Excavator 1200 x 626
News 21 November 2019

Employer acquitted after being charged over a workplace fatality

A PCBU (Employer) charged over a fatality has been acquitted, with the court finding it had successfully eliminated the relevant risks through a wide range of controls for "many years", and could not have foreseen that the killed worker would operate mobile plant in a hazardous no-go area.

“While a person conducting a business or undertaking must guard against the possibility that an employee may be careless or inadvertent in carrying out a task, there is a line to be drawn between such behaviour and the deliberate and unforeseeable flouting of rules in the workplace and the training given to employees,” NSW District Court Judge David Russell said.

In September 2014, a Hunter Quarries Pty Ltd machine operator was operating a 45-tonne excavator on an uneven, boggy slope at the PCBU’s Karuah hard rock quarry when the vehicle overturned and a large rock penetrated the cabin, causing fatal injuries to the worker.

The Resources Regulator charged Hunter Quarries with breaching sections 19 and 32 of the NSW WHS Act in exposing the worker to the risk of death or serious injury by failing to: fit the excavator with a rollover protective structure (ROPS) or similar safety equipment; or implement adequate procedures to eliminate or minimise the risk of the excavator overturning (see related article).

The regulator told Judge Russell that the Hunter Quarries operations manager’s risk assessment of the excavator was little more than a “form filling exercise”, which wasn’t conducted in consultation with supervisors or operators, didn’t involve any real analysis and made no mention of a ROPS, which showed the manager didn’t even consider installing a protective structure and constituted a significant omission.

But the Judge found the prosecution failed to prove all the elements of the offence beyond reasonable doubt.

He found that on the morning of the incident, a supervisor instructed the worker to use the excavator to build a bund across the end of a haul road, and then perform trench digging work near the road.

When the excavator rolled onto its side, however, the worker was slewing its fully extended boom with a 2.92-tonne rock in the bucket in an unstable no-go zone, he found.

To get there, the worker had breached a well-known quarry rule by driving across and flattening a safety bund; he had not been instructed to enter the zone and had no reason to be in the area, which wasn’t going to be blasted or mined, Judge Russell found.

He also found the PCBU, which pleaded not guilty to the charges, only permitted excavators to be operated on flat, stable ground, and no quarry employees, managers or safety inspectors had ever seen an excavator being operated: after crossing a bund; in a no-go zone; on a slope or unstable ground; or with the boom fully extended in a hazardous area.

Significantly, the expert evidence showed the excavator, which had a wide track, a very low centre of gravity and counterweights, could not tip over while operating on flat, stable surfaces, he said.

“The risk of an excavator overturning (and thus the risk of death or serious injury from an excavator overturning) has been successfully eliminated over many years of operation at the [PCBU’s] quarry, by administrative controls. Those controls have included the training of workers, the prescription of certain safety rules, and the reinforcement of those rules, by toolbox talks, safety documentation and further training,” Judge Russell said.

“The risk of death or serious injury from the excavator overturning on the day of the accident was not reasonably foreseeable. It follows that it was not reasonably practicable for the [PCBU] to make provision against the happening of such event,” he said.

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