$100,000 added to fine on appeal

By Jeff Salton on May 25th, 2017

An important new decision has been handed down that demonstrates to employers they must properly assess risks to health and safety and that there is no excuse for not having licensed supervisors when the law requires one.

In the decision of Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd (2017), SafeWork NSW successfully appealed a judgment of the District Court on the basis that a manifestly inadequate fine had been imposed.

The Court of Criminal Appeal agreed with SafeWork NSW that the District Court judge failed to correctly determine the objective seriousness of the offence and the appropriate discount for the company’s early plea, when deciding on the level of the fine to be imposed.

The fine was increased by the Court of Criminal Appeal from $112,000 to $212,500.

Background

Silver City Drilling (the company) was a contractor operating a drilling rig at the Ashton Coal Mine. An employee of the company, Mr Kuypers, was operating the drill rig from a hinged platform on the side of the rig. The outlet pipe that discharged the drilled matter, known as the ‘blooie line’, was positioned beneath the platform on which Mr Kuypers stood.

A 90-degree elbow joint had been fixed to the discharge end of the blooie line to direct the discharge downwards into a sump. Such a joint is usually used on the other, collar end of the blooie line to prevent ‘blow-outs’ and the use of the elbow joint in this way was not the usual approach.

A spike in the pressure of the discharged contents caused the elbow joint attached to the blooie line to launch suddenly upwards. As the blooie line was not welded or firmly attached, this caused it to pivot on a hinge and force the operator’s platform suddenly upwards with significant force. Mr Kuypers was crushed against the drill rig control console by the platform, suffering injuries to his neck and spinal cord that rendered him a paraplegic and caused constant pain and ongoing psychological trauma.

The company was charged for breaching s 19(1) of the Work Health and Safety Act 2011 (NSW). The company pleaded not guilty, only to change that plea on the first day of the trial to a plea of guilty. In sentencing the company, a fine of $112,000 was imposed being $150,000 with the maximum 25% discount for entering a guilty plea.

The Court declined to order that the company pay the prosecutor’s costs.

Inadequacy of the fine

The Court of Criminal Appeal found that the sentencing judge had mistaken material facts and engaged in an erroneous process of reasoning in assessing the risk of injury posed by the company’s breach.

In particular, the sentencing judge wrongly assumed that the relevant risk to be considered in sentencing was the risk of the blooie line moving upwards, whereas, in fact, the real risk was the risk of using an improvised work method with the potential to cause the platform to move upwards.

Further, although the actual incident itself was caused by the interaction of three distinct factors – the sudden movement of the line, the positioning of the line under the platform and the lack of attachment of the platform – the imposition of the penalty was not related to the foreseeability of those three factors occurring at once, but rather related to the foreseeability of a serious injury arising from the use of an improvised work method.

The Court also rejected the view that the work method was consistent with industry practice.

Finally, the Court also placed significance on the fact that the company knew that a class 4 licence-holder needed to supervise the drilling, and failed to meet this standard.

Risk assessments

Conducting and implementing the findings of a risk assessment are not tasks to be taken lightly, as this case study shows.

In the Health & Safety Handbook, one of the 70-plus chapters – R3 Risk Assessment – deals specifically with this subject.

Used in conjunction with chapter H1 Hazard Identification, chapter R3 explains the second step in the risk management process: how to assess the level of risk associated with hazards you have identified in your workplace and, based on that assessment, how to determine urgency when implementing risk controls.

Written in plain English by the workplace health and safety experts at Holding Redlich, the Health & Safety Handbook covers in great detail all aspects of workplace health and safety, what your legal obligations are to your workers and how you can apply them at your place of work.

Don’t delay, get your copy of the Health & Safety Handbook on an obligation-free trial and put it to work in your business.





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