Inspector Orr v Perilya Broken Hill Limited [2018] NSWDC 28

District Court New South Wales

Medium Neutral Citation: Inspector Orr v Perilya Broken Hill Limited [2018] NSWDC 28 Hearing dates: 4/7/17 - 7/717; 10/7/17 – 14/7/17; 17/7/17 – 21/7/17; 26/7/17 – 27/7/17; 31/7/17 – 4/8/17; 7/8/17 – 11/8/17; 14/8/17 – 15/8/17; 17/8/17 -18/8/17; 21/8/17-22/8/17; 27/9/17 – 29/9/17; 20/11/17-23/11/17 Decision date: 28 February 2018 Jurisdiction: Criminal Before: Kearns DCJ Decision: The elements of the offence have been proved beyond reasonable doubt against Perilya Broken Hill Limited in respect of particulars 12 (e), (f), (g); 13 (d), (f), (g); 14 (b); and 15 (a), (b), (c), (d), (e) of the Second Amended Summons. I find Perilya Broken Hill Limited guilty of the offence. I will list the matter for sentence on a date convenient to the parties. Catchwords: CRIMINAL LAW – PROSECUTION – WORK HEALTH AND SAFETY Duty of person conducting business or undertaking – duty in the case of careless or disobedient worker – whether there was a risk – whether risk foreseeable – whether duty to minimise risk arose where it could be eliminated – whether a risk analysis should have been undertaken and form thereof Fall down mine shaft – fall from bucket of a loader when working at height – whether breach of duty where worker was in bucket of loader contrary to employer's policy Breach of duty – whether system for use of personal protective equipment (PPE) was appropriate – whether correct PPE used - whether PPE used was defective – whether JSA defective – appropriate procedures and content for JSA – whether defendant's policy and prohibiting use of bucket of loader should have been in writing - whether defendant provided adequate information, training and instruction – whether defendant provided adequate supervision Mistake of fact – defendant's belief that no one would use the bucket of the loader as a work platform and that nobody was required to work at heights – whether mistake of fact available to defendant – whether defendant's belief reasonably held Legislation Cited: Work Health and Safety Act 2011 (NSW); Mine Health and Safety Regulation 2007; Occupational Health and Safety Act 1983 Cases Cited: WorkCover Authority of NSW v Kellogg Aust Pty Ltd [1999] NSWIRComm 453; WorkCover Authority of NSW (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248; WorkCover Authority of NSW (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd (2001) 105 IR 81 Genner Constructions Pty Ltd v WorkCover Authority of NSW (Inspector Guillarte) (2001) IR 57; Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37; Proudman v Dayman (1941) 67 CLR 536; He Kaw Teh v The Queen (1985) 157 CLR 523; Safe Work NSW v Wollongong Glass P/L [2016] NSWDC58; WorkCover Authority of NSW (Inspector Woodington) v Australand Holdings Limited and Sassall Glass & Joinery Pty Limited [2008] NSWIRComm 153 Category: Principal judgment Parties: NSW Department of Planning and Environment – Stephen James Orr, Investigator, Inspector and Manager, Regulatory Audit and Investigation (Prosecutor) Perilya Broken Hill Limited (Defendant) Representation: Counsel: Mr J Agius SC with Mr C Magee appeared for the Prosecutor; Mr B Hodgkinson SC with Mr M Shume appeared for the Defendant