Morrison v United Collieries Pty Limited

Morrison v United Collieries Pty Limited - [2005] NSWIRComm 259 - NSWIRComm 2005 case summary — Zoe

[15]

1 I agree with the judgment about to be delivered by the Vice-President and with the orders proposed by his Honour. I wish, however, to add some additional observations concerning the respondent's submission as to the significance of the consideration that the appellant's application for leave to appeal, and his appeal contingent on the application for leave being granted, was from a decision in which the respondent was acquitted. 2 It is self-evident that no appeal court would lightly reverse an acquittal obtained by a defendant in criminal proceedings where an appeal in that respect was available. There is no reason to take a different approach in respect of appeals pursuant to s 197A of the Industrial Relations Act 1996 although the consideration that appeals under that provision have been held to require the grant of leave to appeal (Bultitude v Grice Constructions Pty Ltd (2002) 115 IR 59 at 72 to 74) enables the necessary restraint and caution that the appeal court must exercise in such cases to be applied at either or both the leave to appeal stage, or at the appeal phase of the proceedings. 3 So much was recognised in the well argued and thoughtfully developed submission made by the respondent on this issue. Nevertheless, it is important to place those submissions in their appropriate context. Significant reliance was placed on the judgment of the Full Federal Court in Thompson v Mastertouch TV Service Pty Ltd (No 3) (1979) 38 FLR 397 with particular reliance being placed upon the consideration in that case of Deane J at p 408. 4 Thompson v Mastertouch concerned the issue of the competency of an appeal against the dismissal by a Federal Court judge of criminal proceedings brought by an officer of the Trade Practices Commission which alleged an offence under the Trade Practices Act 1974 (Cth). In a practical sense, the judgment of Deane J represented the judgment of the Full Court and what his Honour was dealing with at p 408 of the judgment was the construction of s 24 of the Federal Court of Australia Act 1976 (Cth) and, in particular, the consideration that, if the appellant's contentions were correct, the corollary of their correctness was that s 24 of the statute would permit appeals from an acquittal by a jury in a trial before the Supreme Courts of the Australian Capital Territory and the Northern Territory. His Honour's observation that "[t]he effect of such a departure would be that double jeopardy was at the whim of a disgruntled prosecutor even after acquittal in a trial on the merits in a superior court" has to be seen in the context of the construction issue that was before the Full Federal Court where the legislative provisions were, unlike s 197A of the Industrial Relations Act, silent on the issue and likely to lead to the improbable consequence highlighted by Deane J. 5 Section 197A permits appeals against acquittals in a specific and limited class of case: that is, from decisions of a judge of the Court Session or of a magistrate of a Local Court to acquit a person of an offence under the occupational health and safety legislation (the latter phrase being defined in s 197A(10)). Proceedings under the occupational health and safety legislation, whether taken before a magistrate or a judge are summary proceedings, and it is well recognised that appeals from acquittals in summary proceedings are tangibly different to appeals from acquittals in trials before a jury. The difference is illustrated by the subsequent judgment of the High Court in Davern v Messel (1984) 155 CLR 21. In that case the High Court was also dealing with s 24 of the Federal Court of Australia Act but as to that part of s 24 which was argued to confer on the Federal Court power to hear and determine an appeal by the Crown from a decision given by the Supreme Court of a Territory quashing a conviction on an appeal by an accused. 6 The High Court answered that question in the affirmative. The majority of the Court (Gibbs CJ, Mason, Wilson, Brennan and Dawson JJ, Murphy and Deane JJ dissenting) held that the judgment in Thompson v Mastertouch was correct but distinguishable because of the different situation with which the Court was concerned in Davern v Messel. 7 In reaching this conclusion Gibbs CJ said (with the concurrence of Wilson and Dawson JJ) at 37 - 38: A decision of a court of summary jurisdiction discharging a complaint or information has never been regarded with the same sanctity as the verdict of a jury. The consistent trend of legislation, both in England and Australia, has been towards allowing the prosecution to appeal against an order of a magistrate or justices dismissing a charge and empowering the court on appeal to quash the order and to direct that the defendant be convicted. 8 To similar effect are the observations of Mason and Brennan JJ in their joint judgment where their Honours said (at 55): The powerful considerations which made it unfair and unjust that a man should be prosecuted twice for the same offence seem to lose some of their force when an appeal is sought to be equated with a second prosecution. A second prosecution for the same offence immediately raises the spectre of persecution. Although the pursuit of a Crown appeal might be carried to the point of persecution, the risk of that occurrence is more remote, if only because the accused would be protected by the courts against an appeal which was instituted mala fides or amounted to an abuse of process and, as already noted, the courts would not go behind a jury's verdict. Moreover, the Crown has a legitimate interest in securing a review of a trial, more particularly if it appears that the trial judge has made an erroneous ruling on a question of law or departed from correct procedures. (emphasis supplied) 9 Once the provisions of s 197A are seen in their proper legal and historical context the existence of a right of appeal against an acquittal in occupational health and safety proceedings is not as exceptional as might initially appear. In that regard it must not be forgotten that for many decades the former Industrial Commission heard appeals from acquittals under legislation which may properly be regarded as predecessor legislation to the Occupational Health and Safety Acts of 1983 and 2000; that is, the Factory Shops and Industries Acts 1912 and 1962 and the Scaffolding and Lifts Act 1912 (subsequently re-titled as the Construction Safety Act 1912). JUDGMENT OF THE VICE-PRESIDENT 10 I have had the opportunity of reading the draft judgment of Kavanagh J in this matter. I agree with the result proposed by her Honour. In some respects, I have reached this conclusion on different bases, and provide the following short observations in support of my conclusions. In doing so it is unnecessary to canvass generally the charges, facts or submissions which are more than adequately set out in her Honour's judgment. 11 In relation to the "place of work" charge (in IRC Matter No 4706 of 2001) I agree with her Honour's conclusions on the issue of liability for broadly similar reasons. It was reasonably open to Schmidt J to prefer the expert evidence of Dr Galvin to Mr Anderson that on 20 July 1999 delaying repair work to the MRS would have entailed greater risks (including the risk of a breakdown closer to the intersection) than halting pillar extraction (which increased the risk of rib spalls in a panel with central pillars which were already unstable). However, I do not consider that the existence of a more dangerous alternative could excuse liability under the Act for failing to ensure a safe place of work. 12 In a very real sense, these prosecutions were restricted by the particulars which alleged a failure on or about 20 July 1999 to delay scheduled maintenance. This gave the proceedings a direction which, at times, seemed somewhat artificial, and to some extent dictated the conclusion at first instance. As Schmidt J observed below: 178 While it was put to Dr Galvin, that it would have been safer for the defendant to have undertaken the repair earlier, a proposition with which he agreed, the charge was concerned with a failure to delay the repair, not a failure to have undertaken a repair earlier. That no doubt explains why there was no evidence called from those responsible for not having repaired the MRS earlier, such as the undermanager on the afternoon shift on the previous day directed.

[16]

13 Although I agree that the respondent has established a defence under s 53, I do not, with respect, agree with the rationale of Kavanagh J. I consider that it is inappropriate in this case to focus on the unexplained actions of Mr Downes standing under unsupported roof in order to help clear coal from the MRS when the conduct giving rise to the relevant risk was the decision to halt production and repair the machine in an unsafe place. 14 As I noted in WorkCover Authority of New South Wales (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd (2001) 110 IR 182, when considering the availability of a defence under s 53(a) of the Act, an objective determination must be made as to what measures were reasonably practicable in the circumstances to address the failures identified in the prosecutor's case. In my view, once it is accepted that the charges do not relate to the previous three shifts when the oil leak in the MRS was noticed but not repaired, but rather relate to the time when the respondent was in the position where it had to choose between risking a break-down close to an intersection or halting pillar extraction to perform maintenance work, the evidence established to a civil standard that it was not reasonably practicable for the respondent to comply with the Act. There was no safe place within Panel 413, mid-extraction, to perform maintenance work on the MRS and it was not reasonably practicable to continue the operation. I find that a defence pursuant to s 53(a) has been made out. There was undoubtedly a serious risk to safety caused by stopping production to repair and maintain the MRS in Panel 413 without safe access around the machine. However, this risk had to be addressed by some means other than eliminating the failures specified in the summons (for example, by repairing the oil leak at a safe place on one of the previous three shifts where it had been noted on the work schedule). 15 In relation to the "system of work" charge (in IRC Matter No 4707 of 2001), I am unable to agree with the approach of Kavanagh J that, given the importance to both charges of the place of work, only one charge may stand. Notwithstanding that there are similarities between the two charges, they are in fact separate, valid charges (as Schmidt J found in her interlocutory judgment) particularising distinct failures and each must be independently determined. 16 As with the "place of work" charge, and subject to the statutory defence, I find that the offence is proven beyond reasonable doubt. There was no evidence to suggest that the decision to halt pillar extraction in order to repair and maintain the MRS (and the ensuing decision to move it to a place where it was only partially covered by supported roof) were made contrary to established, safe, systems. On the contrary, the respondent made numerous submissions to the effect that appropriate systems were in place (including clear lines of authority above and below ground; regular inspections; and meetings between the managers and deputies of each shift to monitor safety conditions in the mine and determine what work should proceed during the impending shift) and that these decisions were made in conformity with the respondent's systems. Indeed, in oral submissions the respondent stated that, on the evidence, one could conclude that it was inevitable under the system in place at the mine that there would have been consideration of the appropriateness of stopping for maintenance. That being the case, one can only infer that the system itself - which, on the respondent's case, permitted such a dangerous situation to arise - was deficient. However, for the same reasons I described above in relation to the "place of work" charge (most notably the constraints imposed by the manner in which the charge was particularised), I find that the evidence supports a defence pursuant to s 53(a) in relation to this charge.

[21]

The Particulars of the charge are: (a) Panel 413 at the United Colliery at Warkworth ("Panel 413") is located in an area where there are geological faults and weaknesses; (b) As at 20 July 1999, there were seven pillars across Panel 413 between the 24th and 25th cut; (c) As at 20 July 1999, the rib conditions in Panel 413, particularly those in the central pillars were known to be weak and/or unstable; (d) Prior to 20 July 1999, safety concerns in relation to the unstable condition of ribs in Panel 413 had been the subject of discussion at meetings of the Occupational Health and Safety Committee at the United Colliery at Warkworth; (e) Prior to 20 July 1999, unstable rib conditions in Panel 413 had been the subject of Deputies Production In bye Reports at the United Colliery at Warkworth; (f) Prior to 20 July 1999, the Defendant, through its officers, employees or agents had had a number of meetings and had received several pieces of correspondence from Mr. Ian Anderson, Senior Inspector of Mines in relations to rib instability in panel 413; (g) There is a risk of rib spalls during pillar extraction; (h) The Undermanager had authority to delay scheduled maintenance and continue pillar extraction until a stable position was reached. No such decision was taken by the Undermanager on 20 July 1999. (i) Scheduled maintenance took place on the Mobile Roof Support 1 ("MRS1") at the commencement of the day shift on 20 July 1999; (j) Shortly before the maintenance had commenced on MRS1, a rib spall occurred on the left hand side of the cut through facing in bye between the 24th and 25th cut. This was at about 7.30am. The rib spall left a large amount of debris and it was therefore impossible to reverse MRS1 to a position underneath the roof supports on its own motion. A chain was connected to MRS1 and it was towed back from its original position flush against the goaf to a position which allowed access around the MRS1 but it was not under the supported roof; (k) Mr Kevin William Downes was performing maintenance duties on the MRS1 at about 10.15am; (l) A large rib spall occurred crashing Mr Downes against the side of the MRS1. (m) Mr Downes suffered serious bodily injuries. IRC 4707 of 2001 On or about 20 July 1999 at the United Colliery Warkworth in the State of New South Wales the Defendant, being an employer, failed to ensure the health, safety and welfare at work of all of its employees, in that it failed to provide and maintain a safe system of work that prevented Kevin William Downes from working in an area of the mine where the ribs were weak and/or unstable contrary to s.15(1) of the Occupational Health and Safety Act, 1983.

[23]

Grounds of Appeal 22 The appellant, the prosecutor at first instance, appeals against the whole of the decision and orders. The appellant relies on 14 grounds of appeal as follows: 1. Her Honour erred in failing to separately consider whether the prosecution had proved the guilt of the respondent on each of the charges; 2. Her Honour erred in holding that there was nothing in the defendant's conduct that caused the risk to the safety of the employee when (a) she had determined that the risk to safety was the risk of injury from rib spall at the place where the employee was injured and that halting mining for maintenance (conduct of the defendant) had contributed to that risk and the rib spall that occurred; and (b) the evidence showed that the employee would not have been engaged in the task he was doing at the time the risk materialised if mining had not halted for maintenance. 3. Her Honour's conclusion that it was not established that it was unsafe to halt mining at the place where the repair of the oil leak was undertaken does not follow from her findings that there was a risk of injury from rib spall and that that the risk materialised when the employee was buried by a rib fall. 4. Her Honour erred in relying on the provisions of the Coal Mines Regulation Act to exculpate the respondent without paying any or any proper regard to the terms of s 33 of the Occupational Health and Safety Act; 5. Her Honour erred in considering whether the conduct of the employee was foreseeable when that question was irrelevant to whether the employer had failed to ensure the safety of the employee; 6. Her Honour incorrectly construed the Commission's decision in WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Limited (2000) 123 IR 121; 7. Her Honour ignored the weight of the evidence that showed that the employee was at risk of injury from rib spall whether or not he had been standing under unsupported roof at the time of the rib fall; 8. Her Honour erred in reasoning from the actual incident causing injury as the detriment to safety and, thus, acted on a wrong principle; 9. Her Honour erred in holding that there was no evidence from which it could be concluded that the employee could easily have strayed inadvertently into an area of unsupported roof; 10. Her Honour erred in considering whether safety would have been assured if mining had continued and in comparing the risks to safety at the place in question with the risk at a different place and time. In so doing she misdirected herself. 11. Her Honour erred in holding that the inference was not available that the repair of the oil leak had been delayed because the day shift was the scheduled maintenance shift 12. Her Honour erred in determining that the prosecution failed to prove that the respondent did not give any consideration to whether or not it was safe to stop for maintenance on the day shift. 13. Her Honour erred in holding that the employee took the view that it was safe to have undertaken the repair work on the particular shift when there was no issue that, by reason of his injury, he had no memory of the events of the day; 14. Her Honour erred in finding that Messrs Gray and Sutherland said it was safe to undertake the repairs on the particular shift when neither had given such evidence.

[26]

[112] The evidence also showed that working in the area in question was hazardous. The evidence did not, however, permit the conclusion that it was so hazardous, that like working under an area of unsupported roof, working in an area where the ribs were weak and unstable should have been entirely excluded on safety grounds, in order to ensure that the defendant complied with its obligations under the Act. Nor does the CMR Act so provide. The evidence was that similar levels of rib spall occurred at other parts of this mine. The evidence also showed that changes introduced by the defendant after the accident improved the conditions of the ribs, but not significantly. There was no suggestion that mining should not have continued in those circumstances. The evidence also showed a number of steps available and implemented by the defendant to deal with the risks which such ribs pose. Some of them were expressly imposed by the CMR Act. The evidence did not permit the conclusion that such steps could not ensure safety, if observed. Nor was such a case sought to be established. 24 Her Honour analysed the varying opinions of the experts including Mr Anderson and Dr Galvin and others at [162-173] and then determined as to the place where the machine was repaired: [165] Dr Galvin had entirely the opposite view. Not only did he regard the place at which the repair was undertaken to be safe, he regarded the approach advocated by Mr Anderson and Inspector Beatty as to delaying the repair to the machine as inherently unsafe and unnecessarily exposing the workers to risk of injury. Given the evidence of the purpose of the MRS machines, located at the edge of the goaf to there support the roof; the problems to which it had already been subject for some shifts; the way in which oil would have to be kept up to the machine; the problems of safe access to the machine; the need to remain under supported roof at all times; the conditions of the ribs; the concerns flowing from coal not having been extracted in the 6th fender and the risk that the same would result in the 7th fender, if coal had to be left behind, as the result of the need to fill the machines with oil; as well as the risks inherent in attending to the machine, if it broke down near or at he intersection, I am unable to prefer Mr Anderson and Mr Beatty's opinion on these matters over that of Dr Galvin. 25 And, as to the decision to perform the repair and thereby cease mining she held: [172] In this case, if failing to stop to repair the oil leak, would have led to increased risks, as was Dr Galvin's strongly held view, it cannot be concluded that adherence to the requirements of the Act, to ensure safety, would have been achieved by the continuation of mining.

[34]

SUBMISSIONS Appellant's submissions as to leave 27 Ms A.J. Katzmann SC, Counsel for the appellant, submitted s197A of the Act provides for appeals against acquittals in proceedings for offences against the OHS Act. An appeal commenced under this provision is not limited to questions of law (s197A(3)). 28 The appellant submitted the court has power to dismiss the appeal or set aside the decision appealed against and make a decision in the matter in accordance with law (s197A(7)). The principles in House v R (1936) 55 CLR 499 apply therefore to this matter as a discretionary decision. 29 The appellant contends the appeal should be granted as the case exposes matters of importance as follows: (a) Her Honour failed to consider the guilt of the respondent in relation to each charge independently of the other, which failure was a fundamental error of law. (b) An important question as to the interaction of the Occupational Health and Safety Act and the associated Coal Mines Regulation Act 1992 raise questions in the public interest. (c) The question about the extent to which an employer because of the carelessness and/or inadvertence on the part of an employee where there was a breach of employees' obligations under the associated legislation is also of public importance. (d) Her Honour's consideration as to statutory defences rather than facts was an error of law. 30 The appellant posed the question: Was the conclusion of the court below correct? (Harris v Caladine (1991) 172 CLR 84). The appellant submitted errors of law and fact are open to challenge notwithstanding due regard must be accorded to the decision of the trial Judge with respect to credibility findings. The appellant submitted the entire judgment is flawed for the fundamental reason that her Honour failed to consider each charge separately and submitted that although the particulars of each charge were similar, the elements of each offence were different. 31 As to the interaction between the OHS Act and the Coal Mines Regulation Act 1982 ("CMR Act"), the appellant submitted any consideration of the obligations imposed upon an employer under the CMR Act only should be relevant to a defence under s33 of the OHS Act.

[38]

Similarly, in WorkCover Authority of New South Wales (Insp Mulder) v Arbor Products International (Australia) Pty Limited (2001) 105 IR 81 (at 91-92) the majority found the appeal raised important questions of construction. Therefore, the respondent submitted, the test for the grant of leave to appeal where there has been an acquittal is a high one. 38 The respondent submitted the present case does not overcome the burden as set down by the authorities regarding an appeal on acquittal as it does not meet the public interest test and fails to raise any clear issue of high principle transcending the particular facts. Alternatively, the respondent submitted even if the court was to apply the usual test adopted in the broad run of cases for leave to appeal under s188, the present is not a case where leave should be granted. 39 The respondent submitted s191(3) directs an appeal to a Full Bench of the Commission be determined on the material and evidence at first instance and the principles applying to appeals against discretionary judgments are to be applied. That approach would require a demonstration of error in the decision-making process that is not evident in this case rather than simply a re-evaluation of the material by the Appeal Bench: see Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194 at [21]. 40 The respondent conceded the Court has held s191(3) is to be "read down" so as to apply to an appeal only "insofar as it raises a question of discretion by the primary Tribunal": see Stone Microsystems (Aust) Pty Limited and Stone Group Asia Pacific Investments Ltd v Kwong and Datamax Pty Limited (1997) 42 NSWLR 160 (at 163). Nevertheless, the respondent submitted the assessment of error in accordance with the normal principles which apply to appeals "stricto sensu" on questions of fact and law requires proper weight to be given to the advantages enjoyed by the trial judge in the fact finding exercise. In the present case where assessment of the credit of significant witnesses was important, her Honour enjoyed the well recognised advantage of a trial judge who had actually taken the evidence and experienced the complete course of the trial. 41 The respondent relied upon the recent decision of the Full Bench in Bluescope Steel Limited (formerly BHP Steel Limited) v The Australian Workers' Union, New South Wales [2004] NSWIRComm 222 at [72] and [116] which reaffirmed the approach enunciated in Abboud v NSW Department of Education (1999) 92 IR 32 (at 42 - 43) including the principle that: . . . In the case of an appeal from a judge in the strict sense, the appellate court will substitute its own judgments only if the trial judge has fallen into error of law or has made a finding of fact which is clearly wrong or not reasonably open on the evidence. . . . 42 The respondent submitted there is also a general principle of restraint followed by Appellate Courts on what should be the rare occasion of a "Crown" Appeal. A clear demonstration of error is required in such an appeal: (Dinsdale v Queen (2000) 202 CLR 321 especially Kirby J at 340-341; WorkCover Authority of New South Wales (Inspector Buggy) v Weathertex Pty Ltd (2003) 127 IR 60 [47]). As there was no such error here, the appellant should not be granted leave to appeal.

[41]

Ground 2: Failure to find a causal nexus between the conduct of the respondent and the risk of injury from rib spall 44 The number of factual findings made by her Honour should have led to the conclusion there was a causal connection between the acts or omissions of the respondent and the detriment to safety. 45 In view of those findings, the appellant submitted there was a causal connection between the detriment to safety and the conduct of the respondent. Further, there were some inconsistencies that cannot be reconciled. The finding that halting extraction "plainly contributed" to the rib spall was inconsistent with the finding "it was not established that it was unsafe to halt mining at the place where the repair was undertaken that day" with the ultimate conclusion "the risk of injury from rib spall existed and materialised but not, on the evidence, as the result of what the [respondent] then did, or failed to do". 46 Her Honour's finding that halting extraction "plainly contributed to the rib spall" made the conclusion there was a causal connection between the detriment to safety and the conduct of the respondent inevitable, the appellant submitted. 47 Equally, it was entitled to a finding on the place of work charge with the same qualification - that the risk of injury from rib spall at that place and time was significantly increased. Her Honour accepted that had mining continued, Mr Downes was unlikely to have gone to the position where he was injured. 48 The appellant submitted the evidence established beyond reasonable doubt the risk of injury was increased if mining halted for any prolonged period and the conditions that prevailed there on the day of the offences contributed to the risk. It follows that halting for maintenance at that part of the panel, which indisputably was an act of the respondent, contributed to that risk, a risk of which the respondent was well aware. 49 The appellant submitted the evidence showed beyond reasonable doubt Mr Downes would not have been engaged in the task he was doing at the time the risk materialised if mining had not halted for maintenance. Her Honour, the appellant submitted, erred in finding the respondent's system of work did not result in him being where he was when exposed to the risk. The conclusion reached by her Honour was based on the evidence the rib spall, which had been occurring for weeks before the shift in question, could cause damage to the hydraulic mechanism of the MRS1 and coal spilling into the machine could cause damage to other parts of the machine. The respondent's system of work led to the oil leak being repaired on the scheduled maintenance shift although the task had been apparent for a number of shifts. 50 Cleaning out pieces of coal that had fallen inside the MRS1 was "undoubtedly a part of routine maintenance on the machine." The fact maintenance work was normally undertaken away from both the face and the goaf did not mean the respondent's system of work did not contribute to the risk. 51 Conducting maintenance at that point in time and at that place necessarily meant that the MRS1 had to be moved away from the goaf edge. The mine's own rules indicated it was undesirable to halt mining mid-extraction for an entire shift. 52 While Mr Downes' own conduct may have contributed to the risk, the charges were made out when the respondent's conduct was a cause of, or made a material contribution to, the detriment to safety, the appellant submitted. There is no difference in law between a cause and a substantial or material contribution. Whether or not it did is answered by the application of commonsense. The appellant submitted: The Act was designed to protect against human errors including inadvertence, inattention, haste and even foolish disregard of personal safety as well as the foreseeable technical risks in industry": WorkCover Authority (NSW) (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248 at 257. 53 The appellant submitted her Honour's focus on the conduct of the employee detracted from the conduct of the respondent that preceded it. Her Honour's approach, in effect, was no different from that which the Full Bench criticised in Riley v Australian Grader Hire Pty Ltd (2001) 103 IR 143 at [15]-[16]. There was a demonstrable connection between the conduct of the respondent , that is, the risk to safety and injury from rib spall.

[43]

Ground 4: Relationship between the OHS Act and the CMR Act 55 Her Honour referred to the CMR Act at various points in her consideration of whether the prosecution had proved its case. The appellant submitted her Honour erred by holding inter alia the respondent could not be found liable, "given the evidence of the obligations imposed by the CMR Act upon both the [respondent] and Mr Downes as a deputy." 56 The appellant submitted Mr Downes' obligations under the CMR Act was an irrelevant consideration as the CMR Act only became relevant if and when the prosecution had proved its case. Then it was for the respondent to show the act or omission causing the detriment to safety was expressly required or permitted by the CMR Act. 57 The appellant submitted s33(2) of the OHS Act provides a defence to a person who is able to rely on any act or omission. The CMR Act expressly required or permitted as the basis for defending an alleged offence under Part 3 of the OHS Act: Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty Limited & Others [2004] NSWIRComm 202 at [159]. However, s33(1) of the OHS Act provides that the OHS Act prevails over any inconsistency with the associated legislation. 58 The appellant submitted the act or omission of the respondent that caused the risk to its employees was the decision to cease production mid-extraction for maintenance so that, inter alia, the oil leak on MRS1 could be repaired, despite the hazardous conditions in that section of the panel. The respondent's own rules permitted the halting of mining of a partially extracted fender after an assessment of the prevailing conditions was made both by the deputy and the undermanager in the terms set out in the Pillar Extraction Manual the appellant submitted. 59 The appellant asserted there is no defence that exculpates an employer because its employee is acting unlawfully. Section 33(2) creates no such defence. The fact the CMR Act permitted mining in the panel does not of itself determine whether the actions of the respondent affected the overall stability and strength of the ribs in the panel. The appellant submitted the respondent could not point to any specific provisions of the CMR Act that 'expressly' permitted or allowed it to undertake the above actions. Rather the CMR Act was silent on these matters. 60 The obligation on the employer is a continuing one. The repeated references to the CMR Act in the context, supposedly, of a consideration of whether the offences, not the defences, were made out indicate that her Honour misdirected herself.

[46]

A breach is not confined to situations where there were 'warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires a remedy (Ridge Consolidated Pty Ltd v WorkCover Authority of NSW (Insp Mauger) (2002) 115 IR 78 at [32] citing Ferguson v Nelmac Pty Limited (1999) 92 IR 188). 62 The question of reasonable foreseeability may arise in the context of the operation of the defence but after the offence has been proved the appellant submitted (WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Australia) Pty Limited (No.1) (1999) 101 IR 239 at [68]). 63 To be entitled to the benefit of the defence, the respondent had to show that the circumstances or causes of the detriment to safety constituting the offence were not reasonably foreseeable. If the detriment to safety was the risk of injury to an employee whilst working under the unsupported roof, then it does not matter whether it was unforeseeable that he would be in an area of the unsupported roof. Her Honour erred by determining the case against the prosecutor without coming to a consideration of the defence (WorkCover Authority of New South Wales (Insp Vierow) v Ridge Consolidated Pty Limited (2002) 117 IR 448 (Full Bench) and WorkCover Authority of New South Wales (Inspector Childs) v Kirk Group Holdings Pty Limited & Anor [2004] NSWIRComm 207 (Walton J, Vice-President). 64 The appellant submitted her Honour erred by shifting the onus of the defence relied upon when the onus of proof was with the respondent. Further, the appellant submitted her Honour focussed on the foreseeability of the actions of Mr Downes. If foreseeability was relevant, it had to be the foreseeability of the risk to safety with which the charges were concerned. That risk was the risk of injury from rib spall, which, the evidence showed was a risk to which all employees were subjected. 65 Alternatively, the appellant submitted even if Mr Downes' conduct could be characterized as "foolish disregard for his personal safety", the legislation was designed to provide protection against such behaviour: (Maine Lighting Pty Ltd).

[49]

Ground 8: Acting on a wrong principle: reasoning from the accident 69 The appellant submitted her Honour's reasons demonstrate a preoccupation with the time and circumstances of the accident, rather than with a consideration of the risk of which the accident was only one manifestation. The appellant submitted the references to "the rib which fell on Mr Downes" and to the measurements of the accident site and the photographs of the coal underscore this. In this respect, her Honour erred by falling into the same kind of error the Full Bench highlighted in Haynes v C I & D Manufacturing Pty Ltd (No. 1) (1994) 60 IR 149 (at 156-7), that is, by having regard to the injury that occurred in the accident, rather than the risk which was present throughout the shift. 70 The appellant contended her Honour erred by finding against the prosecution on the causation issue, relying inter alia on evidence from Dr Galvin "that Mr Downes would have remained safe from the rib spall which injured him, had he not ventured into the area to the side of the MRS1 machine". It does not matter whether Mr Downes would have been injured, rather the question is whether there was the potential for injury. In that regard, the effect of Dr Galvin's evidence was that, whether or not the employee was under the unsupported roof, there was the potential for or possibility of injury from falling ribs, the appellant submitted. 71 Dr Galvin's evidence concerning the risk to safety created by stopping for maintenance also reflected a misunderstanding of the issue the appellant asserted. He conceded stopping for maintenance for an extended period, which he defined as "more than a few hours", increased the risk to safety. It was common ground that the respondent scheduled a maintenance shift to take place at this time. That meant that the respondent's system of work on that day envisaged that mining would cease for the duration of the shift. At that place and at that point in time the risks to safety were even greater. Concentrating, as her Honour did, on what the injured worker was doing and where he was positioned at the precise time of his injury distracted her from the real issue, namely, whether the conduct of the respondent contributed to the risk of injury. 72 The appellant submitted the authorities clearly establish that it is the risk with which the Act is concerned, rather than the accident to which the risk contributed. The accident is merely illustrative of the risk; it does not constitute it nor define its parameters. Therefore, her Honour erred. What the appellant needed to prove in each case was that there was a causal nexus between the risk to safety and the alleged acts or omissions of the respondent. The causal connection was not limited to a consideration of the circumstances of the accident but extended to the potential for injury that the evidence disclosed.

[51]

Ground 10: Error in comparing risks 75 Her Honour held "the evidence did not permit the conclusion that by continuing mining despite the state of the MRS1 safety would have been assured". The appellant submitted the reason she gave was that the risks later in the extraction sequence were greater than they were at the commencement of the shift if the repair were not effected. This was the approach the respondent urged but it led her Honour into error. The question was not whether safety was assured by continuing mining. The charges required consideration of whether the respondent failed to ensure safety by halting mining. It was no part of the appellant's duty to prove that safety was assured by taking a different course. The obligation was absolute. The question of alternatives was relevant to the defences, not to the substantive charges. The OHS Act does not require a comparison of risks unless the question of reasonable practicability arises. On that issue the onus rested with the respondent and other considerations arose (Grice Constructions). Her Honour said she would have found the defences proved "for reasons which appear clear from what I have earlier dealt with". 76 In addition, the appellant submitted the risks to safety to which her Honour had regard if mining continued and the machine broke down later in the extraction sequence were created by the management's failure to apply a proactive approach to safety. They arose out of the decision to postpone the repair of the oil leak to the scheduled maintenance shift. The respondent cannot escape liability by relying on its earlier neglect. 77 The appellant submitted the Full Bench repeatedly has emphasised the employer's duty under the statute is to be proactive (Fletcher Constructions at [43]). Whether the respondent was in breach of its obligations should have been assessed in the context of the decision to proceed with the scheduled maintenance shift. The risk to safety from spalling ribs was present throughout it. As her Honour acknowledged halting for maintenance plainly contributed to it. The respondent's own expert acknowledged that scheduling maintenance shifts mid-extraction was undesirable if safety were to be "optimised". The OHS Act requires safety be "optimised". 78 The appellant submitted the fact Mr Downes had a supervisory position underground on the scheduled maintenance shift did not absolve the more senior management from responsibility when the power to decide whether mining stopped or continued was theirs.

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Ground 12: Did the prosecution prove that the respondent did not consider whether or not it was safe to stop for maintenance on the day shift? 81 The appellant submitted her Honour held it followed from the absence of (direct) evidence about why the oil leak was not repaired earlier, the inference was not available and no consideration was given to whether or not the work could safely be undertaken on the day shift. That is a non sequitur. 82 The evidence showed the decision to assign the day shift for maintenance was made a week in advance. Mr Downes had no power to alter that decision. None of the supervisory staff testified they had considered whether the decision to halt production should be reviewed in light of the prevailing conditions at the start of the day shift. The conclusion, based on Dr Galvin's evidence, that weighing the options at that particular point would or should have led to such a conclusion was merely theoretical. Further, the under manager's shift reports did not mention any such consideration. 83 The evidence was it would have been safer to repair the machine before mining commenced in the 7th heading, a point that had been reached after the machine had been leaking for some time. The fact the repair was deferred to the scheduled maintenance shift without regard to the prevailing conditions is conclusive. 84 The appellant submitted the real issue was not that the respondent considered whether it was safe to stop but whether or not the safety of Mr Downes was assured if it did stop. Grounds 13 and 14: Misstating the evidence 85 The appellant submitted her Honour erred by misunderstanding or misstating the evidence. There was no direct evidence Mr Downes "took the view that it was safe to have undertaken the repair work on the particular shift". As her Honour acknowledged, Mr Downes had no memory of the events of the day. The only basis for concluding he had such a view must have been the absence of evidence that he contacted the undermanager to discuss the issue with him. Mr Downes' amnesia meant that there was insufficient basis for such a finding. Her Honour's finding is based on speculation. Neither Mr Grey nor Mr Sutherland, the undermanager and mine manager respectively, had given any evidence it was safe to undertake the repairs on the particular shift. Mr Grey said the decision was generally made by the deputy in the panel but Mr Downes could give no evidence about this. There was no evidence the undermanager had been contacted in accordance with the protocol. Mr Grey was the undermanager on the shift and he did not give any evidence he had been contacted or such a discussion had taken place. Mr Sutherland gave no evidence on the subject and he was not cross-examined to suggest he had. 86 Therefore, it was submitted the appeal should be allowed, the acquittals set aside and convictions on both counts entered against the respondent. The cases should then be remitted to a single judge for sentencing. Respondent's submissions as to the Appeal 87 The respondent submitted her Honour's judgment turned on her assessment of the expert witnesses where she was required to resolve extensive conflicts as to what had occurred. Her Honour correctly resolved these conflicts against the appellant and in favour of the respondent. 88 The respondent submitted the court should reject the appellant's attempt to selectively extract small portions of Dr Galvin's evidence (the expert accepted by her Honour) whilst ignoring his conclusions and the thrust of his analysis which was the basis on which the respondent's case was advanced. 89 The respondent submitted her Honour failed to appreciate the significance of her factual findings in the context of the issues before her gives insufficient attention to the need to establish a causal relationship between the essential ingredients alleged to constitute an offence. 90 The respondent submitted in the absence of an amendment sought and granted it is a basic canon of the criminal law the appellant will be held to the charge as framed Cleary Bros (Bombo) at 196, and the WorkCover Authority of New South Wales (Inspector Keelty) v Crown in Right of New South Wales (Police Service of New South Wales (No 2) (2001) 104 IR 268 at 293 (the Police Case). The respondent submitted the particulars of the charge cannot be treated as mere surplusage. 91 The appellant's case at first instance could not be reconciled with the particulars it had appended to the charges. 92 The respondent submitted while there were two charges, no satisfactory distinction was ever made between them. 93 The risk of injury alleged in the charges was (inferentially) the risk of injury from rib spall. The act of the respondent alleged by the charges to have caused the risk can only have been the failure to delay scheduled maintenance (although no specific causal allegation in fact appears in either charge). The expert reports 94 Dr Galvin's Report expressed the opinion no risk to Mr Downes' safety was constituted by any risk of rib spall or the carrying out of repairs. This evidence was accepted by her Honour. Therefore, the respondent submitted for the appeal to succeed it would be necessary to show that her Honour erred and the expert evidence on which she relied should be rejected. There would be no proper foundation for such a contention and it has not been advanced. As to geological faults 95 The respondent submitted her Honour found the "geological faults and weaknesses" were in another part of the panel and had no particular connection with the state of the ribs in the area in question. As to the place of work 96 The respondent submitted neither the charges, or particulars, nor the evidence, supported a charge that this "place of work" was unsafe. The appellant's own case was that mining should have continued. This would have involved employees, including Mr Downes, working in the same area, where they would be required to operate and manage the continuous miner, a shuttle car and three MRS1s. They would be exposed to the same operational circumstance referred to in the particulars, as the rib spall was common.

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caused the alleged risk to Mr Downes' safety. 105 The respondent submitted in response to the appellant's submission any repairs to MRS1 should have been carried out earlier, that the charges did not extend to such an allegation. Further, Dr Galvin rejected the proposition: . . . the undisputed evidence was that it would have been safer to repair the machine before mining commenced in the 7th heading… Exposure to Risk 106 The appellant confused two very different issues - risk of rib spall and risk of injury from rib spall the respondent submitted. The risk of injury from rib spall upon which the appellant's case turned was not constituted simply by the risk of rib spall as: (a) rib spall is a common feature of mining operations; (b) of itself rib spall is neither necessarily life threatening or dangerous provided basic safety precautions are taken. 107 The respondent submitted the risk of rib spall was present whether mining was carried out or not, whether scheduled maintenance was carried out or not, and whether repairs to the equipment were carried out or not. The possibility of rib spall at some stage, although a potential hazard, did not of itself constitute a risk of injury. 108 The respondent submitted in order for there to be a risk to safety from the rib spall, exposure was necessary. In the circumstances, exposure was not, and could not be, constituted simply by a decision to carry out scheduled maintenance or a decision to repair MRS1. That work, like any other work in pillar extraction operations had to be carried out in accordance with the CMR Act and Regulations which expressly addresses the risks associated with coal mining. 109 The respondent submitted her Honour referred expressly to the regulatory scheme established by the CMR Act. That scheme includes the detailed Mine Managers Rules and safe work procedures adopted by individual mines. Her Honour also referred to the evidence concerning the regular and frequent monitoring of the rib conditions by the mines statutory officials including Mr Downes. Her Honour found there were established rules and systems that were "certain, known and enforced" and that the respondent acted to ensure the systems were adhered to. 110 The respondent submitted the exposure to the risk of injury from rib spall (which was manifested when Mr Downes was injured) was caused by Mr Downes placing himself where he was when injured. This was not a "place of work". It was dangerous and prohibited. He alone was responsible for his actions in that regard. As Deputy in charge of the District, he was not under, or subject to, the possibility of any ongoing supervision underground. His actions were beyond the practical control of the respondent except through the use of its safety systems, instructions and training none of which were defective or the subject of charges. Other Employees 111 The respondent submitted a fair reading of the charges suggests the central allegation to be advanced against the respondent was that the failure to delay scheduled maintenance on 20 July 1999, caused a risk of injury to Mr Downes. The charge was clearly concerned with a risk only to Mr Downes. 112 The respondent therefore submitted notwithstanding the ruling that the charge only extended with Mr Downes, the appellant's assertions of general risk to other employees should be rejected. 113 The respondent submitted the appellant knew before the prosecution was commenced Mr Downes' own actions were unsafe and a breach of his obligations as a Deputy and in the view of the investigating Inspector, he had knowingly placed himself in a position of danger. The particulars of the charges alleged the MRS1 was under unsupported roof as well as was the place where Mr Downes was working. 114 The respondent submitted Dr Galvin was at pains to make a distinction between this type of rib spall in spall pieces and rib fall of the kind that struck Mr Downes. Dr Galvin's evidence included an answer to the effect that a fall of coal rotating around the bottom (that is falling from its full length) might have fallen "very close to the edge of the road". This is a reference to the original edge of the roadway before the rib was trimmed a further three metres causing the roof span to be substantially wider than a normal roadway and emphasising the need not to go into the goaf and under unsupported roof.

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Misstating the Evidence 117 The respondent submitted the appellant misstated the evidence, in particular by referring to Mr Downes' view about whether it was safe to undertake the repair work on the MRS1. The purported quotation wrongly quotes both the effect of the evidence before her Honour and the way in which her Honour expressed herself. Her Honour said at [149]: It was the view of Mr Grey and Mr Downes, who were both involved in the decision as to the work to be done that day, that it was safe to have undertaken the repair work of the MRS on the day shift on 20 July. Mr Sutherland agreed. Dr Galvin agreed that it was safe to have then undertaken that work. Inspector Beatty and Mr Anderson did not agree. 118 The respondent submitted these remarks clearly refer to the effect of the evidence given before her Honour rather than to a direct recollection of a specific judgement formed on the night in question. 119 The respondent submitted it was a failure to postpone the work that was at the heart of the appellant's case. As her Honour correctly recorded in the Interlocutory Judgment published 26 February 2003: 101 . . . The causal connection was also specified, namely a failure to delay the work until a stable position was reached. 120 The respondent submitted it was for the appellant to prove as part of its case that the assessment made that repairs were then necessary was incorrect whatever the position about scheduled maintenance. This was not done. At a minimum it would have been necessary for the appellant to have called persons involved on earlier shifts to diminish the apparent effect of the directions in the various reports that the oil leak be repaired. 121 The respondent submitted its reliance on s33 of the OHS Act is relevant in three particular ways. Firstly, in the context of a somewhat elastic and unconfined appellant case, to address what appeared to be (though not charged) an allegation of a failure of supervision. 122 Secondly, to rely upon the express assignment of control by legislation to Mr Downes for decision making and control concerning safety issues and work performed in his District. Mr Downes himself accepted in cross-examination that he, as Deputy in accordance with his responsibilities under the CMR Act would have had "an obligation to immediately remove anybody" he saw working where he was when injured. Mr Beatty also regarded the position Mr Downes had placed himself in as obviously unsafe, inconsistent with his obligations under the CMR Act, inconsistent with an obligation to ensure that work was not undertaken under unsupported roof and a breach of the regulations. 123 These obligations were continuing regardless of the work being carried out in the panel whether on mining or maintenance. Mr Downes' exposure to the risk of injury only arose as a result of his disregard of those obligations as well as the Mine Manager's Rules. In the circumstances the respondent was entitled to place particular weight on s33 of the OHS Act as providing an answer to any suggestion that Mr Downes should be treated simply as a careless or reckless employee. 124 The respondent submitted these first two issues arose in the appellant's case and it is incorrect to say her Honour failed to reserve consideration of these matters only for any defence arising under s53 of the OHS Act. In any event, s33 of the OHS Act is not itself so confined. It provides an avenue of defence, where applicable, independently if necessary of the s53 defences. 125 The respondent submitted the fact her Honour makes reference to the CMR Act does not indicate that at each such point she is invoking the operation of s33. The regulatory scheme established by the CMR Act was directly relevant to the circumstances in which work was carried out and in which decisions were made as well as the judgments to be made about the conduct of both the respondent and Mr Downes. The appellant's submissions simply misstate the use to which her Honour put the statutory obligations to which she refers. 126 The third way in which the matter becomes relevant is in a consideration, should it be necessary as to whether the exposure of Mr Downes to injury was due to causes over which the respondent had no control. It was submitted in the circumstances the respondent had no control over Mr Downes' conduct and could have done nothing further to make provision against the possibility of his conduct (see s53(b) of the OHS Act). The Defence 127 The respondent submitted it was an essential element to prove that it was the respondent's conduct that caused the relevant risk and not some other circumstance. Her Honour was not "blinded" by her consideration of Mr Downes conduct. Her Honour's enunciation of Mr Downes' actions was directly relevant to her assessment that it was not the respondent's conduct which had caused the risk of injury and therefore the appellant's case had not been made out on either charge. Therefore an acquittal was inevitable. 128 The respondent submitted the operative cause of Mr Downes' injuries, and the risk of which they were a manifestation, was his unpredictable and uncontrollable disregard for basic safety rules and his own well-being. Therefore, her Honour correctly found the respondent's system of work required him not to be where he was as did the CMR Act. Section 33 Defence 129 The respondent relied upon s33 of the OHS Act. Her Honour summarised the respondent's submissions thus: [102] . . . The CMR Act permitted and obliged the defendant to rely upon Mr Downes in his role as deputy, while he was in charge of the work underground. Mr Downes himself accepted that he had obligations under that legislation, which he was obliged to carry out. The evidence showed that had he done so, he would not have been placed at risk. The defendant was entitled to rely upon him to do so. . . 130 The respondent placed particular weight on s33 of the OHS Act as providing an answer to any suggestion that Mr Downes be treated as an employee of significant authority on his shift rather than simply a careless or reckless employee. 131 The appellant in reply asserted there is no defence which exculpates an employer because his employee is also acting unlawfully. 132 The appellant asserted Mr Downes was at risk irrespective of whether he was complying with his obligations and s33 does not remove from the employer the obligation to protect even the careless employee. Section 53 Defence 133 The respondent submitted there was no practical way in which the respondent could have controlled Mr Downes' actions or prevented him doing what he did in exposing himself to danger. The commission of the alleged offence was due to causes over which the respondent had no control and against the happening of which it was impracticable for the respondent to make provision. 134 The respondent submitted persons working in underground coal mines can not be physically prevented from walking out under unsupported roof or going between a mining machine and the ribs. 135 The respondent submitted her Honour correctly took the view Mr Downes' statutory position and responsibilities permitted the respondent to rely upon his control of his Deputy's District. This included his own conduct, so that having regard to the rules and procedures in place at the mine for ensuring safety did not require an attempt at a greater level of control over his actions. Her Honour regarded as impracticable and dangerous the Prosecutor's insistence that mining should have continued into the most dangerous part of the sequence with an increasingly dysfunctional machine which may have broken down completely. The appellant's related contention that such issues are not to be evaluated by reference to the possible consequences of an alternative course of action deserves outright rejection. 136 The respondent submitted the Court should reject the appellant's assertion her Honour did not address herself to considerations of the kind referred to in Genner Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Guillarte) (2001) 110 IR 57. 137 The whole of her Honour's analysis was relevant to the consideration of whether the charges were made out but it obviously overlaps with a consideration of a defence under s53 of the OHS Act. Such a defence has been found to be established. 138 The appellant's submissions in reply have been incorporated throughout the recitation of the respondent's submissions.

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Thirdly, it will be relevant to consider whether an appeal raises substantial and important considerations. The issues raised by an appellant as to the public interest considerations under s188(2) need to be evaluated in the light of the nature of the issues raised in the appeal, including whether the appeal raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application. 145 The majority, Walton J, Vice-President and Boland J, therefore perceived the submission "the matter is of such importance that in the public interest leave should be granted" as an alternative submission to the tests enunciated through the reasoning in Knowles and Perrott. Haylen J in a separate judgment gave consideration on the question of leave to appeal as to the ambit of the application of s188 of the Act and the grounds available to be considered in any leave application. He said: [66] . . . The unlikelihood that an appeal provision would now be limited to circumstances where only issues of general importance would enable leave to be granted is clearly demonstrated by the analysis of the Full Bench in Perrott. Reaching this conclusion as to the proper construction of s 188(1) and (2) does not mean, that in relation to appeals, a less rigorous approach to leave must operate. As the Full Federal Court stated in the Construction, Forestry, Mining and Energy Union and Ors v Australian Industrial Relations Commission and Anor (1998) 89 FCR 200, the conventional considerations for the granting of leave, include whether, in all the circumstances, the decision is attended with sufficient doubt to warrant it being considered by the Full Bench, or whether substantial injustice would result if leave were refused, remain as important considerations properly limiting the availability of appeal. Similarly, in relation to appeals from discretionary judgments, the principles laid down in House v The King (1936) 55 CLR 499 remain relevant and operate as a significant obstacle to appellate review. The search for error in a material respect will remain the touchstone in many cases for the grant of leave. As noted by the Full Bench in Mitchforce v Starkey (2002) 117 IR 122 at [27] the appellant bears the burden of making out a proper case for leave. 146 The appellant submitted that the inter-relationship between s33 of the OHS Act and the provision of the CMR Act is a question of public importance and as such under s188(2) of the Act would attract leave. 147 Given our consideration a further issue as to the application of s53 of the OHS Act to the circumstances also arises. 148 Acknowledging the exceptional nature of the appeal against acquittal on the merits we are of the view this matter is one where the issues raised are such that leave to appeal should be allowed. We consider they are matters of importance which also attract the public interest. 149 Whether her Honour erred in making findings against the evidence and the weight of the evidence; whether her Honour failed to give separate consideration to the different elements under each offence and whether her Honour erred in giving consideration to the circumstance of the incident rather than the relevant risks are issues raised on the appeal. 150 Further, the interaction between the CMR Act and the OHS Act and to what extent an employee's inadvertence affects a respondent's obligation under the OHS Act and the effect of s53 of the OHS Act read with s33 of the OHS Act are also matters of such importance and public interest as to persuade a grant of leave to appeal. 151 Accordingly, leave to appeal is granted.

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As to matter No. IRC4707 of 2001, her Honour said: [100] I have come to a similar conclusion in relation to charge IRC 4707. The time and place of the offence; that the defendant was an employer and that Mr Downes' health and safety was not ensured, were each alleged. The particular failure in the system was also identified, namely a system which prevented Mr Downes 'from working in an area of the mine where the ribs were weak and/or unstable'. That is the act or omission of the defendant which is asserted. Nor do I accept that in a case concerning work of the kind under consideration here, that the 'system of work' cannot comprehend the place at which particular work is to be performed, as the defendant argued. 156 Her Honour therefore found neither charge was defective and accepted, at the close of the prosecution's case, there was a case to answer on each charge. 157 It is a basic principle in criminal law that the prosecution (the appellant in this case) will be held to the charge as framed: Cleary Bros (Bombo) (at 196), and the Police case. The particulars of a charge cannot be treated as mere surplusage. The limit such particularisation imposes upon a prosecutor was emphasised by the High Court in KRM v Queen (2001) 206 CLR 221. McHugh J (at 226) reaffirmed the principles established in Johnson v Miller (1937) 59 CLR 467 in these terms: [15] Section 47A ( Crimes Act 1958 (Vic)) operates in the context of an adversary system of criminal justice where an accused person is entitled to be given as high a degree of particularity concerning a criminal charge as the subject matter will bear. An accused person 'is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge' ( Johnson v Miller per Dixon J at 489). These particulars are needed to ensure that the accused person has a fair opportunity to defend the charge. and Kirby J stated at [96]: ... Unlike some other systems of criminal trial, that of the common law is disinclined to permit the conviction of an accused person upon 'inexact proofs, indefinite testimony, or indirect inferences' ( Briginshaw v Briginshaw (1938) 60 CLR 336 at 362, per Dixon J). In harmony with this fundamental postulate, the rule established for criminal trials in Australia is ordinarily one which requires a high degree of specificity in the accusations, charges and evidence proffered by the prosecution (Walsh v Tattersall (1996) 188 CLR 77 (1996) 90 A Crim R 416 at 419; BRS v The Queen (1997) 191 CLR 275 at 320-321; KBT (1997) 191 CLR 417 at 429). Because these are principles of the common law, they may, subject to the requirements of CH III of the Constitution ( Leeth v The Commonwealth (1992) 174 CLR 455 at 483-487, 501-503; Kruger v The Commonwealth (1997) 190 CLR 1 at 112-114, per Gaudron J; reasons of McHugh J at 227 [16]; cf Parker, "Protection of Judicial Process as an Implied Constitutional Principle", Adelaide Law Review , vol 16 (1994) 341, at pp 350-355) , be modified by legislation. However, any derogation from such fundamental rules has to be very clearly expressed. Otherwise, it will be presumed that no departure from them is included in the legislation concerned. 158 Her Honour, we are of the view, correctly observed in her Interlocutory Judgment: [98] As has oft been observed in the authorities, there are many inherently dangerous industries and occupations where work is required to be performed in dangerous places and under dangerous conditions …. The obligations imposed by the Act that the place of work be made safe by the employer remains. The Act requires that the systems of work which such an employer devises ensure that employees are kept safe from such inherent risks when performing work. 159 Notwithstanding there was agreement between the parties that the evidence in one was the evidence in the other, each charge must be considered in accordance with the elements of the charge and the particulars as alleged. The court must then determine whether there was a causal relationship between the alleged failure and the consequent risk to safety (the Police Case at [23]). 160 The essential ingredients of the offence must be proven. However there can be a failure to prove a particular without the charge failing (Environment Protection Authority v Sydney Water Corporation (1997) 98 A Crim R 481 at 484). 161 It was submitted generally by the appellant her Honour failed to find the causal nexus between the conduct of the respondent and the risk of injury from rib spall; failed to find an unsafe system of work when she established the risk of injury from rib spall had materialised; misdirected herself by the continual reference to the CMR Act in holding "an employer will not be found responsible for (employees) unforseen acts"; did not apply the applicable test as to whether an offence was established. Her Honour's reasoning therefore, led to error the appellant submitted in that it was based on a consideration of the circumstances of the incident rather than a consideration of the risk of injury. 162 The appellant on appeal accepted, without challenge, most of the findings of Schmidt J and relied upon those findings to assert generally the dismissal of each charge was against the evidence and the weight of the evidence. 163 To determine this appeal the Full Bench finds it necessary to rely upon first principles and to examine each charge and the associated particulars relied upon by the prosecution to establish each breach.

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Matter No IRC 4706 of 2001 164 In this "unsafe place of work" charge, the prosecutor pleaded the respondent failed to ensure the health, safety and welfare at work of all of its employees, in particular, Kevin William Downes, by failing to maintain a safe place of work. Schmidt J in her Interlocutory Judgment determined the charge, given the particulars supplied, related specifically to a failure to ensure Mr Downes' safety. Both parties accepted this determination. 165 The particulars relied upon by the prosecution were drafted in an unusual way. Instead of reciting a number of failures which allegedly contributed to the breach, which failures are usually recited as particular acts or omissions of the respondent, the prosecution recited a number of alleged facts which, if proven, were asserted in support of the allegation there was a failure to maintain a safe place of work for Mr Downes. 166 The facts which were alleged in the particulars and relied upon to establish the breach, namely, the failure to provide and maintain a safe place of work, were: Panel 413 was located in an area of geological fault and weakness; there were seven pillars across Panel 413; the rib conditions, particularly those in the central pillars were known to be weak and/or unstable; there was risk of rib spall on pillar extraction; the undermanager had authority to delay scheduled maintenance and continue pillar extraction until a stable position was reached; a rib spall occurred before the maintenance shift; the MRS1 was moved but not fully under roof support; Mr Downes was performing maintenance duties; he suffered serious injury from rib spall; safety concerns in relation to the unstable ribs had been discussed at a meeting of the Occupational Health and Safety Committee; as well the state of the ribs had been reported on by Deputies in their Production Reports and discussed by the respondent with the relevant Senior Inspector of Mines. 167 Her Honour correctly, in our view, held: [159] . . . the issues lying between the parties depended substantially upon whether or not the place at which the work was undertaken was proven to be unstable, . . . 168 This substantial question raises for our consideration three issues to be considered on the appeal from the dismissal of the unsafe place of work charge, namely: what was the place of work and what was the state of that place of work; what was the work being performed; what was the risk to safety (especially to Mr Downes) and what were the acts of the respondent which contributed to the risk. 169 A number of formal matters were agreed between the parties. It was agreed Mr Downes was a deputy carrying out a supervisory role within the meaning of the CMR Act; Mr Downes was on the relevant date injured at work; Mr Downes' injuries were caused by a rib spall at Panel 413; at the relevant time Mr Downes was beside an MRS1 which had been removed from its operating position to repair an oil leak. 170 As to the first question raised - what was the place of work: the particulars to the charge referred to the work being conducted and to Panel 413. Her Honour accepted Panel 413 was generally the place of work. 171 As to the state of Panel 413, her Honour found the evidence established the ribs in Panel 413 were unstable; the risk of rib spall was common place; there was a risk of rib spall at the site; and working in the area was hazardous. All such findings were accepted by the parties on appeal. 172 However, her Honour then commented: [110] . . .The weakness and instability of the ribs was not, of itself, sufficient to prove the offence charged . . .

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Her Honour identified Panel 413 as the general area which, the experts described, was one of geological weakness. Her Honour, however, held those geological faults and weaknesses lay in another part of the panel away from the site, that is, the 7th heading, where the MRS1 was placed for the repair of an oil leak. Having found the charges were concerned with "part of Panel 413", her Honour then further distinguished the area where maintenance work was usually performed from where the work on the MRS1, on the relevant date, was conducted: [120] . . . Maintenance work was normally undertaken away from both the face and the goaf, a road away from the extraction area, where the ribs were better. . . . 173 Her Honour's finding that the area where Mr Downes was performing his work was not the usual place where maintenance work was performed does not, with respect to her Honour, deter from the finding of fact her Honour made that the work was being performed in Panel 413 as pleaded. The 7th heading was part of Panel 413. 174 Her Honour placed much emphasis on the fact that Mr Downes had taken himself out of the usual place where maintenance work was performed to an area near the MRS1 which area was partially without roof support. Nonetheless, while outside roof support, that area where Mr Downes was working was within Panel 413, the particularised place of work. 175 Having distinguished the area where maintenance work was usually conducted, her Honour then turned her attention to the area where the work on the MRS1 was being performed. Particular (j) described the placement of the MRS1. The MRS1 was moved from the coal face to an area which placed it both under and out from roof support. The left hand side of the machine was not under roof support the evidence revealed. 176 Her Honour in her considerations accepted and preferred the evidence of the expert qualified by the respondent, Dr Galvin. This determination was open to her Honour. The appellant conceded that, on appeal, it was bound by those opinions as adopted by her Honour. However, challenge was made to one of her Honour's findings which was asserted to be based on the opinion of Dr Galvin, namely, "the place at which the repair was undertaken (was) . . . safe" or as her Honour otherwise expressed it: [174] . . . the place where production had stopped was a safe one for the work in question to be undertaken . . . .

[89]

And under the heading "11.2.3 Delaying Maintenance", Dr Galvin further stated: 13. From the information provided to me, it is my opinion that: · . . . · The rules and procedures in place catered for repairing MRS1 in safe and secure circumstances. 179 While Dr Galvin's view was it was safe to stop "production" at that point, that is to stop, "mining" he did not directly give the opinion the place where the MRS1 was placed for the repair was safe rather it was his view if an employee went out from under roof support it would be unsafe. 180 This opinion of Dr Galvin's cannot be read as a statement that the place of work where the repair was conducted was safe. 181 The MRS1 was moved away from the face and left at the edge of the 7th heading which was within Panel 413 which panel was at risk of rib spall. That risk was made manifest by a rib spall in the Panel 413 before the maintenance shift began left a drop of coal which was large enough to impede the placement of the MRS1 under roof support. We accept therefore that work was, on the relevant date, being performed in Panel 413 and Panel 413 was the place of work. We further find the place where the MRS1 was moved for the repair was within Panel 413 and was susceptible to rib spall and therefore unsafe. It lay within the area described by her Honour as "hazardous". 182 With respect to her Honour, and given the totality of the evidence on this issue, we find her Honour fell into error. The place of work where the MRS1 was moved to and where the repair was conducted was within Panel 413 and was unsafe. 183 The second issue which arises on appeal was what work was being performed. The relevant particular (particular (k) asserted Mr Downes was performing "maintenance" duties. The issue which was litigated before her Honour at first instance was whether the "repair" to the MRS1 was part of "maintenance" duties being performed by Mr Downes. It was particularised that scheduled maintenance took place on the MRS1 (particular (i)). 184 While her Honour found the work Mr Downes was performing was "cleaning" work and cleaning work was maintenance work she left open the proposition that while the cleaning was maintenance work the repair of the MRS1 was a separate task and the respondent to the appeal presses the issue that there were no pleadings relevant to the assertion there was a risk of injury in the performance of the repair. 185 In a determination of the work being performed on the relevant date, her Honour gave much consideration to the placement of the MRS1. The particulars of the charge recited the machine was moved "to a position which allowed access around the MRS1 but it was not under the supported roof". This fact was never challenged. It was also conceded because of the rib spall before the shift began there was a mound of coal on the floor of the mine and that was why it was impossible to reverse the MRS1 to a position underneath roof supports. The machine was placed in a position but not fully underneath the roof support. The left side of the machine remained exposed. Mr Downes was attempting to remove coal to allow access to the MRS1 for the repair of the oil leak when he was injured by a rib spall. 186 Evidence revealed the oil leak was mentioned in the production and maintenance unit shift report; the day shift of 19 July 1999 noted "check out No. 1 MRS for oil leaks"; the afternoon shift of 19 July 1999 noted "repair No 1 MRS oil leak" and the night shift of 20 July 1999 noted "fix oil leak MRS1". The respondent submitted on appeal the work of Mr Downes was not related to the repair. The inference from this submission is the respondent was holding the prosecution to the charge as pleaded and, as no repair work was pleaded as an element of the alleged offence, the charge was not proven. 187 Cleaning out pieces of coal that had fallen beside the MRS1 was as her Honour held "undoubtedly a part of routine maintenance on the machine." Her Honour accepted the MRS1 had to be moved away from the goaf edge in order for the work on it to be undertaken. Her Honour found also that maintenance work was normally undertaken away from both the face and the goaf. Her Honour also accepted it was "cleaning" work Mr Downes was performing. The general Maintenance Shift documentation referred to "machine services" as a relevant task and the weekly service on the MRS1 required a check of oil leaks. We reject the assertion the pleadings referred to maintenance work and therefore the repair to the MRS1 was a separate task. While the repair was being performed by Mr Dodds, as the designated worker whose task was the repair of the oil leak, we find Mr Downes was assisting Mr Dodds by performing his maintenance duties. Whether the task Mr Downes was performing was cleaning or repair we accept it was part of scheduled maintenance on the MRS1 as asserted in the pleadings (particular (i)). 188 We find the particular (i) asserting Mr Downes was performing maintenance duties was established both on the evidence and by her Honour and we reject the proposition of the respondent that the acts of Mr Downes were not covered by the pleadings. 189 Once part of the MRS1 was placed outside the supported roof (as particularised) and Mr Downes was required to perform maintenance work on the machine, the respondent had an absolute obligation to ensure that all work could be performed safely. Access to the machine was vital to perform both the repair and the cleaning. Mr Downes was cleaning out coal to assist in the maintenance of the machine. 190 In going to the side of the MRS1 to remove coal or as her Honour held to clean up the coal in an area where the rib had been "trimmed" (that is, cut further to make the roadway wider) and into an area where no roof bolts had been installed, Mr Downes was clearly under unsupported roof. However, Mr Downes had to ensure as Deputy that maintenance work on the MRS1 was completed on the shift. 191 The task required Mr Downes to be alongside the MRS1. Her Honour, however, rejected that the respondent was responsible for Mr Downes being where he was. The operative cause of Mr Downes being placed at risk was he was required to perform work near the MRS1 in the form of cleaning away coal. The evidence established the MRS1 had been placed in a position and part of the machine was outside the safe supported roof in Panel 413 (Particular (h)) where the ribs were unstable and hazardous. The placement of the MRS1 was an act of the respondent for which the respondent was liable under the OHS Act and which act was relied upon in the particulars. 192 Evidence revealed it was known that coal would get caught in the "extraction" holes in the MRS1. The MRS1 would, during production, fill with coal and on occasions the cleaning took up a whole shift. Mr Dodds, the nominated worker to perform the repair, had on occasions cleaned out coal from the "extraction" holes if he had access. There was pressure on both Mr Dodds and Mr Downes to have the repair completed in order to allow the following shift, being a production shift, to start on time. Given the state of the ribs the next production shift had to be on time and there was an imperative for the Deputy to assist in the repair. 193 We are satisfied that the work being performed by Mr Downes was particularised and the evidence established Mr Downes in cleaning out the coal was performing maintenance duties. 194 The third consideration on appeal is what was the risk alleged and what acts of the respondent contributed to the risk asserted. The risk was simply put by the prosecution as "the risk of injury from rib spall". 195 A basic element of the charge as pleaded (particular (h)) - was the work being performed, namely, the maintenance work, should have been "delayed". 196 The relevant particulars ((d), (e), (f), (g) and (h)) asserted given the state of Panel 413 the under manager had the authority to delay scheduled maintenance and continue pillar extraction until a stable position was reached. Particular (b) therefore make two assertions - firstly, maintenance should have been delayed and secondly, pillar extraction, that is, "mining", should have continued. They are the assertions relied upon which, if proven, created the risk. The proposition can be positively recited, namely, the respondent should have delayed maintenance (in which the repair was a designated task) and continued mining. 197 Her Honour, with respect, recast the pleading to assert at [178] the charge was concerned with: [178] a failure to delay the repair, not a failure to have undertaken the repair earlier . . .

[118]

Q Was there any record kept of meetings? A It was the responsibility of one of the undermanagers to every day record any safety issues that had been raised at any of the three meetings and post that on to a safety notice board. There was also a record kept in what we call the undermanager's diary, also any issues that had been raised during the round table meeting. 204 There was no reference to, or concern from, any of the above witnesses about stopping the scheduled maintenance shift of 20 July 1999. It appears from the evidence there was a full awareness of the instability but no consideration was given to deferring the maintenance shift. As pleaded in particular (h) and, as the evidence established, the under manager had the authority to delay scheduled maintenance until a stable position was reached. No such consideration was undertaken. Maintenance was scheduled and maintenance went ahead without a consideration of the prevailing conditions. 205 The evidence further established the risk of injury was increased if mining was halted for any prolonged period and the conditions that prevailed at the site on the day of the alleged offences therefore become even more relevant. 206 Halting for maintenance at that part of the panel, which decision was one of the respondent, contributed to the risk, a risk, of which, the evidence demonstrated, the respondent was well aware as: · A number of reports had been made by the deputies as to the spalling ribs in panel 413 throughout the mining of the panel. · Unmined coal had been left in the adjacent heading (6 heading). That had the effect of inhibiting the goaf from collapsing and increased the load on the ribs. · Halting production when the goaf had not fully caved also increased the load on the pillars and the longer production was halted the greater the amount of time the extra load was placed on the ribs, increasing the stress on and weakening them. · Increasing the width of the panel road for the purpose of removing MRS1 for repair caused a redistribution of weight to the sides of the of the roadways, further adding to the load on the pillars. 207 Her Honour gave a separate consideration as to the effect of conducting the repair on the MRS1 during maintenance. Mr Beatty, the inspector, identified "the major contributing factor to the accident" in this way: . . . the maintenance of the MRS carried out during fendering operations would involve work that takes time and during this time the ribs failing and time strain effect creates a hazardous situation the longer that the process takes and it was my opinion that they should defer anything that was deferrable to such time as when the machine is in a safe and secure position for that maintenance. 208 It is of note that Mr Beatty when referring to the repair of the machine adopted the term "maintenance". 209 The inference that the repair had been delayed for the convenience of performing it during the maintenance shift was an issue before her Honour. The prosecution on appeal submitted that the inference required, and rejected by her Honour be accepted on appeal. Whether the repair should have been delayed cannot be the issue rather the question must be could the repair be conducted on the maintenance shift at that place safely. Dr Galvin's view and that of the witnesses was that the risk of rib spall was ever present throughout the maintenance shift. Therefore, the conduct of the respondent in allowing the maintenance shift to go ahead given the state of Panel 413 contributed to the risk. 210 Particular (h) asserted the scheduled maintenance shift could have been delayed. The under manager had that authority. Put another way the assertion was that mining should have been continued until the rib conditions were stable. The evidence revealed the scheduled maintenance shift was set a week ahead. Those in charge of the mining operation in Panel 413 were aware of the instability in the area. Yet there seemed to have been no direct consideration as to cancelling the maintenance shift. As the appellant elucidated in their submission: The operative cause of the risk (identified clearly in the particulars as arising from a rib spall ) was the respondent's decision to halt the mining process for a maintenance shift at the time in question and in the circumstances which prevailed at that time. 211 Her Honour found there was power held by the respondent through senior management, who knew of the risk of rib spall, to defer the maintenance shift scheduled. We believe her Honour's conclusions on this point were sound. The particular (h) asserted the scheduled maintenance shift should have been delayed. We find this particular to the charge was established on the evidence. 212 The decision therefore of the respondent not to delay the maintenance shift in circumstances where there were such unstable prevailing conditions which conditions were aggravated by the respondent's activities cause us to conclude such acts of the respondent, as pleaded, created a risk of injury from rib spall. 213 Therefore, we find proven the assertion in the particulars that there was a failure to delay the maintenance shift and continue mining until Panel 413 was stable. 214 A third question raised for our consideration was the causal connection which must be established between the act of the respondent or the failure to act by the respondent and the risk of injury from rib spall. The identified risk was the risk of injury from rib spall which was made manifest in the injury to Mr Downes. 215 The respondent submitted "criminal culpability in the context of an absolute duty is not demonstrated by a mere conjunction of events as in this circumstance" and asserted her Honour made explicit and correct findings that the cause of Mr Downes exposure to risk of injury was his own conduct and not in any way the fault of the respondent. Such a submission, however, we find focuses on a reading of the evidence in the context of the incident rather than what was required in assessment of the risk. 216 Conducting maintenance at that point in time and at that place necessarily meant that the MRS1 had to be moved away from the goaf edge. The mine's own rules indicated it was undesirable to halt mining mid-extraction for an entire shift. The relevance of the CMR Act was the statutory obligations it imposed on deputies as well as more senior management for the safe performance of the mining operation. However, those obligations must be read with the obligations imposed on employers under the OHS Act. Her Honour misdirected herself, in our view, in giving consideration to the obligations carried by Mr Downes under the CMR Act which analysis implicitly directed her Honour's attention also to the incident rather than directing attention to the risk to safety under which the s15(1) charge under the OHS Act is brought. 217 We once again return to the charge as pleaded. The alleged failure was the failure to maintain a safe place of work. A number of facts were asserted which if proven were relied upon to establish that failure. We have traversed the allegations contained in the particulars to determine if there was a workplace which was unsafe on 20 July 1999. We find it has been established and therefore address the issue as to whether those acts created the relevant risk. 218 On the evidence, as we have found, the respondent created an unsafe place of work by proceeding with a scheduled maintenance shift at Panel 413 and stopping mining in circumstances where there was instability of the ribs and of that instability the respondent was aware. The evidence established Panel 413 was the place of work, that it was hazardous to work in the area where there was a risk of rib spall. The work being performed was maintenance work. The work was being carried out in an area known to be at risk of rib spall. Rib spall put employees at risk of injury. There was a rib spall which injured Mr Downes. 219 It was not open to the respondent to entirely delegate its responsibilities under the OHS Act to a supervisor, regardless of how qualified he was (see Fletcher Constructions). 220 It is our view, with respect to her Honour, the number of factual findings made by her Honour and our determination the place where the maintenance work was conducted was in the circumstances of ceasing production, was unsafe, should have led to the conclusion there was a causal connection between the acts or omissions of the respondent and the detriment to safety including: the knowledge of the respondent as to the state of the ribs; the risk of rib spall was common place; on the day in question Mr Downes was working in an area of the mine where it was known the ribs were weak or unstable; it was known there was a risk of rib spall at the site in question; working in the area was hazardous; Mr Downes was exposed to a risk of injury from rib spall; the risk materialized when he was buried by a rib spall; halting for maintenance contributed to the risk; the maintenance shift could have been delayed; production could have continued. 221 We find therefore, a causal nexus has been established between the conduct of the respondent and the risk of injury from rib spall. 222 We further, find while each offence was prosecuted under s15(1) of the OHS Act and the particulars relied upon were similar, her Honour did not fall into error in considering together the circumstances surrounding each charge especially since this procedure and decision was agreed between the parties. However, once her Honour made findings of fact, she did not consider each offence separately nor the elements of each offence separately based on her findings of fact. In this manner we find error has been established.

[122]

And s53 states: 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 regulations 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. 225 As to the defence raised under s53 of the OHS Act, her Honour having dismissed the charges stated: [181] It is unnecessary to consider the defences in the circumstances, although I note for completeness, that I would have found them made out, had it been necessary to turn to them, for reasons which appear clear from what I have earlier dealt with. 226 The requirements for a successful s53 defence were set out in Kellogg (Australia) Pty Ltd as follows (at 259): To establish a defence under s 53, 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. 227 The respondent relied upon the second limb of s53, that is, s53(b), to submit there was no practical way in which the employer could have controlled Mr Downes' actions or prevented him doing what he did in exposing himself to danger. The commission of the offence was therefore, due to causes over which the respondent had no control and against the happening of which it was impractical for the respondent to make provision. From the facts as found the respondent submitted the defence is established in the circumstances. In Sydney County Council v Coulson (1987) 21 IR 477 (at 480) the Full Bench delivered a cautious warning directed to the Court's consideration of the defence under s53 of the Act saying: Mere existence that it 'must have been' deliberate disobedience or inexplicable inadvertence ...[is not] an adequate explanation as to why in fact the employer had no control over the causes or the happening of events such that it was impractical for him to make provision. 228 Thus, in Genner Constructions, Walton J, Vice-President referred to Fletcher Constructions where the Full Bench observed at [67]: . . . It may be that, in some cases, it would not be practicable to guard against a detriment to safety occasioned by an appropriately trained and instructed employee departing from a known safe procedure. This may be so because the risk of the employee failing to follow procedures was not reasonably foreseeable. ...

[123]

Her Honour reasoned as follows: [129] . . . The evidence clearly showed that it was not as the result of any system established by the defendant, or any direction given to Mr Downes, which led him to perform this cleaning work, in a place where he was at obvious risk of rib spall. To the contrary, the defendant's policies and procedures, consistently with the CMR Act, required that no work be undertaken there. The evidence did not suggest that such policies and procedures were not enforced. The evidence was to the contrary. It was Mr Downes who, while working underground, had the ultimate authority to direct that particular work be undertaken and to ensure that if anyone went into such an area, that they were removed. 229 In matter No. IRC 4706 of 2001, the unsafe place of work charge, while there was no indication of a deliberate disobedience, I find the facts establish the case is one demonstrating an unfortunate inadvertence. Mr Downes, the responsible deputy, was trying to remove coal fallen from a rib spall which coal was obstructing access and in effect impeding a repair being conducted during the maintenance shift. He took himself outside the restricted area to perform this task. Mr Downes' conduct was inexplicable. As her Honour said: [179] . . . It was Mr Downes who took himself into danger in a way in which the defendant cannot have foreseen or taken further steps to guard against. It was obliged by the CMR Act to leave him in control of the actual work performed underground. The evidence showed that had he not gone to the side of the machine under unsupported roof and within proximity of the ribs, contrary to the defendant's system of work and the obligations imposed upon him by the CMR Act, he would have remained safe. 230 There was significant safety training in place directed to all miners implemented by the respondent and its aim was to create an awareness for safe working. It was a basic rule of miners that all work had to be conducted under roof support. The methods by which unacceptable and dangerous behaviour was controlled and prevented by the respondent in its mining operations was to adopt strict rules of safety (as also required by the CMR Act). This commitment involving rigorous training and reinforcement as revealed through the Step Back One by One Programme conducted by the respondent in performance of its training regime; supervision of each Deputy's District by a Deputy who is also, under the CMR Act, required to remain in the District and is in charge of all aspects of work and safety subject only to the presence of a more senior mining official. The terms of the Mine Managers rules and CMR Act, I am persuaded, are vigorously implemented. The respondent had all such safety features in place prior to this incident. 231 The methods by which the respondent ensured such unacceptable and dangerous behaviour is controlled and prevented included: · the adoption of strict rules of safety as required by the CMR Act; · the training and frequent reinforcement including at peer level including the Step Back One by One Program (AB 910 - 911). It was a cardinal rule that a reservation about safety from any member of the crew brings about a re-evaluation of the situation before mining continues. If necessary more senior mining officials are involved; · the supervision of each Deputy's District by a Deputy who is under the CMR Act required to remain in the District and is in charge of all aspects of work and safety subject only to the presence of a more senior mining official and the terms of the Mine Managers rules and CMR Act. 232 The appellant submitted her Honour erred by shifting the onus to the defence to negate the defence beyond reasonable doubt when the onus of proof was with the respondent. Further, the appellant submitted her Honour focussed on the foreseeability of Mr Downes' actions. If foreseeability was relevant, it had to be the foreseeability of the risk to safety with which the charges were concerned. That risk was the risk of injury from rib spall. 233 Recently in Kirk Group Holdings, Walton J, Vice President said at [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 s 15, or to limit the risks to safety contemplated by s 15 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 s 53 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. 234 Her Honour correctly found Mr Downes' statutory position and responsibilities permitted the respondent to rely upon his control of his Deputy's District, including his own conduct. It is at this point in the consideration those obligations imposed upon the appellant under the CMR Act becomes relevant. 235 Evidence revealed Mr Dodds and Mr Downes had pressure upon them to complete the repair so production could be resumed. On the day it would have been apparent to Mr Downes that Mr Dodds was still engaged in cleaning the MRS1 after an hour or so had passed. Mr Downes had multiple responsibilities in accordance with his position within the company which was more than that of just a supervisor. It was not unforeseeable Mr Downes would attempt to assist Mr Dodds. The charge deals with, as her Honour found, the activity of Mr Downes. 236 I reject the appellant's submission that it was in the circumstances reasonably practicable to comply with the OHS Act. 237 I accept there was no practical way in which the respondent could have controlled Mr Downes' actions or prevented him doing what he did in exposing himself to danger. Given the thorough training of Mr Downes, his position of authority as Deputy, his many years of experience and his splendid work record as a responsible employee, I accept the respondent could not have foreseen he would walk out from under supported roof. The risk of this employee failing to follow procedures was not I find reasonably foreseeable and so it was not reasonably practical for this employer to guard against his exposure to rib spall outside of roof support. 238 Therefore, the offence was due to causes over which the respondent had no control and against the happening of which it was impracticable for the respondent to make provision. I find therefore the statutory defence has been established in matter No. IRC4706 of 2001. 239 One further issue deserves comment. Her Honour made frequent reference to the CMR Act. However, in her consideration she did not invoke the operation of s33 of the OHS Act. Section 33(1) provides that the OHS Act prevails over any inconsistency with associated legislation. It is only where the act or omission constituting the offence was expressly required or permitted by the legislation that the defence in s33(2) has operation (McMartin at [162] - [164] per Staunton J). It is not necessary to determine this issue although it would be difficult to accept that any act of the respondent in creating the alleged risk was either required or permitted under the CMR Act.

[127]

Her Honour accepted "the respondent was right to make the required repair". She accepted "It was not practical to delay or to do it elsewhere". 247 However, such a proposition must be related back to the elements of the charge as pleaded. It was established as fact, in accordance with the similar particulars relied upon in matter No. 4706 of 2001 that Panel 413 was in an area of geological fault and weakness, the rib conditions in the panel were known to be weak, there was a risk of rib spall and this was known by the respondent. The maintenance shift was not delayed although the allegation as to the knowledge of the instability in the panels was not relied upon in the pleadings. There was on the evidence no consideration given to delaying the maintenance shift. The MRS1 was moved but not fully under the supported roof because of rib spall arising from the state of the panels. Mr Downes was performing maintenance duties on the MRS1 when he was crushed by a rib spall suffering serious injury. 248 There were no particulars directed to any alleged failure in the system of work adopted except for the assertion that the place of work chosen for the repairs was an unsafe place of work. There was no consideration maintenance/repair should have been delayed. Such an inference was rejected by her Honour. 249 On all the evidence, the system of work for the repair of the oil leak of the MRS1, if followed, would have been safe but for the failure of the respondent to ensure the place of work where the work was performed was safe and without risk. This was the charge for which the respondent was convicted in the prior matter. There was no different proposition mounted and no particulars pleaded nor evidence relied upon that the placement of the machine was a systems failure or a breach of the established practice for the performance of a repair of the machine. Her Honour correctly in our view commented on the placement of the machine but made no finding as to its placement as a systemic breach. 250 Her Honour in her Interlocutory Judgment found there was a case to answer on the systems charge. However, given the state of the evidence at the close of the case, the focus and evidence relied upon to establish both charges was directed at a finding the place at which the work was performed was unsafe. In such a circumstance, I find only one charge can stand or the respondent otherwise faces two charges based on the same alleged breach. The charge in matter No. IRC4707 of 2001 therefore at the close of evidence is a reflection of the same offences as that pleaded in matter No. IRC4706 of 2001. The framing of the charge and the evidence relied upon simply created a different focus.

[128]

251 The charge is brought under the same provision, s15(1) of the OHS Act and the particulars relied upon to establish the "system of work" charge was the failure to prevent Mr Downes from working in an area where the ribs were weak and unsafe. The assertion in the "place of work" charge was the respondent failed to ensure a safe place of work. In a consideration of either charge as pleaded, the focus was on the place of work where maintenance work on the MRS1 was being performed. 252 In a reading of the charges in this way and in consideration of all the propositions put by both parties, yet acknowledging the same particulars relied upon as the basis for each of the charges, the allegation that on 20 July 1999, Panel 413 was an unsafe place of work was established. The respondent is guilty in matter No. IRC4706 of 2001 of a breach of the OHS Act in that it failed to provide a safe place of work. 253 The act of the respondent in conducting maintenance at the relevant date created the risk, namely, the risk of injury from rib spall. That risk created an unsafe place of work. The evidence relied up to the close of the case in matter No IRC4707 of 2001 took the issue no further. There was no evidence of a systemic failure in the system of work in place for the conduct of the maintenance task. The proven breach was the work was conducted at an unsafe place of work. The fundamental basis of the system of work charge was the same as that alleged in matter No IRC4706 of 2001. Further, as her Honour held at [129]: . . . The evidence clearly showed that it was not as the result of any system established by the defendant, or any direction given to Mr Downes, which led him to perform this cleaning work, in a place where he was at obvious risk of rib spall. 254 Accordingly, I would dismiss the charge in matter No. IRC4707 of 2001. 255 Given my conclusions on appeal and the partial success of the appellant I would order the respondent to pay 25 percent of the appellant's costs on appeal 256 I would order the following: (i) Leave to Appeal is granted. (ii) To the extent that the appeal relates to liability in matter No. IRC4706 of 2001, the appeal is upheld. (iii) In the application of s53 of the Act in matter No. IRC4706 of 2001, the charge is dismissed. (iv) The appeal in matter No. IRC4707 of 2001 is dismissed. (v) The respondent to pay 25 percent of the appellant's costs on appeal. PRESIDENT: The orders of the Full Bench on appeal are therefore as follows: 1. Leave to appeal is granted.

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