Inspector Nash v Bulga Underground Operations Pty Ltd (re Newstead) [2015] NSWDC 6

District Court New South Wales

Medium Neutral Citation: Inspector Nash v Bulga Underground Operations Pty Ltd (re Newstead) [2015] NSWDC 6 Hearing dates: 11-14/02/2014, 17-21/02/2014, 24-28/02/2014, 03-06/03/2014, 05-09/05/2014, 09-12/09/2014, 15-19/09/2014, 22/09/2014, 04/11/2014, 19/11/2014 Decision date: 05 February 2015 Jurisdiction: Criminal Before: Kearns, DCJ Decision: I find the defendant is guilty of the offence charged and the defendant is accordingly convicted. Catchwords: OCCUPATIONAL HEALTH AND SAFETY – coal mine workplace accident – longwall mining - worker struck by falling slab of coal when changing picks on maingate cutter drum then within the longwall – foreseeability of slab of coal falling and worker or part of worker's body being exposed to falling slab – whether worker deliberately and consciously placed himself under unsupported roof knowing he should not do so – whether alternatively he was present under unsupported roof and his presence was aberrant behaviour that could not be predicted by the defendant – location of worker at the time the slab fell – high degree of risk of slab of coal falling - inspection of work site by mine deputy before work undertaken, but findings not communicated – whether any of the following were undertaken or ought to have been undertaken: secondary roof support; picks changed at maingate end; developing a TARP; inspection of roof strata support by a competent person; conducting a risk assessment; compliance with safe work practices and with strata failure management plan; ensuring employees conducted a pre-task risk assessment; ensuring the worker was provided with adequate information and training in and providing copies of safe work procedures to the worker; instructing worker not to access work area until secondary support was installed; provision of supervision – whether alternate steps would have eliminated or merely lessened the risk of injury – whether s 8 required proof that alternative step would have eliminated the risk of injury Legislation Cited: Occupational Health and Safety Act 2000; Evidence Act 1995; Coal Mine Health and Safety Act 2002 Cases Cited: Thiess Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 252; Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; Inspector Nash v Bulga Underground Operations Pty Ltd [2014] NSWDC 186; Simpson Design Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316; Dunlop Rubber Australia Limited v Buckley (1952) 87 CLR 313; Cahill v State of New South Wales (Department of Education and Training and Department of Juvenile Justice) (No.2) [2008] NSWIRComm 246 [772]; WorkCover (Inspector Battye) v Patrick Container Ports Pty Ltd [2014] NSWDC 171 Category: Principal judgment Parties: Jennifer Ann Nash, Director, Mine Safety Performance, NSW Department of Trade and Investment, Regional Infrastructure and Services (Prosecutor) Bulga Underground Operations Pty Limited (Defendant) Representation: Counsel: Mr W Roser SC with Mr C Magee, instructed by I.V. Knight, Crown Solicitor for NSW, appeared for the Prosecutor; Mr D Buchanan SC with Mr M Shume, instructed by Sparke Helmore, appeared for the Defendant File Number(s): 2012/244559