Morrison v Perilya Broken Hill Ltd

Industrial Relations Commission (NSW)|2010-05-10|Before: Haylen J

Introduction 3. On 31 May 2002 Perilya Broken Hill Ltd (ACN 099 761 289) took control of the Perilya Broken Hill operation acquiring it from Pasminco. 4. The Perilya Southern Operations Mine is an underground silver, lead and zinc mine situated at Wentworth Road, Broken Hill in the State of New South Wales ("the Mine"). 5. The method of mining requires extensive development, drilling, blasting, longhole stoping, loading or bogging, ore haulage and hoisting operations to bring the ore to the surface. Once on the surface it is then treated in the concentration plant. The steps involved in the mining process are: (a) location and mapping of the ore body; (b) drilling holes with a development jumbo into the ore body to develop access tunnels; (c) the holes are charged with explosives and fired; (d) the blasted material is bogged out with a loader (LHD ); (e) holes are then drilled into the ore body with a longhole drill to stope it; (f) these stoping holes are filled with explosives and blasted; (g) creating a larger excavation (the Stope ) than the one previously created during development; and (h) broken ore from the stope is loaded out by LHD, onto trucks which haul the material to a crusher, where it is loaded into a skip and hauled out of the NBHC shaft. The Incident 6. On 9 January 2007 Jason Symonds (Mr Symonds) was working at the Mine on the night shift when some time between 10.25pm and 11.00pm he became pinned between the wall of the stope access tunnel and the LHD. He was working alone at the time. He received serious crush injuries and died.

Mr Symonds was assigned to an underground crew supervised by Brett Pettit. Mr Pettitt had known Mr Symonds for approximately 10 years as at 9 January 2007.
LHDs may be operated either manually or by line of sight remote (LOS). When used manually the operator sits inside the cab of the LHD and operates the controls directly. The cab accommodates one operator at a time. When used with the LOS the LHD is operated from a distance using the remote control to operate the LHD.
Mr Symonds was assigned to an underground crew supervised by Brett Pettitt.
Mr Pettitt identified Mr Symonds within a short space of time as being suitable to be trained to manually operate a LHD. Mr Symonds obtained a training permit for manual LHD operation on 5 June 2006. He obtained his manual LHD operator's ticket on 20 September 2006. On 30 October 2006 Mr Symonds obtained a training permit for LOS remote LHD operation. On 8 December 2006 he obtained his LOS LHD operator's ticket. 9 January 2007
Mr Symonds commenced work at 7.00pm on 9 January 2007. He attended a shift start up meeting. His allocated work was to operate LHD N98 by LOS remote control from the "front" drawpoint at the 19SAL99C stope. A drawpoint is an access area in a stope where the LHD obtains access to the stope. 19 SAL 99C has two drawpoints a "front" and a "back". However, the front or southern drawpoint was the only one being accessed. .
After the start up meeting, Mr Symonds approached his supervisor, Mr Pettitt, and enquired about a remote fault that he had reported on the previous shift. The plod sheet3 noted that the loader had been booked out for 1.5 hours for remote checks on the day shift. The "Remotes out of Service Card" was available (held by Mr Pettitt) - this indicated that the machine was in service.
After going underground Mr Symonds took LHD N98 to the maintenance bay and had minor repairs described as 'repair door bracket' completed.
On arrival at the worksite, 19SAL99C drawpoint, Mr Symonds called Mr Pettitt, about the drawpoint, Mr Pettitt asked him to wait until he arrived and went to see him straight away.
Upon Mr Pettitt's arrival they did the remote checks. No issues were identified with its operation. The remote checks involved stop and start of the machine, the emergency stop button, all bucket controls; up, down, dump and curl, left and right steering, and tilt shut down on the remote set. Mr Symonds did not fill out all the required paperwork on 9 January 2007.
Mr Pettitt operated the remote using LOS in order to show Mr Symonds where a big stone/rock in the stope was located. Mr Pettitt instructed Mr Symonds to dig around and expose the large stone/rock in the stope. Mr Pettitt then left the area.
At about 10.25pm Albert Veenstra, a geological sampler and Ashley Kenwell his trainee, arrived at the sign blocking entry to the remote loading area, which along with the flashing lights had been set up by Mr Symonds upon his arrival at the worksite. They could not see what was happening due to the layout of the area. Entry to a remote loading area was prohibited in accordance with the safe work procedure SWPU701 and was indicated by a sign and a flashing red light placed at the entrance to the work area. The SWP required persons, before entering, to make radio contact with the LHD operator. Mr Veenstra and Mr Kenwell called Mr Symonds three times on the radio and received no response. Mr Veenstra wound down his window and heard the LHD operating in the stope and decided to return later. Mr Veenstra heard the LHD revving up and down and formed the opinion that Mr Symonds was operating the LHD remotely using LOS and could not respond to the radio which was located in the loader.
Jason Ball, a LOS remote LHD operator, was allocated "hot seating" duties on that shift which involved relieving operators while they have crib (a meal). Mr Ball went to see Mr Symonds to see what time he wanted to take crib. Mr Ball was accompanied by Peter Semmens. They arrived at the stope location shortly before 11.00pm.
Mr Ball and Mr Semmens found Mr Symonds pinned against the right hand wall of 19SAL99C drawpoint, by the rear of the LHD. The loader engine was not running, which is consistent with the tilt switch in the remote control shutting the loader down. The transmitter and receiver outputs remain in operation even when tilted. When the transmitter is tilted, "Transmitter Tilted' will appear on the LCD and after 2.5 seconds the receiver outputs will be switched off and the service brake will apply. Mr Symonds died from severe crush injuries and asphyxiation.

The Loader Remote Radio Control System 21. Radio remote control systems are fitted to LHD's to enable the LHD to go into underground stopes and under unsupported roof while allowing the operator to remain in a safe location. The radio remote control system could be switched on and off allowing operators to manually drive the LHD in areas other than unsupported roof. The radio controlled system fitted to N98 was a CM2000D which was designed to comply with the Australian Standard "Remote Controls for Mining Equipment" AS/NZS 4240. 22. Perilya were operating 10 LOS remote controlled LHDs at the time of the incident. The Mine was undertaking an upgrade program of the LHD remote radio control system to replace the original supplied Nautilus radio systems with a system from Remote Controlled Technologies (RCT). The upgraded radio systems that were being fitted to the LHDs were manufactured by RCT, Perth Western Australia. At the time of the incident 7 LHDs had the RCT equipment fitted. 23. LHD N98 was the latest LHD to be upgraded to the RCT Control Master CM2000D radio system. The upgrade was completed at Cavpower Broken Hill (Cavpower) on 26 December 2006. Cavpower is the local distributor and agent for Caterpillar and an agent for the installation and service of the Control Master CM2000D radio systems. Caterpillar does not manufacture their own radio controlled systems, but supplies the machines pre-wired for use with radio remote controlled systems that are manufactured by a third party. The LHDs are supplied with a radio interface unit which is designed by Caterpillar and manufactured by RCT. The interface logic box connects the LHD hydraulics and engine system to the radio system. 24. The radio remote controlled system consisted of:

a remote control transmitter, which is carried by the operator using a shoulder harness;
a radio receiver, which is installed on the loader and receives the radio signals from the transmitter;
the transmitter and receiver operate as a master/slave pair on a discrete frequency. Data is sent between the two units via a radio link;
the radio receiver's electrical outputs are either on/off or proportional via hard wired signal cables. The outputs are connected to the interface logic box which drives the outputs to either the logic lead or dash lead for control of the hydraulics and engine.
The Mine also had one tele-remote4 station which could operate LHDs set up with cameras.
After LHD N98 was upgraded, it was returned to service on 27 December 2006. On 2 January 2007 Mick McRae, the day shift operator of LHD N98, identified that LHD N98 was intermittently very hard to turn to the right. He told Anthony Hocking, the oncoming night shift operator of LHD N98 for that shift, of the issue with LHD N98. Mr Hocking submitted a report which caused Damon Ramsay a Cavpower remote technician to attend. In a statement dated 24 January 2007, Mr Ramsay said the following in relation to that attendance: ".. The plod said the problem was "slow steering right". The operator got the remote set transmitter out from the remote box on top of the loader and prepared set for test, this was because he would operate the unit in operation and I wanted to make sure the operator was happy with the remote operation after testing, this is not an unusual practice. The operator under my observations tested the remote set as follows, shut down systems, lights, brakes, forward reverse left/right and bucket controls. The operator drove loader into stope and loaded a couple of scoops of dirt and checked steering operation under loading conditions in this manner. The operator said to me, "yes the steering is a bit slow, you really have to lay the stick over to steer but you can use it ok". I changed sets over by removing old set and fitted replacement set. I then asked the operator to test it again in the same manner as outlined previously. The operator told me that the steering was ok this time. The fault codes (warning system low coolant, engine oil etc other fluid levels), were coming up on the transmitter screen, I then refitted the original set back on to the loader. The operator tested it again and he was happy with its operation. …"
On 3 January 2007 a problem was identified with the right hand steer and caused a technician from Cavpower to attend. Craig Caldwell, Cavpower remote technician, did not find a fault on testing.
On 9 January 2007 prior to completing his nightshift (which commenced on 8 January 2007) Mr Symonds reported a problem with the steering of LHD N98. Adam Edwards, Cavpower remote technician, tested LHD N98 and found the steering to be precise and proportional. Mr Edwards thought the problem may have been more to do with the operator being unfamiliar with the RCT remote.
Various tests were carried out on the LHD and the remote control system after the incident which included a number of operational tests.
An independent mechanical assessment of LHD N98 by Gordon Wilkins of Caterpillar Global Mining identified that the interface logic box had an incorrect relay installed in position 8. The relay that was found in position 8 was an on/off type. The correct type should have been a proportional type.
The incorrect relay was identified by Mr Wilkins during an inspection in March 2007. Mr Wilkins reported the effect of when the operator operated the Joystick the steering was normally proportional between 40 - 170 of movement. By having the on/off type relay in position 8 the right hand steering would be fully applied at 100. Mr Wilkins further indicated the incorrect relay in position 8 of the interface logic box could have been why the steering had been reported by the remote operators as faulty. 32. The LHD N98 interface logic box was tested by RCT on 3 October 2007. RCT's report identified: (a) steer right is not functioning correctly; (b) relay 8 for steer right is using an incorrect relay type. The wiring was designed for a Hella relay and a Bosch relay was installed. (c) more joystick angle is required to operate the steer right output; (d) when the output for steer right is activated, it is at 100% output immediately. Therefore the output does not 'ramp up' or down relative to joystick movement as the left steer does. This would cause zero or full steering output for right steer. (e) right steer output is higher at any point than the highest left steer output.
Inspector Bentham identified in his report of February 2008 that throughout all the operational tests that were carried out on LHD N98 both underground and on the surface, the fault with relay 8 in the interface logic box was unknown until identified by Mr Wilkins. During the operational tests, no unexpected results were obtained or witnessed and no faults or unplanned events could be created.

Risks associated with remote controlled mining equipment 34. The risks associated with remote controlled mining equipment had been identified and were documented within the industry prior to the date of Mr Symonds' accident. 35. The Department of Primary Industries (now the Department of Industry and Investment) and its predecessors, first published in February 1998 the Mining Design Guideline (MDG) 5002 entitled "Guidelines for the Use of Remote Controlled Mining Equipment". This guideline applied to both coal and metalliferous mines. The guideline specifically noted under the heading of "risk management" that the use of remote controlled mining equipment can expose workers to different hazards, such as being crushed by the machine being operated or being crushed by other machines. 36. After a review of MDG 5002 between 2003-2005, a metalliferous only version of MDG 5002 was published in September 2006 titled "Guideline for the Use of Remote Controlled Mining Equipment in Underground Metalliferous Mines". The guideline was produced after review and consultation by an industry working party which included Perilya's Mr Tony Edwards. 37. At page 10 of MDG 5002 were listed the "main risk considerations". These included: (a) consider the use of tele-remote operations; (b) development of a competency based training program and review process; (c) development of a system that allows inspections of draw points to be carried out without exposing personnel to an open brow5; (d) the location of the operator during a remote control operation shall be included as part of the risk assessment; (e) barrier system design, installation and use should be included as part of a risk assessment and utilise the requirements AS4024 or other standards as appropriate; and (f) barrier system to be signed off by a competent person/engineer. 38. On 29 January 2004, the Department of Mineral Resources NSW produced an audit report of the Perilya Broken Hill Limited Remote Control LHD Systems ("the audit report"). 39. Robert Jay, Senior Mine Safety Officer, had undertaken the audit on the 5th to the 9th of January 2004. 40. The audit report noted that "the documented Perilya remote control system and procedures appear to comply with the legislative requirements". The report also noted that a large amount of work was done in regard to the use of remote controlled LHDs at both Perilya's Broken Hill Operations (South and North) in late 2003. The results of this work were clearly evident during the audit and were reflected in the high compliance with the Mine's remote controlled systems and procedures. 41. In relation to operating LHDs it was suggested that consideration be given to conducting a formal risk assessment on remote/manual changeover. It was also noted that there was a workshop to be conducted at Cobar on 4 March 2004 where a full risk assessment was to be conducted by way of demonstration. The workshop at Cobar had been organised by the DPI and was the first of a number of meetings to review MDG 5002. As part of that review it was intended a risk assessment be conducted in relation to remote control equipment guideline development. 42. It was also noted that a formal risk assessment should be undertaken when major changes are to occur.

The 2004 risk assessment 43. On 16 October 2004 Perilya undertook a risk assessment ("the 2004 risk assessment") for remote control load haul and dump operation. The participants in the 2004 risk assessment were Mark Pearce - remote operator with 17 years mining experience; Craig Dally, Mine Production Foreman with 26 years mining experience; Tony Edwards, Underground Safety and Training Supervisor with 27 years mining experience and Trevor Ball, Underground Safety and Training Officer with 22 years mining experience. 44. The risk assessment was broken down into the following categories: (a) planning and design; (b) stope design; (c) equipment; (d) remote control equipment inc, transmitter and receiver; (e) people; (f) environment; (g) line of sight; (h) safe work location; (i) tele-remote; and (j) recovery. 45. Within a number of the categories reference is made under "Type of Impact" to "struck by or against" and "contact by or with". This reference is used sometimes in relation to LHD's and on other occasions in relation to other identified objects such as rocks. 46. Different controls are referred to within the risk assessment to reduce the risk rating. Controls were such things as compliance with Australian Standards, the existing safe work procedure and pre and midshift checks. Annexed hereto and marked "E" is a copy of the 2004 risk assessment. 47. As part of the risk assessment under category "line of sight"6 the "location of the operator during remote control operation"7 was identified as a potential accident or hazard. 48. The possible types of impact identified were: · struck by or against; · contact by or with; · caught on or in. · falling objects; · restricted vision; and · slips, trips and falls. 49. The risk rating was likely/catastrophic 2. 50. The potential cause was noted as: "Potential for the operator to be struck by; remote controlled equipment, material falling from bucket, rock fall etc." 51. The controls identified were: (i) Competencies basted (sic) training and assessing. (ii) Conducted (sic) remote control risk assessment for each stope. These assessment must include: a. safe work location; b. remote manual changeover position; c. concrete block/cuddy location; d. type and location of barriers; e. ventilation; and f. nearest FAB8 52. A similar identified hazard under the same category was: "Position of the operator whilst conducting remote operation into the open stope." 53. The possible types of impact identified were: (a) struck by or against; and (b) contact by or with. 54. The risk rating was seen as likely/catastrophic 2. 55. The potential/cause(s) were noted as: "Operator exposure to - falling rocks/poor brow conditions/poor pillar conditions/poor draw point conditions/remote controlled equipment." 56. The identified controls were: "Competencies basted (sic) training and assessing conducted remote control risk assessment for each stope. These assessment (sic) must include: (a) safe work location; (b) remote manual changeover position; (c) concrete block/cuddy location; (d) type and location of barriers; (e) ventilation; (f) nearest FAB; and (g) SWP U0026P. 57. Within the category of "line of sight"10 a further potential accident or hazard identified was "types of physical barriers to be used when in RC11". 58. The type of impact was listed as "struck by or against, contact by or with, or, caught on or in." 59. The potential cause was identified as "inappropriate barrier selection or use". The control identified was "type of barriers used to be established at stope risk assessment". Stope risk assessments 60. Both in the "controls" referred to above and other "controls" as identified in the Cobar risk assessment and in the Perilya risk assessment there was a requirement to conduct a risk assessment for each stope. 61. The risk assessments had to include an assessment of the type and location of barriers. 62. A risk assessment had been conducted for stope 19SAL99C. All stope risk assessments are located in an area known as the marble arch12. A set of stope risk assessments were also kept in the production supervisor's vehicle. 63. SWPU701 required the operator of LHD to have familiarised themself with the plans before the commencement of each shift. 64. Mr Symonds haversack, was located in the safe work location. A number of items were located in the haversack including SWP's, 2 risk assessments for stopes and the "Conduct Line of Sight Operations - Training Resource Manual". 65. The two risk assessment documents related respectively to 17WAL28 Uphole Stope and 20SAL99 Downhole Stope.

System of Work 66. As at January 2007 Perilya used tele-remotes in some instances and LOS remotes in other instances. 67. The design of the tele-remotes makes it impossible for the operator to be in close proximity to the LHD when it is in use, however, the use of tele-remotes is not always possible. It is necessary to use LOS remotes in a number of situations. To control the safety of operators using LOS remotes Perilya had a SWP U701which indicated that personnel were not permitted within five metres of the brow of the stope. This was referred to as a five metre exclusion zone from the brow of the stope. In addition, it was noted that at no time should the machine be driven within five metres of any person who is not in a safe work location. 68. As at January 2007 the relevant version of the SWP for remote LHD operation was SWP U701 last approved on 4 November 2005. Earlier versions had been approved on 18 December 2003 and 6 September 2002. The predecessor to SWP U701 was U0026P. 69. ... 70. When Mr Symonds was found the SWP U701 found in his haversack was the version approved on 18 December 2003. This document was out of date, it having been superseded by SWP 701 dated 4 November 2005. 71. Both the 2003 and 2005 versions of SWP U701 referred to in paragraph 69 above required an operator to keep a minimum of 5 metres distance from a remote loader and provided a 'position of safety' by way of a 'remote cuddy' or 'remote block'. 72. Both of the 2003 and 2005 versions of SWP U701 specifically allowed for "…the operator to leave the safe work location to gain a better view of the machine's operation" under specific circumstances. 73. An employee leaving the safe work location or cuddy no longer had any hard barrier between himself and the LHD. 74. When Mr Symonds was found a number of other documents were also found either on him or amongst his possessions. They included: (a) the "Operator Daily Book" for N98 with markings on the checklist and start up checks; (b) a two-sided card headed on one side "Remote Control Check Sheet" and on the other "Remote operators Workplace Check This check sheet had not been completed on either side. Mr Pettitt has signed as supervisor on the workplace check side; (c) An uncompleted Daily Workplace Inspection Sheet; (d) the Perilya Training Resource Manual relating to "Conduct Line of Sight Remote Bogging Operation". Within this Manual it is noted that no person is to enter the work area without contacting the operator and receiving clearance to enter. Steps Taken After the Accident 75. Following the accident Perilya stopped Line of Sight remote control LHD driving. This work resumed on 16 February 2007, by which time Perilya had in place two laser barriers which caused the machine to stop if any barrier was broken by either the operator or the machine.. 76. The Perilya updated risk assessment following the accident, which took place on 7 February 2007, required that the risk of being struck by a machine be controlled as follows:

A minimum of two (2) of the following hard barriers, where one (1) is a laser; (a) cuddy - of a size whereby the machine cannot enter into (b) laser barrier/s; (c) concrete remote block - of the size whereby it would not fit under the machine or into the cuddy. To be of a design/state where it cannot roll; (d) proximity controls; (e) lanyards; (f) or if not possible go to tele remote bogging; (g) minimum barrier distance to be determined on a stope by stope basis taking into account gradients, loads, stope condition (wet/dry) and layout.
Remote equipment to be designed to AS/NZS 4240 - Remote controls for mining equipment.
The new SWP required the following: (a) Laser installed at a distance of at least 7.5 metres behind the five metre mark (this is to allow enough space for the loader to exit the stope so that the cab is on a safe side of the five metre mark from the brow); (b) A second laser installed at a distance behind the first laser to be determined in the JSA for the stope. However, this distance must always be at least five metres behind the first laser in all instances but may be more if the conditions of the draw point require it.
Inspectors Greg Welsh and Bob Johnson of the Department of Primary Industries completed a compliance audit on 16 February 2007 in relation to the safety systems for the operation of LOS remote LHDs. The audit showed that the safety systems at the mine were adequate for the safe conduct of remote LHD operations. It was noted that the standards required for competency must be formalised.

Consequences of Perilya's acts and omission 79. As a consequence of its acts and omissions as particularised in particular (d) in the charge, Perilya contravened s.8(1) of the Occupational Health and Safety Act 2000. Those acts and omissions placed Mr Symond's safety at risk and he suffered fatal injuries.

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.

Inspector Kent v Duct Master Pty Ltd [2009] NSWIRComm 143 Kirk and Anor v Industrial Relations Commission of New South Wales and Anor [2010] HCA 1 CASES CITED: R v Borkowski [2009] NSW CCA 102 R v Thomson; R v Houlton (2000) 49 NSWLR 38 WorkCover Authority v Denson and Ors [2007] NSWIRComm 69

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