Independent Transport Safety Regulator v Rail Corporation New South Wales

DELIBERATION 22It is to be remembered that this prosecution was brought pursuant to the terms of the Rail Safety Act. That Act departs from the terms of the Occupational Health and Safety Act 2000 in requiring that an operator carrying out railway operations is to ensure, so far as reasonably practicable, the safety of the rail operations. Senior counsel for the defendant pointed out that the different statutory onus had a distinctly less significant role to play in relation to this matter where a plea of guilty had been entered. While accepting that submission the Court is mindful that the particulars, to which the defendant has entered its plea of guilty, recognised that the identified steps to be taken were reasonably practicable and in light of the plea, those issues need not be considered further by the Court. 23It might be noted that in Independent Transport Safety Regulator v Patrick Portlink Pty Ltd t/as Patrick Portlink [2011] NSWIRComm 155, the Court dealt with the first prosecution under the 2008 Act. At [11] and [12] that judgment set out the context in which a rail operator's safety obligations arose and that analysis is equally applicable to the current proceedings. It should also be noted that, in that case, counsel for both the prosecutor and the defendants agreed that the sentencing process under the Act should broadly reflect the approach taken by the Court over many years to prosecutions under Occupational Health and Safety legislation: in particular, sentencing provisions, in terms of applicable principle, would not be different. The Court adopted that approach in the Portlink case and it is equally applicable to the current proceedings. 24Counsel for the prosecutor noted that the 2008 Act was repealed in January 2013 by the Rail Safety (Adoption of National Law) 2012 which commenced on 20 January 2013. Clause 46 of the Regulation made under that Act provided that proceedings for an offence against the former Act alleged to have been committed before the repeal of that Act were to be dealt with after the repeal of that Act as if that Act and the Regulation had not been repealed. There was no demur to that proposition and the Court is satisfied as to its jurisdiction to deal with the present matter. 25In dealing with the objective seriousness of the defendant's breach, the prosecutor pointed out that the maximum penalty for a first offender was $550,000: the penalties imposed by Parliament are an indication of the seriousness of the contravention. 26In written submissions counsel for the prosecutor succinctly dealt with the objective seriousness of the offence and made the following observations: 35. The Defendant failed to provide adequate supervision and monitoring of the implementation of the CSB work on track method to ensure compliance with the Network Rules and Procedures in three key respects: Failure to provide adequate supervision of area controllers in the Sydenham Signal Box; Failure to adequately audit or monitor voice communications between area controllers and protection officers; Failure to adequately audit or monitor voice communications between area controllers and train controllers. 36 The Agreed Facts disclose that the Sydenham Signal Box continuously operated 24 hours a day, 7 days a week, however, the Defendant provided only one manager to attend the Sydenham Signal Box. The practice of the Manager was to attend the Sydenham Signal Box on a routine basis on the morning peak hour shift, sometimes during the afternoon shift and rarely during the night shift. The Manager was responsible for managing approximately 53 staff employed to work at the Sydenham Signal Box over the three shifts. 37 In addition, at various times a Network Operations Superintendent ("NOS") attended the Sydenham Signal Box. The NOS were based outside the Sydenham Signal Box complex. 38 All of the area controllers operating signalling panels were of equal standing. No one was appointed to supervise the staff working at the Sydenham Signal Box in the absence of the Manager. 39. As a direct result of the absence of supervision on the night shift of 12/13 April 2010, the area controllers were using personal computers and other private electronic devices unrelated to signalling operations whilst on duty. This practice was contrary to the Defendant's operational procedure OSP 21. 40. Mr Farr, an area controller who was working on the night shift on 12-13 April 2010 and was in charge of the Hurstville panel was using a personal computer during that shift. At or about the time that the protection officer requested CSB for the Up Illawarra Local line adjacent to Platform 1 at Kogarah Station from Mr Farr, the evidence shows that Mr Farr had manually activated a mobile internet connection on his personal computer. Other area controllers were also using personal computers on the night of the incident. 41. The Defendant through its Manager of the Sydenham Signal Box was aware, or ought to have been aware, that as at 11 June 2009 of a practice of area controllers of using personal computers and other devices while working at the Sydenham Signal Box and that a memorandum prohibiting the practice had been issued. Despite the memorandum, no supervision to ensure compliance with OSP 21 or the memorandum of 11 June 2009 by the rail safety workers at Sydenham Signal Box was implemented prior to the incident.. 42. The Defendant's system of work as a result of the said failures was unsafe in that it failed to provide adequate supervision of rail safety workers' activities at the Sydenham Signal Box complex. At all relevant times it was reasonably practicable for the Defendant to provide supervision for each shift in the same manner supervision was provided to train controllers at the Rail Management Centre. See paragraph [94] of the Agreed Facts. 43. After the incident the Defendant changed its management structure, including the management structure for the Sydenham Signal Box. Failure to adequately audit or monitor the voice communications of area controllers with protection officers and/or train controllers. 44. The Defendant failed to conduct adequate auditing and monitoring of the voice communications conducted between area controllers and protection officers and area controllers and train controllers relating to the CSB method of worksite protection. The Defendant had in place a system for auditing voice communications, but the system was not adequate in that it was not specifically directed at monitoring compliance with CSB operations. 45 Prior to the incident, the Defendant was aware of instances of non-compliance with the Network Rules and Procedures in relation to the communications in relation to the issue of CSB.:. The Defendant did not adequately audit or monitor the manner in which area controllers implemented the CSB Network Rules and Procedures until 29 November 2011 when the management structure was changed and shift supervisors were employed to be present at each shift worked at the Sydenham Signal Box. 46 By not having in place an adequate system of auditing and monitoring voice communications that would operate to ensure CSB related communications complied with the Network Rules and Procedures, the Defendant failed to eliminate or mitigate the risk of errors or omissions in CSB related communication protocols that could give rise to the risk of workers being permitted to work at worksites for which CSB protection had not been properly implemented. 27In the forefront of submissions for the defendant was the proposition that, in assessing the objective seriousness of the breach, it was necessary to take into account the very extensive and otherwise effective safety rules already adopted by RailCorp. It was submitted that, if Mr Farr had adopted those rules and systems, this accident would not have occurred. Indeed, there were a series of errors committed by Mr Farr but he still had time to activate alternative systems but for unknown reasons, he chose to adopt an approach that was not authorised or otherwise contemplated by the defendant's safety systems and rules. That submission was accompanied by an exhaustive analysis of the events of the night in the context of how the system operated and an explanation of the way in which the safety rules operated. It was also submitted that it was relevant to have regard to the very extensive steps taken after the accident and in particular, the restructure adopted by the defendant that thoroughly addressed the weaknesses of the existing systems thrown up by this accident. 28In terms, senior counsel for the defendant did not suggest that this was other than a serious breach but emphasised the context in which it arose. Accepting that approach, nevertheless, this breach is to be regarded as a serious breach of the Act and demonstrated the existence of flaws in the defendant's safety systems. The defendant is a very large employer carrying out 24-hour per day operations in an inherently dangerous industry. One of the obvious dangers of its undertaking is that persons working in the rail corridor, unless effectively protected, are in grave danger of being seriously injured or killed by trains using that corridor. Here, that clear and foreseeable risk required taking steps to prevent the risk of injury to persons employed in the rail corridor. The measures ultimately adopted were clearly available prior to this accident and in every respect were feasible and appropriate. The Court accepts the prosecutor's analysis as to the seriousness nature of this breach. 29In this case general deterrence should play a significant role in the setting of an appropriate penalty. The time has long past where it was commonplace to find the absence of safety systems or at best the existence of a basic, if not meagre, safety system. The experience of the Court now is that considerable resources of employers is expended and focused upon creating detailed safety systems, often with the assistance of outside consultants. That development has shifted the focus to ensure that existing and appropriate safety rules are enforced and that they be continually reviewed and audited in an effort to uncover workplace developments which render existing safety rules less effective. The present matter is such a case. 30In relation to specific deterrence, senior counsel for the defendant pointed to the existing detailed system of safety assisted by technology and offering a variety of options to fit the type of work being conducted in a rail corridor. Submissions were also directed to the extensive restructure undertaken by the defendant and the new systems of supervision and communication monitoring now available to meet shortfalls demonstrated by this particular accident. The defendant in the present case operates in an industry with a high degree of risk for those who work on or near the railway corridors. The fact that a detailed system of safety was found to be inadequate in relation to supervision and the monitoring of communications in providing work site safety underlines the need to encourage this defendant to continually review, monitor and update its safety systems in this area. There is, nevertheless, some force in the submissions for the defendant regarding RailCorp's attention to safety in response to this accident to the extent that, while specific deterrence will have a role in the setting on an appropriate penalty, it will be one of reduced significance. 31A number of subjective factors were raised for consideration. There was some discussion as to whether or not the history of this matter allowed the Court to determine that there was an early guilty plea entered. Ultimately, counsel for the prosecutor conceded that this should be regarded as an early plea. Senior counsel for the defendant explained in sufficient detail the lengthy negotiations at senior level and undertaken over a period of time, ultimately, leading the prosecutor to withdraw two prosecutions and to file an Amended Application for Order in terms that allowed the defendant to enter its plea of guilty. Having regard to the prosecutor's concession and the explanation provided on behalf of the defendant, the Court is satisfied that this was an early plea and one that should qualify for a discount of 25 per cent. 32The prosecutor also conceded that there had been co-operation with the Regulator's investigation and that is a matter of significance to be taken into account in mitigating the penalty. In addition, the prosecutor acknowledged that, by operation of the legislation governing the defendant, it was to be regarded as a first offender. The Court accepts that submission: it follows that the defendant is entitled to the leniency usually extended to a defendant of that status. It was also significant that the prosecutor accepted that the changes brought about by the defendant following the accident "led to significant benefits in its operations." The Court further accepts, that on the evidence before it, the defendant has demonstrated remorse and contrition for its part in this accident and has given assistance to Mr Grant's family in a way that demonstrates it has taken responsibility for its part in the tragic loss of Mr Grant's life. Mr Eid's evidence also demonstrates the good citizenship of the defendant, including its wider involvement in promoting safety in the industry. All the above matters will be taken into account in mitigating the penalty to be imposed. 33At the conclusion of the evidence and submissions, the Court indicated that, while reasons for judgment would be reserved, a finding of guilt by the defendant of the breach alleged in the Amended Application for Order would be entered. The prosecutor thereupon tendered seven Victim Impact Statements from the following members of Mr Grant's family: Hemi Mihaere, Tracey Mihaere, Janelle Mihaere, Kennie Mihaere, William Ross Clark, Tiheme Thomas Mihaere and Mary Florence Mihaere. Hemi Mihaere, Tracey Mihaere and Janelle Mihaere took the opportunity to read their statements to the Court. At the conclusion of the reading of those statements, the Court indicated that it would read and consider all the statements. ORDERS: 34For the reasons given above, the Court makes the following orders: (i) the defendant, Rail Corporation New South Wales, is found guilty of a breach of s 8(1) of the Rail Safety Act 2008 as particularised in the Amended Application for Order in Matter IRC 482 of 2012 to which the defendant entered a plea of guilty; (ii) the defendant is fined the sum of $150,000 with half that amount to be paid to the prosecutor by way of moiety; (iii) the defendant is to pay the costs of the prosecutor in a sum agreed or, in the absence of agreement, as assessed.

AGREED STATEMENT OF FACTS

1. At all material times, the Prosecutor, the Independent Transport Safety Regulator (formerly known as the Independent Transport Safety and Reliability Regulator) (the "Prosecutor"), was a corporation constituted under section 42B (1) of the Transport Administration Act 1988 (NSW), whose address is Level 22, 201 Elizabeth Street, Sydney, New South Wales, and a body empowered under section 134 (1) of the Rail Safety Act 2008 (NSW) (the "Act") to institute proceedings for contraventions of the Act.
2. At all material times Rail Corporation New South Wales, (the "Defendant"), was a corporation constituted pursuant to section 4 of the Transport Administration Act 1998 (NSW) whose office is situated at Level 20, 477 Pitt Street, Sydney, New South Wales, 2000.
3. At all material times, the Defendant was an accredited rail transport operator pursuant to Part 3 of the Act and section 4 of the Act.
4. At all material times, the Defendant carried out railway operations throughout the Metropolitan Rail Network, including signalling operations at the Sydenham Signal Box complex, maintenance of the rail infrastructure from Hurstville Station to Kogarah Station in New South Wales and the operation of rolling stock for passenger services on that rail infrastructure. Sydenham Signal Box complex
5. The Sydenham Signal Box complex is located adjacent to the Illawarra line a short distance south of Sydenham Railway Station. The Sydenham Signal Box is used by the Defendant to carry out signalling operations in respect of the railway operations occurring on the southern parts of the Metropolitan Rail Network including the Illawarra Line.
6. As at 13 April 2010, there were seven operational panels located within the control room of the Sydenham Signal Box that were operated by employees of the Defendant who were known as area controllers (also referred to as signallers) in respect of seven defined areas of the southern parts of the Metropolitan Rail Network.
7. The panel responsible for signalling operations on the rail infrastructure between Hurstville and Kogarah Stations was known as the "Hurstville Panel".
8. In the control room of the Sydenham Signal Box there were also three panels operated by Line Information Control Operators who were responsible for relaying information about the scheduling and running time of trains to passengers and staff at railway stations. Signalling operations
9. At all material times, the Sydenham Signal Box was commissioned with an electronic signalling system called the Automated Train Running Information Control System ("ATRICS") which was used by the Defendant for the control of the movement of rolling stock. The ATRICS formed part of the overall signalling system operated by the Defendant. Each area controller panel had a number of ATRICS computer screens that provided the area controllers with a remote diagrammatic view of signals and rail infrastructure and the position of trains or other rolling stock within the area for which the area controller was responsible.
10. The position of trains or rolling stock is relayed to the ATRICS through a system of track circuitry known as Rail Vehicle Detection ("RVD") which is connected to railway signals and the ATRICS. When a train or rolling stock occupies a section of track in RVD territory (also known as a "block") the track circuit is completed and the position of that train or rolling stock within that section of track appears on the ATRICS screen as represented by a red rectangle, or a number of red rectangles (positioned end to end) depending on the length of train as it passes over one or more track circuits, with the number of the train represented above, below or forward of the red line with the letters such as "C488" identifying the train.
11. The presence of a train on the track circuits activates signals known as controlled signals (also known as "absolute signals" depicted on ATRICS screens as a base and connected coloured circle orientated in the direction of train travel) and automatic signals (also referred to as "permissive signals" depicted on ATRICS screens as a base and connecting coloured triangle orientated in the direction of train travel) by turning them to red to prevent other trains entering the occupied section of track.
12. An area controller can control the movement of rolling stock through the area of rail infrastructure for which they are responsible by interacting with the ATRICS to activate signals or sets of points by means of using a computer mouse to move a cursor across the ATRICS screen, opening menus and activating the particular signal or set of points.
13. The ATRICS provides, amongst other things, for the automatic routing of trains by an area controller activating Automatic Route Setting (ARS) or manually routing trains through the operation of signals and points.
14. At all material times, the ATRICS automatically makes a continuous record of the diagrammatic view on the ATRICS screen at each point in time and of all manual interactions of the area controller with the ATRICS. The Defendant is able to construct and review these records like point-in-time photographs of the ATRICS screen. Controlled Signal Blocking
15. One of the signalling operations that could be performed by an area controller using the ATRICS was the application of blocks to signals in accordance with NWT 308 'Controlled Signal Blocking' ("CSB").
16. CSB is used to exclude rail traffic from a section of track to allow persons or vehicles to safely work in the danger zone in that section of the track. The danger zone is defined as everywhere within 3 metres horizontally from the nearest rail, and any distance above or below this 3 metres, unless a safe place exists or has been created.
17. CSB is one of five forms of worksite protection provided by the Defendant's Network Rules and Procedures that may be used to ensure the safety of persons working on or near rail track (also known as a 'work on track method').
18. It is the responsibility of the protection officer to assess the risks at the track worksite and to request and confirm the implementation of the appropriate method of protection to ensure safety.
19. One way CSB may be implemented in accordance with the Defendant's Network Rules and Procedures is by activating controlled signal(s) to ensure they remain at "red" or are "blocked". On approaching a controlled signal that is set to red and has blocking facilities applied under CSB, a train driver is required to stop the train until the signal changes, unless the area controller gives permission for the driver to pass the controlled signal at stop.
20. The implementation of CSB in this way requires an area controller to interact with the ATRICS by using a computer mouse to move a cursor on the ATRICS screen above the controlled signal, open a menu and apply a block to that controlled signal. A controlled signal by definition is a signal that can be manually activated by an area controller in this way. The ATRICS records these actions, the time those actions are taken and the position of any trains or rolling stock at the time CSB is activated in the ATRICS logs.
21. The ATRICS screen displays the location of all rail traffic on the sections of track for which the area controller is responsible. For example, the presence of a train will be depicted as a red rectangle and will be positioned on the particular rail line the train is travelling on. Voice communications
22. At all material times, the Sydenham Signal Box was equipped with three systems for voice communications: (a) The MetroNet Train Radio ("MetroNet") system for radio communications between area controllers, train drivers and train controllers. At Sydenham Signal Box, each area controller panel was equipped with a MetroNet Radio that was operated by the area controller by interacting with a computer screen, a DTe60 keyboard and a telephone handset. (b) The Voice Communication System ("VCS") for communications through the MetroNet Radio or with landlines and mobile phones, which is operated by area controllers from a touchscreen panel and a telephone handset. (c) Two desktop telephones, the General Administration telephone and the Network Operations phone, which are desktop consoles operated by area controllers in the same manner as a digital telephone.
23. At all material times, the Defendant had in place a system for automatically recording all voice communications via the MetroNet Train Radio, the VCS or telephones between area controllers and protection officers, train drivers and train controllers and to record the time those communications took place ("audio logs").
24. At all material times, the Defendant had, as part of its safety management system ("SMS"), Network Rules, Network Procedures, and Operator Specific Procedures ("OSP") relating to how voice communications should be conducted.
25. NPR 721 'Spoken and written communication' provides that standard terms must be used to convey particular meanings and how emergency communications must be conducted.
26. NGE 204 'Network communications' provides that all voice communications must be clear, brief and unambiguous and if the communication concerns a work on track method such as CSB, that the receiver of a message repeat back the message to the sender and the sender must confirm the message has been repeated correctly.
27. NGE 204 provides that if voice communication recording equipment is available it must be used to record network control communications and the recordings must be kept for at least 28 days.
28. At all material times, the Defendant was able to review the audio logs of voice communications to and from Sydenham Signal Box. CSB Network Rules and Procedures
29. At all material times the Defendant had, as part of its SMS, Network Rules, Network Procedures, OSPs, General Orders and Safety Instructions on which it relied for the safety of its railway operations, including the protection of worksites in the rail corridor by CSB and to respond to emergency situations.
30. The Network Rules and Procedures that are relevant to the CSB method of worksite protection included: (a) NWT 300 'Planning work in the Rail Corridor'; (b) NWT 308 'Controlled Signal Blocking'; (c) NGE 204 'Network communication'; (d) NPR 703 'Working using controlled signal blocking'; (e) NPR 721 'Spoken and Written Communication'; (f) NGE234 'Responsibilities of Signallers'; (g) OSP 2 'Carrying Out Activities Using Either No Authority Required (NAR) or Controlled Signal Blocking (CSB)'; (h) OSP 21 'Signal Box Management'.
31. NWT 300 and NWT 308 provide that CSB is an appropriate method of protection for work involving no tools, work involving light powered or non-powered hand tools or to allow vehicles to cross the track at departmental level crossings or livestock to cross the track.
32. NWT 300 provides that all worksites within the rail corridor must have a protection officer whose primary duty is to keep the worksite and the workers safe.
33. lf a protection officer has carried out a safety assessment of the risks at the proposed work in the danger zone and has determined that CSB is the appropriate level of protection, NWT 308 provides that unless CSB is used to protect minor repairs to rail traffic, a protection officer must ensure that one of the following three methods is available: (a) two consecutive controlled signals can be set at STOP and with blocking facilities applied; or (b) an ESML handle can be removed to exclude rail traffic; or (c) one controlled signal can be set at STOP with blocking facilities applied, and either a set of points can be secured to prevent access, or an easily-reached safe place is available and a lookout is provided.
34. NWT 300, NWT 308 and OSP 2 require a protection officer to develop a worksite protection plan which identifies the protection that will be used and the location of an easily accessible safe place at the worksite if necessary. They also require a protection officer to provide workers with a pre-work briefing about the protection arrangements in place.
35. NWT 300 and NWT 308 provide that area controllers may only authorise CSB for signals within their area of control.
36. In order to request CSB to protect a worksite, the Network Rules and Procedures require a protection officer to do the following things: (a) contact the area controller responsible for the section of track to be protected and state the protection officer's name and the location of the work: NPR 703; (b) state the intended start and finish times or duration of the work: NPR 703, OSP2; (c) obtain the numbers of the signals to be used for CSB: OSP 2; (d) ask the signaller to exclude rail traffic by setting the controlled signals to STOP with blocking facilities applied, or authorising the removal of the ESML handle to set signals at STOP: NPR 703; (e) before commencing work, confirm from the area controller that the controlled signals have been set to stop with blocking facilities applied and that there is no rail traffic approaching the worksite: NWT 308, NPR 703; (f) obtain an assurance from the area controller that CSB will be maintained until removed on the authority of the protection officer: OSP 2.
37. In order to authorise CSB to protect a worksite, the Network Rules and Procedures require an area controller to do the following things: (a) ensure that there is no rail traffic approaching the worksite by checking that the line is clear between the controlled signals being used for protection and the worksite: NWT 308, NPR 703; (b) ensure that the relevant signals to be used for protection are controlled signals: NPR 703; (c) give the signal numbers be used for CSB to the protection officer: OSP2; (d) speak to the train controller about the request to exclude rail traffic: NWT 300, NWT 308, NPR 703; (e) set the controlled signals to stop and apply blocking facilities: NWT 308, NPR 703; (f) repeat back the location and duration of the proposed work and the controlled signals to be blocked: NGE204.
38. NWT 308 provides that an area controller must not remove CSB until the protection officer has told the area controller that the worksite is clear.
39. The position of train controller has a general oversight function in relation to whether the request to exclude rail traffic can be accommodated according to the current requirements for the running of trains. Emergency procedures and training
40. Emergency situations that may arise within the Defendant's railway operations include many situations, including a train approaching an unprotected worksite.
41. At all material times the Defendant had, as part of its SMS, Network Rules, Network Procedures, OSPs, General Orders and Safety Instructions on which it relied for the safety of its railway operations, including responses to emergency situations.
42. The Network Rules and Procedures that were relevant to emergency responses included: (a) NGE 204 'Network communication'; (b) NGE 206 'Reporting and Responding to a Condition Affecting the Network'; (c) NPR 721 'Spoken and Written Communication'.
43. NGE 204 provides that emergency communications must be given priority and be answered immediately.
44. NPR 721 provides that all emergency communications must be commenced by the sender stating "Emergency, Emergency, Emergency''.
45. NGE 206 provides how a network control officer (which includes an area controller) must report and respond to unsafe conditions affecting or potentially affecting the network.
46. NGE 206 also provides that a network control officer must, as necessary: (a) arrange to warn drivers and track vehicle operators of rail traffic approaching the affected portions of line; (b) arrange to prevent rail traffic from approaching the affected portions of line, and apply blocking facilities as necessary; (c) arrange for the 1500V supply to be isolated in accordance with NGE 228 "Unplanned removal of 1500V supply" or; (d) ask maintenance representatives to investigate.
47. At all material times, the Defendant had in place the following controls to be implemented by area controllers in the event of an emergency, such as a train heading towards an unprotected worksite: (a) the use of the MetroNet "All Stop" key and icon on the MetroNet keyboard and VCS that could send a text message to the train driver's train radio, fitted in the train driver's cabin, directing the driver to slow down and then to stop; (b) the use of either of the broadcast keys marked "BRCST" on the MetroNet or the icon "BROAD CAST" on the VCS that allowed an area controller to broadcast a warning to every train driver on the track; (c) a direct MetroNet radio link with a train driver; (d) arrange for the 1500V supply to be isolated in accordance with NGE 228; (e) the use of telephones to inform a train controller of the imminent danger of a train approaching a worksite.
48. At the date of the incident, the Defendant had provided training to area controllers, through periodic safe working re-certifications and localised training assessments, as to how to use the MetroNet and VCS All Stop button/icon and the Emergency Broadcast key/icon and how to contact a train driver or protection officer on the MetroNet Radio, VCS or desk telephones. Defendant's employees
49. As part of its railway operations, the Defendant employed Mr Wayne Farr as an area controller grade 3 at Sydenham Signal Box. Mr Farr had worked as an area controller grade 3 since December 2001 and had worked regularly on the Hurstville Panel.
50. As part of its railway operations, the Defendant operated Kogarah Station and employed customer service attendants at that station.
51. As part of its railway operations, the Defendant operated train C488 and employed a train driver who was allocated to drive train C488 on 12 and 13 April 2010 and a train controller located at Central Station in the Rail Management Centre.
52. At all material times, the area controllers at the Sydenham Signal Box, including Mr Farr, were under the supervision of the Sydenham Signal Box Manager. No other supervisor was provided to supervise the employees working at the Sydenham Signal Box. Swetha International Pty Ltd
53. The Defendant had contracted Swetha International Pty Ltd ("Swetha") to carry out station corridor cleaning work for the Metropolitan Rail Network, including at Hurstville and Kogarah Stations. Under the agreement between the Defendant and Swetha, a protection officer was provided by Swetha for every 3 or 4 track workers.
54. On 12 and 13 April 2010, Swetha employed rail safety workers who were tasked with station corridor cleaning work at Hurstville and Kogarah Stations including a protection officer and four track workers (the "work group"). The Protection Officer had worked as a protection officer for Swetha for approximately 2½ years prior to the incident. Mr Tamati Grant, the deceased worker, had worked as a track cleaner for Swetha for approximately 2½ years prior to the incident. The incident
55. On 12 April 2010 prior to his shift commencing, the Protection Officer prepared worksite protection plans for the station corridor cleaning work to be performed at Hurstville and Kogarah railway stations during that night shift by the work group. The Protection Officer met with the work group at a local petrol station where he provided a pre-work briefing to the work group by identifying hazards and the protection arrangements to be used for the station corridor cleaning before the shift commenced.
56. The work group travelled first to Hurstville Station where the Protection Officer telephoned the Hurstville Panel at or about 11:58:00pm on 12 April 2010 to request CSB as the appropriate method of protecting the workers whilst cleaning beside Hurstville Station. Mr Farr was rostered on from 10:00pm on 12 April 2010 on the Hurstville Panel and answered the telephone call from the Protection Officer. The cleaning of the rail corridor at Hurstville Station was then completed with CSB being applied to the lines adjacent to Platforms 1, 2, 3 and 4 by Mr Farr at the request of the Protection Officer.
57. The work group then moved to Kogarah Station when the Protection Officer contacted Mr Farr from his mobile telephone at or about 12:59:05am on 13 April 2010 and the following conversation was recorded as MetroNet audio file 503095009986741: WF: Hello Hurstville panel. PO: How are you Wayne, it's *** again. WF: Yeah mate. PO: I'm just at Kogarah, is there any chance of getting a CSB on one or three? WF: At Kogarah? PO: Yeah. WF: I'll do the up and Wolli does the down. PO: Down yeah. WF: Yep so yeah I can give you three. PO: Platform three? WF: Yeah. PO: No worries, can I get that now? WF: Yep no worries blocks on. PO: All right I'll give you a call back in ten. WF: All right mate. PO: Thanks mate. Bye. Note: (a) "WF" is Wayne Farr. (b) "PO" is the Protection Officer". (c) *** indicates that the name of the Protection Officer has been withheld.
58. The work group then proceeded to clean the rail line adjacent to Platform 3 at Kogarah Station.
59. When the work group had finished cleaning the line adjacent to Platform 3 at or about 1:06:59am, the Protection Officer telephoned Mr Farr from his mobile phone and the following conversation was recorded as MetroNet audio file 503095009986771: WF: Hurstville. PO: How are you Wayne, I've just fulfilled a CSB on three. WF: Yeah. PO: Any chance of getting one? WF: Yeah no worries. PO: Yeah on one. Thanks mate. WF: Righto mate. Blocks are on. PO: Thank you. WF: Ta.
60. The Protection Officer then instructed the work group to begin cleaning the Up Illawarra Local line starting at the southern end of Platform 1 and moving northwards.
61. At the time that Mr Farr authorised CSB for the Up Illawarra Local line for work adjacent to Platform 1, train C488 was past the relevant controlled signals SM914IL, SM924UIL and SM922DIL on the Up Illawarra Local line and was within the section of track that was to be protected by the CSB. There were no controlled signals between the location of the train and the worksite at the time Mr Farr authorised the CSB for the Illawarra Local Line.
62. A block was not placed on signal SM914IL by Mr Farr until 01:08:18am. No other block was placed on the relevant controlled signals at or near Hurstville Station.
63. When the Protection Officer requested CSB for the line adjacent to Platform 1 at Kogarah Station, he failed to comply with the following requirements under the Defendant's Network Rules and Procedures: (a) state the duration and location of the work as being at Kogarah or to obtain the numbers of the signals to be set to STOP and blocked under CSB as required by OSP 2; (b) confirm with Mr Farr that the signals had been set to stop and the blocking facilities applied as required by NWT 308 and NPR 703; (c) confirm with Mr Farr that there was no rail traffic between the controlled signals being used for protection for the workers as required by NWT 308 and NPR 703; (d) obtain an assurance from Mr Farr that CSB will be maintained until removed on the authority of the protection officer as required by OSP 2.
64. When Mr Farr authorised CSB for the line adjacent to Platform 1 at Kogarah Station, he failed to comply with the following requirements under the Defendant's Network Rules and Procedures: (a) give the Protection Officer the numbers of the controlled signals to be blocked as required by OSP 2; (b) ensure there was no rail traffic approaching the worksite by checking that the line was clear between the controlled signals being used for protection and the worksite as required by NWT 308 and NPR 703; (c) speak with the train controller as required by NWT 300 and NWT 308; (d) set the controlled signals SM914IL, SM924UIL and SM922DIL to stop and apply blocking facilities before authorising CSB as required by NWT 308 and NPR 703; (e) before authorising CSB, inform the protection officer that the correct signals have been set to stop with blocking facilities applied and that there is no rail traffic in the section to be protected as required by NPR 703 and OSP 2; (f) repeat back the location and duration of the proposed work as required by NGE204.
65. After Mr Farr had authorised the CSB, he became aware from the ATRICS screen of the presence of train C488 on the Up Illawarra Local Line in the section of track for which he had authorised CSB. At 01:07:41am, Mr Farr telephoned Kogarah Station and his call was answered by the Customer Service Attendant on duty and the following conversation was recorded as MetroNet audio file 503095009986774: CSA: Kogarah. WF: Yeah mate can you make an announcement for us on one and tell anyone near the track that wants to work to just wait for this up coasty coming. CSA: Yeah no worries. WF: Thanks mate. CSA: Thanks mate ta ta. WF: Ta ta Note: "WF" is Wayne Farr. "CSA" is the Customer Service Attendant at Kogarah Station.
66. Mr Farr failed to comply with the Defendant's Network Rules and Procedures regarding emergency responses in that he failed to implement the following: (a) the use of the MetroNet "All Stop" key and icon on the MetroNet keyboard and VCS that could send a text message to the train driver's train radio, fitted in the train driver's cabin, directing the driver to slow down and then to stop; (b) the use of either of the broadcast keys marked "BRCST" on the MetroNet or the icon "BROAD CAST" on the VCS that allowed an area controller to broadcast a warning to every train driver on the track; (c) a direct MetroNet radio link with a train driver; (d) an arrangement for the 1500V supply to be isolated in accordance with NGE 228; (e) the use of telephones to inform the train controller of the imminent danger of a train approaching a worksite.
67. At or shortly after 01:08:02am, the Customer Service Attendant at Kogarah Station made an announcement on the public address system for the workers on Platform 1 to clear the track.
68. At about the time the announcement was made, train C488 came around a left hand bend approaching Kogarah Station. The driver of train C488 sighted the workers on the track near Platform 1, sounded the train horn and applied the emergency brakes. There were no signals between Hurstville Station and Kogarah Station that required the driver to stop or slow the train down.
69. On seeing the train enter Kogarah Station from the southern end, the Protection Officer was able to move to a safe place in an alcove at the southern end of Platform 1 and three track workers moved onto the rail track adjacent to Platform 2.
70. Mr Grant moved in the opposite direction to the other three track workers and attempted to climb onto Platform 1 which was approximately 1.4 metres high when he was struck by the leading locomotive of train C488 and fatally injured.
71. At about 01.09:21am, the driver of train C488 reported the incident to Mr Farr on the MetroNet and the Protection Officer contacted emergency services on his mobile telephone. During the call from the Protection Officer reporting the incident, the audio recording of the MetroNet recorded ambient noise in the control room including the words "Better pack up the computers".
72. After the incident, Mr Farr was relieved of his role as area controller from the Hurstville Panel and then left the control room and the Sydenham Signal Box unaccompanied for approximately 15 minutes.
73. On returning to the control room, Mr Farr was taken by ambulance to Royal Prince Alfred Hospital for treatment. A Network Operations Superintendent ("NOS") attended Royal Prince Alfred Hospital and conducted a breath test which showed a negative reading for alcohol. No blood or urine sample was taken from Mr Farr at the hospital.
74. On 21 December 2012, Mr Farr's laptop was seized by the NSW Police Force.
75. Mr Allan Watt, an Electronic Evidence Expert, who was employed by the NSW Police Force, examined the laptop computer taken from Mr Farr. A report prepared by Mr Watt dated 20 March 2012 disclosed that: (a) the laptop computer had been connected to the internet on 13 April 2010 at 01:07:02; (b) the internal clock of the laptop computer was 1 minute 59 seconds faster than the internet server to which it was connected; (c) at 01:09:04 a group email had been received and there was email activity at this time; and (d) the computer modem had been reconnected manually by the user (not automatically) at 01:07:02.
76. This evidence when matched and adjusted to the times of the Defendant's audio log records indicated that Mr Farr was using the laptop computer at or about the time the Protection Officer contacted Mr Farr at 1:06:59am to request CSB for the line adjacent to Platform 1 at Kogarah and when Mr Farr authorised CSB for the Up Illawarra Local line for work adjacent to Platform 1.
77. By using a personal laptop computer for non-work related purposes whilst performing rail safety work as an area controller, Mr Farr failed to comply with the Defendant's OSP 21 and other General Orders and instructions.
78. Other area controllers at the Sydenham Signal Box also were using personal laptop computers in the control room during the night shift on 12-13 April 2010.
79. The Defendant issued an OSP 21 dated 3 September 2009, which applied to the management of the Sydenham Signal Box complex. OSP 21 carried a warning that "Private television sets, radios and other audio devices are not permitted in the control area of any signal box."
80. No Network Rule or Procedure, other than OSP 21, issued by the Defendant specified a prohibition on area controllers bringing personal laptop computers and other electronic devices into the control rooms of signal boxes.
81. OSP 21 also required area controllers to 'carefully read' and 'acknowledge' weekly notices, general orders and other safety documentation affecting their area within the Defendant's rail operations.
82. The Sydenham Signal Box Manager issued a memorandum dated 11 June 2009 reminding area controllers that the use of personal computers in the workplace was strictly prohibited. A copy of the memorandum dated 11 June 2009 was given to each area controller in the Sydenham Signal Box.
83. After the incident, the Defendant issued General Order 11/10. According to the Manager, Metropolitan Network Control, the General Order was issued because of anecdotal evidence brought to his attention prior to 13 April 2010 that staff working the night shift at the Sydenham Box were using laptops while performing signalling duties. The General Order was issued to reinforce OSP 21 but was not made in response to the incident.
84. After the incident, OSP 21 was amended by the Defendant to read "The use of distracting electronic devices for non-train working operations is not permitted in the control area of any signal box." Supervision of area controllers
85. Network Rules and Procedures relied upon by the Defendant to ensure the safety of worksites under the CSB method of protection depended on area controllers accurately: (a) identifying on the signalling system the location and direction of travel of rail traffic; (b) identifying the correct controlled signals to be blocked to protect a worksite on a particular line; and (c) interacting with the signalling system to set the correct controlled signal(s) to stop and applying blocking facilities or securing points.
86. As at the date of the incident, the Sydenham Signal Box Manager was in charge of the day-to-day running of the control room and had approximately 53 staff reporting to him in that position.
87. The Sydenham Signal Box Manager would attend the Sydenham Signal Box during the morning shift and sometimes on the afternoon shift, and rarely attended the Sydenham Signal Box on the night shift.
88. At the time of the incident, there was no supervisor routinely present at the Sydenham Signal Box complex on night shifts. In particular, area controllers were not supervised: (a) to ensure all staff at the Sydenham Signal Box are complying with OSP 21, including by ensuring that distracting electronic devices are not being used; (b) to monitor and review compliance by area controllers with Network Rules and Procedures regarding the implementation of CSB, including by communicating safety critical information as required by the Network Rules and Procedures.
89. On the night of the incident there was no supervisor present, until a Network Operations Superintendent ("NOS") attended the Sydenham Signal Box after the incident.
90. At various times a NOS would attend the Sydenham Signal Box in case of serious delays or an incident. The NOS was normally based outside the Sydenham Signal Box complex.
91. Under the Defendant's performance targets in place prior to the incident, there were to be two safe working inspections carried out every month within the Illawarra, South and CBD Region by the Line Managers of the signal boxes. The signal boxes to be inspected and the dates and times of those inspections were determined at the discretion of the Regional Managers. The inspections required the Line Managers to complete a checklist which included at line 103 that "Controlled Signal Blocking (CSB) procedures being followed". A safety inspection of Sydenham Signal Box was carried out by the Defendant on 8 February 2010, which resulted in line 103 being ticked on the checklist.
92. Prior to the incident, the Defendant had received reports from the safety checks carried out by Line Managers on area controllers. The Defendant had received reports of irregularities in the application of the Defendant's Network Rules and Procedures being followed including reports of area controllers omitting to speak to the train controller when applying CSB.
93. Prior to the incident, the Defendant had identified the absence of supervision for the afternoon and night shifts of area controllers at the Sydenham Signal Box complex as an issue it had to address.
94. At the time of the incident, the train controllers located at the Rail Management Centre had 24hour shift supervisors provided by the Defendant 7 days of the week.
95. At all material times, it was reasonably practicable for the Defendant to provide supervision of the area controllers located at the Sydenham Signal Box to assess and ensure, so far as reasonably practicable, compliance with the relevant CSB Network Rules and Procedures, as demonstrated by the measures undertaken by the Defendant post-incident.
96. Since 20 November 2011, the Defendant has provided supervision for all area controller shifts at the Sydenham Signal Box complex. A new Assistant Area Manager now supports 5 shift supervisors to ensure, so far as reasonably practicable, compliance by the rail safety workers with Network Rules and Procedures. In addition, the new position of Area Signal Box Manager has been created.
97. As at 30 July 2012, the Defendant has employed 25 shift supervisors, 3 Area Signal Box Managers, 7 Assistant Area Signal Box Managers and an Incident Response Manager to provide additional supervision in signal boxes.
98. Since the incident, the Defendant has increased the number of inspections that are carried out to check safety compliance by area controllers at Sydenham Signal Box complex. Under the new system, Line Managers may, at any time, undertake safety inspections and prepare a report.
99. Since the incident, the Defendant also has: (a) issued a number of Safe Tracks communications to area controllers and protection officers aimed at re-enforcing the requirements under the relevant network rules and procedures and identifying improvements in CSB practices; (b) Network Rule NWT 308 has been amended from requiring area controllers "speak to" the train controllers before issuing a CSB, to require area controllers to "talk to" the train controllers before issuing a CSB. Auditing voice communications
100. The effective implementation of the Defendant's Network Rules and Procedures requires area controllers, train controllers and protection officers to communicate all safety critical information fully and clearly as prescribed by the Network Rules and Procedures.
101. If a protection officer or an area controller failed to comply with the relevant Network Rules and Procedures when requesting or authorising a CSB, that would give rise to a risk of a CSB being authorised when there was a train in the section heading towards an unprotected worksite.
102. At the time of the incident, the Defendant had a system for auditing voice communications, but it was not specifically targeted at communications between area controllers and protection officers or area controllers and train controllers relating to the use of the CSB method of worksite protection.
103. Since the incident, an audio monitoring program for monitoring compliance of area controller communications with protection officers has been introduced.
104. At all material times, it was reasonably practicable for the Defendant to audit recorded voice communications relating to the use of the CSB to assess compliance by its employees with the relevant Network Rules and Procedures. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 April 2013