On 16 March 2013, Mr Junk was fatally injured on a mine site near Cobar. He was riding in a large steel bucket, known as a "kibble". The kibble was being raised through a platform. The aperture through which the kibble was to pass had a diameter of 1.68 metres. The kibble had a diameter of 1.61 metres. Mr Junk's head was outside the confines of the kibble as he was seeking to communicate with a worker and his head was caught in the pinch point between the kibble and the platform as a result of which he sustained his fatal injuries.
The operator of the mine was Cobar Management Pty Limited. It had contracted with the defendant for the defendant to undertake works to extend the mine's No.1 shaft to a depth of 1500 metres below the surface.
The defendant is a mining contractor that provides underground drilling and ground support services to mining operators. Mr Junk was an employee of the defendant.
[2]
THE CHARGE AND PLEA
The defendant is charged with an offence under s 32 of the Work Health and Safety Act 2011 in that it was under a duty under s 19(1) and it breached that duty.
The defendant has pleaded guilty and is convicted in respect of the offence charged.
[3]
THE EVIDENCE
The prosecutor tendered the following evidence:
1. Amended Statement of Facts (Exhibit PX 1);
2. Agreed Tender Bundle (Exhibit PX 2).
There are also two victim impact statements. They were marked 1 and 2 for identification and are to be treated as part of the evidence.
The defendant tendered the following evidence:
1. excerpts from Mine Safety records of interview of Messrs Perry, Periera, Third, Barclay and Elvey (Exhibit DX 1); and
2. a letter of 15 July 2016 from Henry Davis York to Clyde & Co (Exhibit DX 2).
The defendant also relied on the following affidavits:
1. Kale Ross of 12 July 2016;
2. Nicolas Breheny of 12 July 2016;
3. Sean Henley of 6 July 2016; and
4. Grant Coad, undated.
I was informed that members of Mr Junk's family were present. I was also informed that Mr Breheny and Mr Ross were present.
[4]
THE FACTS
This case has received evidence of some different mining techniques, detailed operation of the dual stage, kibble and winders and work processes undertaken on the day leading up to the incident. To determine this matter, it is not necessary to delve into the detail of those matters. I will be covering the operation of the kibble only insofar as it is necessary to determine the matter.
The extension of the No.1 shaft was to be undertaken using a raised bore and shrink strip and line technique. Work commenced, but the geological and geotechnical conditions were such that that technique was not viable. Different processes were undertaken before the technique finally settled on was used. That has been described variously. One way is the blind sink technique.
The blind sink technique involved design and installation of a structure comprising two powered winding systems which attached conveyances. One conveyance was a dual platform stage and the other a kibble. The stage consisted of upper and lower platforms about four metres apart. The kibble was able to pass through the centre of the stage. It was 1.63 metres high and 1.61 metres in diameter. It could carry up to five people.
The blind sink technique was a known and used mining procedure (Exhibit PX 2, tab 32, Breheny affidavit [56] and Coad affidavit [33], [35]).
Powered winding systems cannot be used without a current design registration issued by the appropriate government department. The design registration is a process that assesses the design and performance of the plant to a specified standard. The aim is to ensure that the plant is safe to operate.
The defendant applied to the appropriate department for design and plant item registration. A competent person was required to verify that the design complied with the standards set out by government regulation. Mr Gearing from Gearing & Associates was retained for this purpose and prepared a report, the Gearing Report.
In December 2012, Mr Gearing provided a verification statement in relation to compliance of the winders for the stage and kibble with the government design registration requirements and a statement that the plant had been inspected by a competent person and was safe to operate. Mr Gearing's statement noted that his views were subject to the conditions outlined in the Executive Summary Conditions of the Gearing Report and were conditional, amongst other things, on the longer term tasks being completed within six months. They were expressed as follows:
The application is subject to the conditions outlined in the executive summary conditions of GEAMM786970csa safety audit and commissioning report
Note Registration is conditional on the identified short term tasks in this document with the longer term tasks being completed within 6 months.
(Exhibit PX 2, tab 16 [4])
The longer term tasks included "Consider also the smaller personal injury risks such as outlined in 8.3 (nip points between kibble and stage)" (Exhibit PX 2, tab 15, p7.10) At p21 of the Gearing Report (Exhibit PX 2, tab 15), Mr Gearing included the following, "Consider raising potential risk of pinch points between kibble and stage during operation".
The Gearing Report thus suggested that the defendant had six months to consider the very risk that existed in this case. That, however, was for departmental purposes only. As it turned out, the incident happened within that six month window. That suggestion in the Gearing Report could not affect the defendant's obligation under the Work Health and Safety Act and the defendant does not suggest that it does. That obligation was one that existed independently of and unaffected by that report.
The defendant provided evidence (Coad affidavit at [32]) that if it had further addressed the issue after receipt of the Gearing Report, it is not likely that it would have adopted any of the measures that were suggested in [15] and [16] of the Summons. These measures are set out in [38] hereunder. This is quite evidently because it would not have thought of them just as no one in the industry had apparently thought of them before.
On 19 December 2012, the Department provided Exemption Orders to the defendant in relation to the powered winding systems for the stage winder and kibble winder. The orders included a schedule which included the following:
2.6 The recommendations as set out in 4.2 of the Gearing Report GEAMM786970csa dated November 2012 must be addressed within six months and a report verifying they have been completed must be forwarded to the Department.
On 21 December 2012, the Department issued a NOTICE OF REGISTRATION OF PLANT ITEM (POWERED WINDING SYSTEM) for the winder for the kibble and the stage.
The mining infrastructure installed and used at the mine in the upper shaft was similar to that in the lower shaft where the incident occurred and presented the same risk (Breheny affidavit [56]-[61]). The infrastructure was used in the upper shaft from 5 April 2012 without incident. In mid June 2012, a departmental officer tagged out the kibbles because of issues with footholds (Breheny affidavit [64]). No recommendation was made about the risk like the one that existed in this case (Breheny affidavit [65]).
An identical platform stage had been used since 2007 on two shaft sinking projects in Australia without incident. They were projects by Ballarat Gold Fields and BHP (Breheny affidavit [33]-[44]).
Workers were well aware from training and common sense of the need to stay wholly within the confines of the kibble. That is evident from interviews conducted with Mr Perry, Mr Periera, Mr Third, Mr Barclay and Mr Elvey (Exhibit DX 1).
Some excerpts from those interviews are worth noting.
(1) From Mr Perry's interview:
Q107. … So is he [ie. Mr Junk] a guy that would have been, normally, would have put his head out, do you think?
Ans.
No. No. It's not something that's, not something you do. 'Cause there's no room in between, you don't put your fingers or any part of your body outside of the kibble, especially going through the, like he knows. I don't know why, don't know.
(2) From Mr Third's interview:
Q982. So do you recall at other times just seeing guys might have had their arms leaning on the edge of the kibble?
Ans.
To tell you the truth I haven't, I haven't noticed that.
Q983. Okay. Okay. And so in terms of, in terms, of that not putting your body parts outside of the kibble is, you known and the training you've received, has there been any emphasis on not, you know so let me put it another way so I'm sort of not putting the words in your mouth. In terms of other instruction you received is, is there a general instruction about where you, you know you should put your hands and, and yourself when you're in the mine in general terms?
Ans.
Well you, you know same with a vehicle, you keep everything inside it you know, other than that…
Q984. Yeah so is that stressed by the mine?
Ans.
Well I think that's you know, it was just a standard, a standing thing you know…
(3) From Mr Barclay's interview:
Q361. Okay. So what instructions have you been given about riding in the kibble? And aside from the training that you've undertaken have you been given verbal instructions about riding in the kibble? This is at the time of the incident or prior to the incident?
Ans.
Yeah we always get reminded, yeah don't put body parts outside the kibble and especially when you're going through the stage and…
On 22 February 2012, Mr Junk had specifically acknowledged a need to remain wholly in the kibble at all times (Exhibit PX 1, [70]).
[5]
THE SENTENCING PROCESS
I bear in mind several matters. I bear in mind the purposes of sentencing as enumerated in s 3A of the Crimes (Sentencing Procedure) Act 1999. I bear in mind the purposes of the Work Health and Safety Legislation, in particular ensuring the safety, health and welfare of workers and others on workplace premises. I bear in mind any aggravating and mitigating factors, including any mentioned in s 21A of the Crimes (Sentencing Procedure) Act 1999 so far as any of those may be relevant.
I start my analysis with a consideration of the gravity of the offence. This may be determined in part by the foreseeability of the risk of injury, the foreseeability of the consequences of the risk coming home and the measures available to avoid the risk.
Foreseeability of the risk is clear. In fact, it was foreseen by the defendant and addressed by it. I do not need to deal with the evidence or submissions that sought to establish this point.
I accept the defendant's submission that though the risk existed and the occurrence of fatal injury was foreseeable, the probability of such an incident was low. This is supported by industry history, the defendant's history, the issue of warning, common sense and the understanding by the workers of warning. That the understanding was clear is demonstrated by the material in Exhibit DX 1. In Mr Junk's case, it is heightened by the fact that he was a shift supervisor and responsible for the supervision of the defendant's "shift crew A" on the project.
The mining method used in this case was used in mining elsewhere and the only control for this risk was a procedural control. The controls specified in [15] and [16] of the Summons, and summarised in [36] hereunder, were not utilised elsewhere. The defendant submits that this supports the case that these safety measures had not occurred to others in the industry. That submission is supported by the evidence and I accept it. This is not a submission that justifies or seeks to justify unsafe conduct on the part of the defendant because unsafe conduct was industry practice. It is a submission that, despite all its safety procedures, the controls mentioned in the Summons had not occurred to it because of a lack of imagination and that in addressing the issue by its procedural controls it thought it had that issue covered.
Also no engineer or government inspector or safety expert in the industry, aware of the practice used in this case, had ever made any suggestion that anything other than a warning of the nature given in this case was required. This extends to overseas as well as Australian mines.
The defendant also seeks to obtain support from a gap analysis report, Exhibit PX 2, tab 19. This was a report dealing with a change in the mining processes that had to be adopted because of the geological and geotechnical difficulties. A team was assembled for what was a "gap analysis/risk assessment". The members were all familiar with the mining operation in question. There were 27 members of the team. Between them they had over 500 years of mining experience. The analysis is described in the Coad affidavit as "one of the most extensive risk assessments I have been involved in". The gap analysis specifically considered the risks that needed to be assessed as part of the change in methodology to the adoption of the blind sink method (Exhibit PX 1 [62]). It missed the risk the subject of these proceedings. Paragraph 25 of the Coad affidavit states "During the gap analysis workshop the hazard of pinch points created by interaction between the platform stage and the kibble was not identified nor discussed". It is not surprising in the circumstances, therefore, that there was no suggested control. The gap analysis provides some support for the defendant's submission that additional controls did not occur to 27 experts with over 500 years of experience, but it is relatively slight. It would have more impact if it had identified the risk and then failed to recommend any further control than the one that was in place at the time of the incident.
There are various documents that deal with the use of kibbles as conveyances of personnel without those documents having suggested any control mechanism of the kind now specified in [15] and [16] of the Summons. Those documents are MDG No.33 October 1988 (Exhibit PX 2, tab 3); Guidelines Mine Winders Part 4 Shaft Sinking Winders (Exhibit PX 2, tab 8); Australian/New Zealand Standard 3784.4:2002 (Exhibit PX 2, tab 9) and the Gearing Report (Exhibit PX 2, tab 15). It is true that these documents had a focus and purpose that was not specifically directed to the interaction between the kibble and the dual stage, but the following may be noted:
the documents referred to kibbles as a means of conveyance of personnel;
some of the documents specified safety precautions in the use of kibbles as a conveyer of personnel (Exhibit PX 2, tab 3 cl 7.4.1, tab 8 cl 2.8.2, tab 9 cl 7.4.2) without specifying any of the controls specified in the Summons in this case. To the extent that those documents did not address the process used in this case they are of little, if any, assistance;
not all these documents referred to the kibble in use in this case or the system in use in this case. The Gearing Report did at pp7.10, 21.01. and I have already dealt with that.
Foreseeability of the consequences of the risk materialising included serious injury and death. That foreseeability was clear.
Measures were available to the defendant to minimise the risk. Measures are set out in [15] and [16] of the Summons. Those measures comprise:
mesh webbing;
affixing a barrier to the kibble. The evidence did not develop whether this should have been anything different to the mesh webbing;
providing a designated signalman;
providing a specific signal identifying when workers were using the kibble as a means of conveyance;
providing mandatory stop and hold points during raising and lowering of the kibble relative to the location of the pinch points;
providing a flashing warning light to alert workers about the movement of the kibble through the kibble well;
providing an audible alarm to alert workers as to the movement of the kibble through the kibble well;
a documented safe work procedure that incorporated the measures referred to above.
The defendant submitted that implementation of the measures in [15] and [16] of the Summons was not a straightforward exercise. To some extent that submission does not sit well with the defendant's acceptance that it could and ought to have adopted these measures. It involved some design processes, assessment of other risk factors, time and cost. Nevertheless, I do not think those matters work in the defendant's favour because the occasion for those measures arose before the incident and had they been addressed then those difficulties subside when weighed against the risk and its potential consequences. I note the defendant was able to implement these measures within about two weeks of the incident.
The defendant had adopted a safety measure directed to the foreseen risk. It was a warning to persons using the kibble to keep body parts within it. That warning indeed was documented (Exhibit PX 2, tab14, p4, cl 5.2). The defendant submits, in effect, that the matters specified in [15] and [16] of the Summons are added "braces" on a belts and braces approach where the defendant had already a belt in place. That is so. It further submitted, and it is the only case made in the Summons, that the suggested measures would minimise the risk, but not eliminate it. Again, that is so. It should be noted, however, that the use of mesh webbing, signals and alarms would have such a significant effect in minimising the risk that it would in all probability be eliminated in most working situations.
The defendant does not dispute that the measures specified in [15] and [16] of the Summons could and should have been adopted. It submits, however, that it did have a safe system in place, though acknowledging it could have been safer and that these "braces" had not occurred to it before the incident, not because of any lack of attention to safety, but because it simply did not think of them.
It is not in doubt that prior to the incident the defendant was safety conscious and had an extensive system in place for health and safety. The defendant's safety systems in place at and before the incident are set out extensively in the Ross affidavit from [33] to [64]. There is no need to detail that material. It is not in doubt that its processes were extensive. Briefly, it may be noted that its approach to safety was project specific [47], processes were supervised and monitored [58], processes were reviewed and audited [62].
The defendant's thinking that its warnings and common sense were good enough to cover the risk in this case was well-founded in industry practice, in the lack of any suggestion from anybody to the contrary, and in the understanding of the workforce. In this regard, however, this thinking was deficient, but not for the want of attention to safety. It was more in the nature of a want of imagination.
Risk exposing somebody to the possibility of serious injury or death is serious. In the overall spectrum of grades of seriousness, however, I think this case falls at the low end.
General deterrence needs to be factored in, particularly bearing in mind that other facilities do utilise this system of mining and it is a high risk industry. To some extent, but I think only slight, general deterrence as a factor is ameliorated by the fact that another mine which used a similar process on a project in Western Australia has not completed a shaft project where personnel travel in a kibble through a stage kibble well subsequent to the completion of that project in July 2012 and "after the incident at the CSA mine on 16 March 2013". Fully enclosed conveyers are now used (Henley affidavit [7]).
[6]
ORDERS
In all the circumstances of the matter, I think an appropriate penalty to apply after allowing a discount of 25% for the guilty plea is the sum of $75,000.
The defendant is convicted and fined the sum of $75,000 with a moiety to the prosecutor.
The defendant is to pay the prosecutor's costs as agreed or assessed.
[7]
Amendments
20 September 2016 - paragraph [53] - changed "Jody" to "Jodie"
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: 20 September 2016
I take into account specific deterrence, but not as a substantial factor. This is for a number of reasons. The defendant's pre-incident attitude to work safety was exemplary and its implementation of safety mechanisms, but for this risk, was also exemplary. Its response to the incident is a further manifestation of its attitude to safety. If the defendant were engaged in further shaft sinking operations requiring a kibble, it would likely not use open top kibbles for transporting personnel, but use other processes (Breheny affidavit [102]). Following the incident, the defendant immediately remedied the breach. It undertook the control measures specified in the Summons. It has undertaken other more extensive reviews (Ross affidavit [84], [89], [90]). Measures implemented since the incident are set out in some detail in the Amended Statement of Facts (Exhibit PX 1 [104] - [131]).
The injury caused was plainly substantial and this is an aggravating factor - Crimes (Sentencing Procedure) Act 1999, s21A(2)(g).
The defendant has no prior convictions. The evidence does not disclose for how long it has been operating. Mr Breheny's affidavit at [4] would suggest that it has been doing so for ten years at least. It has been doing so in a high risk industry.
The defendant is an organisation of good corporate standing and character.
The defendant has expressed remorse and accepted responsibility for this incident. That is partly manifested by its plea of guilty. The circumstances of the plea in this instance warrant a discount to the maximum of 25%.
The defendant is unlikely to reoffend. Its attitude to safety demonstrates this.
The defendant has cooperated throughout in the course of the investigation and prosecution.
The defendant will be faced with a large bill for the prosecutor's costs in this case. It is likely to be in the order of $250,000 (defendant's written submissions [30]). There is no dispute that the defendant will have to pay costs is a matter that can be taken into account. It can certainly not be taken into account on a dollar for dollar basis, but merely as one of the factors that needs to be borne in mind in considering all the relevant circumstances.
The maximum penalty that can be imposed for this offence is $1,500,000. That plainly could be applied only in the most extreme of cases. That figure, however, is an indication that the legislative intent is that offences under the Act are to be treated seriously.
Two victim impact statements have been provided. One is from Judy Junk and Jodie Junk-Gibson. They are respectively the mother and sister of Mr Junk. It is plain that the loss to them and to Mr Junk's nephews by reason of his death has been profound. This Court extends its condolences to them. There is also a statement from Kylie Paget. She and her two daughters lived in a family relationship with Mr Junk. It is plain that the circumstances in which she was informed of Mr Junk's death were shattering and left her and the daughters shattered for some time. The effects upon her and the daughters have also been profound and at times devastating. Refreshingly, at the end of her long statement, there is a glimmer of some improvement. This Court also extends to her and her daughters its condolences on their loss. I do take into account those statements as to the impact of Mr Junk's death on the family members.