judgment of the Court or to be used in any later consideration of the Court's judgment. Judgment Summary ... shearer, in front of the last advanced roof support.
Judgment Summary Supreme Court New South Wales Court of Appeal Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 Bathurst CJ, Hidden J and Davies J
The Court of Criminal Appeal has dismissed an appeal from the District Court convicting the appellant, Bulga Underground Operations Pty Ltd (Bulga) of a charge that it failed to ensure the health, safety and welfare of its employee, Steven McNab, contrary to s 8 of the Occupational Health and Safety Act 2000 (NSW) (the Act). Bulga was the operator and controller of an underground longwall coal mine, an operation in which a block of coal was mined in shears while allowing the roof behind the shearer to collapse in a controlled manner. The roof collapse was controlled by roof supports which automatically advanced towards the coalface. On 23 April 2010, Mr McNab was working from a position behind the shearer, in front of the last advanced roof support. At one point, he was found injured on the floor, crushed beneath the base of a roof support. In the District Court, Bulga was convicted on the basis that it failed to employ an observer to monitor the advancing roof supports and watch the shearer operators, so that if one of them became incapacitated, the observer could activate an emergency stop button. The trial judge imposed a penalty of $50,000 and awarded the prosecutor 20% of her costs. The Attorney General and prosecutor appealed against the penalty and costs orders. The main issues on the conviction appeal were: first, whether an employer’s failure to take steps which would minimise or manage risk, but not eliminate it, could constitute a breach of duty under the Act; second, whether the employment of an observer would have actually avoided the risk and third, whether there was a causal link between Bulga’s failure to employ an observer and Mr McNab being exposed to the risk of injury. The Attorney General and prosecutor also argued that the trial judge should have found that Bulga’s failure to install tilt switches, which could detect if an operator fell over, was an alternative basis for breach of duty under the Act. In regard to the first issue, the Court found that a failure to take steps which are necessary but insufficient to ensure safety, or which limit the risk to an employee without entirely eliminating it, can constitute a breach of the Act. In regard to the second issue, the Court held that the duty under the Act can be breached by failure to take action to prevent a risk that already exists from crystallising. Therefore, the employment of an observer prevented an employee from being crushed by moving roof supports, even though that risk existed at the time an employee fell over. In regard to the final issue, the Court found that the question of causation was to be determined by asking whether Bulga’s omission was a substantial and significant cause of This summary has been prepared for general information only. It is not intended to be a substitute for the judgment of the Court or to be used in any later consideration of the Court’s judgment.
the risk to the employee. As failure to appoint an observer increased the risk that a person who fell in the face of an advancing roof support would be crushed before his incapacity was observed, the causal relationship had been made out. Since the Court upheld the trial judge’s conviction on the basis of Bulga’s failure to employ an observer, it was unnecessary to decide whether the failure to install tilt switches also constituted a breach of the duty. On the penalty appeal, the Court allowed the appeal and increased the penalty to $100,000. The Court found that the trial judge had failed to take into account his own contrary findings on the objective seriousness of the offence and failed to give weight to matters of general deterrence where no exceptional circumstances were identified. Finally, the trial judge was found to have erred by taking into account remorse shown by Bulga where it had offered rehabilitation and reparation to Mr McNab but not accepted responsibility for its actions. On the costs appeal, the trial judge was found to have erred in the apportioning of costs on a number of bases. In the result, the prosecutor was awarded 50% of her costs in the court below.
This summary has been prepared for general information only. It is not intended to be a substitute for the judgment of the Court or to be used in any later consideration of the Court’s judgment.
