Orr v LakeCoal Pty Ltd (In Liquidation) (No. 2) [2019] NSWDC 360

District Court New South Wales

Medium Neutral Citation: Orr v LakeCoal Pty Ltd (In Liquidation) (No. 2) [2019] NSWDC 360 Hearing dates: 3, 4 June 2019 Date of orders: 26 July 2019 Decision date: 26 July 2019 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (1) The elements of the offence set out in the Amended Summons filed on 3 June 2019 have been proved beyond a reasonable doubt. (2) The defendant is guilty of the offence. (3) The matter will be listed for sentence on a date suitable to the prosecutor. (4) Direct the prosecutor to notify the liquidator of the defendant of these orders and to supply to the liquidator a copy of this judgment. Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of person undertaking business – risk of death or serious injury

PROCEDURAL – elements of offence – whether defendant owed a health and safety duty – whether there was a failure to comply with that duty – whether that failure exposed workers to the risk of death or serious injury

PROCEDURAL – reasonable practicability – likelihood of the risk – knowledge of the risk – what the defendant ought reasonably to have known

OTHER – vehicles in underground coal mine made contact with roof of roadway, causing fracture of W-strap – broken W-Strap made contact with canopy of vehicle, entering operator cabin space causing serious injury to worker – need for audit of roadways to assess operational roof clearance of vehicle over road surfaces – need to train workers to report damage to roofs or W-Straps Legislation Cited: Coal Mine Health and Safety Regulation 2006 (NSW) Corporations Act 2001 (Cth) Criminal Procedure Act 1986 Evidence Act 1995 (NSW) Work Health and Safety (Mines and Petroleum Sites) Act 2013 (NSW) Work Health and Safety (Mines) Act 2013 (NSW) Work Health and Safety (Mines) Regulation 2014 (NSW) Work Health and Safety Act 2011 (NSW) Work Health and Safety Regulation 2011 (NSW) Cases Cited: Baiada Poultry Pty Ltd v R (2012) 246 CLR 92 Bulga Underground Operations v Nash [2016] NSWCCA 37 Carrington Slipways Pty Limited v Callaghan (1985) 11 IR 467 Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267 Holmes v RE Spence & Co Pty Ltd (1992) 5 VIR 119 Houghton v Arms (2006) 225 CLR 553 Hunter Quarries Pty Limited v Morrison; Badior v Morrison [2017] NSWCCA 326 Inspector Ching v Bros Bins Systems Pty Limited [2004] NSWIRComm 197 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 Laing O'Rourke (BMC) Pty Ltd v Kinwin [2011] WASCA 117 Orr v LakeCoal Pty Limited [2019] NSWDC 178 R v Board of Trustees of the Science Museum [1993] 1 WLR 1171 Royall v The Queen (1991) 172 CLR 378 SafeWork (NSW) v Tamex Transport Services P/L t/as Tamex [2016] NSWDC 295 Simpson Design Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316 Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304 Smith v Broken Hill Pty Ltd (1957) 97 CLR 337 Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015 Thiess Pty Limited v Industrial Court of New South Wales [2010] 78 NSWLR 94 Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266 Walplan Pty Limited v Wallace (1985) 8 FCR 27 WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453 WorkCover Authority of NSW (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 WorkCover Authority of NSW v Atco Controls Pty Limited (1998) 82 IR 80 WorkCover Authority of NSW v Kirk Group Holdings Pty Limited [2004] 135 IR 166 Texts Cited: Ground Engineering, Principles and Practices for Underground Coal Mining Managing road and vehicle operating areas in underground coal mines - MDG-1009 Mineral Industry Safety and Health Risk Management Guideline - MDG-1010 Mobile Transportable Equipment for Use in Mines – MDG-15 Category: Principal judgment Parties: Stephen James Orr (Prosecutor) LakeCoal Pty Ltd (In Liquidation) (Defendant) Representation: Counsel: K Nomchong SC with E Kerkyasharian (Prosecutor)