Allan Houston 2018 Saraji Mine Fatality. Appeal about ability to Prosecute Manager of Production Overburden dismissed. Compulsory reading for every appointed Supervisor or higher in the management structure at Qld Coal Mines

The Industrial Court of Queensland has recently handed down its decision dismissing an appeal cease prosecution against the Manager of Production Overburden at Saraji Mine when Allan Houston was fatally injured on the the 31 December 2018.

https://www.queenslandjudgments.com.au/caselaw/icq/2023/8

Tim Fuller Saraji ICQ23-008

Every appointed supervisor under the Coal Mine Management Structure at every Coal Mine should read this decision, at least for their own protection.

The Magistrates decision for the appeal sets out a number of fundamental issues about how the Act works and imposes unavoidable Responsibilities Appointed Supervisors and above.

It has now put in plain terms how and why individuals in the Management Structure below the SSE are directly responsible under the Qld Coal Mining safety and Health Act.

Appointed Supervisors in the Management Structure need to have a long hard think and consider their own exposure should a fatality occur in an area of the mine they are assigned formal responsibility for.

The decision is quite explicit in the fact that a person does not have to be anywhere near the mine site at the exact time of the fatal incident to be charged,

Their actions and inactions over the preceding months directly relating to the fatality will be subject to scrutiny concerning

• Compliance to the Current Qld Coal Mining Act and Regulations,
• Australian Standards, Recognised Standards and Guidelines ,
• Applicable Site Safety and Health System
• Role and Responsibility Description
• Appropriate Documented Compliant Risk Management Documents and Process

The particulars of the complaint against Mr. Fuller are further dealt below.

The alleged principle safety and health obligation breached by Mr. Fuller was 39(2)(b).

30. Mr Fuller breached the obligation imposed on him by section 39(2)(b) of the Act, namely the obligation to ensure, to the extent of the responsibilities and duties allocated to the worker or person, that the work and activities under the worker’s or person’s control, supervision, or leadership is conducted in a way that does not expose the worker or person or someone else to an unacceptable level of risk;

Tim Fuller was appointed by the SSE (Site Senior Executive) as the Manager of Production Overburden at Saraji Mine and assumed the position in the Management Structure including all responsibilities and duties attached to the position.

Amongst the reasons for the appeal was that Mr. Fuller had already given notice to resign from BMA Saraji had left site on Friday the 28th and was not at work on the 31 December 2018. (New Years Eve).

Mr. Fuller finished his employment shortly after in January 2019.

If he is convicted of not discharging his obligation and the contravention has caused death he faces a penalty of 2 years imprisonment

i) for an offence committed by an officer of a corporation—3,000 penalty units or 2 years imprisonment; or

iii) otherwise—1,500 penalty units or 2 years imprisonment; or

A single penalty unit is currently $154.00.

3,000 penalty units equates to $462,000.

The particulars of the complaint against Mr. Fuller are contained on page 1o of Decision of The Hon. Justice Peter Davis President of the Industrial Magistrates Court

3. The Mine was a coal mine as defined by section 9(1)(a) of the Coal Mining Safety and Health Act 1999 (‘the Act’’);
4. BM Alliance Coal Operations Pty Ltd (‘BMA’) was an Australian registered company with ACN 67 096 412 752;
5. BMA was the operator for the Mine. It was engaged in the business of extracting coal at the mine;
6. Mr Allan John Houston (‘Houston’) was employed as a dozer operator at the Mine. He was carrying out work at the Mine on 31 December 2018. He was a coal mine worker at the mine;
7. Dragline bench preparation was being conducted on ramp two, Bauhinia Pit;
8. Preparation of the bench on ramp two required explosions in two sections to break up the interburden material. The first section was fired on 5 November 2018 and the second section was fired on 6 December 2018;
9. A large body of water was present in the pit below ramp two prior to the blasts being conducted;
10. Following the blasts, the water mixed with dirt and rock creating a muddy pool in the pit below the bench area being prepared;
11. Dozers were required to assist in the bench preparation from approximately 25 December 2018. The dozer bench preparation shifts were divided into day and night shifts and involved up to three dozers at a time working on the bench, removing large boulders and reducing the level;
12. Houston was working the dozer push night shift on 31 December 2018 along with Stephen Gallow and Cameron Fowler;
13. Houston was operating dozer Caterpillar model D1lT designated unit number DZ804;
14. At approximately 10.25pm on the 31^st of December 2018 Houston’s dozer began tramming out parallel to the bench edge towards crib;
15. Houston’s dozer passed Gallow’s dozer which was pushing at approximately a 70-degree angle to the low wall bench edge;
16. Houston’s dozer changed direction to the left, tramming towards the low wall edge;
17. Houston’s dozer drove over the low wall edge, rolling approximately 18 metres down an embankment coming to rest upside down in a pool of mud and water;
18. Houston died at the scene from aspirating mud.
19. Timothy Neil Fuller (‘Fuller’) was the Manager of Production Overburden. He was a person who may affect the safety and health of others at a coal mine;
20. Fuller was responsible for all truck and shovel burden excavation activities and drill and blast activities and management of open cut examiners (OCEs). Responsibility extended to coal mining activities when conducted with equipment generally allocated to the Production Overburden department. This responsibility included dragline bench preparation at ramp two, Bauhinia Pit;
21. Fuller’s responsibilities and duties included:

a) To ensure that all work is done within an acceptable level of risk where a Safe Operating Procedure or standard system of work has not been developed, through competent people using risk management processes and systems;

b) To develop Safe Operating Procedures according to the Coal Mining Safety and Health Regulation 2001 (Qld) and site requirements, and to ensure that Safe Operating Procedures are accessible to workers;

c) To develop and implement a Safe Operating Procedure in conjunction with Coal processing for working in and around bodies of water at the mine.

22. BMA had a safety and health management system that applied to the Saraji mine;
23. The safety and health management system did not include a procedure for dozer push bench preparation;
24. The safety and health management system included a procedure for working in and around water which was not implemented during the dozer push bench preparation on ramp two;
25. The safety and health management system included a procedure for risk management which was not implemented during the dozer push bench preparation on ramp two;
26. No risk assessment was completed for the task of dozer push bench preparation;
27. The presence of water and mud was not identified as a hazard for work being conducted on ramp two;
28. No control measures were implemented to minimise the risks associated with working around water;
29. As a result, the dozer operators utilised no additional safety precautions to prevent the dozers traveling over the bench edge;

The safety and health obligation breached by Mr Fuller

30. Mr Fuller breached the obligation imposed on him by section 39(2)(b) of the Act, namely the obligation to ensure, to the extent of the responsibilities and duties allocated to the worker or person, that the work and activities under the worker’s or person’s control, supervision, or leadership is conducted in a way that does not expose the worker or person or someone else to an unacceptable level of risk;

The risk

31. The risk to coal mine workers was of injury or death by aspirating mud or water following a dozer fall from the bench;

32. There was a high likelihood that a coal mine worker operating a dozer that falls from the bench into water or mud would suffer a serious or fatal injury;

The manner in which the level of risk was not at an acceptable level in the place of work

33. Coal mine workers operating dozers could fall from a bench into mud or water when completing dozer push bench preparation without a safe work procedure, without a risk assessment, without knowledge they are working around water and without taking additional precautions while working in the vicinity of a body of water.

34. The risk was not at an acceptable level because it was not within acceptable limits and as low as reasonably achievable having regard to the high likelihood of injury or death resulting from the risk;

The measures Mr Fuller should have taken

35. The measures that Mr Fuller should have taken to ensure that the work activities were conducted in a way that did not expose the worker to an unacceptable level of risk include:

a) To ensure the development of procedures for commonly undertaken work, namely, dozer push bench preparation;

b) To ensure training and implementation of procedures for hazards that coal mine workers might be exposed to in the course of their work, namely, working in and around water;

c) To ensure training and implementation of risk management procedures;

36. Mr. Fuller’s failure to do so meant that he failed to ensure, to the extent of his responsibilities and duties, that the work and activities under his control, supervision or leadership were conducted in way that did not expose coal mine workers to an unacceptable level of risk, as required by section 39(2)(b), and thus Mr. Fuller contravened section 34 of the Act; 37. The contravention caused the death of Mr. Houston; contrary to the Acts in such case made provided.” (emphasis added, headings are underlined on the original)

Section 34 of the CMSH Act obliges a person upon whom a health and safety obligation falls, to discharge the obligation. A failure to do so is an offence.  Section 34 provides:

34    Discharge of obligations

A person on whom a safety and health obligation is imposed must discharge the obligation.

Maximum penalty—

(b)      if the contravention caused death or grievous bodily harm—

i) for an offence committed by a corporation— 15,000 penalty units; or

ii) for an offence committed by an officer of a corporation—3,000 penalty units or 2 years imprisonment; or

iii) otherwise—1,500 penalty units or 2 years imprisonment; or