48 Given these considerations and Mr Hansen's experience and expertise, the defendants submitted his mistaken removal of the staple lock between the incident fitting and the high pressure delivery manifold occurred in circumstances which were not readily foreseeable.
49 It is, indeed, difficult to understand how Mr Hansen came to remove the incident fitting. In the circumstances, one would not have expected an experienced person such as Mr Hansen to make such a tragic mistake. Protective measures against harm to persons in the workplace, however, cannot be based solely on an assessment of the likelihood or otherwise of whether a person will make a mistake or misjudgement. The question the Court must ask itself is that where there is a risk to health and safety present, was it reasonably foreseeable that a person might be exposed to that risk and, if so, did the employer do all that was reasonably practicable to avoid exposure to the risk? The test is to be applied having regard to the normal human frailties people may exhibit at work: that individuals, even highly skilled and experienced personnel, might become careless, they might be pre-occupied, they may act inadvertently, they may seek shortcuts to escape the routine or mundaneness of a job.
50 In the present case, it was not obvious that Mr Hansen might remove a staple holding in place a fitting under high pressure and thereby expose himself to the risk of being killed. It follows that the defendants may be regarded as less culpable than if the risk was obvious. However, I am of the view it was reasonably foreseeable that in the absence of adequate instruction, training and supervision, a sufficiently rigorous safe system of work (including a safe work method statement being provided to Mr Hansen), a dedicated, labelled point for sampling emulsion from the bulk tank and auditing to ensure the correct sampling point was being used, a person in the position of Mr Hansen who, unaccompanied, was regularly taking samples of hydraulic fluid from machinery that contained the fluid, which was under such pressure that its unplanned release could cause death, might become exposed to a risk to his health and safety.
51 As to the defendant's expectation that Fuchs would have provided a safe system of work for its employee, it was submitted for the defendants that starting in October 2004, Centennial Coal arranged for external providers to present a series of contractor workshops, on its behalf, to Centennial Coal Group contractors. The workshops were designed to cover the NSW Minerals Council's initiatives in relation to contractor management, and to provide awareness to contractors of, amongst other things, their OHS responsibilities while working at Centennial Coal Group sites. It was compulsory for any contractor who wished to perform work at any Centennial Coal Group site to attend these workshops. The Fuchs representative who attended one such workshop, held on 17 November 2005, was Mr Ken Swinburn, Service Engineer for Fuchs.
52 It was a reasonable expectation that Fuchs would have provided a safe working environment for its employee, Mr Hansen. However, it did not. Whilst the defendants might have held an expectation that Fuchs would have met its obligations regarding the safety of its employee, the defendants were not entitled to rely on that expectation. They had an independent duty to ensure Mr Hansen was not exposed to any risk whilst he was working at the Angus Place mine. In other words, it was not open to the defendants to adopt an attitude that it was reasonable to expect that Fuchs would act appropriately and, therefore, that relieved them, in whole or in part, from having to actively search out and, where it was at all possible, eliminate any risk to health and safety.
Simple and straightforward remedial steps