Nash v Daracon Mining Pty Ltd [2015] NSWIC 14

Industrial Court New South Wales

Medium Neutral Citation: Nash v Daracon Mining Pty Ltd [2015] NSWIC 14 Hearing dates: 8 September 2015 Date of orders: 19 October 2015 Decision date: 19 October 2015 Before: Walton J, President Decision: In all the circumstances, and for the reasons given, the Court makes the following orders:

(1) The defendant is convicted of the offence as charged;

(2) The defendant is fined the sum of $80,000 with a moiety to the prosecutor;

(3) The defendant shall pay the costs of the prosecutor as agreed or, in default, as assessed for these proceedings. Catchwords: OCCUPATIONAL HEALTH AND SAFETY — prosecution under s 8(2) of the Occupational Health and Safety Act 2000 — plea of guilty – sentencing — fatal incident – several entities involved in operating a mine – defendant engaged in removal of reject material from mine site for disposal — reject material loaded into trucks by opening hydraulic gates to release it from base of storage Bin – loading cycle involved programmable electronic control program to facilitate correct positioning of truck when load released – worker killed when 10 tonnes of reject material was released onto cabin of truck — agreed statement of facts – proceedings delayed – coronial inquiry – doubt as to the authority of the prosecutor – victim impact statement received and acknowledged – relevant principles — objective features – objective seriousness of offence – defendant failed to protect contracted drivers against risk of being injured or killed by material falling onto them through the roof of the cabins of their trucks during a loading cycle — failure to ensure that contract drivers adopted a procedure by which it was not possible to activate the control program of the Bin so as to release reject material from the Bin when the cabin of a truck and dog combination was positioned beneath the Bin gates - defendant failed to ensure that the routine inspection and maintenance of the Bin included routine inspection and cleaning of the positioning sensors – measures could have been taken to obviate risk — defendant should have required a functional safety assessment of the possible effects of change to using truck and dog combinations with the Bin – defendant should have ensured work method adopted by contract drivers prevented cabin of trucks being located beneath the Bin when Bin gates were permitted to open – defendant should have ensured electronic sensors were inspected and cleaned as agreed – aggravating factors — fatality manifests the seriousness of the risk - risk foreseeable – simple remedial measures available - maximum penalty – general deterrence - continued risk as operating in dangerous industry - specific deterrence – mitigating factors – safety system was in place – risk not known or actually foreseen by defendant - risk partially outside the control or influence of the defendant – defendant was informed system was 'failsafe' – inappropriate to undertake process of apportionment or assess culpability of other entities – subjective features – steps taken since the incident - assistance to family of deceased worker - counselling assistance to injured workers - expression of contrition and remorse - cooperation with investigation – discount for plea - first offence - good industrial character – impact of delay — penalty imposed — moiety Legislation Cited: Coal Mine Health and Safety Act 2002 Coal Mine Health and Safety Amendment (Validation) Act 2013 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Industrial Relations Act 1996 Occupational Health and Safety Act 2000 Cases Cited: Alcatel Australia Ltd v WorkCover Authority (NSW) (1996) 70 IR 99 Axer Pty Ltd v Environmental Protection Authority (unreported, Court of Criminal Appeal, Matter No. 60763 of 1992, 22 November 1993) Camilleri's Stock Feeds Pty Ltd v Environmental Protection Authority (1993) 32 NSWLR 682 Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 Carrington Slipways Pty Ltd v Callaghan (1985) IR 467 Corinthian Industries (Sydney) Pty Ltd v WorkCover Authority of New South Wales (Inspector Wilson) [2000] NSWIRComm 46; (2000) 99 IR 159 Department of Mineral Resources (NSW) v Kembla Coal & Coke Pty Ltd (1999) 92 IR 8 DPP v Amcor Packaging Pty Ltd (2005) 11 VR 557 El-Afchal v R [2015] NSWCCA 112 Inspector Christensen v Lend Lease Engineering Pty Limited (formerly Abigroup Contractors Pty Limited) [2014] NSWIRComm 42 Inspector Dall v Daracon Contracting Pty Ltd [2005] NSWIRComm 149 Inspector Dall v Ullrich [2012] NSWIRComm 87 Inspector Estreich v Hadfield [2012] NSWIRComm 88 Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92; (2009) 186 IR 125 Inspector Lancaster v M L Colturi Sawmills Pty Ltd [2011] NSWIRComm 47 Inspector Wade V Goldspring Earthmoving Pty Ltd [2011] NSWIRComm 106 Inspector Wade v Sid Fogg & Sons Pty Ltd [2009] NSWIRComm 162 Markarian v The Queen (2006) 228 CLR 357 Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416; (2003)130 IR 364 Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117 Nash v Glennies Creek Coal Management Pty Ltd [2013] NSWIRComm 60 Nash v Glennies Creek Coal Management Pty Ltd (No 2) [2013] NSWIRComm 67 R v Fahda [1999] NSWCCA 267 R v Thomson; R v Houlton (2000) 49 NSWLR 383 R v Todd (1982) 2 NSWLR 517 WorkCover Authority (NSW) v ATCO Controls Pty Ltd (1998) 82 IR 80 WorkCover Authority (NSW) v BHP Company Ltd (1998) 83 IR 427 WorkCover Authority (NSW) v Coleman (2004) 138 IR 21 Workcover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited (2000) 95 IR 383 WorkCover v Vaughan Constructions Pty Ltd [2005] NSWIRComm 254 Category: Sentence Parties: Jennifer Ann Nash (Prosecutor) Daracon Mining Pty Ltd (Defendant) Representation: Counsel: J V Aguis SC and B Clark (Prosecutor) M P Cahill (Defendant)