Inspector Regan v Pybar Mining Services Pty Ltd

WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd (2000) 95 IR 383 WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248 at 257 WorkCover Authority of NSW (Inspector Twynam-Perkins) v Mayne Lighting Pty Limited (1995) 100 IR 247 Texts Cited: 1981 Parliament of New South Wales, Report of Commission of Inquiry Into Occupational Health and Safety (3 June 1981) Category: Principal judgment Parties: Robert William Regan (Prosecutor) Pybar Mining Services Pty Ltd (Defendant) Representation: Counsel Mr D O'Neil of counsel (Prosecutor) Mr M Shume of counsel Mr GJ Hatcher SC with Mr SR Coleman of counsel (Defendant) Solicitors Crown Solicitor's Office (Prosecutor) G J Boyd solicitors (Defendant) File Number(s): IRC 1920 of 2008

Judgment 1Pybar Mining Service Pty Ltd ("the defendant") operates a consultancy business which provides a range of services to the mining and civil sectors throughout Australia. 2On or about 1 April 2006, the defendant entered into a contract with Cobar Management Pty Ltd ("CMPL") to develop underground infrastructure within the QTS South Area of the CSA Mine at Cobar. The major Project involved the construction of development works and decline access to the ore bodies located in the QTS South ore system. 3On 1 November 2006, Mr Mark Haertsch, who was employed as a fitter with the defendant, determined that an underground mine development drill rig, commonly referred to as "the Jumbo" had an oil leak which was coming from an o-ring on the forward overcentre valve on the right hand side of the manifold of the Jumbo. This was located on the feedrail assembly which was in a horizontal position. An overcentre valve is a normal component for a hydraulic system. They can be found in cranes, earthmoving machinery and in all the various brands of Jumbos. 4The Jumbo is used for drilling horizontal blast holes and vertical and horizontal ground support holes and is also used for the installation of ground support. 5Mr Haertsch removed the overcentre valve which caused the uncontrolled movement of the right hand side feedrail of the Jumbo to roll in a clockwise direction towards the side wall, due to gravity, and the fact that there was no longer equalised pressure to retain the feedrail in its original position. The estimated weight of the right hand feedrail assembly was 750 kilos. The Jumbo feedrail is controlled in its movements in part by the overcentre valve, which is designed to protect an uncontrolled movement of the feedrail. As the Jumbo feedrail rolled, it trapped Mr Gary Hammond, an experienced jumbo operator, employed by the defendant, against the side wall of the mine, causing severe crushing injuries, resulting in paraplegia. 6The defendant was charged with a breach of s 8(1) of the Occupational Health and Safety Act 2000 (" OHS Act ") in an amended application for order in the following terms: On 1 November 2006 at CSA Mine at Cobar in the State of New South Wales a mining workplace within the meaning of the Mine Health and Safety Act 2004 applies, failed to ensure the health, safety and welfare at work of all of its employees and in particular Gary Hammond contrary to section 8(1) of the Act. Particulars of risk: A. Employees were exposed to a risk of being struck and/or crushed by the feed rail assembly of a Tamrock Axera 7 S 260 Jumbo machine. Particulars of the failure: It is alleged that the following failings occurred in relation to work on the Tamrock Axera 7 S 260 Jumbo:

1. Failed to ensure a safe system of work was in place in relation to the task of removing/undoing an overcentre valve.
2. Failed to ensure the feed beam and rollover assembly was rested on the ground when removing/undoing an overcentre valve.
3. Failed to ensure Mr Hammond was kept clear of the feed rail assembly whilst a fellow worker was working on the overcentre valve.
4. Failed to ensure Mr Haertsch received adequate information, instruction and training in relation to the safe way to go about the task of removing/undoing an overcentre valve. 7The defendant entered a plea of guilty to the charge. The sentencing hearing commenced on 4 November 2009. It was adjourned, part heard, to 19 November 2009 when it was not finalised. It was again adjourned to 18 February 2010 and then again adjourned on 19 February 2010 when the matter was listed for a directions hearing on 12 March 2010. 8Subsequently, the defendant filed a notice of motion seeking to withdraw its plea of guilty and to have the application for order struck out. This followed the decision of the High Court of Australia in Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531. 9Backman J dismissed the notice of motion: Morrison v Pybar Mining Services Pty Limited [2011] NSWIRComm 1.

The evidence 10Mr D O' Neil of counsel, who appeared for the prosecutor, tendered an agreed statement of facts which stated: ... 2. At all material times Cobar Management Pty Limited (CMPL) managed and operated the CSA mine (mine) on behalf of the joint venture owners, Acelight Pty Limited and Isokind Pty Limited. 3. The mine is located approximately 11 kilometres north of the town of Cobar in the northwest of New South Wales. 4. Since 1965 the mine has extracted substantial quantities of zinc, lead, silver and copper but now focuses on mining copper, with a silver co-product. 5. At all relevant times the mine operated 24 hours a day, seven days a week. CMPL employed over 270 people, at the mine, and provided related employment for a further 240 others, the majority of whom were based in the local township of Cobar. Pybar Mining Services Pty Limited 6. Pybar Mining Services Pty Limited (Pybar) was incorporated in 1993. Pybar commenced operation as a consultancy business and since that time has extended its services to become a mining and civil contractor with its head office located in Orange NSW. 7. At all material times Pybar provided a range of services to the mining and civil sectors throughout Australia. 8. On 1 April 2006 Pybar was awarded an 18 month contract No CTR/530079 by CMPL for the provision of underground mining services at the mine. The contract included the supply of labour and equipment for decline and level development. The contract commenced on 1 April 2006 although the document was dated 31 August 2006. 9. The main focus of the development work was to provide decline access to the QR1 lens, a sub-vertical ore body extending from 9340 RL (relative level) to 9050 RL which is part of the ore body known as the QTS South system. Additional work included development for access to a series of stopes (ore extraction areas) on the 9300 level. 10. A summary of the activity to be performed by Pybar included: Horizontal incline and decline development Ground support (installation of split sets, rockbolts, cablebolts and meshing) Drilling and blasting Jumbo scaling and hand scaling of work areas Loading and truck haulage Backfilling of stope voids Extension of mine services (air, water, power, ventilation and communication and dewatering) into work areas Basic road maintenance Supply and maintenance of all Pybar plant and equipment Supervision of Pybar personnel Production of daily, weekly and monthly reports The Jumbo 11. Sandvik Mining and Construction Australia Pty Ltd (Sandvik) was the original equipment manufacturer (OEM) of the Tamrock Axera 7 S-260 drill, Pybar plant No. UJ22 (Jumbo). The Jumbo was supplied by Sandvik to Pybar in about January 2006 on a hire arrangement with an option to purchase. 12. The Jumbo is a rubber tyred, four wheel drive, diesel powered, centre articulated carrier, with two front mounted booms that each support a feed rail and rock drill. It has a separate powerpack for each boom consisting of an electric motor and hydraulic pump. The Jumbo is used for drilling horizontal blast holes and vertical and horizontal ground support holes and is also used for the installation of ground support. During these operations the Jumbo is stabilised by hydraulic jacks on each corner of the carrier, which rest on the mine floor. Gary Hammond 13. Gary Hammond was initially engaged by Pybar through a recruitment agency as a Jumbo operator on about 3 January 2006 and was subsequently employed on a full time basis by Pybar on 17 April 2006. Gary Hammond had some 28 years experience working in underground metalliferous mines and was an experienced Jumbo operator. Gary Hammond was inducted at the mine and had been assessed and certificated as competent to undertake a number of safe work procedures including for Jumbo operations and had received training in numerous risk and hazard analysis courses. Mark Haertsch 14. Mark Haertsch was employed by Pybar as a mechanical tradesman on 19 June 2006. Mark Haertsch was a qualified fitter and machinist of over 30 years experience, with post-trade qualifications in hydraulics and diesel mechanics. He had worked for several OEM's, mining companies and mining contractors both in Australia and overseas. Relevantly he had prior experience working on Jumbos including roles as a workshop fitter and shift fitter in underground mines. 15. Mr Haertsch's experience with underground Jumbos had predominantly been over the 2-3 years prior to the incident mainly at Ridgeway Goldmine Orange with two mining companies. 16. Mr Haertsch was inducted at the mine and had been assessed and certificated as competent to undertake a number of safe work procedures including maintenance work for the Jumbo and had received training in numerous risk and hazard analysis courses. 17. Mark Haertsch was initially engaged to work at Pybar's Parkes workshop and was later transferred to the mine where he worked in the underground workshop doing services and preventative maintenance. 18. About three weeks prior to 1 November 2006 (the date of the Incident) Mark Haertsch was moved onto the C crew roster as the shift fitter. During the time Mark Haertsch was on C crew Gary Hammond had been on holidays for one week. The Incident 19. On 1 November 2006, Gary Hammond attended for work at about 6:30am. At about 6:45am he attended a pre-shift communication meeting with the dayshift mining and maintenance personnel which dealt with safety, maintenance and operational issues. At about 7:10am Gary Hammond and the mining crew travelled underground via the shaft man-cage and then by 4WD vehicle to the 9200 level, arriving at about 7.30 am. 20. On that shift Gary Hammond was the designated operator of the Jumbo. On arrival at the 9200 level Gary Hammond completed the pre-start inspection on the Jumbo and then trammed (drove) the Jumbo to the 9260 stockpile work area, where he undertook bolting and meshing operations. 21. At about 9:35am bolting and meshing operations were completed and the Jumbo was trammed to 9275 access drive so that the loader could clean up the floor of the 9260 stockpile work area. After arrival at the 9275 access drive Michael Tye left the area and was replaced by Chris Hastwell, a Pybar employee and experienced miner. 22. Chris Hastwell's role was to assist Gary Hammond as the Jumbo operator offsider. Chris Hastwell was normally on the A crew roster but was relieving on the C crew roster as operators from C crew were on holidays. 23. After the cleanup of the 9260 stockpile was completed the Jumbo was trammed back from the 9275 access drive to the 9260 stockpile and the Jumbo was set up to commence face boring. 24. Gary Hammond completed a C-Safe (workplace inspection) for work at the 9260 stockpile. 25. During the course of the morning Mark Haertsch arrived to do the daily service on the Jumbo. Mark Haertsch inspected the Jumbo. There is conflict in the evidence between Gary Hammond and Mark Haertsch as to the conversation between them. Chris Hastwell indicated that he heard Mark Haertsch speak to Gary Hammond about the scheduled service and the oil leak on the right hand side. Mark Haertsch commenced the scheduled service and during this task attended to the oil leak. 26. Whilst Mark Haertsch was undertaking the scheduled service Gary Hammond was changing over a scaling rod, drill steel and other accessories on the right hand feed rail assembly. During this time Chris Hastwell set up a pump for dewatering the decline which was located approximately 15-20m away from the Jumbo. The electrical source for the decline pump was located at the foot of the steps below the operator cabin on the Jumbo. 27. Mark Haertsch identified and confirmed that the oil leak was coming from an o-ring on the forward overcentre valve on the right hand side of the Jumbo. The overcentre valve is located on the overcentre valve manifold. The overcentre valve manifold is located on the feed rail assembly which was in a horizontal position. 28. Mark Haertsch decided to remove the overcentre valve completely from the manifold to rectify the oil leak without consulting any other person. He had not previously removed an overcentre valve from the Jumbo. 29. Mark Haertsch initially cracked the overcentre valve to check if there was any hydraulic pressure behind the valve. When he was satisfied that there was no high pressure he continued to remove the overcentre valve from the manifold. 30. Whilst the overcentre valve was being removed from the manifold the feed rail assembly was in a horizontal position elevated above the mine floor. The removal of the overcentre valve from the manifold allows the feed rail assembly to rotate in the direction it is tilted unless it is supported. 31. When the overcentre valve was fully removed from the manifold the right hand feed rail assembly rotated clockwise due to gravity and the fact that there was no longer equalised pressure to retain the feed rail in its original position. The feed rail assembly rotated away from the position Mark Haertsch was situated and towards the side wall. The right hand feed rail assembly struck and trapped Gary Hammond against the side wall causing severe crushing injuries. The estimated weight of the right hand feed rail assembly was 750 kilograms. It rotated from the near horizontal plane to about 45 degrees. 32. [37] In respect to the location of Gary Hammond :Mark Haertsch stated in his interview of 2 November 2006: Q309: And from where you were standing how close would Gary have been to you when the accident happened? A: Oh about two to three feet. Q310: Quite close. A: Oh yeah, I suppose, yeah. Q311: And you were completely unaware of his presence? A: Totally unaware of it." 33. At the time of the incident Chris Hastwell was connecting a pump cable to the power outlet on the left hand side of the Jumbo adjacent to the canopy. When Gary Hammond was crushed Chris Hastwell heard a scream and then ran to the other side of the Jumbo and saw Gary Hammond pinned against the side wall by the right hand feed rail assembly. 34. Mark Haertsch and Chris Hastwell tried to move the feed rail assembly off Gary Hammond. Other workers then attended the scene. Mark Haertsch reattached the overcentre valve so that Chris Hastwell could operate the Jumbo control leavers to remove the right hand feed rail off Gary Hammond and release him. 35. Gary Hammond suffered severe injuries resulting in paraplegia. 36. When he was interviewed by the Inspector on 9 January 2007 Mark Haertsch suggested he should have put the machine on the ground. The reference to the machine was to the feed rail. When asked why he would lay the machine on the ground he answered: "Q32 It cannot go any further. I was sure the machine would not move. I was sure the machine would move the other way. I wasn't sure the machine would not move at all. I would have put money on it that the machine would not move at all and the way it was sitting it would have moved the other way and get caught up on itself". "Q33. Mark, did you consider seeking any assistance with the job before you undertook it? A: No. To me the job appeared to be a simple o-ring changeover." 37. [44] As Mr Haertsch said in his interview of 2 November: "Q317: So you didn't fully know it was going to happen? A: I didn't know how if was going to happen but I thought that well you got to be prepared. Q318: Yep, absolutely, so you didn't fully understand the intricacies of how the valve block was plumbed into the hydraulic line? A: No. Q319: So you didn't know exactly? A: Didn't know exactly what was going on but the thing is whenever you are drilling into pressure lines they are there for a reason, to hold pressure. But that is why you take it out slowly you see, if there is pressure on it you can feel if there is pressure on it, you can see if there is pressure on it. If there is pressure on it you just do it back up, find out where the pressure is coming from." 38. Mark Haertsch was then asked about set procedures to lower hydraulic components to the ground before a worker worked on them. He said: "Q397: And that's not a procedure is it to, there is no procedure to lower hydraulic components to the ground before you work on them? A: Not to my knowledge, I mean some jobs you do." Sandvik documents 39. Sandvik supplied Pybar with a copy of a maintenance manual for the Jumbo. 40. Specifically, the maintenance manual contained a section entitled "Operation and Maintenance, Hydraulic TB Boom". 41. The maintenance manual contained a section headed Hydraulic Cylinders Repair and Adjustment it refers to "overcenter valves" on several occasions. At page 3 of 8 under the section headed "3.1 Operation" it states: "Overcenter valves are one-piece components and they cannot be readjusted. Sets of seal rings (1) are provided. The four tasks of an overcenter valve are: If a hose connected to the hydraulic cylinder breaks, the overcenter valve acts as a safety valve. During drilling, the overcenter valve prevents oil flow from the cylinder to the oil tank. The boom maintains accurately the position to which it was moved to by using the boom control valves. When the boom is moved, the overcenter valve does not allow oil to flow from the return side until the pressure on the pressured side rises high enough. Boom movements are smoother and more accurate, and the boom's own weight cannot accelerate the speed movement. If an external force raises the pressure in the cylinder higher than the set value of the overcenter valve, the valve opens and lets oil out of the cylinder. This enables the boom to yield under external force, and mechanical damage to the boom can be avoided." 42. At page 4 of 8 there is a component diagram of a cylinder and it identifies an overcenter valve as one of the parts of a cylinder. 43. At page 5 of 8 under the section headed "5. Dismantling" it states: "Before starting to remove the cylinder, make sure the boom is properly supported, and any static loads of the cylinder are removed. Disconnect the hydraulic hoses to the cylinder and plug the open hose ends and the cylinder adapters." 44. Sandvik also provided Pybar with a Generic Risk Assessment Study for the Axera 7 Series Face Drills for use in Australian Mines, (Sandvik risk assessment) which was referable to the Jumbo. The Sandvik risk assessment was conducted by Risk Management International Pty Ltd in Mt Isa in August 2005. 45. Sandvik also had in place at the relevant time two safe work instructions (SWI) for removing and replacing the overcentre valves both underground and in the workshop. 46. Sandvik did not supply these documents to Pybar. 47. The Sandvik SWI set out the need for the boom arm to be either on the ground or supported during the defined task. 48. The relevant SWI listed alerts as "Death, personal injury or machine damage, crushing hazard". The insignia "Danger" (with a skull and crossbones warning with an exclamation mark inside the triangle) and "Caution" (with a circle with a diameter line given from approximately 10.30 to 5 on the clock face) are all listed under the "alerts". Pybar risk audit 49. Pybar had prepared a risk audit on the Jumbo. The risk audit made no reference to the maintenance manual which had been supplied by Sandvik but it made reference to the role of the OEM. 50. At page 24 the risk audit referred to the following Standard: "Provision should be made to mechanically support any hydraulically operated components when they are required to be in the raised position for maintenance." 51. In the column set aside for comments/control measures the entry was "compliant". In the risk rating column there was no entry. The document had not been completed at the time of the injury to Mr Hammond. Pybar safe work procedures 52. Pybar had an integrated safety management system at the mine. The safety management system relevantly included safe work procedures (SWPs). 53. The Pybar SWP documents included: SWPM021 - Tamrock Drills Daily Service SWPM004 - Isolation and Tagging SWPM013 - Repair Oil Leak SWPM007 - Service Drill 54. Whilst these safe work procedures referred in general terms to safety issues they failed to clearly specify the extreme danger workers could be placed in by movement of the feed rail assembly. 55. Furthermore, they failed to mandate support of the feed assembly and they failed to mandate other workers being clear of the feed rail assembly whilst work was being done, in particular, on the overcentre valve. 56. The safe work procedure for "repair oil leak" indicated that a JSA should be completed as identified and as required. 11Mr O'Neil also tendered the following: (a) the prosecutor's tender bundle which comprised two volumes of material as follows:

Evidence of Gary Hammond 12Mr O'Neil read an affidavit of Mr Gary Hammond and provided the Court with a victim impact statement of Mr Hammond. Mr Hammond stated that at the time of the incident he was employed by the defendant as a miner and Jumbo operator. He had over 28 years of experience in the mining industry. He commenced employment with the defendant's Project in the CSA Mine at Cobar on 17 April 2006. His position was classified generally as a miner but his main role was to operate the Jumbo super drills. 13On 1 March 2006, he undertook induction training at the CSA Mine. He was also given induction training by the defendant. During the course of his involvement with the Project, he said he was provided training in general safety underground, first aid, how to use the cage and the location of the refuge chambers. 14In respect of job specific training, Mr Hammond stated that he was given extensive training in how to operate the Jumbo and integrated tool carriers. This included completing the Sandvik Module Theoretical and Practical Operator Assessment, Tamrock Axera 7-260S Checklist. This assessment was provided by Tamrock and was essentially training in how to use the new Jumbo 22 which was the new model super drill. An assessment would also normally have been done by the defendant's safety officer. The training provided by Tamrock did not include the mechanics of the machine but was more geared towards providing general safety information and ground support. 15The defendant also provided training and assessed Mr Hammond's competencies through the Pybar Development Drilling Assessment Portfolio. For the purpose of this assessment, Mr Hammond operated the Jumbo 21, the same machine that was involved in the incident. The assessment included answering questions concerning the regulations and procedures that were in place for this piece of equipment, as well as an observation of him operating the machine. 16Mr Hammond stated that as far as he was concerned, Mr Paul Rouse ("Mr Rouse", the Chief Executive Officer of the defendant, had been "absolutely fantastic" towards him. He had helped retrain him as an employee and paid him a wage in addition to the money he received from workers compensation. This gave him a reasonable amount of money with which to live. He also gave him a vehicle to drive, although his general practitioner prohibited him from driving. Mr Rouse had driven the vehicle from Orange to Queensland, where Mr Hammond is now living. He stated that the defendant has been very supportive and he really doubted whether any other company would do as much. 17Mr Hammond stated that he felt as if the defendant was "like a family company" and that their safety was "spot on". He had not experienced any other incidents in respect of safety, with the exception of his accident whilst working for the defendant. In his opinion, having participated in many mine inductions, he believed that the defendant's inductions "were up there with the best with safety." Since the incident, the defendant requested Mr Hammond to review some of the safe work method procedures ("SWM's"), which demonstrated that the defendant was willing to take on board a miner's views. 18When the defendant obtained the contract for the decline in respect of the CSA Mine ("the Mine"), its employees were able to have their own safety meetings. Previously, such meetings had been linked with all workers at the Mine. The safety meetings provided by the defendant reflected, in Mr Hammond's opinion, the safety culture that the defendant put into its workforce. The meetings included updates on where each shift was up to, and what work was being performed. Mr Graham John Everett, an employee of the defendant, also contributed in relation to safety at the mine. If an incident occurred on another job site, even in Western Australia, Mr Everett would inform the employees "to not to go there". Mr Hammond stated that the defendant was different from other companies in that it actually asked the employees what they thought about safety and were happy to make changes based on the employees' comments. 19Mr Hammond stated that he would often be working around the Jumbo when it was being serviced, and on occasions helped the fitter complete the service. As a result of the incident, Mr Hammond proposes to go out and talk to workers about what occurred and how it has affected his life. Mr Rouse has been very supportive in this respect and the plan is for Mr Rouse and Mr Hammond to visit mines across Australia together. 20Mr Hammond stated that the shift boss used to visit three or four times a shift and provided advice such as whether extra bolts should be installed. Steps would be taken to ensure that all hoses and cables were hung up and that an operator was not letting the "offside go out under open ground". Steps were also taken to ensure that the operator had "the right gear". 21Representatives of the defendant's management, including Mr Rouse, Mr Brendan Rouse and Mr Shane Kennelly, would visit underground to ensure that Mr Hammond knew what he was doing. Mr Hammond stated that when he first worked for the defendant, Mr Rouse was very dubious about the new Jumbo. He did not want anyone to use the machine who was going to misuse or break it. Mr Hammond believes that he had the ability to properly operate the machine and that both Mr Rouse and Mr Brendan Rouse quickly came to that realisation. 22Mr Hammond was required for cross-examination. His evidence was that the defendant had made arrangements for him to attend the sentencing hearing. The defendant also flew Mr Hammond from Brisbane whilst he was still in hospital to attend a party at the Cobar Mine. 23During cross-examination, Mr Hammond gave evidence that he had expressed a view in his original victim impact statement regarding whether or not the defendant should have been prosecuted. He said that the Department had requested that he make a fresh victim impact statement that did not include his view in respect of whether the defendant should have been prosecuted. He agreed. This was the statement provided by Mr O'Neil. Ultimately, his first victim impact statement was tendered in the proceedings. I shall refer to it later in this judgment. 24Mr Hammond agreed that the defendant took a proactive approach in relation to having its employees understand what the defendant required in respect of a safe workplace. 25During re-examination, Mr Hammond's evidence was that one of the topics removed from his original victim impact statement was whether the defendant should have been prosecuted. His evidence was he did not believe that the defendant should have been brought before the Court. Another topic contained in Mr Hammond's original statement was whether he blamed the defendant for the incident. This was not included in his second version of the victim impact statement. A third topic contained in his original version but not the later version, was in respect of the attitude that fitters had towards miners. 26Mr Hammond agreed that he wished to deal with these topics, however, the Department had advised him that they were not relevant to the proceedings. Although he agreed to not refer to these topics in his second statement, his evidence was that upon subsequently learning that he was not obliged to make a victim impact statement at all, had he been aware of this fact at the time, he would not have made the second victim impact statement.

Evidence of the defendant 27Mr M Shume of counsel initially appeared for the defendant. Mr Shume read affidavits of Paul Spender Rouse, the Managing Director of the defendant; Mr Michael Blunt, the Acting General Manager for Prevision, a service company to the defendant, and Mr Graham Everett, the Operations Compliance Manager of the defendant. Each of the defendant's witnesses was required for cross-examination. Mr Shume also tendered a black and white photo of the Tamrock Axera 7 S-260 (the hydraulic Jumbo machine), and a colour photograph of the right feedrail rotation mechanism showing the overcentre valves. This photograph was also contained in the tender bundle. Mr Shume also tendered the assembly block from the Jumbo which included the overcentre valves. 28Subsequently, Mr GJ Hatcher SC appeared with Mr SR Coleman of counsel for the defendant.

Evidence of Michael Nathan Blunt 29Mr Blunt gave oral evidence, during which he identified the Jumbo machine, the boom, the drifters and feedrails and the overcentre valve. 30During cross-examination, Mr Blunt was unable to say over what period of time Mr Haertsch's competency was acknowledged by the leading hand and shift foreman, or the date that he commenced with the defendant. He agreed that there was nothing in writing in respect of the assessment of Mr Haertsch's competencies. Mr Blunt acknowledged that Sandvik had a specific safe work instruction ("SWI") in relation to the removal of the overcentre valve. Mr Blunt agreed that the servicing checklist included confirmation that a copy of the manufacturer's operating manual instructions was available for the Jumbo. His evidence was that there was no guidance in relation to mechanically supporting any hydraulic components of the Jumbo, and no reference to risk rating in the guidance notes.

Evidence of Graham John Everett 31Mr Graham John Everett, who is the Operations Compliance Manager of the defendant commenced employment with the defendant on 17 July 2000. He was appointed Operations Compliance Manager in October 2008. His role involves the design; implementation; sustainability; review and auditing of the defendant's operations throughout Australia for legislative and safety compliance; governance; internal and external training; operations compliance, to contracts; assisting operations in achieving compliance, and rectifying non-conformances. He reports to the Operations Manager. Mr Everett has been employed in the mining industry for over 30 years. He listed his qualifications and relevant experience. 32Mr Everett described the defendant as a diverse contracting business in development mining; mining production, mining services installation, chargeup (shotfiring): shotcreting; ground support, rehabilitation; road maintenance; production drilling, and earthworks. Since his commencement with the defendant. It has grown from a two site operation in New South Wales to a medium sized mining and civil contractor, conducting operations in most States of Australia. 33Mr Everett outlined details of the QTS Project that were also found in Mr Rouse's affidavit. Mr Everett estimated that a conservative spending on safety for the QTS Project in 2006 was $785,000 for staff safety resources and training, and approximately $400,000 on safety equipment and supplies. 34As part of the tender process for the QTS Project, CMPL conducted a comprehensive safety audit of the defendant's occupational health and safety, training, quality and compliance systems. This included a comprehensive audit of all safety, training and quality systems, providing evidence of systems implementation, systems compliance to legislation, providing evidence of compliance by employees, inspection of the defendant's existing underground operations, providing evidence of compliance to training, review of statistical performance for the preceding three years in relation to safety performance, and providing evidence and supporting documentation of all training programs. 35The defendant participated with CMPL in the development of a project specific QTS Development Safety Management Plan. All persons working on the QTS Project were required to operate under the plan. It drew on resources of both the defendant and CMPL and incorporated aspects of their safety health systems, policies, standards, procedures and objectives. The safety management plan was amended during the course of the contract through consultation with CMPL and effected by approval and signed off by the CMPL company representative. As at 1 November 2006, the approved safety management plan incorporated SWPM004, SWPM007, SWPM013 and SWPM021 procedures. Although the plan was project specific, the defendant still required its employees and sub-contractors to follow the defendant's core values and expected behaviours. The defendant's employees complete an induction separate from any site specific induction prior to commencing work with the defendant. 36Mr Everett emphasised the defendant's commitment to safety management and adherence to Commonwealth, State and site occupational health and safety legislation, standards, procedures, rules and regulations. He noted that the defendant has always remained committed to providing and upholding high standards in safety, training, employee welfare and has maintained a continuous improvement process. The defendant has been awarded preferred supplier status by leading corporations. The defendant is an active participant of national, State and regional safety and training organisations and review panels, including being a member of the Australian Mining and Metal Association review committee for the National Occupational Health and Safety Harmonisation review by the Department of Education, Employment and Workplace Relations; being a member of Central West Health and Safety Management Group; NSW Metalliferous State representative for Skills DMC; participating member of Metalliferous Industry Safety Advisory Committee of Industries and Investment NSW and its Review committee for MDG 5002 Use of Remote Control Mining Equipment Underground Metalliferous Mines. 37Mr Everett listed the defendant's core values and expected behaviours as set out in Mr Rouse's affidavit. He also outlined the tools used to obtain an overview of how expected behaviours are achieved in the workplace including weekly toolbox meetings; pre-shift communication meetings; training system; Take 5's; direct daily observations; alcohol and drug testing; pre-starts; inspection reports; non-conformance reporting; competency assessments; shift plods; review of hazard reports; incident statistics review; supervisory reports; audits; performance reviews; and management poor performance standard. 38Mr Everett made reference to the defendant's requirement for its managers to actively promote health and safety in their daily functions. Mr Rouse and Mr Brendan Rouse's day to day efforts to promote a safe workplace and safe systems of work include active involvement in developing safety; health and welfare plans; assisting in delivery of effective business information management practices; active participation in occupational health and safety audits of operations; review of incident reports; undertaking Take 5 compliance and verification approval required from board level for any significant changes to corporate safety management system; attendance at toolbox meetings; lead and commit to actions necessary for compliance to standards and the continual improvement process; regular site visits including pre-shift meetings; receipt of daily, weekly and monthly reports from all operations to which they provide feedback; and overseeing the defendant's administrative and contractual services. Mr Everett noted the defendant's quality management system is aligned to the requirements of Australian and international standards. 39Mr Everett noted the defendant's commitment to conducting business in accordance with the requirements of Commonwealth and State occupational, health and safety legislation and relevant standards; providing a safe and healthy workplace for all employees, contractors and visitors; involving and consulting with employees in the development, implementation and sustaining of safe systems of work; incorporating safety management into the company's business planning and goal setting processes; ensuring all safety management aspects remain relevant and appropriate by including safety reviews into the company's continuous improvement process; providing return to work and rehabilitation programs; providing ongoing health monitoring programs; setting realistic health and safety objectives and targets; holding employee's responsible and accountable for their safety as well as others, plant, equipment and/or facilities under their control; fostering the development of a positive safety culture and acceptable behaviours; informing and liaising with the community on relevant aspects of the defendant's business operations; and controlling the selection and activities of contractors to ensure their safety, health and welfare. 40The defendant developed an extensive corporate safety management system aligned to comply with AS/NZS 4801 and AS/NZS 4804. Mr Everett attached a number of the defendant's corporate documents in relation to its Safety Policy; Corporate Employment Policy; Rehabilitation Policy; Corporate Quality Policy; Corporate Environmental Management Plan; Corporate Safety Management Plan; General Safety Induction; and Safe Work Procedures. As part of the corporate management safety system, the defendant holds quarterly board meetings; monthly managers meetings; safety committees; business unit safety manager meetings; toolbox meetings; pre-shift communication meetings; and corporate and individual site suggestion schemes. 41Besides Mr Everett, the defendant employs specialist health, safety, training and welfare personnel throughout the corporate and business unit levels. 42The safety management plan was developed from the Project Risk Assessment that was undertaken by a team of selected CMPL and the defendant's employees with a broad range of skills and experience. The safety management plan was issued to five Senior Project Team Managers as a controlled document for its implementation. It set out the safety management strategy to be adopted by the defendant and CMPL during the course of the contract. It was disseminated at the QTS site specific CMPL induction to all employees and contractors. 43All QTS Project personnel were required to undertake the CMPL induction conducted over three days. Each was given a General Safety Induction Handbook. Mr Everett annexed to his affidavit a copy of the induction plan. It covered an introduction and overview of the QTS Project, construction and excavation activities with the use of mining equipment and the QTS Project parameters. It also detailed the standards set by the CMPL Project Team. All employees and contractors, including Mr Haertsch, completed training in relation to hazard identification, risk assessment and JSA. All aspects of the induction required a theory component to be completed and practical assessments were undertaken in competency modules. 44Mr Everett said that the defendant allocates significant resources to training its employees and contractors. He attached a copy of the defendant's training management plan, modified to comply with updates in legislation and changes to the national competency scheme. Core modules were required to be completed by all employees prior to commencement on the QTS Project. Additionally, a training needs analysis was conducted on each of the defendant's employees to identify additional training modules and relevant safe work procedures required to be undertaken specific to the employee's position. This information was then translated into a project specific training matrix and SWP matrix. The defendant provided training to employees who had not completed relevant modules or SWPs specific to their duties. The defendant also provided additional training to managers, supervisors, maintenance personnel and operators specific to their functions and roles. Certified trainers and assessors were provided to the QTS Project as well as trainers and assessors from the OEM of the Jumbo and other suppliers of plant and equipment. Records of attainment and certification were kept for all Project personnel. Mr Haertsch had received training from the OEM. 45The defendant has adopted the national standard for competency training of its employees. The defendant has also contracted with an accredited Registered Training Organisation to accredit the training system. 46Prior to the QTS Project, the defendant had over 300 SWPs which had been developed through previous Projects. The defendant identified, reviewed and amended the relevant procedures for use on the QTS Project. The defendant was required to submit all SWPs to CMPL for approval prior to their use. Mr Everett made particular mention of the following SWPs that were of particular importance at the QTS Project: (a) SWP M004 Isolation & Tagging is specific to isolation and tagging of numerous energy sources. Before commencing the removal of the overcentre valve, Mr Haertsch was required to isolate the source of the relevant energy sources including gravitational, mechanical, electrical, chemical, thermal, radiation, radiant, hydraulic, pneumatic, or stored pressure. The background information required a risk assessment to be undertaken (a JSA). It also noted that energy could impact on the personnel not involved in the process; (b) SWP M013 Repair Oil Leak is specific to the repair of oil leaks, the job Mr Haertsch was tasked with after the daily service. It placed particular emphasis on isolation and tagging requirements including the need for communication to alert persons to movements and danger. It required a JSA to be completed prior to any work being done where an SWP does not exist. It required compliance with SWP M004 and the maintenance manual to be consulted. In terms of removing a hose or fittings there is a notation which states: "NOTE ' if a component is raised and is unsupported and you remove a hydraulic hose the component will fall and the hydraulic oil in the hose will spray around under pressure in the work area '"; (c) SWP M007 Service Drill is an SWP used more frequently in the work shop environment. It highlights, similar to SWP M013, the necessity to isolate energy sources, consider barricades, communicate awareness of movements and danger and complete a JSA, and to consult the maintenance manual located in the maintenance workshop for the specific service schedule; (d) SWP M021 Tamrock Daily Drill Service was implemented by the defendant as part of the preventative maintenance requirements for Tamrock drills, including the Jumbo. It recognised the need for regular servicing and specified how scheduled maintenance was to be performed. As an underground shift fitter, Mr Haertsch was required to perform daily servicing of the Jumbo. Mr Haertsch was required to undertake steps including a visual inspection to identify defects to be repaired, isolation procedures in compliance with SWP M004 and repair of damaged hoses and fittings as required. 47The QTS Project used CMPL C-Safes as a base tool to inspect and assess risks and hazards. An employee or contractor was required to complete a C-Safe before the commencement of a new work activity. If the C-Safe identified a risk or hazard it was a requirement to control or eliminate the risk or hazard on the job. Every person working within the mine was trained to complete a C-Safe as part of his or her CMPL induction. 48Mr Everett said that a requirement of the Project Safety Management Plan was to undertake a JSA when an SWP was not available, or the SWP did not cover the task being undertaken or if it was a new task. All persons employed on the QTS Project received JSA training during the CMPL induction. It involved the completion of a JSA on a simulated task to prove understanding of the process and competency to complete a JSA. 49Additionally, alcohol testing was carried out on all shift employees before the commencement of each shift on the QTS Project. Drug testing was undertaken randomly, on a minimum of three tests per week. 50Mr Everett also detailed the QTS Project Specific Meetings such as toolbox meetings (held fortnightly to reiterate key safety aspects), daily client and contractors pre-shift planning meetings, daily shift supervisor meetings, pre-shift communication meetings, and senior management meetings. 51The defendant had in place a systematic approach for the gathering and distribution of information. In relation to safety, health, welfare and training there were: (a) project managers monthly report; (b) incident, investigations and near miss report; (c) contract review meeting report; (d) injury and incident statistic reporting; (e) training report; (f) monthly workplace inspection report; (g) monthly maintenance report; (h) daily entry into the Pybar Enterprise Management System (PEMS). 52CMPL conducted monthly audits on the defendant's performance on the QTS Project including cross-checking work being performed by specific employees with their training records. CMPL also cross-referenced C-Safes produced by a specific employee with the work they performed on a specific day. At least five employees were selected at random each month for the audit. 53The defendant provided appropriately qualified shift supervision for all employees on the QTS Project. Supervisors regularly inspected all areas and tasks undertaken. 54Mr Everett detailed the history of Mr Hammond's employment with the defendant. He listed the safety related courses and competency training modules that Mr Hammond had successfully completed during his employment. 55Mr Everett noted in his affidavit that Mr Haertsch had an unblemished record and was well respected by his peers. He listed the relevant safety related courses and competency training modules that Mr Haertsch had successfully completed during his employment with the defendant. 56Mr Everett described the background to the incident. On 31 October 2006, Mr Jaime Rainbow conducted a weekly service on UJ22 which identified a slight leak at the overcentre valve assembly. Mr Rainbow consulted an OEM fitter, Mr Terry Irwin, who indicated that the valve showed no sign of creeping, saw no problem with the valve operation and informed him that UJ22 could be put back into service. After a replacement valve was unable to be located, the UJ22 was put back into service. 57On 1 November 2006, prior to going underground, Mr Hammond and Mr Haertsch attended the shift communications meeting. All personnel going underground on that day were alcohol tested with no positive results. The meeting was concluded at 7.10am and the crew dispersed to their various work activities. Mr Hammond completed the defendant's drills pre-start checklist where no observation of an oil leak was recorded. Copies of Mr Hammond's completed check list and C-Safe worksafe inspection were annexed to the affidavit. Mr Hammond and Michael Tye, assistant operator, subsequently commenced bolting and meshing of the 9260 stockpile. 58At approximately 9.00am, Mr Johnson, the Project Manager, and Mr Peter Sinclair, the Shift Supervisor, attended and inspected the 9260 stockpile and the work being undertaken by Mr Hammond and Mr Tye. When the work was completed UJ22 was trammed to the 9275 level and the area cleaned up of rock spillage. At this point, Mr Chris Hastwell replaced Mr Tye. 59When the clean-up was completed, UJ22 was trammed back to the 9260 stockpile where the booms were placed in position by Mr Hammond to change over from bolting configuration to boring configuration. At about 10.35am, Mr Haertsch arrived at the 9260 stockpile and commenced a daily service which concluded that the oil leak previously identified on 31 October 2006 was a failed o-ring on the overcentre valve. Mr Haertsch removed the overcentre valve which caused the uncontrolled movement of the right hand side feedrail of the Jumbo to roll in a clockwise direction towards the side wall. Jumbo feedrail movements are controlled in part by the overcentre valve which is designed to protect an uncontrolled movement. As the feedrail rolled, it trapped Mr Hammond between the feedrail and the side wall. 60The repair of the overcentre valve was not part of the daily service procedure. The repair had not been scheduled to be completed during the 1 November 2006 day shift. An overcentre valve acts as a safety valve to control the flow of oil between a cylinder and an oil tank. It is used to prevent uncontrolled movements and remains under pressure whether the machine is operational or not. There are approved means of depressurising and servicing the unit. 61Mr Everett stated in his affidavit that he had great difficulty understanding why Mr Haertsch proceeded to undo the overcentre valve given his knowledge, qualifications in hydraulics, post trade qualifications, experience, his thought process in relation to a possible uncontrolled movement and the repercussions that might occur, especially given the weight of the feedrail and the unlikely circumstance that it would be in balance. Mr Everett believed Mr Haertsch's actions were contradictory to the training he had been provided in relation to the identification of hazards and risks and was in conflict with his knowledge of Mr Haertsch's work to that date. 62Mr Everett accepted that the QTS safety management plan did not have an SWP for the repair or replacement of an overcentre valve. 63Mr Everett's evidence was that the defendant was unaware of the existence of an OEM SWP or any other SWP as at 1 November 2006 for the repair or replacement of an overcentre valve. The defendant only became aware after the incident through the Department that the OEM had two SWP's specifically related to repair and replacement of overcentre valves. The OEM SWP incorporated a requirement to control gravitational movement of the feedrail and roll over assembly by resting them on the ground or supported by stands. Mr Everett stated that had those SWP's been supplied to the defendant by the OEM prior to the incident, they would have been incorporated into the QTS safety management plan. 64The Jumbo is a rubber-tyred, four wheel drive, diesel powered, centre articulated carrier. Two front mounted booms support a feedrail and rock drill. It has a separate powerpack for each boom consisting of an electric motor and hydraulic pump. The Jumbo is used for drilling horizontal blast holes and vertical and horizontal ground support holes. It is also used for installation of ground support. A Jumbo has in excess of 5,000 components which are powered by diesel, electric and hydraulic energy sources. 65Mr Everett noted that the defendant's safety management system recognised it was not possible to have a specific SWP for every repair and/or replacement for its fleet of plant and equipment. The defendant has SWPs in place for major and frequent specific jobs. It also has in place a number of SWPs that address a broad range of possible equipment failures. Taking into account the inability to have job specific SWPs for every single task, the defendant built into its safety management system the requirement to complete a JSA to address the specific issues arising from an individual repair in the event that the SWP does not exist or does not fully cover the actions being undertaken. There is a requirement that a JSA must be completed by a minimum of two people so as to enhance the knowledge and skills in the development of that JSA. 66There was an approved QTS Project SWP in place for the repair of oil leaks (SWPM013) which was a generic SWP designed to provide guidance to the defendant's maintenance fitters if there was a problem with a blown hose or a broken fitting. Mr Haertsch's diagnosis of a broken o-ring on the overcentre valve is considered a broken fitting. 67SWPM013 identified: (a) The need to complete a JSA; (b) The need to isolate the unit in compliance with SWPM004 (isolation and tagging); (c) The need to communicate with people in the area to be aware of movements and danger; and (d) For the maintenance manual to be consulted. 68In addition to written safe work procedures, Mr Haertsch had been trained in the CMPL induction for the requirement to complete a JSA for any task not covered by an SWP or if it was a new task. He noted that Mr Haertsch had identified in his statements that he had not changed an overcentre valve previously in a mine. The defendant's safety management system required him to complete a JSA prior to undertaking the task. Mr Everett said that Mr Haertsch did not complete a JSA, did not isolate or tag UJ22 in compliance with SWPM004, and did not consult the maintenance manual. The maintenance manual for UJ22 was kept in the mine site underground workshop. 69The defendant had a contract with the OEM to provide competent tradespersons available 24 hours a day on the QTS Project to support their maintenance personnel. Mr Haertsch had interacted with and used the OEM mechanics on previous occasions to assist him with information that he was unaware of so that he could perform tasks in a safe and efficient manner on the Jumbo. 70Mr Everett detailed the defendant's response to the incident. The first priority was to provide support for Mr Hammond and his workmates. Professional counselling services were provided for all personnel. Professional counsellors were made available to Mr Hammond in Sydney and Mr Haertsch in Parkes. 71To prevent a similar incident occurring, the defendant, in conjunction with CMPL, trialled a physical barrier on development drill rigs for the prevention of access by personnel working in the immediate area. The trial led to a new procedure being implemented without the use of a barrier which introduced a local isolation procedure for working in advance of the forward jacks of the Jumbo. A copy of the procedure was annexed to Mr Everett's affidavit. 72In addition to the trial, a number of changes were made by the QTS Project team to the safety management plan, including: (a) Amend SWPM007 Service Drill Rig to include in item 17 "Record all faults found and repairs still required on relevant Service Sheet". (b) Amend SWPM007 Service Drill, SWPM021 Tamrock Daily Service, SWPD009 Tram, Set Up & Drill to ensure Area Control and physical barrier requirements are identified when undertaking maintenance functions outside of a workshop environment. Retrain all operations personnel in updated procedures. (c) Amend SWPM013 to include references to gravitational and stored energy and prevention of uncontrolled movements. (d) Amend SWPM021 to include references to gravitational and stored energy and prevention of uncontrolled movements. (e) Amend all Maintenance SWPs to include references to gravitational and stored energy and prevention of uncontrolled movements where necessary. (f) Bringing forward Pybar management self audit at QTS Project. 73The QTS Project team made the following recommendations to CMPL: (a) CMPL to correct surveyors record which identified two different parts of the mine as RL9280. (b) All personnel working (other than visitors) underground must be approved and competent to drive underground light vehicles on site. (c) An override system be installed on the radio call system at the CSA mine for use in emergencies. 74The defendant has applied the "outcomes and learnings" from Mr Hammond's incident to its other operations to enhance its safety systems and to assist in obtaining a risk free workplace for its employees and others who work presently at the defendant's operations and in the future. 75The defendant distributed to all of its sites, through toolbox meetings, the Department's safety alert in relation to this incident and its own internal safety alert. 76In acknowledgement of the extraction performed by Mines Rescue personnel, the defendant formally thanked the rescue service and donated a Heart Start defibrillator. 77Mr Everett noted that all of the defendant's personnel were deeply affected by Mr Hammond's accident and resultant injuries. The day after the incident, arrangements were made to ensure Mr Hammond was provided with all necessary help and assistance he and his family required. The defendant organised and paid for family members from Victoria, Queensland and New Zealand to be flown and accommodated in Sydney where Mr Hammond was hospitalised. Mr Rouse, Mr Johnson and Mr Everett frequently visited Mr Hammond in hospital and provided support and assistance. 78To assist Mr Hammond, and as part of his rehabilitation, the defendant worked with his medical practitioners to develop a comprehensive return to work program. The program incorporated SWP development, training program revisions and procedure reviews. Mr Hammond's rehabilitation program has continued with an identified outcome of Mr Hammond working at head office in the near future. 79The defendant also made arrangements for Mr Hammond to attend the decommissioning of the QTS contract on its completion. 80The defendant ensured Mr Hammond had the appropriate support directly after the incident. The defendant allocated one specific staff member from Human Resources at head office to manage Mr Hammond's case. That person prioritised all matters concerning the arrangements and payment of entitlements to Mr Hammond and supported him financially through the payment of incidental costs and bills not directly related to this accident. All efforts were made to relieve Mr Hammond of any burden associated with the administrative aspects of his hospital admission and rehabilitation. 81As part of his rehabilitation program, Mr Hammond has been retained as an employee and paid by the defendant in addition to any benefits he receives. Despite some difficulties raised in relation to this payment by the defendant's workers compensation regulator in NSW, the defendant will continue to support Mr Hammond regardless. The defendant has also supplied Mr Hammond with a computer, Internet access and specialised software which allows him to have full remote access with head office, maintain contact with family members and assist him with his rehabilitation. 82The defendant has maintained contact with Mr Hammond during his rehabilitation and provided assistance by ensuring services provided to Mr Hammond were delivered in a timely manner. 83Mr Everett also made note of the assistance provided to Mr Haertsch following the incident. While Mr Haertsch was not physically injured as a result of the incident, the defendant recognised his needs and gave Mr Haertsch two weeks paid leave and relocated him to Parkes where the defendant had an above ground mechanical workshop. Mr Everett said that Mr Haertsch remained with the defendant for a further two years after the incident as a service mechanic with the full support of the company, including professional counselling. 84Mr Everett stated that he was involved in conducting a risk audit in respect of machinery at the mine. The purpose of the audit was to ensure compliance with MDG15. This is a reference to the Department's machinery audit checklist which sets out the standards that machinery is required to comply. Mr Everett was taken to the defendant's mobile plant, equipment and machinery fit for purpose risk audit conducted on Tam rock Axera 7-260. He was one of the audit team members. His evidence was the purpose of the audit was to seek compliance with MDG15. This document provided under the heading "Maintenance": "provisions should be made to mechanically support any hydraulically operated components when they are required to be in a raised position for maintenance." Under the heading "Comments/Control Measures" the word "compliant" appeared. However, the column headed "Risk Rating" was left blank. 85Mr Everett acknowledged that it was an agreed position that the word "compliant" appeared. This was not the case as there was no risk rating or control measure in place. Mr Everett was also taken to what was described as the defendant's She (Safety, Health and Environment) and Overview documents. This was one of the defendant's safety check documents which dealt specifically with the position method to facilitate servicing of the Jumbo. It included the requirement to carry out an inspection and isolation with a reference to an SWP M004 which dealt with isolation and tagging and the necessity to carry out a job safety assessment. These were procedures that Mr Haertsch was required to follow, particularly in dealing with oil leaks. It included the requirement to carry out a JSA in respect of any identified oil leak. 86Mr Everett confirmed that the defendant was not aware the SWP's were similar documents that had been produced by Sandvik, the builder of the Jumbo. Mr Everett explained that Mr Haertsch underwent JSA training which showed him how to identify hazards, both including physical, hidden and development type hazards. It also identified how to apply control measures, apply risk rating systems and also what the hazard was, obtaining approval for the JSA before its actual use and the number of employees that were required to be involved. A supervisor was required to sign off and approve the use of the JSA. The minimum number of employees who had to apply or to participate in a JSA was two, including the supervisor. 87During cross-examination, Mr Everett stated that he did not believe the defendant had done wrong. He believes that there had been a failure to follow established systems by Mr Haertsch. It was his failure, according to Mr Everett, that contributed to the incident occurring. He believed that all inspections had taken place, relevant training was in place and relevant systems were in place. Mr Everett distinguished his opinion from that of the defendant who had pleaded guilty to a breach of the OHS Act . He acknowledged that the defendant had failed to ensure that the feed beam and rollover assembly was resting to one side on the ground when the overcentre valve was undone. He agreed that the JSA was not specific to the task that was being undertaken by Mr Haertsch. Mr Everett acknowledged that the JSA risk assessment training in the defendant's induction for employees lasted a total of one hour although the defendant had available other training in relation to risk assessment, hazard identification and JSAs. Mr Haertsch had not received training in those areas as at the date of the incident. Mr Everett agreed that an audit had been done in respect of the Jumbo, however, he accepted that it was not a proper analysis of the risks related to every maintenance task in relation to the machine. He acknowledged Sandvik had provided a risk assessment. 88Mr Everett stated that there was an SWP for the repair of an oil leak which required a JSA to be completed by the employee prior to undertaking the work as to whether it was a new job or it had been previously undertaken because an SWP cannot be written in respect of approximately 5000 components that form part of the Jumbo. Mr Everett accepted that Mr Haertsch did not do a JSA. Mr Everett also agreed that the risk of a collapse during the removal of an overcentre valve presented a very grave risk because of the weight of the boom. Mr Everett acknowledged that Sandvik had in place an SWI in relation to the task of removing an overcentre valve which included six steps in relation to positioning the machine. The steps included carefully lowering the boom so that the feed beam and rollover assembly was resting to one side on the ground. In respect of risk, it noted "death, personal injury or machine damage, crushing hazard". He agreed that there was no risk assessment undertaken by the defendant in respect of maintenance of the overcentre valve. Mr Everett's evidence was that the defendant's job safety analysis normally took approximately 2 hours, hazard identity approximately 1 hours and risk assessment, about 1 hours, giving a total of approximately 6 hours. Induction courses at some mines took 2 days on JSA. Mr Haertsch had not had the benefit of that time when the incident occurred in undertaking the defendant's course, although he had completed the CMPL induction course.

Evidence of Paul Spencer Rouse 89Mr Paul Spencer Rouse is the managing director of the defendant. He oversees Pybar's business activities, financial affairs, and business growth opportunities. He also oversees continual improvement programs in the management systems, including Pybar's safety systems, and ensures the relevant policies are implemented. Mr Rouse detailed his career in the mining industry. 90The defendant's head office is located in Orange, New South Wales. It provides a range of services to the mining and civil sectors throughout Australia. 91The defendant incorporated and commenced business in 1993 with two to three employees plus Mr Rouse providing consultant and management services to the E26 Project which involved the development of underground operations at North Parkes Mines. He worked under the North Parkes occupational health and safety management systems, protocols and procedures. Major contractors who worked at the mine also had stand alone occupational health and safety systems that applied to their individual contracts. Mr Rouse said that this experience, particularly the opportunity to observe the operations of a major contractor, provided insight into how employers and employees were responsible for safety and welfare at the workplace. 92In 1995, the defendant was awarded a contract at the Mineral Hill mine to carry out underground development and production. The defendant had approximately 17 employees at that time and had developed and implemented its own occupational health and safety procedures. Shortly after this contract, the defendant expanded its operations to North Parkes mine and Cadia Valley. 93From 2004, the defendant experienced significant growth with a contract at Ballarat Goldfields confirming its position as a reputable underground mining contractor. At the time of the incident in November 2006, it had approximately 372 employees with 255 in NSW with approximately 66 employed on the QTS Project at Cobar. The defendant reached its maximum number of 750 employees in June 2008. Presently, the defendant has approximately 490 employees across Australia. 94Mr Rouse said that since 2008 the defendant's business opportunities within the mining industry have suffered due to decline in commodity prices. In the 2008/2009 financial year, the defendant suffered significant reduction in revenue and profits. During this time, the defendant concentrated on business development and maintaining its established business by tendering for lower margin contracts in order to keep its core experienced people in stable employment and its fleet of equipment in operation. Management continually monitored cash flows, finance and debt financing. This situation led to the resignation of long term employees unable to adapt to the changing business environment. Mr Rouse said that despite the circumstances, the defendant endeavoured to maintain its good name as a reputable contractor within the mining industry. 95According to Mr Rouse, the defendant spent approximately $3 M - $4 M annually on safety and training. Mr Rouse outlined the defendant's "family style approach" based upon providing a safe workplace where employees have a sense of belonging. He also outlined the defendant's core values of working safely, commitment to quality, continuous improvement, relationship building, reliability, business acumen, and corporate citizenship. 96Mr Rouse detailed the QTS Project which resulted from a contract with CMPL in April 2006. The major Project involved the construction of development works and decline access to the ore bodies located in the QTS South ore system. CMPL representatives attended the defendant's operations to audit the safety system, documents and procedures, and to inspect and review the working operations and implementation of the defendant's occupational health and safety plans and procedures. Since the commencement of the QTS Project, the directors had regular contact with the Project Manager and other personnel. At monthly management meetings, the directors and managers were given an overview of the performance for each operation, including safety matters. The defendant regularly reviews its corporate management system to ensure it complies with the relevant occupational health and safety legislation, mines safety legislation, and other statutory requirements. The defendant also provides site specific management plans if the client requires it. Occasionally under contract, the defendant will be required to work under the client's site specific safety management plan. 97On the QTS Project, the defendant's safety performance was reviewed by CMPL on a monthly basis. The defendant regularly achieved high levels of compliance. 98Mr Rouse outlined the defendant's occupational health and safety history. Due to the expansion of its business activities in the period 1993 - 2000 and obligations under various safety legislation. The defendant recognised the need for further development of its safety systems to equal or exceed its major clients. During this time, the defendant appointed a full time Occupational Health and Safety and Training Manager ("OHST Manager") responsible for reporting to senior managers and the directors of the company. The OHST Manager's initial task was to review all existing procedures and systems with a view to further developing and refining the appropriate system for the defendant and the needs of its clients. 99Mr Rouse stated that the defendant has experienced long periods free of lost time injuries, specifically 1999 - 2005. The defendant put in place a standard of set core values and expected behaviours which underpin its policies, procedures and safety management systems. In approximately 2005, the defendant made a substantive change to its safety management plans and systems, including the general publication of its core values and expected behaviours as part of its job philosophy and approach to safety management. 100Mr Rouse detailed the ways in which the defendant successfully achieves its core values. Firstly, Working Safely is a commitment to the safety and welfare of employees, subcontractors and all personnel who work with them. It involves the development of safety systems considered to be the most appropriate and applicable for the work involved. According to Mr Rouse, the defendant has numerous employees who have continuous employment of over five years and where continuous employment has not been available, employees have returned to the defendant as soon as work is available. 101For Commitment to Quality, the defendant has attained preferred supplier status with a number of prominent mining and civil construction companies and local councils. The defendant's representatives also participate in a number of external safety organisations and panels. Mr Rouse annexed to his affidavit copies of commendations received by the defendant from its clients. 102For Continuous Improvement, the defendant's safety systems incorporate regular reviews and audits on safety and health performance, both internally and by clients. One example was during the final three months of a contract at Ballarat a safety performance issue arose. Mr Rouse and other senior management convened a number of communication sessions to identify the root cause. As a result, all employees reconfirmed their ownership to the safety systems which lead to a noticeable improvement. Similar sessions have been held at Mt Isa and are planned for the Tritton site. 103For Relationship Building, the defendant has achieved a number of long established relationships with clients, such as the North Parkes Mines contract which has been continuous for over nine years and Cadia Valley for seven years. 104For reliability, the defendant prides itself on acting fairly and reasonably with its clients and employees in all its business dealings. 105In terms of Business Acumen, Mr Rouse said that the defendant has received much praise for providing quality and timely service. Mr Rouse identified a particular example at the Norton Goldfields Homestead Project where the defendant reviewed work practices resulting in additional personnel and equipment and increased quality of supervision. This led to increased performance. These results were achieved with a period free of lost time injuries. 106For Corporate Citizenship, the defendant has regularly donated to and supported charities, including the Hearts in Union and Cancer Council in Parkes NSW. In most towns where the defendant operates it has contributed to recognised charities and community groups. Additionally, the defendant has introduced an indigenous employment policy. In Kalgoorlie and Mt Isa, the defendant has had direct contact with indigenous community groups to form an alliance for the employment and training of indigenous personnel. 107For Community Support, the defendant is committed to supporting the communities in which they have direct involvement. In recent years, the defendant has given significant financial and/or in kind support to the Cancer Council; Royal Flying Doctors Service; Ridgeway Events Committee; Cobar Hospital Fundraising Committee; Cancer Council Parkes; Hearts in Union; Charters Towers Demons Football Club; Red Shield Appeal; Rotary Club of Parkes; Duck Creek Races; Variety - The Children's Charity; Hermidale Primary School; Kinross Wolario Fair Sponsorship; KEAS Rugby Union Club; Victorian Rockdrilling Competition; Cobar District Rugby Union Club; Rotary International and North Parkes Mines Social Club. 108Mr Rouse stated that the defendant maintains a proactive approach to safety and has an excellent safety record, including a period of more than six years without a lost time injury. The defendant continues to aim for zero lost time injuries. 109Mr Rouse made particular mention of the defendant's drug and alcohol policy which was introduced in early 2000, now called "Fitness for Work Policy". The defendant was a leader in its field in central west NSW when it introduced testing of employees for drugs and alcohol to confirm fitness for work. The policy has been implemented on all the defendant's sites. 110On Project start-ups, blanket tests are undertaken daily on all shifts until full compliance is achieved, after which frequency of tests are reduced. However, if a random test reveals non-compliance then blanket tests are re-introduced on all shifts. Personnel who fail the drug and alcohol policy are disciplined and in some cases employment has been terminated. Mr Rouse gave an example of a positive outcome where an employee made lifestyle improvements after being terminated for excessive alcohol consumption. 111The defendant supports the rehabilitation of personnel injured in a workplace, encouraging those injured to return to work as soon as possible. The defendant tries to place such employees in meaningful work during their rehabilitation within their own workplace in order to facilitate an earlier return to full duties. The defendant employed Mr Shayne Daniels who has extensive experience in the black coal and metalliferous mining industry. Mr Daniels' role has been to review and upgrade of the Safety Management Plan and systems and to ensure the sites are compliant. He was also responsible for the initiative at Mt Isa to bring in external expertise in respect of the site's safety matters. 112The defendant's operations are regulated by different legislative safety regimes depending upon their location. When a new tender is received, the OHST Manager is responsible for identifying the necessary safety requirements. If the defendant successfully gains the tender, the OHST Manager provides the Project Manager with a kit that includes the relevant State safety legislation, induction and safety documentation, training aids for equipment, training modules for specific work requirements and other safety related material specific for that operation. The safety obligation information and safety systems form and procedures is accessible on the defendant's server networked throughout the business. 113The directors and senior management team have regular contact with the OHST Manager and Compliance and Audit Manager. The defendant currently has four people in the safety team at head office. A particular function of the safety team is the audit of the defendant's safety and training systems, as well as providing support to individual sites in regards to training, inductions and safety compliance. Each established operational site has its own dedicated safety and training professionals which give seven day coverage to the operations. Additional support is provided by the safety team from head office as required. The safety and training officers at head office are currently undertaking an accredited training course to acquire more skills in regards to risk assessment and general safety and training. 114The defendant has engaged an external safety provider, Performance Training Pty Ltd, a registered training organisation. It was established specifically to provide services to meet the mining industry needs for operation and maintenance training material. During the last 18 months to 2 years, the defendant has worked with the organisation to develop a series of training modules and booklets. These booklets are used in conjunction with a nationally accredited training scheme. The cost of developing and providing the manuals is estimated at approximately $400,000. Additionally, the defendant has utilised an intranet document retrieval and storage system called Sharepoint. It contains up-to-date versions of safety legislation, safe work procedures ("SWP"), job safety analysis ("JSA") formats, risk assessments and all information associated with inductions and training, which assists compliance. 115Mr Rouse detailed his relationship with Mr Hammond. He first met Mr Hammond when he was engaged by the defendant to work on the QTS Project. At the time, Mr Brendan Rouse was the Project Manager on the QTS Project. Both Mr Rouse and Mr Brendan Rouse developed a close working and personal relationship with Mr Hammond. Mr Rouse said Mr Hammond is a very well respected and well-liked member of the defendant. All personnel were deeply shocked by his accident and injuries. Mr Rouse stated his sincere regret that the incident occurred and the hurt suffered by Mr Hammond. 116Immediately following the incident, Mr Rouse visited Mr Hammond in hospital in Sydney and continued to visit him daily. A number of senior managers and work colleagues also visited him during his hospitalisation. As soon as possible after the incident, the defendant arranged and paid for Mr Hammond's parents to fly from New Zealand to Sydney and provided them with accommodation, travel and financial support for one month. Mr Hammond spent quality time with his parents to assist them in coming to terms with the accident. The defendant also arranged for Mr Hammond's immediate family to travel from Brisbane to Sydney and provided them with accommodation during Christmas 2006. The defendant also arranged for the maintenance of Mr Hammond's accommodation in Cobar and the collection of his personal goods to be kept in safe storage. 117Mr Rouse said that the defendant has supported Mr Hammond in every possible way they could. Although Mr Hammond was entitled to workers compensation payments, the defendant continued to treat him as an employee. Mr Rouse said that the defendant has continued to provide payments over and above the statutory requirements of the compensation system to supplement his income and provide him with resources to assist him. Mr Hammond presently remains an employee. The defendant has considered a number of return to work options for Mr Hammond, including the possibility of a position in the safety team at head office. When the defendant moved its head office in 2009, Mr Rouse specifically required the new premises to be designed to facilitate disabled access. 118The defendant has maintained a close working relationship with its insurer to ensure that Mr Hammond is being provided with the best medical and rehabilitation assistance. The defendant engaged a senior insurance consultant from the defendant's specialist brokers to mentor his case. The defendant also designated a staff member from head office to specifically manage his case. The defendant has provided Mr Hammond with Internet and computer support to enable him to contact family and facilitate him completing work for the defendant at times suitable to him. 119The defendant assisted Mr Hammond with the purchase of a more suitable wheelchair. Mr Rouse also sourced a tricycle called a "Nippi" and arranged for modifications so that it would take Mr Hammond's wheelchair, giving him mobility similar to a motorcycle. Mr Rouse, Mr James Johnson and Ms Kath Johnson travelled to Caboolture to deliver the "Nippi" to him. The defendant also arranged for Mr Hammond to attend the decommission of the QTS Project. They organised and paid for return flights and accommodation for Mr Hammond and his work mates. 120Mr Rouse has had several discussions with Mr Hammond in relation to holding seminars for the purpose of educating mine workers on how what may have seemed like a simple task can lead to devastating consequences. Mr Rouse fully supports this initiative and will sponsor and travel with Mr Hammond throughout Australia. 121Mr Rouse stated that, with the exception of this incident, the defendant has never been prosecuted nor come to the attention of the regulator in respect of any of its operations throughout Australia. The defendant fully co-operated and assisted in the investigation of the incident and complied with its obligations. The defendant also recognises its culpability in respect of the incident and has taken a number of steps to ensure that such circumstances do not arise in the future. 122Mr Rouse stated that Mr Haertsch was employed as a mechanical fitter by the defendant. He was recognised as a highly skilled, experienced and competent employee who had extensive post trade experience in the mining and tunnelling industries for over 25 years. Mr Haertsch undertook numerous safety related courses and training on the QTS Project and had been assessed and deemed competent to perform all tasks within his range of skills. Mr Rouse stated that following the accident, all employees including Mr Haertsch, were offered counselling. Mr Haertsch was given time off following the incident and transferred to the mechanical workshop at Parkes. He subsequently vacated his employment of his own volition in July 2009. 123Since the incident the defendant has worked to improve its overall safety performance through a number of changes to its safety systems and procedures. The defendant has also made recommendations to CMPL management concerning the mine safety management plan. 124Prior to the incident, the defendant had no work-related incidents involving the type of injuries sustained by Mr Hammond. Mr Rouse expressed his deep remorse on behalf of the defendant and affirmed the defendant's genuine commitment to the safety of their employees. Mr Rouse acknowledged that the defendant can never fully appreciate the full impact of the injury to Mr Hammond's life, expectations, and family. Following the incident, the defendant made it a first priority to provide support for Mr Hammond and his workmates. The defendant has applied knowledge from the incident to its other Projects for the benefit of its employees. The defendant continues to strive towards the objective of having an injury free workplace. 125Mr Rouse stated that the defendant acknowledges and accepts its culpability arising from the circumstances and acknowledges that it failed in its duty to ensure the workplace was free of risk. Accordingly, the defendant pleaded guilty to the offence at the earliest opportunity. 126During cross-examination, Mr Rouse agreed that the defendant had not ensured a safe workplace. Although he did not accept the defendant failed to ensure that Mr Haertsch received adequate information, instruction and training in relation to the task of removing and undoing the overcentre valve. However, he accepted that the defendant failed to ensure a safe system of work was in place in relation to the task of removing or undoing an overcentre valve. He said Mr Haertsch was a fully experienced tradesman who had level 3 qualifications in hydraulics and had worked at many other sites including mining contracting sites. Mr Rouse also acknowledged that a JSA should have been carried out in conjunction with another employee prior to work commencing on the overcentre valve. He believed the defendant was proactive in respect of safety, particularly in light of the systems of work that it had in place. 127Mr Rouse's evidence was that in June 2007, the defendant had over 700 persons working at different sites and were committed to ensuring occupational health and safety at all of the sites. Some of the sites had dedicated occupational health and safety employees. As at June 2006, Mr Rouse thought that the defendant employed approximately 500 employees. He said that with the engagement of Mr Mark Collins, new initiatives and improvements were made to the defendant's occupational health and safety which reinforced the systems that it had in place. This included some improvements

Relevant Principles 128The Full Bench in Morrison v Coal Operations Australia Ltd (No 2) [2005] NSWIRComm 96; (2005) 141 IR 465 succinctly summarised the principles to be applied in determining sentence for an offence under the OHS Act . Their Honours stated at [8] - [15]: [8] The overall approach to be followed in relation to the determination of sentence is to be found in the first instance within the statutory provisions of the Crimes (Sentencing Procedure) Act 1999 and in particular, in relation to these proceedings, ss 3A Purposes of Sentencing and 21A Aggravating, mitigating and other factors in sentencing. [9] In R v Way (2004) 60 NSWLR 168 it was emphasised that the provisions of the Crimes (Sentencing Procedure) Act referred to above are not to be construed as representing "a departure from settled principles of sentencing practice, or an abandonment of the discretion that is essential to any system calling for individualised justice". As was said at [59]: '[I]t is clear that the legislative policy ... so far as that can be discerned from the legislation itself, was not to create a straight jacket for judges ... but rather [was] intended to provide "further guidance and structure to judicial discretion.' [10] The starting point for consideration as to penalty is the objective seriousness of the offence. That is a well established sentencing principle and was conclusively affirmed in the Full Bench decision in Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464 at 474 as follows: '[I]t is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the "true measure of penalty lies in the nature and quality of the offence' ... [11] The principle of foreseeability as a factor in determining the objective seriousness of an offence as part of the sentencing process was considered in the Full Bench decision in Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at 646; 99 IR 29 at 62 as follows: 'The question of foreseeability is relevant to the assessment of the seriousness of the offence. We consider that the appropriate approach is that of Walton J, Vice President, in Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 27:' 'Whilst the reasonable foreseeability of an accident may not be relevant to the question of liability under the Act (see Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432), the degree of foreseeability is a significant factor to be taken into account when assessing the level of culpability of the defendant. The existence of a reasonably foreseeable risk to safety which is likely to result in serious injury or death is a factor which will be relevant to the assessment of the gravity of the offence.' [12] On the issue of foreseeability, the Full Bench in Capral also stated at 646; 62 - 63: 'The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. However, the absence of foreseeability does not necessarily render the offence as being nominal or not serious. In this regard the relevant approach is that set out in the judgment of Wright J, President, in Ferguson v Nelmac Pty Ltd (at 209 - 210) in these terms: '... reliance on "hindsight" must be seen in an appropriate perspective in terms of culpability. It is a relevant consideration but the very terms of s 15 impose an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy. So much is clear from the structure and language of the section which is premised on the requirement to 'ensure ... health, safety and welfare at work' and the decided cases which make plain the nature of the obligation.' [13] It is also necessary to consider the damage and injury suffered in the context of the evidence and "in light of the principles which have been laid down in relation to the relationship between the seriousness of injuries which have been suffered, or which may have been suffered, and the gravity of the offence" ( Capral at 650; 66). On that point the Full Bench in Capral stated: 'We consider that the relevant principle can be stated in this way. The gravity of the consequences of an accident, such as the damage or injury, does not, of itself, dictate the seriousness of the offence or the amount of penalty. However, a breach where there was every prospect of serious consequences might be assessed on a different basis to a breach unlikely to have such consequences. The occurrence of death or serious injury may manifest the degree of seriousness of the relevant detriment to safety: Tyler v Sydney Electricity (1993) 47 IR 1 at 5, Inspector Hannah v Wonar Pty Ltd (1992) 34 AILR 377 at 378, Watson v Southern Asphalters Pty Ltd (1996) 83 IR 446 at 456, Wong v Melinda Group Pty Ltd (1998) 82 IR 118 at 131, WorkCover Authority of New South Wales v Albury City Council (1999) 90 IR 397 at 408 - 409, Lawrenson Diecasting Pty Ltd (at 476), WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd (at 428) and WorkCover Authority (NSW) v Walco Hoist Rentals Pty Ltd (No 2) (at [22]).' [14] The principles of general and specific deterrence are also relevant in sentencing. The approach to be taken on that issue was also dealt with in some detail in Capral at 643 - 645; 59 - 62. Without detailing all that the Full Bench had to say we consider the approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench in Capral at 644; 60 as follows: '[B]oth aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Workcover Authority (NSW) v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39; (2000) 99 IR 163 at [40]- 43]) we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted.' [15] In the context of the above well established sentencing principles it will also be necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A of the Crimes (Sentencing Procedure) Act relevant to the respondents before the Full Bench. As was said in R v Way at [56]: '[I]t is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the "relative seriousness" of the offence, they are expressly preserved by s 21A(1)(c).'

Consideration 129The primary consideration, as set out in the above principles, requires a determination of the objective seriousness of the offence. This involves examining the nature and quality of the offence as set out in the agreed statement of facts and the extensive evidence. 130On 1 November 2006, Mr Haertsch, who was employed as a mechanical tradesman by the defendant, was undertaking a scheduled service of an underground mine development drill rig, known as "the Jumbo" when its feedrail rolled when Mr Haertsch removed the overcentre valve, trapping Mr Hammond, an employee of the defendant, against the side wall of the mine. 131The risk to the health and safety of the defendant's employees, particularly Mr Hammond, was caused by a systems failure. The defendant failed to have in place appropriate documentation and/or safe SWP's in relation to the removal of the overcentre valve from the Jumbo. As set out in the agreed statement of facts, the defendant acknowledged the following: 54. Whilst these safe work procedures referred in general terms to safety issues they failed to clearly specify the extreme danger workers could be placed in by movement of the feed rail assembly. 55. Furthermore, they failed to mandate support of the feed assembly and they failed to mandate other workers being clear of the feed rail assembly whilst work was being done, in particular, on the overcentre valve. 56. The safe work procedure for "repair oil leak" indicated that a JSA should be completed as identified and as required. 132The defendant was aware of the relevant risk as its documentation referred to the risks presented by "charged equipment". The defendant's plea also acknowledged its failure in relation to adequately instruct and inform Mr Haertsch in respect of the work that he was undertaking. 133Furthermore, there had not been any particular testing of Mr Haertsch to assess his competency when performing specific tasks. He initially commenced working in the workshop of the mine prior to working underground and had never undertaken the particular task of changing the overcentre valve previously in a mine. There was also a lack of JSA training in October 2006 in a mine. 134The potential risk to safety was addressed in Sandvik's, (the manufacturer of the Jumbo), SWI, but not included as part of the defendant's safe system of servicing the Jumbo. The Sandvik Operation and Maintenance manual relating to the "Hydraulic TB Boom" under the heading "Safety" read: Warning: Do not remove hydraulic hoses or valves before you are sure that the system is not statically loaded. High-pressure hydraulic oil can cause severe injury. Before removing any hydraulic component or disassembling a cylinder, always ensure that the component in question is not pressurised. This situation is possible even if the rig is stopped and the components are supported so that static pressure is not generated. These components include the overcentre and non-return valves in the boom rotation mechanism, cylinders, and some valve blocks, hoses and pipes. The pressure can be released with, e.g., a bleeder screw, if so equipped; otherwise, the component must be removed with extreme caution when the oil temperature is sufficiently low. In removing the component, it is recommended that the component be covered with, e.g., a cloth in order to prevent the spraying of high-pressure oil. 135Later in the same document under the heading "Disassembly and Assembly Instructions of Rotary Actuator" provided: The rotary actuator should only be dismantled and reassembled by persons who have been trained how to do this or by experts. 136Under the heading "Dismantling" Sandvik's document provided: Before starting to remove the cylinder, make sure that the boom is properly supported, and any static loads of the cylinder are removed. Disconnect the hydraulic hoses to the cylinder and plug the open hose ends and cylinder adapters. 137This section was part of "Repair and Adjustment" which referred to the overcentre valve. 138A further Sandvik document headed "Generic Risk Assessment Sudy (sic) for Axera 7 Series Face Drills" (the Jumbo), provided at paragraph 8.3 "Recommendations": A range of risks have been specified within Appendix Two. It was not the objective of the study to develop detailed risk treatments. Therefore risk treatments for each risk (if noted) need to be developed in detail and confirmed to be a suitable strategy for the management of the risk. Confirmation of allocation of responsibilities for implementing risk treatments should also be made. 139Under the heading "Requirements" it provided: Procedures shall be supplied by the manufacturer and maintained and developed by owner for the safe isolation and/or energy dissipation. A person shall not carry out repairs on equipment unless the energy source is isolated and cannot be reconnected accidentally before it is safe to do so. 140Under the heading "Compliance Status" it provided: Local isolation procedures are the responsibility of the owner. 141The defendant had a "mobile plant, equipment and machinery fit for purpose risk audit" conducted on the Jumbo. Mr Blunt was part of the audit team with Mr Everett. 142Under the heading "Servicing Checklist 1, Section 1", in response to the question, "Is there a copy of the manufacturers operating manual/instructions available?", "Yes" was ticked. 143Under "Section 3", in response to the question, "Are maintenance service manuals/instructions available", "Yes" was ticked. 144Under the heading "Maintenance" the defendant's document provided: Provision should be made to mechanically support any hydraulically operated components when they are required to be in the raised position for maintenance. 145As I have already observed earlier in this judgment, there was no risk rating undertaken in respect of replacing the overcentre valve on the Jumbo. 146The defendant's "Safe Working Procedure (SWP) for Service Drill" provided under "Procedure/Task Steps": "Complete JSA". Under the heading "Consideration/Hazard" it provided: "As identified and required." 147Under the heading "Purpose" the defendant's document stated: To provide a mandatory safe work practice in accordance with Pybar policy and the requirements of the - NSW - NSW Occupational Health & Safety Act 2000 NSW Occupational Health & Safety Regulations 2001 Mines Inspection Act 1901 General Rule 2000 148In respect of a document of the defendant titled "Isolation & Tagging Requirement" under the heading "Authorised Tagger" it provided: "Allow everyone in area to be aware of movements & danger." The document subsequently provided under "Procedure/Task Steps" in respect of "Remove hose or fitting. Note: If a component is raised and is unsupported and you remove a hydraulic hose the component will fall and the hydraulic oil in the hose will spray around under pressure in the work area." 149Mr O'Neil submitted that when properly analysed, the defendant's documents lack specificity in respect of the particular task. Counsel acknowledged that although the defendant's SWP gave some direction, for which the defendant was entitled to receive credit, it was clear from the documentation that the defendant was aware of the particular risk when working on hydraulic components. The risk being an unsupported component dependent upon hydraulic oil would fall if an overcentre valve was removed. 150The defendant's Safe Working Procedure (SWP) for Service Drill under "Isolation and Tagging" and under the heading "Definitions" provided: Energy - Energy is the driving mechanism for all activity on the site, whether it is equipment, plant and/or systems. Energy sources are essentially gravitational, mechanical, electrical, chemical, thermal, radiation, radiant, hydraulic, pneumatic or stored pressure. 151At paragraph 10.3 the SWP dealt with energised fault finding and repairs procedure. Relevantly, it provided: Where an energy from the "energised fault finding and repairs" process can impact on other personnel not involved in the "energised fault finding and repairs" process, the plant or equipment shall be isolated from the normal work area and physical barriers will be required to be put in place to ensure no external exposures can occur. 152Sandvik's safe work instruction in respect of "Remove & Replace Rollover Overcentre Valves - Underground" included "ensure all personnel are clear and attempt to start the machine on both diesel and electric". It highlighted the risk of personal injury and provided that the boom and feed beam should be "securely supported on suitable stands." Under the heading "Alerts" the risk included "Death, personal injury or machine damage. Crushing hazard". Symbols were also provided to highlight the risks. 153Mr O'Neil emphasised that the defendant did not have the material contained in the Sandvik documentation as part of its systems. This fact renders the evidence of the defendant that it was impossible to put in place a safe work procedure for every process that may be undertaken in respect of maintenance of the Jumbo redundant. 154The defendant's Audit Report of October 2006 provided under the heading "JSA/Risk Assessment Training": There was no JSA training conducted for the month of October. Whilst Michael said that it is not practical to do everyone, some should be done each month. There is still quite a few to go through - one point deduction. (This is a reference to a potential score out of 40 in respect of the audit). 155The defendant's "Risk Assessment & Hazard Identification Report" in respect of risk assessments conducted on 25 and 26 May 2006 and compiled by Mr Everett in respect of the mine, was a comprehensive document covering some 50 pages, which dealt with the scope of the risk assessment; its procedure; process; flow chart; matrix and review audit. It also addressed scope of works; the results of the risk assessment and contained a register of additional controls. 156Under the heading "Maintenance" the report referred to the hazard of "live isolation" and under the heading "Causes" stated "Failure to isolate for 'energised live testing.'" The entry under the heading "Consequences" read "Injury - Major" and the entry under "Controls & Barriers" read "CMPL does not comply". Under the heading "Adequate Control Y/N" the letter "N" appeared representing "no". 157Similarly, in respect of the hazard of lifting - supporting under the heading "Causes" it read "Collapse, uncontrolled movement, Fall from height". Under the heading "Controls & Barriers" it provided: "Approved supports (jacks, stands etc.) Procedures, C Safe, Competent Tradespersons, Inspections". Under the heading "Adequate Control" the letter "Y" appeared representing "yes". Clearly, the defendant was aware of the risk that was presented by working with raised live or charged hydraulic equipment. 158Both Mr Rouse and Mr Everett gave evidence that Mr Haertsch was an experienced tradesman. However, Mr Haertsch's record of interview with Inspector Paul Newey on 1 November 2006 is illuminating in this respect. He stated as follows: Q14. Yep. Ok and you obviously were expecting the boom to roll? ANS. Well I thought it may have but I didn't know for sure. But I was thinking this might move so I planned which way I was going to go. I had a look around nobody was there so I just kept on working. Q15. Why did you think the roll over motor sorry why did you think the boom may move? ANS. Well I wasn't 100% sure that it was I just thought well because I am taking a bolt a valve out of the pressure line that actually feeds it well then there is nothing holding the oil there so well I thought it could move. Q16. Yep Ok so removing the valve allowed the oil to escape out of the system? ANS. Yes out of the system and then it rolled. Q17. And the oil that holds the whole thing in position? ANS. Well what I can't understand is because I had it, I had it fingered loose and if there was pressure there, there would have been oil coming out (at) you. Know what I mean? Q18. Yeah, yeah. ANS. So I really wasn't worried about it moving much at all because I thought if there was pressure there then it would have started creeping and I would have just done it back up again. Q19. OK, yeah. ANS. I mean this is what I don't understand. So I just looked around there nobodies round no worries. ... Q29. Yep. And you've, you have worked on jumbos for a while? ANS. Yes. Q30. And that is the normal way that you change the valve? ANS. Yep. Well I personally have never changed that particular valve. I have never had that problem with them before. ... Q349. Can you tell me what a JSA is? ANS. A JSA? If there is a job that is never been done before, like a totally new job, then you have to turn round and so a JSA so as you identify risks that may, may be there or may not be there and then you have to go to figure out a way round them and so as it becomes a safe job. ANS. Yes. Q351. Do Pybar do risk assessments? ANS. Yes. ... Q353. So you have done JSA's before? ANS. JSA's before yes. ... Q355. So is it a common process? ANS. Oh its common practice. Q356. With Pybar? ANS. Oh with every, with every company that I have ever worked for. 159Mr Haertsch did not have a full appreciation of the work that he was undertaking and the likely consequences, although an assumption was made by the defendant that Mr Haertsch was an experienced tradesperson with an understanding of hydraulics, which the evidence clearly discloses is correct. However, in relation to this task, he lacked an understanding of what would occur, as is clearly illustrated at paragraphs 36 - 38 of the agreed statement of facts. 160The defendant's failure was that it did not have in place clear and specific instructions as to how the task of removing the valve could be undertaken without risk to the health and safety of its workers, as set out at paragraphs 54 - 56 of the agreed statement of facts. 161It has been emphasised on numerous occasions by this Court that an employer must be proactive in ensuring health and safety. The obligation upon the defendant is to ensure the safety of its employees. It extends not just to the careful and observant, but to the hasty, careless, inadvertent, inattentive and even foolish: see WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248 at 257 and the extensive summary of the principles undertaken by Walton J Vice-President in Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92; (2009) 186 IR 125 at [181] - [194]. Had Mr Hammond been provided with a well formulated, documented and properly implemented system of safety, there is every likelihood that he would have followed it and the risk would have been avoided. 162Mr Hatcher acknowledged that the defendant's plea of guilty was to the offence and the essential elements of the offence. Senior counsel placed reliance upon the judgment of the Supreme Court of New South Wales, Court of Criminal Appeal in Donald John O'Neill (Moffatt ACJ, Begg and Cantor JJ) (1979) 1 A Crim R 59. That case is authority for the principle that when the Crown accepts a guilty plea to a lesser offence in discharge of an indictment the trial judge ought to treat this as an objection to those facts contained in depositions which appear to support a more serious charge. This authority does not seem to me to be relevant to the present case. 163In this matter, I proceed to sentencing cognisant that the entering of a plea of guilty by the defendant amounts to a confession of guilt and an admission to all the elements and particulars of the offence to which the plea was offered: Woods v R [2008] NSWCCA 83; (2008) 184 A Crim R 108 at 367 per Spigelman CJ (Howie and Latham JJ agreeing). Furthermore, the conduct, which the defendant has admitted by its plea, demonstrates a failure by it to have in place the necessary safety systems required by the OHS Act to ensure its employees' safety. 164Mr Hatcher relied on the evidence called by the defendant to ground a submission that his client were entitled to think that Mr Haertsch was equipped "with the tools" to do his job properly. However, counsel submitted that he was negligent in the way that he approached the task. Mr Hatcher rejected the prosecutor's contention that Mr Haertsch's failures were the responsibility of the defendant. Mr Hatcher submitted that this did no justice to the legislation or the purpose of the legislation, particularly bearing in mind its origin, nor to the approach taken to the legislation since the decision of the High Court in Kirk . 165Counsel provided an extract from a report to the Parliament of New South Wales titled Report of Commission of Inquiry Into Occupational Health and Safety (3 June 1981), conducted by TG Williams Esq Commissioner. 166Counsel referred to the observations of Mr Williams in addressing what was described as item 2 in the Report (at 28). This item read: "The obligation upon employers to provide safe and healthy workplaces; and the obligation for employees to work safely in such places." 167At paragraph 4.20, Mr Williams observed: There has probably been recognised, at least in the last 50 years, a qualified requirement that employers should provide healthy and safe workplaces. There has not been a corresponding accepted general obligation upon an employee to work safely in his workplace. 168Mr Hatcher proceeded to advance the following submission: He [Mr Williams] goes on to discuss what happens in the Robens report about that. If one goes back to the Robens report, the Robens report says it's been said that all the duty we are creating does is reassert the common law duty. To the extent there's any doubt about it, we'll clarify it. But the important thing is we are imposing a duty on employees and that has not existed before. To say that the employer is responsible for the negligent act of his employee, is to put at nought the very purpose of the legislation, which was to remind employees to impose upon employees a statutory duty to act safely in their own interests and in the interests of other employees. The extent that there is authority in this Court that says the fact that the employee can be negligent proves an employer is culpable, it does no justice to that legislation. 169Mr Hatcher acknowledged that the High Court did not consider this issue in Kirk . However, counsel referred to the High Court's decisions in Commissioner of Main Roads v Jones [2005] HCA 27; (2005) 215 ALR 418; (2005) 79 ALJR 1104, particularly the judgment of Callanan J and in Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313. Both of these cases dealt with the specific issue of an individual's negligence. 170I am not assisted by the principles found in these judgments in determining penalty in this matter. 171I am bound, in determining penalty, by the jurisprudence developed by this Court. 172In Riley v Australian Grader Hire Pty Ltd [2001] NSWIRComm 31; (2001) 103 IR 143, the Full Bench stated at [15]: ... Section 15 of the Occupational Health and Safety Act requires employers to be diligent and proactive to ensure the safety of employees. Those obligations are not diminished because of the error or negligence of an employee, although such matters may reflect on the degree of culpability of the employer for the purposes of sentencing. ... 173The Full Bench then drew attention to the observations of Bauer J in WorkCover Authority of NSW (Inspector Twynam-Perkins) v Mayne Lighting Pty Limited (1995) 100 IR 247 at [257] where his Honour observed: Much of what was urged by Mr King was directed to showing that the worker who was killed knew of, and therefore ought to have avoided the exposed electrical connections. In one sense such a submission militated against the position of the defendant; the very purpose of the Act was to introduce safe working practices so that accidents are prevented. The Act was designed to protect against human errors including inadvertence, inattention, haste and even foolish disregard of personal safety as well as the foreseeable technical risks in industry. 174These principles were embraced by the Vice-President in WorkCover Authority of New South Wales v Kirk Group Holdings Pty Limited [2005] NSWIRComm 1; (2005) 137 IR 462 at [40] - [41]: [40] I acknowledge that Mr Palmer's recklessness in driving down a steep, slippery slope in a vehicle prone to overturn (in preference to driving down a road purpose built for safety) played an important part in the actual accident and particularly increased the likelihood of a fatal outcome. I accept Mr Aitken's submission that Mr Palmer's behaviour on the day of the accident may be a matter which operates to mitigate the objective seriousness of the offences, but I do not consider that such mitigation would be substantial. In one sense, Mr Palmer's actions may be said to have augmented the objective seriousness: as Mr Agius submitted, despite being aware (to an extent) of Mr Palmer's wilfulness, including occasional lack of care and speeding when driving the ATV, the defendants entrusted him with the responsibility for occupational health and safety at the Farm when he had no particular skills or experience for the role. [41] In conclusion, and in accordance with the decision of the Full Bench in Riley v Australian Grader Hire at [15], I consider that the defendants should be accorded a reduction of the penalties to be imposed on the basis of Mr Palmer's recklessness on the day of the accident. 175These well established principles are equally applicable to non-employees. Applying these principles, there is no basis in my view, to conclude that the conduct of Mr Hammond minimised the liability of the defendant. However, as the Full Bench observed "such matters may reflect on the degree of culpability of the employer for the purpose of sentencing". 176Mr Hatcher also referred to Mr Haertsch's record of interview with Inspector Newey on 2 November 2006, and in particular, his response to the following: Q29: Now that you have had time to reflect on the incident what could have been done to prevent the accident? A: Unfortunately you are asking me something with hindsight, life would have been beautiful if we could have 20-20 vision with hindsight, my job would have been much harder to do but I would have laid the machine over on the ground. And: Q59: Is there any reason why a C-Safe form is not filled out for each new task? A: I think it's just a matter of time. I mean you could be doing a hundred different jobs in a day. That's a hundred bits of paper. I mean it seems irrelevant to fill out a piece of paper to tighten a nut and bolt. 177Mr Hatcher emphasised that Mr Haertsch had been trained in the isolation procedures which he said was to observe whether any other employees were within the vicinity of where the maintenance work was going to be carried out. Mr Hatcher further submitted that in light of his answers during the record of interview on 9 January 2006, Mr Haertsch was aware of the effect of gravity on the motor. When asked: Q296. OK so when you found no oil you concluded that nothing would move? ANS. Well, I suspected that something might move because, I am actually tapping into the line, the pressure line right, I suspected something may happen. But everything was showing me that nothing was going to happen. I was quite satisfied that nothing was going to happen. 178Mr Hatcher submitted that there was no reason for Mr Haertsch to suspect, on the materials, that he was going to be prosecuted. Counsel referred to various questions and answers given by Mr Haertsch during the Department's investigation including: "... so you didn't fully understand the intricacies of how the valve block was plumbed into the hydraulic iron?", he answered: "No." And: "So you didn't know exactly?", he answered: Didn't know exactly what was going on but the thing is whenever you are drilling into pressure lines they are there for a reason, to hold pressure. But that is why you take it out slowly you see if there is pressure on it you can feel if there is pressure on it, you can see if there is pressure on it. If there is pressure on it you just do it back up, find out where the pressure is coming from. 179When asked, "So, I mean have you ever initiated a JSA?", Mr Haertsch answered: Yeah. The way a JSA works is, if for arguments sake, let's say a bogger is broken down down the hole somewhere. I we've got no option but to tow it to the workshop. Well the first thing I will do is, I will say is has there been a JSA done for this job before? And I will ask that by my leading hand and or my foreman. If they say don't know, no I don't know I say right I have got to do a JSA for that job simple as because it is something that is not an every day occurrence. It is something that many people are going to be involved in doing, and so therefore, and there is a fare reason, a reasonable chance that somebody could get hurt doin' it. So you have got to do it there is no question about it that's what makes me initiate, to do a JSA. 180The evidence was that Mr Haertsch had not performed this particular type of maintenance work before on the Jumbo. He proceeded to carry out the work because there were no signs that there was any pressure indicating that the boom would move. Although he said to Inspector Flowers, he thought it might, he ultimately concluded: "... but in all honesty, I didn't think it was going to move". He said: ... the quickest easiest way I mean if you wanted to support it [the boom] from above would have been to get the other arm and just move it across and run a chain between the two arms and use the other arm as a crane. I mean that's how you change heavy components at the workplace. You use the other arm as a crane. 181Mr Hatcher also cited the decision of the High Court of Australia in Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234; (2005) 214 ALR 452; (2005) 79 ALJR 904 and the decision of the Supreme Court of New South Wales, Court of Appeal in Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204, particularly the judgment of Heydon JA. These cases also dealt with the tort of negligence, personal injury and employer's liability. In citing these cases, Mr Hatcher acknowledged that he was not suggesting that the test to be applied in determining penalty in this matter was the Common Law test that was implied in these authorities. However, counsel submitted: ... merely that much of the learning in this jurisdiction has been from employers duties at Common Law and when the High Court passes upon those duties, it may be of some assistance in approaching the task that the Court is to approach here. 182The basis, apparently, for senior counsel's reference to these authorities was to emphasise that in assessing culpability, the Court: ... is obliged to look at the circumstances, understanding that there were obligations on Mr Haertsch as well. Understanding that the only offence we have been charged with is the risk to Mr Hammond. If it were a systemic risk, if it were in fact a risk flowing from the matters that my learned friend addressed, it wouldn't just be Mr Hammond. The acknowledgement that the risk is limited to Mr Hammond is an acknowledgement that the risk is limited to the circumstances where Mr Haertsch was working. And in our respectful submission that rather confines the culpability of our client. 183The difficulty with this submission is that the amended application for order alleged a failure "to ensure the health, safety and welfare at work of all its employees and in particular Gary Hammond contrary to section 8(1) of the Act." The risk was therefore not limited to Mr Hammond. 184The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor that will be relevant to the assessment of the gravity of the offence : Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 476; Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610; (2000) 99 IR 29 at [81]; Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at [27]. 185It was foreseeable that Mr Hammond would be exposed to a risk to his health and safety : (i) if a tradesperson, although with significant experience, but without the requisite competency based training undertook the work to replace to the oversize valve without proper safety systems being in place; (ii) without undertaking a JSA in respect of work that he had not previously carried out on this particular machine; (iii) in circumstances where there was no audit carried out in October 2006, and (iv) if the manufacturer of the machine had foreseen the potential risk as had the defendant but did not have a system in place to ensure the safety of its employees. 186Furthermore, in my view, it is clear that had work safe procedures specifically referred to the dangers workers could be placed in by the sudden movement of the feedrail assembly, the risk to safety would have been avoided. 187The existence of simple and straightforward remedial steps that could have been taken by the defendant to avoid the accident is relevant in assessing the seriousness of the offence: see Kembla Coal and Coke at [27]. 188The defendant prepared a risk audit on the Jumbo. The risk audit made reference to the maintenance manual which had been supplied by Sandvik and it made reference to the role of the OEM. The risk audit referred to the following Standard: Provision should be made to mechanically support any hydraulically operated components when they are required to be in the raised position for maintenance. 189Mr Rouse's evidence was that since the incident, the defendant had worked diligently to continue to improve its overall safety performance. The defendant made a number of changes to its safety systems and procedures and also made recommendations to CMPL Management concerning the Mine Safety Management Plan. The evidence of Mr Everett was more specific in terms of the steps that the defendant took. It included steps which I have set out earlier that were designed to prevent an incident similar to the one which occurred. The defendant in conjunction with CMPL trialled a vehicle barrier on development drill rigs for the prevention of access by personnel working in the immediate area. The trial ultimately led to a new procedure being implemented without the use of a barrier which introduced a local isolation procedure for working in advance of the forward jacks of the Jumbo. A number of additional changes were made by the QTC Project Team to the Safety Management Plan which I have earlier set out in the evidence of Mr Everett. In my view, there was nothing particularly complicated or impractical concerning these measures. 190Although damage or injury to employees does not, of itself, dictate the seriousness of the offence or penalty, a breach where there was every prospect of serious consequences, may be assessed on a different basis to a breach unlikely to have such consequences. In such a case, the occurrence of death or serious injury, may manifest the degree of seriousness of the relevant risk: Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 at [17] - [18]. See also Capral at [94] - [95]; WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd (2000) 95 IR 383 at 428; Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416; (2003) 130 IR 364 at [32]. In the present case, Mr Hammond, as a result of the incident, became a paraplegic. 191The seriousness of the risk , its foreseeability, and the ease of removing that risk, renders this offence to be a serious breach of the OHS Act . 192In addition to the factors relating to this offence, the Court is required in fixing penalty, to consider the need to deter others from committing the same crime and to deter the defendant from re-offending. In Capral at [71] - [80], the Full Bench recognised that in the industrial context, it would be rare that a sentencing court need not impose a sentence that included an element of general deterrence. 193I consider it is appropriate to once again draw attention to the need for employers and contractors working in mines, which is a major and dangerous industry in this State, to ensure that risk assessments are undertaken in respect of the maintenance of heavy machinery and equipment, particularly those which involve the use of hydraulics. It is therefore appropriate that I give weight to the need for general deterrence in determining penalty. 194In relation to specific deterrence, I reject the submission of Mr Hatcher that: " This is very much a one off incidence and there is no evidence in my submission warranting specific deterrence to my client." 195I accept that the attitude of the defendant to questions of workplace safety and any steps taken to improve safety following the incident are relevant, as is the propensity for the defendant to re-offend. I also accept the evidence of Mr Rouse that although the defendant had systems in place, it accepted that, in effect, the particulars of the defendant's failure amounted to a failure to ensure a safe system of work was in place in relation to the task of removing/undoing the overcentre valve on the Jumbo. I accept, in all the circumstances, that this is not a case which calls for the imposition of some additional specific punishment in deterring the defendant from further offending against the OHS Act and for the purpose of compelling the defendant's attention to occupational health and safety issues so that employees and contractors are not exposed to risks to their health and safety. 196Although not advanced by Mr Hatcher, I propose to take into account that the remedial steps taken by the defendant are significant mitigating factors in relation to specific deterrence. The evidence, in particular, of Mr Everett, confirms that the defendant has taken steps to ensure that the circumstances of this incident are not repeated. The defendant has also applied the "outcomes and learnings" from this incident to its other operations to enhance its safety systems and to assist in obtaining a risk-free workplace for employees and those who work presently at the defendant's operations. As the defendant continues to operate in the mining industry, I include an element in the penalty for specific deterrence. 197There are a number of relevant subjective considerations. These include in accordance with s 21A(3) of the Crimes (Sentencing Procedure) Act 1999 ( "CSP" Act ) that: (I) the offender was a person of good character, (II) the offender is unlikely to re-offend, (III) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise, (IV) the remorse shown by the offender for the offence, but only if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both), (V) a plea of guilty by the offender; (VI) assistance by the offender to law enforcement authorities. 198The defendant is entitled to a finding of good corporate citizenship and good character. This is not a case where the defendant showed a disregard to safety and had no established systems in place. As demonsterated by the evidence of particularly Mr Rouse, the defendant at the site: (a) used experienced and licensed tradespersons who were familiar with the site; (b) had in place occupational health and safety systems; (c) conducted safety training courses and sought advice from external safety experts; (d) had in place a risk management system, although the defendant acknowledged there was a failure to enforce the system at the time of the incident; (e) had active occupational health and safety committees and other communication and consultation arrangements including commitment to quality, continuous improvement audits, shift handover communications, operations meetings and with safety alerts; (f) had regular audits; (g) spent approximately $3 M - $4 M annually on safety and training. 199I also accept that the defendant is committed to further improving and enhancing its safety systems. 200The defendant entered a plea of guilty to an amended charge, which obviated a need for a complex trial that would have, most probably, taken some weeks of court time. In this respect, the High Court of Australia in Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339, per Gaudron, Gummow, and Callinan JJ, stated: [23] Although the original charge specified the elements of the offence charged, it was not reasonable to expect the appellant to plead to an offence which wrongly particularised the substance to which the charge related. And that is so even if the identity of the substance would not have affected sentence. In this regard, it should not be assumed that the appellant knew that the sentence would be the same regardless of the nature of the substance. [24] More importantly, the appellant should not have been expected to acquiesce in procedures which might result in error in the court record or, indeed, in his own criminal record. At the very least, a plea of guilty to a charge wrongly particularising the substance he had in his possession would not necessarily provide the basis for a plea of autrefois acquit to a subsequent charge specifying the correct substance. Kirby J further stated at [75]: ... The test is not the time when theoretically or physically a prisoner might have pleaded. The test is when it was reasonable, in all the circumstances and as a matter of practicality, to have expected a plea of guilty to be announced. That question is to be answered in a reasonable way, not mechanically or inflexibly. And at [77]: ... It is unreasonable to penalise an accused person for failing to plead guilty earlier to an incorrectly particularised charge. 201In its guideline judgment in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383, the Court of Criminal Appeal held at [160]: ... (iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 per cent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge. 202Spigelman CJ, with whom other members of the Court agreed, said at [155]: The top of the range would be expected to be restricted to pleas at the earliest possible opportunity and should not be given, save in an exceptional case, after a matter has been set down for trial. A discount towards the bottom of the range is appropriate for late pleas, for example, on the date fixed for trial, unless there are particular benefits arising from the prospective length and complexity of the trial. 203Wood CJ at CL said at [163]: ... I consider these guidelines to properly reflect the mitigating circumstance associated with the utilitarian value of a guilty plea. Adherence to them, in the absence of compelling reason to the contrary, can only assist to secure greater certainty and equity in sentencing practice. 204In R v Gorman [2002] NSWCCA 516; (2002) 137 A Crim R 326 Sperling J, with whom Beazley JA and Carruthers AJ agreed, after referring to the abovementioned passage from the Chief Justice and Wood CJ at CL in R v Thomson; R v Houlton stated at [64]: In my view, where an offender pleads guilty immediately upon charges being reduced by the Crown, that is "an exceptional case" justifying a discount at or close to the top of the range, notwithstanding that the proceedings have long since been set down for trial. To hold otherwise would offend against considerations of equity to which Wood CJ at CL referred. In addition to the saving in the cost of a trial, the fact that the complainant was spared the stress of giving evidence was also a relevant consideration. 205In Rodney Morrison v Wambo Coal Pty Ltd [2004] NSWIRComm 189 at [47], Boland J held that where the amendments led to a material change in the nature of the charge, as was the case here, a plea entered after those amendments should attract the maximum 25 per cent discount for the utilitarian value of the plea. 206I allow a discount of 25 per cent for the plea of guilty in accordance with the principles outlined in R v Thomson; R v Houlton ; R v Gorman, and Wambo Coal Pty Ltd. See also generally Cameron v The Queen; R v S Y & Anor [2003] NSWCCA 291. 207I note that the defendant co-operated with the Department in respect of its investigation. 208The Full Bench in Corinthian Industries (Sydney) Pty Ltd v WorkCover Authority of New South Wales (Inspector Wilson) (2000) 99 IR 159 stressed the importance of taking into account good industrial citizenship and the compassionate steps taken in respect of the injured worker. Their Honours observed at [17]: We do not consider that the history of good industrial citizenship of the appellant, having regard to its prior record and the long period of operation of its business, was sufficiently taken into account. We also refer to the careful and compassionate steps taken by the appellant as to the welfare, rehabilitation and continuing employment of the injured worker. The reason we have made specific reference to that latter matter is that it does not seem to have been often referred to in other judgments in this area. 209I therefore take into account the assistance provided to Mr Hammond after the accident and in respect of his return to work, together with the support given to his family, as earlier set out in the evidence of Mr Hammond and Mr Rouse. The level of support, both financial and personal, was of a standard rarely experienced by this Court.

Victim impact statement 210Although the Court received different versions of Mr Hammond's victim impact statement, in light of the principles surrounding the receipt of victim impact statements (see Inspector Regan v King [2011] NSWIRComm 105), I propose to receive the original victim impact statement provided to the Department by Mr Hammond on 2 June 2009. 211In that statement, after setting out his background, which included the reason for becoming involved in providing maintenance to machines operating in the mining industry, Mr Hammond detailed the circumstances leading to the incident. He stated that it was heartwrenching to find that he was a paraplegic and that he could never walk again and that he would have to contend with pain for the rest of his life. Mr Hammond described his injuries which included head trauma, a broken left arm in two places, several broken ribs, a popped spleen, left kidney torn off, bruised heart and left liver, and damage to T12, L1 vertebrae making him a paraplegic. He stated that the accident had been very tragic for him personally. He was in bed for five months and suffered from bed sores and contracted an infection from an improperly placed catheter, causing him to be rushed back to hospital, where he nearly died. He subsequently suffered a heart attack and was again rushed to hospital, where a stent was inserted into his heart. 212Mr Hammond spoke of the pain that controls his life and the difficulties of not being able to move his legs. He described the pain as like "hanging up to my waist in a tub of acid, which is often changing in its verocity." He described three different kinds of pain that he experiences. Firstly, in his legs, secondly, in different parts of his stomach, and thirdly, from a condition called "osteomalatia" which is a softening of the bones due to lack of sunshine. He said "it was very easy to topple over the edge and go into depression with this sort of thing." He said what has held him together was the thoughts of his family and the support of the defendant. The defendant promised his father (aged 82) when he was in hospital in a coma that they would look after him and he said they most certainly had done that. He said he was still on the defendant's books as employed and that means a lot to him, not only financially, but mentally as well. The defendant bought him a three wheeled vehicle called a "nippi" which enables him to "get out and about more". 213Mr Hammond spoke of being trapped by that machine and as if everything had been taken away from him. As a result of his injuries, he was forced to give up fishing and kayaking with his eldest son. 214He stated that he honestly believed that his accident was caused by a lack of communication and the fitter's contempt for him. He said this was common throughout the mining industry and still going on "under the radar." He stated "I feel that it is unfair that Pybar is prosecuted as it will do nothing to help this problem. The only thing that will help is for someone to get out there and identify the problem and bring safety to everyone's mind that works in the mine. Pybar wants me to go around the mines to tell my story to shock miners into thinking about working safely and I feel that this is the best thing for me to do. I feel that my life was spared to perform a task, and that is to try and prevent this sort of thing happening to someone else. I implore you to go easy on Pybar as I feel that it was not their fault to start with and also the money that you fine them would be better spent on helping me to talk face to face with the miners and fitters." 215In Inspector Sharpin v A Team Concrete (Aust) Pty Ltd [2004] NSWIRComm 182 at [138] I observed: Victim impact statements presently serve two distinct purposes. In the case of family victims, where a family member has died as a result of a breach of the Occupational Health & Safety Act 2000, it provides an opportunity for the family to express their feelings of grief and loss, and allows proper public respect to be paid to these feelings. In cases where there has not been a death, not only does the victim impact statement provide an opportunity for the victim to have proper public respect paid to their pain and suffering, but it also has a role to play in the determination of the appropriate sentence to be imposed by the Court. The statement will explain to the Court the extent of the impact the crime has had on the victim's life. 216As the defendant has no prior convictions, the maximum penalty is $550,000. 217The penalty that I would have otherwise imposed has been reduced because of the mitigating and subjective factors relied upon by the defendant. 218Taking into account all of the above matters including the evidence of the defendant's witnesses, I impose a penalty of $120,000. 219The prosecutor sought an order for costs and a moiety which I propose to grant.

Orders 220I make the following orders:

1. The offence is proven and a verdict of guilty is entered.
2. The defendant is convicted of the offence, as charged.
3. The defendant is fined an amount of $120,000 with a moiety thereof to the prosecutor.
4. The defendant shall pay the prosecutor's costs of the proceedings in an amount as agreed, or if agreement cannot be reached, as assessed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 May 2020