inspection of roof strata support by a competent person
conducting a risk assessment
Source
Original judgment source is linked above.
Catchwords
picks changed at maingate enddeveloping a TARPinspection of roof strata support by a competent personconducting a risk assessmentcompliance with safe work practices and with strata failure management planensuring employees conducted a pre-task risk assessmentensuring the worker was provided with adequate information and training in and providing copies of safe work procedures to the workerinstructing worker not to access work area until secondary support was installedEvidence Act 1995Coal Mine Health and Safety Act 2002
Cases Cited: Thiess Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 252Kirk v Industrial Court of New South Wales (2010) 239 CLR 531Inspector Nash v Bulga Underground Operations Pty Ltd [2014] NSWDC 186Simpson Design Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316
Dunlop Rubber Australia Limited v Buckley (1952) 87 CLR 313
Cahill v State of New South Wales (Department of Education and Training and Department of Juvenile Justice) (No.2) [2008] NSWIRComm 246 [772]
Mr D Buchanan SC with Mr M Shume, instructed by Sparke Helmore, appeared for the Defendant
File Number(s): 2012/244559
Judgment (26 paragraphs)
[1]
Background
On 14 August 2010, Scott Newstead was injured when he was struck by a slab of coal. At the time, he was employed by the defendant and working as a miner at its Beltana Longwall coal mine. He was working underground. He was changing the picks on a cutter drum of a shearer. The shearer would move across the width of the longwall of the mine, cutting a web of coal from the face as it did. It was the picks in the cutter drums that did the cutting. In the course of that, they regularly became blunt and needed to be replaced.
Mr Newstead was replacing picks in the maingate cutter drum when he was injured. When he was replacing the picks, the shearer was stationary and was positioned away from the face. The maingate cutter drum was partially under exposed roof and partially under cover. Its face side was under exposed roof. It was from that exposed roof that the slab of coal fell and struck Mr Newstead, seriously injuring him.
The defendant has been charged that it failed to ensure the health, safety and welfare at work of Mr Newstead, contrary to s 8(1) of the Occupational Health and Safety Act 2000 (the Act). Particulars of the failure are set out in the summons which charges the defendant with the offence. It will be necessary to turn to each of those particulars in due course.
The defendant denies the breach of s 8(1) alleged against it. It also relies on the defence provided by s 28 of the Act.
[2]
The legislation
At the time of the alleged offence, s 8(1) provided:
"An employer must ensure the health, safety and welfare at work of all the employees of the employer.
That duty extends (without limitation) to the following:
(a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health,
(b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used,
(c) ensuring that systems of work and the working environment of the employees are safe and without risks to health,
(d) providing such information, instruction, training and supervision as may be necessary to ensure the employees' health and safety at work,
(e) providing adequate facilities for the welfare of the employees at work."
There are several things to note about the section.
First, the case needs to be proved beyond reasonable doubt.
Second, the duty is absolute. It is to "ensure" health, safety and welfare. Where there is a possibility of a detriment to safety, the requirement to ensure safety is breached - Thiess Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 252 [63]-[69].
Third, a contravention of the section is an offence (s 12).
Fourth, though the duty is absolute, the mere occurrence of an incident resulting in injury to an employee will not necessarily demonstrate that an offence has been committed.
Fifth, for a successful prosecution, the prosecutor must provide particulars of the way in which it is alleged the section has been contravened. It is not good enough simply to cite generalisations.
Sixth, in the case of offences by omission, as alleged in this case, it is necessary for the prosecutor to allege some particular act the employer should have undertaken to comply with the section - Kirk v Industrial Court of New South Wales (2010) 239 CLR 531. There can be no criminal liability for an omission unless there was a duty to act. The duty in this case is to be found in s 8. It is to ensure the health, safety and welfare at work of the employees. The duty extends in ways specified in the section.
Seventh, the concept of risk is imported into the section. The obligation of the employer is to take steps directed at an identifiable risk to health, safety and welfare.
Eighth, the nature of the steps to be taken by the employer is the subject of debate in this case. The defendant submits that the particular act which it is alleged should have been undertaken is one which, if implemented, would have prevented or obviated the identifiable risk - Kirk, [11,12,14]. I do not agree that the ratio decidendi of Kirk supports that submission. This particular point was not the subject of consideration in Kirk. In any event, the submission may not be sound. The defendant submits, in effect, that in particularising an act that should have been undertaken, the prosecution must demonstrate that it is an act that would have prevented the injury. What the section requires is that health, safety and welfare be ensured. The supply of particulars is undertaken so that the defendant may know in what way it is alleged that it has not ensured health, safety and welfare. The supply of particulars does not govern the interpretation of the section. The offence is committed if the employer does not ensure health, safety and welfare. If an identifiable risk exists and if the employer does not take a measure that would lessen or minimise that risk, then the employer has not ensured the health, safety and welfare of its employees. I do not need to resolve this issue because I do not propose to make a ruling now that would be contrary to long-established practice in the administration and interpretation of this legislation in the Industrial Court and its precursors. That position is reinforced by the fact that in Inspector Nash v Bulga Underground Operations Pty Ltd [2014] NSWDC 186, Judge Curtis also took this approach and as a matter of comity, I ought to follow him and I do so.
[3]
The Beltana Longwall Mine
I am indebted to Counsel for the defendant in providing detail of the longwall mine in Annexure A to their written submissions. I adopt it and set out hereunder the content of that annexure with footnote references excluded.
"Annexure A Basic facts re longwall mining, Beltana Highwall
Mine and Longwall 13
1. Mining method
At Beltana Mine, the Defendant used a mining technique known as 'punch highwall' mining. Beltana drove roadways directly off the highwall to form blocks. This technique involved adits or portals (horizontal or nearly horizontal roadways or tunnels used as entrances leading into a mine) being driven directly from the base of open cut pits. This mining technique eliminated the need for mains working between development headings.
Coal was mined at Beltana Mine by a method known as the 'retreat longwall method of extraction' ('longwall mining').
Longwall mining
Longwall mining is a form of underground coal mining where a long wall of coal is mined using the shearer. A web is the width of the section of coal being cut across the face, usually a bit narrower than the full width of the cutter drum. The width of the shear is called the 'web'. At Beltana the web was approximately 1m.
The area of the longwall being mined at any particular time was known as the 'longwall face'.
At Beltana Mine a typical longwall face was around 265 m wide. The number of powered roof supports (chocks) was 153. Their width was approximately 1.75m measured from centre of chock to centre of chock. The lengths of the longwall blocks were up to about 3.3 km. The height of the longwall blocks which were cut ranged from approximately 2.7 to 3.2 m.
The blocks at Beltana Mine were adjacent to each other and were developed and mined sequentially.
Beltana Mine was designed to mine the northern part of the Whybrow seam in 14 blocks. Mining of the Whybrow seam was initially intended to conclude in early 2010 but ultimately concluded in April 2011.
Retreat Longwall mining is designed to remove essentially all of the coal from the block and allow the roof and overlying rock to collapse into the void (called the goaf) behind, while maintaining a safe working space along the face for the coalminers.
Although terminology denoting various features of underground mines can vary from colliery ('pit') to colliery, all underground mines have some features in common. Relevantly, the area underground comprises a 'roof' and a 'floor', while the sides or walls are called 'ribs' although the side or wall being mined is called the 'face'.
[4]
The evidence
The prosecution asserts a number of particulars in respect of which it is alleged that the defendant was in breach of the section. As much of the evidence is common to many of the particulars it is convenient at this stage to deal with that evidence and the circumstances surrounding the injury to Mr Newstead.
Mr Newstead worked on the night shift on 13-14 August 2010. He worked underground as the shearer operator on the maingate drum. Mr Kelly was the other operator working on the tailgate drum. That crew also included Mr Leon Power as the longwall crew supervisor and, accordingly, the deputy. The crew also included Mr Hanson working on the supports and Mr I Reed and Mr J Reed as technicians. Mr David Neild was also present. He was the longwall coordinator.
There was an amount of evidence about the functions of the longwall supervisor (Mr Power) and longwall coordinator (Mr Neild). Mr Neild was above Mr Power in the organisational aspect of the mine. Both had a role in respect of safety. As a general principle, Mr Power's position for safety on the shift trumped that of Mr Neild. Mr Power was in charge of the shift underground (T1589.09) and had responsibility for the safety of the crew (T1326.01, T1518.26). Mr Neild, nevertheless, had a safety function. He gave some answers that did not impress me in which he seemed to be distancing himself from matters of safety. His answers in relation to disciplinary proceedings against him after the incident fell into that category. So also did his answers at T1716. To be fair to him, he was being led into and invited to give those answers. They do not sit well with his evidence that his duties included safety, Exhibit 44. They could include matters where there was a particular safety focus for a shift even in the presence of a deputy (T1401.07-.15). Nor do those answers sit well with a situation where the longwall coordinator was aware, or ought to be aware, of a situation of potential danger.
It was intended that two shears of coal be cut on the shift of 13/14 August 2010 (T1187.42). At the beginning of the shift, the shearer was located in the tailgate. It was proposed that a shear be cut to the maingate. To do that, it was first necessary to cut the snake. This refers to a shape of the cut. The fine detail does not matter. It is sufficient to note that when the shearer commences its cut from one gate to another, it simply cannot run back on the same line it had just cut on. It needs to cut into the face. To enable that, the pan line on which the shearer runs is advanced. It is advanced towards the face after the shearer has cut the web. The advance, however, is not up to and adjacent to the shearer. The advance remains about seven to eight chocks behind the shearer. The result is there is a snake in the shape of the pan line. That is conveniently depicted in Exhibit N.
(copy of Exhibit N)
[5]
Particulars of the charge
In the summons, the prosecutor has set out particulars of the ways in which it is alleged the defendant was in contravention of s 8. In these particulars, there is reference to "the Activity". That is covered in paragraph c. of the summons as follows:
"At the material time, Scott Newstead, while performing his role as a longwall technician was undertaking maintenance tasks including replacing picks on the maingate cutter drum of a Longwall Shearer at the Longwall 13 face at the premises ('the Activity')."
The particulars, as set out in the summons, are as follows:
"e. The Defendant failed to provide premises that were safe and without risks to health in relation to the conduct of the Activity when accessing the face side of the armoured face conveyor pan line, in that it failed to take the following measure:
i. the installation of secondary roof support for the roof strata on the face side of the armoured face conveyor pan line at the Longwall 13 face in the vicinity of the maingate cutter drum of the Longwall Shearer;
f. The Defendant failed to provide and maintain a safe working environment in relation to the conduct of the Activity when accessing the face side of the armoured face conveyor pan line, in that it failed to take the following measures:
i. ensure that the Activity was undertaken under a supported roof;
ii. ensure that the Activity was undertaken at the maingate drive or at a take off chute under supported roof;
iii. ensure that a Trigger Action Response Plan (TARP) had been developed to assess the condition of the longwall face including the roof strata and its stability, the extent of the existing roof support and the method of roof support required to permit the Activity to be undertaken safely at Longwall 13;
iv. the installation of roof bolts and mesh on the face side of the armoured face conveyor pan line of Longwall 13.
g. The Defendant failed to provide and maintain a safe system of work in relation to the conduct of the Activity when accessing the face side of the armoured face conveyer pan line, in that it failed to take the following measures:
i. ensure that an inspection of the support of the roof strata of the Longwall 13 face was conducted by a competent person(s) prior to permitting Scott Newstead to undertake the Activity;
ii. conduct a risk assessment that included the impact of the position of the Huesker mesh on the ability to advance the Longwall 13 roof supports to ensure that the Activity could be undertaken under supported roof strata;
iii. ensuring the provision of and compliance with safe work procedures for accessing the Longwall 13 face to undertake the Activity;
iv. ensuring compliance with the 'Beltana Highwall Mining - OPSSTD5.2.01.003 - Strata Failure Management Plan' dated 30/03/2009 ('the SFM Plan') prior to permitting Scott Newstead to undertake the Activity;
v. ensuring that its employees conducted a pre-task risk assessment to identify and control any risks prior to permitting Scott Newstead to undertake the Activity;
h. The Defendant failed to provide adequate information, instruction and training in relation to the conduct of the Activity when accessing the face side of the armoured face conveyer pan line, in that it failed to take the following measures:
i. ensure that Scott Newstead was provided with adequate information and training in relation to the Activity;
ii. ensure that Scott Newstead was trained in or given copies of relevant safe work procedures for the Activity including the 'Working on Face Side of Shearer Procedure - LGWPRO1.1.04.001' and the 'Longwall Shearer Drum Re-pick Procedure - COMFRM 7.3.010';
iii. ensure that Scott Newstead was provided with instruction that if the roof supports were not able to be advanced sufficiently to provide roof support at the Longwall 13 face work area that he should not access the work area until secondary roof support had been installed at the Longwall 13 face work area;
i. The Defendant failed to provide adequate supervision in relation to the conduct of the Activity when accessing the face side of the armoured face conveyer pan line, in that it failed to take the following measures:
i. adequately supervise Scott Newstead, and the longwall crew to ensure that the maingate cutter drums were positioned under supported roof prior to permitting the Activity to be undertaken;
ii. ensure that a supervisor or mining official had inspected the roof to ensure it was supported in accordance with the SFM Plan, and that secondary roof support had been installed at the Longwall 13 face work area prior to permitting Scott Newstead to access and work on the Longwall 13 face.
iii. adequately supervise Scott Newstead, and the longwall crew to ensure that a risk assessment was undertaken to identify any hazards arising from the Huesker mesh and safe access to work areas on the face side of the armoured face conveyer pan line at the Longwall 13 face;"
[6]
Particulars e. i. and f. iv. - installation of secondary roof support
These two items may conveniently be dealt with together.
The facts and the evidence as I have dealt with earlier revealed there was a risk to the safety of Mr Newstead. The defendant did not install secondary roof support. Roof bolts are a form of roof support. Mesh is not.
The failure to install secondary roof support significantly contributed to the risk. Had secondary roof support been installed, the risk would have been significantly minimised though not necessarily eliminated as there remained some risk of roof failure even with supported roof.
The installation of secondary support was, in the circumstances, a simple step to have undertaken. The defendant does not dispute this. Indeed it is the defendant's case that Mr Newstead could have done it himself at the time. It was normally done by the one who was going to work under the roof, but that was not necessarily the case and the defendant could have done it through any number of the crew members. Crew members with the ability to do it were there. The ease with which it could have been done is illustrated by the fact that it has been done since the incident as a matter of course.
For reasons discussed here and earlier, the defence under s 28 is not made out.
[7]
Particulars f. i. and f. ii. - ensuring activity undertaken under supported roof at the maingate drive or at a take-off chute
These two particulars may conveniently be dealt with together.
The defendant submits there is an attempt by the prosecutor here to raise a case of breach alleged to have occurred on the earlier shift on 13 August 2010 and that that was not particularised. This part of the case is that the maingate cutter drum picks should have been changed on the previous shift when the shearer was in the maingate road and it was apparent that the picks needed changing.
There is nothing in the summons that would make that case unavailable to the prosecutor.
The only particulars the defendant sought in relation to this allegation went to what was meant by supported roof.
The answer provided was,
"… the reference to 'supported roof' refers to the immediate roof strata under which a person is required to work, in respect to which a means to suspend or carry part of the weight of the immediate roof strata or to keep the immediate roof strata from falling, sinking or failing has been installed.
The means by which such support can be provided to the immediate roof strata includes hydraulic or mechanical support such as by powered longwall roof supports (chocks) or other systems of roof support including, but not limited to, roof bolt(s), mesh and rib bolt mesh or temporary roof support such as mechanical or hydraulic plant or equipment which provides roof support.
In this case the reference to 'supported roof' refers to a requirement to implement such means of support to the immediate roof strata on the face side of the armoured face conveyor pan line at the longwall 13 face in the vicinity of the maingate cutter drums of the Longwall Shearer."
There was no request directed to the charge that the activity should have been undertaken at the maingate drive.
I do not think the prosecutor was going beyond the case alleged in the summons or particulars.
It was part of the prosecutor's case that the maingate drum picks should have been changed when the maingate cutter drum was in the maingate road and the tailgate picks changed when the tailgate drum was in the tailgate road. Mr Neild gave evidence that there was an opportunity to change the maingate drum picks when the maingate drum was in the maingate road on the earlier shift. That is merely evidence in conformity with the case the prosecutor was making. Mr Neild also gave evidence that there was reason to change the picks on the earlier shift because the picks had worn. That also is evidence in conformity with the prosecution case. This evidence has been dealt with in [42] and [43] above.
[8]
Particular f. iii. - ensuring that a TARP was developed
A TARP is a documented plan. It is to deal with major hazards. Its purpose is to identify conditions that would act as triggers for responses to be taken.
I accept the evidence that the work in production on the longwall is ongoing and dynamic and with such a variety of possibilities that the development of a TARP was not a practical step to take.
The prosecution fails on this particular.
[9]
Particular g. i. - ensuring an inspection of the roof strata support was undertaken by a competent person
Exhibit K, Tab 2 provided that in pick changing a "mining official" must undertake an inspection - job step 6. This inspection was a control for the identified hazard of being struck by roof or rib. Mr Power was a mining official for the purpose of this document.
The defendant submits that this particular is one of failing to ensure an inspection was conducted. It is not an allegation that an inadequate inspection was undertaken which is the way the prosecutor's submissions were put.
It is clear Mr Power undertook an inspection (T1756.44-1758.20). It is clear that he was a competent person.
There was not much to Mr Power's inspection.
It was a visual inspection.
He did not go over the face side of the pans. He was standing up against the back of the furnishings.
His inspection was of the maingate end.
He could see the whole of the tip-to-face.
He noticed nothing of concern in the roof area. There was no fretting or parting.
He looked at the face. There was no slabbing or fretting.
The purpose of looking at the roof and face was to see if there were any abnormalities.
Having undertaken an inspection, he kept to himself all he had discovered. It cannot be said that what Mr Power did was not an inspection. There might be considerable argument as to the nature and quality of it, but that is not for consideration here. The charge here is one of failure to do an inspection at all. It is not about the adequacy of the inspection.
This part of the prosecution case is not made out.
[10]
Particular g. ii. - failing to conduct a risk assessment
On this, the defendant makes a point about the particulars and says the entirety of the prosecutor's submissions should be rejected.
In particulars supplied to the defendant, the prosecutor indicated the following documents would be relied on:
Safe Coal Rules (Exhibit 11);
COMFRM 7.3.010 (Exhibit K, Tab 1);
GWPRO 1.5.04.028 (Exhibit K, Tab 7).
The defendant says the prosecutor's submissions are based entirely on a different document, Exhibit K, Tab 2, and should be rejected completely.
Whilst in the prosecutor's submissions, some reference is made to the documents that were the subject of particulars, the prosecutor's submissions were confined to Exhibit K, Tab 2. As this was not included in the particulars supplied to the defendant. I uphold the defendant's submission. Lest I be wrong in this, I think it is appropriate that I deal with the particular.
The defendant's submissions sought to analyse the meaning of particular g.ii. and came up with a result that seems to me not to be contained in the particular. The particular alleges simply that (1) the defendant failed to conduct a risk assessment, (2) the risk assessment should have included as a subject matter the impact of the Huesker mesh in that supports could not be advanced.
There is nothing in the summons or in the particulars supplied that seeks to confine this particular to a risk assessment that should have been conducted during the planning of the bolt-up phase at a mine or management level as suggested by the defendant.
In the usual practice, one cutter drum was re-picked when in a gate road and the other cutter drum was re-picked at the same time when it was out of the gate road and along the face. In these circumstances, the operator changing the picks on the drum out of the gate road often placed part of his body into a space that was under exposed roof. Many operators spoke of the dangers of that. If the defendant could justify that practice on the basis that the exposed roof in those circumstances was supported roof, it could not do so in this instance where it was undeniably not supported roof.
It was known to the defendant that the chocks could not be advanced with the use of the Huesker mesh. Mr Neild was conscious of that in helping to pull back the shearer with Mr Kelly. Knowing that, it must have been known to the defendant that the tip-to-face distance was greater than was usual when picks were changed. Knowing that, a risk assessment was called-for.
[11]
Particular g. iii. - ensuring the provision of and compliance with safe work practices
Exhibit K, Tab 2 was in place at the time of the incident. The procedure generally was for the picks on both cutter drums to be changed at the same time. The drum not in the gate road would be partly under exposed roof. Part of the drum would be under the supports of the chocks. The exposed roof was not given any support other than that which it derived indirectly from the supports of the chocks and the face. Even in this situation, the defendant's requirement in Exhibit K, Tab 2 was for the roof and rib to be sounded for stability and for "Inspection by mining official".
Exhibit K, Tab 2 had not been supplied to Mr Power or Mr Neild (Exhibit K, Tab 13, 390-1, 416-7). That might not matter if, regardless of that, they followed the procedure in the document. They did not. In this regard, the defendant did not follow safe work procedures.
Mr Power conducted an inspection. Mr Power's inspection was in part compliance with safe work procedures (SWPs). In context, the inspection required was for safety purposes specifically directed to the stability of the roof and ribs. Compliance with the SWPs would require an inspection directed to that with resultant remedial action if any were called for on the inspection. Mr Power's inspection revealed that the tip-to-face span was excessive. Remedial action was called for. It was not undertaken. It is all very well for the defendant to leave various responsibilities with the crew members, but when the defendant, following an inspection for the very purpose of detecting roof stability had information foretelling of conditions of instability and potential danger, it had its own duty to act on that. It had a duty to ensure safety. One way of doing that was for Mr Power to report the finding and for the defendant to put in place remedial measures such as the installation of secondary roof support.
The charge here is not simply that no inspection was done. It is that a compliance with the SWPs was not undertaken. This item is all about roof and rib stability. An inspection that failed to deal properly with that was one that did not comply with the SWPs. One thing the inspection had to deal with was the identified hazard of "Struck by roof or rib". The inspection noted the whole of the tip-to-face span, but Mr Power did nothing to act on that. If that was because he thought he did not have to because the crew members could deal with it, then there seems to be no point in the inspection. However, this is speculating. The point is, the identified hazard of "Struck by roof or rib" because of a roof fall was there and available to be seen on a proper inspection. Compliance with the SWPs on any meaningful approach to the procedures required that that hazard be identified on inspection and appropriate controls implemented. The defendant failed on this point.
[12]
Particular g. iv. - ensuring compliance with strata failure management plan
The Strata Failure Management Plan (SFMP) is a document the defendant had in place for management of strata failure.
I start my consideration of this issue with an admission by the defendant that this document applied to the work Mr Newstead was doing on 14 August 2010. There was debate about whether it applied. The defendant's case is that it was a strata management plan for roadway support only.
The company secretary sent a letter to Inspector Freeman itemising Exhibit K, Tab 48 as a document being a written procedure the defendant had in place for the tasks Mr Newstead was undertaking at the time of the incident. This was in response to a notice under s 62 of the Occupational Health and Safety Act 2000. That notice was sent with a letter addressed to "The Company Secretary" and was marked for the attention of "Ms. Rosemary Summers, Company Secretary" with "Cc. Mark Munro, Operations Manager". The notice was addressed to "THE COMPANY SECRETARY".
The defendant's case here is that Ms Summers worked in an administrative/secretarial role at the head office in Sydney. She had not visited the mine and her exposure to operational matters was very limited. The defendant submits that the evidence does not support Ms Summers had authority to make the admission. I think she did. A company secretary is a person one might normally turn to to seek documentary material in relation to affairs of the company. It is not critical that the secretary be an employee. Here, not only was Ms Summers a company secretary, but she worked at the defendant's head office. She may not have had any "operational experience", but she was not being asked for that. She was being asked for information of an administrative kind - what documents did the defendant have in relation to a particular subject matter? That is something one would expect as an administrative matter a company secretary would handle. Added to that, is Mr Munro's evidence that she probably had assistance from the safety officer in getting the documents and also the fact that she did not give evidence on this relevant matter. She could have spoken as to what her duties were and how she went about getting the documents in this case.
I think the circumstances I have described in the previous paragraph satisfy both (a) and (b) of s 87(1) of the Evidence Act 1995.
[13]
Particular g. v. - ensuring employees conducted a pre-task risk assessment
It seems clear to me that this particular when read with the further and better particulars supplied charges the defendant with not ensuring that either a "process task analysis" or "Job Safety Analysis" was undertaken.
A formal JSA was not undertaken.
The charge is not that the employees did not undertake the task. The charge is that the defendant did not ensure that its employees conducted the task. That will not matter if the employees did conduct the task, but it had to be an assessment "to identify and control any risks".
Mr Newstead undertook a pre-task assessment with the observations he made. It was intended to identify any risks. It failed to and accordingly, it did not control any risks.
It is difficult to see what the defendant could have done here. If it instructed Mr Newstead to conduct a pre-task assessment, his mind and attention might have been more focussed and alert, but this is speculating. There is no evidence that he would have done anything differently to what he did. Accordingly, there is not proven to be any causal nexus between this failure and the existence of the risk.
[14]
Particular h. i. - ensuring that Mr Newstead was provided with adequate information and training
On this particular, I set out the whole of the prosecutor's submission:
"The evidence discloses that the defendant failed to provide adequate information and training as particularised in h(i) to Mr Newstead in respect to:
(i) the requirement to undertake a pre-task assessment such as a Job Safety Analysis for the particular task;
(ii) the hazards in relation to undertaking the Task and the relevant control measures;
(iii) the provision of safe work procedures that where specific to replacing shearer picks or assessing the face side of the AFC including LGWPRO 1.5.04.028 - Roof Support for Shearer, AFC and BSL Maintenance / Repairs on face side." [Ex: K7]
Further, the evidence demonstrates that Mr Newstead was not provided with adequate information and training in relation to the specific task of undertaking the pick change on the Shearer drum on the day of the Incident in that Mr Newstead. In particular Mr Newstead was not provided with information regarding possible hazards in relation to undertaking the task including roof fall. Nor was he provided with a copy or taken through any documented safe work procedures that were specific to the task of replacing shearer picks or accessing the face side of the AFC including LGWPRO 1.5.04.028 [Ex: K7] - Roof Support for Shearer, AFC and BSL Maintenance / Repairs on face side.
Mr Newstead was not provided with information in relation to the risks relating to working under unsupported roof by his supervisors Mr Neild and / or Mr Power prior to him accessing the work areas of the Longwall 13 face to undertake the task of replacing the picks.
Further, Mr Newstead was not provided with an instruction that he was not permitted to access the work areas of the Longwall 13 face until an assessment had been made of the stability of the roof in the area that he was required to work to undertake the task of replacing the picks.
Neither Mr Neild nor Mr Power provided Mr Newstead with an instruction that if the roof supports were not able to be advanced sufficiently to provide roof support over the area that he was required to work that he should not access the area until secondary support had been installed.
2.10.2 Causal Nexus
It is apparent that if he had been provided with such information, instruction and training as particularised in h (i) he would not have been permitted to, and would not have, undertaken the task in the circumstances he did, and he would not have been placed at risk."
[15]
Particular h. ii. - failing to ensure Mr Newstead was trained in or given copies of safe work procedures
The answer to this particular is twofold:
1. Mr Newstead was trained in safe work procedures;
2. It would probably be pointless giving employees copies of all documented SWPs. The evidence that employees would be likely to dispose of them has a degree of plausibility about it. More effective is the training Mr Newstead personally received, the assessments he underwent and the knowledge he brought with him to the mine. Nothing flows from any failure to provide copies of SWPs.
[16]
Particular h. iii. - failing to ensure that Mr Newstead was instructed that he should not access the work area until secondary support had been installed
In further and better particulars supplied in relation to particular h. i., the following was included:
"Further, Mr Newstead should have been provided with instruction by Mr Neild and/or Mr Power that if the roof supports were not able to be advanced sufficiently to provide roof support over the area that he was required to work that he should not access the area until secondary support had been installed."
This particular h. iii is in similar terms to that information.
The defendant is wrong in suggesting the prosecutor has abandoned this particular. It is true that the prosecutor did not say much about it at [518] of the submissions, but she was still proceeding with that charge there. The submissions had been earlier developed especially at [496-7].
That Mr Newstead had a store of knowledge that would have equipped him to assess and respond to a situation himself is not an answer to this point.
The point is that because the roof supports could not advance, there was an extended tip-to-face distance. That distance posed a hazard. The hazard was roof fall. That hazard should have been evident to Mr Neild and Mr Power. It was to Mr Power. The revelation of the hazard should have led to an instruction not to change the picks until the roof had been supported. It is no answer to this to say that the defendant with an obligation to ensure the health, safety and welfare of its employees had no duty to convey that instruction because the operators were equipped with the knowledge to be able to work it out for themselves. This was a simple instruction to convey.
The instruction, if given, would have been followed. The failure to give it was a major and significant cause of the risk and the incident. This is not speculation, it is common sense. For reasons given here and elsewhere, the failure to give the instruction was a significant contribution to the existence of the risk.
The defence under s 28 is not made out.
[17]
Particulars i. i., i. ii. and i. iii. - failure to provide supervision
The prosecutor's submissions here have rolled up each of these sub-particulars. I set out in full the submission the prosecutor makes. It is contained in [524] of the submissions and it sets out six different items:
"The evidence demonstrates that supervision provided to Mr Newstead and the longwall crew was not adequate in that the Longwall Coordinator Mr Neild and / or Longwall Deputy, Mr Power did not:
(i) Inspect the positioning of the maingate cutter drum of the Shearer and roof supports to determine if the maingate cutter drum was under supported roof prior to permitting persons they were supervising to accesses the face to undertake the task to be performed by Mr Newstead;
(ii) Undertake a adequate inspection of the face and roof strata for stability prior to permitting persons they were supervising to accesses the face to undertake the task to be performed by Mr Newstead;
(iii) Supervise the inspection of the face and roof strata for stability by any other person prior to permitting persons they were supervising to accesses the face to undertake the task to be performed by Mr Newstead;
(iv) Undertake or ensure that a Take 5 risk assessment was done prior to permitting persons they were supervising to accesses the face to undertake the task to be performed by Mr Newstead;
(v) Directly supervise Mr Newstead to ensure that he only accessed the face to undertake the work of pick replacement once it had been determined that the task could be performed under supported roof or that measures had been taken to install roof support at or in the vicinity of the area in which Mr Newstead was required to work, in this case on the face side of the armoured face conveyor pan line at the Longwall 13 face in the vicinity of the maingate cutter drums of the Longwall Shearer;
(vi) Appoint an appropriately qualified or experienced person to act as an observer and watch the face or the roof while Mr Newstead was on the face side of the AFC undertaking the task of changing the picks;"
It is convenient to deal with each of these items in turn.
I reject the submission that the failure to inspect had nothing to do with supervising Mr Newstead. Supervising a worker's safety may have many facets. One is examining his working conditions. Inspection of the working site is an integral part of supervision.
[18]
Item (i) - failing to inspect the positioning of the maingate cutter drum and roof supports to determine if the drum was under supported roof prior to permitting persons to access the face to undertake the task
Mr Neild cursorily inspected the position of the cutter drum after he helped pull it back. He thought it was adequately under supports.
The charge here is not simply failure to inspect. The charge is failure to inspect for a particular purpose. The purpose was to determine if the cutter drum was under supported roof and the purpose of that was to ensure that operators would be working under supported roof.
In any given situation, pick changing on a drum out of the gate road commonly involved operators placing part of their body beyond the tips of the canopies. It may even be accepted for present purposes that in doing so, they were placing that part of their body under supported roof. The point is, however, that it was common practice to place part of the body beyond the tips of the canopies. On this occasion that meant part of the body would be under unsupported roof. That meant, in this case, that the inspector should be satisfied that the drum was wholly under the supports or, if it was not, remedial action should be undertaken. Remedial action would include the relatively simple process of supporting the roof and preventing pick changing until that was done.
An inspection of that kind was not done.
Failure to undertake such an inspection was a significant contribution to the risk and resultant injury to Mr Newstead. Had it been done, pick changing would not have occurred until the roof was bolted. The result would have been that the risk would have been significantly reduced, though not necessarily eliminated.
The submission that there is no evidence as to what would have happened consequent on a proper inspection is divorced from reality. A proper inspection would have discovered part of the cutter drum under unsupported roof and would have resulted in remedial action. It is unrealistic to suggest the crew would not have roof bolted if instructed to do so.
The prosecutor has made good this particular.
Taking this step was a simple task. The defence under s 28 is not made out.
[19]
Item (ii) - failing to undertake an adequate inspection of the face and roof strata
The allegation is that there was no adequate inspection. This is clearly made out. Mr Power inspected. He noticed the full tip-to-face span and realised the roof was unsupported and then did nothing about it. That inspection plainly was inadequate. He should have advised of the vulnerability of the roof by reason of the tip-to-face span.
It is no answer to this to say that Mr Newstead could work that out for himself. If that was the answer, there would be no need for and no point in an inspection by a supervisor and there would have been no point in Mr Power's inspection.
A proper inspection would have revealed and disclosed the risk of roof failure. Again, it is no answer to that to say that did not matter because workers did not go under unsupported roof. If that were the answer, again there would be no need for and no point in an inspection.
If the danger of a roof failure is that somebody might be injured, then it must be contemplated that somebody might be under it. A proper inspection would have revealed the risk of roof failure and would have conveyed that result to the crew with an instruction as to remedial action which would have included roof bolting.
For reasons already given, this failure was a significant cause of the risk and injury to Mr Newstead. A proper inspection would have significantly minimised, though not necessarily eliminated, the risk and the injury to Mr Newstead.
Inspection was a simple task. Conveying the result was simple. The remedial action to roof bolt was a practical one and there can be no defence under s 28.
[20]
Item (iii) - failing to supervise the inspection of the face and roof strata for stability by any other person
This supervision was not undertaken, but it does not take the matter anywhere. A supervisor had the task of undertaking an inspection. Mr Power did so. There was no need then for Mr Power to supervise somebody else doing it. The fact that Mr Power's inspection is inadequate is not to the point. It cannot be intended that there must be an inspection by a supervisor and then an additional supervised inspection by another person. One or other is sufficient. This part of the prosecution case is not made out.
[21]
Item (iv) - failing to undertake or ensure that a Take Five risk assessment was done
Take Five risk assessment may not have been carried out, but there was no need for Mr Power or Mr Neild to do so in circumstances where they were required to inspect. A proper inspection would have revealed the hazard and yielded the appropriate control. Had that been done, there would have been no need for a Take Five risk assessment either by a supervisor or an operator.
[22]
Item (v) - failing to supervise Mr Newstead to ensure that he only accessed the face once it had been determined that the task could be performed under supported roof or that measures had been taken to install roof support
Mr Power and Mr Neild had other tasks to do. Instructing Mr Newstead to roof bolt before pick changing should have been sufficient and would have been a sufficient discharge of the defendant's duty in circumstances where Mr Newstead was fully familiar with all that needed to be done to roof bolt. The fact that supervision was not required, made all the more important the need to inspect and instruct in accordance with the earlier particulars. This particular is not made out.
[23]
Item (vi) - failing to appoint an observer
This was not done, but for reasons explained in the previous paragraph, it should not have been necessary. Accordingly, I do not think this particular is made good as a breach.
Also within the ambit of particular i.i., i.ii. and i.iii., the prosecutor relies on a failure to ensure that Mr Power and Mr Neild undertook their supervision of the crew in accordance with the defendant's own safe work procedures. This came down to documents being Exhibit K, Tab 3 and Exhibit K, Tab 48.
For reasons already given, I do not think Exhibit K, Tab 48 applied to the task.
Likewise, I do not think that Exhibit K, Tab 3 is a document that applies to pick changing. One only has to look at the description of the job steps in Exhibit K, Tab 2 and compare it to the procedure in Exhibit K, Tab 3 to see that the documents are talking of different work processes.
A submission by the defendant was that a requirement that supervision be in place to ensure that miners did not go under unsupported roof would require constant supervision. The answer to this is that it is not the prosecutor's case that constant supervision was required. The particular aspects of supervision or lack of supervision have been dealt with. None of that embraces constant supervision. I accept that constant supervision would not be practical. It would be financially unviable. Even more significantly, there were and are insufficient qualified personnel in the mining industry for constant supervision to be capable of being undertaken. The factual scenario here, however, is the defendant knew the roof was unsupported. It knew or should have known that the picks were to be changed on a drum that was partially underneath that unsupported roof. The defendant knew that in changing picks, part of the operator's body was normally under exposed roof which, in this case, would be exposed, unsupported roof. This was not a scenario calling for constant supervision and nor did the prosecutor seek to make that case. This was a scenario for a simple instruction to roof bolt.
[24]
FINDING
For reasons given, I find the defendant is guilty of the offence charged and the defendant is accordingly convicted.
[25]
Corrigendum 27 February 2015
Paragraphs 116 to 119 are misplaced. They should appear immediately following the heading "Particular g.iii. - ensuring the provision of and compliance with safe work practices" which follows paragraph 139.
[26]
Amendments
26 February 2015 - corrected paragraph numbering from [24] - [212]
09 March 2015 - corrigendum added
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: 09 March 2015
On this point, however, I find that none of the measures suggested by the prosecution would have necessarily ensured or prevented risk to the safety of Mr Newstead. This is because, generally speaking, the measures suggested lead to bolting the roof before changing the picks where the shearer was located or changing the picks in a gate end. Those measures would have minimised the risk, but risk would not necessarily have been eliminated because those measures also have some risk, though of a lesser degree.
Ninth, I was informed that, traditionally, prosecutions are brought only where there has been personal injury. That may be so, but personal injury is not an element of an offence against s 8. So much was stated in Kirk [13].
Tenth, the act or omission relied on, omissions in this case, must be a cause of the risk. Cause is to be determined in a common sense way and the omission relied on does not have to be the sole cause. Material or substantial contribution is sufficient - Simpson Design Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316 [115].
The defendant relies on the defence provided by s 28 of the Act. It is as follows:
"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."
The roadways either side of the block of coal were known as either the tailgate or the maingate roadway and also know as headings. The width of a heading was between 5.3 and 5.5m. Headings had roads which a driven between them. They were known as a cut-through. Cut-throughs could be used to form pillars, which were smaller blocks of coal formed during development. Cut-throughs were numbered from the start of the development at the surface towards the end of the block where the mining of the block itself would start (install face').
In the retreat longwall method, the block is formed by driving maingate roadways, tailgate roadways and an install face roadway which connects the maingate and tailgate roadways. This is called the 'development' phase of longwall mining. The beginning of the block, furthest from the surface, where the longwall equipment is installed is called 'the install face'. The install face is at the end of the maingate and tailgate roadways, furthest from the surface (where the highwall was). The other end of the block (closest to the surface) is formed by a recovery roadway from which the longwall equipment is recovered at the end of the block mining process.
The cavity behind the longwall roof supports is called 'the goaf'. There is approximately 8m between the goaf and the face and the longwall sits between the two of them.
At Beltana Mine if a person stood in the walkway, behind the spillplate of the armoured face conveyor ('AFC'), facing the longwall face looking in the direction of the face:
the maingate was on the left-hand side,
the tailgate was on the right-hand side,
the face was in front of you, and
the legs of the support was behind you
the canopy of the longwall supports was over you; and
the goaf was behind the longwall supports and behind you.
Expressions denoting direction of travel along a roadway and locations in a mine are 'inbye' and 'outbye':
'inbye' means travelling towards the face and away from the surface entry.
'outbye' means both the direction along the roadway away from the face and also locations between the face and the surface.
Other expressions that are used in lieu or in conjunction with those are 'face side' and 'goaf side'. When people talk about face side, they normally mean on the face side of the AFC furnishings and when people talk about goaf side they normally refer to anything from the AFC furnishings back to towards the goaf.
Longwall 13 used 153 roof supports across the face. Roof supports were hydraulic jacks sometimes called 'powered roof supports', 'chocks' or 'shields'. There were two types of roof supports, being the 'run-of-face supports' and the 'gate end supports'.
There were 143 'run-of-face' supports, which commenced at roof support 6, and continued to, and including roof support 143 (sic 148). The run-of-face supports:
were approximately 1.75m wide from centre of the support to the centre of the next support (including a gap between the supports),
individually weighed approximately 23 tonnes,
extended to a maximum cutting height ('extraction height') of up to approximately 3.3 m in their design, and 3.2m at Beltana,
hydraulically advanced themselves a maximum distance of approximately 1m at a time (a distance designed to match the web).
There were six gate end supports, which were roof supports 1 to 5 inclusive at the maingate, and 149 to 153 supports inclusive at the tailgate. The gate end supports:
were approximately 1.75 m wide from centre of the support to the centre of the next support (including a gap between the supports),
individually weighed approximately 28 tonnes,
extended to a maximum cutting height ('extraction height') of up to approximately 3.3 m in their design, and 3.2m at Beltana,
hydraulically advanced themselves a maximum distance of approximately 1m at a time (a distance designed to match the web).
Together, the run of face supports and the gate end supports, were placed and interconnected, side by side for approximately 265m in length in order to support the roof of the coalface,
The coal is cut from the coalface by a machine called a 'shearer'. At each end of the main body of the shearer a ranging arm is fitted. These arms can be ranged (moved) vertically up and down by means of hydraulic rams, onto which are mounted the shearer cutting drums. The cutting drums are fitted with cutting picks and water sprays, for dust suppression and to prevent frictional ignition. The cutting drums are rotated to cut the coal from coal seam.
The longwall face comprises a horizontal 'roof', a horizontal 'floor' and a vertical 'face'. Various geological and geotechnical conditions mean that, for mining to be undertaken, the roof immediately before the face needs to be supported, whilst the area behind where the mining is taking place needs to collapse. Unless the roof is supported it will fall in. The roof supports or chocks provide support and help control the roof fall. As the roof supports advance the roof behind them is intended to fall, forming the goaf. Amongst other things, the support provided by the roof supports allows the shearer to move along the face when either cutting ('hauling') or moving without cutting ('tramming'). The shearer is carried along the length of the face on the AFC. The shearer uses a toe to connect to and travel on top of the AFC/pans.
At Beltana, the shearer was designed to be operated in automatic mode. The shearer could also be operated in manual mode or the automatic mode could be overridden by the shearer operators so that they manually controlled the operation of either ranging arm and the shearer speed (haulage speed). At Beltana mine, two coalminers operated ('drove') the shearer at any one time, using remote controls. One operator controlled one arm and the other controlled the other arm. The forward arm held the 'leading drum' and the following arm held the 'trailing drum' or 'lag drum'.
As one looked towards the face, the AFC was located in front of the powered roof supports, and the shearing action of the rotating drums cutting into the coal seam broke the coal which, by the action of the cutting drums, was then loaded onto the AFC. The coal was removed from the coal face by conveyor to the maingate - that is, as you face the coalface, moving from right to left.
As the shearer removed the coal, the powered roof supports advanced forward into the newly created cavity and the AFC/pans were 'pushed' over towards the face a set distance (number of chocks) behind the shearer. At Beltana, these movements of the roof supports and the AFC were normally operated in automatic - that is they were computer-controlled (by the RS20 roof support control system) and governed by the position of the individual roof supports and of the AFC in relation to the position of the shearer. However, the roof supports could also be advanced manually, by instructions keyed into an interactive panel called a SIM which was part of the RS20 roof support control system. There was a SIM located on each roof support. Instructions could be keyed into the SIM of the support to be moved or into the SIM of an adjacent or nearby roof support. Alternatively, supports could be moved by manually manipulating handles on the support. Likewise, the 'push' of the AFC towards the face could be modified manually. When the longwall was coming close to the end of its life and the operations had moved into 'bolt up' phase, the wall was operated in manual.
At Beltana Mine, the shearer operated in bi-directional mode ('bi-di') - cutting both from maingate to tailgate (one 'shear') and then from tailgate to maingate (another 'shear'). As mining progressed the entire longwall progressed through the seam, and the goaf increased. As per design, the goaf collapsed under the weight of the overlying strata.
Relevantly to this case, at the time the block was developed, two heading stubs were cut ('driven') into the end of the block (ie, at the highwall end) parallel to the gate roads, roughly one-third and then two-thirds along its width. These were called 'take-off chutes' or 'stubs'. Their purpose was that, once the block had been mined almost to its end, the ends of these chutes were reached and the chutes would be 'holed'. When the take-off chutes were driven, the roof of these take-off chutes was supported by bolts and mesh to a predetermined bolting pattern. Once holed, take-off chutes could then be used as means of access and egress for the 'bolt up' phase and to move components of the longwall as they were taken out.
'Bolt up' phase involved the insertion of Huesker mesh and bolts over the last approximately 13 shears. After the last shear of the bolt-up phase was complete, and subject to further support being installed (eg, 'pigsties'), the process of removal of the longwall components was called both 'take-off' and 'recovery'.
Means by which roof could be supported
Roof could be supported in a number of ways. Relevantly to this case, it could be supported by being held up by powered roof supports or by bolts which were inserted using bolting machines operated by crew members or by contractors. Similarly, ribs and the longwall face could be supported by being bolted. In addition, temporary roof support could be provided by means of wooden supports ('linking locks' or 'props') or pneumatic props ('air legs').
Longwall 13
As at August 2010, the block of coal being mined at the Beltana Mine was Longwall 13 - that is, the thirteenth block of coal was being mined.
A Longwall 13 Hazard Plan had been developed by Beltana for the mining of Longwall 13. Among other things, this plan identified the relevant seams of coal to be mined and their height, and the type of geological strata present through the area of the longwall block to be mined and provided some operational instructions.
Mining of Longwall 13 had commenced in or about February 2010. Mining commenced at the beginning of the block and proceeded in a north-easterly direction towards the highwall. As at 14 August 2010, Longwall 13 had commenced the 'bolt up' phase (a stage in preparation for take-off and relocation to the next block). The next and last block to be mined was Longwall 14.
The Longwall 13 Hazard Plan identified that the roof of Longwall 13, between maingate 13 cut-throughs ('c/t') 6 to 5 c/t, was coal. This was the last section of Longwall 13. It was the section of the block that was being mined on 14 August 2010.
In this area of Longwall 13 the Lower and Middle Whybrow seams had merged. The longwall face map showed that, with the shearer extraction height of 3.2 metres, there would still be left a roof of Middle Whybrow seam coal."
The commencement of a shear from one gate to the other commences with the cutting of the snake in the face. This is conveniently shown in Exhibit O and then Exhibit P.
(copy of Exhibit O)
(copy of Exhibit P)
It should be noted, however, that Exhibit P shows the position of the shearer not immediately after the cutting of the snake, but at a later time when Mr Newstead was injured. Exhibit P shows a straight line on the face after the snake has been cut. At that point, the pan line would also be straight. The snake shown in Exhibit P is there because before the picks were changed on the maingate, the shearer was pulled back off the face, thus creating the snake in the pan line shown in Exhibit P.
When the crew commenced to cut the snake on 14 August 2010, they noticed the shearer was not cutting properly. They ascertained that the picks were worn and needed replacing. At the commencement of the cut, there was the loud bang of a dogbone (a pin connecting components of the AFC) breaking. Work with the shearer then stopped. At that time, Mr Neild and Mr Power were in the tailgate area with Mr Newstead and Mr Kelly (T1194.26). There was discussion between Mr Newstead and Mr Kelly about where the picks should be changed. It is sufficient to note that moving the shearer to the maingate either by shearing or tramming was not a practical option. The shearer was taken back into the tailgate (T1195.20, 1196.45, 1199.14). When the dogbone was being fixed, there was discussion between Mr Kelly and Mr Neild about the changing of the picks. Mr Kelly expressed his intention to pull the maingate drum back under the roof support and change the picks there (T1199.20). There was no relevant response from Mr Neild.
Mr Kelly, Mr Newstead and Mr Neild went to the maingate drum. Mr Kelly showed Mr Neild what they intended to do (T1199.47). Mr Neild helped pull the AFC back. It was pulled back as far as it would go (T1200.33). This was to provide protection against roof failure. Mr Neild then went to the maingate (T1202.03). He did not say anything about the process of changing the picks (T1202.28). The drum was back a metre plus from the face (T1201.13). There were various estimates given about how much of the drum was under the supports. I reject Mr Munro's evidence that about 800mm was beyond the tips of the canopies. Had he asked any one or more of Mr Newstead, Mr Kelly or Mr Neild, he would have received different and more or less consistent information contradicting that. That error on his part led to his mistaken view, which I shall come to later, that there was an undercut. More significantly, it helped mislead him to the view that Mr Newstead walked out beyond the supports. I accept that about 200mm to 300mm of the drum was beyond the tips.
Mr Kelly, with assistance from Mr J Reed and Mr Hanson, proceeded to change the picks on the tailgate drum. Mr Newstead proceeded, with the assistance of Mr I Reed, to change the picks on the maingate drum. In doing so, he was on the maingate side of the drum, facing towards the drum (T1169.33).
Mr Kelly, when he was changing the tailgate drum picks heard a noise that sounded like roof falling. Roof had fallen, crashing onto the maingate drum and onto Mr Newstead (T1154.25). Mr Kelly went over to Mr Newstead. Mr Reed was assisting Mr Newstead. Mr Newstead was on the edge of the pan line (T1209.31). He was on the maingate side of the drum, lying down and appeared to be under the roof support (T1209.40). The brat that had fallen from the roof hit the maingate drum and broke (T1154.25, T1209.50). Mr Kelly was unable to tell from photographs, particularly Exhibit 2A New Light, where the coal had fallen from (T1215.14).
Mr Newstead was placed on a stretcher. He could not be moved on the stretcher because, in pulling back the AFC, the walkway had been effectively closed. To remedy this, the AFC was pushed back towards the face (T1159.23, T1213.06).
It was usual procedure at the defendant's Beltana mine to change picks on both cutter drums at the same time. This meant that usually picks were changed when the shearer was at a gate end and, if at the tailgate end, the picks on the tailgate drum would be changed when the tailgate drum was in the tailgate road under supported roof and the picks on the maingate drum would be changed when the maingate drum was out towards the maingate along the face and vice versa when the shearer was at the maingate end. On these occasions, there would be about 200-300mm of the drum which was not in the gate end under exposed roof.
When picks were changed at the defendant's Beltana mine, the drum not in the gate road was partly under the supports and partly towards the face outside the supports. There was a tip-to-face span that varied between about 300mm and 600mm.
The tip-to-face span of 300mm to 600mm of exposed roof was not necessarily unsupported roof. Roof obtains its support in different ways. It can get it directly, for example, from the supports or from roof bolts. It can get it indirectly from the face. The result is that though roof of 300mm to 600mm may be exposed, it may, nevertheless, be supported. This, however, is not a matter of objective fact. It is a matter of opinion and in any given situation, opinions on this may vary. I found much of the evidence about this to be unsatisfactory and of no use. Some witnesses said any unbolted roof was unsupported. Some had different ideas about what was supported based on different tip-to-face spans. Many agreed that tip-to-face spans of different distances could be considered to provide supported roof if the roof and ribs were in good condition, because roof can be considered to obtain indirect support from the supports and the face. This is based on the supports and face exerting a sphere of influence beyond their perimeters. All that evidence was put into its proper context by Mr Eagleton who considered that the sphere of influence concept was a roadway concept where roof is bolted to a designed pattern. He thought the variables hindered the application of that concept to longwalls (T1338.45). In any event, it is difficult to see what utility that evidence could have in this case where, on any view of it, the roof was unsupported.
The defendant's case here is that though it had a practice of both cutter drums having their picks changed at the same time, it nevertheless was a safe practice because the tip-to-face span was sufficiently small for the roof to be considered supported roof. Be that as it may, that did not stop some miners having concerns about changing picks in this situation. This is because in doing so, it was necessary to place some part of the body beyond the tips of supports under the exposed roof and the concern was there could be roof failure with fall of material even if the roof was considered to be supported. It was part of the defendant's case that even supported roof can fail.
The risk of fall of roof strata is an ever existing one in longwall mining. The risk is plainly highlighted if the roof is not supported. The degree of risk depends on a number of factors. One of those factors is the extent to which secondary supports such as, for example, timber props or roof bolts are deployed. Another is the width of span of roof that has no secondary supports. Another is the distance between secondary supports. There was no unanimity in the evidence as to precisely what distance between supports would determine whether exposed roof was considered to be supported or unsupported, even assuming there to be no adverse variables such as cracking or spalling in the roof or face or ribs. What was clear, however, was the point of difference of opinion here was at a measure well below 1.5m. Here there was a tip-to-face span of 1.5m. Not only did the tip-to-face distance here reveal unsupported roof, it revealed a risk of roof failure even with all other variables being favourable. The bigger the span of exposed roof, the higher the risk of roof failure. This span was such that the risk should be classed as high. The defendant must have known that an exposed roof of 1.5m was unsupported and at high risk of producing a fall of strata. This fits with [21] of Annexure A to the defendant's submissions (see [19] above).
On 14 August 2010, Longwall 13 was nearing the end of its production life. It was at bolt-up phase. This involved the presence and use of Huesker mesh. That meant the supports could not be advanced. All these facts were well known to Mr Neild. Hence, his assistance in pulling the shearer back off the face. He helped pull it back as far as possible. This was for protection from the exposed roof. It must have been known to him that the tip-to-face distance at that point was 1.5m and with the supports unable to advance, the roof was exposed and unsupported. Mr Neild, having helped pull the shearer back from the face as far as possible for protection from the exposed roof knew that that was where the picks were to be changed.
There were other factors said to indicate that the roof was liable to fail. One was the behaviour of Longwall 13 in the course of mining it. Another was a series of geotechnical features throughout different parts of the longwall. I am not satisfied that these had any bearing on the roof strata of Longwall 13 at the point where the picks were being changed on 14 August 2010. These matters would require expert evidence to link their existence and their influence to the roof strata at that point and at that time. All that evidence may be put to one side.
Another matter said to indicate that the roof was liable to fail was the presence of an undercut in the roof at Longwall 13 at the site where the picks were changed on 14 August 2010. An undercut is a section of roof that has not been cut to the desired horizon. The result is there is a step in the roof at a level lower than the level the roof should have been cut to. It is a matter that can affect detrimentally the stability of the roof.
I do not accept the presence of an undercut. The first thing to note is the slab that fell was 700mm wide. A cut or a web is 1m wide. That leaves 300mm unexplained. More to the point, witnesses who inspected the roof before the incident either saw there was no undercut or saw there were no abnormalities. That is the evidence of Messrs Kelly, Newstead, Power and Sadler. Mr Power did not see an undercut (T1769.28). Mr Sadler saw solid roof (T1566.49).
Further, there is physical evidence contrary to an undercut. I accept the evidence that the slab that fell hit the maingate drum and broke. Marry that evidence with a given width of the slab of 700mm and the face edge of the slab then had to be at least 500mm from the face - Exhibit 52. That is inconsistent with the opinion evidence of the existence of an undercut which is that the undercut came from the edge of the face. The opinion evidence was no doubt influenced by the position of the AFC when the site was inspected after the accident. That was not its position at the time of the incident. It had to be pushed out closer to the face to allow the stretcher with Mr Newstead to get out. Mr Munro and Inspector Sherrell were not aware of that fact.
The fact that there was no undercut does not diminish the assessment of the risk of roof failure as high. The extent of the tip-to-face span calls for that assessment. I return to the absence of an undercut and its consequences in [49] below.
The procedure involving the changing of picks on both drums at the same time leads to two matters. The first is whether in the circumstances prevailing on 14 August 2010 the picks on the maingate drum could then have been changed by moving the shearer. I am satisfied on the evidence that this was not a practical option whether by cutting or tramming. The second is whether the picks could and should have been changed on the earlier shift when the shearer was at the maingate end. The answer to this is, yes. The evidence was clear from Mr Neild that the picks were in such a condition when he saw them on 14 August 2010 that it was apparent that they needed changing on the earlier shift when the shearer was at the maingate end. The evidence from him is also clear that there was an opportunity to do it. The defendant has a submission that this case is not available to the prosecution. I deal with that submission later at [96] to [102].
Even without Mr Neild's evidence that the maingate cutter drum picks could and should have been changed on the previous shift, the inference is available that they should have been changed then. The maingate drum picks were previously changed on the afternoon shift on 11 August 2010. The following shift was the night shift of 12 August 2010. Seven shears were cut. Then on the afternoon shift of 13 August 2010, two shears were cut (Exhibit M). Picks needed to changed about every six shears. By the time the picks were being changed on 14 August 2010, they had cut nine shears since the last change. This supports Mr Neild's assessment that it was apparent they needed changing on the previous shift. At the time he was suggesting they should have been changed, the shearer would have been at the maingate road and it would then have cut eight shears since the last change. It must have been known that if the picks were not changed then, they would have to be changed at the other end when the shearer had then cut nine shears and the maingate drum would be out of the gate end and the chocks unable to advance. The need for the picks to be changed on the earlier shift is heightened also by the fact that at this stage of the longwall, the stone was becoming harder to cut and causing picks to wear at a rate faster than they did earlier in the longwall production.
The practice for both cutter drums to have their picks changed at the same time was not universal practice in longwall mining. Other mines had a practice of changing picks on the tailgate cutter drum when that drum was in the tailgate road under supported roof and on the maingate cutter drum when it was in the maingate road under supported roof.
On 14 August 2010, it was determined that the picks would be changed with the tailgate drum in the tailgate road under supported roof and the maingate drum within the longwall at a point where there was a 1.5m tip-to-face distance. Mr Neild was aware that is where the picks were to be changed. That was the upshot of the conversations with him and his assistance in pulling the drum back. He did not inspect the roof. He was not interested in the tip-to-face distance (T1658.18). That is puzzling as he must have known what it was.
The risk of roof failure in the circumstances prevailing on 14 August 2010 was readily foreseeable to the defendant. This goes especially to the defendant's defence that it was "not reasonably practicable" to take the measures the prosecution alleges should have been taken.
The case was conducted by the defendant on the basis that the tip-to-face span of 1.5m was unsupported roof and for that reason liable to fail. Further, various documents of the defendant support this view. There was a rule described as a golden rule never to enter under unsupported roof. That rule supports the view that it was known that unsupported roof was liable to fail and cause injury. Other documents call for steps to be taken such as inspecting roof, testing roof, barring roof and bolting roof, for example, Exhibit K, Tab 2, Tab 3, Tab 7. This is all because of the risk of roof failure. There may be debate about whether all of these documents applied to pick changing, but that is beside the point. The point here is they identify a risk of roof failure and with roof failure comes the risk of injury. The defendant knew of that risk and knew it existed in the case of unsupported roofs.
On foreseeability, the defendant relies on the long history of no prior injuries in pick changing. Two things may be said about that. The first is that because it had not happened before does not mean it could not happen and past history could lull one into a false sense of security. More to the point is the second thing. It is that there had been no prior injuries in circumstances entirely different from the circumstances prevailing on 14 August 2010. All prior occasions included much smaller tip-to-face spans, with the defendant maintaining they were all cases of supported roof. This time the roof was not supported.
The absence of an undercut leads into another contentious issue and that is the location of Mr Newstead at the time of the incident. The prosecutor would have it that he was partially under the canopies of the supports with the lower part of his body under the exposed roof. The defendant would have it that he was at least 1m forward of the tips of the canopies (Submissions, [249(a)]). This would place Mr Newstead well beyond the face side of the drum and within half a metre of the face. I accept the prosecutor's version. The defendant's version cannot be correct. Mr Newstead said his head and torso were "right underneath the cavities [sic, canopies] of the chock" (T1871.38). The defendant submits that is impossible. Mr Newstead located his position on Exhibit 52, Diagram 7. His position is located by the arrow on the yellow square. In that exhibit, the ply that fell is represented by the red three-sided diagram with unbroken lines. It is flush against the face. The cutter drum is represented by the rectangle with red, broken lines.
(copy of Exhibit 52, Diagram 7)
The defendant's analysis is wrong. In Exhibit 52, the ply that fell is shown flush against the face. That is an error. The evidence which I accept is that the ply struck the cutter drum. To have done so its face edge had to have been at least 500mm away from the face. At that, it would merely graze the drum as it fell. It must have been even further away from the face to have hit the drum and broken.
One matter the defendant relies on is Mr Sadler's evidence calling out to Mr Newstead "What the hell are you doing out there?" (T1563.24). When this was put to Mr Newstead in cross-examination, he was convincing in his response that that was a lie. It may not have been a lie, but at least Mr Newstead's response carried conviction that he had not heard Mr Sadler's comment. One is left with Mr Sadler's comment, without any evidence of where "out there" was. It was certainly not where the defendant would have it, at least 1m forward of the tips of the canopies. Mr Sadler's evidence is confusing in its timing as he had Mr Newstead changing picks and calling out to him before a conversation with Mr Neild about changing picks. That sequence did not occur. If Mr Newstead was ever out where the defendant asserts he was, and was there when Mr Sadler called out, and I do not accept that this was the case, it must have been at a time before the incident occurred. Another possibility is that Mr Newstead was simply where he said he was when Mr Sadler called out. Mr Sadler's call to Mr Newstead did not seem to phase Mr Reed who, according to Mr Sadler simply responded that Mr Newstead was doing a good job (T1579.03).
It cannot be inferred, as submitted by the defendant (Submissions, [243]) from the photographs that the ply fell from close to the face. Those photographs are so poor I find I can draw nothing useful in that regard from them.
Contrary to the defendant's submission, it is not impossible for Mr Newstead to have been struck by the ply that fell if he was in the position marked on Exhibit 52, Diagram 7. What is impossible is that the ply fell from the position marked in that diagram. If it fell from that position, it could not have made contact with the drum.
That is sufficient to dispose of that issue, but there is more.
Mr Reed, when assisting with the pick changing, was standing on the pan line (T1153.35). He was handing materials to Mr Newstead. He must have been close to him.
Mr Reed attended to Mr Newstead when he was hit. He pulled the stone off him. Mr Newstead stood up. He advised him to sit down. He did, on the floor, towards the pan line (T1155.50)
Further, Mr Newstead was struck by the slab in the lower back. That is common ground and is supported by evidence, for example, Exhibit K at p433. That is consistent with where Mr Newstead said he was. It is not consistent with the defendant's hypothesis. If he was more than 1m forward of the tips of the canopies, then he was less than 500mm from the face. His whole body would have been directly under the falling slab. He could not have avoided impact with his head and upper torso and injury to both, possibly even fatal injury. Inspector Sherrell's opinion evidence of the presence of an undercut must be weakened by his history of the ply landing on Mr Newstead's head (T157.33) and by his understanding that the AFC had not been moved after the incident.
One point of the defendant's submissions is that it leads to a further submission. That is that the identified risk in this case was one that included Mr Newstead being under unsupported roof. It was submitted that the risk was of his own making and that he deliberately and consciously in breach of the golden rule in mining went out under unsupported roof, knowing he should not do so. I do not accept the submission that Mr Newstead deliberately entered under unsupported roof in breach of that golden rule. There is a number of reasons for this.
One, I thought he was truthful in his evidence when he denied this and generally.
Two, in light of the reasons just discussed and findings made, the basis for this submission falls away.
Three, the defendant's argument proceeds largely from logic. Logic can be a useful, but not definitive, tool in assessing the reliability of a person's evidence. The logic depends on all its premises being established and all inferences and deductions sought to be made from those premises flowing inevitably. It also depends, in this case, on Mr Newstead's mind at the time being conscious of those premises and of the consequences of those premises. The finding that the defendant seeks here is a finding as to a state of mind. I do not consider that Mr Newstead's mind was so focussed on the premises the defendant relies on and their alleged consequences that the conclusion must be or even should be or is that he was a dishonest or even unreliable witness.
The rule of not entering under unsupported roof was well entrenched and well known. The consequences of doing so, even without mishap, included potential dismissal. More to the point, the consequence of the roof failing because it was unsupported included serious physical injury and even death. Everybody knew not to enter under unsupported roof. It is inconceivable Mr Newstead would have intentionally created or courted the risk.
Mr Newstead has proceedings pending in the Supreme Court for personal injury damages arising from the incident. It is true he had motive not to give evidence that could potentially harm that case. I do not consider he acted on that motive in giving his evidence.
Further, Mr Neild knew that picks were to be changed where they were and said nothing to Mr Newstead. Further, Mr Power inspected the worksite and said nothing to Mr Newstead. It is not surprising that Mr Newstead would have thought there was nothing untoward about the worksite and might not have his mind on potential dangers.
One piece of evidence remains unexplained and that is when Mr Munro spoke to Mr Newstead after the incident and informed him his contract was terminated because he had entered under unsupported roof, Mr Newstead did not respond to that. He was not asked about this in evidence. It can be said he did not deny it. It can also be said he did not affirm it. It remains a piece of evidence without explanation. I have to give it its due weight. In doing so, it does not impress me as evidence that detracts from the matters I have set out.
That leaves not fully explained why Mr Newstead was under unsupported roof. It is partially explained by his perceived need to be where he was to remove a pick from the drum. There was evidence that could have been done without the torso being under unsupported roof. In large measure, this evidence was not to the point. Mr Newstead was doing the job. He was the one to assess how it needed to be done and I accept his evidence on this.
There are other matters that bear on this point. There was ample evidence of the practice of picks being changed on both drums at the same time. This meant that in all of those cases, at least one of the drums was not in the gate end and was further out along the face. Part of that drum was always under exposed roof when those picks were being changed. Frequently, workers had to change the picks with part of their body under exposed roof. Many of them were concerned about the risk of roof failure.
Another matter that bears on this concerns the defendant's submission that pick changing was a regular, common, simple and routine task easily manageable by the operators and not requiring supervisors to be present to assess the conditions or oversee the task. There is a premise to that submission that does not apply in this case. It is that pick changing was a regular, common, simple, routine task. In the vast majority of cases, that may be so. It was so in this case so far as the tailgate drum was concerned. Its picks were being changed under supported roof in the tailgate. In these instances, the task might be described as regular, common, simple and routine, but they are instances where the task is done under supported roof, or arguably, under supported roof. In other instances, when the picks were being changed further along the face, the supports were able to advance much closer to the face than in this case. This case was different, because the supports could not be advanced. This was because of the Huesker mesh. There were no doubt several earlier occasions where the Huesker mesh was being used, but there was no evidence about the change of picks on such occasions. This was not a regular, common, routine and simple task.
This submission of the defendant went to two things. It went to the existence of risk and it went to the defence.
As to risk, the defendant's submission is that it is not simply roof failure that is the risk. It is roof failure causing injury and that cannot happen without somebody being under the roof. A necessary element of the risk, therefore, is that somebody be under a roof that fails. That is not quite right. What it does entail is that for injury to occur a person or part of his body be under roof. This does not mean that risk did not exist in the circumstances of this case. The circumstances were there was a roof that was liable to fail. A pick changing process was to take place with part of the cutter drum under the exposed roof. The process of changing picks often entailed part of the operator's body being under exposed roof. This was likely to be so in this case. Those circumstances are sufficient to define the existence of the risk in this case. That any part of the body could be under the unsupported roof is sufficient. As noted earlier, breach of the section is not dependent on physical injury having occurred.
The other aspect of the defendant's submission is that Mr Newstead's behaviour was such that it made it "not reasonably practicable" for the defendant to comply with s 8. This is because even if it was not wilful disobedience, it was at least aberrant behaviour of such unpredictability that it could not possibly be known to the defendant that it could occur and, accordingly, there was no practical way the defendant could do anything to stop it. I reject that submission. I think it fails at a general level and at a particular level and I deal with that from [75].
The defendant relies on the knowledge, experience and training of the miners, including Mr Newstead, and the defendant's systems for assessing each person working at its mine. I need not go into the thorough detail of all that evidence in the case. I trust I do the defendant's case no disservice if I summarise.
The defendant provided training and information to Mr Newstead. He also had experience both at the Beltana mine and before joining it. Mr Newstead, like other miners at Beltana, was a highly experienced miner. He had experience in many aspects of mining. He was certified to work underground alone. He was assessed by the defendant for competencies in numerous aspects of mining. He was assessed as competent in all. He was a safe and conscientious miner. But for one piece of evidence which I do not accept, he was recognised by his fellow workers as a safe and competent miner. He was safe and conscientious for his own safety. He was safe and conscientious for the safety of others. All the qualities mentioned in this paragraph applied also to other miners employed by the defendant and especially to those Mr Newstead was working with on the shift when he was injured.
Specifically, Mr Newstead knew the process for assessing whether roof was or was not supported. He knew the significance of the tip-to-face span and the significance of sound roof, ribs and face. He knew what to look for in all. He knew he could undertake processes such as a job safety analysis (JSA) or Take Control. He knew if there was a safety concern he could raise it with a supervisor and that he was able to talk to him. He knew he could take his own remedial action to his own satisfaction. He had the skill set to handle issues likely to arise in a pick changing operation.
At a general level the defendant's submissions on the unforeseeability of Mr Newstead being under unsupported roof fails. One document is enough to illustrate that. Exhibit K, Tab 2 unquestionably applied to pick changing. It specifically identified a hazard as "Struck by roof or rib". Even on the defendant's submission that cannot possibly be a hazard unless an operator is wholly or partially under roof that can fail. By its own document, despite the existence of the "golden rule" and all other exhortations not to enter under unsupported roof the risk of being struck by roof failure in the pick changing process is identified as a hazard.
At the particular level, the submission fails. The defendant knew where the picks were to be changed. It inspected the site. The inspection was for safety purposes. Mr Power foresaw the risk of failure. The defendant knew the process of pick replacement often involved operators placing part of the body under the exposed roof. Mr Power accepted that in doing the job, Mr Newstead would be reaching beyond the tips of the canopies (T1781.50 - T1782.01). The defendant foresaw the risk of injury in this situation.
Another point where this submission fails is that foreseeability is not a trump point. It goes to the "not reasonably practicable" point. At the point where Mr Power did his inspection and at other points of time the defendant was under a duty to ensure the safety of Mr Newstead. Inspection undertaken and risk of roof failure detected that duty was not discharged by Mr Power keeping the information to himself and relying on Mr Newstead to work it out for himself. Mr Newstead might have had the skill set to do that. However, he was the employee entitled to protection and Mr Power was the supervisor and Mr Power was possessed of the knowledge of the danger. Mr Power's job included making sure that safety systems were operative (T1401.27). This point gains emphasis from Exhibit K, Tab 2. It is the mining official who is to do the inspection and who in this case did it. The purpose of that is not simply so he can increase his body of knowledge to the exclusion of everybody else. This is a safety issue. Mr Power should not have kept the knowledge to himself. He should have imparted it with remedial safety processes to Mr Newstead.
I make some further observations on this point of "not reasonably practicable".
Whether or not something is reasonably practicable involves a balancing act. The exercise does not have to be a matter of any great complexity. The term "reasonably practicable" is a straightforward one involving plain, ordinary English words. The test is to be applied as at the time of the alleged breach. Whether or not something was reasonably practicable may be influenced by whether events were foreseeable. To the extent it is necessary to consider this, it is only events that were foreseeable at the time of the alleged breach that may be taken into account. It is not permissible to use events that occurred after this time to determine what was then foreseeable.
On the balancing exercise, one balances the nature of the risk, the likelihood of its occurrence and the gravity of the risk with the cost, difficulty and inconvenience of averting or reducing it.
The duty is owed to all employees including the hasty, negligent, careless, inadvertent, disobedient, inattentive or unreasonable - Dunlop Rubber Australia Limited v Buckley (1952) 87 CLR 313. The unforeseen behaviour of a disobedient servant might be excepted from this - Cahill v State of New South Wales (Department of Education and Training and Department of Juvenile Justice) (No.2) [2008] NSWIRComm 246 [772] and see also WorkCover (Inspector Battye) v Patrick Container Ports Pty Ltd [2014] NSWDC 171.
The defendant seeks to make a distinction in its submissions. The distinction is that the duty is owed where the negligence, inadvertence, disobedience, etc is foreseeable, but not in respect of conduct that is reasonably foreseeable. It seems to me that this is a distinction without a difference at least in this case. It seems to me that if negligence, inadvertence, disobedience etc on the part of Mr Newstead could be reasonably foreseen, then in the context of the circumstances of this case, what was being reasonably foreseen was that his negligence, inadvertence, disobedience, etc would result in conduct that placed him under exposed roof. Only in this way can the negligence, inadvertence, disobedience, etc and its foreseeability have any meaning or content.
The defendant's submissions attack the prosecutor's description of the risk. It was submitted that the risk particularised was the risk of injury to Mr Newstead on 14 August 2010. It was submitted that it was impossible to divorce that risk from Mr Newstead's presence under the roof. That much may be correct, but it must be remembered that the risk of injury to Mr Newstead did not depend on his whole person being under the exposed unsupported roof. The submission goes on to add that that was a risk created by Mr Newstead walking out underneath the roof that fell. There are two flaws in that submission.
1. The risk was already created before Mr Newstead "walked" out under the roof. The risk might have needed his presence there to result in injury, but it could not exist if there was not the potential for roof fall. Even on the defendant's analysis, there are two parts to the risk. The first part is the risk involves roof failure. The second part is the presence of a person, Mr Newstead, under the roof.
2. The evidence does not support that Mr Newstead walked out under the roof and I reject that he did so. He, or some part of him, had to be there for injury to result. It does not follow that he walked out there.
I reject also the defendant's submission that Mr Newstead exposed his whole body to exposed roof.
The defendant asserts in its submission that the prosecutor has shifted her case in a number of respects. One is to attempt to shift the case from one related to unsupported roof to one of exposed roof. I do not understand there to be any shift. The roof was both. It was unsupported. It was exposed. That was inevitable with a tip-to-face span of 1.5m. I did not understand there to be any argument about this.
One of the defendant's submissions was that it had developed a robust health and safety system [126]. This submission was developed at some length, especially over [309] to [365]. It is not my task to make a ruling on the soundness or otherwise of the defendant's health and safety system. My task is to determine whether the defendant was in breach of its duty on 14 August 2010 to ensure the health, safety and welfare of Mr Newstead and, in the course of that, to consider also the defences raised by the defendant.
I now deal with each of these particulars in turn.
The evidence, which I accept, is that the maingate cutter drum picks were sufficiently worn to be changed on the previous shift and they could have been changed in the maingate road and on the previous shift and they were not.
The failure to change the picks on the previous shift when the shearer was in the maingate road was a significant contribution to the risk. The defendant submitted that the prosecutor led no evidence as to the state of the strata at the maingate gate road. That is so as to the specific site at the maingate road on the previous shift. There was, however, ample evidence that the roof in the gate roads throughout the mine was supported roof and I infer that to be the case in respect of the maingate end on the previous shift. Changing the picks there would have reduced the risk of injury without necessarily ensuring Mr Newstead's safety.
In a situation where Mr Neild identified that the opportunity was available to change the picks on the previous shift, the defence of "not reasonably practicable" can hardly be made out.
The defence under s 28 is not made out.
The defendant says that a formal risk assessment was not required. An informal one would suffice and Mr Power undertook an informal assessment. The defendant adds that the failure to do it goes nowhere because it is only a precursor to further action.
The defendant also had in place systems indicating when a risk assessment could or should be undertaken.
The "Take Control Risk Assessment Tool" was a process whereby operational personnel were expected to conduct a pre-task risk assessment and to identify and deal with risks. I do not think this advances the prosecution case. This was a process directed to operational personnel rather than supervising personnel.
A JSA was another process. Mr Power agreed that the pick changing in this case was not going to be a normal operation and that no JSA had been undertaken. Later, he said he was not aware of one (T1789.35). Mr Power said that a JSA would be done when a job or procedure had been changed, not when it had been done numerous times before (T1807.35). That would mean it ought to have been done in this instance. His evidence in this regard that he had done this job numerous times before is incorrect if he means that he had changed picks numerous times before in circumstances where Huesker mesh was being used and resulted in the chocks not being able to be advanced with the result that there was a much larger tip-to-face distance than normal. He gave the following evidence.
Q. And that was part of the role of a deputy, was to where there were different circumstances to assess formally or informally how the work could be done safely in those circumstances?
A. Yes …
(T1808.25)
He agreed that the presence of Huesker mesh meant that circumstances were different to normal. As deputy he should have made an assessment of the circumstances.
The hazards posed by the presence of Huesker mesh and all that flowed from that including the inability to advance the chocks, the risk of the cutter drum getting caught in the Huesker mesh, the increased tip-to-face distance, the inability to have the cutter drum fully under supports meant that a risk assessment should have been performed. It should have been a risk assessment directed to the risk of roof failure.
A "Take Five" was another process. It was a mini risk assessment. Mr Power agreed it had not been done.
There was no formal risk assessment taken on the kind described in the particular.
It is true that a risk assessment is only a precursor to taking action, but the point is, its intent is to lead to action. A proper assessment requires that its results be communicated and, if necessary, acted upon.
Mr Power's risk assessment was flawed fundamentally because having assessed, he did not convey the revealed risk to those who were going to do the task. A proper risk assessment would have included the risk that arose in the form of unsupported roof arising from the inability of the supports to advance. It would also have included an appropriate control measure, roof bolts being the most obvious one.
Had a proper risk assessment been carried out, I infer that its recommended control measures would have been implemented. This is not speculation. It is common sense. It defies common sense to suggest that workers, having been advised by the deputy of the risk and directed to take control measures, would have ignored that. The risk would have been minimised even if not necessarily eliminated.
Undertaking a risk assessment in these circumstances was a simple and quick task.
Mr Neild gave evidence (T1662.36) that it was totally impractical to have performed a risk assessment for each and every one of the tasks occurring during the bolt-up phase. It would take many months. That misses the point. This was a process where, in a system that allowed cutter drums to be re-picked out of a gate road, the presence of Huesker mesh was going to create hazards of a kind in changing picks that were hazards of a kind not normally encountered.
This is not a case of impracticability on the basis that the obligation would impose on the defendant the task of carrying out a risk assessment for each and every task carried out on the mine numerous times a day. This was a "one-off". It was an unusual situation. There can be nothing onerous or impracticable in requiring the defendant to have carried out a risk assessment in this situation.
Further, this so-called impracticability did not stop Mr Munro requiring it in his tool box talk form. Still further, a JSA was undertaken in relation to the task of re-picking the tailgate cutter drum on 8 September 2010 (Exhibit K, Tab 9).
The defence under s 28 is not made out.
Had proper inspection been carried out, the hazard posed by exposed roof with a tip-to-face distance of about 1.5m would have been observed and acted upon. Secondary support would have been implemented with a significant lessening of the risk. The failure to inspect properly was a major and significant contributing factor to the hazard and the incident.
The defence under s 28 is not made out.
I accept the defendant's submission that if Ms Summers was wrong in including Exhibit K, Tab 48 in response to the inspector's notice, then the the document may be ignored.
In considering whether or not Ms Summers was wrong, it is relevant to note that she was not called to give evidence. She could have given evidence about the circumstances in which she supplied this document in answer to the inspector's requirements. She was doing so on a serious matter in respect of which there are penalties for failure to comply with the notice and for giving false or misleading information. I am entitled to weigh this in considering whether Ms Summers was correct when she supplied the document in answer to the inspector's request which was,
"Did the company have written procedures and/or instructions for the tasks that Mr. Newstead was undertaking at the time of the incident? If yes, list such documents." (Exhibit K, Tab 52, at p990)
Against that I weigh Mr Munro's evidence that the document applied to roadways only together with the circumstances in which the document came into being and its content.
Mr Munro said the document was the Mine's way of complying with regulation 32 of the Coal Mine Health and Safety Regulation 2006. The document itself says that and also that it satisfies the requirements of ss 35 and 36 of the Coal Mine Health and Safety Act 2002. That of itself is neutral.
Section 35 provides:
"(1) If a risk from mining at a coal operation arises from a major hazard to which the Subdivision applies, the operator must establish and maintain a major hazard management plan for each such major hazard as part of the health and safety management system for the coal operation.
(2) In addition, an operator must establish a major hazard management plan for each major hazard identified by the operator in the operator's assessment of risks arising from the coal operation carried out in the preparation or implementation of the health and safety management system for the coal operation.
(3) A separate major hazard management plan must be prepared for each major hazard."
It will be seen that s 35 (1) and (2) require a plan to be established. It is to be established for "each" major hazard. Subsection 3 requires a "separate" plan to be prepared for "each major hazard". The normal reading of this would be that for each hazard, there needs to be a separate and individual plan. A plan should not have content relating to multiple hazards. There is good sense in this. One of the purposes of the plan would be for people in operations to access them to ascertain information relating to a particular task. If several tasks are mixed up in the plan, the possibility of confusion arises.
Section 36 does not assist on this point.
Regulation 32 also does not assist. It covers different subject matters, roadways being the principal one. It sets out what must be included in the plan.
The document then should be a document about one subject matter. Mr Munro says Exhibit 48 is about roadways and there can be no doubt about that. Whether it is about more is contentious.
There are parts of the document that are capable of applying to pick changing e.g. clauses 2, 4.1.3, 5, 6.2.6, 6.2.6 (b), 6.2.6 (c), 7.8, 7.12, 7.14, 7.15.
Clause 2 in the Introduction provided:
"The Strata Failure Management Plan has been introduced at Beltana Highwall Mining operations as part of the Mine's Safety Management System to effectively manage road stability during the roadway development and Longwall extraction process."
(Exhibit K, Tab 48, p800]
The defendant's submission is to the effect that the introduction is correctly understood if the word "during" is added before "longwall extraction process". I think this is correct.
At [574] of the defendant's submissions there is a submission as to the meaning of clause 32 of the regulation. It is somewhat at variance with what I have said at [156] above. Further, at [580] of its submissions, the defendant has referred to a more limited number of clauses than those I have referred to at [160]. The differences are of no real moment. I accept the thrust of the defendant's submissions from [570] to [592]. The result is I do not think the document does apply to the work that Mr Newstead was doing at the time of the incident.
Should I be wrong on this approach, the case made is that neither Mr Neild nor Mr Power made any reference to the SFMP. The relevant failure appears to be a failure to comply with clause 6.2.6(b) which provides
"Safe Work Practices
Prior to an activity commencing where people may be exposed to failure of unsupported roof or rib (e.g. working on the face side of the Longwall AFC) and a JSA has not been developed to manage that condition, the following practice shall be adhered to:-
…
(b) Normal Roadway/Face Conditions
At least two (2) experienced employees must inspect the site and check that the appropriate level of support is installed."
(Exhibit K, Tab 48, p 804).
The defendant submits that Mr Power and Mr Newstead inspected. However, the clause in addition requires "and check that the appropriate level of support is installed". The appropriate level of support was not installed. For reasons already given in relation to other particulars, this was a task that could easily have been undertaken. The failure to do it was a significant cause of the risk. The defence under s 28 is not made out.
For reasons given particularly from [154] to [162], I do not think the prosecution succeeds on this particular.
The information set out in [72] to [74] dealing with knowledge and experience is appropriate here.
Mr Newstead had not received information, training or instruction in respect of the procedures in Exhibit K, Tab 2 and Exhibit K, Tab 7. He did not know of these procedures. Again, had he, it would have been teaching him something he already knew and, in this context, that was to be alert to hazards arising from exposed roof, to inspect the work area where there was exposed roof and, if thought appropriate, provide or arrange for secondary support. Had he been taught about the content of Exhibit K, Tab 2 or Exhibit K, Tab 7 at the beginning of his employment, or in some safety meeting, it would not have added significantly to his store of knowledge.
All this raises the question as to what information and training the defendant could have given to Mr Newstead that he did not already have. To have told Mr Newstead he could do a JSA for a particular task would be to tell him something he already knew. To tell him about hazards and control measures for particular tasks would be to tell him about matters he already knew. To have taken him through the content of Exhibit K, Tab 7 would have been to take him through something he already knew.
At the particular level, however, there was a difference in this case. The difference was that the supports could not be advanced. It is too facile to say that was known to Mr Newstead. It was known also to Mr Neild and Mr Power. Further, Mr Power saw the result of that being the whole of the expanse of the exposed roof. This was, therefore, a pick changing situation with a difference. In my view, it was not good enough for a supervisor spotting that difference with its inherent risk simply to leave it to his crew operators to deal with it, especially considering the high degree of risk that the roof might fall and the potential consequences if it did. It was not satisfactory to proceed on the basis that even if the roof fell, nobody could be under it or sufficiently near it to be injured by the fall. Having spotted the extent of the exposed roof span, Mr Power should have conveyed that information to the crew with an instruction to roof bolt before undertaking the pick changing.
It is not mere speculation to link this failure causally to the risk. Common sense may be used. If any worker, Mr Newstead included, was informed that a worksite they were about to work in had an exposed roof span of 1.5m and was instructed to roof bolt, it may be safely inferred and I do in this case, that they would roof bolt. If that had been done, the risk to Mr Newstead would have been significantly minimised without necessarily having been eliminated.
For reasons given here and earlier, the failure to inform Mr Newstead of the hazardous conditions and instructing him to roof bolt was a significant contribution to the risk and, for reasons given here and earlier, the defence is not made out.
It is evident from what I have said that the provision of the required information to Mr Newstead would have been a reasonably practicable step to take. The submission of the defendant that if it had to instruct every employee of every risk before they did anything, especially in circumstances where the employee was fully trained and knew of the risks, the court would be placing a duty on the defendant [682] and to all employers in like position that would be so high as to be unworkable, is not applicable here. Here, the supervisors were present. Here, Mr Power inspected. The defendant knew, or at least had information that informed it, there was a high risk of roof failure. Much of the defendant's submissions on this point proceed on the basis that it would be impractical for the defendant to run the mine if Mr Newstead had to be informed and instructed on all hazards he might meet. That is not the case here. This time, the defendant was aware of the hazard of roof failure.