prosecutions v JCS Fabrications Pty Ltd and JMAL Group Pty Ltd [2019] VSCA 50
- Davies v The Queen [2019] VSCA 66
- Li v The Queen (2003) 139 A Crim R 281