NSW Resources Regulator v Young Mining Company Pty Ltd; NSW Resources... [2026] NSWIC 14 | Case summary | Zoe

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NSW Resources Regulator v Young Mining Company Pty Ltd; NSW Resources Regulator v Jhunjhunwala

[2026] NSWIC 14

Industrial Court|2026-04-17|Before: Paingakulam J

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Court

Industrial Court

Decision date

2026-04-17

Before

Paingakulam J

Catchwords

CRIMINAL LAW — work health and safety — offences — category 2 — worker injured while cleaning conveyor belt of Mobile Screen — workers exposed to risk of death or serious injury — failure to take the reasonably practicable steps to ensure the health and safety of workers — failure to implement reasonably practicable measures for the cleaning of mud build-up in the Mobile Screen — director’s duty to exercise due diligence — particular to clearly identify act or omission constituting contravention

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Catchwords

CRIMINAL LAW — work health and safety — offences — category 2 — worker injured while cleaning conveyor belt of Mobile Screen — workers exposed to risk of death or serious injury — failure to take the reasonably practicable steps to ensure the health and safety of workers — failure to implement reasonably practicable measures for the cleaning of mud build-up in the Mobile Screen — director’s duty to exercise due diligence — particular to clearly identify act or omission constituting contravention

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: NSW Resources Regulator v Young Mining Company Pty Ltd; NSW Resources Regulator v Jhunjhunwala [2026] NSWIC 14

Hearing dates: 8-11, 15 December 2025

Date of orders: 17 April 2026

Decision date: 17 April 2026

Before: Paingakulam J

Decision: Young Mining Company Pty Ltd
(1) Young Mining Company Pty Ltd is guilty of the offence charged. (2) The matter will be listed for sentence on a date suitable to the parties. Aditya Jhunjhunwala (1) The prosecutor has been unable to prove beyond reasonable doubt the elements of the offence charged. (2) The matter will be listed on a date suitable to the parties for entry of final orders and determination of costs or argument on the proposed questions of law to be stated to the Full Bench.

On 19 September 2022, Mr Cameron Wells, a labourer employed by Young Mining Company Pty Ltd (YMC) was working at a Thuddungra mine operated by YMC (the mine). He was using a shovel to clean mud off the tail drum of a Powerscreen Chieftain 2100X 3 Deck Incline Screen (Mobile Screen). He placed the shovel against the tail drum while it was rotating at speed. The tail drum caught the shovel causing it to be pulled into the conveyor rollers. Mr Wells yanked his hands off the shovel to prevent his hands and arms from being pulled into the conveyor belt along with the shovel. In doing so, Mr Wells sustained serious injuries to his left hand, being degloving of the thumb and tip amputation of the ring finger.
The NSW Resources Regulator (the Regulator) prosecutes YMC in proceedings 2024/324576, alleging that YMC, being a person conducting a business or undertaking (PCBU) who had a health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) (WHS Act) to ensure so far as is reasonably practicable the health and safety of workers while the workers are at work in the business or undertaking, failed to comply with that duty and the failure to comply with the duty exposed workers including Mitchell Coupland and Mr Wells, to a risk of death or serious injury contrary to s 32 of the WHS Act.
The Regulator also prosecutes Mr Aditya Jhunjhunwala in proceedings 2024/324514 alleging a breach of Mr Jhunjhunwala’s duty under s 27(1) of the WHS Act. The Regulator alleges that Mr Jhunjhunwala failed to exercise due diligence to ensure that YMC complied with its duty under s 19(1) of the WHS Act because he failed to take reasonable steps to ensure that YMC had complied with that duty and his failure to comply with his s 27(1) duty exposed workers including Mr Coupland and Mr Wells, to a risk of death or serious injury.
For the reasons which follow, I am satisfied beyond reasonable doubt that YMC failed to take the reasonably practicable steps to ensure the health and safety of Mr Coupland and Mr Wells, particularised at paragraphs 19(d), (e), (f) and (h) of the Second Further Amended Summons and in so doing, exposed Mr Coupland and Mr Wells to a risk of death or serious injury. It follows that I find YMC guilty of the s 32 offence.
However, for the reasons which follow, I am not satisfied that the prosecutor has established that Mr Jhunjhunwala committed a Category 2 offence in that he failed to comply with his duty under s 27(1) of the WHS Act to exercise due diligence by taking the measures pleaded in 20(a)-(d) of the Further Amended Summons to ensure that YMC complied with its duty or obligation under s 19(1) of the WHS Act, thereby exposing Mr Coupland and Mr Wells to a risk of death or serious injury. It follows that I find Mr Jhunjhunwala not guilty of that offence.

The state of knowledge applied to the definition of reasonably practicable is objective. It is that possessed by persons generally who are engaged in the relevant field of activity and not the actual knowledge of a specific defendant in particular circumstances: Laing O*’*Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 at [33].
The reasonably practicable requirement applies to matters which are within the power of the defendant to control, supervise and manage: Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304; [2001] HCA 6 at [37] per Gleeson CJ, Gummow and Hayne JJ (Slivak).
The s 19 duty requires knowledge of the risk emanating from the activities of the defendant: Slivak. Foreseeability of the risk to persons from the activity is an element of this question of knowledge. It would not generally be practicable to take measures to guard against a risk to safety that was not reasonably foreseeable: Genner Constructions Pty Ltd v WorkCover Authority of New South Wales (2001) 110 IR 57; [2001] NSWIRComm 267 at [68].
The words “reasonably practicable” indicate that the duty does not require a defendant to take every possible step that could be taken. The steps to be taken in the performance of the duty are those that are reasonably practicable for the employer to achieve the provision of and maintenance of a safe working environment. Bare demonstration that a step might have had some effect on the safety of a working environment does not, without more, demonstrate a breach of the duty: Baiada Poultry Pty Limited v The Queen (2012) 246 CLR 92; [2012] HCA 13 at [15], [38] per French CJ, Gummow, Hayne and Crennan JJ.
An employer must have a proactive approach to safety issues. The question is not, did the employer envisage a particular danger, but rather should it have*:* WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453.
A defendant must have regard not only for the ideal worker but also for one who is careless, inattentive or inadvertent: Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313; [1952] HCA 72 at [320] per Dixon CJ. If there is a foreseeable risk of injury arising from the employee’s negligence in carrying out his or her duties, then this is a factor which the employer must take into account: Smith v Broken Hill Pty Ltd (1957) 97 CLR 337; [1957] HCA 34 at [343]. It may not always be possible to foresee various acts of inadvertence by a worker, but defendants must conduct operations on the basis that such acts will occur, and they must be guarded against, to the fullest extent practicable.
The prosecution must prove that the act or omission of the defendant was a significant or substantial cause of the worker being exposed to the risk of injury: Bulga Underground Operations v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37 at [127] (Bulga Underground).
The question is to be determined by the application of common sense to the facts, bearing in mind that the purpose of the inquiry is to attribute legal responsibility in a criminal matter: Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27.
Regard must be had to the scope and objects of the Act: Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales (2011) A Crim R 340; [2011] NSWCA 316 at [79]-[102]. The relevant question is not whether the particularised failures of the defendant were the cause of the death or injury, but rather whether there was a causal relationship between the act or omission and the risk to which a worker was exposed: Bulga Underground at [130].
Regard must also be had to the manner in which the charges are framed. The Court must consider whether the duty holder’s acts or omissions caused the risk as pleaded in the particular circumstances at a particular time when a person is exposed to the risk: Saunders Civilbuild Pty Ltd v SafeWork NSW [2023] NSWCCA 261 at [174].

The prosecutor tendered a large number of exhibits during the course of the hearing:
Photographs of the Mobile Screen taken by various persons, several of which were marked up by witnesses during the course of the trial;
Videos of the Mobile Screen, while the guarding to the tail drum is removed and then with a close up of the rollers and the tail drum while the Mobile Screen is operating;
Documentation relating to Mr Wells and Mr Coupland and Mr Rick Price’s employment and induction;
YMC safety, induction and pre-work briefing documentation and related training materials;
Sale Agreement, Specification, Tax Invoice and Dispatch Record for the Mobile Screen;
Manufacturer documentation concerning the Mobile Screen;
Mobile Screen’s Product User Manual, Standard Operating Procedures (SOPs), Risk Assessments, Safe Work Method Statements (SWMSs), pre-start records and timesheets for the Mobile Screen;
Guidance material;
Communications to YMC employees in response to the incident;
Regulatory Notices issued by the Regulator and responses;
Statements from Mr Coupland, Mr Wells and Mr Rick Price;
Updated safety documentation produced in response to the incident;
YMC Mechanical Engineering Risk Assessment and Principal Control Plan;
Various YMC policies and SOPs;
List of YMC officers on 19 September 2022 and information from the Regulator’s online portal;
Medical documentation relating to Mr Wells;
YMC documentation relating to its investigation of the incident;
YMC maintenance checklists, service, breakdown and machinery defect records and associated correspondence;
Porter Equipment Australia Pty Ltd (Porter Equipment) Invoices;
Documentation concerning the appointment of Mr Rick Price as the Nominated Competent Person for YMC; and
Statement of Agreed Facts.
The prosecution called five witnesses. The first witness, injured YMC worker Mr Wells, gave evidence about his employment with the related company Causmag Ore Company Pty Ltd (Causmag), the circumstances which led to his move to the mine and his role at the mine from the time of his commencement on 1 September 2022. Mr Wells gave evidence about the people with whom he worked, the operating procedures that were in place and the training that he received. He also gave evidence about the operation of the Mobile Screen, the problems with it clogging up, the process for cleaning it, and the incident which occurred on 19 September 2022. Finally, he gave evidence about his interaction with Mr Jhunjhunwala and other manager at the mine, Mr Bipin Pandey.
The second witness, Mr Richard Price (Rick Price), a contractor to YMC, gave evidence about his history working as a self employed contractor driving a truck for YMC and his transition to his role as the operator of the Mobile Screen. He gave evidence about the training he received and the safety documentation in use at the mine. Mr Rick Price gave evidence about the other people working at the mine at various points and how his role transitioned over that time. He also gave evidence about the history of mud problems with the Mobile Screen and the process for cleaning it. Finally, he gave evidence about the incident involving Mr Wells and the actions taken by YMC after it occurred.
The third witness, former YMC employee Mr Mitchell Coupland, gave evidence about his work at the mine from May 2022, including his induction process and the personnel with whom he worked.
The fourth witness, casual YMC employee Mr Wayne Price, gave evidence about his engagement at the mine from April 2022 to July 2022 to review the maintenance paperwork and machinery on behalf of the Mine Manager, Mr John Mills and the process by which he was inducted onto the mine. Mr Wayne Price also gave evidence about the maintenance work that he did on the machines on site, including the Mobile Screen and the induction process for Mr Coupland.
The last witness, YMC employee Mr Mills, gave evidence about his employment with YMC as Acting Quarry Manager and site manager from January 2022 to April 2022. He gave evidence about the other people working at the mine during that period, as well as the documented safety systems and processes in place. He also gave evidence about operating the Mobile Screen, the problems caused by the wet material and the manner in which the Mobile Screen was cleaned to address them. He gave evidence of his interactions with Mr Jhunjhunwala on that subject.

The risk posed by unguarded and poorly maintained machinery is well known in the industry. What YMC knew, or ought reasonably to have known about the pleaded risk and ways of eliminating or minimising it may be established by reference to its pre-incident documented systems of work and the available industry guidance material (Exhibit B).
The SafeWork NSW Code of Practice: How to m**anage w**ork h**ealth and s**afety r**isks, August 2019 relevantly provided information on how to conduct a risk assessment and stated that control measures need to be adjusted when working with new or modified equipment or processes. It further stipulated that control measures need to be supported by the development of a safe work procedure and training of workers in that procedure in a manner that requires them to demonstrate that they are able to perform the work safely.
The SafeWork NSW Code of Practice: Managing the r**isks of p**lant in the w**orkplace, August 2019 relevantly provided that unguarded moving parts of plant are a major cause of work-related death and injury in Australian workplaces, that workers are to be trained by a competent person in how to perform work including maintenance and cleaning work safely, and that ongoing supervision also needs to be in place. It further provided that training of workers should be “hands on” and reinforced by documented safe work procedures which reflect local working conditions, as well as operating manuals and other instructional material provided by the manufacturer.
As to maintenance and cleaning, it provided that plant must be maintained and repaired according to the manufacturer’s specifications and that this should usually occur when the plant is isolated and locked out according to a documented isolation procedure. It further stated that any guards which have been removed for that purpose are to be replaced before the plant is put back into operation.
The NSW Code of Practice*:* Safety management systems in mines, February 2015 provided detailed guidance on developing and implementing a safety management system and controlling risks in the mining environment.
The NSW Code of Practice: Mechanical e**ngineering c**ontrol p**lan, September 2016 (MECP Code) was referenced in YMC’s pre-incident safety system documents, including the Mechanical Engineering Risk Assessment, 19 January 2022. The MECP Code addressed the significant risk of workplace death or injury associated with using plant and associated structures, typically resulting from insufficient control of mechanical energy due to the use of plant that is not fit for the purpose, the absence of safe systems of work or an under skilled workforce. It stated that training and instruction of workers in risk control measures is therefore essential, as is maintenance, to ensure that plant and structures remain safe to operate and that repairs should be identified through an inspection, testing and defect system. It further noted that energy isolation procedures allow for the safe maintenance, inspection or testing of plant and that the removal of guards to carry out maintenance has been a source of workplace incidents.
The Regulator’s Guide*:* Health and safety at quarries, November 2018 stated that tasks such as maintenance, repairs, servicing, clearing blockages and cleaning can be dangerous and that workers can be fatally or seriously injured if the associated risks are not carefully managed. It provided that alternative methods to protect workers from the increased risk of injury from exposure to the accidental release of energy are necessary when guards are removed to perform maintenance tasks. It recommended the use of a lock-out and tag-out procedure to achieve this, underpinned by clear rules on how and when isolation procedures should be implemented. It also noted the paramount importance of a maintenance and inspection program developed in the context of the operating environment to ensure that equipment and machinery is safe to use and a documented training program to ensure that work is performed only by people who are trained and competent or properly supervised.
The Regulator’s Part 1*:* Reference material and information, August 201**8 provided that SWMS (or safe work procedures) should be developed for operating all equipment and machinery, and for other tasks with safety implications and that information should be available about implementing training programs in respect of them.
The Australian*/New Zealand* *Standard AS/NZS 4024.*3610:2015 – Safety of m**achinery – Part 3610: Conveyors–General requirements (the Australian Standard) stated that, historically, most serious or fatal accidents on belt conveyor systems occur during cleaning and maintenance or unsafe access. It therefore required an operational risk assessment to be undertaken, and appropriate risk controls implemented prior to using conveyors. It noted that operational procedures should be developed in accordance with the designer’s recommendations and site-specific environmental conditions and that work should not be permitted in a danger zone while the conveyor is running. Instead, it stated that the procedure for such work should include a documented system of energy isolation and dissipation for each conveyor, which incorporates both a locking and tagging or permit system and a verification process to ensure that energy isolation has occurred, particularly where such work requires the isolation of guards. Training of personnel which incorporates assessment of competence was also stipulated as essential, as was a maintenance program to ensure that the conveyors remain fit for purpose.
Prior to the incident YMC had a documented safety management system (SMS) for the mine which included a Mechanical Engineering Risk Assessment dated 19 January 2022 (Mechanical Engineering RA) (Exhibit PP77). The Mechanical Engineering RA, which listed Mr Jhunjhunwala as part of the Workplace Risk Assessment Team, addressed the risks associated with the operation and maintenance of all plant and equipment at the mine. One of its key focus areas was the “Operation of Mobile Plant”, including the Mobile Screen in respect of which it identified the following hazards:

In respect of “Isolation” the Mechanical Engineering PCP referred to the “Young Mining Company Isolation Procedure”.
The Mechanical Engineering PCP also required mechanical SOPs be developed and contained within a Document Register to assist mechanical staff in carrying out specific tasks for critical jobs to ensure safety and consistency of approach. In respect of “Competence” the Mechanical Engineering PCP required workers who conduct mechanical work to be qualified tradespersons or otherwise assessed as competent. The Quarry Manager was required to conduct training and assessment in relation to plant use and maintenance, which incorporated both a written and practical component and to maintain records of such training. Working on site without having completed a site induction was prohibited.
YMC had documented SOPs for the Mobile Screen dated 20 January 2022 (First Mobile Screen SOP) (Exhibit ZZ95) and 3 February 2022 (Exhibit ZZ94) (Second Mobile Screen SOP), both of which were SOP #029 but which appear to have been prepared independently of each other and both of which were said by YMC to be current as at 19 September 2022. Each required operators to obtain a Certificate of Competence prior to operating the Mobile Screen. Neither procedure identified the risk of entanglement or addressed the task of cleaning the Mobile Screen. The January 2022 Mobile Screen SOP expressly provided that “[o]nly trained, competent, reliable, and authorized personnel should operate or maintain this machine” to prevent [d]amage to equipment, injury to personnel, death” and identified “[c]ompetency based training” as the control measure to address this high-risk activity. It mandated pre-start checks to address the risks of damage to the Mobile Screen or its attachments, including because of incorrect operation. It required faults or issues to be recorded in pre-start book and reported to the Quarry Manager and guards to be in place when the machine was in operation. Indeed, it contained an express warning about the need to use guards:

YMC had also developed a Mobile Screen Operations Trainer Guide dated February 2022 (Exhibit ZZ101). The Trainer Guide stated that its purpose was to ensure people who are required to operate the Mobile Screen had the knowledge and skills required to be able to do so competently and included a written assessment to be completed by workers.
YMC had a documented Standard Operating Procedure – Isolation dated 27 October 2017 (Isolation SOP) (Exhibit ZZ54), the object of which was to *“*ensure Total Isolation of both Plant and Machinery; that correct isolation is established before commencing any maintenance, repair, installation, service and cleaning of plant.” The procedure required the use of isolation locks and danger tags to be used in conjunction with personal locks. It required the isolation of the Mobile Screen in specified circumstances and included photographic instruction of how to do this. A worker was required to attach their personal lock to the isolation point prior to commencing maintenance work on any equipment. The Isolation SOP included a Questionnaire to be completed by workers.
YMC also had a Trainer’s Guide for Risk Assessments and Job Safety Analysis (JSA) dated November 2017 (Exhibit ZZ53) (the Guide). The purpose of the Guide was to provide all personnel with the skills and competencies required to identify when to prepare a JSA, how to identify the steps, hazards and risks, rate the hazards and identify appropriate and adequate controls.
Finally, YMC had a Health and Safety Handbook 2017 (the Safety Handbook), which set out information on risk assessment and control as well as JSAs and SOPs (Exhibit D). It required all plant to be stopped, isolated and tagged before guards were removed and provided that machine guards must not be removed or made inoperative except by authorised personnel, then only for the purpose of carrying out repairs or adjustments. It expressly prohibited the operation of any plant without guards in place, except in the event of a guard failure during operation. This was reiterated specifically in relation to conveyor belts:

The risk assessments which occurred in the six-month period immediately preceding the incident appear to be confined to the daily pre-start checks of plant and machinery. That broader risk assessments were not conducted during that period is consistent with the evidence of Mr Coupland that he had not done one prior to the incident (T200.4) and Mr Rick Price’s evidence that he had not seen a risk assessment matrix until after the incident (T130.12-20). Similarly, Mr Wells stated that he never participated in a risk assessment in relation to the cleaning of the Mobile Screen (T52.41) and that YMC did not provide him with any training in how to conduct a risk assessment (T37.22). Mr Wells also gave evidence that although he was told that a JSA should be conducted every day, that did not occur, he had never conducted one, and he could not recall seeing another worker conduct one (T38.29-43). Mr Rick Price also gave evidence that he had not seen a JSA at the mine or filled one out prior to the incident (T128.38-43).
A risk assessment would have identified risk of entanglement in moving parts of Mobile Screen and the necessity to isolate it and lock it out before cleaning it and replacing guards before turning it back on. So much is demonstrated by the risk assessment which YMC conducted on 9 November 2022 which addressed the obvious risk of injury or amputation when cleaning belts and rollers (Exhibit 0023). I am satisfied beyond reasonable doubt that, prior to the incident, no risk assessment concerning cleaning mud off the Mobile Screen was conducted.
That such a measure was reasonably practicable was demonstrated by the above risk assessment as well as a risk assessment in relation to Mobile Screen cleaning conducted on 26 October 2022 that identified a high-risk of “pinch points” and “crushing” and stated that the appropriate control measures were to use a guard and isolate the machine (Exhibit NN). Similarly, Mr Rick Price gave evidence of filling out a JSA Worksheet (Exhibit V) after the incident which provided that the Mobile Screen had to be locked out before any cleaning of mud from the rollers could take place (T128.34-T130.3). I am therefore satisfied beyond reasonable doubt that YMC was in breach of its WHS Act duty when it did not undertake an adequate risk assessment for cleaning built-up mud in the Mobile Screen which identified all reasonably foreseeable hazards and implemented adequate controls.

The prosecutor submitted that YMC’s pre-incident Mechanical Engineering PCP identified the need to develop SOPs to assist mechanical staff in carrying out specific tasks for critical jobs. The prosecutor noted that this was consistent with the requirements of the guidance material. The prosecutor then submitted that despite this, prior to the incident there was no documented procedure for cleaning the Mobile Screen, with the possible exception of the SWMS marked with a “Revised Date” of 29 September 2022 (Exhibit OO24). The prosecutor noted that both the First Mobile Screen SOP and the Second Mobile Screen SOP did not address cleaning of the Mobile Screen. Similarly, the Isolation SOP was a general procedure for isolating all plant at YMC before commencing any maintenance, repair, installation, service and cleaning.
The prosecutor pointed to the evidence from each of Mr Rick Price (T120.45), Mr Coupland (T212.21-28) and Mr Wells (T52.31-37) that they had not been shown how to clean the Mobile Screen, prior to the incident.
The prosecutor also relied on the evidence that, prior to the incident, the Mobile Screen’s Product User Manual (User Manual) (Exhibit QQ) set out a process for cleaning the conveyor belts using a high-pressure hose (p 311) and noted that this was consistent with the SOP produced by the supplier of the Mobile Screen, Lincom Pacific Equipment Pty Ltd (Lincom) (Exhibit ZZ39). The prosecutor pointed to the evidence in YMC’s response to the s 155 Notice served on it (p 5, Q14), that YMC had a water truck available at the mine and a high-pressure hose that could have been used to clean the conveyor belts.
The prosecutor pointed to Mr Coupland’s evidence that, following the incident, he cleaned the Mobile Screen using a high-pressure hose and “it worked really well” (T247.43-T248.27). The prosecutor accepted that there was evidence from Mr Rick Price that attempting to clean the Mobile Screen with water made the problem worse (T157.32-39) and that this was consistent with YMC’s evidence that the water truck has been used on prior occasions to wash down the Mobile Screen prior to servicing but that it was “never used to wash mud from the screen while the screen was operating in the field as water and mud do not mix and there will be a far bigger risk in terms of safety at ground level. Water truck was used to wash screen down before servicing on concrete pad not clay” (p 5 Q15). However, this was said to be immaterial given the pleading that if, for whatever reason, a high-pressure hose was unable to be used, other tools such as shovels could be used once the Mobile Screen was isolated and locked out.
YMC submitted that this particular is misguided as it does not address the process to retrack the belt. YMC relied on the evidence of witnesses that the key would be removed from the Mobile Screen when undertaking cleaning or maintenance (T116.41-42; T121.19-22; T122.1-6). YMC further pointed to the evidence that the Mobile Screen was trammed away from the area where it had been operating onto a pad where it was then cleaned. In that regard, YMC relied on the following evidence from Mr Wells (T83.25-T84.13):

YMC’s submissions fail to address the fact that the measure deals with developing, implementing and enforcing a written safe work procedure for cleaning the Mobile Screen.
Exhibit OO24 is a SWMS which deals with cleaning the Mobile Screen and adjusting the belts. It requires workers to isolate, tag out and “test to dead” the Mobile Screen. It shows a “Revised Date” of 29 September 2022. There is no evidence of when that document was first created but Exhibit OO18 appears to be an earlier version of the same document, which stated that workers should isolate and tag out the plant. I cannot exclude the possibility that this document existed prior to the incident. However, it does not provide any instruction on the tools to be used to clean the Mobile Screen, stating only “use correct tools/Fit for [purpose]”. Further, it is apparent from the evidence of each of Mr Rick Price, Mr Coupland or Mr Wells to which I have already referred, together with Mr Rick Price’s evidence that he and Mr Coupland worked out a process for cleaning the Mobile Screen (T120.48-49; T123.43) that none of them were aware of it prior to the incident. Therefore, even accepting that this document existed at the time of the incident, it fell short of being a safe work procedure for cleaning the Mobile Screen and it was not implemented or enforced.
If the procedure set out in the User Manual referred to above were to be considered a documented safe work procedure for cleaning the Mobile Screen, it was not a procedure developed by YMC. Further, it is clear from the evidence from Mr Rick Price about the difficulties of using a high-pressure hose and YMC’s response to the s 155 Notice, consistent with that view, that the procedure was not implemented or enforced. That the procedure in the User Manual was not implemented or enforced is also consistent with Mr Rick Price’s evidence that he and Mr Coupland developed the procedure for cleaning the Mobile Screen.
Exhibit V, referred to above, is a JSA Worksheet which sets out an eight-step process for cleaning mud from the rollers of the Mobile Screen. Mr Rick Price gave evidence that he had never seen, let alone filled out a JSA at the mine before the afternoon of 19 September 2022. His account was that he and Mr Coupland filled out this document after they “found the JSA folder and worked out how to fill it in” (T128.34-T129.14) Mr Rick Price further stated that he and Mr Coupland filled out the JSA Worksheet by looking at past examples of JSAs in the JSA folder (T129.34-T130.1).
The existence of this document, together with the procedures for cleaning the Mobile Screen developed in October 2022 and November 2022 (Exhibit OO23) demonstrate the reasonable practicability of this measure. Further, as pointed out by the prosecutor, the Australian Standard requires site specific operational procedures to be developed based on the designer’s operational procedures and site-specific environmental conditions.
The need for the machine to be operating to track the belt is immaterial to whether or not this measure can be established, because the machine could be turned on for that purpose and then isolated again if further cleaning were required. As YMC noted in the context of the previous measure, this is what Mr Coupland said that he was doing when the incident occurred. Nor does the evidence that tramming the Mobile Screen resulted in the removal of much of the mud build-up assist YMC. In any event, the evidence was that most of the mud removed by tramming was from the tracks of the Mobile Screen, not from the rollers or the tail drum. I am therefore satisfied beyond reasonable doubt that YMC was in breach of its WHS Act duty in that the procedure that it used to clean the Mobile Screen was not committed to writing and those procedures for cleaning the Mobile Screen that were committed to writing were not implemented or enforced.

I accept Mr Mills’ evidence that isolation locks were used to clean the Mobile Screen when he was working at the mine. However, he ceased employment with YMC in April 2022. Mr Wells’ evidence was that, in the approximately three-week period when he was working at the mine, he had never seen locks applied to the isolation switch on the Mobile Screen (T36.39-48). Consistent with that evidence is his evidence that he had never seen a document which set out when and how to isolate the Mobile Screen (T37.1-7). Further, when it came to cleaning the Mobile Screen, which was a daily task (T45.43), Mr Wells stated that the machine would be turned off but the key would not be removed from the ignition (T44.49-T45.12). By that stage, Mr Rick Price was largely assigned to other duties (T103.24 & 48). Mr Coupland was operating the Mobile Screen (T103.32), assisted by Mr Wells (T123.25-30).
Mr Coupland did not recall having ever seen a documented procedure for isolation of the plant at YMC (T199.18). His evidence was that he had not been trained in how to isolate the Mobile Screen or been issued with an isolation lock for that purpose (T199.29-34). He further stated that he had never seen anyone else use an isolation lock to lock-out the Mobile Screen (T199.38). He gave evidence that he had been provided with isolation tags but had never seen them used (T199.40-46).
I accept Mr Rick Price’s evidence about the use of isolation tags on some occasions when cleaning the Mobile Screen in view of his evidence both that tags were used “a couple of times” and “virtually every time” that the cleaning occurred. His evidence that, prior to the incident, the mine had not issued him with any locks, and that he had never used a lock on any of the machinery (T134.9-14), was consistent with the evidence of both Mr Coupland and Mr Wells. Like Mr Coupland and Mr Wells, he had never seen a documented process or procedure for cleaning the Mobile Screen before the incident (T120.45). Therefore, consistent with his recollection (T147.44) and his evidence that he and Mr Coupland worked out a process for cleaning the Mobile Screen, to which I have already referred, I am satisfied that Mr Rick Price had not seen the Isolation SOP.
After the incident both Mr Rick Price and Mr Coupland were trained in the Isolation SOP and completed the attached questionnaire (Exhibit X). Mr Coupland stated that he underwent training on the Isolation SOP after the incident (T245.27 & 35-37) and was issued with an isolation lock to enable him to comply with it (T246.5-12). Mr Rick Price and Mr Coupland undertook this training in addition to training in the First Mobile Screen SOP, on which YMC relies (Exhibit ZZ59). As noted above, neither the First Mobile Screen SOP, nor the Second Mobile Screen SOP address the cleaning of the Mobile Screen. Accordingly, the fact of their existence does not answer YMC’s failure to implement and enforce the Isolation SOP, which was expressly intended to address the cleaning of plant, among other things. The training of workers in the Isolation SOP and its implementation after the incident demonstrate that the implementation of the Isolation SOP, in addition to the First Mobile Screen SOP, was a reasonably practicable measure for YMC to implement to ensure the health and safety of its workers. Indeed, it was necessary to isolate the Mobile Screen during cleaning in order to eliminate the risk of health and safety to workers so far as is reasonably practicable. I am therefore satisfied beyond reasonable doubt that YMC was in breach of its WHS Act duty when it did not implement and enforce its Isolation SOP or provide locks to workers to enable them to comply with it.

The prosecutor submitted that there were serious deficiencies in the training and induction provided to workers. In that regard, the prosecutor pointed to the evidence of various workers concerning the training that they received. Mr Wells’ evidence was that the only induction that he received when he commenced working at the mine was being given paperwork to sign and being shown around the mine site by Mr Rick Price (T23.24-34). Mr Wells also stated that they were given paperwork to read on rainy days, but he could not recall having ever seen the Safety Handbook (T23.40-49).
Similarly, Mr Coupland’s evidence was that he was given a “semi-induction” in the office where he “got shown a few things and they were giving out some paperwork to fill out” (T184.16-27). Mr Coupland further stated that a number of items marked off as completed in his record of induction (Exhibit R) did not in fact occur, such as being guided through the Safety Handbook (T187.11-13) and sitting in presentations on the list of presentation topics that were marked as having been completed (T189.12-15). Mr Rick Price also stated that no presentations occurred during his induction process and that he was just given books to read (T99.43-45). Mr Rick Price also gave evidence that he was aware of paperwork at the mine but that he was never shown what was in the folders in the office and that he and Mr Coupland were never shown proper procedures (T96.31-44).
The prosecutor pointed to the cleaning procedure for the Mobile Screen at p 21-3 of the User Manual, which stipulated that the conveyor belts should be cleaned using a high-pressure hose and that the machine should be switched off and locked out during that process. The prosecutor also pointed to the abundance of the training material which YMC had developed to be used. This included:
The conduct of risk assessments (Exhibit ZZ96);
The conduct of risk assessments and JSAs (Exhibit ZZ97);
Isolation and tagging (Exhibit ZZ98, Exhibit ZZ99, Exhibit ZZ100); and
Mobile Screen Operations Trainer Guide.
The prosecutor also relied on evidence, to which I have already referred, that the workers had not seen either the Isolation SOP or the Mobile Screen SOP. The prosecutor pointed to the training about the procedures particularised as part of this measure provided after the incident to Mr Rick Price (T146.3-34; T147.48-T148.31) and Mr Coupland (T245.27 & 35-46; T246:20), which demonstrated the reasonable practicability of doing so.
YMC submitted that the only evidence before the Court about the content of the User Manual was that it was available to workers and maintenance personnel. YMC also noted the evidence that hoses, shovels and a scraper were available to workers to use as required. YMC accepted that no training was provided to workers concerning the Isolation SOP and relied on its previous submissions that workers nonetheless knew how to isolate the Mobile Screen and in fact did so. Similarly, YMC reiterated its submission that there was insufficient evidence for the Court to be satisfied that training in the Mobile Screen SOP would have eliminated or minimised the risk of death or serious injury.
I am satisfied that workers were not given training on the Isolation SOP and the First or Second Mobile Screen SOP based on the evidence addressed in the context of particular 20(e) (Isolation SOP) and 20(k) (Mobile Screen SOP). I will not repeat that material here. I cannot be satisfied beyond reasonable doubt that workers had not been shown either the SWMS which was in differing forms or the User Manual in the face of clear evidence that the workers would read documentation on wet days, which they were unable to recall at the time of giving evidence. However, I accept that, even if they were given any of those documents to read, what occurred fell short of training and instruction because notwithstanding the content in those documents about a procedure for cleaning the Mobile Screen, the evidence is that Mr Rick Price and Mr Coupland developed a process themselves. I am therefore satisfied beyond reasonable doubt that YMC was in breach of its WHS Act duty in failing to provide the stipulated instruction and training to workers.

The prosecutor pointed to Mr Wayne Price’s evidence about the maintenance that he would do at the mine. Between May 2022 and 30 June 2022, Mr Wayne Price completed numerous Service Breakdown Records for the Mobile Screen (Exhibit RR). Mr Wayne Price left YMC’s employment on 5 July 2022.
The prosecutor contended that Porter Equipment responded to service requests but did not undertake regular servicing or preventative maintenance, consistent with its response to a s 155 Notice (Exhibit AAA), and that it conducted defect repairs between 14 October 2021 and 7 April 2022. The prosecutor also pointed to the evidence of a series of requests for service made by YMC to Porter Equipment (Exhibit VV) and YMC’s response to a s 155 Notice in which it set out details of a service request made to Porter Equipment on 17 January 2022.
The prosecutor submitted that one of the reasons for build-up of material causing blockages in the Mobile Screen was the failure of YMC to routinely check and replace the skirting rubbers. To establish that proposition, the prosecutor pointed to the defects list created by Mr Wayne Price on 30 June 2022 (Exhibit SS) forming part of the service record for the Mobile Screen which he created on the same date (Exhibit ZZ51) which lists “REPLACE ALL SKIRTING RUBBERS ON ALL BELTS” as an outstanding maintenance item.
As YMC was unable to produce any maintenance records in response to s 155 Notice issued by the Regulator following Mr Wayne Price’s departure, the prosecutor submitted that the Court could infer that no maintenance occurred after that date and therefore the replacement of the skirting rubbers was still outstanding on 19 September 2022.The prosecutor noted the manufacturer’s Dry Screen Range Maintenance Checklist which stated that the skirting rubbers should be replaced after every 250 hours of operation (Exhibit ZZ44). The prosecutor submitted that the Mobile Screen was not maintained and repaired in line with the manufacturer’s recommendations or mining industry practices.
To establish that failure to change the skirting rubbers was a cause of build-up of mud on the Mobile Screen, the prosecutor relied on documentation produced by Lincom, in response to a s 155 Notice. That documentation stated that spillage around a main conveyor drum can be caused by the skirting on the main conveyor, and that this should be fitted tight against the conveyor with no air gaps (Exhibit ZZ38). In a similar vein, Lincom’s response to a question in the Notice (Exhibit ZZ35) about the reasons why mud or other material from building up on the roller of the main conveyor was (Exhibit ZZ36):

In its response to a s 155 Notice served upon it, YMC identified the external mechanic which it engaged to do repairs as Porter Equipment, who last serviced the Mobile Screen on 7 April 2022.The invoice issued by Porter Equipment on 27 June 2022 (Exhibit ZZ50) establishes that Porter Equipment conducted servicing of the Mobile Screen, including changing some of the skirting rubbers in October 2021. However, the only work that they had done on the Mobile Screen between October 2021 and 27 June 2022 appears to be to replace a faulty alternator on 7 April 2022. It is difficult to reconcile that evidence with the evidence of Mr Wayne Price that external maintenance people would just turn up, because he only commenced work at the mine on 5 April 2022, two days before the attendance by Porter Equipment to replace the alternator on the Mobile Screen. His evidence gives the impression that external service people turned up at the mine on more than one occasion while he was there. Nonetheless, given YMC’s response to the s 155 Notice served upon it, I am satisfied that Porter Equipment was the only external maintenance company that serviced the Mobile Screen in the period from October 2021 to 19 September 2022.
Accordingly, following the departure of Mr Wayne Price, any maintenance of the Mobile Screen was confined to defects reported on the daily pre-start form. That process was, by definition, one of daily inspection of the Mobile Screen for maintenance issues. However, Mr Coupland’s evidence, which I accept, is that when he was trained in filling out the pre-start form for the Mobile Screen he was told “never to do anything other than tick that first section”, being the high priority faults, because if he failed to so do “the machines would be shut down and we’d be sent home” (T204.46-T205.5). Accordingly, YMC cannot rely upon that process as providing the foundation of a systematic process of inspection and maintenance for the Mobile Screen. Further, such an inspection process was not responsive to manufacturer recommendations concerning the service and replacement of parts.
So far as adequately maintaining the skirting rubbers, I accept that the evidence on which the prosecutor relies establishes that they needed replacing on 30 June 2022 and that this had not occurred by 19 September 2022. I also accept the prosecutor’s submission that the information provided by the supplier, Lincom, shows that failure to appropriately maintain skirting rubbers is a contributing factor to the build-up of mud and material on the roller of the main conveyor. I therefore find that YMC failed to meet the measures pleaded at 19(g) and (a) and in so doing, was in breach of its duty to workers and in particular Mr Wells and Mr Coupland.

The requirement to exercise due diligence is a requirement to be involved in the governance of the PCBU. Section 27(5) of the WHS Act provides a list of concrete examples of what that looks like in practice, the breadth of which is likely to be all encompassing. In essence, the requirement to exercise due diligence has the following three limbs:
Understanding and keeping abreast of developments concerning work health and safety matters;
Understanding the business of the PCBU to the extent of being able to identify the risks and hazards associated with its business or undertaking; and
Ensuring that the PCBU has the necessary systems and resources to comply with its work health and safety duties under the WHS Act.
The outworking of that obligation will necessarily differ in accordance with the size of the company. The sole director of a PCBU who is also the sole employee of that PCBU is the arms and legs of that PCBU. Ensuring that such a PCBU has the necessary systems and resources in place to comply with its work health and safety duties under the WHS Act will require such an officer to personally marshal resources and implement appropriate systems. In that scenario, it will usually be sufficient to plead that the officer failed to have the PCBU take one or more reasonably practicable particularised steps to ensure safety and list the failures of the PCBU that the officer permitted or failed to prevent. It will not be necessary to particularise how the officer would require the PCBU to take a step that, on the case as pleaded, could only be taken by the action of that officer.
However, for officers of most PCBUs, it will be necessary to identify what they have done with more particularity than simply asserting a failure to ensure that the PCBU took particularised steps. Rather, the charge will need to plead the actual step or steps that the officer should have taken to meet their s 27(1) duty but did not. For a small PCBU that might, for example, be a failure to verify through personal inspection that the PCBU had effective risk identification and mitigation systems in place or a failure to issue written or verbal directions that the PCBU implement such systems. That context is vastly different to that of a PCBU which is a large corporation with hundreds or thousands of employees, including an executive management team, and a board of directors. In that scenario, the particular of breach of the officer’s duty to exercise due diligence is unlikely to be the failure to require the PCBU to take a particular step because of the unlikelihood that the officer was sufficiently involved in the particular operation or event giving rise to an exposure to a risk to health and safety. Rather, a valid particular is more likely to be a failure to take a step that would have reduced the likelihood that the PCBU would fail to comply with its WHS Act duty, such as making available a budget to allow for the engagement of external expertise that would result in more effective WHS training for staff or the implementation of safer work systems or requiring the production of regular reports about the control measures being implemented to address risks to health and safety identified in the PCBU’s business and acting upon the content of those reports in a timely manner.
Each matter will turn on its own facts as to where it sits on the spectrum and therefore what the substance of an officer’s duty to exercise due diligence entails. However, consistent with Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at [28] (Kirk), in each case the particular must clearly identify an act or omission which constitutes a contravention of s 27(1) of the WHS Act. It is unlikely to be sufficient to identify the failing of the officer by reference to the list of due diligence obligations in s 27(5) of the WHS Act and plead that the officer failed to meet one or more of them in a way that caused the PCBU to fail in the way particularised.

It is an agreed fact that YMC is a wholly owned subsidiary of Orind Australia Pty Ltd. There is no evidence before the Court about that company, beyond the fact that it has two wholly owned subsidiaries, being YMC and Causmag.
Exhibit ZZ109 is the ASIC Current and Historical Company Extract for YMC as at 8 June 2023. It reveals that at the date of the incident, YMC had three directors, only one of whom, Mr Jhunjhunwala, was a resident in Australia. He was the Managing Director of YMC. The remaining directors, who are also officers of YMC as defined by s 4 of the WHS Act, resided in India. One of those directors, Surendra Kumar Jhunjhunwala would appear to be a relative of Mr Jhunjhunwala. The secretary of YMC, Rajshree Jhunjhunwala resides with Mr Jhunjhunwala and so would appear to be a close relative of Mr Jhunjhunwala. Accordingly, YMC would appear in essence to be a small family company.
Exhibit PP84 is a list of company officers as at 19 September 2022 provided by Mr Pandey, in response to a s 155 Notice (Exhibit PP83). In addition to Mr Jhunjhunwala and the Company Secretary, that document lists the following people:
Rick Price – Supervisor
Bipin Pandey – Manager Finance and Admin
Rahul Goel – Management Accountant
Chaparala Vijaya Kumar – Assistant Accounts Manager.
The list also states that all of the officers except for Mr Jhunjhunwala and Mr Rick Price were employees of Causmag. So far as his own employment status is concerned, this is consistent with other representations made by Mr Pandey who signed correspondence “for Young Mining Company Pty Ltd” and operated using a Causmag e-mail address (Exhibit DD11, Exhibit OO21). Mr Pandey stated that all officers other than Mr Rick Price worked at the head office in Young.
Mr Rick Price’s evidence, which I accept, was that he was employed to operate the Mobile Screen (T92.13; T94.37-40). This is consistent with his induction form which described his position as “Operator” (Exhibit Q). It is also significant that, at the time when Mr Rick Price was employed at the mine, Mr Zeb Harris worked at the mine in the role of Quarry Operator or Quarry Manager (T94.122-23). Mr Rick Price expressly stated that he was not the Quarry Manager and that when he signed the induction form for Mr Coupland, he did so because the Quarry Manager was not available and told him to sign the form (T104.37-T105.2). Given that evidence, it is difficult to accept Mr Pandey’s evidence that Mr Rick Price was an officer of YMC as defined in s 4 of the WHS Act.
The evidence before the Court was that, at the time of the incident, YMC had few employees. Only Mr Rick Price, Mr Coupland and Mr Wells were working at the mine. The only other YMC employee at that time was Mr Jhunjhunwala. I have already found that there was no competent person operating as the Quarry Manager at the time of the incident. In fact, there was no site supervisor on site at all because Mr Rick Price did not consider himself to be the site supervisor and had expressly told Mr Jhunjhunwala that he was not interested in completing the necessary paperwork for the mine to operate. That circumstance was an important one in determining what was required of Mr Jhunjhunwala to comply with his duty to exercise due diligence to ensure that YMC complied with its WHS Act duty.

In final submissions, counsel for Mr Jhunjhunwala was critical of the form of the Further Amended Summons. Mr Jhunjhunwala’s primary submission was that the particulars of his alleged breach of the WHS Act pleaded by the prosecutor do not specify the steps that he should have taken to discharge his duty under s 27(1) of the WHS Act. Rather they allege that he should have done something to ensure that YMC complied with its duties. As such, it is submitted that the pleaded particulars fail to come to grips with the separate requirement of due diligence enacted by s 27 and should be struck out. In addition, counsel for Mr Jhunjhunwala submits that the pleaded particulars fail to meet the requirements of Kirk at [27]-[28], in that they plead a conclusion rather than an omission.
The pleaded measures which it is alleged Mr Jhunjhunwala should have taken to meet his duty to exercise due diligence are set out at [175] above. Measure 20(a) alleges a failure to prohibit workers from operating the Mobile Screen during wet weather; when the material was wet. This measure implies that Mr Jhunjhunwala should have personally told the workers on site that the Mobile Screen should not be used in such conditions. I am of the view that this is capable of being a reasonable step in the system adopted by Mr Jhunjhunwala to ensure that YMC complied with its WHS Act duties, particularly in the absence of a site supervisor. I am also of the view that this pleading meets the Kirk requirements.
Measure 20(b) alleges a failure by Mr Jhunjhunwala to provide the company with a nominated competent person with the appropriate knowledge and skills to carry out the task of supervising the mining operations to perform the function of Quarry Manager. This particular implies that Mr Jhunjhunwala should have personally identified someone to perform that role. It is not stated how he should have done so, for example by advertising the position and interviewing applicants, by sourcing such a person by word of mouth or by undertaking that role himself. In my view the pleading falls short of the Kirk requirements and should be struck out.
If I am wrong about that, I further note that I have set out at [168] above my reasons for finding that the failure of YMC to appoint a competent person as the Quarry Manager was not a significant or substantial cause of the exposure of workers, and in particular Mr Coupland and Mr Wells, to a risk of death or serious injury. For those same reasons I would find that the failure of Mr Jhunjhunwala to provide the company with a nominated competent person to function as the Quarry Manager was not a significant or substantial cause of the exposure of workers to the pleaded risk. Accordingly, to the extent that the prosecution of Mr Jhunjhunwala relies on this measure, it would fail in any event.
Measure 20(c) alleges a failure by Mr Jhunjhunwala to require, instruct, or direct YMC to provide training, information and instruction to workers on a series of specified procedures. Mr Jhunjhunwala submitted, and I accept that each of require, instruct and direct is pleaded in the alternative, and so appear intended to capture a series of different acts that could have been taken by Mr Jhunjhunwala, each of which was individually sufficient to discharge his duty. Further, in circumstances where there was no site manager at the mine after Mr Harris ceased employment, it is unclear how Mr Jhunjhunwala was to require, instruct, or direct YMC to provide the specified training and instruction to workers. At the date of the incident, the only people at the mine were the workers, none of whom had received any training in the stipulated procedures. Therefore, even assuming that the duty would have been satisfied by Mr Jhunjhunwala saying, “provide training information and instruction to workers on the Isolation SOP”, it is entirely unclear how that could have been achieved. Therefore, again, my view is that the pleading falls short of the Kirk requirements and should be struck out.
Again, if I am wrong about that, I have set out at [167] above my reasons for finding that the failure of YMC to provide the specified training was not a significant or substantial cause of the exposure of workers, and in particular Mr Coupland and Mr Wells, to a risk of death or serious injury. For those same reasons I find that the failure of Mr Jhunjhunwala to require, instruct or direct the company to provide training, information and instruction to workers on all four of the specified procedures was not a significant or substantial cause of the exposure of workers to such a risk. The procedures are not pleaded in the alternative. Accordingly, to the extent that the prosecution of Mr Jhunjhunwala relies on this measure, it would fail in any event.
Measure 20(d) requires Mr Jhunjhunwala to verify that specified procedures were used by YMC by requiring on site personnel to report to officers of YMC on safety matters, conducting inspections of plant and work practices, reviewing training and plant inspection records and undertaking audits of compliance with mine safety systems. The obvious issue with this particular is that it refers to the procedures listed “in paragraph 20(d) above”. As paragraph 20(d) is the instant paragraph, this must be a typographical error with the intended reference being to paragraph 20(c). The point was not taken by Mr Jhunjhunwala, and I read the reference as “paragraph 20(c) above”.
The pleaded activities fall squarely within the system to be implemented by Mr Jhunjhunwala to ensure compliance by YMC with its WHS Act duties. Further, the measure meets the Kir**k requirements as it pleads specific tasks which it is said that Mr Jhunjhunwala should have undertaken to verify that the stated procedures were used by YMC.
In the event that I found the pleaded measures valid, Mr Jhunjhunwala relied on the submissions made by YMC to the extent that they apply in this context to him. Accordingly, I turn to deal with measures 20(a) and (d).

NSW Resources Regulator v Young Mining Company Pty Ltd; NSW Resources Regulator v Jhunjhunwala

At a glance

Court

Decision date

Before

Catchwords

Source

Email me a plain-English summary of this case

Catchwords

Judgment

JUDGMENT

Introduction

Procedural History

The Task of this Court

The YMC Summons

The Risk

Reasonably Practicable Measures

Exposure to a Risk of Death or Serious Injury

YMC: The Elements of the Offence Charged

The Evidence

YMC: The health and safety duty

YMC: The Risk to Workers

YMC: Reasonably Practicable Measures

The Likelihood of the Risk Occurring – s 18(a)

The Degree of Harm that Might Result from the Risk – s 18(b)

What YMC Knew or Ought Reasonably to Have Known – s 18(c)

Availability and Suitability of Ways to Eliminate or Minimise the Risk – s 18(d)

The Cost Associated with Available Ways of Eliminating or Minimising the Risk – s 18(e)

YMC: Reasonably Practicable Measures as Pleaded

Undertaking an adequate risk assessment for cleaning built-up mud in the Mobile Screen which identified all reasonably foreseeable hazards and implemented adequate controls – 19(h)

Providing workers with isolation locks to be used for isolating plant, in accordance with the Isolation Procedure – 19(f)

Implementing and enforcing the Mobile Screen Procedure which specified that the Mobile Screen only be operated by trained, competent, reliable and authorised personnel; and the Mobile Screen was not to be operated without guards in place and secured – 19(k)

Providing training, information and instruction (or adequate training, information and instruction) to workers on:

(i) the Mobile Screen’s Product User Manual Operation and Maintenance;

(ii) a safe work procedure for clearing a build-up of mud in the Mobile Screen that required the Mobile Screen to be isolated and use of fit for purpose tools, such as a high-pressure hose;

(iii) the Isolation Procedure;

(iv) The “Standard Operating Procedure – Mobile Screen” dated 3 January 2022 (the Mobile Screen Procedure) – 19(j)

Appointing a nominated competent person, who had acquired through training, qualification or experience the knowledge and skills to carry out the task of supervising mining operations at a mine, to perform the function of quarry manager – 19(i)

Adequately maintaining the skirting rubbers on all conveyor belts of the Mobile Screen – 19(a)

Prohibiting the operation of the Mobile Screen to screen material:

(i) During wet weather;

(ii) When the material was wet – 19(c)

YMC Causation: Whether the breach of duty exposed workers to a risk of death or serious injury

Undertaking an adequate risk assessment for cleaning built-up mud in the Mobile Screen which identified all reasonably foreseeable hazards and implemented adequate controls – 19(h)

Providing workers with isolation locks to be used for isolating plant, in accordance with the Isolation Procedure – 19(f)

Implementing and enforcing the Mobile Screen Procedure which specified that the Mobile Screen only be operated by trained, competent, reliable and authorised personnel; and the Mobile Screen was not to be operated without guards in place and secured – 19(k)

Providing training, information and instruction (or adequate training, information and instruction) to workers on:

(i) the Mobile Screen’s Product User Manual Operation and Maintenance;

(ii) a safe work procedure for clearing a build-up of mud in the Mobile Screen that required the Mobile Screen to be isolated and use of fit for purpose tools, such as a high-pressure hose;

(iii) the Isolation Procedure;

(iv) The “Standard Operating Procedure – Mobile Screen” dated 3 January 2022 (the Mobile Screen Procedure) – 19(j)

Appointing a nominated competent person, who had acquired through training, qualification or experience the knowledge and skills to carry out the task of supervising mining operations at a mine, to perform the function of quarry manager – 19(i)

Implementing a maintenance program for the Mobile Screen that included a maintenance strategy, frequency of inspections, original manufacturer recommendations, removal of built-up mud or material, belt tracking and which was undertaken by a competent person such as a maintenance technician - 19(g)

Adequately maintaining the skirting rubbers on all conveyor belts of the Mobile Screen – 19(a)

YMC: Conclusion

YMC: Orders

Prosecution case against Jhunjhunwala: Consideration

The Jhunjhunwala Summons

The Risk

Failure To Exercise Due Diligence

Exposure to a Risk of Death or Serious Injury

Mr Jhunjhunwala: The Elements of the Offence Charged

Mr Jhunjhunwala: An officer of YMC (Element A)

YMC owed a health and safety duty to workers (Element B)

Jhunjhunwala: Failure to Exercise Due Diligence (Element C)

The scope of the requirement to exercise due diligence

About YMC

Criticism of the Pleading in the Amended Summons

Prohibiting the operation of the Mobile Screen to screen material:

(i) during wet weather;

(ii) when the material was wet – 20(a)

Verifying that the documented procedures listed in paragraph 20(d) above were used by the company by:

(i) requiring the mine’s on-site personnel to report to officers on safety matters and compliance with the mine’s safety management system;

(ii) conducting regular inspections of plant including the Mobile Screen, and/or causing others to conduct regular inspection of plant including the Mobile Screen and report the outcome to him;

(iii) conducting inspections of work practices including operation, cleaning and maintenance of the Mobile Screen or ensuring an appropriately qualified supervisor conducted inspections of work practices, including, cleaning of the Mobile Screen, and reporting the outcome to him;

(iv) reviewing the mine’s training records, or causing others to review the mine’s training records and report the outcome to him;

(v) reviewing the mine’s plant inspection records, or causing others to review the mine’s plant inspection records and report the outcome of such inspections to him;

(vi) undertaking audits to verify the implementation and compliance with the mine’s safety management system, or causing others to undertake audits to verify the implementation and compliance with the mine’s safety management system and report the outcome to him – 20(d)

Jhunjhunwala: Exposure of workers to a risk of death or serious injury (Element D)

Jhunjhunwala: Conclusion