Fatal Accident; Prosecution

October 31st, 2015

In July 2014, in the matter of BHP Billiton v Capon 2014 WASC 267, the Supreme Court considered whether BHP was properly convicted of an offence under section 9 of the Mines Safety and Inspection Act arising out of a fatal accident involving one of its employees in 2008 when he was carrying out remedial work on a scissor lift. The employee was 52 years old and had been working for BHP since 1985. He was a very experienced and capable fitter. He was carrying out work on hydraulic equipment located within the descent path of the scissor lift. The lift was equipped with a safety bar which when secured in position would have prevented the lifts descent.  The employees body was found trapped beneath the lift which had descended onto him and the safety bar was not in place. The deceased was well aware of the purpose of the safety bar.

Section 9 provides that;

(1) An employer must, so far as is practicable, provide and maintain at a mine a working environment in which that employer’s employees are not exposed to hazards and, in particular, but without limiting the generality of that general obligation, an employer must –

(a) provide and maintain workplaces, plant, and systems of work of a kind that, so far as is practicable, the employer’s employees are not exposed to hazards; and

(b) provide such information, instructions and training to and supervision of employees as is necessary to enable them to perform their work in such a manner that they are not exposed to hazards; and

(d) where it is not practicable to avoid the presence of hazards at the mine, provide employees with, or otherwise provide for the employees to have, such adequate personal protective clothing and equipment as is practicable to protect them against those hazards, without any cost to the employees; and

(e) make arrangements for ensuring, so far as is practicable, that –

(i) the use, cleaning, maintenance, transportation, and disposal of plant; and

(ii) the use, handling, processing, storage, transportation, and disposal of substances, at the mine is carried out in such a manner that that employer’s employees are not exposed to hazards.

(2) In determining the training required to be provided in accordance with subsection (1)(b), regard must be had to the functions performed by employees and the capacities in which they are employed.

The Mines Safety and Inspection Act defines ‘practicable’ to mean:

reasonably practicable having regard, where the context permits, to –

(a) the severity of any potential injury or harm to health that may be involved and the degree of risk of such injury or harm occurring; and

(b) the state of knowledge about –

(i) the injury or harm to health referred to in paragraph (a); and

(ii) the risk of that injury or harm to health occurring; and

(iii) means of removing or mitigating the potential injury or harm to health; and (c) the availability, suitability, and cost of the means referred to in paragraph (b)(iii).

The court considered the interpretation of the term “reasonably practicable” and adopted the High Courts approach in Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304 [53] as follows;

“The words ‘reasonably practicable’ have, somewhat surprisingly, been the subject of much judicial consideration. It is surprising because the words ‘reasonably practicable’ are ordinary words bearing their ordinary meaning. And the question whether a measure is or is not reasonably practicable is one which requires no more than the making of a value judgment in the light of all the facts. Nevertheless, three general propositions are to be discerned from the decided cases:

the phrase ‘reasonably practicable’ means something narrower than ‘physically possible’ or ‘feasible’;

• what is ‘reasonably practicable’ is to be judged on the basis of what was known at the relevant time;

• to determine what is ‘reasonably practicable’ it is necessary to balance the likelihood of the risk occurring against the cost, time and trouble necessary to avert that risk. (footnotes omitted)”

BHP was charged as follows:

On the 29th day of July, 2008 … Being an employer at a mine failed so far as practicable to provide and maintain at a mine a working environment in which that employer’s employees were not exposed to hazards and by that contravention caused the death of Andrew Terence McLaughlin, contrary to sections 9(1) and 9A(2) of the Mines Safety and Inspection Act 1994. 20

The charge was particularised as follows:

The particulars allege that the ‘hazard’ was the risk of injury or death as a result of becoming caught between moving parts of the scissor lift hoist. BHP’s alleged failures:

(a) a failure to ensure that any external hydraulic pump connected to the hydraulic system of the scissor lift hoist had a non-return valve and a controlled lowering system. This complaint was not established.

(b) a failure to ensure that any manually operated hydraulic device used to control the flow of oil to and from the lift ram circuit of the scissor lift hoist was fitted outside of the descent path of the scissor lift hoist platform. This complaint was also not established.

(c) a failure to provide and maintain a system of work in respect of the use of any hydraulic pump or hydraulic device to ensure they were operated away from the descent path of the scissor lift hoist platform.

(d) a failure to implement and enforce suitable Job Safety (Hazard) Analysis procedures in respect of the repair and modification of the scissor lift hoist. The Magistrate held that BHP was guilty of this charge but the appeal court found that;

“Within the meaning of the Mines Safety and Inspection Act s 9(1) BHP, had provided a piece of equipment, the safety bar, that would have not exposed Mr McLaughlin to the hazard of the lift descending while he was underneath it. Regardless of the absence of a JHA or adequate supervision, the evidence abundantly established that Mr McLaughlin was aware of the safety bar, and had used it frequently. Obviously he did not use it on the final occasion.

Read as a whole, the magistrate’s reasons concluded that the safety bar was the only effective way to eliminate the hazard. Mr McLaughlin, a careful and conscientious employee, knew this and frequently demonstrated his knowledge.

While there was no proper JHA performed and supervision was inadequate, there is insufficient evidence, based on the magistrate’s factual findings, to establish that causal link with death beyond reasonable doubt. To establish a causal link between the death and the lack of a JHA and inadequate supervision, more than conjecture was required as to material that could have been included in a JHA.

The prosecution had to establish beyond reasonable doubt that a JHA or adequate supervision would have prevented the death, that the lack of a JHA or adequate supervision made a substantial contribution to the death.

In view of these findings, this could not be established. The only safe method of preventing death, as Mr McLaughlin knew, was to use the safety bar.

  (e) a failure to provide instructions to and supervision of its employees, (including Mr McLaughlin) so that they were not exposed to a hazard.The Magistrate held that BHP was guilty of this charge and on the facts, the Supreme Court agreed.