Inspector Hamilton v Thiess Pty Ltd

Industrial Relations Commission (NSW)|2012-04-04|Before: Backman J, Mr J

Judgment 1Thiess Pty Ltd (Thiess) pleaded guilty to an amended application for order under s 8(1) of the Occupational Health and Safety Act 2000 (the Act). John Holland Pty Ltd (John Holland) also pleaded guilty to an amended application for order under s 8(1) of the Act. The charges against both defendants allege an identical risk and an identical failure to ensure the health and safety at work of employees. The charges contain some distinguishing features, for present purposes not of any real significance, which reflect the different corporate addresses of each defendant and the employees employed by each defendant. The particulars of each charge provide as follows: a) there was a risk of being struck by falling rock and/or tunnel collapse; b) the defendant failed to ensure that the premises, controlled by the defendant where its employees worked, were safe and without risks to health in that the system of ground support for the premises, installed by the defendant as designed by the designers engaged by the defendant, Parsons Brinckerhoff Australia Pty Ltd, was inadequate given the poor rock conditions encountered at the premises, the low rock cover over the premises, and a large effective span in excess of 20 metres over the premises. 2In short, the charge against each defendant is confined to a single allegation, namely, a failure to ensure that "the premises" were safe in that the system of ground support installed by the defendants and designed by Parsons Brinckerhoff Australia Pty Ltd (PB) was inadequate given the conditions encountered at the premises. 3"The premises" are defined in each charge as the Pacific Highway Exit Ramp Tunnel (MCAA), including its intersection with the Marden Street Ventilation Tunnel (MC5B) of the Lane Cove Tunnel. 4In December 2003, the Roads and Traffic Authority of New South Wales (RTA) engaged the Lane Cove Tunnel Nominee Company Pty Ltd ("Nominee Company") and the Lane Cove Tunnel Company Pty Ltd ("LCTC"), now known as Connector Motorways Pty Ltd, to design, construct, maintain and operate the LCT and associated works (the "Project Deed"). 5At the time of the offences (nominated in each charge as a period between 27 October 2005 and 2 November 2005), the defendants had entered into a contract with the Nominee Company and LCTC as an unincorporated joint venture (the Thiess John Holland Joint Venture (TJH)) to design and construct the Lane Cove Tunnel (LCT) and associated works (the Design and Construction Deed). TJH did not purport to have the necessary expertise in tunnel design. It therefore engaged PB in February 2004 to design the LCT and associated works pursuant to a consultancy agreement (the PB Consultancy Agreement). Under that agreement, PB was engaged to design the underground tunnels and associated works (the design phase services) and to provide construction phase services during construction (the construction phase services). 6In relation to the provision of construction phase services, PB was to provide responses to requests for information (RFI) from TJH on design issues, including design changes; to undertake sufficient work during construction to ensure that the design being implemented continued to remain valid; and, to undertake geological mapping of excavations forming part of the LCT and associated works, and to assist in the ground support selection process based on encountered ground conditions. Other features of the PB Consultancy Agreement worthy of mention include an acknowledgement by PB that TJH relied on its skill, knowledge, judgment and expertise in the performance of the design phase services and the construction phase services. In addition, under the PB Consultancy Agreement, PB warranted that the design phase services would satisfy TJH's obligations under the Design and Construction Deed, and that the design would be fit for its purpose and completed in accordance with the requirements of the Design Construction Deed and the PB Consultancy Agreement. 7In October 2004, TJH also engaged Pells Sullivan Meynink Pty Ltd (PSM) to provide a Senior Rock Mechanics Engineer and associated services (the PSM Rock Mechanics Engineer Consultancy Agreement). Under that agreement, PSM was to provide the services of a specialist Rock Mechanics Engineer to oversee the construction of the LCT and associated works with regard to the following points: Interpret data received from tunnel and surface mounted ground monitoring instrumentation. Analyse tunnel mapping by a geologist and compare that mapping to conditions described in design reports to ensure that support regimes nominated were appropriate and efficient. Liaise with the Project designers to facilitate changes to the design to tailor it to conditions experienced based on the results of instrumentation and performance of previously installed support. Liaise with construction engineers and supervisors regarding the design requirements. Manage TJH's monitoring activities (specified by others) connected with the Project. Co-ordinate geologists and engineers seconded to the monitoring team by PB, Coffey Geosciences and PSM. Ensure that adequate records of monitoring activities were kept in an agreed format for use and consultation by TJH staff and designers. Co-ordinate the TJH survey teams inputs into the monitoring activities. Manage and co-ordinate the installation of monitoring equipment whether installed by TJH or subcontractors. Provide geotechnical technicians to read all instruments installed as part of the construction of the works. 8In addition, under the agreement with PSM, PSM was obliged to exercise all the skill, care and diligence of a professional consultant experienced in providing the services and was obliged to carry out all responsibilities in a thorough, skilful and professional manner. 9As well as the corporate entities mentioned above, URS Australia Pty Ltd (URS) was engaged to be the independent verifier for the project, including the rectification of design and construction of the LCT and associated works.

The Incident 10Construction of the LCT and associated works commenced in July 2004. On Wednesday, 2 November 2005, TJH employees were carrying out excavation works at the junction of MC5B tunnel and MCAA tunnel (the intersection). This intersection was located below Longueville Road at Lane Cove. At approximately 1.40am, a large section of the tunnel roof in the intersection collapsed. Four employees working there evacuated the area as the section of the tunnel roof collapsed, narrowly escaping injury. No employee was physically injured by the collapse.

Background to the incident 11Events leading up to and shortly after the incident have been set out in a document headed "Statement of Uncontested Facts" (Agreed Facts) which was tendered by consent during the sentence proceedings. The relevant portions from that document are extracted below: [24] Over the weeks prior to the incident, the MC5B tunnel had been advancing towards the MCAA tunnel and reached the intersection point with the MCAA tunnel around 17 October 2005. Once this point was reached, the MCAA tunnel was excavated first to the east (referred to as the "up" or "upper" drive) and then to the west (referred to as the "back", "lower" or "down" drive). Work was continuing on this western excavation at the time of the collapse. [25] On the evening prior to the incident, 1 November 2005, the night tunnelling crew (crew B) commenced their shift at 1900 hours. The crew comprised four employees: John Labruyere, the leading hand, Noel Makene, the road header operator, Bryan Greenfield, the loader operator, and Mark Watson, the driver of the dump truck. The crew were all employed by TJH. [26] Once the collapse commenced, it increased rapidly when it reached an area where a dolerite dyke was situated. The crew, under instructions from the leading hand, retreated from the area, back to the entrance of the MC5B tunnel, which was then secured (taped off). [27] The acting shift boss, Craig Bennett, who was operating with another crew in tunnel MC1A East at the time of the collapse, was then notified of the incident and travelled to the scene of the collapse with the leading hand of crew B. After observing that the area was still unstable, the evacuation alarm was activated and all tunnels in the Marden Street area were evacuated. [28] Once the tunnels were evacuated and all workers accounted for, management representatives, geologists, engineers and designers were progressively contacted and requested to attend the site. Subsequently, inspections by TJH and PB representatives were carried out both underground at the scene of the collapse and on the surface at Longueville Road. At approximately 4.30am the hole was observed to be about 4 or 5m diameter on the surface and about 5 to 6m diameter immediately below the surface of Longueville Road. [29] TJH, in consultation with a representative of PSM, considered that the collapse debris required strengthening before any surface activity could occur. Initially, it was proposed to place large diameter hammered rock to form a bridging layer to lessen any pressure on the pile of collapse debris. However, an electrical sub-station in the MC5B tunnel and a dust scrubber in the MC5B tunnel needed to be removed before the hammered rock could be placed up against the debris. This strategy was discarded as observation of the hole at approximately 5.30am revealed the hole had expanded in size. [30] At about 6.00am loud noises were heard to be coming from the hole and it was observed that a substantial secondary collapse had occurred under the existing Longueville Road exit ramp and a number of piles within the collapsed area of the tunnel were observed to have been undermined by the collapse. At about 6.00am, the hole was observed to be around 8-9m diameter. [31] Shortly after 6.00am, TJH, in consultation with a representative of PSM, decided to commence filling the hole with concrete to mitigate any further collapse. Concrete pumping commenced with one pump at approximately 8.00am. Two further concrete pumps arrived shortly after and also commenced pouring, the initial pour ceasing at around 3.00pm, having reached a height of 2 metres above the top of the pile. This amount of concrete had been determined as the maximum that could be placed initially without putting pressure on the retaining wall located at the surface. Longueville Road had been closed to traffic since approximately 6.45am. [32] After waiting for the first lot of concrete to cure a second pour was commenced at approximately 9.30pm on 2 November 2005 and completed at around 12.30am the following morning. The third and final concrete pour, which was to reach the level of the top of the retaining wall, was commenced at 6.30am on 3 November 2005 and completed mid-morning. Over the next couple of days, grout was pumped into identified void areas around the collapse to complete the stabilisation works. In total, approximately 2,750 cubic metres of concrete and grout was pumped into the collapsed area. 12During the Project, project geologists employed by PSM were responsible for mapping the geological conditions in the tunnel on a daily basis. They were also responsible for classifying the ground conditions in a particular area and recording their findings on a document entitled "Ground Classification & Ground Support Determination" (GC&GSD). The geologists also determined the appropriate ground support to be installed in each excavation by reference to the classified ground conditions recorded in the GC&GSD documents. 13These matters and other details pertaining to the functions of the geologists are set out in the Agreed Facts, the relevant parts of which are reproduced below: Use of Geologists 33. Throughout the Project, there were three Project Geologists. 34. The Project Geologist mapped the geological conditions of each excavation on a daily (or near daily) basis. The Project Geologist also classified the ground conditions in the area of the excavation according to a nine point classification system developed for the Project on a daily (or near daily basis). The classification was recorded in a Ground Support Determination ("GSD"). The Project Geologist also determined the appropriate ground support to be installed in each excavation by reference to the classified ground conditions and recorded in a GSD the ground support to be installed in each excavation. 35. Over the weeks prior to the incident, the Project Geologist for the Marden Street area mapped and classified the ground conditions, including the excavations in the MC5B tunnel and the MCAA tunnel, on a daily (or near daily) basis and recorded the classifications, and the appropriate ground support, in GSDs on a daily (or near daily) basis. 36. Additionally, throughout the Project, a Geotechnical Engineer supplied by PB and being a design representative of PB, inspected each excavation regularly, reviewed and discussed the classification of ground conditions (including the GSDs) and assessed independently from time to time the appropriateness of ground support installed or to be installed in each excavation. 37. The system of mapping of the geological conditions, classification of ground conditions and determination of appropriate ground support was set out in the Geotechnical Mapping and Ground Support Determination Work Method Statement (No. TJH-WMS-TU-CON-016). Essentially the procedure for ground mapping and support determination was that the Project Geologist would attend, inspect and map the face of tunnels under construction, and produce the GSD. The Project Geologist provided the GSD to the TJH Senior Engineer who then distributed the GSD to the superintendent and shift bosses for implementation. 38. The "design intent" of the Project, as developed by PB, had an "observational approach" (that is, to check that the "as found" (or encountered) ground conditions were the same as those of the anticipated ground conditions) as a key element of the design. The Project Geologist at the Marden Street area (and, to a lesser extent, the Geotechnical Engineer at the Marden Street area) participated in and conducted the "observational approach" by mapping the face of the excavation on a daily (or near daily) basis, by classifying the ground conditions on a daily (or near daily) basis and by determining the construction sequence on a daily (or near daily) basis. The "observational approach" involved the Project Geologist at the Marden Street area providing "data" to the Geotechnical Engineer which (if appropriate) led to the geological model being refined. The "observational approach" allowed for the "design intent" to be modified where the "as found" ground conditions were worse than those of the anticipated ground conditions. The "observational approach" allowed for the ground support to be increased where the ground conditions were actually worse than anticipated.

Geological conditions in the area of the intersection 14There is evidence to support the conclusion that the ground conditions in the area of the intersection were poor and that the system of ground support installed by TJH and designed by PB, provided in the area, was inadequate to meet those conditions in order to ensure the safety of those employees working there. The geological conditions have been summarised in the Agreed Facts and are set out below: Low Strength Shale 39. The bedrock at the Junction consisted of Ashfield Shale. In the area of the Junction, the bedrock in the crown of the tunnel had been documented by the Project Geologist at the Marden Street area as Ground Class LCTG7, LCTG7/G8 and LCTG8, that is, shale of low to very low strength. Previous investigations and assessments by the Project Geologist in the Marden Street area had also indicated that the strength of the shale further decreased closer to the ground surface, in turn passing up to residual soil and/or some overlying fill. This material thus comprised a low strength sequence, from the crown of the tunnel up to the surface infrastructure. The Presence of the Dyke 40. The Junction was transected in a southeast to northwest direction by an igneous (doleritic) dyke. The dyke comprised a subvertical through-going intrusion, generally ranging in true thickness from between 600 and 700 mm. Dyke intersections had been encountered previously in the MC5B tunnel, the main ventilation tunnel, which was being excavated in the Marden Street area, as well as in the main line tunnels and the occurrence of the dyke in or near the Junction was anticipated by the Project Geologist and addressed in the design by the designers. 41. In previous encounters the dyke was predominantly orange in colour, highly to extremely weathered and of low to very low strength. These conditions are understood to have prevailed through the Junction. The dyke comprised a persistent low strength feature, both laterally and vertically, and its side boundaries constituted low strength defect planes. Rock Mass Joints and Faults 42. Mapping documentation completed by the Project Geologist at the Marden Street area confirmed that the rock mass into which the Junction had been excavated was relatively highly fractured. The shale in this area was characterised by structures comprising bedding plane partings, joint plane defects and localised faults. 43. Bedding plan partings were subhorizontal to locally dipping defects of variable vertical spacing. They were intersected by inclined to subvertical joint plane fractures. Mapping by the Project Geologist at the Marden Street area confirmed the presence of three (3) intersecting joint plane sets, one of which was parallel to the dyke, whilst the other two were both normal and more acutely angled to it. These subvertical fracture sets were locally continuous upwards and spaced as closely as 200mm apart. They effectively divided the rock mass into a series of vertical columns, which can in turn be subdivided into blocks by intersecting with sub horizontal bedding planes. 44. The rock mass in the Junction was further fractured by localised inclined fault structures that were mapped by the Project Geologist at the Marden Street area. In combination with the bedding plane partings and joint plane fractures described above, the localised faults further fragmented the rock mass into variously shaped and sized blocks and wedges. Large Span Width of Tunnel Intersection 45. Both the MC5B tunnel and the MCAA tunnel were "Two Lane" tunnels within the Project, with spans or widths of approximately 9 metres. However, at the Junction, the width of the underground opening was locally greater and the diagonal width of the Junction was up to 22m. This was a relatively large effective span to support, particularly when the roof strata comprised low strength and fractured shale. Furthermore, the above described weathered and low strength dyke passed through the Junction as a zone of weakness, aligned closely with the line of maximum span of the Junction.

Ground Support Installations in the area of the intersection

15Details of the ground support (or "roof support") in the area of the intersection are also set out in the Agreed Facts, the relevant parts of which are extracted below: 46. The roof support adopted at any tunnel location on the Project was dependent on the assessed "Ground Classification", which in turn related to a "Ground Support Determination". As mentioned above the assessed ground classes in the area of the Junction were LCTG7, LCTG7/G8 and LCTG8. 47. The amount of rock bolts to be installed and the thickness of the shotcrete varied depending on the GSD (based on the ground classification determined by the geologist). If the "as found" conditions varied significantly from what was expected, a "Request for Information" form was referred back to the tunnel designers who would consider the new information and, if required, issue a revised set of drawings. Any design revisions would be submitted to the independent verifier for approval. 48. As the excavation in the Marden Street area advanced and poor ground conditions associated with low strength fractured shale and dyke intersections were encountered, the LCTG7 ground support system was upgraded by the designers to 4m long rock bolts on 1000mm x 1250mm spacings with two (2) cyclic 100mm applications of shotcrete ("Mar VII Support Type"). 49. On 29 September 2005, Leis, the lead designer for the Marden Street area, on behalf of PB issued an uncontrolled version of drawing PB-DG-TU-TWO3-0059-1-0 ("Drawing 59 Revision 1") concerning a modified ground support system for the MC5B tunnel at the Junction, to TJH for client review. Drawing 59 Revision 1 was stated to cater for the projected dyke in the Junction and for the span at the Junction. 50. Drawing 59 Revision 1 recorded the width of the excavation as 9.46m (9460mm). Leis prepared Drawing 59 Revision 1 and appreciated the width of the excavation. 51. On 25 October 2005, LCTC provided a certificate to the RTA that Drawing 59 Revision 1 complied with the requirements for the Project and was documented to enable construction and compliance with the Project Deed. On the same day, URS, as independent verifiers, certified that Drawing 59 Revision 1 complied with the requirements of the Project and was documented to enable construction and compliance with the Project Deed. 52. Leis prepared Drawing 59 Revision 1 on the basis of an effective span of 15.5m (calculated across the diagonal of the Junction). 53. In the area of the Junction, and as reflected in Drawing 59 Revision 1, a modified Mar VII Support Type was specified by PB involving 4 metre long rock bolts and supplementary 5m long rock bolts in the centre of the Junction, including the southern and eastern transitions. Shotcrete was to be applied floor to floor in two layers of 100mm, with the first layer prior to bolting and the second layer after the bolts had been installed. 54. The system of ground support for the Junction, installed by TJH as designed by PB, was inadequate given the poor rock conditions encountered in the Junction (including the dyke), the low rock cover over the Junction and the large effective span in excess of 20m over the Junction.

Objective features of the offences 16The Agreed Facts record that the system of ground support installed by TJH in the intersection consisted of rock bolts and shotcrete. By their pleas of guilty, Thiess and John Holland (collectively referred to as TJH) have admitted that this system was inadequate to meet the poor geological conditions encountered at the intersection. In summary, the poor rock conditions encountered in the area comprised: (a) bedrock at the intersection consisting of low to very low strength Ashfield shale; (b) the intersection was transected in a southeast to northeast direction by an igneous (doleritic) dyke, which comprised a persistent low strength feature, both laterally and vertically, and its side boundaries constituted low strength defect planes; (c) shale in the area of the intersection characterised by structures comprising bedding plane partings, joint plane defects and localised faults. 17Other poor geological conditions encountered at the intersection included low rock cover. Investigations and assessments by the project geologist had indicated that the strength of the shale further decreased closer to the ground surface, in turn passing up to residual soil and/or some overlying fill. The large effective span in excess of 20 metres also contributed to the poor conditions in the area. Although the MC5B and MCAA tunnels were "two lane" tunnels with spans or widths of approximately nine metres, the width of the underground opening at the intersection was greater. The weathered and low strength dyke passed through the intersection as a zone of weakness, aligned closely with the line of maximum span of the intersection. 18These factors combined to place TJH employees working at the intersection at grave risk to their health and safety. Both defendants have acknowledged that there was a serious risk to the safety of their employees in the area during the period of the charge. Moreover, the risk was obvious and reasonably foreseeable, if not actually foreseen. This latter statement is made on the basis of the evidence which indicates that both defendants had identified the risk of tunnel collapse and falling rock prior to the charge period. In the TJH Work Method Statement (WMS) dated 16 February 2005 prepared for the LCT Project, under the sub-heading "Risk and Opportunity", the risks of falling rock and tunnel collapse are expressly identified. A TJH Site Specific Induction document prepared for the LCT project, prepared some time prior to commencement of work at the premises, identified as a "major hazard", "collapsing and falling rocks". A TJH "Project Occupational Health, Safety and Rehabilitation Management Plan" prepared for the LCT project identified as an "OHS issue", "tunnelling operations generally, eg, tunnel collapse causing entrapment of workers, working in potentially oxygen deficient atmosphere". In another TJH document prepared for the LCT project, headed "Tunnel Excavation and Re-Entry", a potential hazard was identified as "fall of ground". Various tool box meetings conducted at the premises on 28 and 30 October 2005 record items of discussion as, "be aware when working at face especially in poor ground", and, "be vigilant when working under soft (and poor) ground conditions". 19In addition, during the period of the charge there were a number of other indicators, or identifiers, of the presence of the risk at the intersection recorded in the GC&GSD documentation. These included the following: (a) 27-10-05 - "overbreak in crown has continued", "projections indicate dyke affected ground conditions continue" and the ground classification was "LCT G7". (b) 28-10-05 - "There continues to be a fault & jointing in the face Rock mass condition still poor-moderate" and the ground classification was "LCT G7/G8". (c) 31-10-05 - "- ... exposing dyke in left (back drive) - right wall shows 2 x joint sets (orthogonal) ...", the ground classification was "LCT G7/G8 (Backdrive)" or "LCT G7 (Updrive)". (d) 01-11-05 - "ground conditions (sic) to be poor with low-med strength rock and dyke and multiple joint sets", the ground classification was "LCT G7/G8" and the estimated strength of the shale was "L-med". 20These matters reveal that TJH was clearly on notice that the risk existed during the charge period. 21Moreover, there can be no doubt that the risk to TJH employees working in the area of the intersection could result in very serious consequences, even fatal injuries. Photographs of the tunnel collapse taken shortly after the incident show a large volume of collapsed debris in the MC5B ventilation tunnel. 22According to the prosecutor, readily available steps existed prior to the incident which would have ensured the safety of the tunnelling work and avoided the risk, or reduced it, to the extent reasonably practicable. One such step is identified as the installation of an adequate system of ground support having regard to the poor work conditions, the low rock cover over the premises and the large effective span. This proposed step does little more than largely reproduce the allegations contained in each charge. A more specific step also relied upon by the prosecution, is one said to be readily available prior to the offences (but not implemented), namely, a measure introduced by Thiess, at least, at other projects after the charge period, which was a "permit to tunnel" system. This system is set out in the affidavit of Brendan James Donohue, employed by Thiess in the position of General Manager, Business Strategy. Mr Donohue explained the system as follows: Additionally, in the tunnelling projects following the LCT project (including the East Link project and Boggo Road Project, referred to earlier in my affidavit) Thiess started to develop a "permit to tunnel" system. Most recently, in its Airportlink Project, this system has been refined further. The key aspects of the "permit to tunnel" system are: (a) each day a group of senior design representatives and a group of senior construction team representatives meet to review a suite of information collected about the excavation that has occurred on the previous two shifts. The purpose of the meeting is for the design and construction teams to jointly consider whether tunnelling can proceed for the following two shifts (that is, can a "permit to tunnel" be issued for the next two shifts) and if so, to select the appropriate ground support type; and (b) information about monitoring, geological mapping and photographs of the rock, ground support installation reports, excavation shift reports, any evidence of ground relaxation, and excavation sequence is collated for the design and construction teams' consideration. Tunnelling can only proceed for the following two shifts if the Construction Project Manager and Senior Tunnelling Engineer (a design representative) sign the "permit to tunnel". The "permit to tunnel" records the work planned in the period, the support to be installed, whether any additional support is to be installed or whether additional monitoring is required. This "permit to tunnel" process is significantly more advanced than the systems that other constructors are currently using in the industry to minimise and control risk. 23The factors explored above compel the conclusion that the offences were objectively serious. There are, however, in the Court's view, factors which mitigate this finding. 24Although TJH was clearly on notice of the risk and its (undoubtedly grave) consequences, the evidence indicates that it had taken comprehensive steps to address the risk prior to the offence. 25A number of these steps have been conveniently set out in written submissions handed up on behalf of Thiess. They are of equal application to John Holland, as part of the joint venture. According to Thiess, the joint venture had taken a number of specific and practical safety measures to address the risks, prior to the period of the offences. These are set out below: (a) First, Thiess (and John Holland) engaged PB, a member of an international group of design consultants who were world renowned for safe and effective design for tunnelling projects, to design the ground support for the tunnels on the Project, including the tunnels forming the Junction. (b) Secondly, Thiess (and John Holland) relied upon the skill, knowledge, judgment and expertise of PB in the design of underground tunnels on the Project. (c) Thirdly, PB prepared designs recording the ground support for excavations within the Project, including the Junction, with one type of ground support comprising rock bolts and shotcrete. (d) Fourthly, PB upgraded the design for ground support for the excavation in the Junction to reflect the poor ground conditions encountered in the Marden Street area. (e) Fifthly, PB modified the design for ground support for the excavation in the Junction to cater for the projected dyke in the Junction and the span at the Junction. (f) Sixthly, Thiess (and John Holland) communicated the modification in design for ground support to its construction crews. (g) Seventhly, Thiess assembled construction crews experienced in the installation of the ground support designed for the Junction and trained its construction crews on installation techniques and safe work practices. (h) Eighthly, Thiess retained a superintendent experienced in tunnelling and the installation of the ground support designed for the Junction to supervise the work of the construction crews. (i) Ninthly, PB developed an "observational approach" as a key element of the design, with the approach involving an assessment that the "as found" (or encountered) ground conditions were the same as the anticipated ground conditions). (This assessment occurred by the Project Geologist for the Marden Street area mapping the face of the excavation on a daily (or near daily) basis, by classifying the ground conditions on a daily (or near daily) basis, by identifying the appropriate ground conditions on a daily (or near daily) basis and by determining the construction sequence on a daily (or near daily) basis.) This approach allowed for the ground support to be increased where the encountered ground conditions were worse than the anticipated ground conditions. (j) Tenthly, a Geotechnical Engineer, supplied by PB and being a design representative of PB, inspected each excavation regularly, reviewed and discussed the ground classifications and assessed independently from time to time the appropriateness of ground support installed or to be installed in each excavation. (k) Eleventh, PB undertook monitoring of the tunnels during construction to ensure that the design being implemented remained valid. (l) Twelfth, Thiess engaged the services of a Senior Rock Mechanics Engineer from Pells Sullivan Meynink ("PSM") to interpret data from tunnel and surface mounted ground support instrumentation and to manage the monitoring activities connected with the Project. 26TJH was entitled to rely on the expertise of both PB and PSM. According to the Agreed Facts, PB was a member of an international group of design consultants who were world renowned for safe and effective designs for tunnelling projects, including projects in New South Wales. It was also an agreed fact that PSM was a specialist geological consultant with world renowned experience in geological conditions in the Sydney basin. 27Another intended safety measure introduced by Thiess on the LCT project related to rock bolting. This involved a procedure described as "cut one, bolt one" for all rock bolting at the project to reduce the risk to employees installing ground support in the excavations (with a revision of the design drawings so as to reflect the procedure and apply it in addition to any recommendations made by the project geologist). 28In addition to the factors outlined above, the joint venture implemented a number of general safety measures for the Project which have been conveniently summarised in the submissions made on behalf of Thiess. These are: (a) On 24 February 2004, Thiess (and John Holland) participated in a Construction Safety Study to identify and document construction specific risks for the Project. (b) On 28 February 2004, Thiess (and John Holland) developed an OHS&R Management Plan (which contained an OHS policy statement and which set out the management system for the identification, assessment and elimination of risks associated with the Project). (c) On 5 March 2004, Thiess (and John Holland) participated in a Project Risk Workshop to identify potential risks of the Project and to allocate responsibilities for the identification and implementation of measures to address those risks. (d) In early 2004, Thiess (and John Holland) established a Risk and Opportunities Register (with one "Risk" (Risk 221) being the "Risk of tunnel collapse" and a second "Risk" (Risk 93) being the "Risk of falling rock"). (e) By 31 March 2004, Thiess (and John Holland) developed a Risk Management Plan for the Project (which allocated specific tasks to specific officeholders, including the Project Director and the Safety Manager, and which addressed risk identification, mitigation and management). (f) In early 2004, Thiess (and John Holland) conducted Construction Hazard Assessment and Identification Review ("CHAIR") sessions, with involvement from PB and PSM, to address risks in the design process. (g) In early 2004, Thiess (and John Holland) developed a Safety in Design document to manage risks in the design process. 29These matters have been outlined by Mr Donohue in his affidavit. In addition, Mr Donohue relied upon the following measures developed by Thiess for the LCT project: in early 2007, a programme was developed called "My signature" in which employees recorded their commitment to safety on the project on boards placed at various sites throughout the project; Thiess recruited personnel who were well-experienced in safety and risk management; Thiess addressed safety issues as the first item in a standing agenda for senior management team meetings; Thiess engaged external auditors and utilised its staff to conduct internal audits, to review the adequacy of its safety systems, and to monitor compliance with those systems. 30Mr Donohue also referred to a number of safety measures implemented in the area of the intersection (where the incident occurred) which included the following: (a) At the start of each shift, each crew participated in a tool box talk to discuss the work to be completed and specific safety hazards to be considered and addressed. Written records of the tool box talks were prepared and kept. (b) During the life of the Project, Thiess coordinated the preparation of Work Method Statements ("WMSs") (which addressed the method by which work was to be performed in tunnelling). (c) Prior to undertaking work activities, crew members were instructed about the matters contained in WMSs. (d) During the life of the Project, Thiess, in consultation with crew members, coordinated the preparation of Job Safety and Environmental Analyses ("JSEAs"). (e) Each crew member who was expected to undertake the task contemplated by a JSEA was either involved in the development of the JSEA or trained in the matters contained in the JSEA. (f) At the start of the Project, Thiess (and John Holland) acquired equipment that avoided or minimised the need for operators to work in front of the equipment (including under potentially unsupported ground) whilst operating the equipment. 31None of these factors, relied upon in mitigation by TJH, were the subject of challenge by the prosecution. The Court therefore accepts them without qualification. 32John Holland also submitted that URS was retained as an independent verifier "to verify the safety and integrity of the design by the specialist contractor" (PB). According to John Holland, "[I]t was only when this failsafe mechanism failed as well that the serious risk arose". These submissions were the subject of challenge by the prosecution. 33The conflict is capable of resolution by reference to the affidavit of Dennis Charles Brewer authorised to make his affidavit on behalf of John Holland, and employed by John Holland Group Pty Ltd as executive general manager, strategic operations. 34Mr Brewer said in his affidavit: In addition to the abovementioned parties, as independent verifier for the LCT Project, URS had the responsibility for approving on an ongoing basis, throughout the LCT Project, each of the design drawings promulgated by PB for construction by TJH. URS, as independent verifier, certified Drawing 59 Revision 1, which drawing was being used for the construction of the intersection at the time of the incident, as complying with the requirements of the LCT Project and complying with the documentation to enable construction and compliance with the Project Deed. 35Mr Brewer's affidavit annexed a copy of the contract under which URS provided its services as independent verifier. Under Recital F, URS is said to be, "experienced generally in construction and project management and, in particular, in the construction and project management of major road and tunnel projects and offers its expertise in those fields". In clause 3.2(a)(i), URS acknowledges that each of the parties to the contract (which includes TJH as the "contractor"), "is relying upon the skill and expertise of the Independent Verifier in the performance of its obligations under the Deed". Under Schedule 3 of the contract, the obligations of URS include the following (relied upon by John Holland in developing its submission): Clause 5.2(a) - Independently verify that the Project Works and Temporary Works comply with the requirements of the Deed and make determinations as required (under the contractual arrangements); Clause 5.2(c) - Receive information and documents, attend all design meetings and obtain access to such premises as may be necessary or reasonably required for the performance of the obligations of the Independent Verifier; Clause 5.3(a)(ii) - Observe, monitor, audit and test all aspects of the quality of the Contractor's Works and the durability of the Project Works, the Motorway and the Third Party Works to ensure compliance with the requirements of the (contractual arrangements); Clause 7.4(c) - Receive each of developed Contractor Project Plans; Clause 7.4(e) - Receive each amended Contractor Project Plan; Clause 7.4(i) - Receive each further developed, amended or updated Contractor Project Plan; Clause 8.3(a) - Comment on and monitor the development of the design; Clause 8.3(c) - Verify in accordance with the Trustee Documentation Schedule that each discrete design element of the Project Works and the Temporary Works: (a) is appropriate for construction; and (b) complies with the D&C Deed including the Scope of Works and Technical Criteria and the Company Brief (and in particular the durability and design life requirements), or if he is unable to do so give reasons to the Parties. 36The prosecution relied, in particular, on Item 17 contained within Appendix 1 of the Contract. In the opening paragraph, Item 17 (headed "Verification of Design Documentation) states: Verification will rely on the Designer to carry out all calculations and design checks and the Quality System audits by the Trustee's appointed Quality Manager. The Designer's Quality System and verification of the process will ensure compliance of its design with the requirements of the Project Deed. The Independent Verifier will conduct reviews of the design elements as per the checklists to ensure that compliance with the Project Deed has been met. 37Item 17 also states: Following resolution of any outstanding qualifications and issues raised by the Independent Verifier or the RTA the Issue for Construction ready documents ("IFC's") will be reviewed and verified and the Final Design Verification Certificate (Schedule 6) issued to the Trustee for its record and distribution. IFC documentation includes final drawings, final specifications, final design reports and the Designer's Design Assurance Certificate ("DAC"). The DAC is to assure that the design is fit for the intended purposes, compliance with the Project Deed and must include specific assurance regarding durability and safety. ... If the structures are propriety items, design inputs and design outputs (inclusive of drawings, fabrication process and technical specifications) must be certified by the subcontractors for compliance with the Project Deed and Scope of Works and Technical Criteria (including durability and safety) before the verification process commences. 38Item 17 would appear to suggest that safety issues with regard to the design were the responsibility of the designer (PB), that is, URS as the Independent Verifier was relying on PB as the designer to carry out necessary design checks and make its own calculations. Appendix 1 suggests that URS's obligation was to review design inputs and criteria and calculation methods and software. There is no obligation imposed on URS under the contract to review the "as found" ground conditions at the premises and compare them to the design as projected by the designers. On the other hand, Item 19 of Appendix 1 (relied upon by John Holland) suggests that safety considerations built into the design verification process should form part of the design verification reviews by URS. Item 19 states: As part of the design verification process the important considerations relating to safety and durability as prescribed in the Project Deed will be incorporated into the design verification reviews of the discrete design elements. Safety considerations encompass Specific examination of safety issues relating to work practices, induction training as well as adequacy of relevant elements, including bridge railing, barrier approaches and specification provisions; and Review of the Trustee's independent design safety audits undertaken on each of the discrete design elements. 39There is no evidence upon which the Court could properly assess whether URS discharged this particular contractual obligation. An analysis of the available material reveals an obligation to review discrete design elements which incorporates into that process safety considerations, but the material does not go so far as to establish the proposition advanced by John Holland that URS was obliged to verify, "the integrity and safety of the design".

Deterrence 40General deterrence is an important factor to be taken into account in the sentencing process. Construction works, in particular, underground construction works, constitute an inherently dangerous occupation. So too does the use of heavy machinery in such an environment. Obvious risks which may emerge while undertaking construction work underground involve the risk of roof collapse and/or falling rock. It is incumbent upon all employers engaged in such tasks to ensure that appropriate systems of safety are developed and implemented for the protection of workers and other personnel who may be present in such an environment. 41Specific deterrence also falls for application on the limited basis that both defendants continue to operate in mining, building, construction, excavation and/or tunnelling work. Otherwise, both defendants, notwithstanding prior convictions for breaches of occupational, health and safety legislation have good safety records (a matter which will be further developed), although it cannot be said, given the potentially dangerous industries in which the defendants continue to operate, that they are unlikely to re-offend. Accordingly, a small component of penalty will be reflected in the need to apply specific deterrence on the limited basis referred to above.

Maximum penalty 42Both defendants, having prior convictions, face a maximum penalty of $825,000.

Subjective factors 43The prosecution conceded that the Court may take into account the following subjective factors which operate in mitigation of penalty: the steps taken by each defendant to improve safety after the charge period serve to mitigate the subjective level of the penalties to be imposed and comprise evidence of contrition; there is the assistance offered by at least Thiess to TJH employees after the incident; each defendant entered a guilty plea at the earliest opportunity to an Amended Application for Order and the prosecutor accepts that the Court is entitled to discount the respective penalty by 25 per cent as reflecting the utilitarian value of each plea; both defendants acknowledge deep or sincere regret for the incident; there is evidence that each defendant has been a good corporate citizen in terms of community involvement and contributions; each defendant co-operated with WorkCover; the Court is entitled to consider whether, despite the prior records of each defendant, in the context of the dangerous industries in which they have operated for many years, each defendant has overall a good record; on the other hand, the prior convictions disentitle each defendant to the leniency normally extended to offenders who are not adversely affected. 44The evidence demonstrates that, notwithstanding that John Holland has prior convictions, it nevertheless has, overall, a good safety record. Mr Brewer's affidavit records that John Holland has been operating continuously in Australia for some 61 years since commencing operations on 14 September 1950. It currently employs about 4,000 persons. John Holland's continuing commitment to safety also attests to its good record. With regard to its prior convictions, it is noteworthy that the last conviction recorded against it was in 1992, some considerable years before the commission of the present offence. Evidence led by Thiess, demonstrates, to similar effect, that it also has a good safety record. According to Mr Donohue, Thiess was established in 1934. In Australia, its operations include mining operations, civil projects, utilities management, waste management, remediation and building, and construction operations. Its civil construction work includes major infrastructure works, dam construction, roadwork, railwork and tunnelling. Thiess also has a strong, continuing commitment to safety. 45John Holland helpfully brought to the Court's attention a passage from the Full Court judgment in Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416; (2003) 130 IR 364 at [33]. The Court notes that the passage (reproduced below) provides examples of factors in mitigation of penalty, many of which have relevance and have been taken into account in the present proceedings: Thus, it may be the case that an employer prosecuted under s 15 of the Act was aware of a serious risk to the health and safety of its employees but took no action to eliminate the risk, notwithstanding that simple and straightforward remedial steps were available. The gravity of such an offence, despite the fact no one was injured and having regard to relevant subjective factors, might be assessed at the high end of the range of penalty available to be imposed on the offender. On the other hand, another employer may have had a good safety record, a safe system of work in place, provided a high level of training, instruction and supervision but through a combination of inadvertence on the part of an employee and a momentary lapse in supervision, a fatality occurs. The assessment of the objective seriousness of the offence could conceivably be at a level lower than that applied to the first employer and, having regard also to subjective considerations, might attract a lower penalty. Importantly, however, in the latter example, the occurrence of death may indicate that the risk to which the deceased employee was exposed, despite the employer's demonstrable commitment to providing a safe workplace, represented a serious detriment to safety deserving of a higher penalty than otherwise might be the case.

Respective roles 46The prosecution submitted that TJH was the principal contractor engaged on the LCT project and PB and PSM were specialist contractors, who were required to work within TJH's systems. It was submitted that it was incumbent upon TJH to ensure that its specialist contractors complied with TJH's own system. According to the prosecution, based on those matters, Thiess and John Holland were either more culpable or equally as culpable as either of its specialist contractors. No further submissions were forthcoming. 47There is insufficient evidence to support the submission. TJH's culpability was confined by reference to each charge to a failure to ensure that the system of ground support which it installed at the premises in accordance with the design by PB was safe. The Court has already found that TJH was entitled to rely on the expertise of PB and PSM as world-renowned experts in their respective fields. The Court has also found that both Thiess and John Holland had developed and implemented comprehensive systems of safety prior to the incident. The fact that those systems proved inadequate for the task in the area of the intersection represents the extent of their respective culpabilities. Based on this material, and in the absence of other material to which the Court's attention may have been directed, but was not, the Court is unable to undertake an assessment of their respective roles in the circumstances of the offences by reference to other entities involved in the LCT project. 48In relation to the pleas of guilty which the prosecution conceded were entered at the earliest opportunity, the Court awards a discount of 25 per cent which reflects the utilitarian value of the pleas.

Orders 49In IRC 1987 of 2007, the Court orders that Thiess Pty Ltd is convicted of the offence and fined $156,000 with a moiety to the prosecutor. 50In IRC 1989 of 2007, the Court orders that John Holland Pty Ltd is convicted of the offence and fined $156,000 with a moiety to the prosecutor. 51In IRC 1987 of 2007 and IRC 1989 of 2007, the defendants are to pay the reasonable costs of the prosecutor as agreed or assessed. 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: 04 April 2012

At a glance

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Before

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Judgment (12 paragraphs)

Parties

Cases Cited (2)

Cited By (2)