Morrison v Powercoal Pty Ltd & Anor

SECOND RESPONDENT Peter Foster FILE NUMBER: IRC 7068 and 7069 of 2003 CORAM: Walton J Vice-President; Boland J; Staff J Appeal - Leave to appeal - Occupational Health and Safety - Coal Mining Industry - Employee fatally injured when roof collapsed - Whether trial judge erred in dismissing charges against corporate respondent under s 15(1) of Occupational Health and Safety Act 1983 - Consideration of risk - Causation - Defences under s 53 of Occupational Health and Safety Act 1983 - Charge against personal respondent under s 50(1) of Occupational Health and Safety Act - Elements of charge under s 50(1) - Onus under s 50(1) - Meaning of "concerned with the management of" - Whether defences under s 53 are available to personal respondent in addition to defences under s 50 - Leave to appeal granted - Appeal upheld - Guilty findings in respect of both the corporate and the personal respondent CATCHWORDS : Occupational Health and Safety - Appeal - Leave to appeal - Coal Mining Industry - Employee fatally injured when roof collapsed - Whether trial judge erred in dismissing charges against corporate respondent under s 15(1) of Occupational Health and Safety Act 1983 - Consideration of risk - Causation - Defences under s 53 of Occupational Health and Safety Act 1983 - Charge against personal respondent under s 50(1) of Occupational Health and Safety Act - Elements of charge under s 50(1) - Onus under s 50(1) - Meaning of "concerned with the management of" - Whether defences under s 53 are available to personal respondent in addition to defences under s 50 - Leave to appeal granted - Appeal upheld - Guilty findings in respect of both the corporate and the personal respondent Coal Mines Regulation Act 1982 s 46 LEGISLATION CITED : Industrial Relations Act 1996 s 197A Occupational Health and Safety Act 1983 s 15(1) and s 50(1) s 53 Cain v Doyle (1946) 72 CLR 409 Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 Commissioner for Corporate Affairs v Bracht [1989] VR 821 Drake Personnel t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 Edwards v National Coal Board [1949] KB 704 Ferguson v Nelmac Pty Limited (1999) 92 IR 188 Griggs v Australian Securities Commission (1999) 75 SASR 307 Haynes v CI & D Manufacturing (1995) 60 IR 149 Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 Lam (1990) 46 A Crim R 402 Legge v Coffey Engineering Pty Ltd (No 2) (2001) 110 IR 447 McMartin v Broken Hill Pty Ltd (2000) 100 IR 241 Morrison v Powercoal Pty Ltd [2003] NSWIRComm 342 Morrison v Tahmoor Coal (2002) 120 IR 153 O'Sullivan v The Crown in the Right of the State of New South Wales (Department of Education and Training) (2003) 125 IR 361 R v Brian John Buckett (1995) 79 A Crim R 302 R v Pasta Master Pty Ltd and Conway (unreported, Holt J, 16 August 2000) CASES CITED : R v The Mayor, Councillors and Citizens of the City of Dandenong and Noel Henry Bailey (unreported, Stott J, 31 October 1991) Riley v Australian Grader Hire [2001] NSWIRComm 31 Scott v R (1990) 20 NSWLR 72 Shannon v Comalco Aluminium Ltd (1986) 19 IR 358 Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304 SRA (New South Wales) v Dawson (1990) 37 IR 110 Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty Limited & Ors [2004] NSWIRComm 202 Sydney Wide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 Tannous v R (1987) 10 NSWLR 303 WorkCover Authority (Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 WorkCover Authority of New South Wales (Inspector Bultitude) v Grice Constructions Pty Limited (2002) 115 IR 59 WorkCover Authority of New South Wales (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd (2001) 110 IR 182 WorkCover Authority of New South Wales (Inspector Childs) v Kirk Group Holdings Pty Limited and Anor [2004] NSWIRComm 207 WorkCover Authority of New South Wales (Inspector Keelty) v Crown in the Right of the State of New South Wales (Police Service of New South Wales) (No 2) (2001) 104 IR 268 WorkCover Authority of New South Wales (Inspector Moore) v Blacktown City Council (2003) 124 IR 59 WorkCover Authority of New South Wales (Inspector Smith) v Dubavo Pty Ltd (unreported, CT 93/1247-1249, 24 July 1995) WorkCover Authority of NSW (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 1) (2000) 101 IR 239 WorkCover v Arbor Products International (Australia) Pty Limited (2001) 105 IR 81 HEARING DATES: 07/05/2004; 07/06/2004; 09/24/2004 DATE OF JUDGMENT: 11/18/2004

APPELLANT Mr S Crawshaw SC with Ms L Tucker Solicitor: I V Knight Crown Solicitors Office LEGAL REPRESENTATIVES: FIRST & SECOND RESPONDENT Mr S Rothman SC with Mr M Shume of counsel Solicitor: Mr P Cutrone Sparke Helmore

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

Coram: Walton J Vice-President Boland J Staff J

Application by Rodney Dale Morrison for Leave to Appeal and Appeal Judgment of Justice Peterson given on 21 November 2003 in Matter No IRC 6372 and 6376 of 2001

Application by Rodney Dale Morrison for Leave to Appeal and Appeal Judgment of Justice Peterson given on 21 November 2003 in Matter No IRC 6375 and 6377 of 2001

1 These proceedings involve an application for leave to appeal and, if leave be granted, appeal pursuant to s 197A of the Industrial Relations Act 1996 against the decision of Peterson J delivered on 21 November 2003 in Morrison v Powercoal Pty Ltd [2003] NSWIRComm 342. The proceedings before his Honour were brought by Rodney Dale Morrison ("the appellant") as a person authorised to institute proceedings for offences under s 15(1) and s 50(1) of the Occupational Health & Safety Act 1983 ("the Act").

2 Prosecutions were commenced following a roof collapse in the Awaba Colliery (an underground mine) on 17 July 1998, in which a miner, Barry John Edwards, suffered fatal injuries.

3 The charges against Powercoal Pty Ltd ("the corporate respondent") alleged in Matter No IRC 6372 of 2001 were as follows: Between about December 1996 and 17 July 1998 at the Awaba Colliery, Wilton Road, Awaba in the State of New South Wales, the defendant, being an employer, failed to ensure the health, safety and welfare at work of all its employees, in particular, Barry John Edwards, in that it failed to provide a safe system of work contrary to section 15(1) of the Occupational Health and Safety Act 1983.

4 It was further alleged in Matter No IRC 6376 of 2001: Between about 23 September 1993 and 17 July 1998 at the Awaba Colliery, Wilton Road, Awaba in the State of New South Wales, the defendant, being an employer, failed to ensure the health, safety and welfare at work of all its employees, in particular, Barry John Edwards, in that it failed to provide a safe system of work contrary to s15(1) of the Occupational Health and Safety Act, 1983.

5 Charges were also brought against Peter Lamont Foster, the mine manager ("the personal respondent"), under s 50 of the Act. This provision is to the effect that where a corporation contravenes the Act, whether by act or omission, each director of the corporation and each person concerned in the management of the corporation shall be deemed to have contravened the same provisions unless the court is able to be satisfied that the person was not in a position to influence the conduct of the corporation in relation to the contravention or, being in such a position (that is to influence) used all due diligence to prevent contravention by the corporation.

6 The respondents pleaded not guilty and Peterson J dismissed all of the charges against both respondents.

7 It is necessary to set out in some detail the factual background to the appeal, which is not without its complexities. The corporate respondent was the owner and operator of Awaba Colliery. It was also the employer of relevant employees who worked in an area of the mine known as 304 Panel on 15, 16 and 17 July 1998. The personal respondent was appointed on 23 March 1998 as the mine manager of Awaba Colliery pursuant to s 46 of the Coal Mines Regulation Act 1982 ("CMR Act").

8 On 23 September 1993 approval was obtained from the manager at Awaba Colliery from the Department of Mineral Resources ("the DMR") to remove pillars of coal from the southwest area of the Awaba State Coal Mine. The approval was subject to conditions entitled "Pillar Extraction Approval Conditions". Condition No 8 provided: 8. Pillar extraction sequences shall be designed in accordance with the requirements of the Pillar Extraction Manual. Within this process all mining officials and workmen associated with the South West Area extraction shall be acquainted, at the appropriate time, of the influence that changing roof conditions may have on goaf formation. In particular a sandstone/shale roof or a thin conglomerate/shale roof may give no warning of collapse. Those areas where the roof is not conglomerate should be denoted and placed on all plans associated with the pillar extraction.

9 A pillar is a block of coal left to hold up the roof. The pillar is formed by driving a connected series of headings and cut-throughs. Headings are the primary drives undertaken into the coal deposit by the continuous mining machines. Cut-throughs are the cross drives later performed at an angle, most commonly 90 degrees, to the headings, thereby forming a squared pattern of roadways which retain their numerical nomination as headings and cut-throughs. The intersection of these roadways forms pillars of coal surrounded by the roadways. The formation of headings and cut-throughs, leaving residual pillars, is called in the industry "first workings". Pillar extraction occurs when the pillars that are left are themselves mined. This is known as "second workings".

10 At the end of 1996 poor roof was encountered by mining crews carrying out first workings in 1 and 3 Headings at 25 cut-through in an area known as 304 Panel. Extra roof support was installed consisting of 6 scatter bolts with butterfly plates at 1 Heading and 4 W straps each with 5 bolts about 1 metre apart at 3 Heading. This information was not the subject of any recording on documents or plans used when the second workings were to be carried out. Nor was this information recorded in planning the second workings in this same area.

11 Prior to the second workings being carried out the method of second workings changed during September 1997 from total pillar extraction to pillar stripping. Total pillar extraction is a method of coal extraction whereby the total pillar is removed and the roof is expected to fall soon thereafter. The area abandoned and left to collapse after the extraction of coal is known as the goaf. Pillar stripping occurs where only a portion of the pillar is extracted by a series of what are known as lifts whereby the continuous miner progressively cuts a designated distance into the pillar. This involves the extraction of approximately half of each pillar.

12 The objective of pillar mining or extraction is principally to obtain the residual coal in the pillars, but in a manner which involves retreating from the mined area, in effect towards what Peterson J loosely called the exit, thereby intending to ensure that, while working, the miners remain under a roof structure which has been appropriately supported, usually by roof bolts, during the first workings.

13 His Honour observed that it appeared to be a fundamental tenet of mining practice that miners and supervisory staff must not perform work under an unsupported roof because of the inherent risk involved of a roof collapse. An integral part of this mining process is to leave a pillar, reduced in size and called a "stook" as a minimum support for the roof alongside a heading.

14 The mining process that was being undertaken utilised a large continuous mining machine of some 15 metres in length with a 3.6 metre wide cutting head or drum. The continuous miner was operated remotely by the operator standing towards the rear of the machine on its right hand side. The continuous miner works in a manner by which the operator does not have to go under the untested and unsupported roof where the pillar used to be but remains under the roof of the headings tested and supported at the time of the first workings.

15 The machine conveys the coal cut by the head to a rear-mounted conveyor which is capable of swivelling from side to side to an angle of approximately 90 degrees and which delivers the coal to a shuttle car driven by another miner.

16 This changed method of coal extraction for the second workings was still covered by the approval granted on 23 September 1993 which approval was in fact extended by the DMR on 27 April 1998 until 30 June 2000 after an application by the personal defendant on 30 March 1998. The changed method was not the subject of any formal risk assessment by the defendants.

17 On 18 May 1998 the personal defendant applied to the DMR to retreat out of 304 Panel and 14 SW Headings by the pillar strip method. On 20 May 1998 the DMR approved "General Rules Pillar Stripping" for 304 Panel and 14 South Headings. The rules for pillar stripping required breaker props to be erected before the commencement of each lift. At the time of this approval there was an overall plan for pillar stripping in 304 Panel and 14 SW Headings that were signed by the DMR and the mine manager.

18 There was a working plan for the pillar stripping in 304 Panel produced on 13 July 1998. The area in which the work team was working had a fault running diagonally across it, which had been marked on the working plans.

19 The coal being mined formed part of what was called the Great Northern Seam, in this case near the western shore of Lake Macquarie, south of Newcastle. The coal seam at 304 Panel was approximately 3 metres thick or high and was lying between what is called Awaba Tuff, a substance now accepted to be the compacted deposits of volcanic ash. Above it, was a layer of what is called Teralba Conglomerate.

20 The geographical nature of "conglomerate" was dealt with in the report in evidence of Dr Moelle. For present purposes, it is sufficient to describe "conglomerate" as a layer of hardened substance comprising stone pebbles and some binding material which is particularly hard. After the mining process, the conglomerate effectively formed the roof of the mine in that area. Accordingly, after the headings and cut-throughs have been mined in approximately squared formation of tunnels, the layer of conglomerate lies across the mined area and the remaining pillars, forming a more or less continuous roof, supporting the terrain above and supported itself by the pillars.

21 The thickness of the conglomerate has an effect upon its strength and ability to bridge open areas. Faults in the conglomerate may occur where there has been a shearing of the terrain in a vertical fashion such that the conglomerate does not form a continuous layer but can be either lowered or raised by the shearing effect; there was such a fault of 0.3 metres in 304 Panel and another, nearby but in an area not to be mined up to 8 metres.

22 One issue in the proceedings related to the nature of the roof itself, the prosecution submitting, in part, that the first workings had detected "non-conglomerate roof" and the defence submitting that, on evidence, it should be concluded that the roof was a conglomerate roof.

23 Headings and cut-throughs are driven to an approximate maximum width of 5.5 metres. Where pillars are extracted, the effect is to create a void which, as we have noted, is referred to in the evidence as the goaf, with a heightened risk of roof fall due to the reduced amount of support.

24 Where, as in 304 Panel, two adjoining pillars are to be mined, the process is laid out on a plan which allows for the retention of the two ends of the particular pillar (the stooks) to maintain continuing support for the roof, and to take out a measured number of lifts by the continuous miner. Panel 304 was to be mined in a series of sequences, the first two of which (taken out of the originally intended order, with approval) were sequences 4 and 5. Sequences 4 and 5 involved cutting into a solid wall of coal situated between two dead end headings, called "stubs", at 1 Heading and 3 Heading. There was also a shorter stub at 2 Heading. The plan allowed for approximately 17 lifts to be taken. This work had been carried out substantially on 15 and 16 July and on day shift on 17 July 1998 the team was to complete the last two lifts adjacent to the right hand stook, known as "stook X". Stook X, had it remained in accordance with the layout on the plan, would have been the left hand edge, to a minimum of 1.5 metres thickness, of the stub end of 3 Heading; that is to say on the right hand side of the layout of 4 and 5 sequences.

25 It was during the mining out of stook X itself, such that it was only approximately 20 per cent of its originally intended size (called by one witness "robbing the stook"), that the void created by the removal of the two pillars forming sequences 4 and 5 was the subject of a major roof fall. The roof fall extended beyond the goaf and over to the point where the miner operating the mining machine, Mr Edwards, was struck by falling rocks and suffered fatal injuries.

26 It was also established in evidence that the left hand end of sequence 4 did not have a residual stook of full size. By virtue of the needs of the continuous miner and the difficulties in straightening it up, the plan allowed for a stook of 1.5 metres minimum thickness, it seems necessarily having a wider thickness inbye (towards the coalface). The stook at the left hand end, which would have formed the right hand side of the stub of 1 Heading, was left by the mining process not as a complete void, but as two free standing pillars.

27 In the middle area of sequences 4 and 5, which sequences measured approximately 65 metres in length, two prominent fenders were left in the back wall, which was the coal face formed by the lifts, of the area opposite 2 Heading. The roof fell from an area more or less kidney shaped, running from the two pillars which formed the left hand stook, towards and beyond the right hand stook, some 65 metres away, with the curve forming the kidney shape on the western side of the fall around each of the two pillars which had been left in the coal face opposite 2 Heading. The expert evidence adduced in the proceedings suggested that the left hand stook and the pillars just mentioned had a significant effect on limiting the scope of the fall. This was also said to be the case in the area of the foreshortened stook on the right hand end of sequence 5.

28 It is also necessary to mention that as the continuous miner proceeds through its lifts along a particular pillar, the Pillar Extraction Rules adopted for Awaba and approved by the DMR provided for the installation of timber props as roof support along the area that previously formed the cut-through on one side of the void or goaf area.

29 We turn to the charges. His Honour described the first charge brought pursuant to s 15(1) as the "assessment charge". This charge related to the assessment of roof conditions in the mine.

30 The particulars of this charge were extensive but relevantly included the following: viii) on 17 July 1998, the defendant employed Gregory Alan Gardner, Deputy; Ian James Miles, Machine Operator, Warren Etheridge, Machineman; Gregory Ian Cornwell, Electrical Fitter; Kevin Arthur Dunn, Machineman; Alyn Rayne Gear, Machine Operator; and, Barry John Edwards, Machine Operator ("the employees") xi) there was a potential risk to the health, safety and welfare of the employees working at 304 Panel 25 CT in the vicinity of 1, 2 and 3 headings between 15 and 17 July 1998 in that there was a risk of the roof falling while the employees were working there. (xii) the defendant's failure and/or omission was the failure and/or omission to provide or maintain an adequate system for assessing the safety of the roof in the vicinity of 304 Panel at 25 CT in the vicinity of 1, 2 and 3 headings. xiii) there was a causal nexus between the risk to the health, safety and welfare of the employees referred to in paragraph (viii) above and the defendant's failure and/or omission as dealt with in paragraph (xii).

31 The second charge pursuant to s 15(1) of the Act was referred to by his Honour as the "recording and notification charge." This charge related to the recording of roof conditions and its history and notifying employees of the conditions and history. 32 The particulars of this charge are also extensive but relevantly included the following: ix) on 17 July 1998, the defendant employed Gregory Alan Gardner, Deputy; Ian James Miles, Machine Operator; Warren Etheridge, Machineman; Gregory Ian Cornwell, Electrical Fitter; Kevin Arthur Dunn, Machineman; Alyn Rayne Gear, Machine Operator; and, Barry John Edwards, Machine Operator ("the employees") xii) there was a potential risk to the health, safety and welfare of the employees working at 304 Panel 25 CT in the vicinity of 1, 2 and 3 headings between 15 and 17 July 1998 in that there was a risk of the roof falling while the employees were working there. xiii) the defendant's failure and/or omission was the failure and/or omission to implement an adequate system of recording and notification to employees of roof problems and roof history; xiv) there was a causal nexus between the risk to the health, safety and welfare of the employees referred to in paragraph (ix) above and the defendant's failure and/or omission as dealt with in paragraph (xiii).

33 His Honour found that the two charges against the corporate respondent were not proved to the requisite standard by the prosecution. It was, therefore, unnecessary for his Honour to consider whether the personal defendant, as mine manager, was deemed to have committed the same contraventions as the corporate defendant.

34 In reaching his conclusions, his Honour observed that the prosecution advanced its case in relation to both the assessment and recording and notification charges in the context of a risk of roof fall reflected in the signs of poor roof which were evident at various points throughout the mining of 304 Panel, 25 cut-through over the period 15 to 17 July 1998. Those signs, it was contended, were evident in 1 Heading and throughout the pillar stripping operation between 1 and 3 Heading and also in 3 Heading. His Honour characterised, wrongly, the recording and notification charge as relating essentially only to the failure to give prior indication thereby of the discovery in first workings of the poor roof in 3 heading.

35 It was accepted by his Honour that there were signs of poor roof. What was not so clear to his Honour was that there was a risk associated with that roof beyond the ever present and normal risk that the mining system intended to manage.

36 Peterson J noted that in a pillar stripping operation, the technique is to mine in a retreating fashion so that the continuous miner is constantly alongside a wall of coal that operates as support for the roof, which is becoming the goaf. That process, his Honour observed, was an approved one; it created a roof that was intended to fall after mining had ceased. The trial judge concluded that in the present case, there was no evidence on which it could reasonably be thought that the testing of the roof, during the mining process, as it was undertaken in accordance with the mining plan, exposed employees to a risk of a type that would constitute a breach of s 15 of the Act. His Honour found the signs of poor roof were insufficient to cause the miners any concern that was outside their experience and ability to control; they installed, in a quite normal way, some extra props and left fenders of coal as the means of dealing with the circumstances they were then experiencing.

37 Having considered the evidence of three experts Dr Moelle, Dr Galvin and Mr Darryl Stevenson, Peterson J found that the actual weakness in the roof that fell was not detectable prior to the fall and that there was, accordingly, no known or identifiable risk arising from that weakness.

38 This led his Honour to find, on the evidence, that there had not been any failure by the corporate defendant to provide an adequate system for assessing the safety of the roof in the context of its mining plans.

39 His Honour found there was sufficient evidence to support a conclusion, on the balance of probabilities, that the collapse of the roof occurred as a result of the induced loads imposed on the roof by the mining out of stook X. The continuous miner was, at the time of the fall, positioned partly in 3 Heading and partly in an area that should have been part of stook X. It was actually engaged in skimming the stook at the time of the fall. Stook X was thereby brought to its final, reduced size.

40 It was emphasised by the trial judge that the charges involved in this matter were not related to the reduction in size of stook X. The failures alleged in the charges went to the absence of any recording and thus notification of the weakness identified in the 3 Heading stub at the time of the first working on plans to be used for second workings and, secondly, the failure to provide an adequate system for assessing the safety of the roof. As to the recording and notification charge, his Honour found the prosecution had established that there was an absence of recording on any plans used for section workings of the poor roof condition represented by the W-straps in the stub of 3 Heading.

41 It followed, his Honour said, that there was no notification of that earlier discovery through any plan. However, in circumstances where the mining officials and crew were aware of the indicia of poor roof in the form of the W-straps, and where the nature of the difficulty in the roof was undetectable at first workings, his Honour found there could not be any causal connection between the absence of any recording and notification of first workings information and the fall of the roof or the relevant risk to safety to which the workers, and particularly Mr Edwards, were exposed. The mining plan for stripping the relevant area in 304 Panel catered, whether by deliberate intention or not, and whether or not directly or indirectly, for that area of poor roof by providing stook X in its planned size.

42 Peterson J then referred to evidence given by Mr Ian Anderson, Senior Inspector of Mines at the DMR, who suggested that the stooks in 304 Panel should have been designed in a more conservative fashion because of the poor roof condition. His Honour found that there was no ability, on the evidence, to determine whether that amounted to a relevant failure by the employer given the fact that stook X was reduced in size by unauthorised mining to 20 per cent of its planned size. In his Honour's view, there was no warrant to conclude that the design size was deficient such that it contributed in any degree to any risk to employees.

43 Peterson J was not persuaded that the notification of bore hole indications of defects in the roof would have assisted with the avoidance of any relevant risk to the crew. On the evidence, his Honour found any abnormal risk associated with mining was non-existent in the areas in which the men were working until stook X was drastically reduced.

44 The trial judge found that the roof fall itself occurred while the continuous miner was in a position that was never intended for it - widening 3 Heading without the requisite special approval. Yet, had stook X been as designed, 3 Heading was a safe working area with a roof which had been secured.

45 In his Honour's view, the real point was that stook X should not have been skimmed but the charges did not relate to the size of stook X.

46 His Honour observed that what was not explained in the evidence was why stook X was reduced to a point that exposed the poor roof in the stub of 3 heading to the open area that had previously been formed as the goaf, which was supposed to be "protected" by stook X.

47 Peterson J also determined that there was no basis for concluding the corporate defendant could have reasonably foreseen the skimming of stook X. His Honour observed the mining plans were predicated on the leaving of a stook, and while the very existence of the terms "skimming" and "robbing" the stook might suggest the existence of some practice, the evidence did not seek to (and did not) establish any such practice and, thus, foreseeability. In this regard, his Honour referred to the majority decision in WorkCover v Arbor Products International (Australia) Pty Limited (2001) 105 IR 81 at [45] where the majority of the Full Bench said: The duty to provide a risk free working environment is a duty owed not only to the careful and observant employee but also to the hasty, careless, inadvertent, inattentive, unreasonable or disobedient employee in respect of conduct that is reasonably foreseeable: Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 at 320; McLean v Tedman (1984) 155 CLR 306 at 311 - 312 and WorkCover Authority of NSW (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248.

48 In referring to what the majority said at his Honour stated: I would take the reference to reasonable foreseeability in the Arbor Products judgment not to be intended to introduce an element in the offence but to be referring to the defences available under s 53.

49 His Honour concluded the risk of injury involved in this case arose from an event, the cause of which could not be ascertained from the evidence. His Honour concluded that the prosecution had not established a relevant failure by the first defendant in relation to the recording and notification charge or the assessment charge and consequently held that the charges against Mr Foster had not been established.

SUBMISSIONS ON SUBSTANCE OF APPEAL Appellant's Submissions

50 The appellant submitted that his Honour made various significant errors of law and challenged a number of findings of fact as not being available on the evidence or wrong.

51 The essence of the appellant's submission was that his Honour fell into error in adopting an approach of assessing whether the prosecution had made out the charges by focusing on the immediate cause of the accident and, contrary to the authorities, failing to acknowledge that the prosecution only had to make out that there was a risk on any of the days relied on, being 15, 16 and 17 July 1998 in order to succeed. It was submitted that this erroneous approach resulted in his Honour ignoring the risk of a roof fall in the mine as alleged in the charges. The risk relied upon by the appellant was not confined to the actual fall of the roof or Mr Edwards.

52 The appellant relied upon a number of decisions of this Court and the former Industrial Court to demonstrate his Honour's error in focusing upon the actual accident: Haynes v CI & D Manufacturing (1995) 60 IR 149 at 157; Drake Personnel t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 at 452; WorkCover Authority of New South Wales (Inspector Keelty) v Crown in the Right of the State of New South Wales (Police Service of New South Wales) (No 2) (2001) 104 IR 268 at 288-289 and O'Sullivan v The Crown in the Right of the State of New South Wales (Department of Education and Training) (2003) 125 IR 361 at 399.

53 It was submitted that Peterson J focused wrongly on the skimming of stook X. His Honour noted that the charges involved in the matter did not relate to the reduction of the size of the stook however, it was submitted, in dealing with the risk in the context of the assessment charge, (history and condition of the roof) his Honour found, in effect, it was the act of skimming the stook under the supervision of a mine deputy that caused the risk. This finding ignored the prosecutor's submission that the possibility of such an act occurring should have been catered for in a safe system of work and/or that the act itself was an act of the employer supervised by a person in the employer's chain of management.

54 Similarly, it was submitted that the misconceived view of risk by the trial judge, in dealing with the recording and notification charge, led him to concentrate on the actual incident of the roof collapse. This led his Honour to consider this charge against the background of the skimming of stook X despite his Honour's statement that the charges involved in the matter were not related to the reduction in the size of stook X.

55 Mr Crawshaw SC for the appellant contended that the trial judge fell into error when considering the effect of the nature of the roof on the issue of risk and in finding that there was no risk on the basis of the evidence of three experts that the actual weakness in the roof was not detectable prior to the fall. The appellant contended that proof of a failure under s 15(1) resulting in an exposure to risk of injury does not rely on the precise nature of the roof being known or detected. The appellant submitted that findings by his Honour describing the roof as non-conglomerate misconstrued the evidence as to non-conglomerate material, which is more susceptible to collapse than a solid conglomerate roof. Mr Crawshaw referred us to the prosecutor's submissions before Peterson J and noted that the prosecutor had contended that the risk of roof fall in the work area was exacerbated by the fact that the roof strata consisted of conglomerate and non-conglomerate material, the latter comprising sandstone, siltstone, mudstone, claystone, coal, laminate, plant fossils and fossilised tree trunks. 56 The appellant contended the mine's support rules for first workings in 1996 suggested that W-straps were put up in non-conglomerate roof. Furthermore, Mr Johnson who was the deputy in charge when the W-straps were inserted gave evidence that he did so because of "drummy" conglomerate roof. Mr Johnson's definition of "drummy" conglomerate roof was that it contained non-conglomerate materials such as sandstone, mudstone or fossilised material. In addition, at least some of the maps of the work area suggested the presence of non-conglomerate roof.

57 The appellant contended that his Honour committed further error in terms of his characterisation of the degree of risk to be demonstrated by finding that there was no risk associated with the roof "beyond the ever present and normal risk which the mining system is intended to manage" and, there was no "abnormal risk". The appellant submitted that there was nothing in law that supported a proposition that the risk to safety must be something over and above a normal or ever present risk. Some industries or workplaces are notorious for operating under conditions of "ever-present risks to safety". Such industries and workplaces, nevertheless, have a statutory obligation to ensure the safety of workers as found by Hungerford J in WorkCover Authority of New South Wales (Inspector Keelty) v Crown in the Right of the State of New South Wales (Police Service of New South Wales) (No 2) (2001) 104 IR 268 at 298.

58 It was submitted that it was incontestable and uncontroversial law that the duty of an employer to ensure the safety of its workers is absolute. The fact that the testing process employs "a recognised means" or "an accepted means" does not exonerate the employer. His Honour found the means utilised at the time of the accident for testing the roof (sight, sound and vibration) were the only available means at the time and were also the accepted means. His Honour then concluded, in these circumstances, there had not been demonstrated, on the evidence, any failure by the corporate respondent to provide an adequate system for assessing the safety of the roof in the context of its mining plans, at [140]. The appellant submitted that the utilisation of industry accepted means does not discharge a defendant from its statutory obligations.

59 The appellant submitted that his Honour made a number of errors in finding that, in circumstances where mining officials were aware of indicia of poor roof and where the nature of the roof "was undetectable at first workings", there cannot be any causal connection "between the absence of any recording and notification of first workings information and the fall of the roof or the relevant risk to which the workers, and particularly Mr Edwards, were exposed" [at 148]. These errors were:

· Causally connecting the alleged failure to the accident, when his Honour found that no causality existed between the failure and the resultant risk.

· An equation in his Honour's finding between the actual incident - the fall of the roof on Mr Edwards - and the relevant risk.

· That the recording and notification charge was limited to failures to record at first workings and not second workings as well.

· The finding that there was no causal connection between the failure, as found, and the fall of the roof or the relevant risk because the mining officials and crew knew about the poor roof in the form of W-straps and the nature of the difficulty in the roof was undetectable at first workings.

· Concluding that mining officials and crew were aware of the indicia of poor roof in the form of W-straps.

60 The appellant contended that other miners, notably those on the shift during which the accident occurred, did not know about the poor roof in the form of W-straps.

61 The appellant contended that his Honour ignored the prosecutor's submissions as to causation and instead, relied on evidence that stook X could have been designed in a more conservative fashion.

62 Senior counsel for the appellant addressed the defences under s 53 of the Act and submitted the defences had not been made out.

63 In respect of the second respondent, the appellant submitted that if it was successful in the appeal in relation to the corporate respondent, the basis for dismissing the charges against the personal respondent was rendered nugatory. It was submitted the Court would then have to consider whether the charges or otherwise were made out against the personal respondent. In this regard, the appellant relied on its submissions at first instance.

64 The appellant made a number of submissions as to the meaning of the expression "concerned in management" in s 50 of the Act, submitting that there was no definitive authority on the proper construction of the phrase. Reference was made to a number of decisions where the phrase or similar wording had been considered in other statutory contexts including: R v The Mayor, Councillors and Citizens of the City of Dandenong and Noel Henry Bailey (unreported, Stott J, 31 October 1991); R v Pasta Master Pty Ltd and Conway (unreported, Holt J, 16 August 2000); Commissioner for Corporate Affairs v Bracht [1989] VR 821; Griggs v Australian Securities Commission (1999) 75 SASR 307; R v Tannous (1987) 10 NSWLR 303; Lam (1990) 46 A Crim R 402 at 405; Sydney Wide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157.

65 It was submitted that the defences available under s 50(1)(b) and 50(1)(c) of the Act necessarily involved looking at any natural person who is in a position to influence the conduct of the corporation that constitutes a contravention, whether the contravention be by act or omission. It was contended that there is no basis to read the words of the section as being restricted to the highest level of management. It was submitted that the section, containing as it does, a defence based on not being "in a position to influence the conduct of the corporation in relation to its contravention" envisages that levels of influence will be taken into account in this defence rather than reading down the ordinary meaning of the words "concerned in management".

66 The appellants contended that in large corporations such natural persons would not be limited to persons whose management role may be likened to that of a director or even to persons who are at the top of the corporate hierarchy of the particular corporation, especially when there is a scheme of statutory regulation that puts the "local" management at the top of the management hierarchy.

67 The appellant, therefore, submitted that given the nature of his role and duties as a mine manager, Mr Foster was concerned in the management of the corporate respondent and was therefore deemed guilty of the two offences with which he was charged.

68 The primary submission of senior counsel for the respondents was that there was no present or known risk until there was a significant risk of a fall, or of a capacity to determine, by empirical evidence, a risk to safety associated with the state of the roof of the mine.

69 It was submitted that the mere assertion of the risk was not sufficient to discharge the prosecutor's onus. The prosecutor must establish to the criminal standard that the risk existed and that the risk arose as a consequence of an act or omission on the part of the first defendant. The respondents relied upon Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'Ng) (1999) 90 IR 432 at 449.

70 Mr Rothman SC for the respondents submitted that in order to demonstrate a breach of s 15(1), it was necessary for the prosecution to establish the existence of a failure on the employer's part that was causally connected with the risk of safety. It was contended there could be no failure on the employer's part in not taking steps to prevent a risk that was not possible to anticipate: WorkCover Authority of New South Wales (Inspector Smith) v Dubavo Pty Ltd (unreported, CT 93/1247-1249, 24 July 1995). This proposition was stated in Drake at 38-39 and cited with approval in WorkCover Authority of NSW (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 1) (2000) 101 IR 239. Reference was also made to McMartin v Broken Hill Pty Ltd (2000) 100 IR 241, a decision which dealt with the issue of causal nexus and which relied upon Grove J's judgment in SRA (New South Wales) v Dawson (1990) 37 IR 110 at 120. The Court was also referred to Morrison v Tahmoor Coal (2002) 120 IR 153 at 182.

71 It was further submitted by the respondents that the criticism of his Honour by the appellants in concentrating on the accident was misplaced. The respondents contended that his Honour's analysis of the evidence was unexceptional. Further, his Honour's conclusion that there was no evidence on which it could reasonably be thought that the testing of the roof during the mining process, as it was undertaken in accordance with the mining plan, exposed employees to a risk of the type which could constitute a breach of s 15 of the Act, was correct. It was submitted that this enabled his Honour to come, correctly, to the conclusion that he was not satisfied beyond reasonable doubt that the prosecution had made out its assessment charge.

72 The respondents submitted in respect of the recording and notification charge that the trial judge's conclusion there was "no warrant to conclude that the design size of stook X was deficient such that it contributed to any degree to any risks to the employees" was correct. In particular, his Honour's finding that he was not persuaded that the notification of bore hole indications were of assistance with the avoidance of any relevant risk was correct. This, it was submitted, enabled his Honour to come to the conclusion that there was no causal nexus between the risk of a roof fall and any failure to record and notify resulting in the prosecution not establishing a relevant failure by the first defendant.

73 Senior counsel for the respondent submitted that the appeal should be dismissed. However, if the appeal was upheld, it was submitted the preferred course was that the matter should be referred back to his Honour or a new trial ordered as the Full Bench had not seen or heard the evidence and would be unable to assess the credibility of the witnesses in a manner consistent with submissions on credit and the preference of one witness over another. Nevertheless, senior counsel conceded that it was open to the Full Bench to deal with the s 53 defences subject to the Bench having read all of the extensive material presented at first instance.

74 The respondents also addressed the defences available under s 53 of the Act. They put detailed submissions as to the proper meaning to be ascribed to "reasonably practicable", submitting it is a narrower term than "physically possible", referring to Edwards v National Coal Board [1949]; KB 704 at 712; WorkCover Authority (Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 and a recent decision of the High Court of Australia in Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304.

75 It was submitted that should the respondents be found to have committed one or more of the particularised failings then the defendants would rely on both the statutory defences contained in s 53 of the Act.

76 The respondents acknowledged that it was not permissible to consider a defence under s 53 in the absence of the finding that there had been an offence proven under the provisions of the Act or Regulations. The defendant, further accepted that it bore the onus to establish a statutory defence to the civil standard relying upon Shannon v Comalco Aluminium Ltd (1986) 19 IR 358; Carrington Slipways Pty Ltd v Callaghan 11 IR 467 at 470 and the recent decision of Walton J Vice-President in WorkCover Authority of New South Wales (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd (2001) 110 IR 182.

77 The respondents further submitted that there was no basis upon which the Court should, notwithstanding the submissions of the appellant, limit the scope of what was "not reasonably practicable" in the defence provided for under s 53(a) of the Act. It was submitted that in considering whether the defendants have proved a relevant defence, their actions must be considered on the basis of what was known at the relevant time; per Gaudron J in Slivak, noting that such knowledge should not be mistaken for or supplanted by reasonable hindsight: Maitland City Council at 381. The defendants submitted, on the evidence, that they had undertaken all that was reasonably practicable in order to comply with the Act and ensure that persons were not exposed to risk.

78 In respect of the charge under s 50 of the Act the respondents contrasted s 19 of the Act submitting that the section imposed personal obligations on even the most senior employees whereas it was submitted the legislative intent expressed in s 50 is to make responsible those persons who control or direct a corporation's activities by deeming them to be guilty of the same contravention established in relation to the corporation.

79 The respondents contended that the elements of s 50 that were required to be made out were that there was a corporation; that the corporation had contravened, by act or omission, any provision of the Act or regulations made thereunder and that the person charged is a director of the corporation or a person concerned in the management of the corporation.

80 It was submitted that the contravention by a corporation is a matter to be proven, beyond reasonable doubt, by the prosecutor for s 50 of the Act to operate at all. In order to prove the contravention by the corporation, the prosecutor must prove a breach of s 15 of the Act and the absence of a defence under s 53 of the Act. It was further submitted that the availability of a defence under s 53 is part of the element necessary to be proven before s 50 operates which, it was submitted, the prosecutor had conceded.

81 The respondent submitted similar situations arise in circumstances of offences involving aiding, abetting, counselling, procuring or being knowingly concerned in the commission of offences, where there is, in relation to defences a reverse onus: Cain v Doyle (1946) 72 CLR 409; R v Brian John Buckett (1995) 79 A Crim R 302.

82 Applying the principles in these cases, the respondent submitted that in respect of s 50 and the operation of the defences in s 53 to the offences in s 15, it was necessary for a corporate defendant to prove, on the balance of probabilities, one of two negatives; firstly, that it was not reasonably practicable to comply; or secondly, that the corporate defendant had no control over the causes of the offence and against the happening of which it was impracticable for the person to make provision. In other words, it was submitted that the prosecutor must prove, beyond reasonable doubt, the contravention of the provision, namely the elements of s 15 and the absence of defence under s 53. The effect of this submission, it was submitted, means that a different analysis of the s 53 defences must be made for the purpose of the charges against the corporation, than the analysis of s 53 for the purpose of proof that a contravention has occurred by the corporation for the purpose of s 50 in the charges against the individual.

83 It was further submitted that there is no limitation in s 53 that it cannot be availed of by an individual charged with an offence under s 15 or s 16 by virtue of the deeming provision in s 50. It followed that s 53 must be available to the individual as an individual, at a point later in time than when the individual is deemed to have contravened either or both s 15 of 16 of the Act. It was further contended that it could not be the purpose of the Act for a director to be guilty of an offence under s 50 if the corporation is not guilty of an offence because of the operation of s 53.

84 Finally, the respondent submitted that the determination of whether a particular person was concerned in the management in the corporation was a matter of evidence relating to the structure of the company and the position of the employee in relation to that company and whether that person, that individual, was part of the controlling mind of the corporation. It was submitted that Mr Foster had not unfettered or extended decision-making powers in the context of the corporation that was not the mine. It was a much larger entity involving a number of mines, influenced in its decision-making directly by its board and the board of its parent company, Pacific Power.

85 It followed, it was submitted, that his Honour's decision should not be disturbed.

86 As earlier noted, the prosecution was brought pursuant to s 15(1) and s 50(1) of the Occupational Health & Safety Act 1983. Section 15(1) of the Act is as follows: 15 Employers to ensure health, safety and welfare of their employees (1) Every employer shall ensure the health, safety and welfare at work of all the employer's employees.

87 Section 50 of the statute provides: 50 Offences by corporations (1) Where a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each director of the corporation, and each person concerned in the management of the corporation, shall be deemed to have contravened the same provision unless he or she satisfies the court that: (a) (Repealed) (b) he or she was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or (c) he or she, being in such a position, used all due diligence to prevent the contravention by the corporation. 88 Section 53 provides: 53 Defence It shall be a defence to any proceedings against a person for an offence against this Act or the regulations for the person to prove that: (a) it was not reasonably practicable for the person to comply with the provision of this Act or the regulation the breach of which constituted the offence, or (b) the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision.

89 Section 197A of the Industrial Relations Act provides: 197A. Appeals against acquittals in proceedings for offences against occupational health and safety legislation (1) This section applies to the decision of a member of the Commission or of a Local Court constituted by an Industrial or other Magistrate to acquit a person of an offence against the occupational health and safety legislation. (2) This section applies to such a decision only if proceedings for the offence were instituted by an inspector appointed under that legislation or with the consent of the Minister or other officer authorised by that legislation to give such a consent. (3) An appeal lies to the Full Bench of the Commission in Court Session against a decision to which this section applies. The appeal is not limited to a question of law. ... (6) Section 191 applies to an appeal under this section. (7) On an appeal under this section, the Full Bench may: (a) dismiss the appeal, or (b) set aside the decision appealed against and make a decision in the matter in accordance with law (including the conviction and sentence of the defendant for the offence charged). (8) If the Full Bench on appeal convicts the defendant of the offence, the maximum penalty that the Full Bench may impose for the offence is the maximum penalty that the court that acquitted the defendant could have imposed for the offence. (9) This section has effect despite anything to the contrary in section 196 of 197. (10) In this section: "occupational health and safety legislation" means the Occupational Health and Safety Act 2000, the regulations under that Act and the associated occupational health and safety legislation within the meaning of that Act. ...

90 Sections 188 and 191 of the Industrial Relations Act are also relevant. Section 188 is contained within Pt 7 of Ch 4 of that statute and provides: 188. Appeals to Full Bench by leave only (1) An appeal to a Full Bench of the Commission under this Part may be made only with the leave of the Full Bench. (2) The Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted. (3) The Full Bench may deal with an application for leave to appeal separately and without conducting a hearing into the merits of the appeal. (4) This section does not apply to an appeal made by the Minister. 91 Section 191 of the Industrial Relations Act expressly applies to an appeal by the prosecution by virtue of s 197A(6). Section 191 is in these terms: 191. Nature of appeal (1) An appeal to a Full Bench of the Commission under this Part is not by way of a new hearing and is to be determined on the evidence and material adduced in relation to the decision appealed against. (2) However, the Full Bench may, by leave, receive further evidence if it considers that special grounds exist or if the evidence concerns matters occurring after the decision appealed against. (3) To avoid doubt, the Full Bench cannot merely substitute its decision on the matter, but must follow the principles applying to appeals from discretionary decisions, whether or not further evidence is received.

92 The grounds of appeal fall into two categories: firstly, those relating to the proper construction and ambit of s 15(1) of the Act; and secondly, those relating to his Honour's findings and the particulars alleged by the prosecution.

93 In the second category, the grounds may be summarised as follows: (a) His Honour erred in failing to find the defendants had failed to provide an adequate system for assessing the safety of the roof and implementing an adequate system of recording and notification to employees of roof problems and roof history; (b) His Honour erred in law in finding that the anomaly in the roof at 25 CT [cut through] in the vicinity of 3 heading was not known or could not be detected and therefore there was no relevant risk to safety; (c) His Honour erred in law in finding that there was no causation in relation to both the failures because there was no "abnormal" risk and there was no risk associated with the roof "beyond the ever present and normal risk which the mining system is intended to manage". (d) His Honour erred in law in finding that the collapse of the roof occurred as a result of the induced loads imposed on the roof by the mining of stook X.

94 Appeals brought under s197A are governed by the ordinary provisions as to appeals under Pt 7 of Ch 4 of the Act, other than s196, including the requirements as to leave: WorkCover Authority of New South Wales (Inspector Bultitude) v Grice Constructions Pty Limited (2002) 115 IR 59 at [59]-[65]. The principles applicable to the granting of leave to appeal are set out in Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 at 381-382. The principles laid down in Knowles apply to appeals in occupational health and safety matters and in particular appeals brought under s197A of the Act: See for example WorkCover Authority of New South Wales (Inspector Moore) v Blacktown City Council (2003) 124 IR 59 at [13]-[14] per Walton J, Vice-President and Boland J. We adopt the judgment of the majority in Blacktown City Council.

95 We have decided to grant leave to appeal. The decision at first instance contains significant errors of fact and of law that go to important aspects of the Commission in Court Session's jurisprudence in occupational health and safety prosecutions and it is in the public interest that these errors be corrected. Further, in relation to the charges against the personal defendant, the expression "concerned in the management of the corporation" in s 50 of the Occupational Health and Safety Act has not been the subject of any significant judicial scrutiny as to its meaning. It is appropriate in this case that we consider the proper construction of that expression, and the operation of s53 of the Occupational Health and Safety Act with respect to a personal respondent.

96 It may be seen from the summary of his Honour's judgment that the proceedings involved a complicated factual matrix. The proceedings also involve consideration of a number of important issues of legal principle that have been developed by the Commission in Court Session in relation to occupational health and safety offences spanning over nearly 20 years although, we are bound to observe, it was not easy to comprehend the trial judge's application of legal principle to the facts of the case.

97 We consider that it is timely to re-state the relevant legal principles. In this respect we join with the Full Bench in Legge v Coffey Engineering Pty Ltd (No 2) (2001) 110 IR 447 at [16] in endorsing the 12 propositions conveniently set out by Hungerford J in WorkCover Authority of New South Wales (Inspector Keelty) v Crown in Right of the State of New South Wales (Police Service of New South Wales) (No 2) (2001) 104 IR 268 at [20] as representing the current state of the law in respect of the nature of the liability created by s 15(1), namely: (1) The duty imposed on an employer to ensure the health, safety and welfare at work of employees is absolute. (2) Such duty to ensure is to be construed as meaning to guarantee, secure or make certain. (3) The duty so created is directed at obviating "risks" to safety at the workplace, even absent any actual incident causing injury; that is, where the circumstances create a potential danger to the health and safety of employees at the workplace. (4) The duty cast on an employer is both preventive and remedial in nature and is not necessarily satisfied by carrying out what ought be done by a reasonable or prudent person in the circumstances. (5) It is wrong in considering whether a breach has occurred to reason from the actual incident causing injury as the necessary detriment to safety as such an approach may well lead to a misunderstanding of the real facts on which a charge is based. (6) An incident itself causing injury may well, and probably does, manifest the existence of a detriment to safety and will, no doubt, be some measure of the degree of severity of the detriment. (7) It is necessary to establish both a relevant "failure" on the part of the employer and a causal relationship between the conduct of the employer and the consequent risk to health, safety or welfare of the employees. (8) It is to the essential ingredients of the offence charged which one must attend by assessing the objective facts causing the detriment to safety and the causal connection therewith of the employer. (9) The commission of an offence does not require the demonstration by the prosecutor that particular measures should have been taken to prevent the risk, although there can be no relevant failure by an employer in not taking steps to preclude a risk which was impossible to anticipate. (10) There is no warrant for limiting the detriments to safety contemplated by the statutory duty to those which are reasonably foreseeable. (11) Whilst relevant risks should not be merely speculative or unduly remote, measures which may have been taken to prevent any failure might be relevant to the statutory defence under s 53 that either, firstly, it was not "reasonably practicable" to have complied with the duty or, secondly, that the commission of the offence was due to causes beyond the control of the employer and against the happening of which it was impracticable to make provision. (12) The liability of an employer is to ensure that employees are not exposed to risks to health or safety while at work. The liability thus created according to the criminal standard of beyond a reasonable doubt makes out the offence; it is then for the defendant employer to prove to the civil standard on the probabilities the elements available under the s 53 defence.

98 We have proceeded to determine this matter on the basis of the foregoing propositions subject to what we say shortly regarding "speculative" and "unduly remote" risks to safety.

99 We shall deal, firstly, with the two charges against the corporate respondent, Powercoal. The first of these charges has been referred to throughout the proceedings as the assessment charge, that is, the particulars of the charge referred to a failure by the corporate defendant to provide an adequate system for assessing the safety of the roof. The second charge has been referred to as the recording and notification charge. It was similar to the first charge except that in the particulars it was alleged that the defendant's failure was a failure to implement an adequate system of recording and notification to employees of roof problems and roof history.

100 The particulars in both charges referred to a "a potential risk" of the roof falling in while employees were working at 304 Panel 25 CT in the vicinity of 1,2 and 3 Headings at the Awaba Colliery, Awaba between 15 and 17 July 1998. We do not find the reference to a "potential" risk at all helpful. Either a risk exists or it does not. Section 15(1) is directed to obviating actual risks to safety in the workplace even absent any actual incident causing injury either by eliminating the risk or by protecting employees from the dangers presented by the risk. Use of the word "potential" could be interpreted as meaning the risk was yet to come into being but it is clear from the appellant's case, both at first instance and on appeal, that what was being alleged was that a risk existed, and that is how we have approached the matter.

101 In relation to the alleged risk, his Honour found that the actual weakness of the roof that fell was not detectable prior to the fall and that "there was accordingly no known or identifiable risk arising from that weakness." His Honour came to this conclusion notwithstanding that there were signs of "poor roof": [133]. Despite the signs of a poor roof his Honour considered that it was not clear that there was a risk associated with the roof "beyond the ever present and normal risk which the mining system is intended to manage". Further, Peterson J stated at [133]: The minimum support rules provide for testing the roof and, where it is found to be poor, supporting it in an appropriate fashion; the poorer the roof the heavier the concentration of bolting and the application of W-straps and the like. While miners are testing the roof, by employing the recognised means, there is in that process no inherent failure by the employer to ensure the safety of employees. If that were not so, it seems to me the very process of mining underground by these accepted means would have to be regarded as inherently dangerous to the point where the employer has failed, or perhaps cannot but fail, in its statutory duty. That view cannot be supported.

102 At [148] Peterson J observed that "On the evidence, any abnormal risk associated with mining was non-existent in the areas in which the men were working until stook X was drastically reduced. Dribbly or flaky roof occurring in the area of the goaf was a normal experience."

103 As it may be seen, Peterson J found that, despite the fact there was a weakness in the roof, the defendant was not aware of the weakness and could not have known about it because, in his Honour's opinion, the weakness was undetectable. This appears to have led his Honour to the conclusion that although a risk to safety did, in fact, exist (in that the roof might fall in because of a weakness in it), if the employer was unaware of that fact and had no way of knowing that it might fall in, and if the recognised means of testing the integrity of the roof were applied - limited in effectiveness though that means might have been - and other procedures relating to mine safety were followed, it could not be said the employer failed to ensure the safety of employees.

104 Where a risk to safety exists, regardless of its character, it will be a breach of s 15(1) (subject to the defences available under s 53) if the employer fails to take steps to eliminate the risk or fails to ensure that the risk to safety does not impact on employees. It is apparent from the nature of underground mining that it will not always be possible to eliminate all of the risks associated with such work. If, however, the mining system adopted by the employer does not ensure the safety of employees against a risk then the employer will have breached its statutory duty subject to it making out any defences. It is a wrong approach to the obligation of an employer under s 15 of the Act to proceed on the basis that in an industry such as underground coalmining there is an acceptable level of risk and that provided the employer complies with certain internal and external standards relating to safety, the employer has met its obligations under the section. Whether the employer has met its obligations is to be assessed against the statutory standard of "to ensure" or, as Watson J put it in Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 at 470, "guaranteeing, securing or making certain".

105 As to the finding by his Honour that "the actual weakness in the roof which fell was not detectable prior to the fall and that there was accordingly no known or identifiable risk arising from that weakness", it is, of course, not necessary for the prosecution to succeed under s 15(1) to show that the defendant knew the precise nature of the risk that may have caused injury to an employee. In other words, it was not necessary for the corporate respondent in this case to have known, in Dr Moelle's words, that there was "an unusual depositional configuration, involving conglomerate and laminate units with extremely weak contacts and very little effective bonding in the immediate roof, approximately 5 to 8 metres above the working roof" thus producing a very significant weakening in the roof. As Walton J, Vice-President explained in an exposition on the concept of risk in O'Sullivan v The Crown in the Right of the State of New South Wales (Department of Education and Training) (2003) 125 IR 361 at [140]-[141]: 140 The distinction must be drawn between a risk, such as the violent behaviour of a member of the public or severely intellectually disabled student, occurring independently of the employer, the general nature of which may be known, and the risks which arise from the manner in which the employer exposes the employee to that risk. To put it another way, the employer fails to ensure the health, safety and welfare at work of its employees by failing to appropriately equip or protect them from risks inherent in their work (as opposed to risks which are merely speculative or unduly remote - see Drake at [145]), notwithstanding that such risks may be caused by external factors, known or unknown. As Hungerford J noted at paragraph 20 of WorkCover v Police Service (No 2) , the duty imposed upon the employer is directed at obviating risks where the circumstances create a potential danger to the health and safety of employees at the workplace. It is upon this distinction between a specific risk (the particular actions of an individual in a given context on a given day) and a general class of risk that analysis must concentrate, for focussing too closely on the specific risk immediately preceding the incident under scrutiny can lead to the error so frequently warned against: concentrating on the incident itself. Appreciation of this distinction also makes it clear that the defendant's preliminary submissions are based upon the wrong risk: when attention is focussed upon the risks which arise from the manner in which the employer exposes the employee to the risks, the defendant's submissions in this case, as in WorkCover v Police Service (No 2), fall away.

141 Although it is implicit in the judgment of Hungerford J, and indeed in the forgoing analysis, I make it plain that I reject the defendant's submission in this case that the prosecutor must establish that the step required to have been taken by the defendant would have eliminated the entire risk. There is no justification for limiting the broad words of s15 of the Act in such a manner, particularly in the context of an Act which has the stated purpose of securing the health, safety and welfare of persons at work. To accept such a submission would virtually render s15 ineffective and belie almost every decided case, for what risk in an operating workplace can be eliminated entirely?

106 In WorkCover Authority of New South Wales (Inspector Childs) v Kirk Group Holdings Pty Limited and Anor [2004] NSWIRComm 207, after referring to O'Sullivan and Police Service (No 2), it was observed: 133 It is clear from the foregoing cases that careful attention must be paid to the correct identification of the risk the subject of the charges: Police Service (No 2) and O'Sullivan make it clear that it is inappropriate to seek to artificially confine the risk to one narrowly defined by reference to an accident with the benefit of hindsight: it is the general class of risk which matters. The danger repeatedly cautioned against of focussing too much attention on an accident is twofold: such a misguided focus can obscure the relevant risk, and it can also misdirect an analysis of causation. 134 The Full Court stated clearly in Drake Personnel that the concept of "reasonable foreseeability" does not apply to the duty imposed by s15. What of risks which are impossible to anticipate, speculative or unduly remote? The decision of Peterson J in WorkCover Authority of NSW (Inspector Smith) v Dubavo Pty Ltd (unreported, CT 1247 of 1993, Peterson J, 24 July 1995) that there can be no failure on the part of an employer to obviate a risk which was impossible to anticipate may be characterised as an elaboration of the requirement to establish causation. The same could be said of risks which are merely speculative as distinct from those risks which are real and appreciable (see Drake Personnel at 452 - 453). If a risk is impossible to anticipate or is entirely speculative it will be very difficult to prove causation to the criminal standard.

135 The theoretical and authoritative bases for distinguishing "unduly remote" risks are somewhat unclear and may be examined by the Court at some later date. The distinction is difficult to reconcile with the forceful judicial pronouncements on the absolute, proactive nature of the duty extracted above, such as the Court's observation in Ferguson v Nelmac Pty Limited (1999) 92 IR 188 that the duty is not confined to taking precautions only where there are "warnings or signals of danger or when experience indicates that a risk to safety has arisen" and the observation of Hill J in Atco Controls Pty Limited that "employers should be on the offensive to search for, detect and eliminate, so far as is reasonably practicable, any possible areas of risk to safety, health and welfare which may exist or occur from time to time in the workplace" (emphasis added). "Remote" risks must fall within the duty imposed by the Act (otherwise, it would be meaningless to extend risks beyond those which are reasonably foreseeable) and the question then centres upon whether the word "unduly" introduces a qualitative difference to justify exclusion from the broad duties imposed by ss15 and 16 of the Act or alternatively whether, as anticipated in the previous paragraph, the issue would be decided on a case-by-case basis by reference to causation.

136 The authority cited in support of an exception to liability under ss15 and 16 of the Act for "unduly remote" risks is Kirkby v A & MI Hanson Pty Ltd , but the words do not appear in that judgment. The relevant passage is a summary of submissions made by counsel for the defendant, based on two High Court cases dealing with statutory culpable driving offences (at 49): Counsel for the defendant met the first element in issue, namely the risk to the health and safety of persons on the site, by the proposition that the "risk" had to be real or appreciable and not of a speculative kind": see McBride v The Queen (1966) 115 CLR 44 at 49-50 and Jiminiez v The Queen (1992) 173 CLR 572 at 579.

137 The question of whether an employer's duty under the Act extends to protecting employees and contractors against "unduly remote" risks does not fall to be determined in this case, but it must be regarded as an area of the law which remains to be crystallised.

107 There are two relevant and important points that emerge from the foregoing extracts in O'Sullivan and Kirk Group Holdings. First, focussing to closely on a narrow class of risk, defined by reference to the peculiarities of the incident under scrutiny, can lead to the error of concentrating on the incident itself. Such an approach may well lead to a misunderstanding of the real facts on which a charge is based. This is an error into which Peterson J fell. His Honour found, in effect, that the reason the roof fell and caused the fatal injury to Mr Edwards was because of a particular weakness in the roof identified by three of the expert witnesses, which was exacerbated, his Honour seems to have considered, by the reduction in size of stook X. That is, his Honour found that the risk to safety lay in the roof weakness and because the weakness was not known to the defendant and was not detectable, there was no risk.

108 It may be seen that his Honour focussed on the specific detriment to safety (i.e., the weakened section of the roof that collapsed because of the mining of stook X) causing the fatal injury to Mr Edwards. This was not a risk to which the charges were directed. The charges ranged much more widely (and over a longer period than just the shift on 17 July 1998 when stook X was mined), They alleged there was a risk of the roof falling in while employees were in the vicinity of 1, 2 and 3 Headings adjacent to 25 cut through and that the defendant failed to avert the risk by not providing an adequate system for assessing the roof and not implementing and adequate system of recording and notification to employees of roof problems and roof history. This is the risk his Honour was required to address and it was not open to the trial judge to formulate a different risk.

109 The second point raised in O'Sullivan and Kirk Group Holdings is this issue of whether there is a relevant failure on the part of an employer if steps are not taken to preclude a risk that was impossible to anticipate or that was merely speculative or unduly remote: See also Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of NSW (Inspector Ch'ng (1999) 90 IR 432 at 452; WorkCover Authority of NSW (Inspector Keelty) v The Crown in the Right of NSW (Police Service of NSW) (No 2) (2001) 104 IR 268 at [20]. We agree with the observation of Walton J in Kirk Group Holdings that: …[T]here can be no failure on the part of an employer to obviate a risk which was impossible to anticipate may be characterised as an elaboration of the requirement to establish causation. The same could be said of risks which are merely speculative as distinct from those risks which are real and appreciable (see Drake Personnel at 452 - 453). If a risk is impossible to anticipate or is entirely speculative it will be very difficult to prove causation to the criminal standard.

110 We also agree with the Vice-President's observation in Kirk Group Holdings at [135] that: "Remote" risks must fall within the duty imposed by the Act (otherwise, it would be meaningless to extend risks beyond those which are reasonably foreseeable) and the question then centres upon whether the word "unduly" introduces a qualitative difference to justify exclusion from the broad duties imposed by ss15 and 16 of the Act or alternatively whether … the issue would be decided on a case-by-case basis by reference to causation.

111 In the present case, however, we do not consider that the risk to safety was impossible to anticipate, merely speculative or unduly remote (to the extent that issue is relevant). Apart from the ever-present risk of roof collapse, it is our assessment of the evidence there were very clear indications pointing to the existence of a risk from the roof falling in and that his Honour was either mistaken in relation to them or understated these indications. The evidence was that either non-conglomerate or inferior conglomerate roof had been detected in the relevant area of the mine prior to the roof fall, indeed as early as the first workings. Non-conglomerate material is more susceptible to failure that a solid conglomerate roof and as Mr Dellaca, a mine deputy, said in his evidence "you treat it warily". Further, the results of test bore holes drilled prior to first workings in the area of 304 Panel, suggest that the roof was sandstone; other like material recorded it as conglomerate and sandstone. As we noted earlier, the relevant Pillar Extraction Approval Conditions (condition 8) stated that: In particular a sandstone/shale roof or a thin conglomerate/shale roof may give no warning of collapse.

Those areas where the roof is not conglomerate should be denoted and placed on all plans associated with pillar extraction.

112 Even if it could be said the roof was not non-conglomerate but rather inferior or thin conglomerate, it is apparent from the evidence the same susceptibility to collapse arises. In the first workings, four W straps were installed in 3 Heading, inbye of 25 cut-through, at the stub face. The W straps indicated inferior roof, that the roof was broken and the W straps had been put in to tie the roof together. Also in the first workings, extra bolts had been inserted in the stub of 1 Heading indicating poor roof conditions. There had been a roof fall (two lifts wide and about 400mm thick) in sequence 4 on the previous shift and a rock fall about 15 cm thick covering an area of 2 to 3 metres. The roof in the goaf had been described as "dribbly" or "flaky" and contained water cracks. Further, the evidence was that in a pillar stripping operation there was a risk that a roof fall in the goaf area would not be confined to the goaf area by timber props and stooks and could extend to an area where employees were working. In this respect, Dr Galvin said in his evidence: A situation which must be avoided [in pillar stripping] is where the pillars fail whilst mining is still taking place in the panel. This is because it can lead to roof falls running into the working area and to large windblasts.

113 There was also a distinct uneasiness felt by Mr Miles, a miner of great experience, on the day of the incident. He sounded the area "quite a few times" on 17 July because he "felt there was something wrong … and being a new area with solid coal and with the barrier it did not seem to be doing what it would normally do." Mr Miles had also been worried about encountering a dribbly roof and water cracks on 15 July. Moreover, the corporate respondent did not know the exact geological configuration of the area in which the incident occurred, which should have increased the respondent's consciousness regarding risks to safety.

114 We also note from the evidence that the stook adjacent to 1 Heading was in two sections and did not represent a solid wall between the goaf and the open area of 1 Heading where the roof was indicating signs of weakness. The situation then on 15, 16 and 17 July was that there were signs of poor roof in 1 Heading, the left hand stook was not a solid wall between the goaf and 1 Heading, the goaf area was showing signs of poor roof and 3 Heading, on the right hand side of stook X, was indicating poor roof. Moreover, at least parts of the roof consisted of inferior conglomerate or non-conglomerate and were consequently more susceptible to collapse than solid conglomerate.

115 Thus, whilst the corporate respondent was not aware of the precise nature of the weakness in the roof, there were definite warning signs that the roof presented a risk to safety. It could not be said, in these circumstances, that a risk of the roof falling was impossible to anticipate or even that it was merely speculative or unduly remote. Accordingly, there was a clear obligation on the defendant to take measures to protect employees against the risk of the roof falling in. But, importantly, even absent these warning signs, the obligation remained on the defendant to ensure the safety of employees: Ferguson v Nelmac Pty Limited (1999) 92 IR 188 at 209.

116 Senior counsel for the respondents submitted that the signs of poor roof did not evidence a risk beyond that normally encountered beyond the inherent risk of working in a mine. It might be correct that the signs of poor roof did not indicate the presence of the particular weakness that eventually contributed to the collapse of the roof. But that is not the point. The existence of poor roof over a significant area extending from 1 Heading, through the goaf area and into 3 Heading, and in an area that was not all solid conglomerate, unmistakably, in our view, signalled the potential for a roof fall beyond the potential that might normally be encountered in a mine. Thereby arose a risk to health and safety. It could not be assumed in these circumstances (regardless of whether stook X had remained intact), that the risk ended at the edge of the goaf area adjoining 25 cut through and that persons working beyond the goaf area were, therefore, safe. There was evidence that in the process of pillar stripping a roof fall can run into the working area.

117 In conclusion on the question of the existence of a risk, we consider Peterson J erred in finding that there was no risk against which the defendant should have taken measures to ensure the health, safety and welfare of employees.

118 Peterson J found that there was sufficient evidence to support a conclusion, on the balance of probabilities, that the collapse of the roof occurred as a result of the induced loads imposed on the roof by the mining out of stook X (the unmined coal to be left between the area being mined and 3 heading). His Honour found that stook X had been reduced in size by unauthorised mining to 20 per cent of its planned size. The reduction of the size of stook X was contrary to the Manner and Sequence of Lifting Plan and the Support Rules for pillar stripping in 304 Panel.

119 The appellant in the proceedings below had contended that the focus on the skimming of stook X as causing the roof fall to spread to 3 Heading, and leading to the death of Mr Edwards, was misconceived. Such reliance, it was submitted, wrongly concentrated on the accident itself rather than the risk to safety. The appellant also put an alternative submission as to the risk of roof fall and injury specific to Mr Edwards' location at the time of the accident. In this respect, the appellant at first instance submitted: (a) No one gave evidence that there was no risk of the fall extending into 3 heading if the stook had been properly formed.

(b) The duty to provide a risk free environment was a duty owed not only to the careful and observant employee but also to the hasty, careless, inadvertent, inattentive, unreasonable and disobedient employee: WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd [2001] NSWIRComm 50 at [45]; Riley v Australian Grader Hire [2001] NSWIRComm 31 at [15].

(c) A safe system of work could have prevented the apparent breach of the normal requirements for the formation of stooks. The omissions by the defendant led to a situation where the employees were working in an area where they should not have been working. Alternatively, to the extent it was suggested that an adequate system of recording and/or assessment would have still resulted in the employees working in the area, a safe system of work would have at least led to a situation where they were working with a heightened awareness of safety.

(d) Any skimming of the stook took place under the supervision of the deputy Mr Gardner.

(e) Liability cannot be avoided by relying on a submission that the corporate respondent delegated safe working to the deputy: SRA v Dawson (1990) 37 IR 110 at 125.

(f) It was central to the charges that there was not a "well established and well settled safe work method which had been promulgated to all employees" as was the case in SRA v Dawson and it was no answer to the charges to say that the deputy was given plenary powers to deal with issues of safety that arise in the course of carrying out the work at the coalface.

120 As we noted earlier, Peterson J referred to the decision of the majority (Walton J, Vice-President and Boland J) in WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd at [45]. His Honour considered that the reference to reasonable foreseeability in Arbor Products was not intended: [T]o introduce an element in the offence but to be referring to the defences available under s 53. If it were otherwise, there is no basis for concluding Powercoal could have reasonably foreseen the skimming of stook X. The mining plans were predicated on the leaving of a stook and, while the very existence of the terms "skimming" or "robbing" the stook might suggest the existence of some practice, the evidence did not seek to (and did not) establish any such practice, and thus foreseeability.

121 In Kirk Group Holdings, after referring to the judgment in Arbor Products, Walton J Vice-President stated at [129]: 129 I note that the statement of principle in Arbor Products appears to qualify the extent of the duty to the hasty, careless, inadvertent, inattentive, unreasonable or disobedient employee to only that conduct which is "reasonably foreseeable". The use of the words "reasonably foreseeable" in that context should not be construed as introducing an element of foreseeability to the duty owed under s15, or to limit the risks to safety contemplated by s15 to only those that are foreseeable (as was proscribed by the majority in Drake Personnel ). Rather, to the extent that the behaviour of careless or disobedient employees may not be reasonably foreseen, that is a matter which may properly be raised in relation to a defence under s53 of the Act. That is, the unforeseeable behaviour of a disobedient employee may well lead to the happening of an event that could not be reasonably foreseen, and, therefore, which was not reasonably practicable for an employer to guard against. We consider his Honour was correct in his view regarding the reference to "reasonably foreseeable" in Arbor Products .

122 We do not propose to dwell on the issue of the reduction of the size of stook X as being the cause of the risk of injury. As his Honour correctly observed at [148], the charges were not related to that issue. Further, despite his Honour's finding that there was sufficient evidence to support a conclusion "on the balance of probabilities", that the roof collapsed because of the unauthorised skimming of stook X, his Honour also found that the risk of injury arose from an event "the cause of which was not able to be ascertained from the evidence." So it is not entirely clear what role his Honour considered the mining of stook X played but it seems that his Honour was of the view that the roof fall (and hence the fatal injury to Mr Edwards) was "attributable to the reduction in size of stook X": [147]. 123 We agree with the appellant that a focus on the skimming of stook X as being the cause of the roof fall and thereby the fatal injuries to Mr Edwards was misconceived because it could lead to the wrong inquiry. The issue is not whether the corporate respondent failed to ensure safety by failing to take steps to ensure stook X was not skimmed thereby giving rise to a risk of the weakened section of the roof falling in at that location; rather the inquiry is a broader one: Did the corporate respondent fail to ensure the safety of employees by failing to provide an adequate system for assessing the safety of the roof in the area where employees were working between 15 and 17 July 1998 and by failing to implement an adequate system of recording and notification to employees of roof problems and roof history? It is to be noted that the mining of stook X did not occur until 17 July 1998 whereas the risk is alleged in the charges to have been in existence since 15 July 1998.

124 It was alleged that the corporate respondent failed to provide an adequate system for assessing the safety of the roof. Peterson J considered at [140] that: The question of the provision of an adequate system for testing the safety of the roof may also be examined from the perspective that the means of testing employed, through essentially sight, sound, and vibration, were recognised in the evidence of the experts as the only means of testing the stability of the roof available at the time of this accident. They were the known and accepted means. In these circumstances, there has not been demonstrated, on the evidence, any failure by Powercoal to provide an adequate system for assessing the safety of the roof in the context of its mining plans.

125 Essentially, the only means employed for testing the integrity of the roof was by visual inspection and sounding/vibration with a metal bar. There are obvious limits to such methods. In relation to the use of the metal bar, the distance into the roof in which a fracture or weakness can be detected is of the order of 200mm to 300mm. The extent of the area over which the sounding/vibration is effective is limited to about 600mm diameter. Neither visual inspection nor sounding/vibration was able to identify the weakness that was the immediate cause of the roof falling in at the Awaba Mine despite, for example, the care taken by Mr Miles in using these methods.

126 Despite the limitations of visual inspection and sounding/vibration, a matter of which Peterson J was aware, his Honour adopted the approach that if there were no other means available to assess the stability of the roof and if the "known and accepted means" were used, the corporate respondent did not fail to provide an adequate system for assessing the safety of the roof. The appellant had submitted that the assessment was not adequate because: (a) It did not require a comprehensive inspection and assessment of each area where work was to be carried out before second workings commenced.

(b) The system of work in relation to assessing the stability of the roof did not require a risk assessment of each area where work was to be carried out when the method changed from pillar extraction to pillar stripping.

(c) The system of work did not require that mine officials' reports be analysed over more than one shift to determine whether a pattern of instability was emerging.

(d) The system of work was not sufficiently prescriptive in relation to the indicia of unstable roof conditions.

(e) The system of work did not require that work cease in the event of the indicia of unstable roof conditions being present or alternatively that special steps be taken to ensure roof stability.

127 We do not accept that visual inspection and sounding/vibration with a metal bar constituted an adequate system for assessing the safety of the roof; it was plainly not. Regardless of whether the visual inspection and sounding/vibration methods were the only "known and accepted" means of assessing the safety of the roof - and we think there is doubt about that given the evidence regarding the other measures referred to by the appellant, a system of assessment is not made adequate because it is said to be the only means available. We consider there was an over reliance on sounding the roof as the means of assessing its competency to the extent that it detracted from the need for the appellant to take a more systematic and broader approach to the question of whether there was a risk of roof fall that might jeopardise the safety of the mine workers.

128 It is not open to an employer, in answer to a charge under s 15(1), to contend that it was unable to assess whether something was safe because there was no method or technology available to do so (subject, of course, to any available defences). Employees cannot be placed in a situation where the employer is unable to ensure, or make certain, or guarantee their safety. That is not to say that visual inspection and sounding with a metal bar cannot be used in testing the safety of a roof in an underground mine. As long as it is comprehended that in relying on these methods alone is not a guarantee of safety.

129 It then becomes a question of whether the corporate respondent's failure to provide an adequate system for assessing the safety of the roof was causally connected to the risk of the roof falling in whilst employees were working in the relevant area. There will be a causal connection if the corporate respondent's failure to provide an adequate assessment system failed to avert the risk to safety of the roof falling in. Clearly, in this case, it did. Visual inspection and soundings using a metal bar, which was essentially the method used by the defendant to assess the safety of the roof, did not avert the risk of the roof falling in. In fact the roof fell in and killed Mr Edwards, thereby putting beyond any doubt that the corporate respondent failed to obviate the risk to employees working in the relevant area. If there had been an adequate system of assessing the safety of the roof we are satisfied the risk would have been avoided.

130 The respondents contended that the risk of the roof falling as a consequence of the weakness referred to in the expert evidence was not known and not detectable. Therefore, it was submitted, no act or omission with which the employer is charged is causative of the danger to employees. We have found, however, that there were clear signs pointing to the potential of a roof fall in the relevant area thereby giving rise to a risk to health and safety. The failure to adequately assess this risk meant there was a failure to avert the risk to safety of the roof falling in.

131 In relation to the recording and notification charge Peterson J concluded that the appellant had not made out its case. Whilst his Honour found that there was no recording (and hence no notification) indicating poor roof on any plans used for the second workings, the trial judge held that in circumstances where mining officials were aware of indicia of poor roof conditions represented by the W straps in the stub of 3 heading and where the nature of the roof "was undetectable at first workings" there could not be any causal connection "between the absence of any recording and notification of first workings information and the fall of the roof or the relevant risk to which the workers, and particularly Mr Edwards were exposed."

132 As we have observed, his Honour found there was no recording on any plans used for second workings of the poor roof conditions represented by the W straps in the stub of 3 Heading and, therefore, no notification to employees. However, there was also evidence that there was no recording in relation to the extra bolting in the stub of 1 Heading and no notification of the roof history. We also observe that the recording and notification charge was not limited, as his Honour seemed to believe, to any failures to record at first workings. The evidence was that there was also a failure to notify during the second workings in that reports by mine deputies recording indicia of poor roof were not disseminated to all mineworkers who subsequently worked in the relevant area. It follows that the corporate respondent failed to implement any system of recording and notification relevant to the allegation in the charge, let alone an adequate system.

133 This leaves the question of whether this failure on the part of the corporate respondent was causally connected to the risk of the roof falling in while the employees were working in the vicinity of 1, 2 and 3 Headings. Peterson J appears to have taken the view that the causal connection was broken by the awareness of mining officials of poor roof and because the nature of the roof was undetectable at first workings.

134 As to the awareness of mining officials at [130] of his judgment Peterson J observed that: 130 There was also evidence from supervisors and at least one member of the mining crew of their knowledge of the W-straps placed in 3 heading and what that indicated. Messrs Cull, Horn, Dellaca and Cornwell spoke of that knowledge.

135 Mr Cull was the mine undermanager. He said he was aware of the "spot bolts" in 1 Heading and the W straps in 3 Heading both indicating, in his view, inferior conglomerate roof. Mr Cull did not record the existence of the roof support in 1 and 3 Headings and, importantly, he said in his evidence that the indications of poor roof in 1 and 3 Headings were not taken into account in determining the lift-off procedure in sequences 4 and 5. Mr Dellaca, a mine deputy, also knew of the strapping in 3 Heading but took no action in relation to it. Mr Dellaca said of the roof fall in sequence 4 on the shift previous to that on which the incident occurred that it was not recorded because it occurred in the goaf. Mr Horn, another mine deputy, knew of the roof support in both 1 and 3 Headings but took no action in respect of those supports. Mr Cornwell, an electrician, said he knew about the W straps in 3 Heading but it was not clear whether his knowledge was gained after the incident on 17 July. Mr Cornwell did not go into 1 Heading.

136 As for other members of the crews working in the relevant area between 15 and 17 July, Mr Johnson, a mine deputy, was aware of the roof support in 3 Heading but took no action in respect of it. Mr Johnson also observed a fall from the roof in sequence 4 covering an area of 2 to 3 metres and about six inches (15 centimetres) thick on 16 July. He recorded the fall as "sandstone band on roof falling out" but he did not consider it to be significant. Mr Gear, a miner driver, was not aware of the roof support in 1 and 3 Headings. Mr Dunn, the driver of the shuttle car behind the miner at the time of the fall, could not remember whether there was any roof support in the vicinity of his workplace on 17 July 1998. Mr Miles, a miner, could not recall seeing any roof support in 1 or 3 Heading on 17 July although he looked into 3 Heading. Mr Gardner was the mine deputy on shift on 17 July. Mr Gardner did not give evidence but Peterson J noted at [143] that "he was placed by Mr Dunn in evidence as standing, at the time of the fall, in the intersection of 25 cut-through and 3 heading, amongst some timber props which had formerly been placed there." It is not known whether Mr Gardner knew of the roof support in 1 and 3 Heading.

137 It is apparent from the evidence that not much, if any, significance was assigned to the fact that there was poor roof in the stubs of 1 and 3 Heading book ending as the stubs did, the 66 metre-length of sequences 4 and 5 where the mining took place between 15 and 17 July 1998. The fact that there was poor roof was not collated and recorded in a coherent fashion and it appears where signs of poor roof were occasionally recorded in statutory reports no particular significance was attached to these signs. Moreover, the information was not notified to the crew as a whole working on shifts between 15 and 17 July in any form. It was certainly the case that individuals knew about the poor roof in 1 and 3 Heading but none of them, individually or collectively, drew any connection with the possibility that, combined with other signs of poor roof in the area being lifted between 1 and 3 Heading (roof fall, rock fall, flaky or dribbly roof, water cracks), the state of the roof constituted a potential danger of it falling in and, in doing so, extending outside the goaf area.

138 As to his Honour's finding that the nature of the roof was undetectable at first workings, we assume, because it is not clear, his Honour meant that the particular weakness in the roof identified by Dr Moelle that contributed to it falling in, was not known at first workings. Clearly, however, those employees engaged in first workings considered the roofs in the stubs of 1 and 3 Headings to be poor. It was described as "drummy" by Mr Johnson and as warranting comprehensive support in the form of W straps in 3 Heading and extra roof bolting in 1 Heading. Even if the roof in 1 and 3 Heading could not be described as non-conglomerate, it was most definitely inferior conglomerate and according to the Pillar Extraction Approval Conditions "may give no warning of collapse". Approval Condition 8 required such roof to be denoted and placed on all plans associated with pillar extraction. This was not done. 139 Although there was no recording or notification of the particular weakness in the roof described by Dr Moelle in his evidence because the weakness was undetectable, it does not alter the fact that in the course of first workings the roof of the stub in 3 Heading was found to require comprehensive support and the roof in the stub of 1 Heading required bolting in excess of the normal pattern. That fact was not recorded and, therefore, not notified to employees working on the shifts on 15 to 17 July 1998. The focus by his Honour on the particular weakness in the roof overlooks the alleged failure, which was a failure to implement an adequate system of recording and notification to employees of roof problems and roof history.

140 The essence of the appellant's position regarding causation in respect of the recording and notification charge was that the failure to record and notify during both the first and second workings meant that employees working on the shifts between 15 and 17 July 1998 were not all made aware of the poor roof in the stub of I Heading, which was at the left hand extremity of the roof fall, they were not all made aware of the poor roof in the stub of 3 Heading which was at the right hand extremity of the roof fall and they were not all made aware of the incidents indicating the presence of poor roof in the area being mined between 1 Heading and 3 Heading manifested by a roof fall and rock fall, flaky roof and water cracks.

141 We have already noted that a number of the employees working on the shifts between 15 and 17 July were aware of various aspects of poor roof in the vicinity of their work area and, Mr Miles, for example, on 17 July was uneasy about encountering dribbles of pebbles or rock material from the roof near the goaf edge adjacent to 25 cut through. But in light of the absence of any adequate system of recording the various pieces of information regarding the state of the roof, there was no opportunity for employees to obtain an overall picture of the situation; there was no collection and coordination of the information that, considered as a coherent whole, would have undoubtedly indicated a risk to safety.

142 In our opinion, if all of the indications of poor roof had been collected and recorded in a plan relating to the extraction process - a plan considered by Dr Galvin to be important in evaluating the magnitude, nature and direction of geological features; had the plan been continually updated during second workings; and, had such information been notified to employees, it would have conveyed to these employees that they could not proceed on the assumption they were working in connection with the relative safety of a solid conglomerate roof and that if work was to proceed it should only be in the most careful manner. It would also have become evident to the corporate respondent that it needed to take steps to ensure that the risk to safety of the roof falling in did not impact on employees whilst they were working at 304 Panel 25 CT in the vicinity of 1, 2 and 3 headings between 15 and 17 July 1998.

143 We consider that the failure on the part of the corporate respondent to implement an adequate system of recording and notification to employees of roof problems and roof history was a causal factor in the corporate respondent's failure to ensure that employees were not exposed to the risk of the roof falling in while the employees were working in the relevant area between 15 and 17 July 1998.

144 We find that the corporate respondent is guilty of an offence under s 15(1) of the Act as charged unless it establishes a defence under s 53 of the Act.

145 We should say at the outset of our consideration of s 53 defences that it was put to us by senior counsel for the respondents, as we understood him that the preferable course, if we were to find the corporate respondent liable, was to remit the question of the s 53 defences to a single judge for determination. It was said, in this respect, that credit was an issue. Nevertheless, senior counsel conceded that it was open to the Full Bench to deal with the s 53 defences subject to the Bench having read all of the extensive material presented at first instance. We have taken the latter course.

146 The corporate respondent in these proceedings relies on s 53(a) of the Act.

147 The requirements of s 53 were considered by the Full Bench in WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Limited (2002) 123 IR 121 at [83] to [86] as follows: 83 There was no question that the respondent had the requisite control over the worksite and, therefore, s53(b) does not arise. Rather, the respondent submitted it had done all that was reasonably practicable. As to what is required when considering a defence under s53(a), regard should be had to the judgment in WorkCover Authority of New South Wales (Inspector Byer) v Cleary Brothers (Bombo) Pty Ltd (2001) 110 IR 182: [87] It is evident from these authorities that what is required by s53(a) of the Act is a balancing of the nature, likelihood and gravity of the risk to safety occasioning the offence with the costs, difficulty and trouble necessary to avert the risk. At one end of the scale, it could not be reasonably practicable to take precautions against a danger which could not have been known to be in existence: see Jayne v National Coal Board [1963] 3 All ER 220 at 224 and Shannon v Comalco Aluminium Ltd at 362. Similarly, if the happening of an event is not reasonably foreseeable then it will not generally be reasonably practicable to make provision against that event: see WorkCover Authority of NSW (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 at 381; WorkCover Authority of NSW v Kellogg (Aust) Pty Ltd at 259 and Austin Rover Ltd v Inspector of Factories at 627 per Lord Goff and at 635 - 636 per Lord Jauncey of Tullichettle. [88] At the other end of the scale, there will be cases, such as the present, in which known or obvious risks to safety exist. In these circumstances, the defendant will not have established a defence under s53(a) of the Act where it was reasonably practicable to have complied with the Act by ensuring that persons were not exposed to those risks. This may be the case because no measures were reasonably available or because measures which were available were not reasonably practicable. As has been discussed, the assessment of the reasonable practicability of those steps requires a balancing of the quantum of the risk with the sacrifice (in money, time and trouble) in adopting the measures necessary to avert the risk. In my view, where there is a known risk which entails the potential for serious injury to persons in the workplace, the defendant will generally have to demonstrate that the costs, difficulty or trouble occasioned by the measures significantly outweigh the risk. This must be done by reference to the charge as brought by the prosecutor. 84 Those passages were subsequently approved by the Full Bench in Legge v Coffey Engineering Pty Ltd (No 2) (2001) 110 IR 447 at [38] and in Bultitude v Grice at [71]. 85 It may well arise that due to the exigencies of a particular work situation, it may have been impractical to have developed a safe system of work in advance. The particular circumstance may not have been a matter that was reasonably foreseeable in the way that phrase has been used in the authorities: see Bultitude v Grice (at [68]): Reasonable foreseeability of a risk or detriment to safety is relevant to the extent that it assists in determining whether it was reasonably practicable to avoid the risk. 86 Regard should be had in this respect to the judgment in Kellogg (No.1) (adopted by the Full Bench of the Court in Kennedy-Taylor v WorkCover Authority (at 82), Genner Constructions (at [67] - [68]) and Bultitude v Grice (at [68])): To establish a defence under s53, the defendant must prove, to a civil standard, either that it was not reasonably practicable to comply with the Act or that the commission of the offence was due to causes over which the defendant had no control and against the happening of which it was impracticable to make provision: see Drake at 48-49; Sydney City Council v Coulson (1987) 21 IR 477 at 480; and Italo Australian Construction Pty Limited v Parkes (1988) 24 IR 428 at 431. So much was accepted by the defendant in this case.

It is here that the question of reasonable foresight has relevance. If a defendant is able to demonstrate that the circumstances or causes of the detriment to safety constituting the offence were not reasonably foreseeable, it will generally have thereby established that it was not practicable to take measures to guard against that risk: see Jayne v National Coal Board [1963] 3 All ER 220 at 224 and Shannon v Comalco Aluminium Ltd (1986) 19 IR 358 at 363-364. In WorkCover Authority of NSW (Insp. Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 at 381, for example, Hill J commented in relation to s53: If the happening of an event is not reasonably foreseeable it is not practicable to make provision against it. When considering the matter of foreseeability, one should be careful not to substitute reasonable hindsight for reasonable foresight. This does not remove the obligation, to which I have earlier referred, of an employer to adopt a proactive approach to safety issues which seeks to discover and remedy potential risks to its employees and others. It is not a question of whether the employer did envisage a particular danger, but rather whether it should have.

148 In these proceedings the corporate respondent failed to avert the risk of the roof falling in while employees were working in the area that is the subject of the charges. The risk to safety arose through the respondent's failure to provide an adequate system for assessing the safety of the roof and the failure to implement an adequate system of recording and notification to employees of roof problems and roof history. Accordingly, in this case, the corporate respondent must prove to the civil standard that it was not reasonably practicable to ensure the health, safety and welfare at work of all its employees, in particular, Barry John Edwards, by ensuring that the risk of the roof falling in did not impact on the employees, by providing an adequate system for assessing the safety of the roof or by implementing an adequate recording and notification system.

149 In relation to the recording and notification system we do not consider the respondent has discharged the onus of proving that it was not reasonably practicable to provide such an adequate system. The expert evidence was that it was desirable to do so and we cannot see any obstacle at all to the respondent having done so both in relation to the first and second workings. It would have been a relatively simple matter to place on the working plans relating to the extraction process the information relating to the inferior roof in 1 and 3 Headings and to progressively update those plans as work progressed in the second workings. Further, it would have been a straightforward task of notifying employees on a regular and progressive basis of the information relating to the state of the roof. Had the corporate respondent done so we are satisfied the risk to safety would have been averted. 150 In relation to the assessment system, it essentially comprised of visual inspections by the mineworkers and sounding the roof with a metal bar. The evidence of Dr Galvin, which was accepted by Peterson J, was that these were the only means available in 1998 to test the safety of the roof. However, such means were incapable of detecting the weakness in the roof identified by the expert evidence.

151 The corporate respondent's defence under s 53(a) hinged on the contention that "if the happening of an event is not reasonably foreseeable, then it will not generally be reasonably practicable to make provision against that event": WorkCover Authority of New South Wales (Inspector Byer) v Cleary Brothers (Bombo) Pty Limited (2000) 100 IR 182 at [87]. As we understood the respondent's submission, the expert evidence was that the weakness in the roof, exacerbated by the unauthorised reduction in size of stook X, was undetectable by the means available to assess the roof, the risk of the roof falling was not reasonably foreseeable and, therefore, it was not reasonably practicable to ensure the safety of the employees.

152 The respondent was aware of the limitations inherent in visually inspecting the roof and in sounding it with a metal bar. Moreover, as we observed at [116] above: The existence of poor roof over a significant area extending from 1 Heading, through the goaf area and into 3 Heading, and in an area that was not all solid conglomerate, unmistakably, in our view, signalled the potential for a roof fall beyond the potential that might normally be encountered in a mine. Thereby arose a risk to health and safety. It could not be assumed in these circumstances (regardless of whether stook X had remained intact), that the risk ended at the edge of the goaf area adjoining 25 cut through and that persons working beyond the goaf area were, therefore, safe. There was evidence that in the process of pillar stripping a roof fall can run into the working area.

153 In those circumstances we consider, contrary to the corporate respondent's submissions, the risk of the roof falling in was reasonably foreseeable. As to the question of whether it was reasonably practicable to ensure the mine workers' safety, there was nothing impracticable in the respondent ordering mining to cease in the area that was the subject of the roof assessment charge until an adequate assessment of the safety of the roof had been carried out and we are satisfied such an assessment was reasonably practicable by the following means, namely: 1 The system of work should have required a comprehensive inspection and assessment of each area where work was carried out before second workings commenced.

2 The system of work should have required a risk assessment of each area where work was to be carried out when the method changed from pillar extraction to pillar stripping.

3 The system of work should have required that the mine officials' reports be analysed over more than one shift to determine whether a pattern of instability was emerging.

4 The system of work should have given priority to all indicia of roof instability and not overriding significance to sounding the roof and looking for stress on the timber props.

5 The system of work should have required that work cease in the event of the indicia of unstable roof conditions being present. There was no evidence as to the impracticability of just leaving the area, fencing it off and not working there at all. None of the above steps were impractical or unreasonable. There is nothing in terms of money, time and trouble that would have prevented these measures from being implemented.

154 Given the magnitude of the risk to employees of the roof falling in, the foregoing measures should, unquestionably, have been in place. There was clearly an over reliance on visual inspection and sounding, methods that were demonstrably inadequate. Had there been a comprehensive system of risk assessment and inspection in place where the risks associated with the roof were actively searched out and rigorously assessed, it would have become evident, as we have explained earlier in this judgment, that there was a risk of the roof falling in.

155 The corporate respondent has failed to make out a defence under s 53(a) of the Occupational Health and Safety Act.

156 The charges against Mr Foster, which are in the same terms as those made out against the corporate respondent, arise as a consequence of s 50 of the Act.

157 The elements of an offence under s 50(1) are that: 1 There is a corporation; 2 The corporation has contravened, by act or omission, any provision of the Occupational Health and Safety Act 1983 or the regulations made pursuant thereto; 3 The person charged is a director of the corporation or a person concerned in the management of the corporation. The onus of proving these elements beyond reasonable doubt falls on the prosecutor. However, the onus of proving the exceptions, namely, that the person charged: (a) was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or (b) being in such a position, used all due diligence to prevent the contravention by the corporation, falls on the personal respondent.

158 Senior counsel for Mr Foster submitted that the contravention by the corporation is a matter to be proved, beyond reasonable doubt, by the prosecutor for s 50 of the Act to operate at all. In order to prove the contravention by the corporation it was submitted the prosecutor must prove a breach of s 15 of the Act and the absence of a defence under s 53: See Cain v Doyle (1946) 72 CLR 409; Brian John Buckett (1995) A Crim R 302. In other words, as a condition precedent to dealing with s 50 in respect of the personal respondent, the onus is on the prosecution to negative the defence available to the corporate respondent under s 53(a). Further, it was submitted, the s 53 defence available to the corporation was also available to a personal respondent.

159 The proposition that the onus was on the prosecution to negative the defences available to a corporate respondent under s 53 as a condition precedent to a personal defendant being deemed to have contravened the Act pursuant to s 50, was considered by Staunton J in Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty Limited & Ors [2004] NSWIRComm 202 at [952] to [962]. After reviewing Buckett and Cain v Doyle her Honour found the proposition was not sustainable. We consider her Honour was correct.

160 In Buckett, Hunt CJ observed at 308: If the principal offender is provided with a defence, and if he would have succeeded in establishing that defence had he been charged, the offence has not been committed. The fact that such an offender would have carried the onus of proof in relation to that defence cannot alter that fact. In prosecuting the accessory, the Crown must therefore establish not only the essential ingredients of the offence committed by the principal offender but also that any defence so provided to him would not have been successful. 161 The circumstances discussed by Hunt CJ are not those obtaining here; the personal respondent is not an accessory to a crime committed by a principal offender but rather the question is whether he should, pursuant to the terms of s 50, be deemed to have contravened s 15(1) of the Act. A personal defendant charged pursuant to s 50 of the Act is deemed to have committed the offence unless the defendant can prove he or she was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or being in such a position, used all due diligence to prevent the contravention by the corporation.

162 The corporate respondent has been found to be guilty of the offence under s 15(1) and it has also been determined that the corporate respondent has failed to make out a defence under s 53(a) of the Act. There is no residual onus on the appellant to now prove all over again, in respect of the personal respondent, the essential elements of the offence under s 15(1) and that the defence under s 53(a) was not available. All that is now required of the appellant in relation to the personal respondent is to prove beyond reasonable doubt the three elements of the offence under s 50(1) of the Act.

163 We are not persuaded the defences under s 53 are available to the personal respondent in addition to those defences under s 50(1)(b) or (c). Section 53 provides a defence to any proceedings against a person for an offence against the Act. However, a person facing prosecution by virtue of s 50 is not the subject of proceedings for an offence against the Act: under s 50, if a corporation has committed an offence against the Act, such a person shall be deemed to have contravened the same provision (subject to the particular requirements of s 50). The very fact of deeming the contravention assumes that the person has not, in his or her own right, actually committed an offence.

164 The same conclusion follows from an examination of the terms of s 50. It is a precondition to the operation of s 50 that a corporation contravene a provision of the Act or regulations. This in turn assumes that there is no defence available to the corporation: if the corporation could rely upon a defence under s 53, there would not be a contravention. If the precondition (of contravention) is met, the director or "manager" is deemed to have contravened the same provision - that is to say, the individual is deemed to be in the same position as the corporation which has breached a provision of the Act and does not have the benefit of any defence under s 53. It would be incongruous for s 50 to require a contravention by a corporation, deem the same contravention, and then permit the examination, anew, of the availability of a s 53 defence when its unavailability has already been found in relation to the corporation and deemed in relation to the officer.

165 Further, s 50 explicitly enumerates two exceptions to the operation of its deeming provision, which do not include defences under s 53, and the use of the word "unless", coupled with the absence of any words of generality used to denote a list which is not closed, makes it clear that these two exceptions are the only exceptions. We consider that if the legislature intended both sets of defences to be available to an individual defendant deemed to have contravened a provision of the Act the statute would have made this clear, particularly given the incongruity described above. It would have been a simple matter of drafting to add reference to s 53 but that has not been done.

166 Finally, in broad terms, the overlap between the operation of s 50(1)(b) and (c) in relation to a director or "manager" and the operation of s 53 in relation to that director or "manager's" corporation suggests that the respondent's contention would result in unnecessary duplication. It seems to us that if a person was not in a position to influence the conduct of the corporation in relation to its contravention of a provision of the Act (thereby avoiding liability by virtue of s 50(1)(b)), or being in such a position, used all due diligence to prevent the contravention by the corporation (thereby activating s 50(1)(c)), then it would not have been reasonably practicable for the person to have complied with the relevant provision or, alternatively, the commission of the offence was due to causes over which the person would have had no control and against the happening of which it would have been impracticable for the person to make provision. For example, a director or "manager" with no real control over the corporation's conduct would not be in a position to institute a simple, practicable, change to a safety system well within the means of the corporation. Conversely, if the director or "manager" had the requisite control, then steps which would have been reasonably practicable for the corporation to take could have been taken by that individual.

167 This case provides another illustration of the duplication which would result, should we accept the respondent's construction. Given our findings, which we shall explain shortly, that Mr Foster did not make out the defences under s 50(1)(b) or (c), there is no basis, in our opinion to consider that it was not reasonably practicable for the personal respondent to comply with s 15(1) of the Act or that the commission of the offence was due to causes over which Mr Foster had no control and against the happening of which it was impracticable for him to make provision.

168 As to the elements of the offence, the first two have been made out; the corporate respondent has been found by us to have contravened s 15(1) of the Act. The third element raises the issue of whether Mr Foster was a person concerned in the management of the corporate respondent. Senior counsel for Mr Foster contended that having regard to the structure of the Act (see s 19 for instance, which imposes obligations on all classes of employees), the legislative intent expressed in s 50 was to make responsible only those persons who control or direct a corporation's activities by deeming them to be guilty of the same contravention established in relation to the corporation. It was submitted "that is, s 50 places a personal responsibility on those people who are in fact regarded by the legislation as 'the corporation' ".

169 We do not consider these submissions, contending that only the limited class of persons identified by the personal respondent may be guilty of an offence under s 50, are sustainable. Whilst s 19 applies to all employees, it provides for a different offence and penalty to that provided for under s 50. Where a person is deemed to have committed an offence, say under s 15(1), the personal defendant is deemed to have failed to ensure the health, safety and welfare of work of employees and is liable to a substantial penalty. A breach of s 19 involves only a failure to take reasonable care or a failure to cooperate and the penalty is only $3,300. Section 19 of the Act has no implications for the class of persons who may be found guilty of an offence under s 50.

170 It is quite apparent why the legislature included s 50 in the Act; without it those natural persons who direct a corporation's acts or omissions that are contrary to the requirements of the Act would avoid prosecution. The section recognises that it is not only directors who may be the guiding lights of corporations but also "persons concerned in the management".

171 There are no authorities directly in point as to the scope of what is encompassed by the term "persons concerned in the management of the corporation" as that phrase is used in the Occupational Health and Safety Act and in interpreting the phrase it is necessary to have regard to the normal rules governing statutory construction, which would include an examination of the context in which the expression is used and the objects of the Act. It is permissible, however, as an aid to interpretation, to have regard to how the phrase or similar wording has been construed in other statutory contexts: R v Scott (1990) 20 NSWLR 72 at 77 per Gleeson CJ with whom Hunt and Allen JJ concurred. 172 Helpful expositions of the expression "concerned in the management of" the corporation or body corporate (albeit not in connection with occupational health and safety legislation) are contained in the judgment of Ormiston J Commissioner for Corporate Affairs v Bracht [1989] VR 821 at 828 and in the judgment of Bleby J in Griggs v Australian Securities Commission [1999] SASC 405 at [41] to [45]. Bracht is referred to in Griggs, so it is unnecessary to refer to both separately. In considering the scope of the expression, Bleby J said in Griggs: 41 Management of a company may take place at many levels. It is reasonably clear from the section that management is not confined to matters performed by the directors or a managing director of a company, nor is it limited to the formulation of policy and direction of the company. As Ormiston J pointed out in Bracht (supra) at 829, there must be the exercise of some decision making powers. The question is how far down the management line does the definition extend. Ormiston J defined the concept of management in the following terms, with which I have no reason, with respect, to disagree (supra at 830): There must be an element of decision-making, which affects the corporate enterprise as a whole, but those responsible need not form part of the board, nor even need they be executives directly communicating with the board. Nevertheless, in the ordinary course of affairs, it is only in a large company that persons outside this latter category, so far removed from the power of control exercised by the directors, may be engaged in the 'management' of a company. In a small company like the present the actions of those directly answerable to the directors may amount to 'management', for, even if those people are also engaged in routine activities of a kind not normally associated with management, it is sufficient if powers and functions are delegated to those persons which are likely in their performance to have a significant effect on the business and financial standing of a company. As it is a protective section, protective at least of the creditors and shareholders, then it must have been designed to prevent the participation in management of those who might put the solvency or the probity of the corporation's administration at risk. Persons not given any significant discretion or advisory role in decision-making could not therefore be intended as an object of the prohibition. It may be difficult to draw the line in particular cases, but in my opinion the concept of 'management' for present purposes comprehends activities which involve policy and decision-making, related to the business affairs of a corporation, affecting the corporation as a whole or a substantial part of that corporation, to the extent that the consequences of the formation of those policies or the making of those decisions may have some significant bearing on the financial standing of the corporation or the conduct of its affairs. 42 That definition does not require that management be exclusively vested in one person. Different persons may undertake different aspects of management. The fact that in this case Mr Lomman may well have been regarded as being involved in the management of Pernil does not exclude the appellant from being so involved also. 43 Ormiston J went on in Bracht to attempt to summarise the nature of the prohibition in these terms (at 832 - 833): In the present section I would see the prohibition as covering a wide range of activities relating to the management of a corporation, each requiring an involvement of some kind in the decision-making processes of that corporation. That involvement must be more than passing, and certainly not of a kind where merely clerical or administrative acts are performed. It requires activities involving some responsibility, but not necessarily of an ultimate kind whereby control is exercised. Advice given to management, participation in its decision-making processes, and execution of its decisions going beyond the mere carrying out of directions as an employee, would suffice. If the respondent had been left to negotiate terms with bankers or providers of credit, although those terms had to be confirmed, there would have been sufficient participation, but not if those acts involved only communication or were merely casual. The negotiation of matters of financial importance, such as the rent of its principal premises, may well lead to an inference that a person is concerned in the management of a company, but not if that involved merely communication of instructions on a single occasion. A combination of these activities may likewise lead to the relevant inference, so long as the defendant is given some measure of responsibility or some area of discretion, or so long as his opinion is given some weight in the decision-making processes of management. Beyond this it is difficult to go, for circumstances and procedures may vary widely from company to company." 44 In a slightly different context Young J in Cullen v Corporate Affairs Commission (1989) 7 ACLC 121, after reviewing a number of authorities, including Bracht , concluded (at 126): From all this one can say that one looks to see somebody making decisions as to the direction of the corporation though one does not necessarily look for someone who is making decisions at the highest level, nor is it necessarily so that the manager's decisions will not be subject to obtaining the approval of some higher officer. However, even though a person may be described as a manager if that person is merely carrying out the policy of the corporation in charge of a branch or division of the business and not making decisions as to its direction then probably that person is not taking a management role in the corporation. 45 I would merely add that, upon a review of all the evidence in a particular case, it becomes essentially a matter of impression, bearing in mind the sort of factors which are referred to in these cases, together with others to which I make reference below. It will be unhelpful to embark on a minute assessment of each activity, to determine whether that is an act of management or an act of a clerical or administrative kind, and then to attempt some weighing or balancing process according to the result of such assessments. 173 Having regard to the evidence in these proceedings and what was said in Bracht and Griggs, we consider Mr Foster was concerned in the management of the corporate respondent. The evidence in this respect was that Mr Foster was the mine manager and, as the appellant submitted, he had "the highest level of supervisory control of all matters at the Awaba Colliery and ultimate supervisory control over all occupational health and safety matter at the Awaba Colliery."

174 Pursuant to s 37 of the CMR Act Mr Foster, as mine manager, had full charge and control of all employees at the mine, and all operations at the mine. His duties and functions included the requirement to enforce the observance by all mine employees of the CMR Act, regulations, rules and any schemes and any directions or conditions of exemptions or approvals given under the relevant legislation. Further, pursuant to s 37(2)(c)(ii) of the CMR Act the manager of a mine shall ensure the roof and sides or working places and roadways in the mine are adequately supported where necessary for safety.

175 Finally, in this respect there was evidence that Mr Foster's position responsibilities within the corporate respondent included developing and implementing a safety management plan for Awaba Colliery in accordance with the company's policies; controlling costs in accordance with the company's Business Plan's targets; managing mine planning and production to achieve Business Plan production levels; overseeing the mine's activities for environmental purposes and community expectations; producing quality coal products which meet customers' requirements; and, identifying and implementing workplace reforms which lead to more flexible and efficient operations.

176 Clearly, Mr Foster, being in charge of the mine including safety at the mine, was in a position to influence the conduct of the corporation in relation to the contravention by it of s 15(1). There was no evidence that Mr Foster used all due diligence to prevent the contravention by the corporate respondent. The failures in respect of which the corporate respondent was found guilty indicate otherwise.

177 If it were necessary we would also find, for the same reasons expressed in relation to the corporate respondent that the defence under s 53(a) was not made out. There was no plea under s 53(b).

178 We find that pursuant to s 50(1) of the Occupational Health and Safety Act the personal respondent contravened s 15(1) of that Act.

179 We make the following orders: 1 Leave to appeal is granted. 2 The appeal is upheld. 3 The decision and orders of Peterson J in matter Nos IRC 6372 and 6376 of 2001 are set aside. 4 Powercoal Pty Limited is guilty of an offence under s 15(1) of the Occupational Health and Safety Act 1983 as charged. 5 Peter Lamont Foster, Mine Manager, is deemed to have contravened s 15 of the Occupational Health and Safety Act 1983 pursuant to s 50(1) of that Act.

180 A date is to be fixed for hearing as to sentence and costs. The matter will be listed before Boland J for directions on Thursday 9 December 2004 at 9.30 am for this purpose.

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