Rodney Morrison v Akula Pty Limited

Rodney Morrison v Akula Pty Limited - [2004] NSWIRComm 367 - NSWIRComm 2004 case summary — Zoe

[12]

7 The top level (RL 5340) of the ventilation shaft where the drilling rig was located was some 500 metres below the surface. The bottom level was a further 207 metres further down. Directly above the top end of the shaft sat the drilling rig on a bed of concrete sitting on an earth "plug" about four to five metres deep. At the bottom level (RL 5180) the shaft ended in an excavated chamber or gallery, the entrance to which ran off the Mine's main decline running downwards from the surface to the bottom of the Mine and which carried all of the traffic through the Mine. The roof of the chamber and that of the access way or drive into the chamber was secured and regarded as safe. The top of the shaft and the walls of the shaft were not secured and there was an obvious risk of falling rock and material injuring persons working in the chamber and its immediate environs. 8 By 27 May 2000 the drilling of the shaft had been completed and what remained to be done was to disengage the reamer head from the drill string prior to its removal to the surface. Thus, immediately prior to the work being undertaken to remove the reamer head and dismantle it, the situation was that at the end of a 207 metre long drill string was attached a reamer head about 4.5 metres in diameter weighing a number of tonnes located immediately below the 4.5 metre wide shaft and hanging about half a metre above the chamber floor. 9 As it has been noted, Mr De Bruin's company, Specialised Mining Services, had been contracted by the defendant to provide Mr De Bruin as project manager for the drilling operation including demobilisation and removal of the reamer head. The defendant also contracted with Pybar Mining Services Pty Limited for the services of Mr Guise to assist Mr De Bruin. The defendant further contracted with Brandrill Limited for the services of Mr Mooney who was also to assist Mr De Bruin in the capacity of driver/operator of an Elphinstone 2900 loader, known as a "bogger". Both Mr Guise and Mr Mooney were under the direction of Mr De Bruin in his capacity as the defendant's project manager.

[15]

13 At about 12.30 pm Mr De Bruin prepared to use the oxycutting equipment he had brought with him to burn off the burn-out ring from the drill string. Mr De Bruin stepped onto the reamer head directly underneath the OHPP and was about to receive the oxy torch as Mr Guise handed it to him. At that moment there was a loud noise and a fall of rock and material from within the shaft hit the OHPP with great force. It is apparent from the evidence that the protection platform was forced downwards lifting the rear wheels of the bogger clear from the ground. Some rocks penetrated the protection platform and the impact was such that the platform buckled and welds were split. Mr De Bruin sustained serious head and body injuries probably from the combination of rock impact and the crushing effect of the OHPP approaching the reamer head upon which he was standing and where he was found with his head jammed between the cutters of the reamer. A rescue team arrived and in a display of considerable courage retrieved Mr De Bruin from beneath the shaft and placed him in an ambulance. Mr De Bruin, however, died of his injuries 12 days later. Mr Guise sustained some minor injuries as he escaped from near the shaft. Mr Mooney was not injured. 8 The evidence in the sentencing proceedings consisted of a certificate tendered by the prosecutor indicating the defendant had no prior convictions under the Act as well as evidence tendered by the defendant that consisted of a number of testimonials and an affidavit of Mr Rodney Arnold Bertram, managing director of the defendant. Mr Bertram was not required for cross-examination. 9 Mr Bertram had known Mr De Bruin since 1988 when Mr De Bruin was the General Manager of Elura Mine at Cobar, which was part of the North Broken Hill Group. Mr De Bruin appointed Mr Bertram to the position of Group Manager of Raiseboring following the formation of the Pasminco Mining Group to oversee and control activities at the Pasminco Mines at Rosebery in Tasmania, Broken Hill and Cobar in New South Wales. Mr De Bruin eventually retired from a management role in 1992 and thereafter undertook mining activities around Australia using his company, Specialised Mining Services. The projects undertaken by this company included shaft sinking, stripping of shafts that had previously been raisebored and equipping of such shafts to suit mining activities. The defendant company was established by Mr Bertram in 1995 and used Mr De Bruin's services. 10 In assessing the objective seriousness of the offence it is relevant to have regard to the fact that the defendant had established a good reputation as a competent organisation with an appropriate regard to safety. Further, both Mr Bertram and Mr De Bruin possessed a great deal of experience in raiseboring. Mr Bertram said in his affidavit: …Nick was highly respected within the mining industry but was particularly well regarded in the field of shaft excavation, be it by conventional sinking method or by raiseboring. To my knowledge, Nick was the only person from Australia who was ever invited to deliver a Paper at the Institute of Shaft Drilling Technology in the United States of America. This is, to my knowledge, is the premier mining institute in the World. Further, I know that Nick was invited on several occasions to participate in that organisation's activities and was also supportive in the formation of the World Rock Boring Association, which is an international organisation specialising in raiseboring activities. This organisation is based in Canada and was established in 1988 and holds international forums and conferences every two years. I was a foundation board member of this Association. I remained in that position until 2002 as the representative for Australasia. I have delivered a number of Papers to this organisation obviously with the approval of Nick until 1992 and then subsequently by myself as the owner of my own company.

[35]

30 Other assistance provided by the defendant to the De Bruin family was explained by Mr Bertram as follows: Another major issue that surfaced following Nick's death was that although Nick had produced evidence of his Workers Compensation insurance for Specialised Mining Services as a Mine Contracting Company to the Defendant prior to commencing work, he subsequently changed the nature of the work being performed to his insurer. I was told at the time by Nick (Jnr) that Nick (Snr) had advised his insurers that Specialised Mining Services was a franchisee for Mitre 10 and subsequently required workers compensation insurance as applicable for a retail sales operation. Naturally, when the family contacted the insurers following Nick's death the insurers, upon learning of the manner of his passing, immediately voided any claim from the de Bruin family. This was due to misrepresentation of the work that would be undertaken as stated on the workers compensation policy. This only increased the financial and emotional pressures on the family and business. However, on 22nd October 2004 I received a letter from Abbott Tout Lawyers dated 18th October 2004 claiming reimbursement of workers compensation benefits paid to Nick for the sum of $273,777.40. Currently I am unaware whether or not I have insurance support for this matter. … Fortunately, the Defendant had taken out a contractors workers compensation policy for injury in case it was ever named as a third party to a contractors claim, and even more fortunately that policy had a capital benefit of $200,000. Whilst that benefit was payable to the Defendant I decided that in consideration of the family's financial situation and in particular the fact that workers compensation was being denied as described in item 58, that I would instruct my insurers to forward the $200,000 death benefit direct to the Beneficiaries rather than to Akula Pty Ltd. This distribution to the family was made within three (3) weeks after the claim was made, which was in the immediate aftermath of Nick's death.

[37]

32 In this respect Mr Bertram deposed that: Subsequent to the Defendant company being charged with an offence under the Occupational Health & Safety Act 1983, RaiseBore Australia Pty Limited is now regarded as the third choice raiseboring contractor to carry out works for a Principal. The employees have fallen by natural attrition to only twenty-two (22) due to the lack of contracts able to be achieved by the company in the market place. In fact since September 2003 when the forthcoming trial between Rodney Morrison vs Akula Pty Ltd became industry knowledge, RaiseBore Australia Pty Limited has not been successful in a single new tendered contract. I know from personal knowledge that this matter has been the subject of wide discussion in the mining industry. I know because the extensive contacts that I have in the mining industry have regularly raised the fact of this prosecution with me and enquiring of its progress. This regularly happens when I am at a RaiseBore Australia Pty Limited worksite. For example, I was recently engaged in a tender for work from Western Mining Corporation at Olympic Dam. I was in the tender meeting and one of my competitors asked me in front of all of the principals present "How is Nick's trial going?". I was then asked questions about "Nick's trial" and I had to explain as best I could the circumstances surrounding Nicks incident and the resultant effect on myself and other staff members. Needless to say I did not succeed in obtaining that tender. RaiseBore Australia Pty Limited has survived on renewal and extension of existing contracts with loyal clients and employees who recognise the actual facts surrounding the death of Nick, and more importantly, recognise the expertise and experience retained by the company. This is in contrast with the majority of the industry which appears to take the view that the company is a "risk taker" and that to employ a company of that ilk would tarnish the reputation of the Principal. In fact, Newcrest, for whom my company had installed all but one raise, has now effectively but unofficially "black balled" my company from any of their activities since the trial was held in February 2004. This is despite being awarded the major mine development project at Ridgeway Mine of approximately two (2) years duration with two (2) large diameter raiseboring machines late in year 2000 following Nick's death. This project involved the excavation of seventeen (17) raises, a total length of 2330 metres and complemented the six (6) raises, a total length of 1056 metres excavated prior to the incident involving Nick. There has been a requirement for a raise at Ridgeway for some time with my company being the only company to have a suitable raiseborer available, and rather than use my company for the works, the requirement for the raise has been deferred time and again and is now five (5) months behind schedule. Similarly, at Newcrest's Telfer operation where raiseborers are in acute demand, I have been informed by a Principal Contractor that Newcrest would not allow my Company on site. Discussions with Newcrest mine management on site revealed that this decision had emanated from Perth office and could not be overturned. My enquiries to Perth office personnel all resulted in non committal answers basically advising me to "read between the lines". Additionally, and perhaps most importantly, Newcrest is currently developing the latest gold mining operation in Australia being at Crakow, which is located three (3) hours west of Brisbane. My company has not even been invited to Tender for the works at this site despite the fact of undertaking nearly all of Newcrest's work for many years prior to notification of prosecution. Similarly I understand that some award employees who worked at Ridgeway Mine during the development phase (when my company was undertaking the raiseboring) have requested Newcrest management at Crakow, (the same personnel as managing the contract at Ridgeway) to consider my company for the works. I assume this was due to the unquestionable success of the operation and interaction of personnel whilst the Defendant company was working at Ridgeway.

At a glance

Court

Decision date

Before

Source

Judgment (45 paragraphs)

Parties

Cases Cited (6)

Cited By (2)