Rodney Morrison v Tahmoor Coal Pty Ltd. Prosecution under s 15(1) of the Occupational Health and Safety Act 1983

Rodney Morrison v Tahmoor Coal Pty Ltd. Prosecution under s 15(1) of the Occupational Health and Safety Act 1983 - [2002] NSWIRComm 327 - NSWIRComm 2002 case summary — Zoe

[120]

106 The prosecutor then turned to how the defendant's failure exposed Mr Hill to a potential risk of injury. It is submitted that on 30 July 1999 the sump and its immediate environs constituted an inherently dangerous working environment because of the combination of the following factors: (i) the area was in complete darkness with the only means of visibility, or source of light being two cap lamps, one worn by Mr Hill and the other worn by Mr Hallett; (ii) without the lighting from a cap lamp, the coal mine was so black that it was completely devoid of light; (iii) on 30 July the water level at No 3 shaft (which had been rising for some time) had risen to a level where the lip of the sump was not visible. The water level had risen to the top of the brick wall or weir set back from the sump and was flowing over it. The brick wall was about 35 centimetres high; (iv) the water was brown and extremely murky so that the edge of the lip of the sump was not visible. According to Mr Stadelman, when he entered No 3 shaft following information he had received regarding an accident there, he took his cap lamp and dangled it in the water in the sump to see if he could locate Mr Hill. He lowered his cap lamp may be two feet but he could not see a light; (v) there was a guardrail some 600mm distance from the sump and circumventing the sump. It consisted of a top rail and an intermediate rail. It did not however prevent persons gaining access to the sump and to the area on the sump side of the guardrail. Mr Hallett for example went either over or through the guardrail with apparent ease when he attempted to assist Mr Hill; (vi) the area at No 3 shaft was remote and inaccessible. (a) No 3 shaft was originally built to provide ventilation for the shaft. The area was a noxious area known as general underground area. Work was not normally carried out there as it was not a production district. Mr Hamer was not aware of any other kind of work performed there other than inspections and changing pumps; (b) the route to No 3 shaft taken by Mr Hill and Mr Hallett on 30 July involved them taking transportations from pit bottom and travelling to three trap doors. From there they travelled on foot carrying an Air 2000 pump and a foot valve through a mesh fence and up to the shaft area. Following Mr Hill's accident, Mr Hallett went to an area designated No 3 Worthington Pumps in order to use the telephone. It took him about five minutes to get there walking reasonably quickly. Mr Hallett spoke to another person at the pit top and then walked to a transport road to await transport. The road was some 400 to 500 metres from the Worthington Pumps area. When Mr Stadelman was informed that there had been an accident at No 3 shaft he was some three kilometres away. He travelled there in transport up to the triple ventilation door and continued from there on foot. When they arrived at No 3 shaft there was no one there and they searched for Mr Hill in the sump without success. Mr Stadelman estimated that the journey to No 3 shaft took about 20 to 25 minutes. They spent a further 20 minutes at No 3 shaft and then went into E Heading in order to attempt to make telephone calls. They were unable to do so because the telephone was not working properly.

[139]

126 The fact that there was no written or oral procedure in place did not advance the prosecution case. There was nothing in the evidence to suggest that the lack of those procedures created a relevant risk. Indeed, the system of work was able to be established from the evidence and this was not unusual in cases under the Act. In any event, a piece of paper with instructions may not amount to a safe system of work or amount to an effective safe system of work. From the evidence, it was established that the system of work was that the pump had to be brought on to the site and in order for that to be done an external mesh barrier had to be breached. The area was certified as safe for work by the Mine Deputy. In relation to the pump, the hoses had to be removed and reconnected to the new pump. Mr Hallett had assisted in this task before and recognised Mr Hill to be the expert on working with pumps. Mr Hallett knew what the tasks were that had to be performed before he was at the work site and there was no difficulty involved in those tasks. They both had training and experience which enabled them to understand what they were to carry out in the way of work on that day. Further, Mr Hill had installed the pogo stick, and attached it to the bottom rail of the handrail. While operating the pogo stick the foot valve at the end of the suction hose could be extracted from the sump without difficulty and in a way which did not involve, for any purpose, the movement from the safe side of the handrail to the other side of the handrail. That was the system of work and it did not involve anybody going over the handrail. The handrail was there to prevent inadvertent entry into the sump. The handrail was constructed to the Australian standard. It was Mr Hallett's evidence that there was no reason he knew of why a person would go to the other side of the guardrail in order to perform this work. That view was supported by a number of others, both experienced investigators and persons experienced in mine works. Those investigators saw the system of work that kept the employees on the safe side of the guardrail but could not find a reason for Mr Hill being on the other side of the guardrail.

[151]

138 In relation to Mr Hallett's evidence about the bobbing movement he observed taking place before Mr Hill sank below the water, the defendant submitted that this evidence raised the possibility, dealt with in Detective Thomson's statement and investigation, that Mr Hill may have decided to get into the sump. That was another reasonable hypothesis which did not have to be proved as a fact. In circumstances where there was no reason disclosed on the evidence for Mr Hill to be in that sump, then the reasonable hypothesis available on the material, consistent with innocence, in respect of the particular charge, should be weighed in favour of the defendant. In this respect, the defendant relied upon the judgment of Gibbs CJ and Mason J in Chamberlain v The Queen (No 2) (1983-1984) 153 CLR 521 at 536, namely: It follows from what we have said that the jury should decide whether they accept the evidence of a particular fact, not by considering the evidence directly relating to that fact in isolation, but in the light of the whole evidence, and that they can draw an inference of guilt from a combination of facts, none of which viewed alone would support that inference. Nevertheless, the jury cannot view a fact as a basis for an inference of guilty unless at the end of the day they are satisfied of the existence of that fact beyond reasonable doubt. When the evidence is circumstantial, the jury, whether in a civil or a criminal case, are required to draw an inference from the circumstances of the case; in a civil case the circumstances must raise a more probable inference in favour of what is alleged, and in a criminal case the circumstances must exclude any reasonable hypothesis consistent with innocence. In Haynes v C I & D Manufacturing Pty Ltd, a Full Court of the Industrial Court made the following observations in relation to a case of circumstantial evidence: As observed by Schmidt J, there was no direct oral evidence of what actually occurred. … the case therefore turned on circumstantial evidence. Her Honour approached the assessment of such evidence, correctly in our view, by reference to what was said by Dixon J, with whom Latham CJ agreed, in Martin v Osborne (1936) 55 CLR 367 at 375 - 'if an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference'. For ourselves we would only add what Dixon J further said in that respect in the same passage (at 375): In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed. The circumstances which may be taken into account in this process of reasoning include all facts and matters which form constituent parts or ingredients of the transaction itself or explain or make intelligible the course of conduct pursued. The moral tendencies of persons, their proneness to acts or omissions of a particular description, their reputations and their associations are in general not matters which it is lawful to take into account, and evidence disclosing them, if not otherwise relevant, is rigidly excluded. But the class of acts and occurrences that may be considered includes circumstances whose relation to the fact in issue consists in the probability or increased probability, judged rationally upon common experience, that they would not be found unless the fact to be proved also existed (at 152-153). Here, there was a tragic accident but the fact of its circumstances, being inexplicable, was a significant matter and a very significant matter in light of Detective Thomson's evidence regarding the investigations he undertook.

[163]

151 The issue of causation was central to the defendant's case. In that context it is appropriate to refer to the judgment of the Vice-President, Walton J in WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 1) at 253: As previously mentioned, the defendant raised the question of causation. Many decisions of this Court and its predecessors have demonstrated that the mere occurrence of an accident causing injury to an employee is not in itself sufficient to establish the commission of an offence under s 15(1). It is necessary to establish both a relevant 'failure' on the part of the employer and a 'causal nexus' between the conduct of the defendant and the consequent risks to the health, safety and welfare of its employees: (see McMartin v The Broken Hill Proprietary Co. Ltd (2000) 100 IR 241; Drake Personnel Ltd v WorkCover Authority (NSW) (Inspector Ch'ng) (1999) 91 IR 432 at 449; Cullen v State Rail Authority (NSW) (1989) 31 IR 207 at 209; State Rail Authority (NSW) v Dawson (1990) 37 IR 110, at 120-121; Haynes v C I & D Manufacturing Pty Ltd 1995) 60 IR 149, at 1560157 and Kirby v A & M I Hanson Pty Ltd (1994) 55 IR 40 at 49-50). There must be a causal connection between the alleged conduct of the defendant and the alleged risk, that is, the alleged failure must cause the detriment to the safety of the person concerned: see WorkCover Authority (NSW) v Maitland City Council (1998) 83 IR 362 at 377. However, it is not necessary to demonstrate a causal connection between conduct of the defendant and the precise circumstances of the accident which gave rise to the prosecution. Rather, the causal connection must be between that conduct and the risk to safety. In Drake (at 452-453) the Full Bench stated: The general duties created by the OH&S Act are directed at obviating 'risks' to the health, safety and welfare of persons in the workplace: see Haynes v C I & D Manufacturing Pty Ltd (1995) 60 IR 149 at 158-159. The occurrence of an accident and the sustaining of injuries by an employee will certainly represent relevant evidence of the existence to the health and safety of employees and the seriousness of that risk. However, it is not the accident itself which constitutes the offence, but rather the failure of the employer to ensure that its employees are not exposed to risks while at work. This consideration is carefully explained in a decision of the Full Court of the then Industrial Court of NSW in Haynes. Commenting on the reasoning of the trial Judge, their Honours said (at 156-157): The commencing point of her Honour's consideration of the evidence was the uncontroverted fact that the death of Mr Chen was caused by the front end loader hitting him as it came to a stop over the pit in which he was working removing the slurry. Her Honour then, correctly in our view, commented that '(t)he occurrence of the accident itself does not however establish the commission of the alleged offence': see Dawson (at 120-121) and McMartin v The Broken Hill Proprietary Co Ltd (at 244). But, her Honour then concluded, concerning the case against Manufacturing that: '(I)t needs to be established that some action taken by (Manufacturing), or the failure to take some action, was casually connected with the front end loader hitting Mr Chen. It seemed to (her Honour) that to approach the question of the commission of the offence in any other way, would be to remove the requirement placed upon the Prosecution to establish, beyond reasonable doubt, that it was the defendant which failed to 'ensure the health, safety and welfare at work' of Mr Chen and Mr Ding. The prosecution of Industries was considered by her Honour according to '(M)any of the comments … made in relation to the prosecution against manufacturing'; again, a causal connection between some act or omission by Industries and the accident was found to be necessary. Her Honour focussed attention of the accident itself, that is the front end loader hitting Mr Chen, as the relevant detriment to safety with which the respondents were charged. We think that approach emphasised too much the accident itself as the relevant detriment to safety of persons on the site. That over emphasis led to a misunderstanding by Her Honour of the real facts disclosed by the circumstantial evidence and the proper inferences to be objectively therefrom. Sections 15 and 16 of the OHS Act are both concerned with failures to ensure the health and safety of persons at workplaces in terms inter alia of 'risks' thereto; thus, the sections, even absent any actual accident causing death or bodily injury, nevertheless comprehend the commission of an offence where the relevant 'detriment to safety' (as spoken of in Dawson v McMartin is but a risk, or in other words, where the circumstances are such that an employer's act or omission has created a situation of potential danger to the health and safety of persons at his workplace. The OHS Act, as its long title, indicates, has the prime purpose ' (t)o ensure the health, safety and welfare of persons at work' and that stated purpose may only reasonably be achieved, it seems to us, by construing the general duties or obligation cast on employers by Div 1 of Pt 3 thereof (which contains ss 15 and 16) as both preventive and remedial in nature, that is, both before and after the occurrence of an actual accident. We adopt that reasoning as a correct statement of law and principle in relation to Section 15 of the Act.

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