Rodney Dale Morrison v Coal Operations Australia Limited [2004] NSWIRComm 239

Rodney Dale Morrison v Coal Operations Australia Limited [2004] NSWIRComm 239

The Commission found that s33(2) only provides a defence to acts expressly permitted under the associated legislation and does not exclude liability for other failures in the overall system of work. The respondent failed to provide or maintain safe systems of work for roof support and the assessment of roof stability, as the systems were not sufficiently prescriptive in identifying and responding to unstable roof conditions, and did not mandate cessation of work under unsupported roof when such conditions existed. The s53 defences were not made out, as it was reasonably practicable to implement safer practices. The offences were proven and the acquittals were set aside.

Jurisdiction
Australia
Judgment Date
10 November 2004
Procedural Posture
Appeal / Judgment on Appeal From Acquittal at First Instance
Outcome
appeal upheld and acquittal set aside; offences proven; orders made for relisting to finalise proceedings
Legal Topics
['systems of Work' 'roof Support in Mines' 'mine Safety Regulations' 'section 15(1) Occupational Health and Safety Act' 'section 33(2) Occupational Health and Safety Act' 'section 53 Defences']
['industrial Law' 'occupational Health and Safety'] ['systems of Work' 'roof Support in Mines' 'mine Safety Regulations' 'section 15(1) Occupational Health and Safety Act' 'section 33(2) Occupational Health and Safety Act' 'section 53 Defences']

Case Brief

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Procedural Posture

Appeal / Judgment on Appeal From Acquittal at First Instance

Legal Issues

  1. 1 ['Proper construction and ambit of s33(2) of the Occupational Health and Safety Act 1983' 'Whether failures in the system of work for roof support and roof assessment constituted breaches of s15(1) of the Act' 'Whether the respondent could rely on s33(2) as a defence' 'Whether defences under s53(a) or (b) of the Act were made out']

Ratio Decidendi

The Commission found that s33(2) only provides a defence to acts expressly permitted under the associated legislation and does not exclude liability for other failures in the overall system of work. The respondent failed to provide or maintain safe systems of work for roof support and the assessment of roof stability, as the systems were not sufficiently prescriptive in identifying and responding to unstable roof conditions, and did not mandate cessation of work under unsupported roof when such conditions existed. The s53 defences were not made out, as it was reasonably practicable to implement safer practices. The offences were proven and the acquittals were set aside.

Court Disposition

appeal upheld and acquittal set aside; offences proven; orders made for relisting to finalise proceedings

Orders

  • ['Leave to appeal granted' 'Appeal upheld' 'Decision of Peterson J acquitting the respondent is set aside' 'The offences charged against the respondent are found proven' 'Proceedings to be listed before the Full Bench for finalisation directions']