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February 2020

Employer found to have adopted a system of work that exposed a worker to significant risk

Employer found to have adopted a system of work that exposed a worker to significant risk

Case

WorkSafe Victoria v Mandalay Resources Costerfield Operations Pty Ltd (2019)

Mandalay Resources Costerfield Operations Pty Ltd (company) was the owner and operator of the Augusta gold-antimony mine in Costerfield.

The company instructed an employee on how a new ground support to the roof and walls of a tunnel at the mine should be installed. The employee worked alone in the mine to install the new ground support as per the instructions, which involved removing the nuts and plates from the leading edge of an existing mesh on the roof so a new, overlapping panel could be installed. After removing the nuts and plates, a 2-tonne rock fell from the part of the roof where he had just removed the nuts, which was just 1.5 metres away from him. The employee was not physically injured but suffered a psychological injury that meant he was no longer able to work underground, although he continued to work for the company.

Judgment

The company pleaded guilty to failing to comply with its duty under section 21 of the Occupational Health and Safety Act 2004 (Act) to provide and maintain a working environment that is safe and without risks to health.

The company acknowledged the system of work the employee was instructed to perform increased the risk of falling earth, thereby increasing the risk of death or serious injury to the employee, or to anyone else working in the vicinity.

The Bendigo Magistrates’ Court held it would have been reasonably practicable for the company to provide and maintain a system of work that reduced the risk of falling earth by providing an industry-accepted standard of work, such as installing extra bolts before the nuts and bolts were removed from a panel’s leading edge.

The Court accepted that:

  • the system of work was a departure from industry practice;
  • the rock was of poor quality;
  • the ground support was of very high quality and worked effectively; and
  • the likelihood of the risk materialising was at the low end in the circumstances.

The Court found the impact on the employee from the incident to be significant, and noted that the company had been fined for another occupational health and safety offence in 2014 concerning unsafe plant. The company was convicted and sentenced to pay a fine of $110,000.

Lessons

Employers should keep in mind that they may be liable for not providing and maintaining a working environment that is safe and without risks to health, even if the incident involves no physical injury. Employers must ensure that a safe system of work is implemented that is of industry-accepted standard to avoid or minimise any risk.

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