Nash v Bulga Underground Operations Pty Ltd (re Newstead) (2015)

Facts

Bulga Underground Operations Pty Ltd (Bulga) is in the coal mining industry. In August 2010, Mr Newstead, a worker, was changing the picks on a shearer’s cutter drum when a slab of coal fell from the exposed roof above the drum and struck him, causing serious injury.

A supervisor had inspected the worksite earlier and said nothing about the risk of someone working under an unsupported roof.

Judgment

The District Court of NSW found Bulga guilty of breaching section 8(1) of the Occupational Health and Safety Act 2000 (NSW) for failing to:

• install secondary roof support;
• ensure that the pick changing was conducted under a supported roof;
• ensure that the pick changing was conducted at the maingate (i.e. the roadway in which the main panel conveyor is installed) or at a take-off chute under a supported roof;
• conduct a risk assessment;
• ensure that Mr Newstead was provided with adequate information training, and instruction;
• adequately supervise Mr Newstead and the longwall crew to ensure that the maingate cutter drums were positioned under a supported roof; and
• adequately supervise Mr Newstead and the longwall crew to ensure that a risk assessment was undertaken to identify hazards arising from the Huesker mesh (a strong mesh fabric).

The Court found that the following things were foreseeable:

• the risk of having an unsupported roof;
• the serious nature of the risk;
• the consequences arising from the risk; and
• the availability of means to minimise the risk.

In sentencing Bulga, the Court took into account that:

• Bulga had numerous safety systems, measures and documents in place covering all aspects of the pick changing process (although they did not expressly cover the additional hazards that arose with pick changing at the end of the longwall when Huesker mesh was deployed);
• Bulga acted immediately to put systems in place to mitigate further risk; and
• the considerable legal fees incurred by Bulga would act as a deterrent.

The high-risk nature of the mining industry meant that deterrence remained a factor in sentencing to show other employers that workers’ safety is paramount and that there are considerable consequences of breaching safety obligations.

However, Bulga’s contrition and remorse led the Court to impose a reduced penalty of $75,000, where the maximum penalty available was $825,000.

Lessons

You must ensure that you not only have well-established and sound safety management systems in place, but also that workers act in compliance with those systemes You can do this by ensuring that workers:

• are adequately trained in the systems; and
• receive appropriate work supervision.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.