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

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

The defendant owed a health and safety duty to Mr Pollard and Mr Rowbotham and failed to comply with that duty in the proved particulars. The risks of falling from height, impact or crush injury, injury from movement of the loader, bucket, weight basket or weights, and use of defective or inappropriate PPE were foreseeable. The defendant's systems were inadequate because PPE and fall arrest systems were not properly inspected, stored, issued or controlled; the prohibition on using loader buckets as work platforms was not documented or adequately reinforced; information, training and instruction about work platforms, PPE and fall arrest systems were inadequate; refresher training in...

Jurisdiction
Australia
Judgment Date
28 February 2018
Procedural Posture
Criminal Prosecution for a Category 2 Work Health and Safety Offence Under S 32 of the Work Health and Safety Act 2011 (nsw) / Principal Judgment on Liability After Hearing; Defendant Pleaded Not Guilty; Sentence to Be Listed
Outcome
Perilya Broken Hill Limited found guilty of the offence.
Legal Topics
['duty of Person Conducting a Business or Undertaking' 'risk of Death or Serious Injury' 'reasonably Practicable Measures' 'fall From Height' 'personal Protective Equipment' 'fall Arrest Systems' 'job Safety Analysis' 'safe Systems of Work' 'information, Training, Instruction and Supervision' 'mistake of Fact']
['criminal Law' 'work Health and Safety' 'mining Safety'] ['duty of Person Conducting a Business or Undertaking' 'risk of Death or Serious Injury' 'reasonably Practicable Measures' 'fall From Height' 'personal Protective Equipment' 'fall Arrest Systems' 'job Safety Analysis' 'safe Systems of Work' 'information, Training, Instruction and Supervision' 'mistake of Fact']

Case Brief

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Procedural Posture

Criminal Prosecution for a Category 2 Work Health and Safety Offence Under S 32 of the Work Health and Safety Act 2011 (nsw) / Principal Judgment on Liability After Hearing; Defendant Pleaded Not Guilty; Sentence to Be Listed

Legal Issues

  1. 1 ['Whether Perilya Broken Hill Limited failed to comply with its health and safety duty to Mr Pollard and/or Mr Rowbotham under s 19(1) of the Work Health and Safety Act 2011 (NSW).' 'Whether any failure exposed Mr Pollard and/or Mr Rowbotham to a risk of death or serious injury within s 32 of the Work Health and Safety Act 2011 (NSW).' 'Whether the risks associated with working from the bucket of a loader in or near a haulage shaft were foreseen or foreseeable.' "Whether the defendant's measures concerning PPE, fall arrest systems, prohibition on use of loader buckets as work platforms, training, JSA processes and supervision were adequate." "Whether the defendant could rely on the workers' use of the loader bucket contrary to policy or on honest and reasonable mistake of fact."]

Ratio Decidendi

The defendant owed a health and safety duty to Mr Pollard and Mr Rowbotham and failed to comply with that duty in the proved particulars. The risks of falling from height, impact or crush injury, injury from movement of the loader, bucket, weight basket or weights, and use of defective or inappropriate PPE were foreseeable. The defendant's systems were inadequate because PPE and fall arrest systems were not properly inspected, stored, issued or controlled; the prohibition on using loader buckets as work platforms was not documented or adequately reinforced; information, training and instruction about work platforms, PPE and fall arrest systems were inadequate; refresher training in...

Court Disposition

Perilya Broken Hill Limited found guilty of the offence.

Orders

  • ['The elements of the offence were proved beyond reasonable doubt against Perilya Broken Hill Limited in respect of particulars 12(e), 12(f), 12(g), 13(d), 13(f), 13(g), 14(b), 15(a), 15(b), 15(c), 15(d) and 15(e) of the Second Amended Summons.' 'The matter will be listed for sentence on a date convenient to the...