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

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

The defendant was a PCBU and statutory mine operator that owed workers including Mr Pedersen a duty under s 19(1) of the Work Health and Safety Act 2011 (NSW). The hazard of underground mobile plant striking W-Straps and other roof infrastructure, causing damaged W-Straps to enter the roadway space and expose workers to serious injury or death, was foreseeable and known to the defendant through its WRACs, guidelines, prior roadway and W-Strap damage, floor heave and vehicle clearance issues. It was reasonably practicable to minimise the risk by developing and implementing a PMHMP and/or roadway height audit with exclusion and remediation measures, and by training and instructing workers...

Jurisdiction
Australia
Judgment Date
26 July 2019
Procedural Posture
Criminal Prosecution for Category 2 Offence Under S 32 of the Work Health and Safety Act 2011 (nsw) / Undefended Trial on Liability; Judgment Finding Offence Proved and Listing Matter for Sentence
Outcome
The defendant was found guilty of the offence charged; the matter was to be listed for sentence.
Legal Topics
['person Conducting a Business or Undertaking' 'primary Duty of Care' 'reasonably Practicable Measures' 'exposure to Risk of Death or Serious Injury' 'underground Coal Mine Roadways and Mobile Plant' 'training and Instruction' 'safe Systems of Work']
['criminal Law' 'work Health and Safety' 'mining Safety' 'corporate Liability'] ['person Conducting a Business or Undertaking' 'primary Duty of Care' 'reasonably Practicable Measures' 'exposure to Risk of Death or Serious Injury' 'underground Coal Mine Roadways and Mobile Plant' 'training and Instruction' 'safe Systems of Work']

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Procedural Posture

Criminal Prosecution for Category 2 Offence Under S 32 of the Work Health and Safety Act 2011 (nsw) / Undefended Trial on Liability; Judgment Finding Offence Proved and Listing Matter for Sentence

Legal Issues

  1. 1 ['Whether the defendant was conducting a business or undertaking at Mannering Colliery and owed a health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) to workers including Mr Benjamin Pedersen.' 'Whether the defendant failed to comply with that duty by failing to develop and implement a safe system of work, including a PMHMP and/or roadway audit and remediation program, addressing hazards from underground vehicles striking roof infrastructure including W-Straps.' 'Whether the defendant failed to provide training and instruction about what workers were to do if a vehicle impacted roof infrastructure in an underground roadway.' 'Whether those failures exposed workers, including Mr Pedersen, to a risk of death or serious injury.' 'Whether the pleaded measures were reasonably practicable within the meaning of s 18 of the Work Health and Safety Act 2011 (NSW).']

Ratio Decidendi

The defendant was a PCBU and statutory mine operator that owed workers including Mr Pedersen a duty under s 19(1) of the Work Health and Safety Act 2011 (NSW). The hazard of underground mobile plant striking W-Straps and other roof infrastructure, causing damaged W-Straps to enter the roadway space and expose workers to serious injury or death, was foreseeable and known to the defendant through its WRACs, guidelines, prior roadway and W-Strap damage, floor heave and vehicle clearance issues. It was reasonably practicable to minimise the risk by developing and implementing a PMHMP and/or roadway height audit with exclusion and remediation measures, and by training and instructing workers...

Court Disposition

The defendant was found guilty of the offence charged; the matter was to be listed for sentence.

Orders

  • ['The elements of the offence set out in the Amended Summons filed on 3 June 2019 have been proved beyond a reasonable doubt.' 'The defendant is guilty of the offence.' 'The matter will be listed for sentence on a date suitable to the prosecutor.' 'Direct the prosecutor to notify the liquidator of the defendant of...