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Nash v Austerberry Directional Drilling Services Pty Ltd [2013] NSWIRComm 37

A company was fined $170,000 following the avoidable death of a worker on an exploration project in a decision handed down on 22 May 2013 by the NSW Industrial Court. The Court was critical of Austerberry Directional Drilling Services Pty Ltd's failure to implement and maintain an adequate, documented risk management system generally and also found that the company did not have a safe work method statement or a documented job safety analysis or risk assessment for the task that caused the worker's death.

Background

In 2009, the company was engaged by Eastern Energy Australia to install a pipeline at Bohena Creek in north-west New South Wales, as part of a coal seam gas exploration project.

On 31 July 2009, the pipeline became stuck and could not be pulled through the bore hole as anticipated. A meeting was held later that day between site supervisors and workers to discuss how to rectify the issue. A decision was made by the sole-director of the company, Shayne Austerberry, and the site supervisors to try and pull the pipeline out of the ground.

Six attempts were made on 31 July 2009 to retrieve the pipeline, but were without success. On 1 August 2009, Mr Austerberry proposed and initiated the use of an excavator in their ongoing attempts to retrieve the pipeline.

Bruce Austin, a worker assisting the project but not directly employed by the company, began operating the excavator and managed to extract approximately 35 metres of the pipeline. It was observed that Mr Austin was having some difficulty reversing the excavator, so Mr Austerberry took over. Mr Austerberry told Mr Austin to "keep out of the road and go sit down there", which was a log approximately 17 metres from the pipeline.

At about 3.45 pm, the chain connecting the excavator to the pipeline broke (for the second time that day) and the pipeline recoiled into the ground. Mr Austin was found lying on the ground adjacent to where the pipeline entered the ground. He was transferred to hospital and died some days later as a result of the injuries he sustained from being struck in the head by the recoiling pipeline.

The decision

The company was charged and plead guilty to an offence under section 8(2) of the now repealed Occupational Health and Safety Act 2000 (NSW). The charge stipulated that the company had failed to ensure that people (other than employees) were not exposed to risks to their health and safety arising from the conduct of its business or undertaking. The charges stated that the company had:

  • exposed Mr Austin to the risk of being struck by a recoiling pipeline causing injury
  • failed to conduct or record a risk assessment of the task being undertaken
  • failed to determine a safe work method for the task being undertaken
  • failed to ensure that no person (including Mr Austin) would be in a position where they may be struck by the recoiling pipeline
  • failed to establish an exclusion zone for the area in which the task was being undertaken, and
  • failed to take steps to prevent the pipeline from recoiling.

The matter was heard before his honour Justice Staff on 29 April 2013. On this occasion, his Honour accepted the plea and found the company guilty of the offence.

In determining the appropriate sentence, Justice Staff emphasised that it was "clearly foreseeable that after the chain had broken on the first occasion that it may break again and if it did, the pipe would recoil, creating a risk of injury to any person who might be struck by the recoiling pipe".

The company maintained that it has conducted several toolbox talks when the pipeline became stuck; however, there were no records or documentary evidence regarding these meetings. Similarly, there were no records conveying that Mr Austin had been inducted to the site and the work methods adopted by the company. In addition, it was accepted that the company had failed to provide adequate instructions and supervision to workers about the risks associated with the retrieval process and the appropriate control measures to be implemented.

Taking into account the circumstances, together with the company's remorse, early plea and co-operation with the Regulator, Justice Staff imposed a penalty of $170,000 and an order to pay the Prosecutor's costs.

Lessons for employers

Businesses that work on sites need to make sure they document their safe systems of work, which can include safe work methods, toolbox talks, job safety analysis and risk assessments, to prove that they have established a safe workplace.

The decision highlights the need for developing and implementing a dynamic approach to work health and safety, particularly in industries that are inherently dangerous or have frequently changing tasks. It is essential to provide clear instructions to workers on safe work methods and alerting them to any potential risks.

Further information

If you have any questions about the issues raised in this article, or about creating and maintain a safe workplace generally, please contact:

  • Carlie Holt, Partner
    t: +61 2 9373 1412 | e: carlie.holt@sparke.com.au
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