The NSW Industrial Court has rejected John Holland's contention that safety charges laid against it over the Lane Cove Tunnel collapse should be dropped - as in Kirk - because the charges failed to outline what it should have done to prevent the incident.
In November 2005 John Holland Pty Ltd was constructing the Sydney tunnel when a large section of the roof collapsed.
Workers were evacuated and no one was injured, but the employer was charged with breaching ss8(1) and 8(2) of the NSW Occupational Health and Safety Act 2000, in failing to ensure the health, safety and welfare of its employees and other workers.
In March 2009 Industrial Court proceedings, John Holland argued that as the project included the extraction of sandstone and shale the tunnel was a "mine" within the meaning of the Act. The charges, therefore, were invalid, it argued, because they were instituted by a "person" (WorkCover) who wasn't authorised to investigate mining workplaces.
But the Court found that if such a claim was accepted, a site where a backyard swimming pool was being installed would have to be considered a mine. "The removal of sandstone [at the Lane Cove project] was merely a necessary incident of creating a tunnel in which to construct the underground roadway," the bench said.
Risk clearly described
In the proceedings at hand, John Holland argued that the particulars of the charges laid against it failed to allege that it "had not implemented a measure which ought to have been implemented".
Referring to Kirk, it said "it is not sufficient for the charge to allege that some general state of affairs has arisen".
"A defendant may fail to attain at a workplace the state of affairs required by the statute," it argued, "but that failure will not constitute an offence unless the prosecutor can identify (and prove beyond reasonable doubt) some act the defendant committed or some step that the defendant has failed to take which is causally related to the creation of the impugned state of affairs."
President Roger Boland, Vice-President Michael Walton and Justices Wayne Haylen and Conrad Staff noted, however, that a failure to "properly plead the elements of an offence" did not necessarily render charges invalid.
"Such a failure is to be treated as an irregularity and does not nullify the proceedings," they said.
In any event, the full bench found the "particulars that are the subject of consideration in the present proceedings are significantly more extensive than those in Kirk".
In Kirk, the bench noted, the particulars failed to identify deficiencies in the employer's system of work.
The particulars in the case at hand, however, were "extensive" (identifying, for example, a number of engineering omissions that "caused the premises to be unsafe"), and "clearly described" the risk - being struck by falling rock.
The case continues.
Inspector Hamilton v John Holland Pty Ltd [2010] NSWIRComm 72 (4 June 2010)
