On 7 December 2021, a quarrying company was sentenced in the Toowoomba Industrial Magistrates Court for breaching section 31 of the Mining and Quarrying Safety and Health Act 1999, having failed to comply with its duty as an operator for a mine pursuant to section 38 of the Act to ensure the risk to workers while at the mine was at an acceptable level.

The defendant company operated a quarry near Toowoomba which produced road base, aggregates and crusher dust for various construction applications. A mobile crushing and screening plant (‘Mobile Crushing Plant’) was used at the quarry amongst various other items of plant. The Mobile Crushing Plant contained five belt conveyors (‘the MCP conveyors’) each of which were comprised of a belt, supported by rollers, driven by pulleys at each end. The MCP conveyors were used for moving rock material between the various components of the Mobile Crushing Plant. The combination of fast-moving rotating parts on the MCP conveyors created various ‘nip points’ at which workers could become entrapped.

For more than 16 months between 2019 and 2020, the underside of one of the five conveyors was not guarded, thereby exposing nip points. Unguarded nip points on the MCP conveyors (whilst in operation) posed a risk of death or serious injury to workers at the quarry who worked near them. The primary control for managing the risks posed by the MCP conveyors was the installation of guarding adequate to prevent workers coming into contact with nip points or moving parts. The prosecution alleged that the risk was obvious, identifiable and foreseeable, particularly as it had been brought to the defendant’s attention on no less than three occasions by an Inspector of Mines.

On 19 May 2020, a worker at the quarry sustained a minor injury after coming into contact with a nip point on the underside of one of the conveyors. The following day, an Inspector of Mines issued a directive suspending operations at the quarry until all rotating equipment was adequately guarded. Within two weeks, the defendant had rectified all guarding inadequacies.

In sentencing, Acting Industrial Magistrate Stark observed some similarities between the Mining and Quarrying Safety and Health Act 1999 (Qld) and the work health and safety national scheme, finding that there was a risk of death or serious injury. His Honour found that the principles in Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 were relevant to assessing the objective seriousness of the offending, requiring consideration of the potential consequences of the risk and its probability of occurring. His Honour found there was potential for serious injury or death.

His Honour accepted, in mitigation, the defendant’s early or timely plea of guilty, its cooperation with the investigation, and its significant post-incident measures to improve health and safety. His Honour also noted that the defendant company had been operating for nearly 50 years, had no prior contraventions and was otherwise a good corporate citizen.

The learned Industrial Magistrate referred to the maximum penalty and observed that the legislature had doubled it in 2018. His Honour considered the principles in the Penalties and Sentences Act 1992 (Qld), particularly stating that general deterrence in work health and safety matters is relevant to compel attention to occupational health and safety to ensure workers at work are not exposed to risks to their health and safety. His Honour considered that the defendant was aware the plant needed guarding from the previous inspections and guarding audit directive and was tardy in its response. His Honour reasoned that if they had installed the guarding as required, the risk of injury would have been eliminated. Similarly, given they fully complied within two weeks after the incident, the defendant was unable to explain the delay in resolving the issue.

Acting Industrial Magistrate Stark imposed a fine of $45,000 and no conviction was recorded.

OWHSP contact: enquiries@owhsp.qld.gov.au

Court Report

General
Industry
Mining and quarrying
Date of offence
Injury
Minor injury to arm
Court
Toowoomba Industrial Magistrates Court
Magistrate or judge
Acting Industrial Magistrate Stark
Decision date
Company
Legislation

Sections 31 and 38(1)(a) of the Mining Quarrying Safety and Health Act 1999 (Qld)

Plea
Guilty
Penalty
$45,000
Maximum fine available
$652,750
Professional and legal costs
$1,500 professional costs, $2,166.98 investigation costs
Court costs
$99.70
In default period
N/A
Time to pay
One month
Conviction recorded
No