Bushfires & safety prosecution risk – company found guilty of OHS breaches


Posted By on 3/12/19 at 12:13 PM

This update comes at a time when people and businesses in Queensland and New South Wales are dealing with the aftermath of a recent bushfire crisis.  In addition to the fire damage, recovery bill and insurance claims that will flow from these devastating bushfires, a recent Victorian Supreme Court jury finding is a reminder for businesses in bushfire-prone areas to develop and implement a fire mitigation strategy.

Background

A fire in a mine, caused by bushfire embers, burned for 45 days in February and March 2014, sending smoke and ash across the Latrobe Valley and causing health problems to mine employees, emergency services workers and community members.

The Victorian Government conducted an inquiry into the mine fire (the Hazelwood Mine Inquiry 2014-2016). The Inquiry’s Terms of Reference required the Board to inquire into and report on a range of issues, including the origin of the fire, the firefighting response, fire prevention and preparedness measures taken by the owner, operator and licensee of the mine and regulatory agencies, the fire’s impacts on the health and wellbeing of affected communities, and the response to the health emergency. The full report and 18 recommendations can be accessed here.

Members of the Latrobe Valley community allegedly experienced adverse health effects from the fire. In August 2019, an excavator operator exposed to coal and pollutants while fighting the mine fire was diagnosed with a rare interstitial lung disease and autoimmune condition, and has obtained court-ordered compensation for life-threatening illnesses.

Bushfires caused a mine fire at Hazelwood

Safety Prosecution and Outcome

Hazelwood Power Corporation Pty Ltd (HPC) was prosecuted with 12 charges for breaches of ss21 and 23 of the Occupational Health and Safety Act 2004 (Vic) (OHS Act) in relation to that devastating fire.  HPC pleaded not guilty to the charges.

After an 8-week trial, a Victorian Supreme Court jury recently found that HPC was guilty of 10 of the 12 charges.  Specifically, HPC was found guilty of the following under the OHS Act:

  • failing, so far was reasonably practicable, to provide employees with a safe working environment at the Hazelwood coal mine and power station (five charges); and
  • failing to ensure, so far was reasonably practicable, persons other than employees were not exposed to health and safety risks (five charges).

The Court found that HPC did not adequately prepare for the fires by failing to:

  • perform an adequate risk assessment of the possibility of a fire in the northern batters of the mine in accordance with the Victorian OHS regulations;
  • have enough staff on hand with the expertise to instantly fight and suppress fires, despite the presence of nearby bushfires, coupled with the knowledge of high temperatures and strong wind;
  • have an adequate reticulated fire water pipe system to the northern batters;
  • slash vegetation in non-operational areas; and
  • wet down batters on the morning of a forecasted extreme fire danger

HPC was found not guilty in relation to two charges concerning failure to install an alternate power supply to operate the mine fire water system.

The sentencing decision and penalties will be determined by the Court at a later date.  The current maximum penalty per breach is approximately $1.5m (indexed annually).

This recent jury outcome places all businesses on notice that planning for bushfires and implementing protective measures is required to reduce exposure of workers and others to health and safety risks, particularly where businesses operate in bush fire prone areas.

It’s not just major hazard facilities that need to be alert to bushfires and the risks to business assets and people.

Key Takeaways

It’s important when it comes to managing safety risks to consider outside external sources of risk to our business and people.

Have a look at your surroundings, including nearby businesses and activities, and identify and assess the risk of any external fire hazard that may expose workers and others to health and safety risks. Map out and implement the measures you will take to reduce exposure, including the following steps:

 

Safety - fire risk prevention

 

If you want to have a chat at any time on safety risk mitigation strategies arising from sources external to or within your business, please just give us a call.

KHQ Lawyers - Gina Capasso

Gina Capasso Principal Solicitor

Gina has longstanding experience in workplace health and safety, industrial relations and employment law and joined KHQ Lawyers having come from multinational top tier and national firms in Australia.

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