NSW District Court Judge Andrew Scotting found Young Mining Company “took no steps” to manage the risk, which could have been reduced or even eliminated. Photo: Gunlake Quarry.
A company that had “actual knowledge” of risks to its employees before a workplace incident left an employee injured and partially buried in rock has been found guilty.
In the NSW District Court, Judge Andrew Scotting found Young Mining Company (YMC) – the operator and owner of the Thuddungra Mine – and a director, Aditya Jhunjhunwala, guilty of workplace health and safety offences. Both had pleaded not guilty.
Their charges related to an incident that occurred at about 3 pm on 10 August 2021 at the open surface magnesite mine – located north-west of Young in the NSW Southern Slopes – when the victim slipped and fell into an unguarded chute.
He had worked at the mine on a casual basis since August 2020, before being trained on the photometric plant (PM) in early 2021.
Another worker had loaded about one tonne into the feed bin when the victim saw there could be a blockage, as the conveyor motor was operating, but the belt was not moving.
He pulled the lanyard, walked to the northern side of the conveyor and looked into the chute. He fell as he turned to leave.
Judge Scotting said that at the time of the incident the PM was “in a state of disrepair” and didn’t have the appropriate guarding and emergency stop controls.
“[The second worker] heard a yell, noticed the PS25 belt had stopped, grounded the loader, and went to investigate,” he said.
“Seeing [the victim] partially buried, he pulled the lanyard, which did not stop the plate feeder. He then jumped over the conveyor and switched off the plate feeder at the isolation switch underneath the bin.”
Two workers were needed to dig him out by hand, with that process taking about 20 minutes.
Ultimately, he was found to have suffered a serious crush injury to his chest, fractured ribs and a lumbar spine injury.
He was hospitalised for three days.
Judge Scotting said the situation was foreseeable and found the company had acted with gross negligence.
He pointed to prevention methods in the mine’s safety policies, particularly in its Safety Management System, or SMS, and Australian safety standards that could have reduced or eliminated the risk.
The SMS document also contained “ways of eliminating or minimising the risk”, giving YMC “actual knowledge” of how a similar incident could be avoided.
“YMC took no steps to control a risk of death or serious injury, when it had actual knowledge of the risk and how to control the risk and the control measures were simple, convenient and inexpensive,” Judge Scotting said.
“YMC had in place a documented SMS that would have been effective, but it chose not to implement it. Taking into account all of the evidence, I am satisfied that YMC made expenditure decisions that prioritised production over safety.”
The company kept using the PM, despite knowing it had major defects that, according to its own SMS document, should have seen it taken out of service.
He also said the situation “developed over time”, with loose material on the conveyor, the lack of a guard on the chute and other unsafe work practices used at the mine contributing to the incident.
This left the victim with “regular exposure” to the hazard, which was known to other people employed by YMC.
“YMC took no steps to assess the risk posed to workers by the work methods adopted for clearing the repeated blockages at the discharge point of the bin,” he said.
“The risk to workers, particularly [the victim], had existed for several months, although the prosecutor only alleged that [the victim] was exposed to a risk of death or serious injury on the day of the incident.”
In his decision, Judge Scotting noted that safety documents had out-of-date references and there was “very little structured safety training” for workers, including on risk management procedures in the SMS.
He also said it was known that since 4 October 2019 the emergency stop lanyard needed upgrades and repairs, and that it didn’t stop the plate feeder.
“YMC took no steps to control the risks posed by the presence of the loose material in close proximity to the unguarded chute,” he said.
“YMC more generally allowed the PM to fall into a state of disrepair over a period of months before the incident and prioritised expenditure that would increase production over expenditure that would ensure that the PM could be operated safely.”
Judge Scotting also found that Mr Jhunjhunwala was an officer of YMC and he had failed in his workplace health and safety duties.
He had been nominated as Managing Director of YMC and described as the “PCBU – Overall manager of the site” in the SMS, according to the decision.
Judge Scotting found that he failed to implement the SMS.
“I am satisfied that Mr Jhunjhunwala knew from his observations and discussions with the quarry managers that the SMS was not being implemented at the mine,” he said.
YMC was found guilty of engaging in conduct that exposed the victim to a risk of death or serious injury, and engaging in that conduct with gross negligence.
Aditya Jhunjhunwala was found guilty of failing to comply with a health and safety duty, thereby exposing a person to a risk of death or serious injury.
Both will return to court for sentencing at a future date.
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