Easy OHS

Contractor Fatality - Experienced Worker is No Defence

Sunday, February 07, 2010

On the 2nd of February 2010 two cases were finalised in the Industrial Court of New South Wales over the death of Kevin Hansen due to an hydraulic related incident that occurred in 2006. 

The defendants in the matter were Centennial Coal Company Ltd, Centennial Angus Place Pty Ltd and Fuchs Lubricants (Australasia) Pty Limited.   

The key points of this case relate to contractor safety.  Where specialist personnel are used - it does not negate the requirement for detailed procedures and high level engineering controls to be used for high risk activities or equipment.

Background:
Centennial Angus Place Pty Limited ('Centennial Angus Place') owned and operated an underground coal mine near Lithgow in the State. The mine was known as the Angus Place Colliery. Centennial Angus Place was, in turn, wholly owned by Centennial Coal Company Limited ('Centennial Coal').
 
Centennial Coal held a contract with Fuchs Lubricants (Australasia) Pty Limited ('Fuchs') pursuant to which Fuchs supplied oil products and services to various mines within the Centennial Coal group, including the Angus Place Colliery. The services included taking and analysing samples of solcenic emulsion contained within machinery at the mine including a pump station that provided hydraulic power.

The Incident:
On 26 July 2006, an employee of Fuchs, Mr Kevin Trier Hansen, entered the Angus Place mine for the purpose of taking samples of the emulsion from the pump station. About an hour and a half after Mr Hansen entered the mine the pump station, which was running, suffered a sudden loss of pressure consistent with a fitting being opened releasing pressurised fluid.

Fifteen minutes later Mr Hansen was found lying on the ground adjacent to the delivery end of the pump station. Mr Hansen had severe facial injuries, no pulse and there was no sign of breathing.

Cause of Death:
There were no eye witnesses to what happened to Mr Hansen, but it appears that Mr Hansen’s death occurred after he removed a metal staple from a hydraulic fitting whilst the pump station was operating. Upon the staple being removed, it was believed the fitting separated under high pressure causing the hydraulic fluid to eject straight up, striking Mr Hansen in the face and killing him.
 
Arising out of the death of Mr Hansen, both Centennial Angus Place and Centennial Coal were prosecuted for contravening s 8(2) of the Occupational Health and Safety Act 2000 ('the Act'). Section 8(2) provides:

An employer must ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer’s undertaking while they are at the employer’s place of work.

Court Case:
Both defendants pleaded guilty

Court Findings:
The presiding Judge agreed with the prosecutor on the following key points:

There should have been a system that ensured there was a written safe work method that provided:
 
a) Clear instruction as to the location of sample points

b) Provided a clearly labelled and dedicated sampling point for taking a sample from the bulk tank

Major Points to Note:
a) A key failing was to essentially rely on the experience of a senior employee to ensure the work was undertaken safely.

b)  The deceased was supplied with no more than a generic document… which contained no instruction as to how the work was to be done.
 
c) The document relied on the experience of the individual to determine the safe sample points.
 
d) There was a failure to audit or check that Mr Hansen was adopting a safe system, including by identifying safe sample points. 

Both the prosecution and defendant acknowledged the Court’s approach towards situations where experienced employees may act in such a way as to place themselves in danger. In this respect, the prosecutor referred to Inspector Simpson v Tomago Aluminium [2005] NSWIRComm 117 at [28]:

 

"It cannot be assumed that because a worker, even an experienced one, has received extensive training and instruction in relation to safety procedures that such training and instruction cancels out any possibility that he or she will not place themselves at risk in relation to a dangerous piece of machinery that is not guarded to the maximum possible degree.

Workers may act foolishly, as demonstrated in cases such as WorkCover v TRW Steering & Suspension Australia Ltd [2001] NSWIRComm 52 at [13] and Inspector Woodington v Thiess Services Pty Ltd [2004] NSWIRComm 20 at [70]. That is why the obligations on an employer under the Act require that employer to actively search out and, where it is at all possible, eliminate any risk to health and safety."

Penalties:

Centennial Coal limited the fine was $288,000
 
For Centennial Angus Place Pty Ltd the fine was $240,000  

Fuchs Lubricants (Australasia) Pty Ltd was fined an amount of $256,000

Also the companies were ordered to pay prosecution costs.

To link to the NSW Case Law Website please click below.  OHS related cases are in the Industrial Relations Commission section. 

NSW Case Law

Archive

    Download now for Free