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January 2020

Failure to provide support person results in hefty fine

Bulga Underground Operations Pty Ltd v Nash (2016)

Glencore is an international mining company. In 2010, a worker at Glencore’s Bulga mine in NSW was crushed beneath a moving roof support.

At first instance, the company was fined $50,000 for failing to employ a person known as a support advance controller who could activate an emergency stop button if the operator of the moving roof support became incapacitated. Glencore appealed the decision.

Judgment

The Court of Appeal had to consider some key legal questions, including whether a failure to take a step that only minimised the risk of injury, but did not completely eliminate it, could still be a breach of the law.

In this case, the company argued that had it employed a support advance controller, the risk of injury would still have existed and therefore would not have breached the law. The Court disagreed and held that a failure to take necessary steps would still be a breach, even if it did not completely eliminate the risk of injury.

The Court also rejected the argument by the company that there was no causal connection between employing a support advance controller and the risk of injury. The Court said that the prosecutor only needed to establish that the particular failing was a ‘substantial and significant cause’ of the risk.

In upholding the appeal for the prosecutor, the Court increased the original fine to $100,000.

Lessons

Employers need to be mindful that the law requires them to implement all reasonably practicable steps to ensure safety, even if a particular step does not completely eliminate the risk. Courts will take a common sense approach to this consideration, i.e. if a failure to take a step would have been a substantial and significant cause of the risk, there would be a breach of the law if the step was not implemented.

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