Orr v Burgess Earthmoving Pty Ltd [2021] NSWDC 583

Orr v Burgess Earthmoving Pty Ltd [2021] NSWDC 583

Burgess Earthmoving Pty Ltd, as the owner and operator of the Albury Quarry, failed to comply with its work health and safety duties under the Work Health and Safety Act 2011 (NSW) by not taking reasonably practicable measures to eliminate or minimise the risk of death or serious injury from blasting operations, thereby exposing both workers and members of the public to such risks. The failures included not maintaining a safe system of work, lack of adequate training and supervision, and allowing unqualified supervision of hazardous activities. Given the foreseeability and seriousness of the risk, availability of simple preventative measures, and facts that substantial steps were taken...

Jurisdiction
Australia
Judgment Date
29 October 2021
Procedural Posture
Criminal / Sentence
Outcome
Conviction; fines imposed; costs awarded to prosecutor.
Legal Topics
['workplace Safety' 'sentencing' 'duty of Care' 'risk Management' 'prosecution of Corporation' 'mitigating and Aggravating Factors' 'deterrence' 'costs' 'totality Principle']
['criminal Law' 'work Health and Safety'] ['workplace Safety' 'sentencing' 'duty of Care' 'risk Management' 'prosecution of Corporation' 'mitigating and Aggravating Factors' 'deterrence' 'costs' 'totality Principle']

Case Brief

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Procedural Posture

Criminal / Sentence

Legal Issues

  1. 1 ['Whether Burgess Earthmoving Pty Ltd failed to comply with its work health and safety duties under s 19(1) and s 19(2) of the Work Health and Safety Act 2011 (NSW) and exposed persons to risk of death or serious injury contrary to s 32 of the Act.' 'What is the appropriate penalty, having regard to the objective seriousness of the offence, mitigating factors, aggravating factors, deterrence, and totality?']

Ratio Decidendi

Burgess Earthmoving Pty Ltd, as the owner and operator of the Albury Quarry, failed to comply with its work health and safety duties under the Work Health and Safety Act 2011 (NSW) by not taking reasonably practicable measures to eliminate or minimise the risk of death or serious injury from blasting operations, thereby exposing both workers and members of the public to such risks. The failures included not maintaining a safe system of work, lack of adequate training and supervision, and allowing unqualified supervision of hazardous activities. Given the foreseeability and seriousness of the risk, availability of simple preventative measures, and facts that substantial steps were taken...

Court Disposition

Conviction; fines imposed; costs awarded to prosecutor.

Orders

  • ['Burgess Earthmoving Pty Ltd is convicted under s 19(2) and s 19(1) of the Work Health and Safety Act 2011 (NSW).' 'Order to pay a fine of $135,000 for the s 19(2) offence (proceeding 2020/254132), with 50% to be paid to the prosecutor.' 'Order to pay a fine of $45,000 for the s 19(1) offence (proceeding...