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January 2020

Two employers held liable for fatal accident

Two employers held liable for fatal accident

Nash v Glennies Creek Coal Management Pty Ltd; Nash v Integra Coal Operations Pty Ltd (No 9) (2015)

Facts

On 4 April 2009, Daniel Hill was killed while working at Longwall Panel 9, in the Integra Coal Underground Mine at Glennies Creek.

The accident occurred when a shear shaft was being replaced by workers at the mine. The process that was followed by the workers did not take into account a procedure that required the coal shearer to be disconnected from any power source while the shaft was being replaced. Because of this, the shaft ejected from the coal shearer, striking and subsequently killing Mr Hill.

Judgment

Glennies Creek Coal Management Pty Ltd (Glennies Creek) and Integra Coal Operations Pty Ltd (Integra Coal) were both charged under section 8 of the Occupational Health and Safety Act 2000 (NSW) (OHS Act).

Glennies Creek, as the corporate entity that employed Mr Hill, was charged with failing to ensure the health, safety and welfare of its employees at work. Integra Coal, as the corporate entity that ran the mining operation, was charged with failing to ensure that people other than its employees were not exposed to health and safety risks. The two companies were related entities, as they had common shareholders.

Judge Schmidt J held that both employers were liable for the fatal accident as “the

Shear Shaft Replacement SWP [safe work procedure] should unquestionably have been amended to include a reference to the damaging energy control procedure when it was introduced”.

The Court ordered that Glennies Creek and Integra Coal pay a penalty of $204,000 and $195,500, respectively, as well as the prosecutor’s costs. In imposing the fines, Judge Schmidt J said that the risks had been “plainly foreseen” by the employers, who had both failed to update the documented safety system.

The employers were not indifferent to the safety of their workers, but rather held to have inadequate safety practices in place. The deficiency in the documented system led to a failure to warn workers that there was a risk of fatality if the plant was not properly isolated. As a consequence of these failures, both employers were held liable for the fatal accident.

Despite the two defendants acting as one in attempting to meet workplace health and safety obligations, they were both found to be liable for their conduct. This was further reinforced by the two employers having common membership, i.e. the same shareholders.

The defendants’ argument that one party’s failure to meet its legal obligations can be reduced by another corporate defendant’s comparable conduct was rejected, as it was inconsistent with the purpose of the legislation, i.e. that a person conducting a business or undertaking take all reasonably practicable steps to ensure health and safety.

Lessons

The lesson that emerges from the tragic death of Mr Hill and the consequent

punishments imposed on the employers is the need to continually maintain and update safe work procedures so that workplace health and safety is not jeopardised.

The Court also indicated that two corporate entities who are equally liable for a breach of the OHS Act are not to be afforded any discount on sentencing as a result of a joint decision between two corporations with common shareholders to devise, implement and operate equivalent safety systems.

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