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Reasonable doubt that failure to instruct was fatal

Release Date

14 August 2014

Latest news from WorkplaceOHS: By John Golden on 11 August 14

Hebebuehne_Scissorlift_wikimedia_WOHS_11Aug2014-(1).jpgThe WA Supreme Court set aside much of a conviction that exposed an employer to a penalty for causing the death of a worker in a mining accident.

Instead the court found the employer guilty of failure to maintain a working environment in which employees were not exposed to hazards.

[Full text of this case: BHP Billiton Iron Ore Pty Ltd v Capon [2014] WASC 267 (28 July 2014)]

Justice McKechnie found the employer’s failure to follow its own procedures and Job Hazard Analysis (JHA) meant it was liable to receive a penalty under s9A(3) of the Mines Safety and Inspection Act 1994 but was not liable under sec 9A(2).


The accident

The work on the day the fatality occurred involved fitting a tee piece to an oil line associated with the ram. Mr M connected a ball valve to the tee with a quick connector. Not long after, Mr M's body was discovered trapped beneath the scissor lift which had descended onto him. The safety bar was not in place.


Safety breach, but cause of death unclear

Justice McKechnie found the findings of the magistrate were sufficient to establish a breach of safety duties, but the evidence did not establish beyond a reasonable doubt the cause of the worker's death was directly caused by the employer’s failure to instruct or supervise.


Reasoning behind decision

The employer had procedures in place to instruct and supervise employees but did not follow them. It did not enforce its own requirements for JHAs to be completed. In the circumstances the appellant is at least liable to conviction under s9A(3).

In order to sustain a penalty under s9A(2) the prosecution must link by proof beyond reasonable doubt both the contravention and the cause of death.

The flaw in the magistrate's reasoning was that although the employer failed to take all reasonably practicable steps by way of instruction and supervision to reduce the exposure to hazards, the operative cause of the death of Mr M was the platform descending on him while he was (for whatever reason) underneath the scissor lift platform.

The scissor lift descended because the safety bar was not in place. This was a recognised safety measure about which Mr M had demonstrated knowledge repeatedly. On all the evidence Mr M, a conscientious and careful employee, knew of the hazard and knew of the one step which would undoubtedly prevent the hazard occurring: fitting the safety bar.

While other steps should have been taken – better supervision and a JHA being completed for the job – it could not be established beyond reasonable doubt that the failure to supervise or instruct was the cause of death.

The bottom line: Prosecutions for safety breaches are criminal matters and a high degree of proof is required to establish the prosecutor’s case.

BHP Billiton Iron Ore Pty Ltd v Capon [2014] WASC 267 (28 July 2014) 



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