Independent Transport Safety Regulator v Australian Rail Track Corporation Ltd.

Judgment 1The Australian Rail Track Corporation Ltd ("ARTC") has pleaded guilty to a breach of s 8(1) of the Rail Safety Act 2008 ("the Act"). This judgment deals with the evidence and submissions put forward by the parties on sentence. 2At the present time, ARTC employs fewer than 1000 people and also uses a number of contractors. It was created by way of inter-governmental agreement in order to form a "one stop" shop for all operators seeking access to the interstate rail network. It manages many thousands of kilometres of interstate track in South Australia, Western Australian, Queensland and New South Wales and also manages the Hunter Valley Coal rail network and other regional rail links in New South Wales. In its operations, it owns or leases rail corridors and sells access to train operators, providing railway operators with access to routes, the management of the network (including train control), the management of infrastructure maintenance, the development of new business and capital investment in the corridors. Nineteen operators currently use ARTC owned or leased networks. 3On 5 May 2010, ARTC had responsibility, on behalf of Country Rail Infrastructure Corporation ("CRIC") for the management of additional network in regional New South Wales known as the Country Rail Network. As part of its operations on this day, the defendant, operating as a rail transport operator, carried out railway operations at the Broadmeadow Network Control Centre North at Broadmeadow, New South Wales. This Centre was responsible for the management and control of infrastructure and rolling stock for the section of railway between Bathurst railway station and Newbridge railway station signals. 4On this day, Mr Marc Jenkinson, Mr Luke Jenkinson and Mr Jeremy Cleary signed-on for duty at the defendant's provisioning depot at Bathurst. This work team was later directed to perform rail safety work involving cutting sections of rail and moving cut sections of used rail from the north side of the Main Western Line to the south side of the Main Western Line in the section between Bathurst station and the Newbridge lights. Although arrangements were made for the line to be blocked while the work was performed, an XPT train had already left Bathurst station with the work team unaware that it was heading in their direction. At this time, the work team had a hi-rail utility vehicle close to the main western line and an excavator had been moved on to the rail track. 5In due course the XPT approached the work site on a sharp left-hand bend at approximately 70 kilometres per hour and although the driver saw the work team on the line he was unable to stop the train. The XPT struck the excavator, propelling it along the track for approximately 20 metres when the extended arm of the excavator struck the hi-rail utility parked adjacent to the track, turning the utility on to its side and derailing the excavator. Mr Luke Jenkinson was ejected from the cabin of the excavator during the collision and received fatal injuries. A male passenger on the XPT received minor lacerations to his forehead as a result of the incident. The excavator, the hi-rail utility and the leading locomotive of the XPT all received significant damage as a result of the collision. 6Following an investigation of this accident the Regulator commenced prosecution proceedings alleging that ARTC was in breach of s 8 (1) of the Act. Separate proceedings were commenced against the same defendant for alleged breaches of s 13(2) and s 21(1) of the Act. Following lengthy consultation between the parties, the prosecutor ultimately withdrew the s 13(2) and s 21(1) proceedings and filed an Amended Application for Order in relation to the s 8(1) proceedings. The defendant thereupon entered a plea of guilty to the Amended Application for Order. 7The charge under s 8(1) of the Act alleged a failure to ensure, so far as reasonably practical, the safety of railway operations. The amended particulars of that charge were in the following terms: 2. The Defendant's railway operations were not safe in that the Defendant failed to, so far as was reasonably practicable, provide adequate information and instruction to, and training and supervision of rail safety workers as was necessary to enable those workers performing rail safety work using the Track Occupancy Authority ("TOA") method of protection in relation to its railway operations to do so in a way that was safe and in a manner that complied with its Network Rules and Procedures. 3. As a result of the alleged failures, as further particularised below, the railway operations carried out by the Defendant were not safe in contravention of section 8(1) of the Rail Safety Act 2008 (NSW) and it thereby did commit an offence against the Act. Further particulars of the offence 4. At all material times the Defendant was an accredited rail transport operator pursuant to Part 3 of the Act and within the meaning of section 4 of the Act. 5. At all material times the Defendant carried out railway operations at the Broadmeadow Network Control Centre at Broadmeadow and on the section of rail infrastructure from Bathurst Station to Newbridge Station in the State of New South Wales. 6. At all material times the Defendant employed at the Broadmeadow Network Control Centre Brett Tuckey as a Network Control Officer, Michael Freund and Michael Clancy as Train Transit Managers and John Tyne as the Operations Manager Hunter Valley. 7. At all material times the Defendant employed Marc Jenkinson as a Civil Maintenance Worker Level 2 who performed the duties of a Protection Officer Level 2, Heath Hotham as a Work Group Leader, Shayne Kreymbourg as a Team Leader and Aaron Brough as a Team Manager at its provisioning depot in Bathurst. 8. As part of its rail operations the Defendant contracted Norris Track Pty Limited ACN 131 858 823 to supply rail safety workers for its railway operations including Luke Jenkinson and Jeremy Cleary as track workers. 9. On 5 May 2010, Luke Jenkinson, Jeremy Cleary and Marc Jenkinson were working as part of a work group carrying out track work under a track occupancy authority on the Main Western Line at a worksite located 270.500km from Sydney between Bathurst Station and Newbridge Station ("the worksite"). The Defendant's railway operations were unsafe in that Mr Luke Jenkinson was fatally injured and others in the work group and in the immediate vicinity were exposed to the risk of death or serious injury when train WT27 entered the worksite whilst they were carrying out track work on the line at or about 11:15am. 10. The Defendant failed to ensure, so far as was reasonably practicable, the safety of its railway operations in that it failed to provide adequate information and instruction to, and training and supervision of rail safety workers as was necessary to enable those workers performing rail safety work using the TOA method of protection in relation to its railway operations to do so in a way that was safe and in a manner that complied with its Network Rules and Procedures, in that it failed to ensure: 10.1 network control officers did not issue a TOA for a fixed worksite when there was a train in the section and the protection officer had not provided the identification number of the lead unit of the train in compliance with ANPR 701; 10.2 that form ANRF002 "Track Occupancy Authority" required network control officers and protection officers to communicate and record all safety critical information including the specific location of the worksite, the identification of the lead unit of the train, the name and contact number of the protection officer and whether the TOA was for a fixed worksite or a track vehicle journey, in compliance with Network Rule ANWT 304 "Track Occupancy Authority" (ANWT 304), Network Procedure ANPR 701 "Using a Track Occupancy Authority" (ANPR 701) and Network RUle ANGE 204 "Network Communication" (ANGE 204); 10.3 adequate auditing and/or monitoring of pre-recorded voice communications relating to the TOA method of protection to ensure compliance with ANWT 304 and ANPR 701; 10.4 adequate auditing and/or monitoring of ANRF002 forms completed by network control officers and protection officers when applying the TOA method of protection to ensure compliance with ANWT 304 and ANPR 701; 10.5 adequate audits and/or inspections at worksites of the work performed by protection officers applying the TOA method of protection to ensure compliance with ANWT 304, ANPR 701 and Network Procedure ANPR 709 "Using Detonators"; 10.6 protection officers who were designated as a worksite supervisors ensured that their supervision duties did not conflict with their protection duties in compliance with ANWT 300 and ANWT 304; 10.7 track workers did not enter the danger zone and commence work until all protection arrangements, including flags and detonators, were in place as required by ANWT 300 "Planning work in the rail corridor" (ANWT 300) and ANWT 304. 11. At all material times it was reasonably practicable for the Defendant to ensure the safety of its railway operations by undertaking the measures particularised in paragraphs 10.1 - 10.7 above. 8At the sentencing hearing the evidence for the prosecutor comprised of an Agreed Statement of Facts, together with a number of attachments. The attachments included: copies of "track occupancy authority" ("TOA") forms completed on 5 May 2010; various Phoenix screen shoots; a train control graph; a number of photographs; a number of safety rules; copies of safety alerts, the worksite order checklist; a workplace safety observation for Protection Officer dated 28 April 2010; and, an improvement notice. The Agreed Statement of Facts appears as an annexure to this judgment. 9Mr Timothy Ryan, Executive General Manager, Interstate Network of ARTC provided the evidence for the defendant. Mr Ryan explained ARTC's operations and organisational structure. He dealt with the defendants' rail safety accreditation under the Act and now under the Rail Safety National Law (NSW) 2012 ("the 2012 Act"). He noted that, as a consequence of its accreditation, the defendant was subject to regular audits by various Rail Safety Regulators, including the prosecutor. In addition to specific rail safety regulation, the defendant was also subject to general safety regulation by Comcare pursuant to the provisions of the Work Health and Safety Act 2011 (Cth). It was also subject to potential investigations by other bodies including, the Australian Transport Safety Bureau and the NSW Office of Transport Safety Investigation. 10The defendant's safety management system was explained as providing an overall framework of policies that were supported by various procedures and processes. The safety management system complied with the defendant's obligations under various legislative schemes. The defendant was also accredited in four other States. At all times, the Network rules and procedures were a key part of the safety system. As a rail infrastructure owner the defendant was unable to make changes to its Network rules and procedures without first consulting various other participants and providing notice to the prosecutor. 11The reporting systems included reports at the highest level to the Executive Committee and the defendant's Board of Directors through sub-committees. There were monthly safety performance reports, a monthly work health and safety report, reporting of significant safety incidents to the Board and a twice-yearly review of risk management. A broad sub-committee dealt with the management of risks associated with the defendant's environment, public and work health and safety functions and monitored processes and programmes adopted by management to ensure compliance with relevant policies and procedures. In addition, the defendant routinely reported incidents and the results of internal investigations to rail safety regulators and work health and safety authorities, including the prosecutor. An explanation was provided of the operation of train control reports that recorded all incidents on the defendant's Network and the operation of the risk register containing work related safety risks and hazards identified by the defendant. There were a number of safety personnel who assisted in the management of these processes. The defendant required local management to be responsible for safety with every manager accountable, although supported by advisers. 12Induction training was provided to all personnel engaged by the defendant, including contractors who were to work on or about the railway track. Such inductions could be completed online and in relation to this accident, Mr Luke Jenkinson and Mr Jeremy Cleary, as contractors, had completed the online induction programme. In addition, all workers required to work on or near railway tracks were required to hold a rail safety work qualification and Track Safety Awareness or an equivalent qualification. Mr Luke Jenkinson and Mr Jeremy Cleary held these qualifications. Contractors could be required to hold additional qualifications and demonstrate specific skills. Additional training was available depending upon the nature of duties to be performed. Mr Mark Jenkinson held qualifications as a Protection Officer, Level 2 and had been certified as competent in applying the Network rules and procedures. Mr Brett Tuckey had received specific training in relation to his role as a Network Control Officer ("NCO"). Mr Ryan described a system of safety alerts also used by the defendant. 13Where the defendant undertook infrastructure maintenance using its own staff it did so from a Provisioning Centre: these Centres were located around the defendant's Network, including Bathurst. Each Centre was managed by a team manager who was usually responsible for approximately 25 staff members. Mr Ryan gave details of regular briefings in relation to pre-work, weekly team meetings, use of notice boards and safety information. On the day of this accident, Mr Marc Jenkinson, Mr Luke Jenkinson and Mr Jeremy Cleary and all other workers based at the Bathurst Provisioning Centre participated in a toolbox talk safety meeting, including the viewing of a safety training video. Mr Ryan noted that, prior to this accident, the Bathurst Provisioning Centre had a good safety record. The Centre was subject to regular audits and inspections. 14In relation to work in the rail corridor, Mr Ryan identified a number of Network rules that were applicable. There was a requirement for specific safe places to exist when working in the danger zone (specified to be an area three metres horizontally from the nearest rail and any distance above or below that three-metre distance). Work in that area could only be carried out using one of five protection methods. It was a requirement of the system that a Protection Officer be present. Mr Ryan provided particulars of the training required to be appointed a Protection Officer, Level 2. 15A Track Occupancy Authority ("TOA") was described as a track protection measure whereby rail traffic was excluded from a defined section of the track to allow persons or vehicles to safely access and work in the danger zone of that section. A NCO from the relevant Network Control Centre excluded rail traffic. Where there were fixed work sites, the TOA required additional protection in the form of physical flags and a series of detonators placed 500 metres at both ends of the work site. A Protection Officer had to be present when work on the track occurred and it was the Protection Officer's responsibility to determine and implement the form of work track protection to be used, including a TOA. To obtain a TOA the Protection Officer was required to contact the relevant Network Control Centre and speak to an NCO: in this case, that person was Mr Brett Tuckey. Under this process a procedure was to be followed before a TOA would be granted. Work was not to commence at a fixed worksite until the granting of the TOA and the implementation of protection in the form of flags and detonators. The use of TOA type protection was widespread throughout the operations conducted by the defendant and was used by other operators in New South Wales, such as RailCorp. 16Mr Ryan stated that the defendant recognised and sincerely regretted its contribution to the accident whereby Mr Luke Jenkison was fatally injured. The defendant regretted the tragic consequences for the worker and his family and friends and in particular, his brother and co-worker, Mr Marc Jenkinson as well as friend and co-worker, Mr Jeremy Cleary. Mr Ryan noted that the defendant had fully co-operated with the authorities in relation to all investigations conducted arising from the accident. Those investigations included not only the Prosecutor but also Comcare, WorkCover, New South Wales, the New South Wales Police Force and the New South Wale Coroner. Following the accident, the defendant offered to arrange and pay for counselling for Mr Jenkinson's family and that was taken up on one occasion. The defendant also provided financial support for Mr Jenkinson's funeral service. Other staff affected by the incident were also extended support and Mr Ryan noted that, in the days immediately following the accident, work at the Provisioning Centre was generally suspended to allow employees to deal with the accident. Counselling services were also provided. 17Mr Ryan dealt with the other steps taken by the defendant after the accident. A memorandum was issued the following day reinforcing existing procedures in relation to the issue of TOAs. Adopting its normal practice, Mr Tuckey and Mr Jenkinson were stood down from safe working duties after the accident and were subsequently required to undertake refresher training prior to being permitted to return to full scale working duties. Mr Jenkinson's refresher training included retraining in the Protection Officer's duties, Level 2. Mr Tuckey also undertook a communications skills course as well as his refresher training. A little over a year after the accident, the defendant wrote to Mr Marc Jenkinson informing him that it had been concluded that, as Protection Officer at the relevant work site, he had failed to comply with the defendant's requirements, including Network rules and procedures. The defendant also concluded that Mr Tuckey had failed to comply with certain of the defendant's requirements under the NetWork rules and procedures and he was counselled and advised that this fact would be noted on his personal records. 18Prior to the accident and in conjunction with other railway participants, the defendant had been involved in the development of national consolidated safety working rules to apply across the defendant's entire Network. TOA rules, procedures and forms had been the subject of various reviews in this process. While this process was undertaken and in light of an improvement notice issued by the Prosecutor, the defendant proposed certain amendments to the TOA form: in accordance with the then Regulations that proposal required feedback and consultations, including consultation with the prosecutor. Despite other difficulties, the defendant adopted the new form and process and all qualified workers subsequently received training in relation to the new TOA forms. Under this system, NCOs were to ask Protection Officers who required a TOA whether or not they were at a fixed or non-fixed work site. Mr Ryan noted that the new TOA form implemented a recommendation arising out of a Coronial Inquest relating to this accident. 19Prior to the accident, the defendant employed an Operational Compliance Officer whose duties included auditing recorded voice communication on a regular basis, as well as completed TOA forms and train graphs. Prior to the accident, the procedure in relation to recorded voice communications was audited by the prosecutor on a number of occasions. In approximately August 2011, the defendant developed and implemented a formalised procedure that provided for a random monitoring of recorded voice communications between Network Control and the field. The recordings were monitored, evaluated and reported on in relation to aspects such as clarity of transmission, recognising callers' identities and locations, identifying safe work locations and train numbers. 20At the time of the accident the defendant also required inspections of work sites by local managers: this applied to the Bathurst Provisioning Centre. These inspections were described by Mr Ryan and continued. There was a review undertaken of the Protection Officer's pre-work briefing and working books and work site protection plans and Mr Ryan also explained this process. 21Mr Ryan spoke of the defendant as striving to be a good corporate citizen. The defendant operated in many country areas and therefore its focus had been to support local charitable and community events. Examples were provided. The defendant was also said to be active in the Australasian "Rail Safety Week" where operators co-ordinated and promoted rail safety. The defendant's participation in this event in 2012 was dealt with by Mr Ryan. Mr Ryan was not required for cross-examination.