Independent Transport Safety Regulator v Rail Corporation New South Wales

Judgment 1In the early hours of 13 April 2010, five rail safety workers were performing cleaning duties on the Up Illawarra local line adjacent to platform 1 at Kogarah Station. The work group had been authorised to perform this work by an Area Controller at Sydenham signal box. Although the work group understood that arrangements had been made for the line to be blocked so that train traffic would not use the line on which they were performing their work, those arrangements broke down when a train unexpectedly entered Kogarah station. All five members of the work group were in danger of being hit by the train but four of them were able to scramble to safety. The fifth member of the team, Mr Tamati Grant, tried to climb on to the station platform but was unable to do so and received fatal injuries when hit by the train. 2These events led to an investigation and ultimately the Independent Transport Safety Regulator ("the Regulator") commenced proceedings against Rail Corporation New South Wales ("RailCorp") alleging a breach of s 8(1) of the Rail Safety Act 2008 ("the Act"). The Regulator also commenced proceedings alleging a breach by the defendant of s 12(1) and s 13(2) of the Act. After considerable consultation, the prosecutor withdrew the s 12 and s 13 prosecutions and filed an Amended Application for Order in relation to the s 8(1) breach. Upon the filing of the Amended Application for Order, the defendant entered a plea of guilty. This judgment deals with the evidence and submissions on sentence. 3The Amended Application for Order particularised the breach in the following terms: 2. 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. 3. At all material times the Defendant carried out railway operations throughout the Metropolitan Rail Network, including signalling operations at the Sydenham Signal Box complex at Sydenham, maintained the section of rail infrastructure from Hurstville Station to Kogarah Station in New South Wales and operated rolling stock for passenger services on that rail infrastructure, including train C488. 4. On 13 April 2010 at or about 1:07am, a work group of five rail safety workers consisting of Jim Abou-Khader, Tamati Grant, Michael James Smith, William Ross Clark and John Soso ("work group") were authorised to perform cleaning work on the Up Illawarra Local Line adjacent to Platform 1 at Kogarah Station by an area controller at Sydenham Signal Box under CSB. 5. The Defendant's railway operations were unsafe in that Tamati Grant, a rail safety worker in the work group, was killed and the four other members of the work group were exposed to the risk of death or serious injury when train C488 entered Kogarah Station whilst the work group was carrying out work on the Up Illawarra Local Line adjacent to Platform 1 at or about 1:08am. 6. The Defendant failed to ensure, so far as was reasonably practicable, the safety of the railway operations it carried out at the Sydenham Signal Box complex, Sydenham and the rail infrastructure and rolling stock from Hurstville Station to Kogarah Station in that it failed to provide such supervision and monitoring as was necessary to ensure, so far as was reasonably practicable, that the Defendant's Network Rules and Procedures, Operator Specific Procedures and General Orders were complied with, in that it did not: 6.1 provide adequate supervision of area controllers to ensure, so far as was reasonably practicable, compliance by the area controllers with Network Rules NWT 308 "Controlled Signal Blocking" ("NWT 308"), NPR 703, "Working using controlled signal blocking" ("NPR 703") and NGE 204 "Network communication" ("NGE 204") and Procedure OSP 2 "Carrying Out Activities Using Either No Authority Required" ("NAR") or "Controlled Signal Blocking (CSB)" ("OSP 2") and OSP 21 "Signal Box Management" including relating to the prohibition on use of personal computers within the Control Room of the Sydenham Signal Box; 6.2 adequately monitor or audit the voice communications between area controllers and protection officers relating to the Controlled Signal Blocking work on track method ("CSB") to ensure, so far as was reasonably practicable, compliance with its Network Rules and Procedures NWT 308, NPR 703, NGE 204 and OSP 2; 6.3 adequately monitor or audit the voice communications between area controllers and train controllers when CSB was implemented to ensure, so far as was reasonably practicable, compliance with its Network Rules and Procedures NWT 308, NPR 703 and NGE 204. 7. 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 paragraph 6 above. 8. As a result of the said failures Tamati Grant was fatally injured and the other members of the work group were placed at risk of injury or death. 4The evidence for the prosecutor consisted of an Agreed Statement of Facts together with a large number of annexures. The annexures included: a layout of the Sydenham signal box showing the location of the Hurstville desk and its positioning in relation to a wider rail operation screen; a variety of images from an ATRICS screen showing the movement of the train at various times during the relevant period; CCTV images from Kogarah station; a variety of rail network safe operating procedures applicable to the task being performed by the working group on the night of the accident; a position description for the signal box manager and the signal box shift supervisor; and, an expert opinion supplied by an electronic evidence specialist employed by the New South Wales Police Force indicating that, shortly before the accident, the computer used by the relevant Area Controller had its modem manually connected at that time. It was common ground that by operation of the provisions of the Act the defendant did not have any relevant prior convictions. The Agreed Statement of Facts appears as an annexure to this judgment. 5The evidence for the defendant was provided through the affidavit of Mr Anthony Eid, the director of operations at RailCorp. In this position, Mr Eid reported to the Chief Executive and part of his role was responsibility for planning and managing the co-ordination of trains and crew operations including, signalling operations. At the time of the accident, he held the position of Deputy Chief Operating Officer with the defendant. 6After setting out his qualifications and the positions of authority he held, , Mr Eid indicated early in his affidavit that he was authorised by the Chief Executive of the defendant to say that RailCorp acknowledged and deeply regretted that its breach of the Act had contributed to this accident. The defendant regretted that, as a consequence of the accident, its own employees, Mr Grant's family and other sub-contractor employees and their families had been affected. 7Mr Eid explained the legislative provisions under which RailCorp was constituted and it was noted that RailCorp was a New South Wales government agency forming part of the Transport NSW portfolio. The objects, functions and management of the defendant were to deliver safe and reliable railway passenger services in New South Wales in an efficient, effective and financially responsible manner and to ensure that the part of the New South Wales rail network vested in or owned by RailCorp enable safe and reliable railway passenger and freight services to be provided in an efficient, effective and financially responsible manner. The operations of the defendant were described as being "extensive": it provided Metropolitan passenger rail services via City Rail and long distance services via CountryLink. These operations were 24-hours, 7-days per week operations. Some key statistics relating to RailCorp were that the rail fleet was comprised of over 1800 electric and diesel carriages with over 1600 kilometres of mainline track. An average of one million trips each day were made on the defendant's network to and from more than 380 railway stations. The defendant employed approximately 1500 people. 8Under legislative requirement, the defendant was obliged to have a safety management system for its operations in a form approved by the Regulator. Accreditation was not to be granted by the Regulator to a rail transport operator unless satisfied that the operator had demonstrated competence and capacity to manage risks associated with its railway operations. Mr Eid described the defendant's safety management system as "comprehensive" and representing an integrated safety system that was available in electronic form on the RailCorp Internet. Due to the complexity of the defendant's operations, the safety management system ran to approximately 1500 pages. Mr Eid also explained the structure of the safety system. 9There were a number of operating standards applied by the defendant including, Network Rules, Network Procedures and Operator Specific Procedures. There were five Network Rules relevant to the accident at Kogarah as well as two Network Procedures and two Operator Specific Procedures. 10In relation to signal boxes and signal complexes, Mr Eid noted that there were a number of such operations of various sizes and complexity throughout the defendant's network. At each location there were signallers, some called Area Controllers, whose role included the setting of routes for the safe and efficient transit of trains, the operation of signalling equipment and the arrangements for the protection of track workers responding to signalling equipment failures. These complexes operated 24-hours, 7-days per week. By reference to the Sydenham signal box control room layout, Mr Eid was able to point out that, at their individual work station, each operator had positioned in front of them a large number of computer screens showing their area of responsibility and each operator faced a large overview depiction of the components of the network for which the Sydenham signalling complex was responsible. The overview comprised of multiple large computer monitors. 11Mr Eid also referred to the automotive train running information control system ("ATRICS") which was described as a fully integrated rail control system developed and maintained by the defendant to manage train movements. At the time of this accident, ATRICS covered approximately 39 per cent of the defendant's network but was currently in use across approximately 42 per cent of the network. ATRICS met the requirements of the defendant under its Network Rules and was consistent with the defendant's signalling system: consequentially, ACTRICS allowed the automated implementation of the requirements for the operation of the rail network set out in the Network Rules. The ACTRICS system allowed signalling infrastructure, firstly, to be controlled automatically through automatic route setting for train movements based on the manipulation of the timetable or, secondly, as directed by a signaller using a computer mouse and keyboard to enter commands. 12Mr Eid explained the system of control signal blocking whereby, when work was undertaken on a rail corridor, an appropriate form of protection was implemented to allow work to be safely undertaken on a particular section of the track. Mr Eid described the five track methods. It was noted that on the day of the accident the Area Controller at the Sydenham signalling box, Mr Wayne Farr, had incorrectly informed the Protection Officer at the work site that blocks had been placed on the relevant signals although in fact there was a train in that very section at the time that the call was made and so the blocks had not been placed by him on the signal. It was asserted that, had Mr Farr acted in accordance with the defendant's processes, he would have looked at the ATRICS screen showing him that a train was in the section and would then have informed the Protection Officer that control signal blocking could not be implemented at that time. It was said that, had Mr Farr followed these processes, no person would have been at risk. 13Mr Farr's training was set out in some detail, including assessments conducted from time-to-time by the defendant. In particular, Mr Farr had been trained in emergency procedures and they had been shown to work effectively. However, rather than using these options, Mr Farr telephoned Kogarah station to speak to a customer service attendant: this action was not part of any emergency response in any of the defendant's procedures, nor was it part of any training received by Mr Farr from the defendant. It was stated that had Mr Farr implemented any of the emergency responses, in all likelihood the accident would have been completely averted. 14The Office of Transport Safety Investigations and the Regulator extensively investigated the accident. During these investigations, the defendant co-operated and complied with requests for all documents, information and interviews. The defendant also undertook an extensive review of its systems to identify reasonable measures and to prevent a similar accident occurring in the future. The defendant had now implemented various measures to address the issues raised by the circumstances of the accident at Kogarah. In summary, the main changes adopted by the defendant were changes to supervision in signal boxes and monitoring voice communications. 15Of particular significance was the restructuring of the management and operation of the defendant's signal boxes and signal complexes. Mr Eid dealt with this matter in some detail. Substantial changes were made to the management and supervision of signal boxes with the creation of the following new positions: manager, SBO; three area signal box manager positions; seven assistant area signal box manager positions; twenty-five shift supervisor positions; and, the position of incident response manager. The restructure was designed to achieve numerous ends including, the achievement of consistently in relation to all standards across all signal boxes and signalling complexes, improving communication flow between signallers, station staff and the rail management centre, the improvement of safety within the network by introducing subject matter experts into each signal box to supervise and co-ordinate control in the event of an emergency and also to enable continuous improvement and change programmes within the signaller operating environment. 16Mr Eid stated that the initial cost of engaging employees for the additional positions referred to above, including training and related costs, was approximately $5.3 million with ongoing annual costs in excess of $5 million. In addresses, senior counsel for the defendant accepted that this wide-ranging restructure occurred at a time that allowed the particular circumstances of this accident also to be addressed. Subsequent assessments indicated a high degree of successful remedial actions taken by the defendant. 17Mr Eid also dealt in some detail with the changes to the monitoring of voice communications. Under the previous system, radio communications between signallers, train drivers and train controllers were randomly monitored for four hours per week in relation to a particular area. The communications were scored against a set criteria. A review was conducted of communications that did not receive a 100 per cent score. If there were breaches of safe working procedures, that matter would be brought to the attention of the relevant line manager and in turn, that would be raised with the relevant worker. The Regulator was involved in inspecting and reviewing this monitoring and auditing process. The Regulator attended RailCorp at least once a year to interview workers and observe the implementation of the monitoring process. On such inspections, no issues were raised by the Regulator in relation to the defendant's processes. 18After the incident, the defendant's monitoring processes of auditing communications were altered to include telephone communications as well as MetroNet communications, thus, significantly broadening the scope of monitored communications. Further, the new system targeted safety critical communications relating to control signal blocking and other work on track methods rather than randomly selecting communications. The monitoring was now conducted in accordance with standard operating instructions. Following the accident, the defendant had trialled a number of different methods of collecting and reviewing voice communications in order to determine the most effective method of monitoring. The changes resulted in a substantial increase in the degree of monitoring. 19 In summary, Mr Eid said that, prior to the incident, the defendant spent four hours per week monitoring voice communications on MetroNet but now 70 to 80 hours per week were spent on identification, review and assessment of MetroNet and telephone communications. The previous process involved random communications while the new process targeted specific communications involving work on track to continually monitor and improve these communications. 20Speaking more generally, Mr Eid then dealt with the defendant's commitment to rail safety as reflected in its corporate plan and in the phrase "A safe railway, a safe workplace, a safe culture." It was said that the defendant was committed to creating an open and just workplace culture and within that system, it sought to establish an environment that sought out risk and identified system improvements through better incident reporting, promoting openness and learning from incidents. All employees were responsible for three duties, namely: the duty not to cause harm; the duty to follow a rule; and, the duty to produce an outcome. All the defendant's managers and front line supervisors were required to attend a two-day workshop focusing on supporting the "Just Culture" approach to the workplace. A half-day workshop was also provided for new and existing employees who did not supervise or manage staff. In addition, the defendant had a dedicated training unit to develop and deliver training to its business units and to measure and monitor the effectiveness of the training provided. In the 2011/2012 financial year the defendant's direct training costs total approximately $25 million. 21Mr Eid spoke of the defendant being actively involved in promoting rail safety principles locally and in railways across Australia and gave details of the defendant's participation in a number of matters including, rail safety and legislative reform programmes. He also dealt with the defendant's promotion of safety as exemplified by the Safety Convention, the Safety Competition and the Workplace Safety Committee Chairperson's Forum. Reference was made to passenger and commuter rail safety and the defendant participating in the Annual Rail Safety Week campaign. It was also a key participant in the TrackSAFE Foundation, a not-for-profit organisation established to improve, amongst other things, community awareness of issues associated with accidents in the rail corridor and the impact of critical incidents on railway workers, their families, passengers and members of the public. The defendant had developed and participated in a number of programmes to educate passengers and the community about the importance of rail safety and the dangers of trespassing on the defendant's property. These programmes included school education safety campaigns, the production of media promoting positive behaviours and others depicting the shocking results of serious accidents in order to raise community awareness of rail safety issues. Mr Eid was not required for cross-examination.