Inspector Nash v Bulga Underground Operations Pty Ltd

The Risks 28The summons identifies the risks faced by Mr McNab as: Being crushed by the powered roof support (chock) used in the defendant's system of work as they automatically advanced towards the coalface; and/or Slipping and/or falling in the walkway behind the shearer where the chocks were automatically advancing towards the coalface; and/or Being struck by pieces of rock or coal material projected towards employees by the cutting head of the shearer; and/or Being struck by pieces of rock or coal material otherwise dislodged by the operation of the shearer.

The Failures 29The prosecutor asserts that the defendant should have obviated those risks by: Requiring the drum operators to remain behind the last advanced roof support during the operation of the shearer; Activating tilt switches on the remote controls held by the drum operators so that if they fell over or otherwise became disabled the movement of the shearer would stop, alerting others in the crew to the need to stop the advancement of roof supports; Employing the services of an additional miner in the crew, whose sole task was to observe the drum operators and stop the advancement of roof supports if a drum operator became disabled; Reducing the speed at which the shearer was being advanced so as to lessen the potential for pieces of rock or coal being projected by the operation of the shearer.

The Defences 30Bulga contends that: (a) The prosecutor has failed to prove that the measures particularised in the charge would ensure the health, safety and welfare at work of Mr McNab. Section 8(1) imposes no duty on an employer to take any lesser precaution that will only serve to mitigate risk. (b) It was not reasonably practicable for Beltana to comply with Section 8(1) because the risk to Mr McNab being injured while incapacitated was not reasonably foreseeable (Section 28).

Elements of the Charge 31Section 8(1) provides that: An employer must ensure the health, safety and welfare at work of all the employees of the employer. 32Mr Buchanan SC for Bulga submits that a necessary element in the prosecution case, to be proved beyond reasonable doubt, is that the preventative measures pleaded in accordance with the obligation confirmed by the High Court in Kirk would have absolutely eliminated the risk. 33The duty upon the defendant to ensure the health safety and welfare at work of its employees is a duty to guarantee safety. 34In Simpson Design Associates Proprietary Limited v Industrial Court of New South Wales [2011] NSWCA 316 the Court of Appeal stated that the objects of the Act include ensuring that risks to heath and safety are eliminated. 35In The GEO Group Australia Pty Limited t/as Junee Correctional Centre v WorkCover Authority (NSW) [2012] NSWCA 150 at [19] the Court said - The measures to be identified are respects in which there was a failure to comply with the absolute obligation to ensure that the identified risk did not eventuate. 36Proof that a particularised measure may have mitigated the risk of an injury occurring is not proof that this measure would have ensured the injury did not occur. 37For example, if an unguarded excavation pit creates a risk that an employee may fall in and suffer injury, the precaution of filling the excavation with earth will eliminate the risk. A warning to employees of the risk would mitigate, but not eliminate the risk, and an employer who merely warned his employees would remain liable for failing in his duty to eliminate the risk. 38Section 8(1) imposes no duty to adopt any measure that does not completely eliminate the risk and the measures pleaded by the prosecution lack the required certainty. 39In answer to this submission Mr Agius SC for the prosecutor argues that the duty created by section 8(1) is not an absolute duty, but, because of the defence established by section 28, in practical terms the duty is: That they should ensure health and safety subject to what was reasonably practicable. 40Section 28 provided as follows: 28 Defence It is a defence to any proceedings against a person for an offence against a provision of this Act or the regulations if the person proves that: (a) it was not reasonably practicable for the person to comply with the provision, or (b) the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision. 41The response of Mr Agius does not address the thrust of Mr Buchanan's submission. If the prosecution fails to prove the elements of the offence the defendant is not required to prove anything. 42As Mr Agius argued in his written submissions in reply, citing the decision in Thiess v Industrial Court of New South Wales [2010] NSWCA 252, "Where there is a possibility of a detriment to safety the requirement to "ensure" (guarantee or make certain) safety is breached." (Emphasis added). 43It is appropriate to make findings as to whether each measure advanced by the prosecution would have guaranteed the safety of Mr McNab.

Requiring Him to Remain behind the Last Advanced Roof Support 44Upon the evidence of Mr Trunk, the very experienced Mine Deputy, this suggestion is impracticable. From such a distant position the drum operator could not accurately monitor the horizon being cut, and make adjustments to account for undulations in the floor. It is foreseeable that a conscientious employee would occasionally move forward from that position to ensure that the Shearer did not become iron bound. In any event it was necessary that the drum operator from time to time advance beyond the last advanced support to adjust controls mounted on the Shearer. 45Authorities upon the operation of section 8(1) have repeatedly stressed that the Act was designed to protect against human errors, including inadvertence, inattention, haste and even foolish disregard of personal safety (see for instance the observations of Bauer J in WorkCover v Maine Lighting Ltd (1995) 100 IR 248 at 257). 46In Inspector Templeton v Pavese Citrus Pty Ltd [2004] NSWIR Comm 322, an employee suffered fatal injuries because he failed to obey clear and unequivocal instructions given by the employer. Staff J held the defendant guilty of contravening section 8(1) because it did not systematically enforce parking restrictions known to but ignored by the worker. 47In the course of his reasons Staff J said: The duty to provide a risk free work environment is a duty owed not only to the careful and observant employee, but also to the hasty, careless, inadvertent, inattentive, unreasonable or disobedient employee in respect of conduct that is reasonably foreseeable.

Activating Tilt Switches in the Shearer Remote Controls 48The handheld remote controls as manufactured contained a tilt switch function that stopped the Shearer if the remote was not held steady and horizontal. This function was not activated on the remote controls in use at Beltana. If it was activated the Shearer would automatically stop if the operator fell to the ground. 49This measure was incapable of eliminating all risk of being crushed by an advancing roof support, because those roof supports already primed by the signal from the Shearer continue to advance even after the Shearer is stopped. If the operator fell in front of one of these supports the tilt switch would not save him.

Employing an Observer 50After Mr McNab's accident the defendant, at the suggestion of the miners themselves, employed an additional crew member described as a support advance controller or SAC. His sole function is to observe the drum controllers and manually stop all advancement of roof supports if he sees them in danger. Every roof support has a button that, if pressed by the SAC, will release all hydraulic pressure in the system and instantaneously prevent advancement. 51Because the SAC must be attentive not only to the safety of the two drum operators, both of whom may not be concurrently in his sight, but also to his own safety, there remains a possibility that a drum operator may fall into the path of advancing support without the SAC reacting in time to save him. 52Further it is foreseeable that a SAC may from time to time be careless, inadvertent or inattentive. No behavioural control of a risk can be certain.

Reducing the Speed of the Shearer 53The adoption of this measure was not in the event pressed by the prosecution. It betrays a fundamental misunderstanding of the laws of physics. Increasing the lateral speed of the Shearer does not increase but reduces the radial speed of the tailgate drum.

Conclusion 54I find that adoption by the defendant of each and every measure pleaded by the prosecution would not have eliminated the possibility of the risks pleaded in the summons coming home. 55Mr Buchanan SC concedes that his argument is novel and has not been the subject of any previous ruling. Although section 8(1) has been superseded by section 19 of the Work Health and Safety Act 2011, it is inappropriate that an inferior court adopt such a fundamental change to the interpretation of section 8(1). 56This defence must fail before me.

Foreseeability 57The relevant risks, particularised disjunctively, were the risk of being crushed by a roof support as it automatically advanced towards the coalface, and the risks of slipping or falling in the path of the advancing roof support, or being struck by pieces of rock or coal projected from the cutting head or otherwise dislodged by the operation of the Shearer. 58In context, the risks of slipping or falling, or of being struck by pieces of rock or coal, connote an event that rendered Mr McNab incapacitated and unable to move from the crush zone. 59The cause of Mr McNab's incapacity is unknown. The general risk pleaded encompasses incapacity caused by a syncopal attack or other endogenous medical cause unrelated to the risks created by his working environment, although the possibility that exposure to those risks may result in incapacity is relevant to foreseeability.

The Defendant's Submissions 60Identifying the risk as the risk of Mr McNab being crushed by a roof support when incapacitated, Mr Buchanan relies upon the following facts and circumstances to ground the submission that the risk was not foreseeable.

Industrial Experience 61Industrial experience that over a long period of time no similar injury has occurred during the course of a particular system or operation may permit a conclusion that a particular injury was not foreseeable (O'Melia v Freight Conveyors Ltd [1940] 4 All E.R. 516). 62Mr Peter Henderson was Beltana's Mine and Electrical Engineer from 2003. Mr Henderson had extensive experience and familiarity in long wall mining both in Australia and overseas. Before Mr McNab's injury Mr Henderson was not aware of any person operating a long wall Shearer becoming incapacitated by any means either as a result of being struck by a rock or otherwise. He did not foresee the event. 63Mr Henderson roughly calculated that, up to that time, in the Australian long wall mining industry some 130 million roof support movements occurred during which time no such event had occurred. 64The miners working with Mr McNab, some with up to 30 years experience, were aware of no incident similar to that of Mr McNab.

Expert Opinion 65Mr Henderson has worked in the mining industry for over 30 years since he commenced as an apprentice electrician in 1980. He has been awarded a Certificate of Competency as a Mine Electrical Engineer, a degree in Computer Science, and a Masters Degree in Technology. He has great expertise in mining technology. 66In May 2010, after the incident in which Mr McNab was injured, Mr Henderson took part in a meeting arranged to discuss the incident held at the office of the Department. The meeting was attended by a number of senior engineers from Joy Machinery and inspectors from the Department's Inspectorate. These men were all experienced and respected within the industry. Amongst other things the meeting discussed whether the event could have been foreseen. Nothing was said at that meeting to change Mr Henderson's opinion that the incident was not foreseeable.

Conscious Adversion to the Risks created by the Shearer 67Mr Henderson was responsible for the process leading to selection of the DBT EL3000 Shearer and its purchase in 2003. He drew the specifications for tender. Those specifications required both compliance with the standard AS/NZS 4240:1994 (Remote Controls for Mining Equipment) and a certificate of compliance with that standard. Mr Henderson was familiar with the standard. He was also engaged in a site specific risk assessment of DBT EL3000 Shearer before its commission. 68The risk assessment was conducted on 28 March 2000 and reduced to a document entitled Beltana High Wall Mine DBT EL3000 Shearer Site Specific Operational Risk Assessment. The eight participants in that assessment were all highly qualified and very experienced miners. 69The risk assessment was expressly conducted: To identify and review the associated risks and impacts for personnel... at the Beltana High Wall Mine during the activities associated with the operation of the DBT EL3000 Shearer (DX 27). 70The assessment proceeded by the participants engaging in a "brainstorming exercise" to identify foreseeable risks, and assign a value of between 1 and 5 to both the probability of that risk coming home and the gravity of the consequence. These loadings were reflected in a risk ranking matrix designed to attribute a risk ranking number pursuant to which appropriate controls and safeguards were to be implemented. 71A similar, though not site specific, risk process was undertaken by DBT, the manufacturer of the Shearer on 15 January 2001 (DX 48). 72Neither risk assessment identified the hazard constituted by an incapacitated person falling in front of a support primed by the Shearer to advance.

The Prosecutor's Submissions 73It is unnecessary that I review all the matters that Mr Agius submits placed a reasonable person in the position of the defendant on notice of the risk that an incapacitated person may be crushed by the advancing roof support. The references to fly rock are repetitive, and the references to the detailed texts of the user manual for the remote controller and the Beltana High Wall Mine DBT EL3000 Shearer Site Specific Operational Risk Assessment are tenuous.

AS/NZS 4240:1994 74Mr Agius submits that because compliance with AS/NZS 4240:1994 (Remote Controls for Mining Equipment) required activation of the tilt switch in the remote controls of the Shearer To guard against the operator falling over while remotely controlling the machine, the defendant, conscious of this standard when commissioning the DBT Shearer, was on notice of the possibility of an accident occurring in circumstances similar to those faced by Mr McNab. 75The standard expressly applied: [T]o remotely controlled mining equipment and machines including breaker line supports, continuous miners, flexible conveyor trains, load-haul-dumps, long wall supports and Shearers, shovels and shuttle cars. It applies to coal and metalliferous mining machines used in both surface and underground mines... (emphasis added). Clause 3.2 of the standard stated: Typical mining machines perform most of their production using remote controls in order to separate the operator from known danger zones existing around the machine. Clause 3.3 relevantly provided: Where deemed necessary by a risk assessment, protection shall be provided to prevent the operation of the transmitting unit if the angle of inclination, exceeds 45° in either forward or sideways directions relative to the normal playing. Note: this provision guards against the operator falling over while remotely controlling the machine. 76Mr Henderson gave evidence that he did give consideration to the standard when commissioning the Shearer. He said that his understanding, and the general understanding in the industry at the time, was that the tilt switches to which the standard was directed were designed to protect the operators of remotely controlled driverless mobile Load Haul Dump machines removing ore in metalliferous mines from areas beneath unsafe roof. The purpose of the tilt switches was to protect the operators from being crushed by the machines they controlled. 77The risk assessment of the DBT Shearer identified no circumstance in which movement of the Shearer could crush the operator. The Shearer ran on rails behind the physical barrier constituted by the AFC. 78Mr Henderson's reading of the standard was not unreasonable, given the note to clause 3.3 that the purpose of the provision was to guard against the operator falling over while remotely controlling the machine. Mr Henderson, took the words the machine to refer to the machine directly controlled by the operator. 79This was a view generally held in the industry. For instance by Eickoff, a manufacturer of Shearers for long wall coalmines. In an AS 4240:1994 compliance report for its Shearer radio system Eickoff said of clause 3:3 ... no mention is made concerning the differences between the operation of a wheeled or tracked machine, which can move independently and a long wall shearer loader, which runs on a captive track in known directions. In this context Eickoff recorded that its machine "Complies" with clause 3.3, despite it having no tilt switch. 80There can be no doubt that the DBT Shearer could be safely operated, without risk to the remote operator caused by that machine, in the absence of a tilt switch. 81The risk that came home to Mr McNab is a risk of injury caused, not by the movement of the Shearer, but by the movement of another machine, the roof support. 82The roof support system was manufactured by Joy Mining Machinery and purchased by the defendant in 1994. The standard AS/NZS 4240:1994 was published on 19 September 1994. On the probabilities, the standard, at least in the form in evidence, did not exist when that roof support system was commissioned at the South Bulga mine. 83I am not persuaded that the defendant's knowledge of AS/NZS 4240:1994 put the defendant on notice of the relevant risk.

AS/NZS 4240:1:2009 84An amended standard, AS/NZS 4240:1:2009 'Remote control systems for mining equipment,' was published on 6 April 2009. Clause 2.3.8.3 of the amended standard reads: Safeguarding shall be provided to shut the machine down in the event of the machine operator being disabled or falling over while controlling the machine. When continued operation of sequential equipment, e.g. shearer instigated roof support systems, can cause a hazard, the safeguarding shall cause sequential operations to stop. (Emphasis added). Examples of the means of protection include: a. Protection against inclination of the unit in excess of 45° either in the forward or sidewards directions relative to the normal plane. b. Deadman control. The designer, using risk assessment techniques, may incorporate an alternative safeguarding system. 85I accept that this standard was directed to designers of mining equipment, and not operators. I also accept Mr Buchanan's submissions that neither the regulators, nor the manufacturers drew the attention of the defendant to the relevant provisions, and that a reasonable mining company would ordinarily only consult this standard when purchasing or commissioning new equipment. 86I also accept that as at April 2010 there were no remote controls for Shearers in Australia that complied with a requirement that activation of a tilt switch would "cause sequential operations [of the long wall supports] to stop". This is because the Shearers and the long wall roof supports were manufactured by different companies, and the only remote controls with tilt switches available for purchase controlled the Shearer and not the roof supports. 87It may be that the authors of the standard did not appreciate the technical limits of technology then available, but the standard was directed to the standards required of future technology. 88The sting in the evidence is not that Mr Henderson, or some other responsible officer of the defendant should have read the standard, nor that the appropriate solution to the risk was the use of a tilt switch in the remote. It is that the authors of the standard were able to foresee the risk that gave rise to Mr McNab's injuries. 89This circumstance makes it difficult to conclude that the risk was not equally foreseeable to a reasonable man possessed of the relevant skill and expertise charged by the defendant with responsibilities to ensure Mr McNab's safety. 90Mr Buchanan has taken great pains to inform the court of the technical limitations of the equipment employed in the defendant's operations or available for purchase. I accept that because of those limitations the provision and activation of a tilt switch in the remote control of the Shearer could not guarantee the safety of Mr McNab. 91The trouble with the technical evidence is that, if the injury was foreseeable and existing technology inadequate to obviate the risk, the reasonable response, subsequently adopted by the defendant, was the employment of the Support Advance Controller.

16 June 2008 92On 16 June 2008, a document entitled 'Safety Alert Operator Crushed Between Long wall Roof Support and AFC Pan Line' was published to the industry. The document recorded that a Shearer operator 'was crushed between the front of a long wall chock and the AFC pan line' and suffered 'multiple fractures of the pelvis and internal injuries.' The document recited the circumstances of the incident as being that: 'The shearer operator said he was kicking spilled coal from the walkway when he slipped and fell in front of the chock. The chock advanced and crushed him against the AFC pan line. The shearer had just completed the 'snake' cut at the tailgate and was returning to the tailgate end... Chock movement control was automatic, initiated by the shearer as it proceeded along the face. The chock had been primed to move when the operator slipped and fell in front of it. The gap between the front of the chock and the pan line was sufficiently narrow that the potential for a person to receive fatal injuries was high'. The incident placed the defendant on notice that there was a risk that a miner who was not incapacitated may be injured if he slipped or fell in front of a primed roof support that was commencing its advance. 93Mr Buchanan argues that because the Department's Safety Alert in response to this incident suggested no more than reinforcement and maintenance of the behavioural controls in place, it may be inferred that it did not occur to officers of that Department that the incident placed either of them or the defendant on notice that a similar injury may occur to incapacitated person. 94I think this argument has merit. In the absence of other circumstances this incident, of itself, may not have placed a reasonable man in the defendant's position on notice of the possibility of an incapacitated person being injured by an advancing roof support.

30 March 2010 95On 30 March 2010, five weeks before the McNab incident, Mr Glen Watters, a miner remotely operating the trailing arm of the Shearer at Beltana was struck on the head and shoulder by a large piece of coal that was thrown towards him after it fell from the face onto the cutting drum of the Shearer. The injury was the subject of a written report by Mr Watters to the defendant in which he wrote: 'Large piece of coal thrown by trailing drum at speed'. 96Mr Watters said in evidence that he was 2 to 5 supports back from the training drum when he was struck. That is a distance of approximately 7-9 metres.. He also said: I said in my statement that it dropped me but when I say dropped me it didn't actually send me onto the ground. I sat down, I was able to still be in control of the shearer, I stopped the shearer, hit the stop button on the shearer and stopped that shearer from ramming forward which then alerted the lead drum driver that there was something wrong. He came back and assisted me with my injuries.' This incident is relevant because it is so proximate in time and place to the risk the subject of the charge. It directly placed the defendant on notice that a miner may be dropped by a large piece of fly rock.

Specific Site Conditions 97The defendant knew, because of the work of its geologists in preparing a Block Management Plan, that the area through which the shearing operations were to proceed on the day Mr McNab suffered his injury were particularly hazardous, with a greatly increased risk of fly rock. This was because the geologists had identified a thin strata of rock in the roof with a known tendency for large pieces disturbed by passage of the Shearer to fall onto the tines of the trailing drum.

Other Evidence Relevant to Foreseeability 98Mr Michael Brock was a member of the yellow crew at Beltana that worked the shift before Mr McNab suffered his injury. Mr Brock then had 24 years experience as a miner. He gave this evidence: Q.Prior to Mr McNab's injury were you ever consulted about any methods that might be employed to prevent crush injuries to persons who if incapacitated fell and were liable to be crushed by advancing chocks? A. The only thing that I can think of would be that the training that we that we receive everybody that operates on the face would know that if they've seen somebody fallen down and unconscious or whatever, and it didn't matter where they would be on the face that you would hit the dump button, which would stop all the hydraulics on the face. Q. When you say everybody that would be the shearer operators, the chockmen and anybody who was double chocking? A. Yeah, the tradesmen, deputy, yeah, we all receive the same sort of training, operational training is- 99The training given to Mr Brock, whether by the defendant or a previous employer, to dump the face when a person was observed to have fallen or become unconscious is inconsistent with the defendant's submission that a reasonably prudent mining employer could not have foreseen that a miner may become unconscious in the path of an advancing support.

Conclusion 100Notwithstanding the matters raised by Mr Buchanan, I have concluded that the circumstances in which Mr McNab came to be injured were foreseeable to a reasonable person standing in the place of the defendant. 101Experience that an event has never happened, does not prove that it cannot happen. The highly qualified persons who contributed to the discussion in may 2010 mat not have turned their minds to the correlation between the movement of the Shearer and the advancing roof supports, or if they did, expressed to Mr Henderson any disquiet. They may not have been aware of the incident involving Mr Watters. 102Most significantly the defendant failed to recognise the difference between the dangers created by the Shearer and the dangers created by the roof support system. 103The risk assessment of the dangers created by the Shearer not unreasonable focused upon the dangers created by movement of that machine. The defendant apparently failed to recognise that it should also conduct a separate risk assessment of the dangers created by movement within the relatively autonomous machinery constituted by the roof supports. 104The defendant failed to mitigate the foreseeable risk by taking the reasonably practicable measure of employing the services of an additional miner in the crew, whose sole task was to observe the drum operators and stop the advancement of roof supports if the drum operator became disabled. 105I find the defendant guilty as charged.

Orders 106The defendant is convicted. I will hear the parties on further orders. 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: 05 November 2014