Conviction recorded in the first category 1 prosecution under the Work Health and Safety Act
Greg McCann, Douglas Prime
27 February 2018
In brief: Mining and quarry operators and workers must be aware of their obligations to ensuring the health and safety of all persons at the mine site and others that are impacted by the mines operations
In August 2014, a resident living in a cottage on a quarry suffered electrocution whilst having a shower in the bathroom of the cottage.
Cudal Lime Products Pty Ltd (CLP) operated an open cut limestone quarry (Quarry) at Cudal in New South Wales. The quarry was a mining workplace to which the Work Health and Safety Act (NSW) 2011 (Act) and the Mine Health and Safety Act applied. The cottage, which was owned by the quarry, received its electrical power from the quarry which was located 200 metres away.
The NSWDC in Stephen James Orr v Cudal Lime Products Pty Ltd; Stephen James Orr v Simon Shannon  NSWDC 27 has recently decided the first prosecution under the Category 1 offences provided for by the Act.
The objective seriousness of contraventions of work health and safety duties are graded pursuant to three categories, with category 1 being the most serious offence. Section 31 of the Act provides an offence for a person who, without reasonable excuse, engages in conduct that exposes an individual to whom a duty is owed to a risk of death or serious injury or illness, and is reckless as to the risk of death or serious injury or illness. The maximum penalty for a corporation under section 31 is $3 million.
CLP pleaded guilty to contravening sections 19(2) and 31 of the Act. The offending conduct of CLP resulted in the fatal electrocution of the de-facto partner of a quarry worker who both occupied the cottage. On the morning of the incident, the quarry worker left the cottage and commenced operating the crusher at the quarry. On his return to the cottage later that morning he found his de-facto partner in the shower.
The Production Operator/Team Leader, Simon Shannon, who was employed by CLP had worked at the Quarry for a number of years. Mr Simon Shannon, who held no electrical qualifications, undertook electrical work on equipment at the quarry.
The Court found considerable noncompliance with the relevant Australian standards, which included insufficient safety mechanisms within the quarrie's switchboard, an ineffective automatic disconnection of electricity supply and poorly maintained cables. The risk of death manifested when a crusher was being operated within the quarry that was connected to the hazardous power supply, with the electrical current subsequently passing through to the cottage and charging its metallic fixtures whilst the victim was in the shower.
The Court found that the direction by CLP to Mr Simon Shannon to undertake work on the switchboard was motivated by a desire to save costs. The Court stated:
"the direction of an unqualified person to install the switchboard to save costs was an act devoid of social utility, so that the foresight of the possibility of the risk of serious injury or death arising was sufficient to constitute recklessness."
The Court found that the risk of death was foreseeable and that there were a number of reasonably practicable steps available to eliminate this risk
The reckless disregard by CLP of the risk was aggravated by a history of electrical issues at the quarry that ought to have put CLP on notice of the need to maintain and improve the safety of the mine.
Ultimately, CLP was fined $1.2 million, which was discounted by 25% to a fine and conviction of $900,000 as a result of its guilty plea.
Further, Mr Simon Shannon entered a plea to the less serious offence available under s 32 of the Act. The court determined a fine of $64,000 which was reduced by 25% for the plea of guilty to a conviction and fine in the amount of $48,000.
This article has been published by Colin Biggers & Paisley for information and education purposes only and is a general summary of the topic(s) presented. This article is not specific legal advice. Please seek your own legal advice for any questions you may have. All information contained in this article is subject to change. Colin Biggers & Paisley cannot be held responsible for any liability whatsoever, or for any loss howsoever arising from any reliance upon the contents of this article.