NEARLY seven years after the death of Ryan Messenger, who was crushed to death by an excavator at Hunter Quarries in 2014, the legal issues are still being thrashed out in court.
The newly-married 25-year-old was operating an excavator on an uneven slope at the northern end of the Karuah quarry when it rolled over. He was crushed inside the cabin and he died at the scene.
More than a dozen people gave evidence at a 41-day hearing held in 2019, including fellow workers and his father, Brian Russell, who also worked at Hunter Quarries.
He had entered a "no-go zone" in the quarry, the court found. He had broken a "cardinal rule'' by entering a rocky slope, across a bund. He was also found to be working the excavator across the slope, rather than facing up the slope, which conflicted with general practice and Mr Messenger's training. Hunter Quarries was found not guilty.
Since then, the prosecution has lodged an appeal, and had the grounds of the appeal rejected. This month, however, the prosecution has been granted leave to appeal on new grounds.
As well as the issue of duty of care, the matter has been to court over a civil claim which tests whether compensation can be sought in relation to a workplace injury, as well as a death.
Initially, the Workers Compensation Commission found that the legislation allowed for both, seemingly setting a precedent. At the time, David Jones of Carroll and O'Dea Lawyers said the decision could change the way that workers compensation and workplace injury and death matters were dealt with in NSW. However, that decision has since been overturned in the Supreme Court.
In the meantime, Mr Messenger's family have attempted to get on with their lives. Hunter Quarries director Hilton Grugeon said on Thursday that for the people involved, the ongoing court battles were frustrating, and prolonged their distress.
"It's taken years because of the way the prosecution has gone about it, and that's their right, so long as the judge allows it," Mr Grugeon said. "The company was found not guilty, but there is no upside to it."
