BETWEEN : HENRY WALKER ELTIN CONTRACTING PTY LTD

Criminal law - Occupational health and safety - Failure to provide and maintain a working environment in which employees not exposed to hazards - Contravention causing death of employee

Criminal law - Occupational health and safety - Sentencing - High risk of serious injury causing death of employee - Maximum penalty $200,000 - Fine of $75,000 upheld

Mines Safety and Inspection Act 1994, s 9(1)

Appeals against conviction and sentencing dismissed

Boral Gas (NSW) Pty Ltd v Magill (1995) 37 NSWLR 150

Broken Hill Associated Smelters Pty Ltd v Stevenson (1991) 42 IR 130

Bunnings Forest Products Pty Ltd v Shepherd, unreported FCt SCt of WA; Library No 980235; 5 May 1998

Byrne v Baker [1964] VicRp 57; [1964] VR 443

Carcosa Pty Ltd v Czerwaniw as agent for the Department of Health (1997) 93 A Crim R 287

Chugg v Pacific Dunlop Ltd [1988] VicRp 49; [1988] VR 411

Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249

Cullen v State Rail Authority of NSW (1989) 31 IR 207

Farnworth v Henry Walker Contracting Pty Ltd [1999] WASCA 234

Fremantle Steam Laundry Pty Ltd v Shepherd [2000] WASCA 17

Gerakiteys v The Queen [1984] HCA 8; (1984) 153 CLR 317

Gorman v Fitzpatrick (1983) 4 NSWLR 286

Haysdale Nominees Pty Ltd v Shepherd (1998) 98 A Crim R 435

Hellier v Hinton [1998] WASCA 332

Henry Walker Contracting Pty Ltd v Farnworth [2000] WASCA 253

Industrial Galvanizers Corporation Pty Ltd v Shepherd [1999] WASCA 282

Interstruct Pty Ltd v Wakelam (1990) 3 WAR 100

John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508

Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467

March v E & M H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506

Meiklejohn v Central Norseman Gold Corporation Ltd (1998) 19 WAR 298

Morrison v Kiwi Electrix Pty Ltd [1998] WASCA 203; (1998) 19 WAR 482

Morrison v Winton, unreported; SCt of WA (Scott J); Library No 960698; 12 December 1996

Palynolab Resources Pty Ltd v Morrison, unreported; SCt of WA (Ipp J); Library No 960477; 22 August 1996

R v Australian Char Pty Ltd (1995) 79 A Crim R 427

R v F Howe & Son (Engineers) Ltd [1998] EWCA Crim 3531; [1999] 2 All ER 249

R v Hermes; Ex parte Ball (1966) 10 FLR 375

R v Jemielita (1995) 81 A Crim R 409

R v Landy [1981] 1 All ER 1172

R v Maria [1957] St R Qd 512

R v Mok (1987) 27 A Crim R 438

R v Partridge (1930) 30 SR (NSW) 410

Rippingale v The Queen [1999] WASCA 257

Romeo v The Queen (1991) 65 ALJR 261

Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378

S v The Queen [1989] HCA 66; (1989) 168 CLR 266

Saffron v The Queen (1988) 17 NSWLR 395

Speed v Thomas Swift and Co Ltd [1943] KB 557

Stanton v Abernathy (1990) 19 NSWLR 656

Vrisakis v Australian Securities Commission (1993) 9 WAR 395

Walsh v Tattersall (1996) 188 CLR 77

1 KENNEDY J: I have had the advantage of reading in draft the reasons to be published by Anderson J with which I am entirely in agreement. There is nothing which I can usefully add to those reasons.

2 ANDERSON J: The appellant is a mining contractor and in March 1999 it was engaged in mining operations at an underground nickel sulphite mine at Radio Hill near Karratha employing 17 people. Overseeing the operations of the appellant was another company, Australian Nickel Mines NL, which processed the ore extracted by the appellant and provided management services to the mine owner, Titan Resources NL. One of the appellant's employees was Mr Leigh Irvin, whose main duty was truck driving, but who also assisted with underground work. On 25 March 1999, Irvin was killed by falling rock whilst working at the south face of stope 905. He was one of a three-man team charging-up the face of the stope for blasting. The face was five metres high and five metres wide. A front-end loader fitted with a carrying basket, or boom cage, or charge-up platform, was used to provide a work platform which could be raised and lowered adjacent to the face. This unit was also known as an integrated tool carrier or IT carrier. The work of charging the upper levels of the face was usually done by a man working from the carrying basket to place detonation equipment and an explosive (known as Anfo) into holes which had been drilled into the face by another machine. Quite often a second man would be working at floor level to assist. There would also, of course, be a person in charge of the machine - an operator.

3 Broadly speaking, a face would be charged-up in the following manner. A pattern of 16 holes in four vertical and horizontal rows would be drilled into that part of the face to be blasted. Each hole would be about three metres in depth. The lowest horizontal row would be about two metres from floor level and the highest row would be about four metres up the face. The holes would first be primed with a detonator embedded in a stick of power gel pushed to the base of the hole with a tamping stick. To the detonator would be connected a length of yellow detonator cord, known as nonel cord, long enough to dangle from the mouth of the hole when the detonator was in position at the base of the hole. A compressed air hose, known as an Anfo hose, would be used to fill the hole with Anfo explosive to within about 30 centimetres of the mouth of the hole. In this way, the hole would be primed, charged and ready for firing. Firing was effected by manually connecting all of the yellow nonel cords to a long length of green detonator cord. The stope would then be cleared and the green detonator cord would be fired, igniting the yellow nonel cords. The cord arrangement was such that firing would occur in a pattern from the bottom up.

4 On the night in question, there were at first only two men at the face of the stope engaged in charging-up that part of the face which was to be blasted. One of these, Dellar, was to operate the IT carrier, and the other, Massey, was to prime and charge-up the holes. First, Dellar had to prepare the IT carrier to make the Anfo hose operational. This involved some connecting-up and took a little time. While Dellar was doing that, Massey worked at floor level to prime the lowest horizontal row of holes. When the Anfo equipment was ready, Massey climbed into the boom cage which carried the Anfo kettle and, with Dellar operating the IT carrier to raise and lower the cage as required, Massey commenced to prime and charge-up the left vertical row, working from the top down. Dellar then manoeuvred the IT carrier to square-up the cage to the second vertical row. This was done with Massey in the cage and the boom in the raised position. While Massey was working on this row, Irvin was brought to the scene by the project engineer, Matthew O'Hara, and instructed to "give [Dellar and Massey] a hand to charge this face". O'Hara then left without giving any further instructions. Massey handed Irvin the Anfo hose so that Irvin could charge-up the bottom row of holes from ground level with Anfo explosive, which Irvin did. These were the holes which Massey had primed while waiting for the IT carrier to be got ready. When all the holes were primed and charged, Massey, still working from the raised carrying basket, started to connect the green detonator cord to the nonel cords dangling from the upper holes and Irvin, working at floor level, commenced to connect the green detonator cord to the nonel cords protruding from the bottom row of holes. Massey found that he could not reach the top left-hand nonel cord as the IT carrier was then positioned. In order to put the carrying basket close enough to enable Massey to reach the top left-hand nonel cord, the IT carrier had to be backed up, and manoeuvred to change its position. It was in a slightly articulated configuration, and, when it was backed-up, the boom slewed slightly to the left and the left-hand side of the carrying basket, which was still in the raised position, made contact with a rock bolt protruding about six inches from the stope face. Within a short time - "a matter of seconds", according to the finding of the Magistrate - a slab of rock containing the rock bolt fell from the face and struck Irvin, fatally injuring him. It was accepted that the rock bolt in the fallen slab was the one which had been scraped by the carrying basket and that the slab had been rendered unstable by that contact, causing it to fall.

5 On 1 December 1999, the respondent, Mr Briggs, who is the Inspector of Mines at Karratha laid a complaint in the Court of Petty Sessions at Karratha against the appellant, charging the appellant that on 25 March 1999 at Radio Hill Mine the appellant:

"Contravened section 9(1) of the Mines Safety and Inspection Act 1994 in that, being an employer, it failed so far as was practicable to provide and maintain at a mine a working environment in which its employees were not exposed to hazards, and by that contravention caused the death of an employee; contrary to section 9(8) of the Act."

6 Section 9(1) is in the following relevant terms:

(1) An employer must, so far as is practicable, provide and maintain at a mine a working environment in which that employer's employees are not exposed to hazards and, in particular, but without limiting the generality of that general obligation, an employer must --

(a) provide and maintain workplaces, plant, and systems of work of a kind that, so far as is practicable, the employer's employees are not exposed to hazards; and

... "

7 The original particulars of this complaint were as follows:

"2. ... the defendant failed to provide and maintain:

(a) a workplace at the mine at which the unblasted portion of a part-blasted face was properly scaled prior to its employees charging that portion of the face;

(b) a system of work in which machinery did not move or operate near a face at which its employees were working."

8 The reference in item 2(a) of the particulars to the face not being "properly scaled" is a reference to an operation routinely carried out after a rock face has been opened up by blasting and before men or machinery proceed with mining work. A long metal bar is used to jab the face to dislodge loose rock and to test for instability in the freshly mined walls and roof. There was evidence that a steel bar is a better testing medium than an aluminium bar, but due to the density of steel, long bars are usually of aluminium. Long bars are used to scale the upper levels of rock faces in stopes which are five metres high. There was evidence that the rock face in question had been scaled with an aluminium bar.

9 In a letter from the Crown Solicitor's office dated 11 January 2000, the assistant Crown solicitor provided the appellant with the following further and better particulars of particular 2(b):

"The complainant alleges that the defendant failed to provide and maintain a system of work which did not expose its employees to the hazard of falling rock. The defendant should have provided a system of work at the unblasted portion of a part-blasted face which did not expose its employees doing any sort of work at the face to the hazard of falling rock caused by the movement or operation of machinery."

10 Other particulars were provided which, inter alia, identified Irvin as the employee in question.

11 At the opening of the prosecution case, counsel for the prosecution abandoned the allegation of improperly done scaling in particular 2(a), which left only the particulars in par 2(b) as amplified by the letter of 11 January 2000; and of those particulars counsel for the prosecution said in opening:

"Really then it comes down to the question of practicability. The prosecution says that it was practical for the defendant to have taken steps to have prevented Irvin being exposed to the hazard of falling rocks. Now, the particulars as they stand at the moment allege that the practical step which the defendant should have taken is to have provided a system of work in which machinery did not move or operate near the south face of stope 905 while its employees - and, in particular, Irvin - were working there. So essentially we're saying that Irvin shouldn't have been standing where he was standing given the fact that the IT carrier was moving next to that face in the course of carrying out charge-up operations."

"In this case the complainant says that a very simple step could have been taken to direct that [Irvin] stand away from the rock face during the period while the IT carrier was operating. We'd say that that's a cheap, easy and eminently practicable step. The prosecution will lead evidence which shows that there was no discussion of safety procedures for carrying out the charging of the unblasted part of the south face of stope 905 and in that regard you will hear evidence from representatives of Australian Nickel Mines and from the various levels of management which the [appellant] put in place at Radio Hill Mine to fulfil its contractual obligations. That includes the project manager for the project and also the shift boss or the person acting as shift boss at the time of the accident ... The prosecution proposes leading evidence that there was no standard or written work procedure dealing with the type of situation or even generally applying to the positioning of employees charging faces."

12 At the conclusion of the opening, counsel for the appellant submitted that on the basis of the particulars given, as amplified in the opening, the prosecution case must be taken to be that "we ought to have had a system in which machinery and employees were not present at one and the same time when that machinery was operating at the face" (AB 107C) and argued that the prosecution should not be allowed to lead evidence otherwise than in support of a case that it was "practicable to do the operations of drilling and charging in an underground mine with a five-metre face without machinery" (AB 121B).

13 This rather startling submission was not accepted and the hearing of the complaint proceeded on the basis of the particulars set out above. It should be added that counsel for the prosecution had provided defence counsel with a more detailed document which concluded with the following paragraphs:

"19. It was practicable for the defendant to have provided a system of work in which machinery did not move or operate near the south face of stope 905 while Irvin was working next to it.

20. The defendant failed to provide such a system, and there was no system, or no adequate system of work, because:

(a) there was no written procedure which applied to a third person assisting in charging and priming a stope face requiring that person not to stand near to the stope face while an IT carrier or other machinery was moving next to the stope face;

(b) Toth did not direct O'Hara that a third person assisting in charging and priming a stope face should not stand near to the stope face while an IT carrier or other machinery was moving next to the stope face;

(c) O'Hara did not direct Irvin that a third person assisting in charging and priming a stope face should not stand near to the stope face while an IT carrier or other machinery was moving next to the stope face;

(d) O'Hara did not supervise Irvin so that he did not stand near to the stope face while an IT carrier or other machinery was moving next to the stope face; and/or

(e) no other person employed by the defendant took any steps to ensure that Irvin, while assisting in charging and priming a stope face, should not stand near to the stope face, while an IT carrier or other machinery was moving next to the stope face."

14 The status of this document is a little uncertain. It was proffered by counsel for the prosecution at the end of the first day of hearing. There was debate as to whether it should be regarded as providing further and better particulars. Counsel for the appellant objected to the delivery of further particulars at that stage. The Magistrate expressed the opinion that the document did not add anything to the particulars which had already been given. In the end, the Magistrate decided to mark the document as an exhibit and it became exhibit 1B. I would doubt the appropriateness of taking that course. The document had no probative value and I am not sure on what basis it was received as an exhibit. However, I do not think anything turns on this. The Magistrate appears to have treated the document simply as part of the prosecution opening. It was not used to enlarge or change the prosecution case, which remained based on the particulars already given.

15 The case therefore proceeded to its conclusion on the basis of the complaint and the particulars settled as at 11 January 2000, which are set out above. Evidence was taken from a number of witnesses and numerous exhibits were tendered. Included amongst the exhibits was a bundle of documents in the nature of a safety manual which the appellant had prepared and in which its employees were instructed. It was entitled:

"Henry Walker Active Safe

Radio Hill Safe Work Procedure"

16 This document, or set of documents, was known as "the SWP". It contained sections dealing with various activities, including charging a face, scaling down, use of charge-up machines, operating the IT carrier, entry after firing and so on. It was part of the appellant's case in its defence that the SWP, and the steps taken to instruct employees in accordance with the SWP, represented all that could reasonably be done to create and maintain a safe working environment in which its employees were not exposed to hazards. This was rejected by the Magistrate. In finding the appellant guilty he said:

"The means of removing or mitigating the potential injury in this case was straightforward. The SWP did not even contemplate having a third person to assist in charging-up a face. This could have been covered in the SWP. O'Hara told Irvin to assist but did [not] give him any instruction on how he was to assist. O'Hara could easily have provided oral instructions. He did not do so. Toth did not instruct O'Hara how the work should be done in his note (exhibit 4). In other words, there was not an adequate and safe system of work which required Irvin (or someone in his position) to stand back from the face of the stope at the time of the accident, when machinery was moving near the face. All that had to be done was to require Irvin, as the person assisting, to stand back from the face if the IT carrier or charge-up platform moved. This could have [been] covered in the SWP or by an oral instruction from O'Hara. It was not. The 'means of removing or mitigating the potential injury' amount to nothing more than commonsense in the circumstances."

17 The first two grounds of appeal are in the following terms:

"1. The trial court erred in not confining the prosecution case to one of proving a failure on the part of the applicant (defendant) to provide and maintain a safe working environment by failing to provide and maintain a system of work in which machinery did not move or operate near a face at which its employees were working in that:

(a) the complaint read with the particulars was so confined;

(b) the prosecutor made no application to further particularise the complaint.

2. The trial court erred in not dismissing the complaint confined as set out in ground 1 in that:

(a) there was no evidence that it was practicable to carry on the operation of underground mining without having machinery moving or operating near a face at which employees were working; and

(b) there was unchallenged evidence from witnesses O'Hara and Andrewarthur that it was impracticable to carry out underground mining operations without having machinery moving or operating near a face at which employees were working."

18 These two grounds of appeal were developed in argument by saying that on the particulars which the prosecution had delivered the appellant was charged with having men and machines at the rock face at the same time; and the prosecution should therefore have been confined to proof that there was some practical means to avoid this "hazard" - some other and safer method of charging-up the face - and the prosecution was not so confined.

19 Of course, this argument takes as its starting-point the proposition that the complaint has the meaning contended for by counsel for the appellant. I do not think it does. The complaint as particularised cannot fairly be understood as a complaint that the appellant breached s 9(1) simply by allowing men and machinery to be together near the face. So understood, it would be tantamount to a charge that there was a breach of s 9(1) because charging-up was being carried out with both men and machinery rather than by men without machinery or by some kind of remotely-controlled machinery. It is not reasonable to construe the complaint as having that meaning and the appellant could not have understood it in that way. The manifest meaning of the complaint as particularised is that the appellant failed to provide a system of work which protected Irvin from the hazard of rock falls caused by the IT carrier manoeuvring near the rock face.

20 As these grounds of appeal were further developed in argument, it was submitted that the conviction could not stand because the appellant was convicted of a different offence from that with which it was charged - that the trial miscarried inasmuch as the appellant was not convicted of failing to provide a safe system, but of a different contravention, which was said to be failure to give a particular instruction - failing to instruct Irvin to stand away from the face while the particular machine was being repositioned.

21 I would not accept the submission that the appellant was convicted of an offence different from the offence with which it was charged. The essential factual ingredients of the offence charged was failing to provide a system that removed men (Irvin) from the area when they would otherwise be in danger from falling rocks dislodged by a moving machine. That is how the charge is fairly to be understood, as a matter of commonsense in light of the events that had happened. The appellant was convicted of that charge. It is true that in giving reasons for his verdict, the Magistrate said "all that had to be done was to require Irvin ... to stand back from the face if the IT carrier or charge-up platform moved", but in so saying the Magistrate was merely giving a reason why, in his opinion, it was practicable within the meaning of s 9(1) to provide and maintain the prescribed environment. Properly understood, the Magistrate's finding was that there was no system to control or co-ordinate the movement of men and machinery to ensure the safety of a man in Irvin's position when a system providing for proper control through appropriate instructions could have been devised and implemented.

22 I would not uphold either of the first two grounds of appeal.

23 The third ground of appeal is in the following terms:

"3. In the alternative to grounds 1 and 2 the trial court erred in not dismissing the complaint on the ground that it failed to identify the actual offence charged."

24 It follows from what I have said above in relation to the first two grounds of appeal that I am not persuaded that the complaint as particularised failed to identify the actual offence charged, and I would not uphold this ground of appeal.

25 The fourth ground of appeal is in the following terms:

"4. In the further alternative to grounds 1 and 2 the trial court erred in concluding there was a gap in an otherwise safe system of work in that:

(a) the safe operation of an integrated tool carrier ('IT') was expressly covered by a safe work procedure, and

(b) there was no evidence to suggest that procedure was unsafe."

26 The background to this ground of appeal is that the appellant produced evidence through the SWP that it did have a system of work with regard to the operation of IT carriers underground, but the Magistrate found that the SWP did not cover the circumstances of this case, they being that Irvin was working on the ground at the face to assist in the charging-up of the face in proximity to the IT carrier while the boom cage was being positioned against the face where there might be loose rock. This was the so-called "gap" in the system. I should say that I am not sure that it is helpful to talk in terms of gaps in systems, although sometimes it might be convenient language. If the general system of work did not provide for a particular matter which ought to have been provided for, then as to that matter the position is that there was no system rather than an incomplete system, a faulty system, or a system with a gap in it. However, in this case, the deficiency was characterised as a gap and it does no real harm to adopt that language.

27 It is convenient here to deal with another submission made by Mr Clifford which, as I understood it, was to the effect that because there appeared to be uncertainty as to whether what was being alleged against the appellant was that it had no system, or that it had an incomplete system, or a defective system, or a system with a gap in it, the complaint was ambiguous, uncertain and duplicitous and no conviction based upon the complaint could stand. In my opinion, the fact that what might be called a systems deficiency may be described in the various ways enumerated does not mean that a charge of failing to provide and maintain a safe system with respect to the particular task or operation is ambiguous or duplicitous. The charge is neither duplicitous nor uncertain merely because it may be capable of being understood as an allegation of a complete absence of system, or an inadequacy in a system, or a defective system, or for that matter a failure to enforce a system. In the circumstances of this case, each of these allegations amounts to the same thing. I am not sure that Mr Clifford's submissions went so far as to say that the prosecution should be made to elect between charging a failure to provide a system on the one hand, or a failure to enforce a system on the other, but in case the submission went that far, I should say that, in my opinion, no such election is required.

28 The Magistrate was justified in finding that a "gap" did exist. As he said in the passage quoted above, "The SWP did not even contemplate having a third person to assist in charging-up a face". Counsel for the appellant, Mr Clifford, submitted that, even if this was so, the SWP did contain instructions, or rules, which, if they had been followed by the charging-up team, would have avoided this accident. Instructions to which he referred included the instructions contained in the Safe Work Procedure 058 Revision 1, headed "Charge-up Machines" reproduced at AB 61 in which the following instruction appears:

"Never tram the vehicle unless the boom is down and in its support position.

OR

With someone in the boom cage."

29 This vehicle was backed up to be repositioned while the carrier or boom cage was in a raised position and while Massey was in the boom cage. Even if this amounted to "tramming" the vehicle (which, to my mind is by no means self-evident), I am not persuaded that these two safety instructions are in any way referable to the operation in question, or would have been so understood by the men. It was not put to Dellar, the operator of the IT carrier, that, in manoeuvring the IT carrier as he did to get Massey closer to a spot on the face, he was "tramming" and thereby failed to comply with these safety directions. I think Dellar would have been very surprised by the suggestion. The instruction requiring the boom to be down and in its support position while the vehicle is being "trammed" seems prima facie to be referable not to a manoeuvre to position the basket to enable the man in the basket to reach a particular nonel cord high on the face, but to the risk that the machine might overturn if driven about with the boom raised. The instruction not to "tram the vehicle" with someone in the boom cage seems plainly to be directed only to the safety of the person in the boom cage. It is to be understood as a direction not to drive about with a man in the carrying basket. These men would not have understood the instruction as referring to what they were doing.

30 Like the Magistrate, I can see nothing in the instructions under consideration which covers a situation in which the IT carrier is being repositioned at or near the face to enable the man in the carrying basket to reach a certain point on the face.

31 Mr Clifford referred to the instructions in the Safe Work Procedure 060 Revision 1 headed "Operating the Integrated Tool Carrier" reproduced at AB 64 which were in the following terms:

"Keep the wheels straight and the machine not articulated when the bucket, work platform, forks or crane boom is high in the air.

Avoid tipping or raising the boom or bucket when the loader is articulated."

32 In my opinion, these safety instructions have nothing to do with this case and would not have been understood by the men as governing what they were doing. They seem to be to do with the risk of equipment failure - putting undue stress on the components of the IT carrier - and the stability of the IT carrier.

33 Mr Clifford also referred to the instructions in the Safe Work Procedure 029 Revision 3 headed "Charging a Face", reproduced at AB 55 and AB 56 which were in the following terms:

"The face shall be charged from the top of the face down, charging one level of the face at a time."

"Connection of the initiation system shall commence from the top down."

34 There was evidence to which I have referred that, at the time of the accident or immediately before it, Massey and Irvin were engaged in connecting the initiation system by joining the green firing cord to the nonel cords and as I understood Mr Clifford's submission, it was to the effect that if the instructions quoted above had been implemented by those involved in the charging of this face, Irvin would not have been working at the face at floor level while the machine was there with the boom cage in the raised position, because the bottom row of holes which could be reached from the floor of the stope would be done last, after the upper rows for which the boom cage was required had been completed. There was evidence that it is good practice always to work from the top down. Exactly why was not really explored in evidence, but is not hard to imagine. There must always be a risk that a man working on the upper levels of a rock face where blasting has been carried out may dislodge something, or drop something, and it is obviously better that it not fall on any equipment, including detonation devices, which may have been put in place below, or on someone working below.

35 Whilst this may be so, the requirement to work from the top down seems to be quite inapplicable to that part of a charging-up operation in which two men were engaged to prime and charge-up the holes, one man at floor level. The man at floor level cannot work "from the top down". The Magistrate found that the use of three people to charge-up a face was not uncommon and that the role of the third person was "in some cases to assist by being in the charge-up platform and in other cases to assist by being on the ground". This finding is entirely in accordance with the evidence. Massey gave unchallenged evidence that usually "two or three people" would be involved. As he put it at AB 286 - 287:

"One is on the machine, one is in the basket of the machine and sometimes there might be two in the basket and sometimes one in the basket and one on the ground and one in the machine."

36 Asked whether there was any "usual practice about which holes to charge first", his answer was, "No". This evidence was not the subject of cross-examination.

37 The Magistrate was entitled to find that the rules that were laid down in the SWP as regards sequence of work did not cover or relate to the method of work actually adopted as a matter of practice in the mine and could not therefore exculpate the appellant of the charge that it failed to provide and maintain a safe working environment. Mr Clifford went so far as to submit that insofar as the safe work procedures provided that only two men should be engaged in charging-up a face - the IT carrier driver and the man in the carrying basket - it did in fact provide a safe system of work and the accident happened because someone (not identified) took it upon himself not to follow that system. This submission cannot be accepted. The evidence was that Irvin was brought to the stope face by the appellant's project engineer acting on instructions from the appellant's top management at the mine site, and he was simply told (and thereby required) to assist with the charging-up operation. In these circumstances, the sequence of events by which Irvin was killed cannot be characterised as a negligent failure on the part of subordinate employees to observe the employer's safe working practices.

38 Mr Clifford referred to the instruction contained in Safe Work Procedure 058 Revision 1 headed "Charge-Up Machines" which was in the following terms:

"Have the vehicle set up in a position convenient to the face that will allow maximum use of all boom movements."

39 I am unable to see that this instruction is directed in any way at avoiding the happening of the events by which Irvin was killed. I would make the same observation with respect to Safe Work Procedure 058 Revision 1, to which Mr Clifford also directed our attention, and which is in the following terms:

"Ensure that there is always adequate height for the charge-up person to safely operate without fouling the backs or roof."

40 This instruction seems to me to be directed at the safety of the charge-up person in the boom cage.

41 Finally, Mr Clifford referred us to Safe Work Procedure 058 Revision 1, which said:

"Ensure that the area to be worked has adequate size to manoeuvre the vehicle and its boom cage."

42 This instruction seems to have nothing to do with the circumstances in which the machine was working at the material time. It was working in an area which plainly was of adequate size to manoeuvre the vehicle and its boom cage.

"5. In the alternative to grounds 1, 2 and 3 the trial court erred in concluding a failure to instruct an employee to stand away from a face at which an IT was being moved contravened subsection (1) of section 9 of the Act in that this finding erroneously assumes

(a) it was foreseeable the deceased would stand immediately beside the basket of the IT as it was backed away from the face;

(b) the foreseeability set out in (a) is to prevail over the directly contradictory unchallenged evidence of witnesses O'Hara and Andrewarthur to the effect that it never occurred to them the deceased, or any other employee, would stand immediately beside the basket of an IT as it backed away from a face;

(c) there was some relevant history of disobedience or untrustworthy behaviour by the deceased or employee Dellar;

(d) the failure to 'give the instruction to stand away from the face' was anything more than a single instance of negligent supervision (further assuming it was negligent supervision); and

(e) the employees would not follow the safe work procedures for charging-up a face which would have prevented the accident."

44 I cannot agree that it was not foreseeable that Irvin would or might be standing where he was standing when the IT carrier was being repositioned to enable Massey to reach a particular hole at the top of the face, there being no system of work which called for him not to be standing there.

45 Proof of a single instance of negligent supervision by particular supervisors is not necessarily proof that an employer failed to provide and maintain a safe working environment. In Collins v State Rail Authority of NSW (1986) 5 NSWLR 209 it was held that if an employer lays down a safe and proper practice and is not proven to have failed to use due diligence to see that it is observed, then:

" ... failure by inferior employees, even those of a supervisory rank, to observe that practice on the particular occasion will not render the [employer] criminally liable for the offences charged against it." Street CJ at 215.

46 However, on the whole of the evidence the Magistrate was entitled to find that this was not a case of supervisors failing to observe safe practices laid down by the employer, but of the employer having failed to lay down a safe practice as to the manner of carrying out this particular operation with the use of a man in the carrying basket and a man on the ground.

"6. The trial court erred in concluding the failure to instruct the deceased to stand away from the face caused his death in that there was no evidence to support this finding and the finding is contradicted by evidence (and findings) as to the proximate cause of the rock fall being:

(a) the basket of the IT scraping a rock bolt as it reversed from the face [reasons page 21] (in an articulated configuration which expressly contravenes the safe working procedure), or

(b) ineffective scaling of the ground immediately above the face at which the deceased was working [reasons page 25.3]."

48 I cannot agree that there was no evidence to support the conclusion here referred to. The Magistrate was entitled to conclude that if a system had been in place which required that the man on the ground should move out of the area until the carrying basket was repositioned, Irvin would not have been standing where he was standing when the rock fell on him.

49 Having convicted the appellant of the charge in the complaint, the Magistrate imposed a fine of $75,000. The appellant complains that this is manifestly excessive in the circumstances in that it was based upon an erroneous conclusion as to the degree of culpability of the appellant.

50 The maximum penalty was $200,000. The approach of the Magistrate was to evaluate the degree of criminal negligence involved in this particular contravention and, in the light of the appellant's good safety record, and having regard for the maximum penalty, arrive at a monetary penalty which was in line with monetary penalties imposed in like cases. His evaluation of the degree of criminal negligence was expressed in the following terms:

"In my view the scale of seriousness is not minor, it was not slight, it was not one off, it is not at the lower end of the scale. Conversely, it is not at the top end of the scale, it was not deliberate, it was not gross, it was not flagrant, there was a system with a gap, but the three person operation had been practised previously and yet no effect had then ensued on written procedures ... One has to have regard to the risk of falling rock, which was a single most important safety issue in underground mining ... that the defendant was aware that there was an overhanging rock face ... aware of the blasting in the adjoining part of the stope [and that] there were ... rock bolts protruding from the face ... [and that] ... the scaling was somewhat ineffective and the scaling had taken place with an aluminium rod ... that three people were involved [and] as I said earlier that was not an uncommon practice. The role of the third person was not clear. It could have been made clear. It was left up to the three people to work it out for themselves without instructions. This gap in the system was not a one off event, it had been there and used in the past. That is, there had been three people at a rock face before and yet it had no effect on written procedures of the defendant company and the means to make the system safer were only really common sense.

Therefore this court regards the breach by the defendant as a substantial one and in excess of the criminality that was found in the two cases I have mentioned of [Morrison v Winton, unreported; SCt of WA (Scott J); Library No 960698; 12 December 1996 and Palynolab Resources Pty Ltd v Morrison, unreported; SCt of WA (Ipp J); Library No 960477; 22 August 1996]."

51 He then referred to some other mitigating factors, but noting that it was not a case in which there had been a plea of guilty. He also had regard to the appellant's capacity to pay a fine. He considered that the fine should be "of significant magnitude to reflect an element of general deterrence ... ".

52 I am not persuaded that there was any error in the Magistrate's approach. Whilst a fine of $75,000 is a heavy fine, it is much less than half of the maximum imposed in circumstances in which the appellant's

contravention of the safety legislation created a high risk of serious injury and led to the death of an employee. I think that in these circumstances, it is impossible to say that the penalty is manifestly excessive such as to call for intervention by this Court.

53 I would dismiss the appeal against conviction and the appeal against penalty.

54 STEYTLER J: I have had the advantage of reading the reasons for decision of Anderson J. I agree with them and have nothing to add.

55 WHEELER J: I have had the advantage of reading in draft the reasons for decision of Anderson J. I agree with them and I too would dismiss the appeal against conviction and the appeal against sentence.

56 GROVE AJ: I have read the reasons of the Hon Justice Anderson. I agree with them and with the orders which his Honour proposes.