HIS HONOUR: These proceedings involve a prosecution instituted by Mr Robert William Regan on 15 February 2011, for whom Ms Jennifer Ann Nash ("the prosecutor") was substituted by order of the Industrial Court of New South Wales on 7 March 2012, against Resource Pacific Pty Ltd ("the defendant"). Investigator Nash is an Investigator for the Department of Trade and Investment, Regional Infrastructure and Services of New South Wales, appointed under s 145(1)(d) of the Coal Mine Health and Safety Act 2002 (NSW) ("CMHS Act"). She is empowered to bring these proceedings under s 106(1)(c) of the Occupational Health and Safety Act 2000 (NSW) ("the OHS Act") by the operation of s 47B of that Act. The OHS Act, since repealed, continues to have force or effect in relation to these proceedings pursuant to Sch 4 of the Work Health and Safety Act 2011 (NSW).
The charges against the defendant are specified in further amended applications for order filed on 11 June 2013. The defendant was charged therein with one breach of s 8(2) and one breach of s 10(2) of the OHS Act. These two breaches were pleaded by the prosecutor as occurring on 18 February 2009 at the defendant's place of work, the Ravensworth Underground Mine ("the Mine"), near Singleton in New South Wales. The Mine was both a coal workplace within the meaning of the OHS Act and a place of work to which the CMHS Act applied.
The prosecutor particularised the risk to health and safety in the s 8(2) charge as follows:
1. On the night shift from 6:00 p.m. 17 February 2009 to 6:00 a.m. 18 February 2009 Mr Oldknow and his fellow workers Noel Fairley, Gary Sales and Geoffrey King were engaged in the conduct of the defendant's undertaking at the defendant's place of work when driving trucks under a large loading hopper known as Reject Bin 802 to receive into the trucks and their trailers approximately 30 tonnes of material delivered in three drops from the hopper and to then deliver that material to another location nearby.
2. Mr Oldknow and his fellow workers were at risk of being injured or killed by material falling onto them through the roof of their truck cabin when they were beneath the chute of the hopper.
There were some inconsequential differences in how the risk was particularised in the s 10(2) charge. The particulars of each charge do, however, differ. Those differences shall be discussed under the heading dealing with the s 10(2) particulars corresponding to the counterpart s 8(2) particular.
The Mine was a large coal mine operation that consisted of three main components:
1. an underground mine where material was extracted from the ground;
2. the Coal Handling and Preparation Plant, which was referred to throughout the proceedings as "the washery", "the CHPP" and "the CPP" (hereinafter "CHPP"), where the material extracted through mining was washed to separate coal from other undesirable materials (this process will hereafter be referred to as "washing") which were conveyed as part of a reject handling system; and
3. the Ravensworth Coal Terminal ("RCT") where the separated coal was loaded for transport by rail.
A subsidiary aspect of the CHPP was the Mine's reject handling system. The reject handling system received and discharged the unwanted by-product that was produced through washing. That by-product was a substance constituted of a mixture of coal and other mineral materials.
Two forms of this substance were produced:
1. coarse reject, which had a greater particle size; and
2. fine reject, which had a smaller particle size.
Separate channels existed for discharging coarse reject and fine reject. Coarse reject was transported from the CHPP, via a series of two conveyors, to a hopper known as Reject Bin 802 (hereinafter "Bin 802") located approximately 2 km south-east of the CHPP. Fine reject was pumped by pipe out of the CHPP to a different location for disposal. These proceedings concern the disposal of coarse reject, which was referred to throughout the proceedings as "reject", or "chitter". It will hereinafter be referred to as "reject". (It should be noted, for completeness, that coal reject is defined in s 286A of the Mining Act 2002 (NSW) for the purposes of Pt 14, Div 3A of that Act).
Bin 802 was variously described as a "surge bin", a "mass flow bin" and a "gravity flow bin", each of which illuminated that Bin 802 held a volume of reject received from the conveyors which, when released by the opening of hydraulic gates (hereafter "the gates"), fell by the force of gravity through a chute situated at the bottom of the bin.
The infrastructure of the bin will be discussed in detail later in this judgment. However, by introduction, the following will suffice. The hopper of Bin 802 was housed in a gantry which was raised by steel beams over a section of asphalt road. This arrangement formed a passageway underneath the gantry of Bin 802 through which vehicles could pass in order to collect loads of reject. That passageway was referred to throughout the proceedings as "the bin race" or "the race" (hereinafter "the race"). The race ran approximately east to west from entry to exit of Bin 802 and the steel beams which supported the gantry stood on its northern and southern sides. Low walls were also constructed along the northern and southern sides of the race. Bin 802 was upgraded following the upgrade of the CHPP. The project commenced in 2006 and the bin was commissioned in late July 2007.
Drivers would position vehicles in the race for the purpose of receiving loads of reject from the chute of Bin 802. After receiving loads of reject from Bin 802 into their vehicles, drivers would transport the reject they had collected along a haul road to a dump pad located near Ravensworth South Emplacement Area ("the dump pad"). Ravensworth South Emplacement Area was a void several kilometres south of the CHPP where reject was ultimately dumped (hereinafter referred to as "the void").
Bin 802 had an electronic control system which control was effected by a programmable logic controller ("PLC"). Drivers could open the gates and release a single load of reject into their trucks by the pushing of an 'A' button on a 27MHz Elsema FMT 302 (NL) remote controller ("remote controller"). The remote controllers were provided to all drivers who received loads of reject into their vehicles. Each remote controller featured an 'A' button and a 'B' button. Once the 'A' button was pressed there would be a delay prior to the opening of the gates. The delay was 5 seconds if the hydraulic power pack (hereafter "power pack"), which powered the opening of the gates, was not already activated (the delay was programmed into the PLC in order to give the power pack enough time to reach pressure prior to the hydraulics solenoid being energised or immediately if the power pack was activated. The power pack would remain activated for 120 seconds after the gates were opened. The gates would then remain open for a period of 2.5 seconds before automatically closing. The hydraulic system was configured to default to close the gates and keep them closed.
Thus, when the power pack was inactive and the conditions met for opening the gates of Bin 802, there would be a 5 second delay from the time the 'A' button on the remote controller was pressed to the time when the gates of Bin 802 opened.
The gates could also be closed prematurely by a driver pressing the 'B' button on their remote controller or the pressing of an emergency stop button located at Bin 802's local control centre. An alternative mode also existed for the opening and closing of Bin 802's gates from the local control centre (that system will be discussed in further detail below).
The outputs or commands given by the PLC were dependent upon the inputs it received (in this case, from sensors in the race) and how the software incorporated within the PLC was programmed by means of coding to respond to those inputs. The PLC application software (code) was variously described in these proceedings as the software logic system and software logic code or the logic of the PLC application software (code) (those expressions will be used interchangeably in this judgment). That program is written using a software package specifically designed to operate with the hardware called firmware - a permanent software installed on the PLC.
The primary purpose of that mechanism was to prevent the release of reject from Bin 802 unless a driver was in a safe position to receive a load into their truck and dog trailer.
It consisted of:
1. a PLC and the software logic with which it was programmed (which governed the opening and closing of Bin 802's gates);
2. three pairs of Photoelectric Sensor Cells ("PE Cells") placed in the race which transmitted signals to the PLC (respectively PE Cell 1, 2 and 3); and
3. the remote controllers which also relayed signals back to the PLC (via a radio receiver).
The defendant accepted that, at the date of the charges, it was the operator of the coal mine for the purposes of s 17 of the CMHS Act who had day-to-day control and management of the coal operation consisting of the underground coal mine, albeit under the defendant company's previous name, Resource Pacific Limited ("RPL").
Pursuant to s 184 of the Evidence Act 1995 (NSW), the defendant filed admissions in relation to both the s 8(2) charge and the s 10(2) charge on 8 February 2016. Those admissions were identical in substance. The admissions included that, on 18 February 2009:
1. Bin 802 was part of the defendant's place of work
2. The defendant had control of Bin 802.
It was further admitted that on 18 February 2009:
3. The alleged risk to health and safety arose in the course of the defendant's undertaking.
The charges followed upon a fatal incident which occurred between 2.00 am and 2.30 am on 18 February 2009 involving Mr David Oldknow.
Mr Oldknow, a self-employed truck driver under contract by a company called Daracon Mining Pty Ltd ("Daracon"), was engaged to transport reject from Bin 802 into his truck to the dump pad. The truck he used for that purpose was a "commercial" or "road registered" Kentworth T401 prime mover ("T401") with a tipping bin capable of carrying loads. Attached to his truck, by an A-frame drawbar, was a Sloane tri-axle trailer which also had a bin capable of carrying loads. This type of trailer was referred to as a "dog trailer" or more simply a "dog". The combination of a semi-trailer, with its own bin, towing an additional trailer of this type was referred to throughout the proceedings as a "truck and dog" or a "truck and dog combination". Hereafter this combination shall be referred to as a "truck and dog", although it may be noted that some dogs used by drivers at Bin 802 were four axle trailers.
A detail survey was carried out of Mr Oldknow's truck and dog on 18 February 2009. The plan of that survey (hereafter the "truck plan") was Ex 130 in the proceedings, a copy of which is appended to this decision as Appendix 1.
The truck plan demonstrated that the total length of Mr Oldknow's truck and dog was 17.59 m long. That length was comprised of: his truck at 7.85 m long; the A-frame drawbar connecting the truck and dog which was 3.64 m long (this was the gap between the truck and the dog trailer); and, the dog trailer which was 6.1 m long. The top of the exhaust pipe on Mr Oldknow's truck marked the tallest part of his truck and dog at 3.5 m tall.
Both the T401 and the trailer were owned and operated by Mr Oldknow through his company DH and GM Oldknow in partnership with his wife.
On Tuesday, 17 February 2009, commencing at about 6.00pm, Mr Oldknow worked the night-shift at the Mine driving his truck and dog hauling reject from Bin 802 to the void. Also working on this shift, were drivers Noel Fairley, Gary Sales and Geoffrey King.
At the commencement of the shift, Mr Oldknow completed an inspection of the loading bay under Bin 802 and also supervised the pre-start inspections of all the truck and dogs working on that shift, including the completion of Daracon's pre-start inspection documents in relation to each vehicle.
Although there were intermittent periods of rain throughout the night, it was not raining at the time of the incident.
Between the hours of 2.00am and 2.30am on 18 February 2009, Mr Oldknow brought his truck underneath the chute of the bin for the purpose of undertaking the work he was commissioned to perform for Daracon at the Mine. During this time, a load of reject was discharged from Bin 802 onto the cabin of the truck whilst Mr Oldknow was situated in the driver's seat. The roof of Mr Oldknow's cabin collapsed under the weight of the reject released. Mr Oldknow sustained fatal crush injuries (hereinafter referred to as "the incident"). There were no witnesses to the incident.
Noel Fairley, who was driving his truck and dog between the void and Bin 802 next in sequence to Mr Oldknow, drove towards Bin 802 and observed the lights of Mr Oldknow's truck past the exit side of the race.
Mr Oldknow's truck was found stationary, approximately 33 m forward of Bin 802's chute on the exit side of the race, having mounted a dirt embankment. When Noel Fairley approached Mr Oldknow's vehicle, he made the following observations:
1. the T401 had mounted a bund wall located on the exit side of the loading bay;
2. the cabin roof was gone;
3. Mr Oldknow was in the driver's seat, he was covered by coal, reject and the roof; and
4. the T401's engine was running and the engine was revving.
During the course of investigations undertaken by Inspector Owen Barry (a Senior Inspector of Electrical Engineering with the Department of Primary Industry ("DPI")) after the incident, Peter Sherwood, a Transport Supervisor for Daracon, was asked to identify the gear that Mr Oldknow's truck was in when found. Mr Sherwood was recorded by video stating that the truck had been in fifth gear, a mid-range forward gear, when found.
An investigation by the DPI into Mr Oldknow's death established the weight of the reject that was released on to Mr Oldknow's truck (that was able to be recovered) to be 9.88 tonnes. That amount was comprised partly by reject which was recovered from the bin of Mr Oldknow's truck, which weighed 4.44 tonnes. The remaining 5.44 tonnes of reject was recovered from inside Mr Oldknow's cabin, the bonnet of his truck, the ground beside the truck cabin and the ground underneath the chute of Bin 802. There was no evidence as to when that weighing process occurred, however, it was not undertaken on the day of the incident.
A statement of agreed facts became Exhibit 3 in the proceedings ("ASF"). Consistently with the fore mentioned evidence, the ASF stated at [65] that "a load of reject, weighing approximately 10 tonnes, was released from Reject Bin 802 whilst the cabin of his [Mr Oldknow's] prime-mover was located, in part, below the loading gates of Reject Bin 802." The ASF also referred to the drop of reject permitted by the operation of conditions of Bin 802, stating at [53] that the first loading position "permitted a single 10 tonne load of reject to be dropped from the bin gates" and that the second and third loading positions "permitted two single 10 tonne loads of reject to be dropped from the bin into each dog".
On examination of Bin 802 and the relevant field equipment, no defects or failures were found in relation to any of the field equipment that impacted, relevantly, on the functioning of the electronic PLC system and the operation of the loading gates at the base of Bin 802.
On examination of Mr Oldknow's truck and dog no relevant defects were found.
Mr Oldknow had a background of working in and for the mines. He had a family business which involved excavations and truck haulage. He commenced working at Bin 802 by at least 1 August 2007.
Mr Oldknow was known to Daracon and to his fellow drivers as a careful and safety conscious driver/operator. His fellow drivers considered him to be a person who would always follow instructions. Mr Oldknow would complete paperwork and was not a person who would take shortcuts. He was very well respected.
After the incident, the defendant was required by the DPI to conduct a Failure Mode and Effects Analysis ("FMEA"). The FMEA was moderated by Marcus Punch and Peter Berkholz. The FMEA was held over three days, from 25 February 2009 to 27 February 2009. Common participants on all three days were: Owen Barry (DPI); Paul Drain (DPI); Ian Clifton (from the defendant); Dave Mellows (Xstrata Coal Pty Ltd ("Xstrata")); Marcus Punch (Marcus Punch Pty Ltd); Rebecca Hornsby (Sparke Helmore Lawyers); Rod Fox (Xstrata); Mark Winchester (Xstrata); Norm Greedy (Power Kontrol Integration Pty Ltd ("PKI"); David Richardson (Demat); Keith Shaw (CFMEU); Dave Rowan (Daracon); Merv Sweetman (Merv Sweetman Pty Ltd); Gavin Hanrahan (Turnbull Hill Lawyers); Justine Matthews (Hunt & Hunt Lawyers); and also from the defendant: Jeffrey Morton; Kel Hinde; Tony Watson; and Joel Evans.
Additional FMEA participants on each day were as follows:
1. On 25 February 2009: Katrina Burrell (NSW Police) and Peter Chorley (PKI);
2. On 26 February 2009: Tony Brian (the defendant); and
3. On 27 February 2009: Katrina Burrell; Peter Chorley and Tony Brian.
On 4 March 2009, a simulation of the reject bin occurred using a similar truck to Mr Oldknow's. This was the first operation of the reject bin following the incident.
During this simulation Mr Greg Delaney, a truck driver who had previously driven under contract in the reject haulage operation, drove the truck and dog through the bin race. Mr Delaney overshot the mark where he was to line up his truck with the painted line and had to reverse. This can be seen on the DVD taken on this day. At the time of this occurring, there was no issue taken with the fact that Mr Delaney overshot his mark.
Bin 802 operated, as intended, during the simulation testing.
Mr George Georgevits, consultant engineer and expert witness in the proceedings, was engaged by the DPI to undertake a review of the software code. Mr Georgevits identified that it took him well over 100 hours to identify an error in the code which was incorporated in the PLC (this will be discussed at length later in this judgment). He was provided with two specific pages of the code which contained the relevant coding which allowed the bin to open on Mr Oldknow's truck. Mr Georgevits' reports are significant in these proceedings and consisted of two reports dated 29 June 2011 (Ex 135) and 11 March 2016 (Ex 134) respectively.
On 12 March 2009, the DPI conducted simulation testing at the reject bin to identify potential activation of the reject bin.
The defendant pleaded not guilty to both charges. The defendant contended that the prosecutor had not proved the charges and specifically had not proved particulars of the defendant's acts and omissions alleged to have been done in contravention of s 8(2) and s 10(2) of the Act. The defendant raised a statutory defence for each particular of the charge under s 28(a) of the Act.
The prosecutor is required to prove that the defendant committed the elements of the offence charged to the Court's satisfaction beyond reasonable doubt (see s 141(1) of the Evidence Act).
The onus is on the defendant to prove any defence it raises under s 28 of the OHS Act. The onus is to the civil standard (see s 141(2) of the Evidence Act).
In the course of contesting liability and raising statutory defences, it raised a substantial number of issues which will be the subject of detailed consideration later in this judgment.
Those issues were ventilated in a very substantial volume of written submissions from the prosecutor and the defendant as well as oral submission taken over three days. The written submissions consisted of the following:
1. Outline of submissions on liability on behalf of the prosecutor (not including Falling Object Protection Structures (hereinafter "FOPS" - see particular 9 of the s 8(2) charge)) ("the prosecutor's principal submission") (98 paragraphs over 42 pages);
2. An outline of supplementary submissions on liability on behalf of the prosecutor (FOPS) ("the prosecutor's principal FOPS submission") (98 paragraphs over 42 pages);
3. Closing submissions for the defendant (not including FOPS) ("the defendant's principal submission") (1213 paragraphs over 470 pages);
4. Closing submissions for the defendant on FOPS ("the defendant's principal FOPS submission") (452 paragraphs over 164 pages);
5. Outline of submissions in reply on liability on behalf of the prosecutor (not including FOPS) ("the prosecutor's liability reply") (173 paragraphs over 32 pages);
6. Aide Memoire for defendant's oral submissions ("the aide memoire submission") (272 paragraphs over 89 pages);
7. Outline of submissions in reply on FOPS on behalf of the prosecutor ("the prosecutor's FOPS reply") (27 paragraphs over 6 pages);
8. Outline of the prosecutor's submissions in reply to defendant's oral submissions and "Aide Memoire" ("the prosecutor's aide memoire submissions") (95 paragraphs over 19 pages).
It might also be noted that the trial proceeded over 50 days and resulted in 216 exhibits (of which the principal exhibit, Ex 4, consisted of a two volume tender bundle comprising of 76 tabs). Some of those exhibits were provisionally marked as being relevant. I have come to the view that the provisionally marked exhibits are relevant upon the basis of the discussion of the particulars of the charges as follows in the balance of this judgment.
The consideration of those issues necessarily first requires a detailed distillation of the background to the Mine operations, including the following:
1. History and overview of ownership and operation of the Mine;
2. The relevant statutory scheme operating upon the Mine;
3. The entities operating the Mine before and at the time of the incident;
4. The infrastructure and operation of Bin 802, as part of the reject handling system, at the time of the incident;
5. Historical aspects of the surface operations leading up to the incident;
6. An analysis of flaws in the operating system for Bin 802;
7. In addition some issues, which for convenience will be dealt with at the outset of the judgment. These may be described by two questions: whether an occlusion of the PE Cell 2 in Bin 802 may have contributed to the pleaded risk ("the Dirty PE Cell 2 theory"), and did the risk exist for all truck drivers referred to in the charge or solely Mr Oldknow on 18 February 2009.
[2]
SNAP SHOT OF OWNERSHIP AND OPERATION OF THE MINE
Bin 802 was built for Elcom Colliery Pty Ltd in about 1983. It was not operational for some time in the 1980's until about July 2007. From the period 1983 to 2008, the Mine underwent multiple ownership changes and subsequently three name changes: Nardell, Newpac No 1 Mine and Ravensworth Underground Mine.
From the period around 1999 until February 2003, the Mine was owned by a company known as "Nardell". Nardell was owned by a company that had Paul Jury as part of its management. The CHPP at Nardell was operated by Coal Management Operations and Processing Pty Ltd ("CMOP") established by Mr Peter Braun. Nardell went into receivership in February 2003.
The Mine was not operational between February and September 2003.
Newpac Pty Ltd ("Newpac") was established on 3 September 2003 by Mr Jury (with the assistance of others). Newpac purchased what became known as Newpac No 1 Mine (also referred to as "Newpac Colliery"), which was the site that had previously been known as Nardell (and which later became the Mine). CMOP and Newpac entered into an operating contract on 24 February 2004 and a short term coal preparation contract on 1 April 2004.
On 13 May 2004, Newpac changed its name to RPL. The name of the site remained unchanged. For the purposes of s 17 of the CMHS Act, RPL was the nominated operator and had day-to-day management and control of the underground coal mine.
By 2006, RPL had acquired the underground and surface leases for the operation of the underground mine and the CHPP and associated surface facilities at Newpac No 1 Mine.
On 18 February 2008, there was a takeover of RPL by Xstrata ("the takeover"). After that date, the Newpac No 1 Mine became known as the Ravensworth Underground Mine. The name of the RPL was changed to that of the defendant on 30 June 2008.
The following is a table summarising the history of operators of the Mine:
Period (approx.) Operator Name
1983 Elcom Colliery Pty Ltd Bin 802 Built (described as not operational between 1980s - 2007).
1999 - 2003 Nardell Mine known as "Nardell"
(established by Paul Jury)
Feb - Sept 2003 Nardell went into voluntary administration Mine not operational.
3 Sept 2003 Newpac "Newpac No 1 Mine"
(established by Paul Jury) (also referred to as "Newpac Colliery")
13 May 2004 RPL (established by Paul Jury) "Newpac No 1 Mine"
18 February 2008 RPL (taken over by Xstrata ) "Ravensworth Underground Mine"
30 June 2008 RPPL "Ravensworth Underground Mine"
[3]
The legal status of the defendant during the period 2006 until the date of the incident was correctly outlined by the defendant (including contracting operational roles as follows:
495. The people who took over running Resource Pacific and Newpac No 1 Colliery consequent upon the takeover included people with no previous knowledge of the site. However, by virtue of:
(a) the legal fact that a corporation is an independent legal entity, separate from its members, and
(b) the doctrine of perpetual succession,
the Defendant's knowledge on the date of the offence charged included knowledge it acquired before the take-over of the company in February 2008 and its change from a public to a proprietary company in June 2008.
496. The Defendant on 18 February 2009 was the same company it had been in 2006-2007. The fact that in 2008 it changed its structure from a public company to a proprietary company and modified its name accordingly and that, before that, its membership had changed, did not affect the legal fact that it was a continuing legal entity in the period 2006-2009 and through to today
497. Part 2B.7 Corporations Act 2001 regulates the changing of type of company. Section 162 allows a company to change its company type. By s 166(1), however, a change of type does not create a new legal entity or affect the company's existing property, rights or obligations.
498. Because of the doctrine that a corporation has a distinct legal personality to that of its members, a change of share ownership (ie, membership) of a corporation has no legal effect on a corporation's existing property, rights or obligations.
499. The legal status of Resource Pacific should be contrasted with the operational roles that it had at the site before and after the takeover.
Prior to the takeover, Resource Pacific was the operator of the mine with a distinct and separate operator at the [CHPP], namely CMOP. After the takeover and termination of the contract with CMOP, Resource Pacific remained the operator of the mine and, from the termination of CMOP's contract on 30 March 2008, also was the operator of the [CHPP].
[4]
THE STATUTORY SCHEME
Before turning to the various entities having a connection to these proceedings, it is important to consider the legislative scheme for work health and safety in coal mines for the relevant period heading to February 2009.
The legislative scheme in relation to work health and safety that governed coal mines in the period 2006, to and including February 2009, included the CMHS Act (the historical version applicable at 18 February 2009 is the version for the period 1 September 2008 to 30 June 2010: see also ASF [ex 3], par 13) and the Coal Mine Health and Safety Regulation 2006 (NSW) ("CMHSR"). Pursuant to this legislation, there is a distinction between the roles of a colliery holder and a colliery operator.
By s 8 of the CMHS Act, that Act applied to all places of work that are, inter alia, a "colliery holding".
A "colliery holding" has the following definition under the CMHS Act:
means a colliery holding registered in accordance with section 163 of the Mining Act 1992.
Section 163 of the Mining Act 1992 (NSW) is relevantly as follows:
163 Colliery holdings
(1) The Secretary is to cause to be kept a register of colliery holdings (referred to in this section as the register) in such form as may be prescribed by the regulations.
(2) The Secretary is to cause to be recorded in the register:
(a) such particulars as are necessary to give effect to a direction given under this section, and
(aa) the name of the colliery holding, and
(ab) the name of the colliery holder, and
(ac) a plan showing the location of the holding, and
(b) such other particulars as may be prescribed by the regulations.
(3) The holder of a mining lease or registered mining sublease that authorises the holder to mine for coal or to carry out ancillary mining activities in connection with the mining of coal must apply to have the mining area or sublease area registered as a colliery holding or recorded on the register as part of an existing colliery holding before commencing mining operations under the lease or sublease.
Maximum penalty: 20 penalty units.
(3A) (Repealed)
(4) A person who is lawfully carrying out ancillary mining activities on land in connection with the mining of coal (and doing so otherwise than as the holder of a mining lease or registered mining sublease) may apply to have the land registered as a colliery holding or recorded on the register as part of an existing colliery holding.
(5) A person may not be recorded as the colliery holder of a colliery holding registered under this section unless the person is the holder of a mining lease or registered mining sublease that is part of the colliery holding.
By s 3 of the CMHS Act, a "colliery holder" means:
a person who has the right to mine for coal or to carry out coal mining purposes on any colliery holding.
A "coal operation" is defined in s 3 of the CMHS Act as follows:
means a place at which coal is mined that is a place of work to which this Act applies and includes the places that are taken to be part of a coal operation under section 4.
Note. This Act applies to all places of work that are within a colliery holding, a coal exploration site or the subject of a licence to mine coal under the Offshore Minerals Act 1999.
An "operator", "in relation to a coal operation that is a place within a colliery holding", is defined as:
(a) the colliery holder, if the colliery holder nominated himself, herself or itself as the operator of the coal operation under section 17 and that nomination was not rejected, or
(b) the person nominated by the colliery holder as the operator of the coal operation, and not rejected by the Chief Inspector, under section 17.
A "coal preparation plant" was defined as meaning:
land, buildings and works that are, or may be, used for or in connection with:
(a) the treatment of coal to improve it as a marketable product, and
(b) the dispatch of the coal after it has been so treated.
Part 4 of the CMHS Act deals with the application of the OHS Act. Sections 11, 12 and 13 provide as follows:
11 Act to be read in conjunction with OH&S Act
This Act is to be read in conjunction with the Occupational Health and Safety Act 2000.
12 Act adds to protection provided by OH&S Act
(1) If a provision of the Occupational Health and Safety Act 2000 or the regulations made under that Act applies to coal operations, that provision continues to apply, and must be observed, in addition to this Act or the regulations made under this Act.
Note. For example, Part 2 of the Occupational Health and Safety Act 2000 imposes duties relating to health, safety and welfare at coal operations. So does Part 5 of this Act. The provisions of this Act apply in addition to those of the OH&S Act and do not remove any OH&S protections, rights or obligations.
(2) Without limiting subsection (1) or any other provision of this Act, the failure by an operator to comply with a provision of this Act or the regulations does not affect any liability of an employer or other person under this Act or the regulations or under the Occupational Health and Safety Act 2000 or the regulations under that Act.
13 OH&S Act prevails
(1) The provisions of the Occupational Health and Safety Act 2000 and the regulations under that Act prevail, to the extent of any inconsistency, over the provisions of both this Act and the regulations under this Act.
Note. For example, if a provision of this Act deals with a certain matter and a provision of the Occupational Health and Safety Act 2000 deals with the same matter and it is impossible to comply with both provisions, then a person must comply with the Occupational Health and Safety Act 2000 and not with this Act. If provisions of both Acts deal with the same matter but it is possible to comply with both provisions, then a person must comply with both Acts.
(2) This section is subject to section 122.
At all material times the defendant was the colliery holder in respect of Newpac No 1 Mine which, in 2008, was renamed as the Mine. In accordance with s 17 of the CMHS Act the colliery holder could nominate a person as the employer with day to day control of each coal operation within the colliery holding. The defendant did this with respect to the CHPP by nominating CMOP. The nomination form said that the CHPP operated a number of specified surface facilities, including:
the reject conveyors and the coarse reject and tailings emplacement areas on site and at the Ravensworth South void …
Part 5 of the CMHS Act imposed duties relating to health, safety and welfare at coal operations. The duties of colliery holders were set out in Div 1 of Pt 5 while the duties of operators at coal operations were imposed by Div 2. The only duties a colliery holder had under Div 1 were to nominate an operator (s 17(1)) and to provide the operator with health and safety information. In that latter respect, s 18(1) provided:
18 Colliery holder must give operator health and safety information
(1) If a colliery holder nominates a person other than himself, herself or itself as the operator of a coal operation, the colliery holder must provide the person nominated with all information available to the colliery holder that may reasonably be relevant to the development and implementation of a health and safety management system for the coal operation (including any major hazard management plans that form part of that system).
(2) The regulations may prescribe the information that must be provided under this section.
By contrast, the duties imposed upon operators were set out over nine separate subdivisions of Div 2. The operator's occupational health and safety duties included:
1. preparation of a health and safety management system (s 20), management structure (s 37) and management plans (s 35);
2. compliance with the health and safety management system including activities undertaken by contractors (s 22);
3. particular obligations in relation to contractors (s 42);
4. notification to the regulator of reportable incidents (s 110); and
5. review as soon as practicable of any information provided by the colliery holder regarding health and safety (s 12 of the CMHSR).
By s 20(4) of the CMHS Act, a successor operator could adopt a health and safety management plan for a mine prepared by a predecessor operator, provided the plan was compliant with that Act and the CMHSR. The provision was in the following terms:
20 Duty of operator to prepare health and safety management system
(4) This section does not require an operator to prepare a mine safety management plan for a mine if:
(a) a previous operator of the mine prepared a plan that complies with this Act and the regulations, and
(b) the plan is adopted by the subsequent operator.
Together, the CMHS Act and the CMHSR made detailed provisions for the content of the health and safety management system, the management structure and for the preparation by the operator of a contractor management plan and for the operator ensuring compliance with that plan (Pt 5 Div 2 Subdiv 4).
For completeness, I note that a coal workplace is defined in s 4 of the OHS Act as "a place of work to which the [CMHS Act] applies".
[5]
PARTIES INVOLVED IN VARIOUS ASPECTS AND TIME PERIODS AT THE MINE
[6]
Resource Pacific
Resource Pacific Holdings Limited ("RPHL") was at the date of the incident and still is a holding company of the defendant. The defendant was and is a wholly owned subsidiary of RPHL and, as noted, was formerly known as RPL.
As at the date of the incident, RPHL and the defendant were wholly owned subsidiaries of Xstrata and Marubeni. Xstrata acquired RPHL and RPL in the takeover.
The takeover was hostile. As a result of the nature of the takeover, little due diligence was able to be done prior to getting access to the site. As part of the takeover process there was a team of senior personnel brought in to review and assess the business including the site conditions, health and safety management system and standards, equipment and personnel.
Once on site it was identified that there were a number of issues that needed to be dealt with to bring the site up to Xstrata standards. David Gibson became the Operations Manager at the underground and David Huthnance was brought in to manage the washery.
Prior to the takeover, for the purposes of s 17 of the CMHS Act, RPL was the nominated operator and had day-to-day management and control of the underground coal mine. RPL did not operate the CHPP prior to 31 March 2008. As mentioned, RPL contracted management of all surface works associated with Newpac No 1 Mine to CMOP. CMOP was the nominated operator of the surface facilities at Newpac No 1 Mine, which included operating the CHPP and disposal of reject. CMOP was responsible for safety of the surface works, as they were the operator of the surface works. After the takeover and the termination of CMOP's management contract (effective from 31 March 2008), the defendant became the nominated operator of the Mine, the washery and the reject handling system, which included coarse reject handling including Bin 802. Between 18 February and 31 March 2008, RPL had limited access to the CHPP and associated works.
[7]
Macquarie Generation
Although RPL held the mining leases for the underground mining, Macquarie Generation owned parts of the surface land that formed part of the Newpac No 1 Colliery including, relevantly, a haul road that provided access between the void and Bin 802.
From 3 January 2006, RPL's access to the void and other surface areas was governed by an "Access and Compensation Agreement" with Macquarie Generation dated 3 January 2006.
[8]
Daracon
Daracon was registered on 22 November 2007. It was a large transport services company involved in the mining industry in the Hunter Valley. It employed up to a thousand people and had documented systems as to safe and efficient operations. Part of its transport services included the haulage of materials, such as coal and mining waste, by commercial trucks both on road and off road (i.e. within mine sites). Daracon employed Mr Sherwood and Mr Tim Carey.
In about late 2007, Daracon was retained by CMOP on a month to month basis to provide haulage services from Bin 802 to the void. Daracon was so retained from July 2007 until the takeover at the end of February 2008. At this time, Daracon used a combination of employed drivers and independent sub-contractors. The independent sub-contractors included owner/drivers such as Mr Oldknow. The drivers were contracted to haul reject from Bin 802 to the void.
Following the takeover, the defendant continued to retain Daracon, on a month to month basis, to haul reject from Bin 802 to the void. As at 18 February 2009, Daracon was using independent transport companies and owner/drivers to perform the works.
[9]
Coal Management Operations and Processing Pty Ltd
Mr Jury approached Mr Braun, who was experienced in CHPP operations, to set up a company and run the CHPP at Nardell. CMOP was created for the express purpose of being a corporate vehicle for Peter Braun to contract with Nardell (and later RPL) to operate the CHPP.
Nardell entered into an operating contract with CMOP to operate the CHPP at Nardell in 2000, with the use of a small transportable coal preparation plant (TCPP).
After Nardell went into voluntary administration in February 2003 and the mine ceased operating in 2003 Messrs Jury and Braun then worked on a coal project at Bellambi. Mr Braun was arranging the transportation and washing of coal from the Belpac Colliery.
In around 2003-2004, CMOP and Newpac entered into three contracts, which included the following:
1. an Operating Contract on 24 February 2004;
2. a Short Term Coal Preparation Contract on 1 April 2004; and
3. RPL and CMOP entered into a new contract for the operation of the Newpac CHPP on 14 December 2006. The contract recognised, inter alia, that CMOP would be:
1. Appointed as the nominated operator of the CHPP and RCT operations in compliance with Pt 2, Div 1 of the "Operators of Coal Operations, Coal Mine Health and Safety Regulations 2006".
2. Responsible for all OHS matters on the site, except for any underground operations or activities that remained the responsibility of RPL.
3. Responsible for all costs and expenses of operating and maintaining the CHPP, raw coal and product handling systems, and the management of reject emplacement and tailings emplacement under the direction of RPL. As the defendant submitted, an exception to this was "[r]ejects and tailings disposal costs past bin BN01 discharge onto conveyor RW19 and the discharge of the CHPP tailings pumps PP802 & PP803 respectively, at the point of the pump discharge flange". This encompassed the costs associated with Bin 802, as it was past Bin 801. As such, RPL was responsible to bear the operating and maintenance expenses associated with Bin 802 and paid for the costs of upgrading Bin 802, including the costs of the contractors retained by CMOP, being Demat EPM Pty Ltd ("Demat"), Primatec Pty Ltd ("Primatec"), ZMD Engineering Pty Limited ("ZMD Engineering") (discussed below) and Daracon.
4. Responsible for the CHPP and Handling Installations complying with the requirements of any statute, rule, regulation, etc.
5. At its cost, comply with and observe the requirements of any statute, rule, regulation, proclamation, ordinance or by-law, present or future and any notice or order from any government or semi-government authority relating to or affecting the Newpac Coal Preparation Plant ("NCPP") and the site.
6. Carry out its obligations with the highest regard for the safety of the workers at the NCPP.
As the operator of the CHPP and reject handling system, CMOP's statutory duties covered the day to day management of the CHPP and all the associated coal handling equipment located on the surface at the mine, including the reject handling equipment such as conveyors and reject bins used in the handling of reject from the CHPP.
There was an organisational restructure for CMOP effective from 4 June 2007 due, in part, to the merger of the operations of the RCT and CHPP. The structure provided for the following management positions:
1. Kyle Farrelly - General Manager (formerly Operations Supervisor at the RCT and General Manager of the CHPP).
2. Jamie Ramplin - Operations Manager: responsible for the day to day operation of both the CHPP and RCT. He reported to the General Manager. (He formerly worked in electrical roles in various collieries and had certificate level qualifications in electrical engineering and was a qualified electrician).
3. Peter Chorley and David Richardson - Electrical Engineers: they were responsible for electrical maintenance and upgrade of the CHPP and RCT, reporting to the Operations Manager. Whilst David Richardson fulfilled this dual position he remained the principal of Demat and a shareholder of Primatec.
4. Tony Brian - Mechanical Supervisor for the RCT and CHPP.
5. Kevin Nott - Compliance and Training.
6. Karen Bosworth - Safety/Appointments.
The defendant was correct to submit the CMOP management team was very experienced in operating CHPP's.
[10]
Roche
Roche Mining JR Pty Ltd ("Roche") was a major independent mining construction company.
[11]
Demat
Demat was an electrical engineering and project management company specialising in CHPP's and materials handling in the mining sector. Demat had a long standing relationship providing electrical engineering support to CMOP, which included the TCPP, the upgrade to the washery and general advice to CMOP on electrical engineering related issues.
Prior to working on Bin 802, Demat had worked on the electrical design and software for two reject bins in two preparation plants in Queensland, where Primatec had written the software. Demat had been involved in work for approximately 5 or 6 CHPP's providing services of designing electrical control systems and instrumentations before the refurbishment of the CHPP. The Newlands CHPP project was completed in 2005/2006, with a Rockwell Control Logix PLC, with a value of $750,000. The Millennium CHPP project was also completed in 2005/2006, with a Rockwell Control Logix PLC, with a value of $500,000.
Demat had provided technical services for CMOP of monitoring the work being conducted by Roche for the electrical side of the refurbishment of the CHPP. Demat was retained by CMOP to undertake the refurbishment of the electrical control system of Bin 802 because of Demat's recent experience in Queensland having refurbished a reject bin and they were experts in the area. Demat had subcontracted Primatec in the Queensland work and also as part of the refurbishment of Bin 802. They also had personnel overseeing the project, such as Scott Barnes.
CMOP retained Demat pursuant to the letter from David Richardson to Mr Braun dated 27 December 2006, and the Demat Reject Bin Electrical and Controls Scope of Works which is located at Tab 17 of Ex 4 in the proceedings.
Demat contracted Primatec to design, write and commission the code and the code logic used to control the functions automated via the electronic control system for Bin 802.
Demat also subcontracted on-site supervisory work. This included commissioning of the electronic control system and commissioning of the field equipment deployed as part of Bin 802's programmable electronic control system to ZMD Engineering.
[12]
Primatec
Primatec was a company specialising in the design, specification and development of electronic programmable control systems for the automation of electro-mechanical processes in industry, particularly in mining, including CHPP's. Mr Richardson held a 50 per cent interest in Primatec.
Primatec employed Shane Ambrose. Mr Ambrose had worked for Primatec for approximately three and a half years at the time of the incident. He held a degree in Electrical Engineering and was employed as a Senior Systems Engineer. Mr Ambrose had experience in the development of PLC and Supervisory Control and Data Acquisition ("SCADA") systems for the automation of electro-mechanical processes in industry and, in particular, the automation of processes in washeries. This included the automated handling of raw coal inputs and the automated handling of coal and reject/waste outputs. He had relevant experience in, amongst others, electrical design; automation systems; PLC programming; SCADA systems; site commissioning and project management. At Primatec, he was responsible for software coding of such systems.
Primatec had three key staff that it committed to the refurbishment of the Bin 802. These were:
1. Shaun Smith - Project and Commissioning Manager;
2. David Brown - Senior Engineer; and
3. Shane Ambrose.
Whilst Primatec did not win the tender separately from Demat, it did perform the work as identified in the scope of work with Demat as the project manager. Primatec assigned the design, specification and development of the code and the code logic for the programmable electronic control system for the refurbished washery reject handling system to Mr Ambrose. The work at Bin 802 was seen by Mr Ambrose as a follow on job from the work Primatec did at the washery.
Primatec provided a scope of works to Demat. CMOP stated it had allowed "for a control Logix PLC system that connects back to the new control Logix system that is being implemented by Roche" and that "our software will be developed as per the site standard that we are currently using".
[13]
ZMD Engineering
ZMD Engineering was the corporate vehicle used by Scott Barnes to trade as an electrical commissioning engineer. It was an electrical engineering company. Mr Barnes was the sole director and company secretary of ZMD Engineering and performed all of the works subcontracted to that company. The majority of Mr Barnes' work involved field commissioning of electrical systems.
Mr Barnes held an Electrical Engineering Trade Certificate and held himself out as an electrical contractor who was both qualified and experienced to oversee the installation of programmable electronic control systems and related field equipment, including systems and equipment of the kind which were being designed and installed for use at the washery by Demat and, in particular, in relation to Bin 802.
Mr Barnes had worked with Demat on projects previously. The work that Scott Barnes was undertaking for Demat relating to Bin 802 followed on from Mr Barnes' involvement in prior Demat projects, which involved construction management, as a site electrical engineer.
[14]
PKI
PKI was a company that provided engineering services to heavy industry and mining. Peter Chorley and his wife were directors of PKI. PKI had one additional employee, being Norm Greedy.
PKI was initially engaged by Demat. At a later time, CMOP directly contracted PKI to provide electrical engineering services, through Mr Chorley, and mechanical engineering services, through Mr Greedy, to CMOP. PKI were engaged in relation to work at the CHPP and not in relation to work at the mine.
The CMOP Electrical Engineering Management Plan dated 28 May 2007 was prepared by Mr Chorley before taking on the role of CMOP's Electrical Engineer. He conducted an AS3000 audit of the rejects switch room and reject bin.
Mr Greedy was engaged through PKI to fulfil the role of statutory mechanical engineer for the CHPP and RCT. At the time that Mr Greedy commenced at the CHPP, Bin 802 was not in operation. Mr Greedy had involvement in the preparation of the Safe Operating Procedure ("SOP") for Bin 802.
[15]
McKajj Services Pty Ltd
McKajj Services Pty Ltd ("McKajj") provided project management and engineering services to the site for a number of different projects. At some time prior to about June 2007, CMOP contracted McKajj to provide site supervision in relation to the development of the emplacement area at the void. They were also involved with the refurbishment of the reject handling system.
Nathan Bourne was a qualified engineer who oversaw a number of the projects on behalf of McKajj. Other McKajj staff included Trevor McMillan (for a period of time, after which he worked for CMOP directly) and Michael Haugh.
[16]
Hardy Bros Mining and Construction Pty Ltd
Before June 2007, Hardy Bros Mining and Construction Pty Ltd ("Hardy Bros") were engaged by CMOP to carry out construction works within the void. This included transportation of reject from the dump pad to, and within, the void. Brad Hardy was one of the supervisors for Hardy Bros.
[17]
Diagram of the race and other items attached to the gantry
Appended to this decision at Appendix 2 is a diagram that was one of several diagrams included in Ex 6 in the proceedings. This is a two dimensional diagram of the race and other physical features of the gantry or race and a truck, to the eastern or entry side of the race, prior to entering it. The diagram also includes the labels "sensor Row 1", "sensor Row 2" and "sensor Row 3" (those labels refer to the position of PE Cells and a reference to traffic lights).
[18]
Physical Infrastructure of Bin 802
Bin 802 consisted of the following pieces of major infrastructure: the hopper, the feeder, the overflow chute and the gantry.
[19]
The Hopper
The hopper of Bin 802 was a large metal container capable of holding 500 tonnes of reject. The shape of the hopper can be described in four parts. The top section of the hopper, which comprised approximately a quarter of the hopper's height, was shaped like a conical cap or hood, narrowest at its top and broadest at its base (hereafter the "hood"). Below the hood was a cylindrical section of the hopper which was also approximately a quarter of the hopper's total height. The lower half of the hopper was shaped like a cone, widest at the midpoint of Bin 802, where it attached to the cylindrical section before narrowing towards the bottom of the hopper. At the very base of the hopper was its rectangular chute within which the gates were located. The total height of the hopper appears to be 10 m.
Attached to the base of the chute was a "sock" that was constructed of rubber similar to the rubber used in conveyer belts (hereafter "the sock"). The sock was a hollow cylinder that extended below the hopper to a height of only 3.64 m above the ground. The sock effectively extended Bin 802's chute which served to narrow the gap between it and the truck and dogs which passed underneath. Evidence was given that the sock was attached to the chute to limit the spray of reject that occurred when a load of reject was released from the hopper.
[20]
The Feeder and the Overflow Chute
On top of the hopper's hood was a device that enabled reject delivered to Bin 802 by CV 804 (the conveyor that transported reject to Bin 802) to enter the hopper (hereafter the "feeder"). CV 804 approached Bin 802 from its northern side and met the feeder near the very top of Bin 802.
Attached to Bin 802 below the feeder, but on top of the hopper's hood, was an overflow chute. The overflow chute ran down the side of the hopper's hood and away to the southern side of Bin 802 at an angle of approximately 40 degrees to the ground. Its end stood suspended roughly 5 m above a patch of ground several metres to the side of Bin 802.
[21]
The Gantry
The gantry was a superstructure of steel beams which served to hold the hopper above the ground and create the race underneath the hopper through which vehicles could pass for the purpose of receiving loads of reject.
The lower part of the gantry had six vertical steel columns which held aloft a horizontal level so as to create a passageway or tunnel the shape of a rectangular prism underneath the hopper. Three of these columns, between which supporting beams were fixed, were positioned to create a northern side to the race and the other three of these columns, between which supporting beams were also fixed, were positioned to create a southern side to the race. The eastern and western sides were open so as to create an entrance and an exit from the race.
The horizontal level stood 5 m above the ground and was created by steel beams that were fixed to the six columns. This level signified the roof of the race. In the middle of the horizontal level was a platform that could be accessed by a staircase that ran up the northern side of the gantry. That platform was referred to as the "mezzanine level" throughout the proceedings. On the mezzanine level were control boxes containing various controls.
The hopper was held above the mezzanine level, by multiple steel beams. Its chute, however, extended down through the centre of the mezzanine level into the race.
The gantry also extended above the hopper where it provided support for CV 804 and Bin 802's feeder. CV 804 also had further beams supporting it which were fixed to lower parts of the gantry.
The gantry also had two walkways that were positioned at different heights above the mezzanine level. The first walkway was situated just below the cylindrical section of the hopper and almost circled it. The second walkway was situated at the top of Bin 802's cylindrical section but only skirted the western side of that section. Both of these walkways could be accessed by the staircase that ran up the northern side of the gantry.
[22]
The Race
The race underneath Bin 802 was approximately 9 m in length which reflected the length of the southern and northern sides of the gantry's base, however, there was no evidence adduced as to the exact width of the race.
Truck and dogs would enter the race from the eastern side end of the race (hereinafter the "entrance" or "entry") and exit it from the western side (hereinafter the "exit"). That movement accorded with the direction that truck and dogs would travel around the loop road. Thus, for drivers using the race from east to west, the southern side of the race was the left hand side of the race and the northern side of the race was the right side of the race (the driver cabin being on the northern side of the race).
Low steel walls ran along both the northern (right) and southern (left) sides of the race. A vertical white line was painted on the steel wall on the northern side of the race (hereafter the "wall line"). The wall line was situated about 1.5 m from the exit of the race and was painted from the ground to a height of approximately 1.5 m high. The wall line was variously used by drivers to position their vehicles for the receipt of the first load of reject into their truck bins.
There were two large mirrors located in the race. These mirrors were both circular in shape with convex faces (these were referred to in proceedings as "bubble mirrors"). The first mirror was situated 3.67 m above the ground on the north-eastern side of the entry of the race. That mirror faced the bottom of the sock/chute located in the centre of the race. The second mirror was situated in the middle of the race on the northern side and was raised 3.92 m above the ground. This mirror was adjacent to the chute/sock and was also angled so as to face the bottom of the chute/sock. These mirrors existed to assist drivers in positioning their truck and dogs in position to receive loads of reject.
Located near the exit of the race, on the southern side, was a digital display that indicated, as a percentage, the amount of reject held in the hopper (hereafter the "indicator level"). The indicator level signalled this because if the hopper was at less than 15% capacity, loads were not to be received from it.
[23]
Markings on the asphalt road
The asphalt road that paved the race extended to either side of the race and formed part of the loop road.
Painted on the asphalt road, to the exit side of the bin, were two sets of parallel lines, marked perpendicular to the road and the race. The first set of lines was painted around 7.5 m from the exit of the race. The second set of lines were grouped around 10 m from the exit of the race. These lines had been painted on the road by various drivers and were different colours. An orange traffic cone hat sat adjacent to each set of lines on a grassy berm just to the northern side of the roadway. The first line marks were used by drivers to align the cabin of their trucks in order to receive the second drop (the first drop into the dog). The second marking was used by drivers to align the cabin of their trucks in order to receive the third drop. The alignment assisted drivers to position the load in the tray of the truck.
[24]
Traffic Lights
There were two sets of traffic lights situated in the race facing its entrance. The first set of traffic lights (hereafter the "entrance traffic lights") was attached to the column on the south-eastern corner of the gantry's base, at a height of 3.55 m above the ground. That first set of traffic lights consisted of only two lights: a red light at the top and a green light below it. The second set of traffic lights (hereafter the "exit traffic lights") was situated on the south-western side of the gantry frame at the exit of the gantry. It was situated approximately 3.33 m above the ground and consisted of three vertically situated lights: a red light at the top, an orange light in the middle and a green light on the bottom.
[25]
Operation of the entry traffic lights
Evidence was received that there were three situations in which Bin 802's entry lights would indicate red to signal drivers not to enter the bin race. The first situation was when Bin 802 was holding less than 15% of capacity. The entry traffic lights were programmed to indicate red in this situation because there were problems with the flow of reject out of the hopper when it was below 15% full.
The second situation in which the entry lights were also programmed to show red was when gates were being operated in field mode (that is, operator selector switch set to manual).
The third situation in which the entry lights would display red was when there was no power supply to the PE Cells in the bin race.
[26]
Operation of the exit traffic lights
Mr Ambrose gave further evidence as to how the exit traffic lights were programmed to function. He stated that the entry and exit lights would show green indicating that a truck can drive through when the race was empty. When the truck passed through cell line 1, the exit lights would show green and amber. When the truck passed cell line 2, breaking lines 1 and 2, the exit lights would show amber alone. When the truck reached cell line 3, that is when it was breaking all three cell lines, the exit traffic light would go to red indicating to the driver to stop in that position and take the first load. Thus, the traffic light at the bin operated such that if a truck was in position to receive the first load, the exit traffic light would display red. This would happen irrespective of whether the truck had travelled forward and then reversed or, if it had only travelled forward. (The traffic lights operated independently of the logic in the PLC software.) After that first load was received (i.e. the remote was operated and the gates opened and then closed) the exit traffic light would turn green, indicating that the driver could then move forward through the race and position his dog trailer underneath the chute of the bin to receive the second and third loads. It was Mr Ambrose's evidence that the only condition upon which the exit traffic lights would show red alone was when all three cell lines were blocked.
Evidence as to the operation of Bin 802's traffic lights was also received in the form of a series of results sheets that documented the results of tests on 12 May. The tests undertaken on that day assessed the response of the exit traffic lights during 7 different scenarios. Tests 1 and 5 tested the operation of the exit traffic lights, amongst other aspects of Bin 802, throughout the following:
1. a truck and dog entered a previously empty bin race from the entry (eastern) side of the race;
2. the cell lines were sequentially broken as the truck drove forward;
3. the truck stopped in position so that the bin of the truck was directly under the chute of Bin 802 (as if taking a first load). At this point all three cell lines were broken;
4. in that position, the A button on the remote was activated;
5. the truck and dog then continued to move forward through the race until the dog trailer was positioned underneath the chute of the bin for the receipt of the second load;
6. whilst stationary in that position, the A button on the remote was activated;
7. the truck and dog then moved forward as to position the bin of the dog trailer for the receipt of the second load;
8. whilst stationary in that position, the A button on the remote was activated with a single press; and
9. the truck and dog then exited the bin race driving forward.
The results of this particular test indicated that the exit lights operated as described by Mr Ambrose. That was: the exit light was green whilst there was no truck present in the Bin race; the exit light showed amber and green when the truck blocked the cell line 1; the exit light showed amber when the truck blocked cell lines 1 and 2; the exit light showed red when all three cell lines were blocked by the truck; the exit light showed green after the A button on the remote control had been activated whilst the truck was in a stationary position blocking all three cell lines.
However, the results of the testing did indicate that there were some other situations where the exit traffic light would show red alone. The exit traffic light did not show red alone in circumstances where cell lines 1 and 2 were broken regardless of whether TIP was latched or not. Rather, the results indicated that when cell lines 1 and 2, but not 3, were broken and TIP was not activated then the exit traffic lights would show orange alone. If cell lines 1 and 2, but not 3, were activated and TIP was latched, the traffic lights would show red and orange at the same time.
[27]
Control Infrastructure for Bin 802's Operation
There were many components to Bin 802's operating system. These elements will be discussed here and their operation will be discussed later.
[28]
Gate Control Panel
Within the bin race there was a control panel labelled "NEWPAC CHPP REJECTS BIN GATE CONTROL PANEL CP802" (hereafter the "gate control panel"). The gate control panel consisted of three buttons, a switch and an indicator light.
At the top of the gate control panel was a round red button with the words "GATE CLOSED EMERGENCY STOP" written above it (hereafter "emergency close button"). The emergency close button could be used to close the gates immediately if they were open. That button was hardwired directly to the power source of Bin 802 such that activation ceased power to the motor operating the gates and caused them to close without any command by the PLC.
Below that button was the "OPERATOR SELECTOR" switch (hereinafter "the OS switch"). That switch could which be selected to either "Manual" or "AUTO" which reflected two different modes by which the gates of Bin 802 could be operated (hereinafter "manual mode" and "auto mode" respectively).
Below the OS Switch were two buttons. A red button to the left with the words "CLOSE GATE" written above it (hereafter the "close gate button") and a green button to the right with the words "OPEN GATE" written above it (hereinafter the "open gate button"). If the OS switch was selected to manual mode, the open gate button could be used to open the gates of Bin 802 (if certain conditions were met). If the OS Switch was selected to auto mode, the operation of Bin 802's gates operated according to the operation of the PLC programming which governed the operation of Bin 802 in auto mode (the auto mode will be discussed below as it is that mode of operation that was in use at the time of the incident).
Below the close gate and open gate buttons was a green indicator light with the words "TRUCK IN POSITION INDICATOR" written above it (hereafter "truck in position light"). The truck in position light would illuminate in a certain situations which are discussed below.
[29]
Motor Control Centre
Located on the Mezzanine level of Bin 802 was the motor control centre. The motor control centre was a cabinet which contained various control infrastructure involved in the operation of Bin 802. Inside, on its right hand side, was the PLC, which, as earlier noted, governed the operation of Bin 802 in auto mode. The motor control facility also contained the controls for the hydraulic pump and the hydraulic pump isolator facility. The hydraulic pump isolator facility had a switch that could be set to either prevent or enable the hydraulic pump from receiving power.
The motor control centre also included a main isolator for the electrical power and various other switches. However, no evidence as to their function was adduced by either party.
[30]
Programmable Logic Controller
The PLC controlled the functions of Bin 802. The PLC is a computer that can be used to automate electromechanical processes. They can be used in software controlled electrical mechanical systems or programmable logic systems: systems in which a mechanical outcome or multiple mechanical outcomes are governed by the operation of software logic.
The hardware of a typical PLC was described by Mr Georgevits as consisting of:
… a chassis, fitted with a selection of plug-in modules, with at least one input and output module and including at least one processor module - also known as a controller or CPU (Central Processor Unit).
There were small light emitting diodes on the PLC input and output cards that lit up when the inputs and outputs were active. These diodes were used to verify the inputs from the field devices.
PLC's can be configured to receive inputs from other electronic devices and send outputs to other electronic devices. The outputs given by a PLC are dependent upon the inputs it receives and how its software is programmed to respond to those inputs. Thus, the outputs were the result of inputs or a combination of inputs.
Mr Ambrose described the function of the PLC in the following way:
The PLC has inputs that come into it from some field signals or field instruments. Outputs come from the PLC, so the software uses those inputs and then makes some decisions and then turns on some outputs from the PLC which makes other field functions happen, for example, traffic lights to turn on, or load to start.
The PLC used in the operation of Bin 802 was a ControlLogix 1756 System, designed and manufactured by Rockwell Automation Incorporated. Loaded onto the PLC was permanent software called firmware. That firmware formed the operating system of the PLC which could run certain software programmes called "PLC programs".
In his report, Mr Georgevits described PLC programs in the following way:
3.3.3.1 A PLC program (known as PROJECT in ControlLogix parlance) is written to instruct a suitably equipped PLC chassis to satisfy the requirements of a particular real world control application.
3.3.3.2. The real world control application is usually described in intricate detail in a document known as an engineering specification.
3.3.3.3. Thus a PLC program is often written to meet the requirements of an engineering specification.
3.3.3.4. The engineering specification contains the functional requirements which specify the tasks that the associated PLC system will need to perform.
In other words, a PLC program determines how a PLC converts the inputs it receives into outputs for the purpose of automating a process.
A PLC program is a quantity of code (the symbolic arrangement of data or instructions in a computer program) that is loaded onto a PLC. The code of PLC programs is written using a software package specifically designed to operate with the hardware and firmware of a PLC. As mentioned, Rockwell's RS Logix 5000 was a software package that could be used to code the PLC program for the ControlLogix 1756 System. Mr Ambrose used RS Control Logix 5000 to write and alter the PLC program code for Bin 802's PLC. He did so from a computer that was loaded with RSLogix 5000 located at the CHPP's main control room.
A PLC program made using RS Logix 5000 software can be written in a number of formats or languages including: ladder logic, instruction list, sequential function charts, functional block and structured text. The PLC program used in relation to the operation of Bin 802 was formatted using ladder logic.
Mr Georgevits described the process by which a PLC operates:
Once the PLC program code is loaded onto the PLC chassis and run, the PLC continuously executes the following tasks:
1) Self test
2) Input scan (reads inputs)
3) Logic solve
4) Output scan (sets outputs)
5) Go back to step #1
in an endless loop.
Mr Georgevits stated that the process of completing those steps would take a typical PLC somewhere from 1 millisecond to 100 milliseconds. That time would vary depending on the complexity and length of the program, the modules fitted to the chassis and the number and type of processors amongst other things.
Part of the PLC program that operated on Bin 802's PLC governed the opening and closing of Bin 802's gates when auto mode was selected (on the gate operator panel). That part of the PLC program will hereafter be referred to as "the code".
[31]
Main Control Room
The main control room was located at the CHPP. In it the information from the mine's SCADA system could be viewed on a screen. The SCADA system provided information as to the function of various systems operating at the mine such as Bin 802 and the conveyor system (both using PLCs). This included information as to the status of those systems, commands issued and various alarms that would be raised when commands issued did not result in the expected outcome.
In the main control room was a computer loaded with a Rockwell software package. Through that computer the code could be accessed and altered. The code could not, however, be amended at the Motor Control Centre.
The hydraulic power pack could also be activated from the main control room but the gates could not be opened from it.
[32]
The hydraulic system and the gates
The opening and closing of Bin 802's gates was the physical outcome of the operation of a hydraulic system. Whilst no complete description of the hydraulic system was adduced, evidence was received as to the operation of some components of that hydraulic system. That evidence will be summarised here.
The hydraulic operation of Bin 802's gates was powered by a hydraulic power pack. The hydraulic power pack consisted of an electric motor and pumps. When the hydraulic system was activated its motor and pumps would operate to bring the hydraulic system "to pressure", meaning that the hydraulic system had enough hydraulic pressure to open the gates. If the hydraulic power pack was inactive and the hydraulics would not be brought to pressure, the hydraulics could not be operated to open Bin 802's gates and they would remain closed.
Once the hydraulics were brought to pressure, there was sufficient hydraulic pressure available to activate a hydraulic pump. The activation of that hydraulic pump was dependent on whether a solenoid (hereafter the "hydraulics solenoid") was energised or not. If that hydraulics solenoid was energised (and the hydraulics were at pressure) the hydraulic pump would operate to supply hydraulic pressure to the two hydraulic rams that were attached to Bin 802's gates. Each gate had hydraulic rams attached to them on the side opposite to the side where the gates met when closed. When they received that pressure, the hydraulic rams would operate to retract Bin 802's gates.
To summarise, if the hydraulics solenoid was activated whilst the hydraulics were at pressure (due to the hydraulic power pack being active), the bin gates would open.
The gates of Bin 802 were two horizontal, rectangular steel plates. The doors/gates of Bin 802 were approximately 50mm thick and located 5.86m from the ground. The gates measured 1.2m x 1.2m. When closed, the gates met each other in the middle of Bin 802's chute so as to prevent reject from being released from the hopper.
[33]
Photoelectric Sensor Cells
PE Cells are devices that can be used to identify the presence of objects in a certain space. PE Cells have a transmitter that sends a beam of light and a sensor, with a photoelectric eye, that is calibrated to recognise that beam and emit an output depending on whether or not it receives the beam of light sent. If the sensor does not receive the beam of light transmitted, it is indicative that an object is blocking that beam. This was described by Inspector Barry as follows: A PE Cell "is intended as a unit to detect a particular light source and this is where you have a transmitter which would transmit light at a particular frequency. The unit is then tuned to receive that particular frequency and so that creates the light beam… if the beam gets broken it stops receiving."
There are multiple varieties of photoelectric sensor cells. "Through-beam" photoelectric cells operate by using a transmitter cell which emits a beam of light into the eye of a separate sensor cell placed at a distance from the transmitter cell. If the beam is blocked that indicates the presence of an object between the two cells. The sensor cell will emit an electrical output indicating either that it has or has not received or sensed the beam sent to it. Whether that output is emitted when the beam is or is not received will depend on the configuration of the particular sensor cell in use.
Other varieties of PE Cells have only one chassis that contains the transmitter and the sensor (hereafter "single chassis PE Cells"). One such variety is configured to emit a beam of light in the direction of a mirror that will reflect that beam back into the receiver (photoelectric eye). If that beam is not recognised by the receiver, it indicates that an object is situated between the cell and the mirror blocking that beam. Another variety of single chassis PE Cells emits a beam of light and will recognise if that beam is reflected into the cell's eye by an object passing through that beam. This variety is thus differentiated from the other varieties in that the sensor's recognition of the beam indicates the presence of an object.
Four pairs of through-beam photoelectric cells were present in the race at the time of the incident, each set consisting of a transmitter cell and a separate sensor cell. However, only three of these pairs were used in Bin 802's operating system. The PE Cells were placed on the northern and southern sides of the bin race on metal poles under a metal shroud on each side of the race (the purposes of the shroud was to protect the PE Cell from the elements or dirt within the race). The PLC was connected to three active sets of Allen Bradley PE Cells. Each set consisted of a transmitter and receiver. The transmitter sent a continuous beam to the receiver. As noted, the specific inputs and outputs of the PLC could have been programmed or changed based on the purpose of the PLC.
The transmitter cell of each pair was placed on one side of the bin race and its corresponding sensor cell on the other side of the bin race (the placement of the sensor cells will be discussed in greater detail below). The receiver cells were configured to send an output to the PLC if it did not receive the beam from its corresponding transmitter. This output would indicate that an object had broken the beam of light sent to the receiver cell by its corresponding transmitter.
The three pairs of sensor cells used in the operation of Bin 802, PE Cell 1, PE Cell 2 and PE Cell 3 ran sequentially from the entrance of the race. The cells comprising PE Cell 1 were placed approximately 3 m into the bin race (from the entrance) at a height of 2.67 m above the ground on opposing sides of the bin race. Thus, PE Cell 1 was positioned so that a horizontal light beam (hereafter "cell line 1") would be sent between its transmitter cell (hereafter "transmitter 1") and its sensor cell (hereafter "sensor 1") parallel to the entrance and exits of the bin race, marginally to the entry side of Bin 802's chute. Cell line 1 was the closest cell line to the entry of the race.
The cells comprising PE Cell 2 were placed approximately 6 m through the bin race (from the entrance) at the same height of 2.67 m above the ground along on both sides of the race. Thus, PE Cell 2 was positioned so that a horizontal light beam (hereafter "cell line 2") would be sent from its transmitter cell (hereafter "transmitter 2") and its sensor cell (hereafter "sensor 2") parallel to the entrance and exits of the race, marginally to the exit side of Bin 802's chute.
The cells comprising PE Cell 3 were placed approximately 7.5 m through the bin race (from the entrance) again at a height of 2.67 m above the ground on both sides of the bin race. Thus, Cell Pair 3 was positioned so that a horizontal beam (hereafter "cell line 3") would be sent from its transmitter cell (hereafter "transmitter 3") and its sensor cell (hereafter "sensor 3") parallel to the entrance and exits of the bin race, about 1.5 m from the exit of the race.
The position of the three pairs of PE Cells can be seen in the two dimensional diagram appended as Appendix 2. In that diagram, cell line 1 is labelled "sensor row 1", cell line 2 is labelled "sensor row 2" and cell line 3 is labelled as "sensor row 3". That diagram, being two dimensional and from the side view of the race, does not demonstrate that each pair had two cells, one positioned on each side of the race. However, it provides a useful reference for identifying the position of those cells through the race.
The three pairs of PE Cells in use at Bin 802 were positioned so that if a truck and dog was positioned in the race (facing the exit of the race) so that its body was breaking cell lines 1, 2 and 3 at the same time, the cabin of the truck would not be situated underneath the chute when the truck and dog moved in a continuously forward direction. That fact is demonstrated by diagram 6 of Ex 6, which shows the truck of a truck and dog positioned in the race so that it is breaking all three cell lines (see Appendix 3). As shown in the diagram, the cabin of the truck is to the exit side of the chute and the trucks bin is located beneath the chute when those three cell lines were broken.
As will be discussed below, in order for the PLC to open Bin 802, a driver must have broken second and third set of PE Cells at the same time to achieve a "truck in position" ("TIP"). After TIP had been achieved, if PE Cells 1 and 2 remained blocked and the driver activated his remote control, the inputs for opening the bin would be present and the bin gates would open, assuming, there were no faults present in the PLC. To clear TIP all three sets of PE Cells needed to be cleared but until such time TIP was "latched" (a concept central to the issues in these proceedings) which will be discussed further below.
[34]
The remote controllers and the radio receiver
The remote controllers used by the truck drivers were rectangular in shape and approximately the size of a cigarette box. Each remote had two rectangular buttons located side by side on the face of its case: an A button which was used to open the Bin 802's gates and a B button that would close the gates prematurely if pressed. The remote controllers were dual channel and if the A button was pressed, a digitally encoded 27MHz FM signal would be emitted.
The radio receiver was stationed in the vicinity of Bin 802. It would detect if a signal sent from the remote controllers operated by drivers by the pressing of either the A button or the B button on the remote controllers. Upon receiving that signal, the radio receiver would emit an electrical signal to the PLC effectively informing it as to whether the A button or the B button on the remote controller had been pressed.
[35]
LOCATION AND ACCESS TO BIN 802
Bin 802 was located on land owned by Macquarie Generation. As mentioned earlier, it was approximately 2 km from the CHPP, often referred to as the washery. The CHPP housed the control room, which controlled the reject system. Bin 802 was only accessible via a haul road on the land owned by Macquarie Generation. On 3 January 2006, RPL entered into an Access and Compensation Agreement with Macquarie Generation. The Access and Compensation Agreement provided conditions for access by RPL across Macquarie Generation's land via the haul road and access to surface sites.
In accordance with the Access and Compensation Agreement, road registered cars, light commercial vehicles and single trailer semi-trailers were only to be used on the haul road. RPL was not to use semi-trailers over the standard highway weight limit, B-doubles or dog trailers on the haul road.
During October 2006, Connell Hatch prepared a Newpac Mine Haul Road Geotechnical Investigation and Pavement Design Report and Newpac Mine Haul Road Technical Specification for the upgrading of the haul road for use by "cars, light commercial vehicles and 44 tonne semi-trailer trucks" ("the Connell Hatch Risk Assessment").
From 27 July 2007, Macquarie Generation consented to a variation in Clause 11.3 of the Access and Compensation Agreement permitting truck and dogs to be used in hauling reject from Bin 802 provided that they will be standard road registered units and not B-double trucks or any form of larger vehicle. The approval of truck and dogs was on the basis of safety considerations identified during the discussions. This situation arose after the use of dump trucks in contravention of the Access and Compensation Agreement which will be discussed below in relation to the upgrade of Bin 802.
Later in 2008 the defendant approached Macquarie Generation to revisit the use of dump trucks.
[36]
THE OPERATING SYSTEM OF BIN 802
The gates of Bin 802 would open if the hydraulics solenoid was energised after the hydraulics were brought to pressure. The default state of the solenoid was un-energised which reflected the default status of Bin 802's gates as closed. If power was cut to the Bin 802, its gates would thus remain closed.
[37]
Operation of Bin 802 in manual mode
If the OS switch was switched to "Manual", and thus Bin 802 operated in manual mode, the hydraulics solenoid could be energised by the pressing of the "Open Gate" button on the gate control panel if certain permissive conditions were met. The evidence of Mr Ambrose indicated that the opening of the gates in manual mode was governed by the software logic system PLC. Evidence was adduced that the open gate button had to be activated when the close gate button was not. However, no evidence was adduced of the further conditions that needed to be met for the gates to open in manual mode.
The gate close button on the gate operator panel was hardwired meaning that it bypassed the PLC. If pressed it would stop the motor powering the hydraulics, closing the gates if they were open.
[38]
Operation of Bin 802 in auto mode
If the OS switch was set to "Auto" (and thus Bin 802 was in auto mode) the operation of Bin 802 gates was dependent on the operation of the PLC code. If certain conditions were met, the software logic code in the PLC would issue a command known as "gate sequence open". That command would result in the PLC emitting the outputs required to opening Bin 802's gates.
The OS switch being set to "Auto" was, in fact, one of several conditions that, if simultaneously met, would result in the PLC sending the outputs that would enable Bin 802's gates to open. At the time of the incident, the OS switch was set to "Auto". Hence, it is necessary to understand the conditions which had to be met in order for the PLC (through the operation of the logic programmed into it) to send the outputs that would result in the opening of Bin 802's gates.
Mr Georgevits reviewed the PLC software code after the incident. It was his evidence that the software logic operated in such a way that if the PLC received inputs informing it that five specific conditions were simultaneously met the PLC would emit an output (hereafter the "gate sequence open") that would result in the retraction of Bin 802's gates (enabling a load of reject to be released). He described those conditions as:
1) Remote Open is true, which, in turn activates the Remote Open Oneshot
2) Auto Selected is true
3) Truck In Position is true
4) PE Cell 1 is activated
5) PE Cell 2 is activated
The sequence in which these things met was irrelevant as long as these conditions met simultaneously.
[39]
Remote Open and Oneshot
The first condition "Remote Open is true" occurred when the A button on the remote controllers issued to truck drivers was pressed. The PLC would receive that input from the radio receiver.
The PLC software logic contained what was called a "Oneshot" or "One Shot Multivibrator" (hereinafter a "Oneshot"). The use of that programming meant that the PLC code only recognised that input when it received a signal from the radio receiver indicating that the status of the A button had changed from off to on (in other words the change from the A button not being pressed to being pressed). Thus, if the A button on the remote controller was held down for a period of time, the PLC was programmed such that it would not recognise that input as multiple activation signals. Rather, it would be interpreted as one open signal at the point when the A button was first pressed. Oneshots could alternatively be programmed to operate when a signal goes from on to off, however such a configuration was not used in the operation of Bin 802's gates.
[40]
Auto Selected is true
This condition refers to the selection of "Auto" on the operator selector switch on the gate control panel. If the switch was, alternatively, set to "Manuel" (field mode), then the gates could only be opened by the pressing of the Open button located on the gate control panel.
[41]
Truck in Position is True
TIP is an input achieved if three conditions are simultaneously met: the Motor Control Centre (MCC) was healthy (that is functioning normally), cell line 2 was blocked and cell line 3 was blocked. At the time of the incident the MCC was healthy. The sequence in which cell lines 2 and 3 were broken was irrelevant to whether TIP to be achieved but they must be simultaneously blocked. Further, the status of cell line 1 did not affect whether TIP was achieved or not.
Once TIP was achieved, the software logic system would continue to assert that condition until a separate set of conditions were met. That process whereby a condition is maintained until a corresponding condition is reached was referred to throughout the proceedings as "latching". There were two conditions that, if met, would stop TIP from being asserted by the PLC application software (code) or "unlatch" TIP. The first was when all three cell lines became unblocked. The second was when something went wrong with the MCC such that a healthy status would no longer be asserted.
When TIP was achieved, the green TIP indicator light on the gate control panel would glow.
[42]
Cell lines 1 and 2 Activated
Finally, the PLC must receive input that cell lines 1 and 2 are both blocked. Again, there was no requirement for these cells to be broken in a particular sequence (a truck could move either forward or backwards).
[43]
Open gate sequence activated
Once the above conditions were simultaneously met, the PLC application software code would initiate gate open sequence. That operation of that sequence would result in the PLC emitting the outputs required to open Bin 802's gates. Once the gate open sequence was activated those outputs would be emitted and the bin gates opened, even if there was a change in the conditions required to activate the gate open sequence.
[44]
Summary of the operation of Bin 802 in auto mode
The software logic system was coded, at the time of the incident, in such a way that, if the operator switch was set to Auto and the MCC control unit was healthy (conditions that were met at the time of the incident), Bin 802's gates could be opened for the first drop of reject into the bin of the truck by the occurrence of three things:
1. a driver pressing the A button on the remote control;
2. TIP being asserted by the PLC by blocking PE Cells 2 and 3 (whereupon TIP would be latched); and
3. cell lines 1 and 2 being simultaneously blocked but in no particular order.
Another useful way of conceptualising this is that, if TIP was asserted at the same time that cell lines 1 and 2 were blocked, Bin 802 would be "live", meaning that if the A button on the remote was activated the gates would open (I will return to the significance of the programming of the PLC in this way after the discussion of some relevant historical factors).
[45]
General
The CMOP undertook a number of risk assessments for the CHPP which were described by the defendant as follows:
1. CMOP conducted a Core OHS Risk Assessment at Newpac CHPP Declared Plant Site including the Void RAO6001 on 19 September 2006. The scope of the risk assessment was "all activities on the site by CHPP employees, subcontractors and visitors". It included management of rejects and considered truck haulage. At the time of the risk assessment Bin 802 was not in operation and was not considered as part of this risk assessment.
2. CMOP conducted a High Level Operational Risk Assessment 27 September 2007. The aim of this risk assessment was to "review RAO6001 and assess risks associated with the upgraded NCPP operation following initial operation". This followed the finalisation of the upgrade of the washery and the upgrade of the rejects handling system, both being operational (as discussed below). The risk assessment was to "review existing controls and provide a foundation for establishing additional controls for identified risks assessed as requiring additional control". "The risk assessment was undertaken in accordance with the principles incorporated in relevant legislation, Australian Standards and Guidelines." Ms Bosworth and Messrs Braun, Farrelly, Ramplin, Gibson, Huthnance, McAree and Punch gave evidence that the risk assessment considered the rejects handling system as one of the processes assessed in the risk assessment but no one foresaw the risk that arose on 18 February 2009.
The defendant also pointed to risk assessments undertaken by CMOP which related to the Bin 802 including the following:
1. 5 June 2006: formal risk assessment.
2. 6 December 2006: Connell Hatch Risk Assessment report.
3. 14 May 2007: review of Connell Hatch Risk Assessment and a Control System Hazards and Operability study ("CHAZOP") revision (there was also a Demat CHAZOP in March 2017).
4. 2 July 2007 by Hardy Bros who prepared a Job Safety and Environmental Analysis ("JSEA") worksheet for coarse reject haulage at the Newpac Tails Dam.
5. 3 August 2007 Daracon prepared a risk assessment and safe work method for Coarse Reject Material Haulage Using Truck and Dog Trailers.
The Connell Hatch Risk Assessment received significant attention by the parties and is discussed further below.
[46]
Connell Hatch
A formal risk assessment report was prepared by Connell Hatch on 6 December 2006. It amalgamated information from two formal sessions facilitated by Connell Hatch which were held on 5 June 2006 and 27 November 2006. Bin 802 and the rejects handling system were not operational in 2006 at the time of the publication of the report. (Connell Hatch also assisted in the drafting of the s126 application, which later became a s100 application).
The risk assessment was conducted for the proposed establishment of a dam and an emplacement area at Newpac No 1 Colliery at Ravensworth. However, the risk assessment considered the transportation of tailings and the transportation of coarse reject and its transportation along the haul road. Thus, the system of loading trucks from Bin 802 to be taken to the planned reject emplacement area was assessed.
The 5 June 2006 formal risk assessment attendees included a group of people who were involved in the design, construction, operations and maintenance of the plant.
The 5 June 2006 risk assessment meeting record was consistent with the use of road registered vehicles as the:
1. existing/proposed risk controls for hazard 13 includes the use of "vehicles road registered;" and
2. existing/proposed risk controls for hazard 10 includes the use of "bull bar on truck".
Mr Farrelly confirmed that the truck in contemplation for use in Bin 802 was a commercial vehicle and not a mine truck (including a reference that bull bars is consistent with commercial trucks being used).
The 5 June 2006 formal risk assessment report was completed and identified risks to be controlled in loading trucks through a combination of mechanisms, including interlocked sensors to identify the position of the truck, the use of the remote control, the driver remaining inside the truck and the existence of an emergency stop.
On 27 November 2006, the second formal session regarding the Connell Hatch Risk Assessment was undertaken. The attendees included Kevin Nott, Jamie Ramplin, Kyle Farrelly and Steve Smith. At this time Mr Nott was the CHPP Manager; Mr Farrelly was the CHPP Loading Plant Operator and Mr Ramplin was the Production/Electrical Engineer.
The 27 November 2006 formal risk assessment identified risks to be controlled through a combination of mechanisms, including interlocked sensors to identify the position of the truck, the use of a remote control, the driver remaining inside the truck and the existence of an emergency stop. The risk assessment still included the existing/proposed control for the use "vehicles road registered" for hazard 14 and "bull bar on truck" for hazard 10.
The 6 December 2006 Connell Hatch Risk Assessment report was carried out generally in accordance with MDG1010 "Risk Management Handbook for Mining Industry" and the official RPL risk assessment procedure. The risk scoring matrix and categories were obtained from the RPL risk assessment procedure and were in accordance with MDG1010. Risks associated with the tailings were assessed using the hazard and operability study ("HAZOP") technique. Risk surrounding operations of the haul road and Ravensworth South void were assessed having regard to each component/function of the operation in isolation and conducted an assessment of the operation as a whole. Where obvious, control measures were identified in the risk assessment. Some control measures required technical or plant knowledge and were input after consultation with appropriate persons. Following the insertion of the control measures, the risks were then reassessed to ensure that an appropriate reduction in risk had been achieved. The final risk assessment was verified by Marcus Punch, Connell Hatch Global Risk Assessment Leader and Kevin Nott. CMOP authorised the document for release.
At paragraph 2.4 of the report, the following observations were made under the heading "Haul Road":
Coarse rejects will be transported from the reject bin to the Ravensworth South void using commercial trucks. Transport will take place over a prepared haul road that has been designed to have acceptable grades and curve radii.
Loading will be achieved via an automatic loading system that the driver can control using a pendant carried in the truck. The bin has sensors at the front and back of the station to detect that the truck is in position and a high level sensor to detect when the truck is full. There is also a tray up detector located in front of the loading bay to avoid collisions. The station is equipped with an emergency stop to stop the unloading process in an emergency.
The report referred to a truck haulage procedure as involving the use of trucks with bull bars and as a control for the hazard of collision with wildlife.
Appendix C to the report contains "Risk Registers". Each has the heading "Risk Assessment". One such risk assessment concerned: "Transportation of Tailings and Tailings Dam Material Handling Procedure". There were three items of interest concerning truck filling. First, the register contained an item reference (No 1) for "truck filling" with a hazard description of "person hit by falling material" caused by "loading initiated under truck not under load point and person loading point". The potential consequence is described as "death".
Corresponding to that entry, under the heading, "Existing/Proposed Risk Controls", Item 1.1 states, inter alia, "Truck sensors at front and back interlocked with loading". The action required was "1.4 Contractor to write risk assessment and work method statement before starting work".
Item 6 also concerned truck filling. The hazard description was "Cannot stop filling operation" and the cause is identified as "Malfunction of filling logic". The potential consequence was "Truck and area covered in rocks". The Existing or Proposed Risk Controls was "Emergency stop interlock in the area with outside loading area" (Item 6.2). The actions identified for this hazard included Item 6.2 "Carry out… CHAZOP to determine that systems have appropriate functional safety" and "Determine where emergency stop situated".
Item 3 concerned loose area spillage and list potential consequences as "truck cannot load". It was identified that the "Existing Proposed Risk Controls" were "rear truck sensor interlock with loading and the additional controls or actions" (Item 3.1). Under "Actions", the register records "ensure systems to appropriate electrical standards for safety application AS 61508" (Item 3.1). There is an entry under outcomes "Demat performed the HAZOP and CMOP ensured it received it".
Appendix D to the report is entitled "Action Pending". In Item 6.2 it is recorded that no action had been taken to carry out a CHAZOP to determine that have "appropriate functional safety" on the operation of the bin. Further, no action was recorded as having been taken for Items 1.1 and 3.1.
In relation to Item 3.1 of "Additional controls/actions", the Connell Hatch Risk Assessment with respect to this action was ultimately sent to Demat. The Roche PLC coding standards which were sent to Demat called up AS61508. Both actions were assigned to the "Electrical Engineer", namely CMOP's Mr Ramplin. As to Item 6.2, Demat performed the HAZOP and CMOP performed the HAZOP.
The safety severity assigned to Hazard No. 6 was a rating "2". This was identified in Appendix C as resulting in consequences described as "minor". The full description was "first aid treatment on site release immediately contained and medium financial loss". Further, in the sort of hazards by "Initial Likelihood", this hazard was ranked 7th and the sort by "Initial Severity" the hazard was ranked 9th last. This would indicate that the hazard was rated as low, perhaps based upon the assumption that the truck was in the correct loading position.
On the other hand, hazard 1 was rated as having a potential consequence of "death" and the people severity category was the most severe - No 5 on the risk matrix, which was described as "catastrophic". The hazard was ranked first in the sort by "Initial Severity" but 16th in the sort by "Initial Likelihood". However, I agree with the defendant that this hazard seems to relate to a risk that the person was on the ground away from his/her truck. It does not specifically deal with the risk to a driver seated in a truck when using the bin.
A copy of the 6 December 2006 Connell Hatch Risk Assessment report was provided to Mr Richardson by CMOP. It was intended to be used by CMOP in its design work for the tailings circuit and the reject emplacement projects.
The evidence reveals that the risk assessment undertaken by Connell Hatch (and the ss 100 and 126 application discussed below) was predicated upon the use of semi tippers and not either mine trucks or truck and dogs.
[47]
Section 126 and Section 100 Applications
In 2006, section 126 of the CMRA prohibited a person from establishing an emplacement area without the consent of the Minister. On 6 December 2006 the CMHS Act replaced the CMRA. The same prohibition existed under the CMHS Act with respect to emplacement areas, but it was contained in s100 CMHS Act. CMOP, with approval from RPL, sought to use the void as an emplacement area at Newpac No 1 Colliery at Ravensworth.
As RPL had engaged CMOP to operate the washery, and emplacement areas are associated with the operation of a washery, CMOP prepared, with the assistance of Connell Hatch, an application for emplacement area under s126 of the CMRA and then s 100 of the CMHS Act.
A draft section 126 application dated 14 June 2006 was prepared and then circulated to Mike Barrett, the General Manager of RPL, and Mr Braun on 23 June 2006. On 26 June 2006 Mr Braun forwarded this document to Trevor McMillian. The draft section 126 application identifies that the vehicles to be used on the haul road are 28 tonne "semi tippers".
On 14 February 2007, a section 100 application (dated 1 December 2006) for proposed Tailings Emplacement at Newpac No 1 Colliery was sent, inter alia, from Mark Maund to Messrs Farrelly, Ramplin, Nott, Barrett, Bourne and Braun.
On 20 May 2007 a section 100 application for proposed Tailings Emplacement at Newpac No 1 Colliery was produced. The section 100 application identifies that the vehicles to be used to transport the coarse reject from the reject bin to the void via the haul road were 28 tonne semi tippers and dump trucks would be used within the void. Connell Hatch were retained by CMOP to prepare this application.
On 5 April 2007 approval was provided by the Department for the development of an emplacement area.
[48]
Occupational Health and Safety Systems
CMOP put in place a health and safety management system for the CHPP which was accepted by the Department in June 2007. The safety management system was made up of a suite of documents. Exhibit 38 is an example of part of the suite of documents. Reference should also be made to:
1. the sentence from first entry (transcript); and
2. the SOP.
CMOP had a Business Management System ("BMS") which incorporated the health and safety management system. The BMS was a computerised system which stored and made accessible to CMOP personnel CMOP's safety management system and other health and safety related documents. Examples of "other" documents include risks assessments, safe operating procedures, training documents and maintenance documents. The BMS stored not only CMOP documents, but it also stored the documents of CMOP's subcontractors and contractors.
[49]
History of Development Bin 802 Operating Systems: Upgrading of CHPP and Reject Handling System
The defendant provided a detailed and, in my view, substantially correct description, of the evidence of the history of the upgrade and commissioning of Bin 802, which was not the subject of any serious contest. That submission shall form the foundation with necessary adjustments corresponding to certain contentions advanced by the parties in what follows in the next section of the judgment.
[50]
Upgrade of CHPP 2004 - 2007
In 2004, Newpac and later RPL commenced planning an upgrade of the CHPP. Refurbishment of the CHPP was underway in 2006. The upgrade of the CHPP was completed in April 2007.
RPL made decisions to refurbish the CHPP to enable the CHPP to take the amount of run of mine coal projected. RPL decided to engage specialist contractors to undertake a number of functions at the site:
1. CMOP: engaged by RPL as a specialist CHPP contractor, to represent RPL in relation to the contract to upgrade the CHPP.
2. Roche: contracted by RPL to upgrade the CHPP and carry out the refurbishment of the CHPP.
3. Demat: engaged to undertake electrical/electronic system upgrade work at the CHPP and separately advised CMOP regarding available technology, applicable standards and program progress and payments.
4. Primatec: together with Roche, produced a CHPP document titled "CitectSCADA Functional Specification" (hereafter referred to as "the CHPP document"). The CHPP document was created as a standard for the SCADA system to control the Newpac CHPP.
[51]
Upgrade of the Reject Handling System: Bin 802
The reject bin was originally constructed in about 1983 for a previous mine owner and operator, Elcom. It was not operational from the 1980s until July 2007.
The upgrade of the CHPP did not include the upgrade of the reject handling system. It occurred once the CHPP upgrade was close to finalisation. The upgrade of the rejects handling system was conducted by some of the same contractors involved in the upgrade of the CHPP but was not part of the Roche contract to upgrade the CHPP and was managed as a design, specification, engineering and construction project by CMOP.
The upgrade of the reject handling system, which included Bin 802, also involved electrical/electronic and mechanical upgrades. To enable consistent functioning the electrical/electronic systems, the systems at Bin 802 needed to be compatible with the electrical/electronic system of the CHPP. The PLC code for Bin 802 was written to comply with the PLC code that had been written for the washery.
[52]
Planning for upgrade of the reject bin
CMOP's consideration of the upgrade to the rejects handling system commenced in or around early 2006. On 25 May 2006, Mr Ramplin sent three documents by email to David Richardson concerning the upgrade. The documents were:
1. Newpac ControlLogix Programming Standards;
2. Newpac Citect Programming Standards; and
3. Reject Bin Functional Specification.
The Programming Standards provided a guideline for the standards to be achieved when drafting ControlLogix and Citect PLCs. Mr Richardson provided the programming standards to Mr Ambrose on 15 May 2007 as well as the Reject Bin Functional Specification. Mr Ambrose indicated that he did not use these programming standards when writing the PLC for the reject bin, but used Primatec programming standards which were similar.
Prior to 25 May 2006, the CMOP management team prepared a document headed "Reject Bin Operation". Mr Ramplin compiled this in a format which could be provided to the designer of the electrical system for Bin 802, namely, Demat. The Reject Bin Operation Functional Specification set out requirements that CMOP required for functionality and safety. Mr Ambrose agreed that, in terms of Mr Ramplin's design specification, "so far as the client was concerned, a requirement was - leaving aside the number of sensors - that when the bin operated in automatic mode the bin doors must not be able to be opened unless the truck was in a position to receive the load". This was also the understanding of Mr Ramplin and Mr Richardson.
The "Reject Bin Operation" document was identified as the "Reject Bin Functional Specification" in the Connell Hatch 6 December 2006 risk assessment report. Messrs Richardson and Ambrose understood the Reject Bin Operation to be the client's functional specification.
Approximately six months later, a reject system sequence document was prepared by the CMOP management team and was subsequently provided by Mr Ramplin in an email to Mr Richardson on 3 October 2006 attaching the rejects system sequence document. This document was prepared so that a response to a letter received by Roche could be responded to by the end of that week. The document explained in a technical way how CMOP envisaged the rejects handling system to operate. I agree with the submission of the defendant that Mr Ramplin is likely to have authored the document with the assistance of the other members of the CMOP management team and Demat.
Primatec provided to CMOP a scope of works for the upgrade of the Bin 802 associated with its costs in writing the PLC code. Primatec identified in their submission that their scope of work was partly reliant on their site knowledge and that "[o]ur software will be developed as per the site standards that we are currently using."
[53]
Engagement of Demat
Demat was engaged by CMOP prior to December 2006 to project manage the refurbishment of the electrical/electronic system for the reject handlings system, including Bin 802.
Demat provided to Mr Braun its Newpac Rejects Bin Upgrade Scope of Works under cover of letter dated 27 December 2006 from Mr Richardson. The total cost for the upgrade was $373,846. Mr Richardson confirmed that the electrical controls system for Bin 802 was done "without scrimping or scrapping or cutting corners", and it was a "grade A job".
The Scope of Work identified:
1. the installation of a new PLC control system programmed to operate the bin equipment and interface into the rejects conveyor system and the plants rejects system.
2. the PLC control system was designed to integrate with the motor control centre and CHPP Citect system. Allowance was made for a "Compact Logix PLC system".
3. it would have eight PE Cells/proximity switches for bin gate control and truck location position.
4. it would use a radio controlled system for gate operation consisting of one receiver and five portable transmitters.
5. allowance for engineering and project management services for:
1. PLC and Citect programming. The sum of $33,180 was allowed for electrical engineering and PLC/Citect engineering This was an allowance of about 330 hours' worth of work and would provide a "grade A job".
2. interface with Roche PLC sub-contractor for PLC controls. As part of this engagement, Demat subcontracted Primatec and ZMD to assist with the software development and field commissioning.
[54]
Works completed after contract was let
On 21 March 2007, DEMAT prepared a draft diagram of the field equipment to be used in upgrading the electrical system and PLC at the reject bin. The diagram specified a single-bodied CAT 773-type truck (with built-in ROPS/FOPS) and included 3 pairs of "truck in position" PE Cells together with a pair of PE cells for "Truck Full". Mine trucks are large non-road registrable trucks used for hauling large volumes of material. A particular type of such a truck is a "CAT773".
Demat conducted a HAZOP for the Newpac Rejects Bin and Conveyor System on 22 March 2007. The attendees at the HAZOP were Mr Richardson, Dirk Visman (Mr Visman was CMOP's subcontractor responsible for health and safety management system documentation), Mr Nott, Mr Ramplin and Mr Farrelly. By this time, Mr Farrelly was the Coal Terminal Manager, Mr Nott was the CHPP Manager and Mr Ramplin was the CHPP Production Manager. Within the "Action/Control Measures Taken" column it identified "3 x PE Cells for tuck [sic] in position. Hydraulics cannot operate unless truck in position PE Cells are operational".
On 26 March 2007, an update was provided by Mr Richardson to Messrs Nott, Farrelly, Ramplin and Braun regarding the electrical upgrade to the bin. As part of this update, Mr Richardson confirmed that they have completed a HAZOP and risk assessment. The aim, at the time of this email, was to have the reject bin operating by 30 April 2007. Subsequently, on 4 May 2007, a further update as to the status of the upgrade of the reject bin was provided by Mr Richardson to Mr Nott. At this time, the upgrade was still ongoing and commissioning was intended to start on the weekend of 12/13 May 2007.
Mr Barnes was told by Mr Ramplin on 9 May 2007 that normal road trucks would be used at the reject bin, and advised Mark Lynn, Russell Boyd and Mr Richardson that "the rejects will be using normal road trucks and not "dump" trucks" via email on 10 May 2007. Prior to 10 May 2007 Demat were of the understanding that mine trucks would be used by the reject bin.
On 14 May 2007, Mr Ambrose sent an email to Mr Ramplin and copied to Mr Richardson a reject bin functional description revision A (hereinafter "the Functional Description document"). Mr Ambrose asked Mr Ramplin to review the functional description and to advise him if there are any required changes. The reject bin functional description relevantly required:
1. three PE Cells to be activated by the truck;
2. as each PE Cell is blocked the exit traffic lights will change state;
3. when all three PE Cells are activated the red exit traffic light will turn on to indicate that the truck is in position;
4. when the truck is in position, the truck driver can open the gate using the hand held remote control;
5. the gate will open for a predetermined time to fill the truck and close automatically; and
6. all PE Cells must be active before the gate can be opened in Auto Mode.
I agree with the submission of the defendant that the reject bin functional description provided by Mr Ambrose on 14 May 2007 did not identify a type of truck, as such. The prosecutor submitted that the section of the document entitled "Brief Overview of Operations" described a process involving a truck receiving one load of reject only. That would seem to be correct but it does not warrant, in itself, an inference that mine trucks were in contemplation in the document (both mine trucks and semi tippers take a single load). However, when CMOP received Primatec's Functional Description specifications as to how the electrical control system of Bin 802 could operate, CMOP was clear that the bin would be operated by road trucks.
Mr Farrelly sent an email to Mr Richardson on 5 June 2007 advising that he had organised a truck to be under "the bin" on 7 June 2007 to assist in the adjustment of PE Cells (the reference to the cells would suggest the bin referred to was Bin 802). Mr Farrelly could not recall the purpose of this email. There is no evidence that a truck was provided or used under the bin on 7 June 2007. (Exhibits 30, 31, 32 and 33 do not have a record of anyone attending site on 7 June 2007. The only reference to work being conducted in relation to the reject bin on 7 June 2007 is in Ex 30 which records that Karl Smith, Electrical Engineer, was doing commissioning - "Electrical Drawing Hand Mark-Up").
However, the diagram contains many dates, including a drawn date of 21 March 2007; a checked date of 21 March 2007; an as built date of 22 May 2007 and a design approval date of 2 August 2007.
Mr Barnes confirmed that he was the person whose signature appears at the "as built" date and the "design approval" dates. He confirmed that, even though the reject bin was commissioned with trucks and dogs, and the diagram depicted a CAT-773, he did not require the diagram to be amended as the vehicle depicted was irrelevant. Mr Barnes considered the purpose of the diagram was to confirm the field devices positions which were accurate.
[55]
Commissioning
The purpose of commissioning generally is to ensure that the plant or equipment being commissioned met the design specifications. Mr Barnes fulfilled this purpose for Bin 802. Commissioning was a process which occurs over several weeks or longer. There are two stages of commissioning being dry commissioning and wet commissioning, which are preceded by pre-commissioning. Dry commissioning is commissioning without any material in the bin and without any vehicle operating the field devices. Wet commissioning involves material in the bin together with the intended vehicle to operate the plant in fact operating it.
The commissioning engineer prepared, or was provided with, commissioning documentation. In the case of Bin 802, these documents were prepared for Mr Barnes.
[56]
Pre-commissioning
Pre-commissioning involved, relevantly for the Bin 802 project, checking that the instrumentation and field devices were as specified and connected as designed. Software Acceptance Check Sheets ("SAT sheets") were created which recorded the checks conducted during pre-commissioning to ensure that the instrumentation and software supplied conformed to specification. Electrical pre-commissioning for the reject bin commenced by at least the week ending 4 May 2007. This involved Mr Barnes familiarising himself with the project by reading the drawings and other documentation. (Paragraph 46 of the ASF suggests that the electrical engineering component of the reject bin commissioning occurred in July/August 2007. Based on the evidence of Messrs Ambrose, Barnes and Richardson, this reference must relate to the wet commissioning phase of the commissioning process).
[57]
Dry commissioning
Dry commissioning commenced on or around 29 May 2007. It was performed using electrical schematics and performing pre-energisation checks to confirm that electrical components are terminated as they are supposed to be. It involved the physical examination of the connections in the majority of cases, verifying the inputs against the electrical schematics. It did not involve an examination of any software.
The second stage of dry commissioning was for the process automation engineer to verify within the software that he sees the inputs correlate to the schematics In this case, that was undertaken by Mr Ambrose in the control room. The dry commissioning simulated the whole system as if there was material in Bin 802. The process engineer stepped through the process and identified what aspects he wished to test. The commissioning engineer tested that aspect. This continued until the whole system had been simulated from loading Bin 802 through to loading the trucks.
In relation to Bin 802, dry commissioning involved simulating the blocking of the PE Cells and pressing the "A" button on the remote control to see what would happen - "to replicate what the interaction would be with the machine before the machine is introduced into the process".
Inspector Barry would have expected these types of tests to have been conducted by a manufacturer during commissioning of an electrical control system.
[58]
Wet commissioning
Wet commissioning is the operation of the system as it is intended to be used over a period of time so that its operability can be assessed and confirmed. Wet commissioning would not be complete in a few cycles of Bin 802. It required multiple cycles of operation before it would be considered complete.
Wet commissioning of Bin 802 occurred at two distinct points of time. First, on 4 July 2007 with a mine truck (or, it is likely, more than one) and then secondly on 31 July 2007 with truck and dogs.
[59]
Wet commissioning - commissioning with mine trucks
The prosecutor submitted that each of Messrs Richardson, Barnes and Ambrose were originally told and understood that mine trucks similar to a single-bodied CAT-773 (with built-in ROPS/FOPS) would be used to haul reject from the bin to the void. It was submitted that in the result the original PLC code was written upon the assumptions that:
1. each truck would be a single-bodied vehicle without a trailer and therefore capable of blocking all three sensors simultaneously;
2. each truck would receive only one dump of reject from Bin 802 on each occasion it accessed the reject bin; and
3. each truck would only travel through the bin race in the one direction and would not reverse into position.
At the first wet commissioning, there was a McKajj representative in attendance. Mr Ambrose was in attendance at the control room for that process and Demat may have had technicians at site to assist.
In early July 2007, the refurbished reject bin was trialled using a singled-bodied CAT-type dump truck (with built-in FOPS). Approximately 200 tonnes of reject was hauled using such a truck or trucks. However, this resulted in Macquarie Generation suspending CMOP's use of the haul road to convey reject to the void for a period.
CMOP organised for the use of the mine trucks. It appears a McKajj supervisor, not being Mr Bourne, arranged for the mine trucks to be at the site. It is unclear why the mine trucks were used in the commissioning. Neither CMOP or RPL owned mine trucks or sub-contracted for mine trucks to be used.
It is clear that for a period of time Demat (Mr Richardson) and Primatec (Mr Ambrose) believed that the truck type which would be used for the bin would be a mine truck. Mr Ramplin also thought for a period of time that the bin would be operated by a mine truck. There is no direct evidence that identifies how Demat and its subcontractors formed the view before 9 May 2007 that mine trucks would be used at the reject bin. There is an inference available that Mr Ramplin told Demat (although some doubt may be cast on that assessment because Mr Ramplin was telling Connell Hatch that Bin 802 would be operated by commercial trucks). It is also possible that Demat assumed this would be the case due to the design of Bin 802 or their past work in Queensland. There is no suggestion that they were informed by the defendant or CMOP that was the case. In any event, by 10 May 2007, Demat were aware that mine trucks would not be used.
Further, I agree with the defendant that it is difficult to understand why such a conclusion would be reached by Demat and others having regard to the following:
1. The trucks which, in the period 2006-2007, it was envisaged would operate Bin 802 were to be hauling rejects to the Ravensworth South Void along a western haul road which was operated by Macquarie Generation. It was earlier noted the Access and Compensation Agreement stipulated that the haul road could only be used by, inter alia, single trailer semi-tippers. This was plainly a matter of significant commercial interest to RPL.
2. The management of CMOP was aware of the Access and Compensation Agreement and the prohibition on the use of the haul road by non-road registered vehicles.
3. CMOP provided instructions to Connell Hatch for the preparation of documents earlier referred to in this judgment. The documents consistently asserted that the type of truck which would be operating the bin would be a commercial truck or semi tipper.
4. A project which was managed by CMOP was the refurbishment of the haul road in order to accommodate traffic and trucks which would be used to convey reject. Various documents associated with that project referred to the use of semi tippers or semi-trailer trucks.
The defendant was correct to submit that the CMOP not only knew in 2006 that the haul road and therefore the reject bin could not be used by mine trucks but actively took steps to ensure the haul road would be used, not by such trucks, but by road registered commercial trucks or semi tippers. I agree with the defendant that it is a reasonable inference that such documents referring to the use of commercial trucks and the like would have been provided to RPL. Accordingly, the expectation of the defendant was that the type of truck that was going to operate the reject bin after refurbishment was a road registered vehicle in the form of a semi-tipper rather than a mine truck. As earlier mentioned, in May 2007, Mr Ramplin had a conversation with Mr Barnes in which he then told Mr Barnes that the haul road should be used by normal road trucks and not mine trucks or dump trucks. This advice was relayed to Mr Lin, an Electrical Engineer with Demat, in the aforementioned email dated 10 May 2007. Mr Richardson accepted, as a result of that conversation and email, Demat learned that the bin would be operated by road registered truck and dogs and not mine trucks.
During the wet commissioning on 4 July 2007, Mr Barnes completed and signed off a Demat Electrical Pre-Commissioning 1.6 Field Devices document for the truck in position PE Cells. The remarks Mr Barnes made on the document are "altered automation logic to enable alternate vehicle detection".
Mr Barnes ultimately accepted that the "altered automation logic" reference was a PLC coding change made from road registered vehicles to accommodate mine truck(s) being used on 4 July 2007 to test the field devices at the reject bin. Mr Barnes gave evidence in examination in chief that the change of the PLC code for alternate vehicle detection was made for use by a truck and dog. However, in cross examination, Mr Barnes was taken through a series of documents that confirm:
1. Demat, Primatec and ZMD Engineering were aware from 10 May 2007 that mine trucks were not going to be used;
2. the mine truck was the alternate vehicle identified in the field commissioning devices document; and
3. road registered vehicles were not used prior to 31 July 2007. The real likelihood is that on 4 July 2007, the bin had been coded for use by mine trucks.
The description by the prosecutor of the coding of the PLC in Bin 802 on 4 July was correct.
[60]
Suspension and subsequent negotiations
The introduction of the mine truck(s) on 4 July 2007 was a breach of the Access and Compensation Agreement. Macquarie Generation identified and raised this issue immediately with RPL.
The consequence of the mine truck(s) being used on 4 July 2007 was the suspension by Macquarie Generation of RPL, CMOP, McKajj Services and other CMOP contractors from using the haul road (by a letter dated 6 July 2007).
RPL replied to the letter from Macquarie Generation on 6 July 2007 advising that:
1. The cause of the breach was the use of non-registered mine dump vehicles along the western haul road.
2. The use of these vehicles had been terminated.
3. Such vehicles will not be used in the future and only vehicles in compliance with clause 11.3(a) of the Access and Compensation Agreement, or vehicles for which Macquarie Generation provides written permission, will be used in the future.
4. The mine trucks had only been used for, and intended for, use as part of commissioning of the reject bin.
5. The mine trucks moved 200 tonnes of reject in total.
6. It sought to end the suspension imposed by Macquarie Generation.
In response to the above letter from RPL, Macquarie Generation sent a further letter on 6 July 2007 to RPL advising that the request for the end of the suspension was denied. The letter sought seven matters to be addressed by RPL. Negotiations continued for approximately three weeks and specifically addressed issues related to the use of semi tippers, which were the only road registrable heavy vehicle listed in the Access and Compensation Agreement suitable for carting reject. In particular, the negotiations centred around the safety concerns that CMOP had of using semi tippers at the void as part of the unloading process at the dump pad. It is clear then that the defendant was alerted to the fact mine trucks were used in commissioning on 4 July 2007. As previously mentioned, RPL was not aware that anyone intended to breach the Access and Compensation Agreement on 4 July 2007 by using mine trucks. RPL's knowledge at the time indicated that road registered trucks, namely semi-tippers, were to be used for the carting of reject from Bin 802 to the emplacement area along the haul road.
It was submitted that the use of the mine trucks is an "aberration" and not something that might have alerted the defendant that the control system had been designed to that point to deal with mine trucks for use. I will return to this consideration later in this judgment.
[61]
Coding Prior to Wet Commissioning
Prior to wet commissioning, the PLC operated such that all three sensors were required to be simultaneously blocked (activated) before the PLC achieved an input (into the PLC) called TIP. Assuming other PLC inputs had been satisfied, such as hydraulic pressure, once TIP was achieved, the driver was required to manually operate a remote control device which would, in combination with TIP and the three blocked sensors, cause the hydraulic gates to open. Coding the logic in this way precluded the bin gates of Bin 802 from being opened whilst the cabin of a truck was beneath those gates.
[62]
Wet commissioning - commissioning with truck and dogs
On 31 July 2007, wet commissioning resumed with truck and dogs. The wet commissioning took up most of the day. Mr Barnes was the person responsible at the bin for the commissioning. Mr Ambrose was located at the control room. The commissioning involved several truck and dogs with drivers attending and being trained how to use Bin 802. Mr Delaney described what occurred on this day as:
Every driver and everybody that was there done a complete walk around on the whole job site. We were shown all of the sensors. We were shown the remote, how they worked and then we positioned my truck under the bin and then we lined up the sensors to make sure my truck, my bin on my truck and my dog trailer blocked all sensors so the doors could actually open.
Other drivers who attended the commissioning on this day included Mr George and Mr Oldknow. Mr Sherwood, supervisor for Daracon, was also in attendance.
Each truck and dog had three loading positions in the loading bay under Bin 802:
1. the first loading position for each truck and dog permitted a single approximately 10 tonne load of reject to be dropped from the bin gates into the tray of each truck.
2. the second and third loading positions permitted two single approximately 10 tonne loads of reject to be dropped from the bin into each dog.
Each of the positions were determined by reference to the size and design of each prime-mover/truck and the size of each dog trailer so as to ensure that the reject from Bin 802 was loaded correctly into the tray of each truck and into the tray of each dog.
Messrs Sherwood, George and Delaney were told during commissioning that, during a loading cycle, Bin 802's loading gates could not be opened unless a truck and dog, was located in one of three correct loading positions in the loading bay under Bin 802. Daracon's manager, its supervisor and the drivers were instructed to the effect that:
1. Bin 802's loading gates could only be activated when the tray of the truck and/or the dog was in position under the bin gates to be loaded; and
2. the operation of the sensors precluded the activation and opening of Bin 802's loading gates whilst the cabin of a truck was located under the loading gates.
The information conveyed during commissioning was that for the first load the truck had to block the three sensors, that is, the cabin of the truck had to be forward of the chute before the bin could open after the remote control button A had to be depressed. The drivers were instructed not to touch the remote control until they were in one of the three loading positions identified in relation to each truck and dog.
The lines, that were marked on the side wall of the bin and on the roadway were put in place during commissioning to assist the drivers to locate the truck in the correct position to take the loads. I accept the driver's evidence in this respect for the following reasons:
1. they displayed a very clear memory of what occurred on that day;
2. the drivers were not tested by any party that this was incorrect;
3. Grieg Delaney's vehicle was described as the "guinea pig" and so Grieg Delaney had reason to remember what occurred on the day;
4. the traffic lights only provided an indication for the first drop of reject. There was no other mechanism that indicated where the drivers had to stop to take the second and third loads; and
5. the mirrors designed to assist in positioning the truck were only installed after commissioning.
[63]
Amendments to the PLC
On 31 July 2007 Mr Ambrose as part of the commissioning process amended the code of the PLC to accommodate the gap between the truck and dog trailer. He made the following amendments:
1. the code of the PLC no longer required all three sensors to be simultaneously blocked before the PLC activated TIP.
2. the bridging out of PE Cell 1 for the purpose of registering the TIP input. This meant that the PLC code only required the blocking of PE Cells 2 and 3 simultaneously to achieve TIP.
3. latched the TIP input. This meant that TIP remained active so long as one sensor (that is any sensor) blocked. TIP could only be deactivated if all three sensors had been unblocked (save for a system malfunction).
Mr Ambrose did not advise anyone that he had made this amendment. Following the commissioning of Bin 802 on 31 July 2007, Demat, Primatec (including Mr Ambrose) and ZMD Engineering did not know that it was possible for the bin gates to open when the truck cabin was underneath the chute. The understanding was that it was coded so that this could not occur - the bin gates could not open unless all three PE Cells were simultaneously blocked and button A on the remote controller was pressed.
I make that finding, notwithstanding evidence given by Mr Ambrose, that he did not tell Mr Barnes (as the Commissioning Engineer) he had made a coding change. I accept Mr Barnes' evidence to the contrary which is supported by an email issued by him to CMOP on 10 September 2007, in which he, in effect, advised that all three PE Cells had to be blocked for a truck to be in position to receive its load (which email was copied to Mr Ambrose without rejoinder). Mr Barnes' evidence may also be confirmed because it was consistent with the lack of advice (written or oral) otherwise provided by Mr Ambrose to any relevant person concerned with the project. As will be later discussed, the explanation for this approach was, in my view, that Mr Ambrose was not aware that trucks were reversing into the race after driving around the chute when he altered the software logic system. He saw the alteration as inconsequential.
[64]
DRIVERS' PRACTICE RECEIVING LOADS FROM BIN 802 AT TIME OF THE INCIDENT
Before a discussion of the flaws in the PLC software logic operating Bin 802, it is important to detail the general practice of drivers in relation to receiving loads of reject from Bin 802. The instructions received by the drivers working at Bin 802 will be discussed momentarily.
Five truck drivers gave evidence of their practice when taking loads from Bin 802: Geoffrey King, Gary Sales, Jamie George, Kenneth Russell and Greg Delany. Peter Sherwood, a transport supervisor for Daracon at the time of the incident, who had, on occasion, accompanied drivers operating Bin 802, also gave evidence as to the practice of drivers.
Whilst each driver operated a truck and dog, there was some variance in the length of the truck and dogs used. Most of that variance in length was due to some drivers hauling quad-axle dog trailers and others hauling tri-axle dog trailers. Quad-axle dog trailers are longer than tri-axle dog trailers. Whilst the drivers used different makes of trucks, the evidence was that there was only minimal difference in length between the different trucks used at Bin 802. That variation had no impact on the how Bin 802's operating system functioned.
Those differences did not impact the more general procedures used by the drivers but did have some implications on how their truck and dog would be positioned to receive loads of reject.
[65]
Procedures for receiving the first load of reject
It was the practice of the drivers to receive the first load of reject into the centre of their truck bins. If the load was not received into the centre of a truck's bin there was a risk of that truck tipping over.
Broadly speaking, evidence was received of two different procedures that were employed by drivers in order to position their truck bins beneath the chute of Bin 802 for the receipt of that first load. These two methods existed because sometimes, if the reject held in the hopper had high moisture content, a substance would drip from the chute of Bin 802, despite its gates being closed. When that drip occurred, the drivers would use a method of positioning their trucks for the receipt of the first load that enabled them to avoid that drip falling on to and dirtying their windscreens with a substance that was difficult to remove if it dried.
Regardless of which procedure was adopted for the positioning the trucks for the receipt of the first load was that drivers would approach the race from the eastern side. If the entrance traffic light was green, they would enter the bin race.
If there was no drip coming from the chute the drivers generally would drive forward through the entrance of the race and continue driving forward, their cabins passing directly underneath the chute of Bin 802, until they reached a position where their centre of their truck bins were situated directly underneath the chute of Bin 802.
If there was a drip coming from the chute of Bin 802 the drivers, generally speaking, would not drive directly beneath the chute before positioning their truck bins for the receipt of the first load of reject. Alternatively, after entering the bin, they would drive around the drip so as to avoid getting that substance falling on their windscreens. Some drivers stated that they had a specific practice of veering either to the left or the right of the chute when this drip occurred. Mr Sherwood identified that there was enough space in the race that drivers could veer to either side of the chute in order to avoid the drip striking their windscreens.
However, of the drivers identified in the particulars, it was only in respect of Messrs King and Sales that evidence was given that before 18 February, they had used the bin by driving forward, around the chute, and then reversing. As I will discuss, that conclusion was also available with respect to Mr Oldknow, although in his case, as I will find, he reversed his truck into position in order to come to a position at the time the incident occurred. As I will find, the particularised risk only emerged when the drivers adopted that "practice of reversing" (as it will generally be referred to hereafter) and not when the drivers moved continuously forward through the bin until exiting after the receipt of the required load of reject.
There was no evidence that the particularised drivers, other than Mr Oldknow, adopted the procedure of driving forward, around the chute and then reversing into Bin 802 on 18 February 2009. Mr Fairley gave evidence that he did not do so. It follows that those drivers were not exposed to the risk occasioned by the flaw in the PLC software. As the prosecutor did not, as I will find, make good its second case as to a risk emerging under the dirty PE Cell 2 theory (which would arise in the context of drivers moving forward), the particularised drivers, other than Mr Oldknow, were not exposed to the particularised risk.
The drivers would then move their truck and dogs forward past the exit of the race. Whilst not all drivers were questioned on this point, Mr George and Mr Delaney each stated that they would drive forward until they were approximately an entire truck and dog length past the gantry. Mr Russell identified that he would drive only one truck length forward of the gantry (as opposed to a truck and dog length). From that position, the drivers reversed their trucks back into the race, manoeuvring them so as to place the centre of their truck bins beneath the chute. Evidence was received that those hauling the longer truck and dogs (those towing four-axle dog trailers) would have to driver furthest past the race in order to give themselves enough space to manoeuvre back into the correct position than those towing the shorter truck and dogs (with the tri-axle dog trailers).
In order to ensure that their truck bins were positioned adequately for the receipt of the first load, three of the drivers identified that they would position their trucks according to the wall line in the race. Neither Mr Russell nor Mr Sales recalled relying on the wall line, rather, they both identified that they relied upon on a change in the signal of the exit traffic lights to indicate that they were in the correct position. Additionally, some drivers cited that they would use of their truck mirrors and the two bubble mirrors placed in the truck race to ensure that they were in the correct position. Mr Delaney and Mr George stated that they used their mirrors particularly when using the reversing into position.
Once satisfied with the position of their truck bin, the drivers would stop and open the gates of Bin 802 by pressing their remote controllers.
Mr King gave evidence in cross-examination that he would, on occasion, make adjustments either forward or backwards when positioning his truck bin for the receipt of the first load. However, those comments were not made by specific reference to either of the two procedures described used by drivers before the receipt of their first load. Mr Russell also gave evidence that he would at times "move it forward a bit or backwards a bit to get it set in the middle of the truck." However, like Mr King, that statement was not made by specific reference to either of the two procedures described used by drivers before the receipt of their first load. Mr George identified that it is possible that he might have made such adjustments. Again this statement was made generally and not by reference to one of the procedures used for positioning the truck bins for the receipt of the first load.
Mr Delaney was questioned as to whether, when driving forward through the race to position to his truck and dog for the first load (not utilising the reversing manoeuvre), he would adjust his position a bit forward or back. He gave evidence that at the speed he travelled through the race "you always stopped on your mark". Mr Delaney did accept that on 4 March 2009 he overshot his mark when performing a test of the loading procedures for the police. However, he stated that this occurred because he was driving a different vehicle to his own.
[66]
Practice for receipt of second and third loads of reject
After having received the first load of reject, the drivers would drive forward through the race in order to position their dog trailers underneath the chute for the receipt of the second load of reject.
The second load would be received into the front half of a driver's dog trailer. In order to position their dog trailers for the receipt of this second load, the drivers would, as earlier mentioned, line their trucks up one of the marks in the first set of marks painted on the asphalt road past the exit of the race. Because of the variance in the length of dog trailers towed by the drivers, each driver would align their trucks with the particular line in that set which denoted that their dog trailer would be in the correct position for the receipt of the second load. Several of the drivers identified that the lines were differentiated by colour so that they could identify the correct line for positioning their dog trailer.
Once their trucks were positioned, the drivers would press the button on their remote controller that would release a load of reject.
After the receipt of the second load, drivers would move their trucks forward in order to position their dog trailers for the receipt of the third load. That load would be taken into the back half of the dog trailer. In order to position their dog trailers for the receipt of the third load, the drivers would align their trucks with one of the lines in the second set of markings located further from the exit of the race than the set used for the receipt of the second load. Once their trucks were positioned, the drivers would press the button on their remote controller that would release a load of reject.
It should be noted that one driver gave evidence that he did not rely on the markings painted on the roadway past the race's exit for the receipt of the second and third loads. Mr Russell stated that he would position his truck by reference to a sapling that stood to the right of the roadway, past the exit of the race.
[67]
OVERVIEW OF FLAW IN THE AUTO MODE OPERATING SYSTEM OF BIN 802 AT TIME OF INCIDENT
Due to the way the PLC code was written (as discussed in the history of the development of the system above), there was a gap or flaw in the auto mode operating system. That gap meant that it was possible for gates of Bin 802 to be opened by the pressing of the A button on the remote control whilst the cabin of a truck and dog to be situated partially under the chute.
Mr Georgevits described that flaw in the following terms in his report of 28 June 2011 as follows:
5.2 PLC Software Code - Flaw in Logic
5.2.1 I repeat here, for convenience, the conditions under which the PLC code permits the Reject Bin Gate Open sequence to be initiated:
1) PE Cells #2 AND #3 have already been both simultaneously blocked thereby asserting the Truck In Position input. However, PE Cells #2 and #3 do not have to remain blocked, because once the above condition has been met, the Truck In Position output is latched to the asserted condition, and remains so regardless of the ongoing status of the PE Cells, except if one or other of the conditions listed in 4.4.3.8 are met (see also 5.2.5 below)
AND
2) PE Cells #1 and #2 are simultaneously blocked.
5.2.2 Thus a precondition for a truck wishing to take a load is that it must first move far enough forward to block PE Cell #3.
5.2.3 In addition, PE Cell #2 must also be blocked BY THE TRUCK, for the reasons given below.
5.2.4 Under normal operating conditions, the Truck In Position output of the PLC is unlatched when all three PE Cell Sensors are clear again (i.e. when the truck has left the Reject Bin area).
5.2.5 If PE Cell #2 were blocked by dirt, the Truck In Position output would never be unlatched by the PLC software. Hence the traffic lights would never return to all green, indicating that there was a problem with the system.
5.2.6 So, returning to the Incident, it follows from 5.2.2 that even though the truck cab was struck by rock from the Reject Bin chute at the time of the Incident, the truck must still first have driven sufficiently far forward to activate PE Cell #3.
5.2.7 Thus, for the Incident to have occurred, the truck must first have driven sufficiently far forward to block PE Cell #3, then reversed back into the position where the cab was under the Reject Bin chute.
5.2.8 The layout and spacing of the PE Cells is such that the truck could have driven past the optimum loading point to collect a load for the truck tray.
5.2.9 If this occurred, it would then have to reverse back to return to the optimum loading point.
5.2.10 If it reversed back too far, it would unblock PE Cell #3
5.2.11 Unfortunately, the PLC software code is written in such a manner that it does not recognise this condition as a problem. The Truck In Position output remains asserted, because it has been latched ON.
5.2.12 If the truck reversed back too far, to a point where PE Cell #2 was blocked by the cab and/or windscreen rather than the truck tray, and the driver pressed the Remote Open button on his remote control unit at that point, all conditions to open the Reject Bin Gate would have been met (according to the PLC code, the way it was written at the time of the Incident) and 10 tons of rock would fall on the truck cab.
5.2.13 I have been advised verbally at a meeting at the CSO that the truck was known to have been moving forward at the time of the incident.
5.2.14 This is in keeping with the above suggested sequence of events, if the driver was cognisant of the fact that he had reversed back too far and was in the process of moving forward again when he (prematurely) activated the Reject Bin Gate Open button on his remote control unit.
That gap existed because the operation of the PLC code, by reference placement of the PE Cells in the race, meant that a truck and dog could reach a position whereby it simultaneously broke cell lines 1 and 2 but not 3 whilst the condition of TIP was still active due to it being latched due to the manner in which the truck manoeuvred into position causing PE Cells 2 and 3 to be blocked. Under these conditions the bin gates could be opened by the pressing of the A button on the remote control to produce an output which caused the hydraulically powered gates to open for the aforementioned predetermined time to release 10 tonnes of reject. Because of the placement of the PE Cells and the dimensions of the trucks used that condition ("the permissive condition") could possibly be reached whilst the cabin of the truck was underneath the chute of Bin 802.
In this context, the prosecutor has proved beyond reasonable doubt that it was possible for the danger to materialise where the conditions emerged including the "A" button on the remote being pressed.
On this scenario, a driver could be exposed to the danger in the following circumstances:
1. If truck and dog entered the race from the entry (eastern) side and moved through it to a point where it simultaneously blocked cell lines 2 and 3 (establishing TIP) before reversing, past the correct position for the receipt of the first load, into a position where the truck's body simultaneously broke cell lines 1 and 2 but not cell line 3 provided the truck did not clear all three beams. In that position, TIP would remain latched under the configuration of the software Logix system, notwithstanding that cell line 3 was not broken by the body of the truck. Thus, the gates of Bin 802 would be live (TIP latched and cell lines 2 and 3 broken), even though the truck's body may be in such a position that its cabin was situated underneath the gates of Bin 802. A driver may have driven through the race, around to one side to avoid dripping reject and then reversed into a position in which his cabin was under the chute for a number of reasons. For example, the driver may have stopped in that position intending to move forward to position the bin of his truck under the chute or may have been still in the process of reversing or if having stopped reversing he was moving forward. If the A button on the remote controller was activated in this situation, the gates would open releasing reject onto the cabin of the truck.
2. If a truck and dog drove through the race to the point where the entire truck and dog was past the exit of the race before reversing back into a position where the body of the truck broke cell line 1 and 2 but not cell line 3. In this scenario, TIP would be cleared when the truck and dog had completely exited the race (as no cell line would be broken so as to latch TIP). However, TIP would be activated when the truck and dog reversed through the race and simultaneously broke cell lines 1 and 2. TIP would be latched when the body of the truck reached the position where it broke cell lines 1 and 2 but not cell line 3. The same scenarios as to the positioning of the truck as (1) above apply in this case.
Mr Georgevits' opinion was that the explanation for what occurred on 18 February 2009 was that Mr Oldknow drove through the race and then reversed to a point where his truck cabin was under the chute or that he reversed too far and then drove forward to a point where his truck cabin was under the chute.
Given the fact that on 18 February 2009 Mr Oldknow was struck and killed by a load of reject falling onto him through the roof of his truck cabin, there is no difficulty in concluding that, on that occasion, Mr Oldknow was exposed to the risk pleaded in particular 2 of the Further Amended Application for Order. This is the first scenario (or case theory) underpinning the prosecutor's case. The second scenario, to which I shall return, concerns the observation made by Mr Georgevits in the above extract (at 5.2.5) where an occlusion to PE Cell 2 would leave the PLC software permanently in TIP output because it is never unlatched.
As postulated by Mr Georgevits, the evidence disclosed that the most likely explanation was that Mr Oldknow was exposed to that risk after moving forward in the race, driving around the chute and his moving into position by reversing to take a load.
That postulation was accepted by both the prosecutor in its first scenario as to how the risk was occasioned and the defendant. As I will discuss below, the prosecutor developed a second theory that the risk arose from the occlusion of PE Cell 2. I will reject that contention. As part of that submission it was suggested that Mr Oldknow might have driven forward into the race and stop short of the PE Cell 3, perhaps to have attended to paper work and then accidentally activated the remote controller whilst stopped or moving forward. I agree with the defendant that no inference is available from the evidence and that the submission does involve speculation. That conclusion is reinforced by two considerations:
1. It is relevant that the drivers would never willingly stop with their cabin under the bin chute, still less press the remote control button when they were either approaching the bin chute or under it. There was no reason for a driver to activate their remote after having entered the bin race but - with the bin chute in front, before arriving at their mark. Nor would they stop before they reached their mark. Nor would they press the "A" button on their remote control until they were in the correct position. In this regard, it is important to recall that Mr Oldknow was very experienced:
1. having been working at the bin since it started operating in mid-2007,
2. attending the initial period of training on 1 August 2007 following the commissioning of the bin on 31 July 2007;
3. training new drivers on the operation of the bin;
4. was considered by other drivers to be an informally appointed team leader for the shifts he worked; and
5. considered to be a particularly careful and measured driver.
1. Secondly, I accept the following submission by the defendant:
399. There was a run-on timer coded into the PLC application software. This meant that the hydraulic power pack motor would continue to run for two minutes after the last requested operation - ie, last opening and closing of the bin gates. There was a five second interval coded into the PLC code for the Open Bin Gates sequence between the start signal for the opening of the bin gates being received and the opening of the bin gates during which time the hydraulic power pack motor started up and continued to run. This meant that the first dump into the bin of the truck would not occur until five seconds after the PLC had received the signal from the driver's remote control radio transmitter.
400. The hydraulic power pack motor made a loud noise. The drivers, sitting in their trucks in the bin race, could hear the sound of the hydraulic power pack starting up for the five second interval coded into the PLC before the bin gates would open.
401. Drivers would never knowingly stop with their cabin under the bin chute, still less press the remote control button when they were either approaching the bin chute or under it. As earlier noted, Mr Oldknow was known to be a particularly careful and measured driver. Any driver who heard the sound of the hydraulic power pack start up knew that at the end of five seconds the bin gates would open and a load of chitter would drop.
402. Because it had been more than two minutes since the last operation of the bin gates, during the time between activation of the remote control and commencement of the opening of the bin gates, we know that whichever way Mr Oldknow approached the bin before the remote control was activated, the hydraulic power pack motor started and continued to run for five seconds before the bin gates actually opened.
403. It does not matter what it was that Mr Oldknow would have been doing in driving his truck in this scenario before activation of the remote control. It can be granted that, if the incident occurred when Mr Oldknow was or had been reversing, then he must also have been able to hear the power pack start up and run for five seconds before the drop occurred. Driving forward, towards the chute, however is a qualitatively different and less complex action from the manoeuvre/s involved in reversing and getting a truck into position to take a load. It is inconceivable that Mr Oldknow or any other driver would knowingly have driven forward towards the bin chute for five seconds at much slower than walking pace to put himself directly under the chute knowing that the bin gates were going to open. That is, as Inspector Smith did, the Court can rule out that, on 18 February 2009, Mr Oldknow or any other driver deliberately drove towards the bin chute knowing that it was about to open.
A more precise definition of how the incident occurred is not possible on the evidence. Under the first scenario, the prosecutor postulated the following:
19. The first possibility is that indicated above. Mr Oldknow drove into the race, around the water and chitter residue thereby breaking all three beams. He reversed in an effort to position the bin of his truck under the bin. At this point he may have ceased reversing, come to a stop and engaged a forward gear to move forward into position. Whether moving forward or not, it is likely that he pressed his remote control. The evidence supports a finding that he pressed his remote accidentally. Alternatively, he may have misjudged the position of his truck and pressed the remote intentionally believing that his cabin was not at risk.
[68]
Nature of the Risk to Mr Oldknow
The prosecutor also contended that the loading of a bin on a truck with 10 tonnes of reject falling from a height in circumstances where it was known that the truck was not fitted with FOPS whilst the driver is seated in the truck presents as a scenario ripe with risk for the health and safety of the driver. The risk is even more apparent when account is taken of the relatively small distance between the back of Mr Oldknow's truck cabin and the bin. This distance was only 200 mm or about 8 inches. That is a very small margin of error when one considers the catastrophic consequences of a manifestation of the risk.
The essential proposition as to the nature of the particularised risk contained within the submission is correct. So too is the further contention by the prosecutor that the flaw in the PLC software was unknown to the drivers. Further, drivers were advised and instructed that the bin would not open unless their truck was in position.
The defendant also made a related submission which represented the counterpoint as to the nature of the risk under the first scenario, which I accept. It was contended that there was in fact, "only a narrow window of opportunity for the bin gate to open over the cabin roof of a truck underneath [Bin 802]". In particular, I accept the evidence disclosed, this limitation arose in two ways:
1. first, the tolerance of the Bin's electrical control system for the bin gates to open over a truck cabin was extremely small;
2. second, only a small window of truck position - about 1 m of movement was permitted, even for part of the truck cabin to be underneath the chute.
The first point was illustrated as such: In order to establish TIP, the cabin of the truck must have proceeded past the sock or bin chute. Unless, there was another movement, the permissive condition could not arise. That further movement involved reversing to a point where the cabin was underneath the chute and Cell line 2 was blocked. The prosecutor correctly observed that it was not suggested that Mr Oldknow deliberately pressed the remote controller knowing his cabin was under the chute. The evidence would not support such a conclusion. However, the defendant contended as follows: "In this context it needs to be understood that if the truck cabin did end up underneath the chute after reversing then the driver had made a mistake - he was operating the bin outside of the parameters for its designed use. The driver's goal was to have the tipper bin of the truck under the chute. To get to that position, there was no necessity for the truck cabin to pass under the bin chute. Reversing until the cabin was aligned with the mark painted on the driver's side wall of the race ensured that the truck cabin did not pass under the chute again. If the cabin was under the chute after reversing, the truck had to have reversed too far - some 1.8 m past the driver's mark on the wall of the bin race".
As to the second point, the defendant correctly submitted: "To illustrate the second point that only a small window of truck position - about 1m of movement - permitted part of the truck cabin to be underneath the chute), the location of [PE Cell 2] was such that if the truck cabin was entirely exposed to the bin chute, then [PE Cell 2] was not blocked. First, in addition to [PE Cell 3], [PE Cell 2] had to be blocked to achieve TIP. Second, and importantly, however, in addition to TIP being asserted, both [PE Cell 2] and [PE Cell 1] had to be blocked for the Open Bin Gates sequence to be initiated by the receipt of the radio signal from the driver's remote control. Thus if the truck cabin was entirely underneath the bin chute, even if the "A" button on the remote control was pressed it was impossible for the bin gates to be opened under Scenario 1".
It was further submitted (and I accept):
The small scope for the bin to operate unsafely is one of the reasons the bin operated for tens of thousands of cycles without the latent flaw in the logic of the system being discovered. It will be recalled that people tried to get the bin gates to open either when no truck was under the bin or using another driver's remote control from a distance. The small scope for the bin to operate unsafely also explains:
(a) why it was that there was a widespread understanding, extending to and including the Defendant, that the bin would not open for the first load unless the truck bin (tray) was positioned under the bin chute;
(b) why it was that, even though the idea of the well attended and expertly facilitated Failure Modes and Effects Analysis ("FMEA") conducted with hindsight of the incident was to determine the failures that could have had led to the accident, it was inconclusive;
(c) why it was that for the Departmental investigators, it was very hard to understand how Mr Oldknow came to be in the position that he was in;
(d) why it took so long - namely by the time in 2012 of the presentation at the inquest (more than three years after the incident) by Mr Georgevits of his analysis of the PLC code - before both the Manager of the CPP, Mr Huthnance, and the Departmental investigator, Inspector Smith to come round to the view that the fatal incident was likely caused by a combination of (1) the fact that TIP had been coded to be latched until cleared with (2) the possibility that Mr Oldknow drove through the bin race and then reversed too far back under the bin.
[69]
Occlusion of the PE Cell: Scenario 2
As mentioned, the prosecutor advanced a further scenario in which the pleaded risk may emerge. This scenario concerns a truck moving forward (not involved in the reversing action described in the first scenario) and the risk arising because of the occlusion of the PE Cell 2.
This was described in the prosecutor's written submissions as follows:
The evidence also establishes that if any one or more of the PE cell transmitters was blocked at a time that a truck and trailer completed taking its 3 loads from the bin, the electronic system would still record that a truck was in position and the bin would remain latched and ready to open its gates as soon as the first and second beams were broken by a second truck entering the race beneath the bin upon receipt of a signal from the driver's remote control, even if that second truck had not yet itself come to a stop in position under the bin. This was so because the electronic system would remain latched even after a truck had cleared the race and the bin provided one of the sets of PE cells indicated that its beam was broken. If it was the second beam that remained blocked, then as soon as the second truck broke the first beam upon entering the bin race, all that was required to open the bin doors was the signal from the driver's remote control.
The foundation for these contentions were two pieces of evidence:
1. the evidence of observations made and an experiment conducted on the afternoon of 18 February 2009 by Inspector Barry, and
2. the evidence given by Mr Neil Craddock of examinations and testing of the PE Cells removed from Bin 802 after the incident, especially when compared with new PE Cells.
The prosecutor made the following submission in that respect:
61. Their evidence indicates that the transmitter for sensor 2 was blocked and that a signal to this effect was being received by the computer system. When Investigator Harden apparently unintentionally brushed the transmitting sensor the signal being received by the computer changed to indicate that the signal created by the beam was no longer being blocked.
62. The evidence of these two inspectors is consistent with the evidence of Mr Craddock about the state of the second transmitter. The photographs of this transmitter are also consistent with the Inspector's evidence and support a finding that the second transmitter may have been sufficiently impeded to create a factual scenario that has Mr Oldknow driving into the race and stopping short of the third set of sensors, perhaps to attend to paperwork or for any reason, and to have accidentally activated the remote control whilst stopped or whilst moving forward to the point of truck in position. In this scenario, the computer system would never have recognised that the previous truck had not cleared the race and would have discharged 10 tonnes of chitter on whatever was below the chute.
63. It is not to the point that the evidence of the blocked second transmitter was obtained after the incident and may not have reflected the situation as it was before the incident. The point is that the system permitted such an occurrence and thereby had within its ordinary system of operation the grave risk that the discharge system would remain live after a truck and dog had cleared the race.
Inspector Barry's evidence was that, on the afternoon of 18 February 2009, after the removal of the truck and trailer below the bin chute, he and Inspector Harden conducted an exercise with the PE Cell sensors and the digital input card on the PLC. Inspector Barry had his fellow Inspector block the PE Cells while he observed the input lights on the input card to see whether they changed state. Because the PLC was located in an electrical cabinet on the mezzanine level in the gantry of the Bin 802, Inspector Barry could not see Inspector Harden and Inspector Harden could not see Inspector Barry. Thus Inspector Barry did not know by observation what Inspector Harden did or when he did it because he could not see Inspector Harden.
Inspector Harden gave evidence that he waved a glove on top of a stick in front of PE Cells. Inspector Barry asked Inspector Harden what he had done and Inspector Harden made a contemporaneous note.
Inspector Barry said that he saw that the indicator light for PE1 went on "as the stick actually broke the light beam" indicating that PE1 was sending a "valid signal back to the PLC". He said that Inspector Harden then moved to the second set of sensors and Inspector Barry observed "no change in the status of that indicator light, it remained illuminated". He said that the third sensor was illuminated "when he broke the beam and then went off again".
The evidence of the Inspector's in this respect would, if accepted, be significant for the second case theory. The fact only one PE Cell was illuminated when there was no truck under the bin was plainly significant.
However, there are aspects of the evidence of the experiment which significantly lessen the weight that should be given to it for the following reasons:
1. I accept that Inspectors Barry and Harden consulted on the apparent anomaly and Inspector Harden made corresponding notes but no direct observations were made by Inspector Barry as would permit a sure alignment of the tests and it is not possible from Inspector Harden's evidence to detect whether the blocked PE Cell 2 at the time Inspector Barry saw the digital input card was illuminated. There was no video taken of the experiment (when a video was available) and no repetition was possible because Inspector Harden rubbed the lens of PE Cell 2 and caused it to be partially cleaned.
2. After Mr Fairley's truck was removed during the investigation on 18 February 2009:
1. the TIP light at the local control station on the south-western side of the bin race - where Inspectors Barry and Harden were walking around - would have been illuminated; and
2. the control room Citect screen for the status of the three PE Cells and TIP would have indicated both that PE Cell 2 was active and that a truck was in position.
1. As the defendant submitted, "the fact that none of these indicators that [PE Cell 2] was occluded and registering such in the PLC, and that TIP was still an input as a result, suggests that [PE Cell 2] was not occluded to the point of registering such in the PLC, and that TIP was not asserted and latched in the PLC at the time of the investigation". The fact that the occlusion of PE Cell 2 only became significant later in time does not dilute the importance of this consideration.
2. I do not find that the Inspectors gave their evidence other than in earnest, but no mention was made of the indicator light for PE Cell 2 at the date of Inspector Barry's experiment in his earlier statements or testimony at the inquest concerning what he saw on 18 February 2009. This raised issues as to the reliability of that aspect of his evidence. I agree with the defendant that Inspector Barry did not allude to having seen that the input light for PE Cell 2 was illuminated before commencing the experiment.
However, of much greater significance in the resolution of this case theory is that, irrespective of the reliability of Inspector Barry's evidence, the prosecutor failed to prove beyond reasonable doubt that PE Cell 2 was so occluded by mud or dirt prior to the trucks of any of Messrs Oldknow, Fairley, Sales and King proceeding through the bin race on 18 February 2009 as to create the risk to any of them of the bin gate doors opening when the truck cabin was underneath. This is because a splash of dirty water from the incident drop of reject onto the roof of Mr Oldknow's truck adjacent to the sensor lens cannot be excluded as a reasonable hypothesis explaining Inspector Barry's post-incident observations that the input light for PE Cell 2 on the digital card in the PLC array was illuminated or that PE Cell 2 was otherwise occluded.
The defendant's submissions in that respect are compelling and are as follows:
1. The physical observations of the truck and bin race were as follows:
1. the cabin roof was 2.84 m above ground level;
2. the sensors in PE Cell 2 were located 2.62 m above ground level;
3. they were covered at the top and at the sides by a metal shroud; and
4. the sensor lenses were recessed about 150 mm into the shroud.
1. There is no direct evidence as to the height of the sides of the bin (tray) on the back of any truck or dog trailer other than Mr Oldknow's truck and dog trailer. However, it could be expected that the spray from a drop of reject hitting the floor of a truck bin or trailer tray would generally to some degree be contained by the sides of the tray or trailer into which the reject fell.
2. It can be seen from the drawing of Mr Oldknow's truck and dog trailer when laid against the location of the sensors, that the sides of the bin (tray) on the back of his truck and dog trailer were higher than the metal shroud which covered the sensors. It must have been the same with the other trucks and dog trailers because otherwise they would not have been able to block the sensor beams and thereby operate the bin.
3. Given the sensors were significantly recessed into the shrouds, the sensor lenses would be protected from splashes ricocheting from drops of reject into truck bins and dog trailers.
4. However, they would not have been protected from splashes ricocheting from the impact of the reject hitting the roof of Mr Oldknow's truck cabin at the time of the incident. As can be seen from the drawings for location 3 and 4 in Ex 6, the receiver and transmitter in PE Cell 2 would have been closest to where that impact occurred and, due to the height of the cabin roof from the ground, unprotected by the metal shroud from receiving reject splash ricocheting practically horizontally from its point of impact with the cabin roof.
5. As Inspector Barry accepted, it is not possible to exclude the explanation as to the state of dirtiness or occlusion of PE Cell 2 on 18 February 2009 having been caused at the very time of the dump of reject onto, in part, the cabin roof of Mr Oldknow's truck. Further, the prosecutor properly conceded that the evidence of Inspector Barry and Harden is explicable by virtue of the incident drop of reject. This is a reasonable hypothesis for the evidence of the "dirty PE Cell 2" consistent with the innocence of the defendant - that is, it is sufficient to establish that the prosecution has not proved beyond reasonable doubt that one or more of the particularised drivers was at risk to their safety by reason of a dirty PE Cell 2 at the time they drove under the bin. If the evidence of circumstances supports a reasonable hypothesis consistent with innocence, the charge must be dismissed. That is, if there is open on the evidence any reasonable hypothesis consistent with innocence, the defendant must be acquitted: Plomp v The Queen (1963) 110 CLR 234 at 252; The Queen v Hillier [2007] HCA 13; 228 CLR 618 (per Gummow, Hayne and Crennan JJ) at [46]. (The same conclusion may be approached from the viewpoint that the evidence is largely circumstantial and the prosecution has not excluded a hypothesis consistent with innocence: Shepherd v The Queen (1990) 170 CLR 573 per Dawson J at 578 (Toohey and Gaudron JJ agreeing). In this case, there is evidence consistent with dirt later found on the lenses of PE Cell 2 having come directly from the incident rather than having been there beforehand.
6. There was no evidence of when that state of affairs occurred. Instead, the strongest evidence is that it is likely to have occurred, or at least could have occurred, at the time of the fatal drop of reject onto Mr Oldknow's truck cabin roof.
7. It cannot be irrelevant, as submitted by the prosecutor, that any blocked transmitter may not have reflected the state of affairs before the incident as the circumstances that permitted such an occurrence, on the evidence, were not those of the ordinary operation of the bin but rather the incident which allowed the lens of PE Cell 2 to receive a splash of dirty water from a metre or two away, directly at a horizontal level. Account needs to be also taken of the evidence of Mr Craddock to which I will now turn. Those results were that the sensors from the bin had very high levels of effectiveness so much so that they were within the parameters of effectiveness of new PE Cells.
[70]
Testing by Mr Craddock
Mr Craddock's relevant report was entitled "Photoswitch Investigation".
He examined the PE Cells removed from the bin and compared them to a new pair of the same type and model. As part of "operational tests", Mr Craddock conducted an experiment with the new PE Cells to see what degree of impairment of the beam from the transmitter to the receiver was required before the receiver would send a signal to the PLC that it had changed state (i.e. that it was blocked by something). This established a baseline against which the performance of the PE Cells removed from the bin could be measured. The baseline was 98%. The beam from the new transmitter to the new receiver had to be degraded by 98% before the receiver would send a signal that a truck was blocking it even though a truck was not blocking it.
Mr Craddock then conducted the same type of test with each of the three sets of PE Cells removed from Bin 802. The results were:
PE Cell 1: 79.84%
PE Cell 2: 96.05%
PE Cell 3: 96.85%
In the case of PE Cell 2, Mr Craddock noted that the "sender lense (sic) had been cleaned in the centre giving much improved performance." This is presumably a reference to a contention advanced by the prosecutor that Inspector Harden accidentally brushed the lens during the experiment conducted by the Inspectors (Inspector Barry referred to the lens being "cleaned").
However, Mr Craddock adopted a method of testing designed to compensate for the fact that PE Cell 2 lens had been cleaned. In the case of PE Cell 1, Mr Craddock adopted a method of testing which was different to the mode used to test the new PE Cells and the PE Cells from cell lines 2 and 3. He measured performance after interposing an A4 sheet of paper with a hole in it between the PE Cells so as to "mimic" the portion of the lens on the PE Cell 2 transmitter which appeared to have been cleaned.
Further, the results of the testing of the PE Cells from cell lines 2 and 3 at the bin fell well within the parameters for failure of new PE Cells of roughly 90% loss of emission strength before failure.
Mr Craddock then tested the receiver PE Cell 1 with a new transmitter PE Cell and achieved a total reduction of emission strength of 91.94% before failure. This was within the parameters for new PE Cells. Thus, the degree of degradation required across the transmitters recovered from the bin was about 80% before failure.
I agree with the submissions by the defendant that Mr Craddock's tests showed was that, whilst the PE Cells could be made ineffective by occlusion by dust and dirt on the lenses, a significant degree of occlusion by dust or dirt was required before the PE Cells failed (i.e. registered the presence of a truck when no truck was present). A possible explanation for the seemingly high degree of emission reduction which must occur before these PE Cells failed is that infrared light is less susceptible to being blocked by dust and dirt than other forms of light.
Further, it may be accepted on the evidence that the results from Mr Craddock's examinations and tests provide no support for the prosecutor's case that "the second transmitter may have been sufficiently impeded" to have caused TIP to not clear at a time before any of the trucks driven by Messrs Oldknow, Fairley, Sales and King entered the bin race on 18 February 2009.
[71]
Conclusion: Dirty PE Cell 2 Theory
In my view, the prosecutor has failed to prove PE Cell 2 was occluded by dirt to such a degree that it sent an input to the PLC to the effect that it was blocked. In the result, the prosecutor has failed to prove that occlusion of PE Cell 2 was causally related to the particularised risk in either charge.
[72]
Operation of Bin 802 after Commissioning
After commissioning the bin was operated by CMOP through Daracon until CMOP's contract was terminated.
In contradistinction to what occurred on 31 July 2007, Demat made amendments to the PLC code in September 2007 relating to the rejects truck loading traffic signals. This was following Demat being requested to do so by CMOP. After the changes were made, Mr Barnes sent an email to Mr Ramplin and copied in Messrs Farrelly, Richardson and Ambrose, notifying them that changes had been made. Whilst not telling them what the changes to the PLC code were, the email advised them what the effect of the changes were. As to the red signal, it was indicated that it would light when "the third PE cell is activated ("Truck in Position") and dims when the "fill request" is activated.
On 7 February 2008, CMOP produced the SOP for Bin 802. In particular, the SOP included the following:
3.1 Positioning under the shoot [sic] of the Reject Bin
…
• At the start of a shift or before loading check that the red digital level indicator is set at minimum of 15% (15.00), note; the sensor entry lights will be green when it is ready to load, if the sensor light isn't green you are unable to load.
• If there is water dripping out of the chute, proceed to drive slowly on the left hand side of the bin as water drips out of the chute on the right hand side of the bin.
• Position truck under the chute, the first sensor light will turn red once in position.
• While trying to position the truck, the second sensor will go amber, once in position the sensor light will turn green, note; if you are not positioned under the bin correctly, the sensor will not allow the bin to open.
• Make sure you check that both sensors have tripped. Don't assume.
If the need to get out of the truck for any reason, you are not permitted to do so unless the bin is not being operated. Before getting out of the truck, the driver must ensure that the vehicle is secured against unplanned movement.
…
3.2 Using the Remote Control
…
NOTE: ensure that the remote control is not used or touched until you are in position to load the reject.
The SOP was drafted by Karen Bosworth, CMOP's safety manager. Ms Bosworth was not in a position to prepare the SOP of her own knowledge. She obtained the input of other persons who were able to assist her with the content of the SOP and drafted the SOP from that information. Once Ms Bosworth was comfortable that she had prepared the draft with the information provided to her, she circulated the draft to those persons who had assisted her for their feedback and also to confirm that those individuals were comfortable with the content of the SOP as being accurate and correct.
On 7 February 2008, Ms Bosworth received training from Peter Sherwood through observation, regarding the operation of Bin 802 from Daracon's purpose. She had previously observed the operation of Bin 802 when she had been on site on multiple occasions with Mr Greedy. During these attendances at the site, she and Mr Greedy had observed the operation of the reject bin by truck and dog.
In preparing the SOP, Ms Bosworth and Mr Greedy spoke to the Daracon drivers regarding the water dripping down and the procedure that the drivers had adopted prior to this day of driving around to avoid the drip of water. Ms Bosworth had observed the drivers load their trucks using this method.
Ms Bosworth circulated the draft SOP to Mr Greedy, Mr Ramplin, Mr Farrelly and Mr Sherwood, amongst others for feedback. As the defendant submitted, she considered these individuals to be the "content experts" for the drafting of the SOP and she was reliant on these individuals to provide her with the necessary information. Mr Greedy amended the draft SOP to include additional information as part of the SOP.
Ms Bosworth included any feedback in the document before sending the document for checking. Once the checking process had been completed the document went to Mr Farrelly, for authorisation. The SOP was authorised on 7 February 2008.
It was the view of Ms Bosworth as author of the SOP that, by the time the SOP had been through the above process, that it provided a safe way of operating Bin 802, although there is nothing in Ms Bosworth's qualifications or experience which have equipped her to make that observation (or for that matter contribute in any meaningful way to the content of the SOP).
From the time that the defendant resumed immediate control of the reject bin until the date of the incident, the defendant did not conduct a risk assessment of Bin 802 and did not review any previous risk assessment of the reject bin.
The defendant submitted, however, that the defendant had made preliminary enquiries as to work that required attention at the mine including at the washery and became involved in a substantial number of costly rectification projects between the time of taking over the mine and the incident.
That submission was introduced in the following way:
David Huthnance was brought in because of his expertise in managing washeries. He was appointed as the Manager of the CPP. Initially he was there in a watching capacity to observe and obtain as much information as possible before CMOP's contract was terminated. He did not have access to the BMS or documentation at this stage. David Huthnance was able to have conversations with some CMOP staff members; in particular Tony Brian and Karen Bosworth during this period. He obtained a handover from Kyle Farrelly before Kyle Farrelly left the site. Kyle Farrelly identified a verbal "list of work that needed to be done that kept him awake at night" that did not include the reject bin 802 but included:
(a) the man lift;
(b) the rail loop cutting;
(c) fire suppression (including switch rooms);
(d) water available for fire fighting; and
(e) earth leakage protection.
It was submitted that, in response to the work that was identified by Mr Farrelly, Mr Huthnance undertook the following work:
1. The repair of a lift for conveying persons on the raw coal bins (silos) predicated upon Mr Huthnance's view that if it was not repaired there would be a risk of injury or death. The lift was out of action for about three to four months from 17 March 2008.
2. After investigations by Mr Huthnance of the rail loop cutting significant defects were noted due to erosion. A further investigation by the company engaged in the assessment of the rail track identified further issues with respect to drainage. In April 2008, an application was made by Mr Huthnance to the financial controller for an immediate one million dollars in funds. During 2008 emergency works were undertaken. A study was commissioned. Further works were undertaken after the publication of a report in 2009.
3. Mr Huthnance noted very early in his role at the washery that there was significant inadequacies in fire suppression systems. Around one week after commencing he commissioned a company known as TotalFire who had been responsible for the installation and maintenance of the systems, to conduct an audit. The audit identified the items for attention to get the fire systems up to completion and commission. This investigation extended to the RCT. In August 2008, TotalFire provided Mr Huthnance with an estimate in relation to upgrading the fire suppression systems in all of the switch control rooms across the mine site. In late 2008, TotalFire's estimate for the works (provided in August 2008) was accepted and the capital was approved. The works took around six months to complete and over a million dollars was spent altogether on fire protection systems completion and repairs. Mr Huthnance estimated that prior to the capital being approved, the identification and addressing the issue of fire suppression systems took up 15-20% of his time.
4. A related difficulty to the fire suppression system was the availability of water for fire fighting. It was drawn to Mr Huthnance's attention that there was an issue with water from the fire suppression system being used for process water, which prevented the fire water system from having full capacity.
5. In response, an alternative water supply for process water was immediately sought. The fire system had to be turned back into what it was designed for. This involved the need for electrical work and hydraulic work, including the installation of a new pump system. Work was done by Demat EPM in respect of the electrical control system for the water supply, which involved upgrading the switch room that supplied the water and the control system. The works started as soon as capital was approved, and likely prior to February 2009.
6. Further, on 13 August 2008, Mr Huthnance emailed David Gibson and others in relation to an issue with an incorrect type of pipe being used to run from a fire hydrant. As the pipe was made from polyethylene rather than steel, the pipe could have lost pressure and melted in the event of a fire, resulting in the fire protection system being lost completely. This issue was also addressed.
7. The defendant was involved in 2008 in testing and obtaining report as to residual current devices ("RCDs") resulting in steps being taken immediately to replace all faulty RCDs with the program for replacement being concluded in around mid-2009. This work also revealed that work needed to be done in relation to electrical switchboards. The cost of replacing the defective electrical switchboards and RCDs was in the magnitude of hundreds of thousands of dollars.
8. Bin 802 received a relining of the lower portion of the hopper because it was wearing thin and its structural integrity needed to be preserved. This was undertaken for safety reasons given there was a history of cones falling off the bottom of bins in the mining industry. The defendant submitted that, during Mr Huthnance's scanning for safety issues, there was "nothing to put the bin on his radar".
9. The defendant undertook works to reinforce a concrete pipe known as the reclaim tunnel using an additional concrete mass filled with structural steel. The reclaim tunnel was an emergency escape tunnel and at the time of Mr Huthnance's investigations was in danger of collapse. The works were funded by Xtrata after an application for capital by Mr Huthnance and took around six weeks from mobilising the site to demolishing the site. Part of the works involved the evacuation of the stockpile to expose a concrete pipe.
10. At the time of the fixing of the reclaim tunnel the problem with a tail pulley was identified. The essential problem was that the structure was not attached to a concrete footing but was only sitting on it. The repair work on the pulley took about six weeks. Mr Huthnance was of the view that this project as well as the reclaim tunnel represented a risk to injury or even fatality to persons at the mine.
11. In October 2008, a budget was approved for the installation of stockpile lighting on two coal stockpiles at one site. Contractors were engaged in that respect and the project took approximately six months. The lighting had been previously undertaken by means of mobile lighting towers but Mr Huthnance took the view that risk factors were unsatisfactory given that the lighting was being moved around an uncompacted stockpile and there were dark spots for drivers. A HAZOP was undertaken in relation to the installation.
12. A related project to the stockpile lighting project involved fitting dozers that moved around the stockpiles with a GPS positioning system. This alerted the driver when he was approaching the end of the potential "rill" where the driver could be drawn into a hole in the ground.
13. Immediately after Mr Huthnance commenced his role he became involved in the negotiations with Macquarie Generation over the use of their tailings facility for tailings disposal from the CHPP. The CHPP had issues with water availability for its operation and environmental restrictions around water use.
14. The previous owners had failed to complete CHPP's own dam within a particular time frame resulting in an immediate action by Macquarie Generation to suspend the use of their tailings facility and the subsequent negotiation for that continuance. The contractor engaged in building the additional tailings dam for the defendant was moved to Mr Huthnance's supervision over the project. The tailings void construction was basically completed by December 2008.
15. A further issue that occupied Mr Huthnance during 2008 was the failure of the tailings line that ran through to Macquarie Generation void. An overhead tailings line had fractured and spilt tailings onto Macquarie Generation's property, breaching environmental consent and consenting conditions with Macquarie Generation. At an early stage of his tenure at the mine, Mr Huthnance was also involved in a "beneficiation process" involving an audit of plant streams. Through that process it was discovered that the classifying cyclones within the plant, that is, mechanical devices that separate the size and density of particles through centrifugal force, had the wrong "cut point", which resulted in large amounts of coal in the tailings.
16. A further issue which occupied Mr Huthnance in 2008 was the removal of hundreds of thousands of tonnes of coarse reject that had been stockpiled on the surface area in unapproved dump sites. It was a breach of consent conditions to have it on site. As a result, processes were put in place to truck it back to the open cut where it came from. Removal took around three months and cost around a million dollars. Mr Huthnance spent a significant amount of time for a period of a few weeks in developing the scope of work, tender documents, traffic management plans and getting the agreements put in place.
17. Mr Huthnance was also involved in instigating a number of repairs and upgrades to certain components within the conveyor system on site. This issue had been drawn to Mr Huthnance's attention by Mr Greedy prior to his arrival, with an audit on the conveyors having been carried out.
18. Mr Huthnance commissioned an audit of confined spaces and, as a result of the audit, commenced a register for all confined spaces. The audit had been completed by the date of the incident. However, the procedures associated with the confined spaces may have taken longer to finalise.
19. Mr Huthnance identified that the existing contractor work authorisation system was an issue. He held the view that the system should be standardised for each Xstrata site. As such, he introduced a system for CHPP which had been developed in the early 2000s and used at United Colliery.
20. The defendant also identified thirteen other issues which Mr Huthnance was involved in resolving during the year 2008.
[73]
Permission granted by Macquarie Generation to operate mine trucks
On 15 August 2008, Mr Huthnance commenced negotiations with Macquarie Generation for permission to use mine trucks to be used on the haul road between Bin 802 and the void. The negotiation with Macquarie Generation to use the haul road by mine trucks was protracted and related to numerous conditions.
On Friday 13 February 2009, Macquarie Generation granted permission to the defendant for a trial to use of mine trucks in the haulage of reject from Bin 802 to the void.
It was estimated by the defendant, and I accept, that it would have taken them a period of at two to three weeks between this permission being granted to make the necessary arrangements to enable mine trucks to be used on site. The arrangements that were required to be made included sourcing trucks, modification of Bin 802 and its control system, meeting conditions imposed by Macquarie Generation, the development of new procedures, communication with relevant stakeholders, obtaining of insurances and upgrading the haul road.
[74]
The Section 8(2) Charge
Section 8(2) of the Act provided at the time of the incident as follows:
8 Duties of employers
(2) Others at workplace
An employer must ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work.
The elements of the s 8(2) offence were (leaving aside requirements as to "undertaking" and place of work):
1. that a person who was not an employee of the defendant was exposed to a detriment to his or her health or safety (a risk to their health or safety), and
2. that by one or more of the omissions (conduct) charged the defendant failed to take a step or steps which was or were necessary to ensure safety, or which limited the risk to the person concerned without entirely eliminating it, and
3. a causal connection between (a) and (b).
The principles applicable to the proof of a contravention of s 8(2) of the Act may be distilled as follows:
1. As a matter of general principle, s 8(2) (and s 8(1)) of the OHS Act is contravened where there has been a failure, on the part of an employer, to take particular measures to prevent an identifiable risk eventuating: Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1 ("Kirk") at [12] and [13] (per the plurality); Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 ("Bulga") at [111] and [123] (per Bathurst CJ, Hidden and Davies JJ). Thus, the scope of an employer's obligations as to what was necessary to be done in connection with the health, safety and welfare of persons other than employees of that employer (for the purpose of s 8(2)), is dependent upon the presence of identifiable risks and measures which could be taken to address them: Kirk at [19]; Bulga at [113] and Thiess Pty Limited v Industrial Court of New South Wales (2010) 78 NSWLR 94; [2010] NSWCA 252 ("Thiess") at [31] (per Spigelman CJ, with whom Beazley and Basten JJA agreed).
2. Thus, it is necessary for the prosecution to identify the measure which should be taken such that "if a risk was or is present". The prosecutor must prove that a person who was not an employee of the defendant was exposed to a risk to his or her health or safety) by addressing the question - "which action on the part of the employer was or is required to address it?": Kirk at [34]. In The GEO Group Australia Pty Limited t/as Junee Correctional Centre v WorkCover Authority of New South Wales [2012] NSWCA 150 at [15] (per Meagher JA, with whom Beazley and Whealey JJA agreed) explained the correct approach as being:
In relation to such a provision, the act or omission is one which it is alleged should have been taken to obviate an identified risk to a person's health or safety. In the case of an omission, what must be identified is the measure or measures which it is alleged should have been taken: Kirk at [14], [15], [19], [28], [34]; John Holland at [32], [33].
1. The risks to safety to which s 8(1) and (2) of the Act are directed have been variously described as "the potential danger to the health and safety of persons at [the] workplace" (Haynes v CID Manufacturing Pty Ltd (1994) 60 IR 149 at 157), and the relevant "detriment to safety" (McMartin v The Broken Hill Proprietary Company Ltd (1988) 100 IR 241 at 244 and State Rail Authority (NSW) v Dawson (1990) 37 IR 110 at 121). In Thorneloe v Filipowski (2001) 52 NSWLR 60; [2001] NSWCCA 213 (at [143]-[144]), Spigelman CJ (with whom Hulme and Howie JJ agreed) approved the notion of "potential for harm" with respect to ss 15(1) and (2) of the Occupational, Health and Safety Act 1983 (NSW) ("the OHS Act 1983"). In Thiess (at [63] and [67]) Spigelman CJ (with whom Beazley and Basten JJA agreed) found that, on its proper construction (taking into account its ordinary meaning and the context in which it appears), the word "risk" in s 8(2) of the Act referred to the "possibility of danger": see also Inspector Christensen v Abigroup Contractors Pty Limited and Anor (2013) 238 IR 360; [2013] NSWIRComm 111 ("Abigroup") at [316]. In Bulga, it was found that a risk will exist where there is a "possibility of danger" (at [123]).
2. I agree with the defendant that so much is recognised by the Occupational Health and Safety Regulation 2001 (NSW) (cll 5, 11 and 12) and that the guidelines created by the Act are concerned with obviating risks to health or safety and not obviating hazards.
3. A breach of s 8(2) of the Act may occur in consequence of a failure to take a measure which would have been managed or mitigated a risk to the health, safety and welfare of a person not in the employ of the employer, even if the measure does not entirely eliminate risks: Bulga at [118]. However, exposure to risk must be real and not theoretical. (This subject matter will be revisited later in this judgment).
4. It follows that it is not necessary that harm befall an employee or worker for an offence to have been committed: Kirk at [13]. The duty created is directed to obviating risks to safety at the workplace, even absent an actual incident causing injury. The duty is both preventative and remedial in nature: Morrison v Powercoal Pty Ltd (2004) 137 IR 253; [2004] NSWIRComm 297 ("Morrison") at [97(3)] and [97(4)] and WorkCover Authority (NSW) (Inspector Legge) v Coffey Engineering Pty Ltd (No 2) [2001] NSWIRComm 319; (2001) 110 IR 447 ("Coffey Engineering") at [16] approving WorkCover Authority (NSW) v Police Service (NSW) (No 2) [2001] NSWIRComm 90; (2001) 104 IR 268 at [20]; Abigroup at [316]. In Bulga, the Court of Criminal Appal found (at [124]):
The appellant contended that the requirement was to avoid exposure to risk, rather than to prevent an actual occurrence. This may be accepted, however, it does not mean that the section cannot be breached by the failure to take action to prevent a risk, to which an employee was exposed, from crystallising. To reach a contrary conclusion would be to ignore the self-evident fact that the duty will arise in circumstances where there is an exposure to a risk in respect of which preventative measures can be taken.
(see also Hunter Quarries Pty Ltd v Morrison; Badior v Morrison [2017] NSWCCA 326 ("Hunter Quarries") at [69]).
1. Thus, it is wrong, in considering whether a breach has occurred, to reason from the actual incident causing injury "as such an approach may lead to a misunderstanding of the real facts on which a charge is based": Morrison at [97(5)].
2. Where the manner in which a defendant committed the offence is alleged to have consisted in an omission - the omission needs to be proved to have been something the defendant had a duty to do (Director of Public Prosecutions (Cth) v Poniatowska (2011) 244 CLR 408; [2011] HCA 43 ("Poniatowska") at [29] per French CJ, Gummow, Kiefel and Bell JJ). As a majority of the High Court said in Burns v The Queen (2012) 246 CLR 334; [2012] HCA 35 at [97]:
[c]riminal liability does not fasten on the omission to act, save in the case of an omission to do something that a person is under a legal obligation to do.
1. As the plurality of the High Court explained in Kirk, this is consistent with s 28(a). The defence provided by s 28(a) assumes there was a duty with which the defendant had to comply.
2. Having charged breaches of the Act, alleged to have been committed by multifarious omissions, the prosecutor has assumed a burden of proving, beyond reasonable doubt, that each of the measures omitted would have ensured health and safety - that is, would have eliminated or minimised the pleaded risk in the particular case.
3. The last element of the offence, as mentioned earlier, was causation. It is necessary to establish the failure by the employer and that the failure (by act or omission) caused exposure to the identifiable risk to the health, safety and welfare of employees (and non-employees present at the workplace in case of charges brought under s 8(2) of the OHS Act): Morrison at [97(7)], State Transit Authority (NSW) v Guillarte (2003) 123 IR 237; [2003] NSWIRComm 128 at 238 approving WorkCover Authority (NSW) v Kellogg (Aust) Pty Ltd (No 1) (1999) 101 IR 239; [1999] NSWIRComm 453 at 253-254 and Abigroup at [316(8)]. The causal nexus which the Prosecutor is required to prove is between the defendant's act or omission and the risk to the non-employee's safety. The breach of duty occurs where the employer's conduct causes a detriment to safety. Findings of causation are necessarily dependent upon the risk to safety as identified in the charge brought against a defendant.
4. There must be evidence satisfying the Court beyond reasonable doubt that, assuming the state of affairs is a detriment to safety as particularised, relevantly that, on the date charged, first, the defendant failed to take a measure which would have ensured that state of affairs did not exist (that is, eliminated or minimised the risk to which a nominated person was exposed). Secondly, that act and omission of the employer must be a significant or substantial cause of employee being exposed to the risk of injury: Bulga (at [127]) (see also Simpson Design Associates Pty Ltd v Industrial Court (NSW) (2011) 214 IR 373; [2011] NSWCA 316 at [104]-[105]).
5. Both are required to be proved because, as the High Court pointed out in Poniatowska at [44], the requirement of a causal relationship does not necessarily prove that the omission was of something there was a duty to do.
6. As to how the question of causation should be determined, the Court of Appeal stated in Bulga (at [128]-[129]) as follows:
[128] … That question is to be determined by the application of common sense to the facts in question, appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter: Royall v The Queen [1991] HCA 27; 172 CLR 378 at [17] (Mason CJ), [19] (Deane and Dawson JJ), [15], [21] (Toohey and Gaudron JJ).
[129] Further, in considering the issue, regard must be had to the purpose to which the question is directed, which involves considering it in light of the scope and objects of the Act: Allianz Australia Ltd v GSF Australia Pty Ltd [2005] HCA 26; 221 CLR 568 at [41]-[42], [95]-[101]; see also Simpson Design and Associates Pty Ltd v Industrial Court of NSW [2011] NSWCA 316 (Simpson Design) at [79]-[102] and the cases there cited.
1. In The Crown in the Right of the State of New South Wales (Department of Education and Training) v Maurice O'Sullivan (2005) 143 IR 57; [2005] NSWIRComm 198, the Full Bench observed as to causation (at [45]):
Causation has to be viewed in a common sense and practical way. What has to be considered in this case, given the way the charges are framed, is whether the appellant's acts or omissions caused the risk as pleaded in the particular circumstances at a particular time when the employee or employees were exposed to the risk. A risk might be quiescent and the measures in place to prevent exposure to the risk may be adequate but that may change because the acts or omissions of the defendant caused this to be so; the risk to health and safety may increase or become more serious as a consequence of the appellant's acts or omissions.
1. The obligations under the Act required the defendant to be proactive in securing the health, safety and welfare not only of its own employees but other workers engaged at the site. That obligation involved the need to exercise abundant caution, maintain constant vigilance and take all practical precautions to ensure safety at the workplace: WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Ltd (2002) 123 IR 121; [2002] NSWIRComm 316 at [43]; Ridge Consolidated Pty Ltd v WorkCover Authority (NSW) (2002) 115 IR 78; [2002] NSWIRComm 108 at [32]-[33]; WorkCover Authority (NSW) v ATCO Controls Pty Ltd (1998) 82 IR 80 at 85; and Abigroup at [364].
2. As to broader questions of proof, I agree with the defendant that for either charge to be proved the prosecution must, inter alia, satisfy the Court, beyond reasonable doubt, that the elements of each offence have been proved.
3. I agree further in that respect to the observations of the Industrial Court in Abigroup at [100] to [103] as follows:
[101] The principle in Olbrich mirrors that espoused in the House of Lords decision in Woolmington v DPP [1935] A.C. 462 at 481. In that case, Viscount Sankey LC said that the basic rule in the law of evidence that the prosecution bears the burden of proving all the facts grounding the defendant's criminal liability beyond reasonable doubt was the "one golden thread [running through] the English Criminal Law". The approach in Woolmington has been approved by the High Court on numerous occasions including in the authorities of Griffiths v R (1994) 125 ALR 545 per Brennan, Deane, Dawson, Toohey and Gaudron JJ, R v Mullen (1938) 59 CLR 124 and Ryan v R (1967) 121 CLR 205. In Griffiths, in a joint judgment of Brennan, Deane and Gaudron JJ, the Court described the principle in the following manner, at 548:
With respect, the ultimate onus of proving all elements of the offence, including either the voluntary or criminally negligent firing of the fatal bullet, rested upon the Crown and, if the evidence available to the Crown did not discharge the onus, the appellant was entitled to be acquitted. That is the principle clearly laid down in Woolmington v. The Director of Public Prosecutions (9 [1935] UKHL 1; (1935) AC 462, applied to the element of accident under The Criminal Code (Q.) in R. v. Mullen). In Woolmington, a case of homicide by shooting, the appellant had given a version of the confrontation between himself and his wife, the deceased. He said the firing of the gun was an accident in that whilst he was getting the gun from under his shoulder and was drawing it across his breast it accidentally went off (10 (1935) AC at 472). It was in reference to this evidence that the well-known statement was made about the golden thread of English criminal law and Viscount Sankey L.C. said (11 ibid. at 482):
"When dealing with a murder case the Crown must prove (a) death as the result of a voluntary act of the accused and (b) malice of the accused."
His Lordship went on to explain:
"If the jury are either satisfied with (the accused person's) explanation or, upon a review of all the evidence, are left in reasonable doubt whether, even if his explanation be not accepted, the act was unintentional or provoked, the prisoner is entitled to be acquitted." (Emphasis added.)
[102] Woolmington has been more recently endorsed by the High Court in the cases of Lee v New South Wales Crime Commission [2013] HCA 39; (2013) 302 ALR 363 per French CJ, Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ and X7 v Australian Crime Commission and Anor [2013] HCA 29; (2013) 298 ALR 570 per French CJ, Hayne, Crennan, Kiefel and Bell JJ. In Lee, a case about the recovery of proceeds of crime, Kiefel J noted, in that respect, at [174], the following (footnote omitted):
The golden thread of the system of English criminal law is that it is the duty of the prosecution to prove the prisoner's guilt. This is consistent with the presumption of an accused's innocence. It finds expression as a fundamental principle of the common law of Australia.
[103] In X7, a case considering the rights of criminal suspects including the privilege against self-incrimination and the right to silence, French CJ and Crennan J, in a joint judgment, noted, at [46], the following (footnotes omitted):
The abovementioned developments, adopted in Australia, show the interweaving of interrelated rights and immunities into the criminal law, which shaped the accusatorial process of the criminal trial both by way of procedure and in substance. In EPA, consideration was given to the accusatorial nature of a criminal trial and the interrelationship between an accused's right not to give evidence or answer incriminating questions on the one hand, and on the other, the fundamental principle stated in Woolmington v Director of Public Prosecutions: "that the prosecution must prove the guilt of the prisoner is part of the common law ... and no attempt to whittle it down can be entertained".
[75]
The Section 10(2) Charge
Section 10(2) of the Act provided:
10 Duties of controllers of work premises, plant or substances
(2) A person who has control of any plant or substance used by people at work must ensure that the plant or substance is safe and without risks to health when properly used.
Many of the principles discussed above are applicable to an offence under s 10(2) of the Act, particularly those concerning risk and the need to prove a causal nexus.
In WorkCover Authority (NSW) (Inspector Wolf) v Rockdale Beef Pty Ltd (2006) 155 IR 366; [2006] NSWIRComm 280 ("Rockdale Beef No 1") at [160], a Full Bench of the Industrial Court of NSW found that to establish an offence against s 10(2), the prosecutor must prove the following elements:
1. A person has control of any plant or substance;
2. The plant or substance is used by persons at work;
3. There has been a failure by the person in control of the plant or substance to ensure that the plant or substance was safe and without risks to health; and,
4. The failure in (3) occurs in circumstances where the plant or substance is not properly used.
That authority was qualified by a judgment of the NSW Court of Appeal in Rockdale Beef Pty Ltd v Industrial Court of NSW (2007) 165 IR 7; [2007] NSWCA 128 ("Rockdale Beef No 2") at [25] (per Spigelman CJ) and [125] (per Basten JA, with whom Mason P agreed). However, that qualification did not contradict the above four elements per se, but rather found a requirement for proof of an additional element that plant was controlled in the course of trade, business or undertaking by the defendant.
The defendant submitted correctly, in my view, that the Full Bench intended, having regard to the provisions of s 10(2), the fourth element to operate "in circumstances where the plant or substance is properly used (in contrast to "is not" properly used).
The defendant alluded to the judgment of the Industrial Court in WorkCover Authority (NSW) (Inspector Mulder) v Arbor Products International (Aust) Pty Ltd (2001) 105 IR 81; [2001] NSWIRComm 50 ("Arbor"), where the majority essentially found, with respect to an offence against s 18(2)(a) of the Occupational Health and Safety Act 1983 (a supply charge), the fourth element as stipulated in Rockdale Beef No 1 was not an element of that offence but rather provided a defence to the charge (see Arbor at [36] and [43]). The majority held (at [43]) that the phrase "when used properly" was a qualification "intended to limit liability of a supplier where the plant which is supplied safe (in the sense that the safety is ensured) but such plant becomes unsafe because of misuse… It was plainly not the intention of the legislation to allow, by the use of the phrase, a limitation in the obligations under the sub-section where the defendant had, for example, … provided training for employees in the proper use of the plant at work where the plant was unsafe". It was reasoned that "A supplier could simply argue on a prosecution that, notwithstanding the plant supplied was inherently unsafe, an instruction manual was issued on how to properly use the plant and, consequently, no liability arose".
The majority held in Arbor that the machine was "inherently unsafe" (see [44]).
The prosecutor submitted that this is not the occasion to revisit Arbor (the defendant pointed out the Full Bench of the Industrial Court had previously refused leave to reconsider Arbor with respect to s 18(1) in National Hire Pty Ltd v Howard (2003) 126 IR 240; [2003] NSWIRComm 144 but that decision concerned the operation of s 18(1) of the OHS Act 1983).
It appears to me the construction of s 10(2) in Rockdale Beef No 1 was correct, although it is unnecessary to finally resolve the question within this matter. Further, the intention of the legislature must be deduced from the words of the sub-section and all words must be given work to do. It may be noted that, if the plant was safe, then no offence could have been committed, irrespective of how the plant was used.
[76]
Statutory Defences
The defendant raised defences with respect to the respective particulars of the charges pursuant to s 28(a) of the OHS Act.
The provisions of s 28, which applied at the time of the incident, were as follows:
28 Defence
It is a defence to any proceedings against a person for an offence against a provision of this Act or the regulations if the person proves that:
(a) it was not reasonably practicable for the person to comply with the provision, 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.
Before turning to some judicial authority dealing with the meaning of "reasonably practicable" (albeit in a variety of different contexts dealing with obligations by employees under occupational health and safety law) it is important to return to the judgment of the plurality in Kirk concerning defences available under a statutory regime which were the counterpart of the legislation here under consideration (see ss 16(1) and 53 of the OHS Act 1983). (That is, the reasonable practicability required does not form part of the offence).
The following principles may be extrapolated from that judgment relevant in the present statutory context:
1. The Act stands apart from other occupational health and safety legislation in Australia where an employer's obligation to take measures for the health and safety of employees and non-employees is "limited to the taking of such measures as were practicable" (at [16]).
2. The duties under s 8(1) and (2) cannot remain absolute when a defence under s 28 is invoked. The defence allows that not all measures which may have been guaranteed against the risk in question eventuating have to be taken. The "measures which must be taken are those which are reasonably practicable" (at [18]).
3. Where reliance is placed upon s 28(a), it is necessary for the employer to satisfy the Court, to the civil standard of proof, that it was not reasonably practicable to take the measure in question (at [16]).
4. Given the statute required that what was necessary to be done in connection with the health and safety of employees and others depended upon the presence of identifiable risks and measures which could be taken to address them, the question as to what was or was not reasonably practicable for an employer to have undertaken must be directed to the measure alleged with respect to acts or omissions by the employer (at [19]).
5. The obligation falling upon an employer under the Act is to ensure the health, safety and welfare of employees and non-employees at work. It is not the standard recognised by the common law to take reasonable care "It is higher…". The exclusion of the common law standard is confirmed by the terms of the defences (under s 28(a)) (at [10]). Those standards should not be implied into the duties under the Act because the Act "delineates the obligations of employers by the terms of the defences provided in s [28]" (at [18]).
6. Whilst the term "reasonably practicable" is not defined, "it may often involve a common sense assessment" (at [18]) and see Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 at 260).
The assessment as to whether a specified measure is reasonably practicable involves a value judgment: Morrison at [84] (per Spigelman CJ with whom Mason P and Handley JA agreed). The test is an objective one: Shannon v Comalco Aluminium (1986) 19 IR 358 at 362. The knowledge or belief of the defendant (or absence thereof) is relevant but not determinative: WorkCover (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd (2001) 110 IR 182; [2001] NSWIRComm 278 ("Cleary Bros") at [80].
The defendant placed reliance upon Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304; [2001] HCA 6 ("Slivak"). In that matter, the High Court considered the words "so far as reasonably practicable" for the purposes of s 24(1)(a) of the SA Act (it might be noted that attention was also given to s 24(2a)(a) which the Court found was "appendant" to s 24(1)(a) (see at [27])).
Slivak concerned the liability of a designer in circumstances where the duty imposed by those provisions was that the designer of any structure to be erected in the course of work must ensure, so far as reasonably practicable, that the structure was designed so that persons who were required to erect it were safe from injury and risk to health.
The majority in Slivak (Gleeson CJ, Gummow and Hayne JJ) expressed the following view as to the meaning of the expression "so far as reasonably practicable" (at [37]):
The ordinary and natural meaning of the terms in par (a) of s 24(2a) is that they apply to a structure being built in accordance with the design. Thus, if, as designed, parts of a structure are incapable of bearing weight that the structure is intended to bear, or if, as designed, it is possible for parts of the structure to fall or break, or if the design is incapable of being built safely having regard to features of the location in which it is being built, then the design will be inadequate and the designer will have breached s 24(2a). The appellants stressed the presence of the term "must ensure". However, the requirement is one of ensuring safety "so far as is reasonably practicable". The requirement applies to matters which are within the power of the designer to perform or check, such as ascertaining what use the structure will be put to, what loads it will experience when being built and the nature of the location in which it is to be erected. This is in contrast to the matters that would be forced within the ambit of this requirement were the submissions for the appellants accepted; for then a designer would be required to take account of factors outside the power of the designer to control, supervise or manage, such as the procedures to be adopted during construction.
Gaudron J was in the minority in Slivak but her opinion as to the meaning of that expression is often quoted in decisions on that subject. Her Honour stated at [53] as follows:
The words "reasonably practicable" have, somewhat surprisingly, been the subject of much judicial consideration. It is surprising because the words "reasonably practicable" are ordinary words bearing their ordinary meaning. And the question whether a measure is or is not reasonably practicable is one which requires no more than the making of a value judgment in the light of all the facts. Nevertheless, three general propositions are to be discerned from the decided cases:
• the phrase "reasonably practicable" means something narrower than "physically possible" or "feasible";
• what is "reasonably practicable" is to be judged on the basis of what was known at the relevant time;
• to determine what is "reasonably practicable" it is necessary to balance the likelihood of the risk occurring against the cost, time and trouble necessary to avert that risk.
[Footnotes omitted.]
The second bullet point proposition was supported by three authorities: Edwards v National Coal Board [1949] 1 KB 704 ("National Coal Board") at 712 (per Asquith LJ); Marshall v Gotham Co Ltd [1954] AC 360 ("Marshall v Gotham") at 370 (per Lord Oaksey) and 377 (per Lord Keith of Avonholm); and Buchanans Foundry Ltd v Department of Labour [1996] 3 NZLR 112 ("Buchanans Foundry") at 118 (per Hansen J).
The National Coal Board concerned an action for damages pursuant to, inter alia, s 49 of the Coal Mines Act 1911 for breach of a statutory duty by the owners and occupiers of a mine to make the side of a travelling road secure. A defence was available under s 102(8) of that Act which provided that the owners of a mine shall not be liable for damages for a breach of a statutory duty if it was shown that it was not reasonably practicable to avoid or prove the breach.
A colliery timber man, while walking along a travelling road in a South Wales coal mine in the course of his duties, was killed by the fall of a considerable proportion of the side of the road.
In the proceedings below, the trial judge accepted the submissions of the defendant that, with respect to the statutory duty, it was not reasonably practicable for the defendant to deal with the eventualities by propping up and lining through the roads of their mines and that he was not satisfied on the evidence that there was any special reason why they should prop or line at the spot where the accident had occurred.
That judgment was reversed by the Court of Appeal. It is the judgment of Asquith LJ which is often referred to in the context of defences available under occupational health and safety laws and which was the subject of reference of citation by Gaudron J in Slivak. However, I propose to first turn to the judgment of Tucker LJ.
Tucker LJ stated (at 709-710):
It is contended by the defendants that it was not reasonably practicable for them to do so because there was nothing to indicate the existence of this latent defect, and that to expect them to prop and/or line every road in every mine would be to impose on them an altogether impossible burden. They concede that if any travelling road is known to be insecure, or if there is reasonable ground to fear insecurity, then they cannot escape the consequences of failure to make it secure, save possibly in very exceptional circumstances. In short, it is not reasonably practicable to prop or line every roadway, including those which are in fact perfectly safe, in case somewhere there may be some unknown and unascertainable defects. On the other hand, counsel for the plaintiff argues that nothing short of some external interference by some unauthorized third person, or some occurrence which could not reasonably be anticipated, can excuse the breach of the absolute duty. He says that matters which are within the control of the mine-owner, such as cost, inconvenience and loss of profits, are irrelevant. Alternatively, he submits that if such matters as cost, labour and materials can be considered, the court can only look at the particular roadway in which the accident happened, and that the defendants have given no evidence on this point sufficient to discharge the onus that lay upon them.
I cannot accept the submissions of either side in their entirety. The defendants' contention appears to me to leave the miner no better off than he was at common law. In effect, it makes the taking of reasonable care the sole test. On the other hand, though no doubt it is necessary to look primarily at the particular part of the particular mine with which the court is concerned, it is, in my opinion, necessary and proper to view it in relation to the totality of obligations resting on the mine-owner. For example, vesting day having been January 1, 1947, and an accident taking place the following November, due to the insecurity of the sides or roof of a travelling road, it would, I think, be permissible for the National Coal Board to lead evidence that it had a scheme or plan for rendering all such roads secure, that certain areas had priority, and that it was not reasonably practicable for them to have carried out the remedial work at the particular by the time of the accident. Again, they might prove that in some areas no propping or lining was necessary, for some particular reason, or that different methods were required in some localities. Dealing with the particular latent defect which caused this accident - a glassy slant- it might perhaps have been possible to show that they are more common in some formations and areas than others, or that they are non-existent in some places. I know not. But this is the kind of evidence which, in my opinion, would have been relevant.
His Lordship found (at 711):
I do not therefore think the defendants got any distance towards proving that security was not reasonably practicable from the viewpoint of the totality of the Board's obligations. So far as the situation falls to be considered solely from the local angle, the evidence of the defendants' officials on the spot shows that they had never even applied their minds to the point until questioned in court…
Although the learned judge has found that the fall was not due to subsidence or shot firing, it is the fact that weaknesses had appeared at places from time to time in the sides of this road, and they had been timbered up as they appeared. Furthermore, there was undisputed evidence that glassy slants had been seen in this roadway, though they were rare. The road had only been in existence for some seven years. In truth and in fact the defendants' officials never applied their minds to their absolute obligation under s. 49; they were content to rely on the system of inspections, and on the observance of the ordinary and usual precautions.
Asquith LJ agreed with those observations and made the following additional findings as follows (at 712-713):
The onus was on the defendants to establish that it was not reasonably practicable in this case for them to have prevented a breach of s. 49. The construction placed by Lord Atkin on the words "reasonably practicable" in Coltness Iron Co. v. Sharp seems to me, with respect, right. "Reasonably practicable" is a narrower term than "physically possible" and seems to me to imply that a computation must be made by the owner, in which the quantum of risk is placed on one scale and the sacrifice involved in the measures necessary for averting the risk (whether in money, time or trouble) is placed in the other; and that if it be shown that there is a gross disproportion between them - the risk being insignificant in relation to the sacrifice - the defendants discharge the onus on them. Moreover, this computation falls to be made by the owner at a point of time anterior to the accident. The questions he has to answer are: (a) What measures are necessary and sufficient to prevent any breach of s. 49? (b) Are these measures reasonably practicable? In the particular type of accident caused by a "glassy slant" it is admittedly impossible before the event to foresee at all, at what place or in what roadway or in what mine, such an accident would occur. The argument that the owners could and should have made secure the particular roadway in which, as things fell out, the glassy slant declared its presence, without having to make secure every other roadway in which it might have done so, assumes that the owners could by some process of divination, have predicted that the accident was likely to occur in the particular roadway in which it did, rather than elsewhere. But an owner who is not gifted with second sight can make no such prediction; and without it, security against this peril can only be secured by extending similar security measures to all roadways. Only so can he prevent breaches of s. 49 due to glassy slants.
So far, I am inclined to agree with the learned judge. But, like my Lord, I do not think any or any sufficient evidence was adduced as to the relative quantum of risk and sacrifice involved, on the basis either that the mines as a whole, or this particular roadway, should be taken as the unit - a necessary prerequisite to any decision that the defendants have proved the necessary measures impracticable.
In Marshall v Gotham, the House of Lords considered that the respondent company was not guilty of the breach of statutory duty because the death of an employee due to fall of the roof in a gypsum mine was not caused by any failure by the respondent company to take "reasonably practicable" steps to secure the roof. The Court found the duty was imposed by regulation 7(3) of the Metalliferous Mines General Regulations 1938 which required that the roof and sides of every travelling road and working place be made secure and that the duty was fulfilled if "everything had been done" which was "reasonably practicable" to do to make them secure.
The fall of the roof in a gypsum mine was caused by "slickenside" which was a rare geological fault due to air getting into the roof and causing it to fall. The ordinary means of testing for soundness of the mine roof did not detect "slickenside".
Lord Oaksey made the following observations as to the question of reasonable practicability in that context as follows (at 370):
I agree with what Jenkins LJ said: "To my mind that which is 'reasonably practicable' in this context is no more nor less than what is capable of being done to make roofs and sides secure within the limits of what it is reasonable to do; and it cannot be reasonable to do for this purpose anything more than that which it appears necessary and sufficient to do according to the best assessment of what is necessary and sufficient that can be made at the relevant time, that is, in the present instance a point of time immediately prior to the accident."
Buchanans Foundry concerned an appeal from a conviction pursuant to s 55(a) and (d) of the Health and Safety in Employment Act 1992 (NZ) for a failure to comply with s 6 of that Act in so far as the appellant corporation failed to take all practicable steps to ensure all employees near its furnace were wearing adequate protective clothing. The Act required the employer to take all reasonable steps to guard against potential hazards. Section 2 of that Act contained a definition of "all practicable steps" which incorporated, inter alia, all steps to achieve the result that it was reasonably practicable to take in the circumstances having regard to various factors. The passage referred to by Gaudron J in Slivak concerned the observations of Hansen J of the High Court of New Zealand as follows (at 118):
In determining whether or not the appellant took all practicable steps, the matter must not be judged with the benefit of hindsight. It must be judged on the basis of what was known at the relevant time. As Asquith LJ stated in Edwards v National Coal Board (supra) at p 712:
"Moreover, this computation falls to be made by the owner at a point of time anterior to the accident."
Reference might also be made to the following observations (at 119):
The requirement to take all reasonably practicable steps is not a counsel of hindsight perfection. It involves, as noted earlier, considerations of "due diligence", "a total absence of fault", of doing what a "reasonable man" would have done under the circumstances, or acting with "all reasonable care".
The defendant also placed reliance upon the judgment of Murphy JA in Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 ("Kirwin"). Kirwin concerned appeals from a decision of Murray J of the Supreme Court of Western Australia setting aside acquittals and entering judgments of conviction with respect to two charges of failing to provide and maintain a working environment in which the employees of the employer were alleged to be exposed to hazards contrary to s 19(1) of the Occupational Safety and Health Act 1984 (WA) ("the OHS WA Act"). The charges concerned injury to certain workers at a rail campsite during the passage of cyclone George across the Pilbara coast in March 2007.
Section 19 of the OHS WA Act provided that, inter alia, an employer shall, so far as practicable, maintain a working environment in which the employees of the employer are not exposed to hazards.
Murphy JA (with whom Martin CJ and Mazza JA agreed) stated the duty was not an absolute one because s 19(1) qualifies by the words "so far as practicable". At [31], his Honour made the following observations regarding the expression "reasonably practicable":
[31] It follows from the definition of "practicable" that the obligation imposed on an employer by s 19(1) is an obligation to provide and maintain a working environment in which its employees are not exposed to hazards only so far as is reasonably practicable. The words "reasonably practicable" are ordinary words, bearing their ordinary meaning and simply call for the making of a value judgment in light of all the facts: Slivak v Lurgi (Aust) Pty Ltd [2001] HCA 6 ; (2001) 205 CLR 304 at 322 (Gaudron J). Hindsight may mislead. As Harper J said in Holmes v RE Spence & Co Pty Ltd (1992) 5 VIR 119 at 123-124, in relation to the equivalent provision in the Victorian legislation:
The Act does not require employers to ensure that accidents never happen. It requires them to take such steps as are practicable to provide and maintain a safe working environment. The courts will best assist the attainment of this end by looking at the facts of each case as practical people would look at them: not with the benefit of hindsight, nor with the wisdom of Solomon, but nevertheless remembering that one of the chief responsibilities of all employers is the safety of those who work for them.
Murphy JA made further observations at [34]-[35]:
[34] The word "risk" appears in the definition of "practicable" in paras (a) and (b)(ii) and (iii). In s 3 of the Act "risk" is defined to mean the "probability" of the relevant injury or harm occurring, which means no more than the "likelihood" of the injury or harm occurring: Hamersley Iron Pty Ltd v Robertson at (18). This will require some consideration of the question of foreseeability: Chugg v Pacific Dunlop Ltd Hamersley Iron Pty Ltd v Robertson at (18). That, in turn, involves consideration of whether it is shown that the employer knew, or that a reasonable employer in the position of the employer would have appreciated or foreseen the risk of the injury or harm to health occurring: Wylie v South Metropolitan College of TAFE Reilly v Devcon Silent Vector Pty Ltd v Shepherd at [11]-[12].
[35] In some cases, the duty to, so far as is practicable, maintain a safe workplace may involve a consideration of matters which are beyond the employer's own area of expertise. Although the employer's duty remains unaltered, the employer's lack of direct control over such matters may affect its knowledge and, in consequence, the question of what was "reasonably practicable" in the circumstances.
His Honour also made some observations about hindsight and the notion of the inquiry to be undertaken in the statutory context under consideration (at [69]-[70]):
[69] As the magistrate found, the prosecution did not point to any particular evidence which indicated a reason for the appellant to undertake its own inquiries and investigations, and the evidence was "all the other way" (89). The evidence relied on by the prosecution to the effect that the donga accommodation was unsuitable only emerged with the benefit of hindsight.
[70] Accordingly, in my respectful opinion, his Honour erred in finding that it was proved beyond reasonable doubt, when viewed prospectively rather than retrospectively, that in having procedures for dealing with cyclones involving colour-coded alerts and taking refuge in shire-approved accommodation, the appellant had not, so far as reasonably practicable, provided a working environment in which its employees were not exposed to hazards created by cyclonic weather conditions. I would uphold ground 1.
Reliance was also placed by the defendant upon the approach in civil courts. References was made to the judgment of Hayne J in Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62 at [124]-[128], a matter concerning whether a local council had breached a duty of care by failing to erect warning signs about the risks of diving into a water hold, and the judgment of Mason P (Tobias JA agreeing) in Coca Cola Amatil (NSW) Pty Ltd v Pareezer & Ors [2006] NSWCA 45 at [3]. Great care needs to be taken in the application simplicitor of judgments concerning a duty of care at common law in the light of the observations of the High Court in Kirk.
Reliance was placed by both parties on the decision of the Industrial Court in Cleary Bros. In that judgment attention was drawn to two English authorities referred to by Gaudron J in Slivak, namely, the earlier discussed National Coal Board and Austin Rover Ltd v Inspector of Factories [1990] 1 AC 619 ("Austin"). The passage of Cleary Bros dealing with Austin was as follows:
[82] ... In Austin Rover Ltd v Inspector of Factories [1990] 1 AC 619, for example, Lord Goff of Chieveley referred to Edwards v National Coal Board as well as the subsequent decision in Marshall v Gotham Co Ltd [1954] AC 360. His Lordship stated (at 625):
I turn next to the second expression in section 4(2) of the Act of 1974 which I have segregated - "so far as is reasonably practicable." These words have received authoritative interpretation in previous cases. It is now established that, in cases concerned with a statutory duty which is qualified by those words, the risk of accident has to be weighed against the measures necessary to eliminate the risk, including the cost involved. If, for example, the defendant established that the risk is small, but that the measures necessary to eliminate it are great, he may be held to be exonerated from taking steps to eliminate the risk of the ground that it was not reasonably practicable for him to do so.
Austin concerned, inter alia, the construction of s 4(2) of the Health and Safety at Work Act 1974 (Vic). Section 4(2) created, inter alia, a duty upon a person with relevant control of premises to "take measure as it is reasonable for a person in his position to take to ensure, so far is reasonably practicable, that the premises is safe and without risks to health". Like Slivak, National Coal Board, Buchanans Foundry and Kirwin, the measures "the employer" is required to take were limited to taking such measures as were practicable.
Lord Goff also observed (at 627):
Subject to the limited qualification embodied in the phrase 'so far as is reasonably practicable', it seems to me that the duty imposed on the defendant to ensure that the relevant premises are safe and without risk to health for any use for which they are made available is prima facie absolute. In other words, the complainant has only to prove that the defendant has failed to ensure (so far as he can reasonably do so, having regard to the extent of his control) that the relevant premises are safe and without risks to health in the sense I have described: the onus then passes to the defendant to prove, if he can, that it was not reasonably practicable for him to eliminate the relevant risk. It is at this stage that reasonable foreseeability becomes relevant, in the sense that there has to be an assessment of the likelihood of the incidence of risk. I wish to add that this reading of s 4(2) renders it, in my opinion, consistent with the general duties imposed under the immediately preceding ss 2 and 3 of the Act (concerned respectively with general duties of employers to their employees, and general duties of employers and self-employed to persons other than their employees), and the immediately succeeding ss 5 and 6 (concerned with general duties of persons in control of certain premises in relation to harmful emissions into the atmosphere, and general duties of manufacturers and others as regards articles and substances for use at work). This I regard as significant. The duty under s 4 is concerned only with non-domestic premises made available to persons as a place of work, and the duty is imposed only on a person who has to any extent control of the premises 'in connection with the carrying on by him of a trade, business or other undertaking (whether for profit or not)' (see s 4(4)). In these circumstances, there is no discernible reason why, as a matter of policy, any less heavy a duty should be imposed under s 4 than is imposed under the other sections.
Lord Jauncey observed (at 635):
In my view, it was to deal with such a situation as I have exemplified that the middle words were included in s 4(2). These words require consideration to be given not only to the extent to which the individual in question has control of the premises, but also to his knowledge and reasonable foresight at all material times.
Further, his Lordship stated (at 636):
I would stress that in the middle words 'reasonable' relates to the person and not to the measures. The question is not whether there are measures, which themselves are reasonable which could be taken to ensure safety and the absence of risk to health but whether it is reasonable for a person in the position of the accused to take measures with these aims. The emphasis is on the position of the accused. Thus while only one yardstick determines whether premises are safe at any one time the measures to ensure the safety required of each person having a degree of control may vary. Approaching the matter in this way, content may be given to the words 'so far as reasonably practicable'. It could, having regard to his degree of control and knowledge of likely use, be reasonable for an individual to take a measure to ensure the safety of premises, but it might not be reasonably practicable for him to do so having regard to the very low degree of risk involved and the very high cost of taking the measure.
However, it was [87] and [88] of Cleary Bros (particularly as to the issue of foreseeability) which received particular attention in the proceedings (the defendant relied upon the authority expressly and the prosecutor expressed no demur from the judgment). As the defendant contended, that judgment has been approved or applied in a number of judgments of the Full Bench of the Industrial Court and is otherwise consistent with authority: see Coffey Engineering at 467; Genner Constructions Pty Ltd v WorkCover Authority (NSW) (Inspector Guillarte) [2001] NSWIRComm 267; (2001) 110 IR 57 at [68]; Morrison v Coal Operations Australia Ltd [2004] NSWIRComm 239; 137 IR 375 at [128]-[129]; St Hilliers Contracting Pty Ltd v WorkCover Authority (NSW) (FB) at [26]-[27]; Dinko Tuna Farmers Pty Ltd v Markos [2007] SAFC 166; 98 SASR 96 at [44] (per Gray J with whom Layton and Kelly JJ agreed).
In that light, I propose to set out those paragraphs followed by the authorities applying or following the same, which have not already been extracted within this judgment:
[87] It is evident from these authorities that what is required by s53(a) of the Act is a balancing of the nature, likelihood and gravity of the risk to safety occasioning the offence with the costs, difficulty and trouble necessary to avert the risk. At one end of the scale, it could not be reasonably practicable to take precautions against a danger which could not have been know to be in existence: see Jayne v National Coal Board [1963] 3 All ER 220 at 224 and Shannon v Comalco Aluminium Ltd at 362. Similarly, if the happening of an event is not reasonably foreseeable then it will not generally be reasonably practicable to make provision against that event: see WorkCover Authority of NSW (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 at 381; WorkCover Authority of NSW v Kellogg (Aust) Pty Ltd at 259 and Austin Rover Ltd v Inspector of Factories at 627 per Lord Goff and at 635 - 636 per Lord Jauncey of Tullichettle.
[88] At the other end of the scale, there will be cases, such as the present, in which known or obvious risks to safety exist. In these circumstances, the defendant will not have established a defence under s53(a) of the Act where it was reasonably practicable to have complied with the Act by ensuring that persons were not exposed to those risks. This may be the case because no measures were reasonably available or because measures which were available were not reasonably practicable. As has been discussed, the assessment of the reasonable practicability of those steps requires a balancing of the quantum of the risk with the sacrifice (in money, time and trouble) in adopting the measures necessary to avert the risk. In my view, where there is a known risk which entails the potential for serious injury to persons in the workplace, the defendant will generally have to demonstrate that the costs, difficulty or trouble occasioned by the measures significantly outweigh the risk. This must be done by reference to the charge as brought by the prosecutor.
Reference was also made to Cleary Bros at [80] in which the following was stated:
[80] The first observation which may be made in relation to this defence is that s 53(a) of the Act provides for an objective test as to whether it was reasonably practicable for the defendant to have complied with the Act: see Shannon v Comalco Aluminium Ltd (1986) 19 IR 358 at 362. An objective determination must be made as to what measures were reasonably practicable in the circumstances of the case. This determination is not restricted to the state of knowledge of the defendant or to the measures, if any, which the defendant had contemplated.
Whilst not endeavouring to summarise the entirety of the defendant's submission, in this respect, two passages of the written submission most closely describe its contentions. They are as follows:
[52] The question is, therefore: taking into account what was known at the time, would, immediately beforehand, an ordinary, reasonable colliery operator in the position of the Defendant have foreseen the risk - or, more accurately, that the risk was not controlled? Evidence of whether individuals in fact foresaw the risk (rather, that it was not controlled) is relevant to whether the risk (rather, the fact that it was not controlled) was objectively foreseeable. Evidence of the length of time or the number of cycles of machinery which had occurred without the risk materialising is also relevant to whether the risk (rather, the fact that it was not controlled) was objectively foreseeable.
[54] One important feature of the exercise of deciding whether the Defendant has proved on the balance of probabilities that it was not reasonably practicable to have done what the Prosecutor alleges it failed to do and should have done is that the inquiry is prospective, not retrospective. The judgment is not made with the benefit of hindsight.
Having regard to the foregoing discussion, I accept that submission so long as it is understood as operating in relation to the following principles:
1. It is for the defendant to satisfy the Court to the civil standard (Kirk at [11]) that it was not possible for a person to comply with the provision, in this case s 8(2) (see Hunter Quarries at [71]).
2. The obligation falling upon the employer under the Act is to ensure the health and safety of, in this case, non-employees at work. The defences do not import common law tests of a duty of care, but delimit that obligation by allowing that not all measures which may have been guaranteed against the risks eventuating may not be taken. The measures which must be taken are those that are reasonable practicable.
3. Foreseeability in the context of a defence under s 28(a) is not the foreseeability of a particular chain of cause and effect involved in the happening of an accident but foreseeability of the particularised risk.
4. The consideration of reasonable practicability should not be undertaken with the benefit of hindsight. Nonetheless, as Harper J observed in Holmes v RE Spence & Co Pty Ltd (1992) 5 VIR 119 at 123-124, it must be remembered that the responsibility of the employer concerns the safety of employees and employers must be vigilant and proactive to discharge that duty. That obligation is both preventative and remedial in nature.
[77]
The Role of Contractors
The defendant placed reliance upon the decision of the High Court in Baiada Poultry Pty Ltd v R (2012) 246 CLR 92; [2012] HCA 14 ("Baiada") to submit that its reliance on expert contractors was relevant to whether compliance with the duty under s 8(2) was or was not reasonably practicable. The prosecutor submitted that, first, the defendant could obtain no assistance from Baiada because, in that matter, the prosecution had the onus of proving that the measures pleaded were reasonably practicable as an element of the offence and, secondly, the judgment may be distinguished from the situations pertained in the present matter. In that latter respect it was submitted that the ratio in Baiada did not insulate the defendant from liability in circumstances where the key documents which purported to control risks and were identified for the safe operation of the works (and which are part of the health and safety system of the works) were on their face inadequate.
I will return to the latter submission of the prosecutor in due course. In the present context it is sufficient to observe that I do not accept the first proposition advanced by the prosecutor.
True it is Baiada determined, inter alia, an offence under s 21 of the Occupational Health and Safety Act 2004 (Vic) which did place an onus of proof on the prosecutor to make out the measures pleaded were reasonably practicable as an element of the offence. However, it does not follow that the decision of the Court did not provide guidance as to the applicability of that offence in the present statutory context as the Court was concerned with whether reliance upon contractors, albeit in the context of considering the element of the offence, was relevant to reasonable practicability. This is illustrated by the judgment of the plurality at [33] as follows:
[33] As the reasons of the majority in the Court of Appeal reveal by their reference to Baiada checking compliance with directions it gave to DMP and Azzopardi Haulage, the question presented by the statutory duty "so far as is reasonably practicable" to provide and maintain a safe working environment could not be determined by reference only to Baiada having a legal right to issue instructions to its subcontractors. Showing that Baiada had the legal right to issue instructions showed only that it was possible for Baiada to take that step. It did not show that this was a step that was reasonably practicable to achieve the relevant result of providing and maintaining a safe working environment. That question required consideration not only of what steps Baiada could have taken to secure compliance but also, and critically, whether Baiada's obligation "so far as is reasonably practicable" to provide and maintain a safe working environment obliged it: (a) to give safety instructions to its (apparently skilled and experienced) subcontractors; (b) to check whether its instructions were followed; (c) to take some step to require compliance with its instructions; or (d) to do some combination of these things or even something altogether different. These were questions which the jury would have had to decide in light of all of the evidence that had been given at trial about how the work of catching, caging, loading and transporting the chickens was done.
One consideration was whether or not the contracting company had skills or specialist knowledge that was equal or superior to that of the independent contractors providing expert advice: see plurality at [37] and Heydon J at [66].
The defendant also relied upon the judgment of Hall J in Kirwin v The Pilbara Infrastructure Pty Ltd [2012] WASC 99 ("Pilbara Infrastructure"). This matter concerned another decision arising from the effects of Cyclone George on people sheltering in work camp dongas in the Pilbara in March 2007. Hall J heard an appeal from a decision of a Magistrate dismissing a charge of failing to provide and maintain, so far as practicable, the working environment in which employees were not exposed to hazards. Again, practicability of the specified measures was an element of the offence.
His Honour considered the liability of employers who had contracted with a specialist subcontractor for the design and construction of work camp dongas intended to protect from the forces of a tropical cyclone. The subcontractor chosen, NT Link, had experience in the field and was required to ensure the camps were designed and built competently and in accordance with all relevant standards (Pilbara Infrastructure at [30]). After the cyclone an investigation found that the dongas and the means by which they were anchored to the ground did not meet relevant standards. Nor were the dongas designed and built to withstand winds specified in design standards for the region (Pilbara Infrastructure at [3]).
The defendant referred to Hall J's reliance upon the judgment of Steytler J in Hammersley Iron Pty Ltd v Robertson (unreported, WASC library No 980573, 2 October 1998) where observations were made that, where an employer had relied upon a specialist contractor to perform a task which demonstrably fell within the contractors area of expertise and outside that of the employer, it would not ordinarily be practicable for the employer to do more, provided that the task undertaken reasonably appeared to the employer to have been carefully and safely performed by the contractor. However, those observations come in the context of the reasonable practicability forming part of the offence.
What is also significant in the present context are his Honour's observations (at [102]) (relevant citation and authority omitted) as follows:
[102] This does not mean that an employer or principal faced with a task that is beyond its area of expertise can, by contracting out the work to another, relieve itself of any responsibility under the Act to ensure the safety of its workers. The duty to ensure the safety of workers remains a personal one. In such circumstances the employer or principal continues to have a duty to take all reasonable precautions to avoid risks to the safety of workers but can sufficiently discharge that duty by ensuring that relevant expertise is brought to bear on the task. What is required in any particular case would depend upon the facts of the case.
Hall J observed that the employer might discharge its obligations by ensuring that appropriately experienced and qualified persons were obtained to deal with the matters beyond the employers own knowledge and ability.
Bearing in mind Hall J's observations that what is required will depend on the facts and circumstances of a particular case, his following observations are relevant in the present context where a defence of reasonable practicability is raised (Pilbara Infrastructure at [155] and [159]):
[155] The respondents sought to retain appropriately qualified and experienced builders to construct the camp who would either undertake themselves, or sub-contract to appropriate experts, the necessary design work. This was not a case where the respondents merely sought to contract out of any responsibilities in respect of the building. They had a duty to ensure that the entity that they engaged was competent and experienced and would construct the camp according to appropriate specifications. They did this by engaging NT Link in the circumstances I have earlier described.
…
[159] The issue of design and of ensuring that the accommodation units were checked by appropriately qualified engineers were matters that the magistrate was satisfied were taken into account when the respondents engaged NT Link. The fact that NT Link did not do what the respondents expected them to does not lead to a conclusion that the respondents failed in their duty. Indeed, the magistrate's conclusion that no such failure of duty had been established to the requisite standard was plainly open on the evidence. Accordingly, this ground of appeal cannot succeed.
[78]
CHALLENGE TO VALIDITY OF PARTICULARS AND OUT OF TIME CONTENTIONS
[79]
Contentions as to failure of certain particulars
In reliance upon the judgment in Kirk, the defendant contended that the prosecutor had failed to provide particulars of the omitted measures in some of the paragraphs appearing under the sub-heading "What the defendant should have done" under the heading "Particulars" of the s 8(2) charge and a particular of the s 10(2) charge. The prosecutor had not, it was contended, identified in those respects a failure, by act or omission, to take specified measures necessary to perform or fulfil the statutory duties under Pt 2 of the Act. The gravamen of the complaint was "that the defendant cannot be convicted on a particular which fails to provide the defendant itself with the information it needs as to the conduct in which it failed to engage where it is an omission that is alleged so as to enable the defendant to make its defence to that charge in that respect".
In the defendant's primary written submission this complaint was expressed in a quite specific way. It was contended that the prosecutor had provided particulars that the defendant was required to ensure an outcome rather than providing, as it was required to do, particulars of the measure required to be taken by the defendant. It was contended that particulars of a failure to ensure an outcome provided no particulars of what the actions are that are required to achieve the outcome. It was submitted "those acts or omissions must be in respect to specified measures, the outcomes to which a measure may or may not contribute". Further, it was submitted that "the end to a means, the outcome, is not the means itself".
By reference to the particulars to the s 8(2) charge, it was correctly submitted that no part of paragraph 3, in and of itself, alleges an omission to take a specified measure. It is also correctly submitted that paragraph 6 through to 9 set out the defendant's omissions in the s 8(2) charge purported to contain the same such that the Court was required to read those paragraphs with the intended corresponding paragraph or sub-paragraph in 3(a)-(d). (It was also complained that this approach created elements of ambiguity).
It is in this context that the defendant submitted in its principal submission, that the following paragraphs and sub-paragraphs from particulars of the s 8(2) charge identified outcomes and were not, in accordance with the authority in Kirk, measures: particulars 4 (the whole of the particular); 6(a) (particular words); 6(c) (whole particular); 8 (whole particular); 9 (all words before the word "or"); and 10 (whole particular).
A similar complaint was made with respect to particular 9 of the s 10 charge. There, emphasis was given to the sentence of the particular which was expressed in a passive voice, demonstrating that the allegation was not of an action as required in Kirk to take a particular measure, but an allegation that the defendant was responsible for an outcome.
It was submitted, whilst particular 6(d) and 7 also allege a failure to ensure an outcome, "those particulars go on to specify particular measures and can be construed by reference to [the] specification by measures".
In the defendant's aide memoire submission a reply was given to the prosecutor's written reply. In particular, reference was made to particular 6(c) and particular 8 of the s 8(2) charges. In relation to the former of those particulars, the prosecutor had submitted in her liability reply that the specified measure alleged is that the defendant was required to make sure that a software writer code the software in such a way that the system could not latch and the chute open if the truck was not in the correct position. In relation to particular 8, the prosecutor submitted that, by the specified measure, the defendant was required to make sure there was the provision of additional or independent safety measures and as hand wired switches. Whilst the defendant was not the manufacturer or installer of such measures, it was the responsibility of the defendant, as the person with ultimate responsibility for the safety of the truck drivers using the bin, to make sure that occurred.
This drew a response from the defendant that, until those submissions, no particulars were provided as to what the defendant should have done about the outcome particularised. It was also submitted that the prosecutor's explanation was inconsistent with the particularisation of those measures. Thus, it was submitted by particular 6(c) and 7(b) of the s 8(2) charge, the defendant was alleged to have, itself, failed to install specified equipment on the plant. But the evidence was the specialist sensor company, Allen-Bradley, was the manufacturer of that equipment and, in doing that, installed them. It was also submitted that particular 6(a) of the s 8(2) charge alleged the defendant itself failed to obtain certification in compliance with Australian Standards and, by particular 9 of the s 10(2) charge, the defendant failed to ensure that such an outcome was achieved.
These inconsistencies were said to remove the prosecutor's explanation for the particularisation.
The defendant then advanced a further submission as to why the prosecutor's "explanation" should be rejected as follows:
There is another reason to question the Prosecutor's explanation. It is difficult to understand how:
• on the one hand, the duties imposed by ss 8(2) and 10(2) can be breached by a failure to take measures to ensure safety in circumstances where (the Prosecutor submits) the risk was reasonably foreseeable because the Defendant could not rely upon expert subcontractors, yet
• on the other hand (as the Prosecutor now submits) the Defendant breached the duties by a failure to take the measure of engaging an expert subcontractor to implement what the Prosecutor says are specified measures to ensure safety.
In addition, it seems the Prosecutor's case now is that the Defendant breached its duties because it failed to get an expert subcontractor to implement what the Prosecutor identifies as a specified measure - even though the reason it should have done so was because the Defendant did not have the expertise to implement what is identified as the specified measure to ensure safety.
The question as to reasonable practicability in these circumstances has to be: if the Defendant is assumed not to have the expertise to implement what the Prosecutor identifies as a measure to ensure safety, how is the Defendant to be expected to have the expertise to identify that it should have engaged a subcontractor to implement such a measure?
So, for example, taking particular 6(c) of the s 8(2) charge: if the Defendant is to be assumed to not have the expertise to write the code for the application software for the control system for the reject bin, how can the Defendant be expected to have ensured that the software logic system was written in such a way that "the system could not 'latch' and the chute open if the truck was not in the correct position"?
We interpolate: this conundrum flows through to particular 6(d). If the Defendant is to be assumed to not have had the expertise in relation to software code and instructions such as latching, how can the Defendant have been expected to check and trial the system to ensure that it did not latch in particular circumstances?
The difficulties with the Prosecutor's explanation for her particulars where she pleaded that the Defendant failed to ensure an outcome all have as their source the failure of the particular to specify exactly what the Defendant itself should have done to achieve that identified outcome. The consequence has been that the Defendant is prejudiced in making its defence in the case of these particulars because, until her closing submissions, the Prosecutor failed to identify the conduct in which the Defendant failed to engage, with the result that it has not been possible to engage in the balancing exercise described by Gaudron J in Slivak v Lurgi. So, for example, staying with particular 6(c), until the Prosecutor's closing submissions, the Defendant did not know what it is that it is alleged it should have done that would have produced the outcome that the software logic system was written as particularised. This is the precisely the prosecutorial behaviour which led to the quashing of the conviction in Kirk v Industrial Court.
In oral submissions, the defendant submitted as to particular 6(c) that the prosecutor had altered this particular so as to require the defendant to have ensured "a software writer coded the software in such a way that the system would not … latch". It was submitted that this approach was inconsistent with the particularisation of other measures. In particular 6(a), it was alleged the defendant had failed to obtain certification as to compliance as specified in the Australian Standards, but in particular 9 of the s 10(2) charge, the defendant failed to ensure that such "a very outcome was achieved".
Further, in oral submissions the defendant highlighted particular 6(d) and particular 9 as falling within the catchment of its complaint although no explanation was provided for the incorporation of particular 6(d) having regard to the defendant's principal written submissions (although it may be assumed the defendant's submission as to the difficulties with the prosecutor's "explanation" flowing through to particular 6(d) may have explained this inconsistency).
In the final oral reply submissions by the prosecutor it was submitted that particular 6(d) identified "the actual work to be done". It was contended the defendant should have checked and trialled the system. It was accepted the words "to ensure" were employed. The particulars did not require the defendant "to ensure that the system would not latch if a truck driver drove through the race or reversed into position, and was positioned so that the cabin was directly under the chute". It was further submitted 'that is not a state of affairs" but rather "particular measures that are alleged, and a statement of the result expected from those measures". It was contended the case for the prosecutor had not changed. An assessment was required because of the inadequacies of previous risk assessments such as the Connell Hatch Risk Assessment.
As to particular 9 (which relates to failures specified in particular 3(d)), the measure is specified because the particular refers to the absence of overhead fall protection and specifies a measure, namely, that overhead fall protection should have been installed.
I will resolve the issues raised by the defendant, in this respect, in the course of determining the respective relevant particulars of the ss 8(2) and 10(2) charges. However, I will turn to a discussion of the relevant authorities on the validity of particulars per Kirk.
In Area Concrete Pumping v Inspector Childs (2012) 223 IR 86; [2012] NSWCA 208 at [45], Bathurst CJ accepted the observations of Hodgson JA in GPI (General) Pty Ltd v The Industrial Court (NSW) (2011) 207 IR 93; [2011] NSWCA 157 ("GPI") at [32] that Kirk decided that it was necessary that a statement of an offence identified the act or omission of the defendant said to constitute the offence and, in the case of omission, it was necessary to identify the measures that should have been taken to address the risk (it was also held that the High Court did not rule that this particularisation had to occur at the time the charge was first brought, but based its decision on the point that the matter should have not proceeded without particularisation).
It may also be observed that Hodgson JA in GPI observed that a question as to the adequacy of particulars may need to be addressed having regard to the evidence that was supplied to the defendant by the prosecution; namely, it may be necessary to have regard to the context provided by the evidence in order to assess whether the particulars are sufficient to inform the defendant of the case to be made out [at 39].
As Giles JA observed in John Holland Pty Limited v The Industrial Court of NSW (2010) 202 IR 82; [2010] NSWCA 338 ("John Holland") at [104]: what "must be asked in each case [is] whether the charge sufficiently makes known what the accused failed to do and what should have been done".
Extrapolating from s 16 to the present s 8(2) charge, the plurality in Kirk found that the provision was contravened where there had been a failure, on the part of the employer, to take particular measures to prevent an identifiable risk eventuating (at [14]). A breach of the provision is the measure not taken, the act or omission of the employer (at [17]). As earlier mentioned, the measures which must be taken are those which are reasonably practicable (at [18]). What was or was not reasonably practicable for the employer to have taken is directed to the measures alleged.
It is necessary that the statement of the offences was particularised to identify an act or omission which constituted a contravention of, in this case, s 8(2) or s 10(1) of the Act (at [28]). The question to be addressed is what action on the part of the employer was required to address the risk which was present at the workplace: that must be the subject of the charge (at [34]).
However, the plurality in Kirk drew no distinction, as such, between measures and outcomes as the defendant sought to do in these proceedings. Rather, the Court was concerned that the duties imposed by the Act could not remain absolute when a statutory defence was invoked because the defence allowed that not all measures which may have guaranteed against the risk in question eventuating had been taken (at [18]). Some guidance may be gleaned from the manner in which the plurality dealt with the particulars in Kirk. For example, the first particular of the s 15(1) offence suggested that the Kirk Company had some systems relating to the operation of the all-terrain vehicles in place but they were not sufficient. This was said to be inadequate because it did not identify the "deficiency in the system or the measures which should have been taken to redress it" (at [28]). The second particular was found not to identify what information, instruction or training was necessary to be given.
The following passages from Area Concrete Pumping are also instructive given the analysis undertaken by the Chief Justice to one particular of the charge there under consideration (at [61] and [63]):
[61] Having found that the statements of charge are not nullities, it is also unnecessary to consider whether any of the particulars were, in themselves, valid in the Kirk sense. However, if I am wrong as to the effect of inadequate particulars on the originating process in circumstances in which the applicants have already pleaded guilty, I am of the opinion that particular g) is sufficient in the Kirk sense to avoid jurisdictional error by the Industrial Court at this interlocutory stage. Particular g) (of the statement of charge 1447/2008) states:
"P & B Serena failed to provide Mr Abel with any or any proper training and/or instruction with respect to the requirements that needed to be met before he could commence pouring concrete, including obtaining or sighting a copy of a certificate prepared by a formwork engineer in accordance with the requirements of clause 233 of the Occupational Health and Safety Regulation 2001 (NSW) and AS 3610 - 1995 Formwork for Concrete."
…
[63] The risk implicit in this identified risk is the structural failing of the formwork resulting in injury to individuals in the vicinity of the concrete pour. This is further clarified when read with particulars b), e) and f), but is not dependent upon them.
In GPI, Basten JA accepted that the convictions based on a charge as set out in the orders, as particularised, in that matter would have been invalid in accordance with the principles in Kirk. Those particulars included (see at [15]):
c. The defendant failed to ensure that adequate markings and collision protection were in place at the premises for the safe operation and use of forklifts so as to ensure that the premises were safe and without risks to health.
d. The defendant failed to provide and maintain a safe system of work for the use and operation of forklifts at the premises so as to ensure that the premises were safe and without risks to health.
e. The defendant failed to ensure that people operating forklifts at the premises had appropriate skills, training and qualifications in the safe operation and use of forklifts so as to ensure that the premises were safe and without risks to health.
In John Holland, the then Chief Justice found the following particulars did not offend against the requirements of Kirk when accompanied by the chapeau, namely, the failure to provide an adequate system of ground support in the drive down to the support tunnel (at [61]):
Deviation from the design intent;
Failure to install a shotcrete of "adequate thickness;
Failure to ensure the effectiveness of rock bolting by a number of specified omissions.
Reference should also be made to the judgment of the Full Bench of the Industrial Court in Morrison v Chevalley (2010) 198 IR 30; [2010] NSWIRComm 116. In that matter the Full Bench of the Industrial Court found the following sub-particular as not offending the principles stated in Kirk (at [122]):
i. Adequate continuous berms were not placed along the side of the road. Parts of the road had no berms and other parts had berms that were inadequate height, being less than half of a haul truck wheel in height;
The Court went on to consider a submission by the defendants that the particulars were inadequate because they did not inform the defendants of the means they should have adopted to address the measures that were not taken. The Full Bench rejected this contention and made the following observations (at [135]):
If the corporation failed to have a berm of sufficient size to prevent a coal truck from running off the mine road, then that is the measure that the defendant directors failed to take. This particular satisfies the Kirk requirements. Just as the prosecutor is not obliged to instruct the corporation of the method or entity by which such a berm might or should have been constructed, neither is the prosecutor obliged to inform the directors of such methods or entities. The directors answer may be that such a berm could not have been safely erected or erected at all for geological and/or engineering reasons but that possibility does not detract from or render invalid the particularisation provided by the prosecutor in these matters - those possible difficulties (if they arise) are matters for the trial.
(The judgment of the Full Bench of the Industrial Court was challenged unsuccessfully in the NSW Court of Appeal: see Chevalley and Another v Industrial Court New South Wales (2011) 82 NSWLR 634; [2011] NSWCA 357. Special leave was refused by the High Court of Australia: see Chevalley v Morrison [2012] HCATrans 31).
[80]
Out of time
The defendant submitted that the prosecutor was out of time to bring the charges as particularised in particular 6(a) of the s 8(2) charge and particular 9 of the s 10(2) charge.
In both cases the contention was predicated upon the words appearing in the respective particulars "before allowing any truck drivers to work" with Bin 802. It was contended that where an offence is not merely a failure to do something but a failure to do it within a specified time, as illustrated in that aspect of the particular of the charges, the offence of a failure to do that thing was completed and concluded upon the expiry of that specified time.
In the present matter, it was submitted, the deadline for remedying the state of affairs expired at the date when any driver was allowed to work with Bin 802 which was 31 July 2007 in the case of "any truck driver" or 31 March 2008 when the defendant allowed any truck driver to work with the bin. After those dates, it was submitted, it was not possible for the defendant to remedy the particularised state of affairs and, in each case, the particularised state of affairs was "completed on dates long before two years before the commencement of these proceedings". Reliance was placed on Slogget v Adams (1953) 70 WN (NSW) 206 ("Slogget") at 208 and Environmental Protection Authority v Alkem Drums Pty Limited (2000) 121 A Crim R 152; [2000] NSWCCA 416 ("Alkem Drums") at [9]-[11] per Foster AJA and [17] per Dunford J. Neither Alkem Drums or Slogget assist the defendant in this submission.
Alkem Drums concerned the prosecution of that company for an offence under the Environmental Offences and Penalties Act 1989 (NSW) as the occupier of premises upon the basis that it did not comply with a requirement of a notice under clause 21(1) of the Clean Waters Regulations 1972, contrary to clause 21(3) of those regulations. The notice was issued 25 February 1997 and required the defendant to remove all drums which contained chemicals from its premises. Foster AJA determined the matter upon the basis that, under the proper construction of the notice, the defendant was to undertake the removal of the drums by 30 April 1997.
Similarly, in Slogget, Street CJ was concerned with legislation that made "it clear that the offence is the failure to comply with the requirements of the notice". He found that the question of whether the offence which had been committed was a continuing offence or one which was committed once and for all in a specified time depended upon the consideration of the language of the Act in question. The test was whether an offence is to be treated in law as continuous is "whether its gravamen is to be found in something which the offender can, at will, discontinue" (at 208).
There is no relevant analogy between the notices giving effect to relevant legislation in those cases and the particulars of the charges brought respectively under ss 8(2) and 10(1) of the Act in the present matter. The duties or obligations befalling the defendant under the Act with respect to the defendant's undertaking while non-employees were engaged in work at its place of work were continuous whilst any of those obligations existed. As the prosecutor admitted, the failure to ensure health and safety as contemplated by particular 6(a) of the s 8(2) charge and particular 9 of the s 10(2) charge may well have arisen for the first time for the defendant when it first commissioned truck and dog combinations for use in Bin 802 but that did not obviate the fact on the day of the incident the defendant continued to bear its obligations under the Act and, in so far as it was in breach of the Act, it continued to be in breach of the Act at that time. Again, as the prosecutor put it, the state of affairs was a failure to ensure health and safety because of the omission pleaded or the failure to take the measure pleaded and that state of affairs existed at the date of the incident.
The pleading "before allowing any drivers to work" does not have the temporal connotations of the statutory notices in Alkem Drums and Slogget. It concerned a risk which, at least so far as Mr Oldknow was concerned, persisted on the day of the incident. The particular related to a state of affairs pleaded as a failure in particular 3(a) which related, inter alia, to the software logic system which had a defect which persisted throughout the period up to and including the date of the incident. The reference to any "truck drivers" in the particulars must be seen as ambulatory in nature as a reference to any such persons engaged in work at the bin. The words before "before allowing" do not concern the issuing of a "notice" to stop such process but rather a reference to not allowing truck drivers to work in those circumstances at any time before, taking for example particular 6(a), the defendant had "ensured the software system was designed" in the manner specified in the particulars.
I reject the defendant's submission that particular 6(a) of the s 8(2) charge and particular 9 of the s 10(2) charge are out of time.
[81]
Particular 6(a) - Failure to ensure software designed to comply with Standards and Failure to obtain certification that software designed to comply with Standards
The relevant terms of particular 6(a) as deconstructed to deal with a preliminary argument by the defendant are as follows:
The defendant should have ensured that the software logic system was designed to comply with, … Australian Standards AS61508, AS 62061 and AS 4024, … before allowing any truck drivers to work with the Reject Bin 802…
The defendant should have … obtained qualified certification (in the sense of a review, examination, audit or assessment by a person with appropriate knowledge and skills) that the software logic system was … designed to comply with Australian Standards AS61508, AS 62061 and AS 4024, or equivalent certification of the design and operation of the software logic system, before allowing any truck drivers to work with the Reject Bin 802.
[82]
Preliminary
I accept the defendant's submission that there are two elements to particular 6(a) as demonstrated above. The comma after the word "with" in the introductory words "the defendant should have ensured that the software logic system was designed to comply with" had the effect of providing bi-fold particulars, the second part of which required the defendant to obtain qualified certification".
It is important to draw this distinction because the defendant contended that the first part or element of the particular offended against the requirements for the particularisation of such charges as discussed in Kirk, whereas the second part, vis-à-vis certification did not do so. I shall turn to the first point.
The first element of the particular specified that what the defendant should have done, having regard to the failures specified in particular 3(a) was, to paraphrase, ensure that the software logic system was designed to comply with Australian Standards AS61508, AS62061 and AS4024, before allowing any truck drivers to work with Bin 802.
When read with the chapeau to the failures specified in particular 3(a) of the s 8 charges, namely, a failure to ensure a system of work which is safe and without risk to health due to the unsafe automated part of the system for the delivery of work material into trucks, the first element of the particular does provide sufficient specificity in particularising a measure alleged to have been omitted - the design of a software logic system. The specificity is provided by the requirement that the design comply with the nominated Australian Standards.
The defendant, by this means, has been advised which action it was required to take to address the identified risk. This was amplified by the evidence in the proceedings which provided further content. That evidence revealed that the Australian Standards, to the extent applicable, imported very specific requirements for their satisfaction, including in relation to design which form part of the life cycle process required by AS61508 and which also featured, for example, in the life cycle for realisation of safety related control functions in AS62061.
Whilst the defendant was not itself equipped to design the "software logic system" it could have ensured that outcome by engaging expert contractors in accordance with the nominated standard as CMOP did with the upgrade of Bin 802. The expression "ensured" in the particular is wide enough to incorporate such an obligation.
The complaint made by the defendant, in my view, falls into precisely the same category as was considered by the Full Bench in Chevalley in that the defendants, in effect, seek the means they should have adopted to address the measures which were specified.
Having regard to the conduct of the prosecutor's case and the evidence she led in this respect I do not consider the defendant was prejudiced in the conduct of its defence. However, the way in which particular 6(a) is framed does have consequences for the prosecutor's proof of the first part of particular 6(a).
[83]
Part I
I agree with the defendant that the case for the prosecutor was that, when it was designed, constructed and commissioned, the electrical control system of Bin 802, including the software logic system, should have been designed, constructed and commissioned in accordance with, inter alia, the life cycle process required by AS61508.
The evidence is that the lifecycle of the software logic system of Reject Bin 802 which came to be used on 18 February 2009 was as follows:
(a) the concept for the control of the bin was created in the second half of 2006;
(b) the software logic system was designed (including risk assessed) in the period February-May 2007;
(c) the software was written and installed in May-July 2007;
(d) the software was commissioned in July 2007;
(e) the software was amended regarding the traffic lights in about September 2007;
(f) with the exception of the amendment, the software as designed in early 2007 was used from 31 July 2007 until 18 February 2009;
(g) the bin controlled by the software logic system commenced to be used on 31 July 2007 and was used until 18 February 2009.
Whether understood in the light of the ordinary meaning of the expression of the word "designed", namely, to decide upon the functioning of an object or system by a detailed drawing or plan or in accordance with the notion of design in AS61508, the design of the software referred in particular 6(a) occurred not at the time of the incident but in 2007. In the result, I accept the submission of the defendant that the prosecutor has assumed the burden of proving beyond reasonable doubt that, for the purposes of the first part of particular 6(a), the offence was committed on the date particularised, 18 February 2009, by reason of conduct which concluded on 31 July 2007.
It should be emphasised, in this respect, that the charge was not that the software system needed to be redesigned to comply with AS61508 or AS62062, as contended in the prosecutor's principal submissions. The defendant was charged with failure to ensure the software logic system was designed to comply with the nominated Australian Standards and failing to obtain qualified certification that the system was designed to comply with those standards.
It may be noted, in this respect, that in his discussion of the methodology of "functional safety", Professor Ross McAree, in his report of 15 March 2013, described how an engineering system may be "redesigned" to eliminate all hazards once hazards are identified and an initial risk assessment is conducted to determine where those hazards need to be controlled. This may be contrasted with the discussion of "design" in the various Australian Standards (noting that, for AS62061, the life cycle defines the work flow for realisation of safety related functions and it is intended to substitute for phase 9 of AS61508 life cycle) and certification. The defendant was correct to submit that no evidence of the need to redesign the software system in Bin 802 was given by any witness.
It may also be observed, at the outset, that at time when the software logic system of Bin 802 was designed, constructed and commissioned the colliery operator, which in fact organised the design, construction and commissioning of the control system for Bin 802 was CMOP and not the defendant.
However, the more fundamental difficulty with the particular may be shortly stated. There was no proof beyond reasonable doubt by the prosecutor as to what the impact would have been on the safety of Mr Oldknow on 18 February 2009 (having regard to any earlier findings about the risk to other drivers, the balance of this judgment shall concern the exposure of Mr Oldknow to a risk to his health and safety), had the defendant ensured, before 31 July 2007, that the software system had been designed to comply with the particularised standards before any driver was allowed to work under the bin.
The risk to which Mr Oldknow was exposed derived from a narrow and particular source discussed earlier in this judgement. There was no evidence beyond reasonable doubt that, had the defendant ensured the software logic system had been designed to comply with the particularised standards before 31 July 2007, the PLC software would not have been coded such that TIP was latched before the first time during the bin's operation by any given truck, with the consequence that all that was required thereafter for the bin gates to open was the blocking of PE Cell 1 and PE Cell 2 and the activation of the driver's remote control. This is particularly so given latching is an acceptable coding practice. This conclusion is amplified when reference is made to the sub-particulars 3(a)(iii), (iv) and (v) because there is no evidence as to how compliance with the particularised standards would have avoided those failures.
The evidence does not permit a conclusion as to what the software logic system would have looked like and how it would have operated had the particularised standards been applied.
Professor McAree does give evidence of a general character as to improvements in safety in the software logic system but does not direct his attention to the particular risk and the circumstances in which it arose in the present matter. In other words, the evidence does not permit a conclusion that the risk would have been eliminated or minimised if the omission in particular 6(a) had not occurred.
It is true that Professor McAree did express an opinion that the result of the application of the particularised standards would have been "the achieved safety levels would have been tolerable". However, that evidence does not prove that the risk in the present matter would have been eliminated or minimised.
A tolerable level is a level at which risk is accepted in a given context, based on the current values of society. It is usually expressed in terms of a number of fatalities over a given period of time. Normally that value is determined by the company itself. (The risk matrix used in the risk assessment is usually devised and supplied by the company concerned. In the coal mining industry, guidance as to the values inherent in such a matrix is supplied by MDG 1010).
Expressed at that level of generality, the evidence did not discharge the onus falling upon the prosecutor in relation to the risk, the subject of the offence charged, particularly given the prosecutor, as earlier mentioned, alleged that the risk was due to the very specific set of facts having regard to the way in which Bin 802 was coded (noting my rejection earlier of the alternative scenario arising from the occlusion of the photo electric sensors).
The evidence does concern risk reduction but it does not satisfy the burden of proving beyond reasonable doubt that the particular risk caused by the facts and circumstances as to coding identified in particular 6(a) would have been eliminated or minimised if the measure specified had been implemented.
Reference should also be made to the opinion of Professor McAree that, had the lifecycle process AS61508 been applied, a review of the "operational change" that occurred in May 2007 to the use of road registered trucks would have been undertaken with phase 15 of the lifecycle process. From this analysis, it was submitted that the "application of the standard would likely have resulted in higher integrity processes being used in assessing the consequences of the changes and in the modifications needed to be made to maintain risks at tolerable levels".
Ultimately the defendant correctly submitted that the factual basis for this opinion had not been proved and hence no weight could be given to the opinions (Paric v John Holland (Construction) Pty Limited (1985) 59 ALJR 844; [1985] HCA 58 at 846 and Ramsay v Watson (1961) 108 CLR 642 at 648-649) for the reasons now given. There are three elements of the defendant's submission which, in my view, warrant the conclusion that this opinion by Professor McAree cannot sustain particular 6(a). They are as follows:
[i] … to the extent that the lifecycle prescribed by AS61508 can be applied, it can be seen that Professor McAree is wrong in characterising the phase of the lifecycle at which the reject bin and its electrical control system were in May, or for that matter July 2007, as being Phase 15. Phase 15 is Overall modification and retrofit. What was occurring in May 2007 was, possibly a change in Overall scope definition (Phase 2). What was occurring in July 2007 was Overall installation and commissioning (Phase 12). The difficulty is, of course, that AS61508 was not applied to the original construction of the bin in the early 1980s, let alone to the refurbishment of the reject bin in 2006-mid 2007. Accordingly, it is artificial and not helpful to apply the phases of the lifecycle process to the development of plant to which the AS61508 was never applied.
[ii] … That is, the problem with a lot of the evidence as to the application of AS61508 to the design, development, construction and commissioning of the electrical control system for Bin 802 is that the application of the phases after Phase 1 assume that the preceding phases of the standard have been applied. Thus, for example, if one is to verify that a design meets the requirements of a safety integrity level (SIL), this assumes that a SIL has been allocated. In this case, no such process occurred. …
[iii] …evidence that an outcome would have been "likely" is incapable of satisfying the Court beyond reasonable doubt either that implementation of the measure would have fulfilled the duty imposed by s 8(2) or that there was the requisite causal nexus between the failure alleged and the risk on 18 February 2009.
Further, assuming that the communications from Mr Ramplin to Mr Barnes in May 2007, constituted an operational or design change, it is clear that any modifications arising at or about that time did not result in the risk to which Mr Oldknow was exposed on 18 February 2009. Those circumstances arose, when, on 31 July, commissioning resumed with truck and dogs after the earlier use of mine trucks on 4 July had resulted in a suspension of access by Macquarie Generation. The PLC code had been changed on 4 July to accommodate those mine trucks and was therefore changed again on 31 July in order to ensure that the bin could be operated by vehicles with a different geometry. It may be noted for completeness that the plant was not actually operating in May 2007.
Some further brief observations may be made in relation to AS62061 and AS4024 as to why the prosecutor failed to prove that the risk to Mr Oldknow would have been eliminated or minimised by ensuring that the software logic system had been designed to comply with those standards. Professor McAree's evidence was that AS62061 did not apply to the design of complex programmable sub-systems and, it follows, did not apply to the design of the software logic system in Bin 802. Whilst AS61508 and AS62061 have application to electronic and, in particular, computerised safety-related systems, AS4024 is commonly used in relation to machine guarding. It did not deal with programmable logic systems. Professor McAree would not have recommended the application of AS4024 to Bin 802 and, in any event, the standard was outmoded by the time of the incident.
There was a further limb to the defendant's submissions based on causation. It was submitted that the prosecutor had failed to prove the particularised omission, as earlier discussed, was a substantially significant cause of the detriment of Mr Oldknow's safety on 18 February 2009. Having regard to the aforementioned considerations, I accept that submission. The prosecutor did not prove beyond reasonable doubt that there was a causal relationship between the defendant's alleged omission to ensure a software logic system was so designed before any driver used the bin and the risk to which Mr Oldknow was exposed on 18 February 2009.
The defendant made a very substantial alternative submission that, in the alternative, there was a statutory defence to the s 8(2) charge as particularised in particular 6(a). Having regard to the aforementioned conclusion, reached with respect to this particular, it is unnecessary to consider that submission although, to the extent that it becomes relevant, the essential same bases for a later finding that a statutory defence had been made out with respect to particular 11 are applicable to this particular.
The following additional factors relevant to the defence are also applicable:
1. AS62061 and AS4024 were not apt to eliminate or minimise the risk because they were not appropriate for this type of control system;
2. AS61508 was not practicable as a standard because of the following:
1. The unavailability of engineers qualified to apply AS61508 to Bin 802 in 2006-2009;
2. There is reason to believe Demat and Primatec applied AS61508;
3. The application of AS61508 when CMOP operated the bin; and
4. The application of AS61508 after the take-over.
1. Consistent with the impracticability of applying AS61508 to the bin, the evidence was that compliance with the Standard in the mining industry is low to non-existent and remains so to this day. Professor McAree knew of no safety-related system in the mining industry which was certified to be in full compliance with the Standard.
[84]
Part II: Certification
That brings forth the second aspect of particular 6(a). This aspect of the particular may be shortly disposed of.
I agree with the submission of the defendant that there is no evidence that the aforementioned defect in the coding of the PLC software vis-à-vis latching would not have been the case had the defendant obtained the qualified certification described in particular 6(a) before allowing any driver to work in the bin.
The previous observations as to Professor McAree's evidence are available in this context. It is not sufficient for the prosecutor to prove that safety levels generally would have been improved in order to make good the second part in particular 6(a). However, the prosecutor has not proved beyond reasonable doubt that certification the PLC had been coded in accordance with any particularised standard would have changed the way the PLC was coded or prevented the modification made by Mr Ambrose.
Professor McAree accepted that the particularised standards constituted the process. Their application was not a review of existing plant or software. Professor McAree accepted that the more complex the procedure prescribed by any procedural standard, the greater the variability of outcomes that may be expected of what the product may look like and how it might operate. One illustration was a difference of opinion between Mr Georgevits, who thought it was possible for the PLC to have been coded so that the latch would occur immediately after the first drop of reject and Mr Ambrose, who thought this was impracticable.
The same observations may be made in respect to this matter as to Professor McAree's evidence as to operational change.
[85]
Conclusion: Particular 6(a)
The prosecutor has failed to prove beyond reasonable doubt the omission in particular 6(a). In particular, the prosecutor has failed to prove beyond reasonable doubt that the design of the software logic system to the particularised standards would have eliminated or minimised the particularised risk to the safety in the case of Part I of the particular. Further, with respect to Part II of particular 6(a), the prosecutor has failed to prove beyond reasonable doubt that, if the defendant had obtained "qualified certification" (in the sense as particularised) that the software logic system was designed to comply with the particularised standards before allowing any truck drivers to work with Bin 802 the risk to Mr Oldknow would have been eliminated or minimised. I have concluded there was no risk to the other truck drivers particularised but if it was nonetheless relevant to have regard to those drivers I would come to the same conclusion. It also follows that I do not consider the defendant had a duty under s 8(2) to take the measure in particular 6(a).
Further, I consider that the prosecutor has failed to prove the requisite causal connection between the particularised omission and exposure to the particularised risk to safety.
I find the defendant not guilty of the s 8(2) charge so far as particular 6(a) is concerned.
[86]
Particulars 3(a) and 6(b) - Failure to install more sensors
The terms of particular 6(b) were as follows:
The defendant should have installed a greater number of sensors in more positions so as to give an accurate indication of the truck's position.
In their principal submissions, the prosecutor relied upon Mr Georgevits' evidence about the usefulness of extra sensors to give an extra indication of the truck's position. It was said that on the basis of this evidence that had extra sensors been employed a position could have been achieved whereby for the first drop it was necessary for the first software system to receive a signal indicating that the truck cabin was clear of the chute for the reject bin.
The difficulty with this submission is that in his oral testimony, Mr Georgevits withdrew what he said in his report on the subject and agreed that a safe system may be implemented with three sensors. The prosecutor submitted that this evidence does not mean that additional sensors could not be used but this seems to rather miss the point that the prosecutor had placed reliance upon this evidence which was no longer available to support this particular.
In oral submissions, the prosecutor contended that the measure under the particular was that the defendant should locate an additional sensor close to PE Cell 3. The defendant submitted, with some justification, that contention went beyond the measure, as particularised, and deprived the defendant of an opportunity to meet that case.
It is unnecessary to finally resolve that issue as I consider the prosecutor failed to prove beyond reasonable doubt this particular. (It should be noted that the prosecutor did lead evidence that the software could be coded in a particular way to accommodate the extra sensors but this, in my view, goes outside the scope of particular 6(b)).
Senior counsel made strenuous oral submissions to the effect that it was patent that the installation of a greater number of sensors carried the necessary application that they be connected to the control system to better provide accurate information about the exact position of the truck. As noted, submissions were advanced about the location of sensors.
However, those submissions were inconsistent with the evidence of Mr Georgevits and Mr Richardson (if not Mr Ambrose). Mr Richardson thought three sensors was sufficient and, even with the benefit of hindsight, he could not see how any increase in the PE Cells could have improved safety.
It was said, in that respect, that the defendant's reliance upon the evidence of Mr Ambrose was apt to mislead and that his evidence was concerned only with the situation where the sensors were positioned in some sort of even intervals with each other. However, whilst an illustration of that kind was put to Mr Ambrose, I consider the effect of his evidence was that, if more sensors were installed in different positions in the race of the bin, the PLC software would still have been coded such that the TIP was latched for the first time during the bins operation by any given truck and, in consequence, all that was required thereafter for the bin gauge to open was the blocking of PE Cells 1 and 2 and the activation of the driver's remote control.
Mr Ambrose's evidence could not extend to the question of where sensors might have been installed because the question was outside of his area of expertise.
The prosecutor has failed to prove beyond reasonable doubt particular 6(b). In particular, the prosecutor has failed to prove beyond reasonable doubt that if the defendant had installed a greater number of sensors in more positions the risk to Mr Oldknow on 18 February 2009 would have been eliminated or minimised (the same conclusion is available for the other particularised truck drivers if applicable). Further, the prosecutor has failed to prove that the duty imposed by s 8(2) of the Act was contravened by reason of the omission particularised in particular 6(b). The prosecutor has also failed to prove beyond reasonable doubt there was a significant and substantial connection between the omission pleaded in particular 6(b) and the exposure to the risk to safety of Mr Oldknow's safety (or any other particularised driver) on 18 February 2009.
If I was required to consider the statutory defence I would have found it made out for the same reasons provided with respect to the consideration of statutory defences under particular 11.
The defendant is not guilty of the s 8(2) charge so far as it concerns this particular.
[87]
Particulars 3(a) and 6(c) - Failure to ensure software written so system could not latch and chute open if truck was not in correct position
Particular 6(c) stated:
The defendant should have ensured that the software logic system was written in such a way that the system could not "latch" and the chute open if the truck was not in the correct position.
In the prosecutor's principal submissions it was contended, by reference to this particular, that it was plain that the software logic system could have been programmed so that before the system could latch "not only did the third sensor have to be broken but it had to remain broken for the first drop".
When challenged by the defendant that particular 6(c) alleged a failure without reference to the measures the defendant was required to take, the prosecutor submitted the defendant should have ensured a software writer coded the software in such a way that the system could not latch.
But this submission merely begs the question as to what action the defendant should have taken to require the software writer to have ensured the system could not latch, given neither it nor its managers had expertise in software writing or complex computer logic formulations let alone understanding the process of latching involved in coding software programming in the same. In this respect, I consider the submissions of the defendant extracted at [442] above have teeth.
In any event, the particular contains a misnomer. It was not the software logic system which latched but the TIP. As the defendant correctly submitted, if the reference to system in the particular was intended to be a reference to TIP, then the submission undermines the particular by conceding it needed to latch.
In answer to this proposition, the prosecutor submitted it was possible to write the software so that the system did not latch even though TIP was latched. At that point it becomes obvious, in my view, that the defendant was correct to submit that the particular merely identifies a failure and does not, in accordance with the principles in Kirk, state at all (or with sufficient specificity) the measure the defendant was required to take to eliminate or minimise the risk.
As the particular failed to comply with the requirement to specify a measure the defendant would have taken, the allegation is statute barred.
If I was required to consider a defence in relation to this particular, I would find the defence made out for the same reasons given with respect to particular 11.
[88]
Particular 3(a) and 6(d) - Failure to check and trial to ensure that the system could not latch if driver reversed so cabin was under chute
Particular 6(d) stated:
The defendant should have checked and trialled the system to ensure that the system would not latch if a truck driver drove through the race and reversed into position and was positioned so that the cabin was directly under the chute.
Consistently with the assessment of particular 6(c) the reference to "the system would not latch" should be read, in accordance with the evidence, as the signal TIP did not latch once asserted in the PLC.
The prosecutor submitted that the defence case had revealed no reason why this particular did not address the risk and, further, that it was "obvious that if the defendant had checked and trialled the system as it operated when a truck driver drove through the race and reversed into position, it would have found that if the truck was positioned so the cabin was directly under the chute after reversing, the chute was capable of opening".
The defendant contended that, as formulated, the particular would not, without more, have reduced the risk. It was submitted that if the checking and trialling had disclosed the existence of a risk, that knowledge, even of itself, could not have resolved in the employer complying with its statutory duties under the Act. That is because the acquisition of knowledge does not control the risk, but rather the taking of a measure in consequence of the acquisition of that knowledge. Thus, it was contended, it was not possible for checking and trialling a system to ensure that "the system would not latch" unless something other than checking and trialling had subsequently been done to bring about that result. No such other step after checking and trialling was particularised.
I do not consider this critique by the defendant is available as a proper reading of the particular and represents a misunderstanding of the defendant's obligations.
The identification of a risk to the health, safety and welfare of employees and other persons in the workplace is a necessary step by an employer in discharging the employer's obligations under the Act: Kirk at [14]. Contravention will occur where there is a failure, on the part of the employer, to take a particular measure to prevent an identifiable risk eventuating. A measure must be such that it is capable of eliminating or mitigating the risk (see Kirk at [14], [18] and [19]). Theoretically, if the measure of checking and trialling so as to produce knowledge of latching had occurred, it may have been capable of identifying the risk and by that result indicated what further measures were required in avoidance of same.
However, this is not such a case. I agree with the further submission of the defendant that there is no evidence that the discovery by checking and trialling the system, that finding TIP latched would have brought about any particular action or result. That is because the evidence is that there is nothing unorthodox about using a coding system of latching a command in PLC application software. Indeed, the evidence is that it is an accepted coding strategy.
This conclusion is amplified by the evidence that Mr Barnes commissioned the bin for use by truck and dogs in conjunction with Mr Ambrose. Mr Barnes checked and trialled the system with the type of vehicle combinations which resulted in re-coding giving rise to the latent flaw in the logic. As the defendant submitted, "knowing that Mr Ambrose was making adjustments to the PLC code, in his checking and trialling, Mr Barnes did not detect any issue with safety of the operation of the vehicles. The evidence reveals that, during the commissioning of the bin in this manner the trucks operated the bin both travelling forward and, later in that day, by reversing (the prosecutor was incorrect to submit the checking and trialling (that is, the wet commissioning) did not involve the reversing of trucks: it was to the failure of Mr Ambrose to appreciate that fact, as I will later discuss, which led to the flaw in the software logic system). No unsafe operation of the bin was detected.
I accept in this respect the submission of the defendant as follows:
140. In addition, checking and trialling the system would not, as particularised, ensure that the system "would not latch". It would not have been possible for checking and trialling a system to ensure that the 'system would not latch' unless something other than checking and trialling had subsequently been done to bring about that result. No such other step after checking and trialling is particularised.
It follows that, in the final analysis, I accept the submission of the defendant that it could not be found guilty of the offence by reason of the omission particularised in particulars 3(a) and 6(d). The prosecutor has not proved beyond reasonable doubt that this measure would have eliminated or minimised the particularised risk to Mr Oldknow on 18 February 2009 (or, if applicable, any other particularised drivers). In this respect, the defendant did not breach the duty under s 8(2) of the Act to take the particularised measure. Further, I do not consider the prosecutor has established a causal connection between the particularised omission and the particularised risk.
Again, the issue of statutory defences was raised in this context as an alternative submission. To the extent my conclusions are not accepted in this respect, my conclusions as to defences with respect to particular 11 are applicable in this context. However, a particular submission was made in this context by the defendant with some real substance as follows:
On the evidence, there were no triggers to suggest the need to test and trial to ensure "the system did not latch" if a truck driver operated the bin by reversing - or to ensure that TIP in the application software did not latch either. If this sort of approach were to be taken to safety, it would be impossible to operate an enterprise such as a coal mine or washery. In circumstances where there was nothing to indicate that "the system latched", or any other sort of fault, what the Prosecutor essentially is proposing is that the colliery operator would need to embark upon a program of testing and trialling all plant and processes at the mine for every conceivable fault - and that the colliery operator would be at fault if it failed to do so.
The defendant is not guilty of the s 8(2) charge so far as it concerns particular 6(d).
[89]
Particulars 3(b) and 7 - Failure to ensure system for maintenance of the cleanliness of the sensor cells
Particular 7 was in the following terms:
The defendant should have ensured that there was an appropriate system for the maintenance of the cleanliness of the sensor cells, such as:
(a) cleaning and testing of the cells at the beginning of each shift before loading began;
(b) installing a type of sensor which indicates when it is obscured by dirt.
The measure particularised in relation to the failure in particular 3(b) has, at its core, a pleading that the defendant should have maintained the cleanliness of the PE Cells by an appropriate system which was defined as the cleaning and testing of the cells at the beginning of each shift before loading began (particular 7(a)) and installing a type of sensor which indicates when it is obscured by dirt (particular 7(b)).
However, I have concluded that the prosecutor has not made good this particular. Foremost in that consideration is that the prosecutor failed to prove beyond reasonable doubt that the measure, or its subsidiary parts as to the appropriate system to be used, would have eliminated or minimised the risk to safety or to prove that the omission caused the exposure to risk. This conclusion essentially derives first from the earlier analysis in this judgment in which the second scenario or dirty PE Cell 2 case theory was rejected. However, secondly, I consider that the measure alleged would not have discharged the duty imposed by s 8(2) to ensure Mr Oldknow's health and safety on 18 February 2009 and, accordingly, there was no duty to ensure either of the particularised systems for the maintenance of the cleanliness of sensor cells. A supplementary consideration is that the prosecutor has failed to prove the omission alleged to install a type of sensor which indicated when it was obscured by dirt because the three sensors installed in the bin race had that characteristic or functionality.
These conclusions will require some elaboration. However, before doing so it should be observed that I accept the submission of the prosecutor that the evidence established beyond doubt that, notwithstanding the varied evidence of truck drivers as to the state of the bin race and the random and inconsistent patterns of cleaning, there was no cleaning system implemented by the defendant to clean the three sets of transmitters and receivers in the bin race. The inherited system of electrical and mechanical maintenance for the bin did not assist the defendant in this respect because the electrical inspections (both six and 12 monthly) and the three monthly examination of the earth leakage units were not concerned with the functioning of the sensors or their maintenance. Further, whilst the sub-contractors' supervisor supervised daily pre-start checks, including "a requirement that all equipment used on site would be checked prior to use", it did not follow that the role of drivers could reasonably be expected to extend to the specific equipment forming part of the bin race, let alone that an inspection should be conducted on a systematic basis. There was no documented or enforced cleaning system so far as the sensors were concerned.
Nonetheless, for reasons earlier given in this judgment, first the prosecutor failed to prove that an occlusion to the sensors and, in particular the PE Cell 2, caused a risk to Mr Oldknow when he reversed into the race at the time of the incident. In particular, the prosecutor did not exclude the possibility that if, upon investigation of the fatal incident, the lens on PE Cell 2 was occluded by dirt, it did not occur by reason of the impact of the fatal dropping reject onto Mr Oldknow's truck cabin. The prosecutor failed to prove beyond reasonable doubt that PE Cell 2 was, in fact, before any driver entered the bin race on 18 February 2009, previously obscured by dirt to such a degree that either it sent an input to the PLC to the effect that it blocked or it approached a state of occlusion where it would register such an input.
Further, the prosecutor has not proved that any other driver was exposed to risk by reversing on 18 February 2009.
Secondly, the prosecutor has not proved beyond reasonable doubt that having an appropriate system of maintaining the cleanliness of the sensor lenses, such as those particularised, made a significant and substantial contribution to the risk to which any driver, but particularly Mr Oldknow, was exposed on 18 February 2009. As the defendant submitted, the sensor cells had been in operation for over 18 months and when inspected did not show occlusion to the point of failure (that is when the likelihood the lens may have been occluded by a drop of reject at the time of the incident was excluded).
As to particular 7(b), the prosecutor conceded in its outline of submissions in reply on liability that the sensors installed in the bin race "had the ability to indicate a lens that was partially obscured by dirt". That concession is consistent with the evidence. The receiver PE Cell had on its top three light admitting diodes (LED) coloured respectively red, yellow and green. Having regard to the evidence of Mr Craddock and the material before the Court including the catalogue extract for Standard Timing PE Cells in the 9000 series (the PE Cells were the Allen-Bradley series 9900), the following submission by the defendant may be accepted:
937. What these LEDs meant was:
• when the red LED and the green LED were both illuminated, they indicated the sensor was clean and that there was nothing blocking the beam;
• when the red LED and the green LED were both off, it indicated the sensor was blocked by something;
• when the red LED was off and the green LED was on that indicated that the lens was dirty, although not occluded to the point where it failed to generate an output.
The prosecutor sought to meet this difficulty by a submission that the lenses of the PE Cells were not capable of indicating when the lens was obscured to the point that it operated as if it was blocked by a truck. The defendant submitted, correctly in my view, that particular 7(b) did not allege that the measure omitted was the installation of sensor cells which indicated when the lenses were obscured to the point that they operated as if blocked by a truck. Putting aside the uncertainty in the evidence as to that proposition, I agree with the defendant that there would be a denial of natural justice for the defendant to be found guilty upon this re-particularised basis.
The prosecutor has failed to prove beyond reasonable doubt the omission alleged in particular 7(b). In particular, the prosecutor has failed to prove that either measure would have eliminated or minimised the risk to safety to Mr Oldknow on 18 February 2009 (or, to the extent applicable, the other particularised drivers). The defendant lacked the requisite duty under s 8(2) in that respect.
The prosecutor has failed to prove beyond doubt the particularised omission had a causal connection to the exposure to the risk to safety by Mr Oldknow (or the other drivers) on 18 February 2009.
The defendant is not guilty of an offence under s 8(2) of the Act so far as particulars 3(b) and 7 are concerned.
[90]
Particular 3(c) and 8 - Failure to ensure system had additional and independent safety measures such as hard-wired switch forward of chute
Particular 8 was in the following terms:
The defendant should have ensured that it was impossible for the delivery gates of the Reject Bin to be manually triggered by a driver when his truck cabin was beneath the delivery chute.
There are four preliminary issues which require attention in relation to these particulars. First, particular 3(c) when read with particular 8 makes it clear that the "additional and independent safety measures" referred to in particular 8 concern measures additional and independent of the reliance upon correct positioning of trucks in accordance with the sensor cells. Given the remote control operated by drivers constituted part of the safety system incorporated in the use of the sensor system, I agree with the defendant that the prosecutor's submission that hard-wire switches would be used in substitution for the use of remote controls, may not be accepted as forming part of the measure particularised in particular 8.
Secondly, there is no evidence suggesting any additional or independent safety measure as contemplated by particular 8 other than "hard-wired switches located forward of the bin chute". In my view, the defendant is correct in submitting the particular should be read as being confined to such switches located in that manner.
Thirdly, and in view of that analysis, I do not accept the submission of the defendant that there was a failure to particularise a measure. The measure is an additional independent safety measure over the software logic system employing sensor cells, namely, hard-wired switches located past the delivery chute.
The particular requires the defendant to install that system by whatever means to eliminate or minimise the identified risk.
Fourthly, in her principal submissions, the prosecutor made the following further submission:
After the first drop of chitter, the system could then be operated by a remote device such as the one used by the drivers, provided the software was programmed not to accept such a signal until and unless the first drop of chitter had been delivered or by the use of one or more further hard-wired devices positioned beyond the reject bin at places to accommodate the further drops required for a full load.
I agree with the submission of the defendant that those submissions were the first occasion the prosecutor had indicated that that was "the case the defendant had to meet" in this respect. There is no evidence whatsoever as to the proposition advanced by the prosecutor. As a matter of natural justice the defendant cannot be convicted of an offence on that unparticularised basis.
Turning to the substance of these particulars, the prosecutor submitted that a hard-wired switch situated beyond the bin chute would "necessarily result in the truck driver being out of harm's way when activating it, thereby minimising the risk".
Whilst the provision of additional layers of safety may, in a particular case, be necessary for an employer to meet its obligations under s 8(2) of the Act, the prosecution's submissions fail in this respect because there is a lack of evidence as to what is intended by "hard-wired switches" in the particular or evidence as to how a hard-wired switch would work in circumstances of the existing electronic system depending on sensors.
Similarly, the evidence does not prove beyond reasonable doubt that either the absence of a hard-wire switch accessible only forward of the bin chute or the defendant's failure to ensure such were installed, significantly or substantially contributed to the risk to Mr Oldknow on 18 February 2009 being injured or killed by reject fall from the bin.
However, there is a particular matter raised by the defendant that requires attention in this context.
I accept the submission of the defendant that, having regard to the objects of the Act, it should be found that a measure which increases risks, or which adds or substitutes its own risk to safety may, for that reason, may not be reasonably practicable within the meaning of s 28(a).
There was evidence in the proceedings led by the defendant that in some coal mines mass flow bins hang switches were employed in the form of a switch in a pendant, that is, a switch suspended on a chain but attached to a cable. That would not seem to be the hard-wired switch identified in the particulars.
However, it is instructive that the evidence identified the dangers associated with such switches; a consideration not addressed by the prosecutor in relation to hard-wired switches. The evidence as to hazards associated with pendant switches was as follows:
1. the driver has to reach for the pendant. If his truck is not close enough to it, he will open the door and lean out of the truck, risking falling out and injuring himself. Alternatively, he will get out of the truck, risking being struck by material fall from the bin or by the truck if has not been braked in position, or slipping on loose material on the ground, injuring himself;
2. when the driver finishes with a pendant it swings away and, as the truck is moving away, the pendant swings back and gets caught on or smashes onto the truck and gets ripped off as the truck drives away - or can get caught up in bin superstructure:
1. in one such case where, as would be required here, there was more than one pendant, it caused an unintentional opening of the bin chute doors;
2. in another such case, the driver got out of the truck to fix the issue and slipped on loose material on the ground, injuring himself.
The prosecutor has failed to prove beyond reasonable doubt the alleged omission in particular 8.
In my view, the prosecutor has failed to establish that an independent and additional system for the operation of the bin by a hard-wired switch accessible only if the driver was forward of the bin, in addition to remote controls, would have eliminated or minimised the risk to Mr Oldknow on 18 February 2009. It has not been proved beyond reasonable doubt the defendant had the particularised duty. The omission to take the measure did not have the required causal nexus with the exposure to the risk of Mr Oldknow's safety (or that of any other particularised driver).
The defendant is not guilty of the s 8(2) charge so far as particular 8 is concerned.
[91]
Particulars 3(d) and 9 - Failure to ensure trucks had adequate FOPS or insisted on different trucks with adequate FOPS
Particular 9 was in the following terms:
The defendant should have ensured that the trucks driven by the men had adequate overhead fall protection installed or insisted on different trucks being driven that had adequate overhead fall protection.
As earlier mentioned, the defendant submitted that particular 9 (before the word "or") was invalid in that it alleged a failure but not one to take specified measures per Kirk.
I do not accept that submission for reasons which will now follow.
The words "should have ensured that the trucks driven by the men had adequate overhead fall protection installed" are wide enough to encompass, as the prosecutor submitted, that the specified measure constituted the defendant ensuring that the trucks driven by Mr Oldknow and other specified drivers had adequate fall protection. This conclusion is consistent with particular 3(d), which alleged a failure to "ensure the system of work used by Mr Oldknow and his fellow workers was safe and without risk to health" because the "trucks being driven by Mr Oldknow and his fellow workers had no [FOPS]". The expression "used by" is wide enough, in the sense of availed of or deployed, to encompass that which was the evidence in the proceedings, namely, for example, Mr Oldknow's truck was owned by his family partnership and not the defendant or Daracon such that upon the proper construction of particular 9, when read with particular 3(d), the defendant is charged with failing to take the action of requiring trucks used by persons or entities other than the defendant to use FOPS.
However, issues arise with respect to the use of the word "adequate" to describe FOPS in the particulars. The defendant submitted that the word "adequate" assumes the measure would have become sufficient and effective to discharge the duty imposed by the Act. The logical fallacy said to be created is that the requirement for FOPS to be sufficient is assumed to be here without evidence other than the particular itself. The prosecutor cannot be allowed by mere pleading, it was submitted, to overcome the necessity to prove that the measure particularised was one that would have minimised the risk and therefore attract the duty. I will return to that issue and the preliminary issue raised by the defendant (including that the particular concerns an outcome and not a measure) after addressing some background matters, but should note here that I accept the defendant's submission as to the necessity for proof that the risk would have been minimised.
In that respect, I note the case for the prosecutor on this particular ultimately went forward solely upon the basis of the model concept FOPS developed by Mr Wiltshire, which operated upon the principles of absorbing energy.
The prosecutor's case, in this respect, must be seen in the light of the history of the proceedings. I accept the following submission by the defendant in that respect as follows:
12. In retrospect, it seems that the particular was drafted on the basis of the Prosecutor's case view that the bin was designed to be used by a CAT773 mine truck (or similar) and that such vehicles were fitted with a FOPS. However, at the close of the case the Court has no evidence that a FOPS on a CAT773 would withstand the impact of 10 tonnes of chitter dropped from Bin 802. This is for two reasons -
(a) as is now well understood and is discussed in detail below, the impact loading imparted by a drop of 10 tonnes of chitter is not known; and
(b) there is no evidence that the CAT773 had a FOPS. The protruding lip of the tipper bin on the truck might or might not have been a FOPS. It would be speculation to find that it was.
13. Thus, it was not until the Defendant served Dr Shane Richardson's first report that there was evidence regarding this issue in the proceedings. As has been submitted orally, the function of that report was not, as was suggested for the Prosecutor, to make a case that a FOPS or a particular type of FOPS was not reasonably practicable. It was to make a case that:
(a) there was only one Australian Standard for the design and construction of FOPS;
(b) it did not apply to road-registered trucks, and
(c) a FOPS built to that Australian Standard would not have been effective to withstand the impact of a drop of either 5000 kg (5 tonnes) or 10000 kg (10 tonnes) of coal chitter from Bin 802.
14. In other words, Dr Richardson's Report 1 was evidence tending to prove that a FOPS would not have ensured the safety of any driver on the night of 18 February 2009, thereby disproving any case by the Prosecutor on particular 9.
15. As the Court knows, the Prosecutor then engaged Mr Richard Wiltshire, and, in the course of Mr Wiltshire's researches, he approached Mr Jeff Samuels at QMW Industries to assist him with practical knowledge that he did not have.
I also accept the submission of the defendant in response to the criticism by the prosecutor that it was obvious that an energy resistant FOPS would be ineffective and that Dr Shane Richardson did not consider an energy absorbing FOPS when he prepared his first two reports (because he was not asked to do so). The prosecutor did not disclose that its case was predicated on energy absorbing principles for FOPS. That case only emerged post Dr Richardson's reports (1 and 2) and, in fact, much later in the trial.
Dr Richardson's evidence as to an energy resistant FOPS, which I accept, was also that:
1. to withstand 5,000 kg (5 tonnes) a FOPS would have a mass of 2,840 kg (2.84 tonnes);
2. to withstand 10,000 kg (10 tonnes) a FOPS would have a mass of 4,686 kg (4.68 tonnes).
As the defendant submitted the relevance of the evidence was:
1. consistent with the requirement of the Access and Compensation Agreement with Macquarie Generation, the trucks sub-contracted by Daracon Mining to haul reject from Bin 802 were road-registered and used public roads, particularly when not hauling reject at Ravensworth Mine;
2. axle load limits applied to trucks using public roads;
3. it was an offence to breach those limits by overloading such a truck;
4. the truck manufacturers imposed similar (in the case of theT401, identical ) axle load limits; and
5. it was good practice to adhere to the manufacturer's steer axle limits to avoid undue wear and tear and for safety reasons.
Further, at the time of the incident there was no Australian Standard for FOPS for road trucks. The only Australian Standard for FOPS was AS2294.
The unchallenged evidence from Dr Richardson is that a FOPS designed to AS2294 fitted to a T401 would not have been able to withstand either 5,000 kg falling approximately 3.0 m in 1 second or 10,000 kg of coal reject falling approximately 3.0 m in 2.5 seconds (these measures were designed to replicate the fall at the time of the incident).
The prosecutor's expert witness on FOPS, Mr Richard Wiltshire, did not disagree. In their joint report, Dr Richardson and Mr Wiltshire explained why:
The AS2294 upper limit for energy input is 11.6kJ, whereas the energy associated with a mass of 10 tonnes of chitter falling through a height of approximately 3m is 300kJ. This means the energy to be resisted by a FOPS designed to AS2294 is less than 4% of the energy being applied in the subject impact scenario.
In terms of the energy to be resisted, the nature of the falling object and the applicable vehicles and equipment, Mr Wiltshire considered the Australian Standard (and the ISO upon which it was based) did "not contain guidance to the design of FOPS or related engineering principles" and that the standards had "no relevance for the subject incidence (sic)." A FOPS designed to the Australian Standard, he said, would not have withstood the impact of 10 tonnes of reject falling 3 m; nor would it have provided protection to the occupant of the truck.
It was in this light, as noted above, Mr Wiltshire's evidence as to energy absorbing FOPS emerged. Again, I consider the defendant's description of the meal is sufficient, in that respect, as follows:
To take into account that a road-registered vehicle to which it was fitted would have axle load limits, Mr Wiltshire proposed a model concept FOPS which, instead of operating as a shield, would be a "minimum mass" energy absorbing structure. Mr Wiltshire contended that such a structure would be based on principles of crash-worthiness and would employ materials which were available in 2008 - particularly an energy-absorbing material by Plascore called Crushlite, aluminium plates to form the crush box canopy and VHB tape to bond those plates. The posts supporting the crush box and fasteners connecting the posts to the chassis would be made of rectangular hollow steel (RHS). He suggested the possibility also of a tie-bar to attach the posts to the front of the truck's tipper bin. He provided drawings of the assembly of the FOPS over a truck cabin roof.
That model was modified as evidence unfolded and incorporated various adjustments to the commercial vehicles in order to fit that model concept FOPS.
The evidence disclosed that no energy absorbing FOPS structure existed anywhere in the world in 2008 (or 2016). Whilst Mr Wiltshire gave evidence that the technology to devise and construct such a structure was available and widely known when used in other appliances in 2008, the concept devised, even in 2016, was entirely novel and "an exploration of feasibility". The particular neither specified energy absorbing FOPS nor the modification of vehicles to accommodate them.
In the result, the defendant submitted that the failure of the prosecutor to comply with the obligation to specify the measure alleged to have been omitted as required by law is illustrated by the case now made by the prosecutor that, not only should the defendant have ensured that a FOPS was fitted to each of the drivers' trucks, but there would have to have been other not insubstantial modifications made before the FOPS might work.
Whilst the question of whether the prosecutor has met the jurisdictional prerequisite under s 8(2) with respect to particular 8 is not without difficulty, on balance, I consider that the particular does meet the requirements of the principles in Kirk. A FOPS is a self-descriptive concept which provides adequate specificity as to the action the defendant was required to take in the same way that the reference to "shotcrete" in John Holland and "beams" in Chevalley was seen to provide sufficient specificity. The conclusion is buttressed by the evidence in the proceedings which indicated, conceptually, the concept of FOPS is well known in the mining industry. Whilst, the use of the expression "adequate" may have significant consequences for the proof of the particular, it does not of itself undermine the validity of the particular any more than the use of "adequate and continuous" affected the validity of the description of "beams" in Chevalley. In that respect the particular may be contrasted with particulars found to be invalid in GPI such as "provide adequate induction" or "adequate marking collision protection".
I do not consider the reliance upon energy absorbing FOPS or the need to install energy absorbing FOPS on trucks (which in many respects is axiomatic) alters that conclusion. An energy absorbing FOPS is but one model of a FOPS. In truth, the defendant's complaint is that it was not provided particulars of the "means" by which it may install FOPS. That is a matter for further and better particulars. However, the conclusion does not mean that the ultimate particularisation of the case for an energy absorbing model concept FOPS brought by the prosecutor falls within the particulars of the charge. I will now turn to that question.
Two issues were raised by the defendant regarding particulars.
First, as mentioned, the prosecutor's case was that for FOPS to be fitted to the trucks modifications would need to be made to the trucks - to move the truck tipper bin rearwards or shortened (to fit posts to support the model concept FOPS). Modifying the geometry and components of a truck, the defendant submitted, fell outside particular 11. Secondly, it was submitted, the omission in particulars was evidence the prosecutor had failed to prove that the model concept of FOPS in her evidence would not have ensured driver safety as the measure could not be taken and safety ensured without taking additional measures which were not particularised.
The prosecutor submitted, as to the first matter, that the modifications to trucks were a necessary incident of the fitment of FOPS and did not require specification in the charge. I do not accept that submission. The reconfiguration of trucks was not proven to be an incident of FOPS per se but rather is a function of a particular model of FOPS introduced by the prosecutor as the trial advanced in order to accommodate difficulties in its case in proving viability and efficacy of her model. That resulted in evidence being led not only of equipment necessary to install FOPS, such as posts, but additional changes to the body of the truck, namely, its bin.
The prosecutor did further submit that the distance between the truck cabin and the bin involved the risk of serious injury should the driver miscalculate his position (or the mitigation of risk by reducing payload to increase the capacity of FOPS). However, I agree with the submission of the defendant that this argument merely underlines or reinforces the defendant's point.
A similar issue was raised with respect to the prosecutor's reliance upon the contention that the installation of the model concept of FOPS would have had to have been accompanied by a reduction of the payload taken in the bin of the truck. My reasons, in this respect, are similar to those given with respect to the modification of the trucks' bins. The agreed statement of facts referred to 10 tonnes of reject dropping into the bin of a truck. As to FOPS the case for the prosecution emerged what the defendant was required to meet was the defendant have made provision for the reduction in the load taken by the trucks in order to facilitate the construction of FOPS in the first place.
In any event, what is clear, is that the case advanced for the prosecution based upon the modification of the bins of truck (both their movement and shortening) fell outside the particular as charged.
I turn then to whether the prosecutor had established liability, that is, discharged the burden of proof on these particulars.
That returns discussion at the outset to the expression "adequate" used in the particular. As I will discuss in relation to particular 10, I agree with the submission of the defendant that by the use of the word "adequate" the requirement for FOPS cannot be "assumed" to obviate the risk. Nor is it axiomatic that installing such a measure could produce such a result by "mere pleading".
By the words "adequate overhead fall protection" in the particular, the prosecutor must prove, in my view, that the model or structure alleged (that the defendant has a duty to ensure was fulfilled) would have ensured health and safety by eliminating or minimising the risk.
In its principal FOPS submission, the defendant submitted, in reliance on Bulga, that the measure which the appellant had omitted to take before the incident was one which would not have "mitigated the risk but, importantly, minimised the risk".
It was contended (the substance of which I will return) that the model concept FOPS would not mitigate and certainly not minimise the risk because the model would not cover the truck cabin, thereby leaving the risk that reject would enter the cabin, even a small amount of which would risk serious injury or death.
However, the defendant also contended, again in reliance upon Bulga, that the duty to ensure health and safety imposed by s 8(2) required that the risk "be reduced to some degree" such that the defendant had "a duty to have ensured [the structure which] was fitted, was a structure which could have ensured health and safety within the meaning of s 8 - that is, a structure which would eliminated or minimised risk - not a structure which might or could have mitigated the risk".
It was contended that:
38. If all that the duty to ensure health and safety imposed by s 8(2) required was that risk be reduced to some degree - by the adoption of 'better than nothing' measures or what might be called "band aid" solutions - then there would be no requirement to apply the hierarchy of controls with a view to eliminating risk if at all possible and reasonably practicable, and if not, then reducing risk to the greatest degree possible and reasonably practicable. It is not possible to reconcile the mere application of "band aid" solutions with the principles that:
• the words "must ensure" in ss 8(1) and (2) mean to secure, guarantee, make certain and to obviate risk; and
• the general duties created by the subsections are directed at obviating risk to safety at the workplace.
Further, it was submitted that there was no suggestion that Support Advance Controller ("SAC") in Bulga could have been improved upon to mitigate the risk to a "shearer operator".
A number of observations should be made about this submission by the defendant:
1. The ratio in Bulga in this respect is that a failure to take a measure which would have "managed or mitigated" a risk to the health and safety of an employee will breach s 8(1) of the Act, even if the measure does not entirely eliminate the risk (at [118]). In the course of the reasoning of the Court of Criminal Appeal, reference was variously made to that expression (at [106]); as well as "lessen or minimise" (at [108]) and steps which are necessary but insufficient (at [109]). Those reasons were reached, inter alia, in response to a submission that the duty required of an employer was to "obviate risk not just reduce the gravity of the risk or reduce exposure to the risk" (at [55]) and "the employer must fail to ensure health and safety, not just manage risk or exposure to risk". The Court as presently constituted is, of course, bound by Bulga (although I would not wish to suggest the exact same issue raised in this matter was raised by the defendant before that Court).
2. In the broad, the Court of Criminal Appeal used a variety of expressions as set out in (1) above to identify where a contravention may occur under s 8(1) of the Act, other than in circumstances where there was a failure to eliminate a risk. The expressions used have a similar character, that is, the reduction of risk insufficiently to eliminate exposure to a risk, but I do not consider that they were used interchangeably. Rather, they appear to deal with a range of circumstances when a risk may be reduced short of elimination. It is not entirely clear what the defendant meant when it submitted the Court of Criminal Appeal treated "mitigation" as having the "same effect" as "minimisation" but it appears to me the Court was not using the expressions as strict equivalents.
3. As the Court of Criminal Appeal discussed in Bulga, the High Court stated in Kirk that the duty under the Act is contravened where there has been a failure to take a particular measure to prevent an identifiable risk. The measure is not constrained to that which eliminates the risk (Bulga at [111]). This is not to suggest that a contravention may occur in circumstance when a particularised measure would not have the effect of eliminating, minimising or managing the exposure to a risk.
4. In this light the contention by the defendant extracted above (at [598]) cannot be accepted in its terms. The obligation under the Act is to ensure safety and not to minimise or manage it (whether to the greatest degree possible or otherwise) (Bulga at [106]; see also Hunter Quarries at [80]). A contravention, however, may be established by proof that a defendant may have lessened, managed, mitigated or minimised a risk by failing to take a measure which would have that effect (Hunter Quarries at [81]). To add a gloss or a further test or construct that such measure may only constitute a contravention if the prosecutor demonstrates that the measure reduces the risk "to the greatest extent possible" is to create a requirement under the Act for liability which is neither warranted as a matter of statutory construction nor on the applicable authorities, most particularly Bulga. The true effect of the defendant's construction will be to erect a requirement that each measure pleaded must be tested against whether it reaches a criterion or requirement which is both artificial or ill-defined and most likely to lead to an unworkability in the administration of justice in the area.
5. The taking of a "better than nothing measure" or a "band-aid" solution to a serious risk to safety by an employer where greater or more substantial acts of minimisation or mitigation are available to minimise a risk might simply represent the fact that a measure to minimise, manage or lessen that was not taken in contravention of the Act. The SAC in Bulga may not have been capable of improvement to mitigate the risk but if it was then a measure as available to minimise or manage the risk that may, depending on the circumstances, have contravened the Act.
6. A measure that may in itself create new or additional risks or would be not suitable to manage the particularised risk would, at least, go to the question of reasonable practicability under s 28(a).
I turn then to whether the prosecutor had established liability, that is, whether she has discharged the burden of proof with respect to these particulars.
In the prosecutor's supplementary submissions on FOPS, it was submitted that the possibility of FOPS as a measure to mitigate the particularised risk was "obvious". In summary, the following submissions were made as to liability:
1. First, the system of work provided for the trucks to drive under a bin that had the potential to release a great deal of kinetic energy in the form of coal reject or chitter released under force of gravity. The only safety measure in place to control the risk posed by the reject bin depended upon the proper functioning of the PLC controlling the operation of the hydraulic bin gates.
2. Secondly, the use of trucks that have some form of FOPS, such as CAT-773 type trucks, was commonplace in the mining industry. That is, the concept of FOPS was not unknown to the defendant as an available measure to mitigate the risk of falling objects causing injury or death to vehicle drivers.
3. Thirdly, the original design diagram prepared by DEMAT for the recommissioning of Reject Bin 802 prepared in March 2007 had contemplated the use of CAT-733 type trucks. This is consistent with the evidence of Mr Farrelly that the bin was intended for a Caterpillar style truck and the evidence of Mr Ambrose that the PLC code was originally written with CAT-773 type trucks in mind.
4. Fourthly, there is evidence that at the time of recommissioning the bin, CMOP initially used a CAT-773 type mine truck.
5. Fifthly, there is evidence from Mr Samuels that in 2008, his company was engaged in the business of fitting FOPS to road registered vehicles, including making any necessary modifications that may be necessary, such as repositioning the tipper bin.
6. It is not in dispute that the defendant did not ensure that the trucks driven by Mr Oldknow and the other drivers had any adequate fall protection installed on them. In fact, there is no evidence the defendant made any inquiries or investigations to ascertain whether such a measure might be practicable at any time from the date on which it assumed control of Reject Bin 802 up to and including the date of the Incident (18 February 2009).
It was submitted that having regard to the foreseeability of the risk and of FOPS as a measure that might "mitigate the risk", the defendant can succeed if it makes out a statutory defence (about which separate submissions were made).
In summary, the defendant's primary submission as to this particular on liability was as follows:
1. on the whole of the evidence, the prosecutor's case as to her model concept FOPS does not rise to the level necessary for her onus on particulars 3(d) and 9 to be discharged;
2. there is no evidence, as is required - let alone evidence proving beyond reasonable doubt - that the model concept FOPS would have ensured the drivers' health and safety within the meaning of s 8(2) for any or all of the following reasons:
1. a concept of a structure cannot ensure health and safety;
2. where the evidence is all one way, that testing would need to be done to determine whether the model concept FOPS would ensure safety within the meaning of s 8(2), and if it has not been tested, the model concept FOPS could not be found to ensure health and safety;
3. the prosecutor has failed to prove beyond reasonable doubt that, if implemented, Mr Wiltshire's design would have ensured the health and safety of the occupant/s of the trucks operating Bin 802 on 18 February 2009.
The Court's determination of this issue turns upon its consideration of the evidence of experts, specifically that of Dr Richardson, Mr Wiltshire together with the evidence of Mr Jeff Samuels and, to a lesser extent, Mr Greg Dikranian.
The reports of the experts were as follows:
1. Wiltshire Reports:
1. Report on Design of Falling Object Protective Structure (FOPS) in the matter of Nash v Resource Pacific Pty Ltd, dated 3 May 2016 (Ex 150) ("Wiltshire Report 1");
2. Supplementary Report on Design of Falling Object Protective Structure (FOPS) - Repositioning of Tipper Bin in the matter of Nash v Resource Pacific Pty Ltd, dated 10 June 2016 (Ex 151) ("Wiltshire Supplementary Report");
3. Report on the Design of Falling Object Protective Structure (FOPS) - Repositioning of Tipper Bin, dated 27 July 2016 (this report was not pressed) ("Wiltshire Report 2");
4. Report on the Design of Falling Object Protective Structure (FOPS) - Loads and Design Requirements, dated 27 July 2016 (this report was not admitted into evidence) ("Wiltshire Report 3");
5. Report on the Design of Falling Object Protective Structure (FOPS) - Design and Analysis Details, dated 27 July 2016 (this report was not admitted into evidence) ("Wiltshire Report 4"); and
6. Report on the Design of Falling Object Protective Structure (FOPS) - Manufacture and Testing, dated 27 July 2016 (redacted version of this report is Ex 183) ("Wiltshire Report 5").
1. Richardson Reports:
1. Report on Proposed FOPS Structure: Kenworth T401 Rigid Tipper FOPS Structure, dated 29 March 2016 (Ex 152) ("Richardson Report 1");
2. Supplementary Report on Proposed FOPS Structure: Kenworth T401 Rigid Tipper FOPS Structure, dated 6 April 2016 (Ex 153) ("Richardson Report 2");
3. Proposal for Design and Manufacture of FOPS, dated 22 June 2016 (Ex 154) ("Richardson Report 3");
4. Updated CV and schedule of costings (Ex 156) ("Richardson Report 4"); and
5. Supplementary Report on Mr Wiltshire's Report 5 Design of FOPS Manufacture and Testing, dated 2 September 2016 (the redacted version of this report is Ex 185) ("Richardson Report 5").
1. Joint report prepared by Dr Shane Richardson and Mr Richard Wiltshire in the matter of Nash v Resource Pacific Pty Ltd, dated 17 June 2016 (Ex 155) ("the Joint Report").
It will be noted from the above that Wiltshire Reports 3 and 4 were excluded after an objection taken by the defendant by notice of motion date 16 August 2016. So too were various parts of Wiltshire Report 5. That judgment was given on 14 September 2016 upon the close of argument on those issues. It was indicated that reasons may be given in the final judgment in the matter. This component of my judgment represents my reasons for judgment in that respect. My reasons for the determination are as follows:
1. Prior to the conclave conducted on 15-17 June 2016, Richardson Reports 1 and 2 and Wiltshire Report 1 and the supplementary report were filed. Those reports also predated the production of the Joint Report of the experts on 17 June 2016. The defendant's summary of the Joint Report is adequate for present purposes, as follows:
1. Mr Wiltshire and Dr Richardson agreed (at [1]-[3]) that a FOPS designed to the Australian Standard would not be able to withstand a fall of 10 tonnes of reject falling in 2.5 seconds onto a truck cabin located 3.02 m below, and that it was extremely unlikely that such a FOPS would provide any effective protection to the occupant of the truck whatsoever (at [5]);
2. the experts devoted themselves almost entirely to considering the efficacy of a FOPS designed to an energy absorbent model proposed by Mr Wiltshire, being a revision of the model he proposed in his report dated 3 May 2016;
3. In addition, Mr Wiltshire opined (at [48]) that development time for his energy absorbing FOPS would be between two and four months;
4. Dr Richardson also opined (at [149]) that while development time could be between two and four months, operational evaluation, testing and validation would take longer, and thought (at [49]) that testing for operational usage could take three months or greater. Dr Richardson questioned (at [51]) whether the time and cost to develop a commercially available energy absorbent FOPS needed to be evaluated against other strategies to mitigate or eliminate the risk.
1. After the Joint Report was filed the defendant adduced, on 22 June 2016, Richardson Reports 3 and 4 concerning the likely time and cost of designing, testing and manufacturing Mr Wiltshire's proposed model FOPS (which he had developed in the conclave).
2. On 28 June 2016, the Court made an order that the prosecutor file and serve "all remaining experts reports" by close of business on Friday, 29 July 2016 ("the orders").
3. On 29 July 2016, the prosecutor served on the defendant four new reports by Mr Wiltshire (Wiltshire Reports 2, 3, 4 and 5) ("the reports").
4. The first question arising as to admissibility is whether the orders permitted the prosecutor to file, without leave, Wiltshire Reports 3, 4 and 5 (so far as that report was not admitted).
5. Before the orders were made, there had been an exchange of expert reports and a conclave of those experts and a joint report on the issues in those experts' reports. Boiled down to their essentials, the issues in those reports were:
1. Whether a FOPS built to the Australian standard could have ensured the drivers' health and safety, and
2. Whether a concept model FOPS based on a principle of absorbing rather than resisting energy, designed by Mr Wiltshire and revised by him in the conclave, could or would have ensured the drivers' health and safety.
1. Shortly after the joint report, the defendant served a time and costings report which amplified another issue raised in the conclave (Ex 155 at [48]-[49], [51]) - the time it would take and the cost of designing, testing, manufacturing and developing a FOPS according to Mr Wiltshire's revised design. This went to the issue of reasonable practicability. On 24 June 2016, through her counsel, the prosecutor stated she needed an opportunity to respond. On 24 and 28 June, the prosecutor through her counsel complained of and objected to the time and costings reports of Dr Richardson date 22 June and an affidavit by Mr Ryan Flanagan. On 28 June, Dr Richardson's 22 June (Richardson Report 3) report was admitted into evidence (Ex 156).
2. The orders were made in response to the prosecutor's application for time to respond to the Richardson Report 3, as to time and costing, and for time to respond to Mr Flanagan's affidavit if it were to be admitted into evidence. The orders fixed a timetable which did not provide for more than three weeks for the defendant to respond after service of the reports envisaged by the orders.
3. On 6 July 2016, the Court ruled that Mr Flanagan's affidavit was inadmissible (Nash v Resource Pacific Pty Ltd (No 2) [2016] NSWIC 8). The consequence was that the only work which the orders had to do was to provide a timetable for the prosecutor to respond to the Richardson Report 3 and for the defendant to respond to that response. Wiltshire Reports 3, 4 and, so far as not admitted, 5, significantly went beyond that subject matter of time and cost and, as I will discuss now, substantially altered the model concept FOPS even permitting for the process of revising that occurred during the conclave.
4. In my view, Wiltshire Reports 3, 4 and 5 (so far as not admitted) were filed inconsistently with order 2. Whilst the order contains an ambiguity, the Court may have regard to the course of the proceedings in which the orders were made. In this case, there had been an exchange of expert reports, a subsequent conclave and a joint report followed by a report of the defendant shortly thereafter amplifying a particular issue raised for the first time in the conclave (time and cost). The orders arose from an application by the prosecutor, which by virtue of submissions made on 27 and 28 June 2016, were directed to the Richardson Reports 4 and 5. The very nature of the orders made, being of short duration, confirm that limited opportunity. The orders corresponded with the stage of proceedings and took into account the taking of concurrent evidence. In substance, the Court refused leave to depart from those orders both in the aforementioned circumstances (including an application to do so) and having regard to what follows.
5. The next issue is the question of particulars. The particulars provided in the charges in relation to this part of the charge provide the bare bones of the prosecution's case on FOPS (as earlier discussed). There was nothing in the prosecutor's opening address as to the nature of the structure which would have made a FOPS, as pleaded, "adequate". The only evidence from the prosecutor as to what sort of FOPS might ensure health and safety of the drivers had been led from Mr Wiltshire's evidence. That was the means by which the defendant may discern the prosecutor's case as to particular 9. That was given eventually by Wiltshire Report 1 and the Joint Report. In the Joint Report, changes were made from the model concept FOPS but Wiltshire Reports 3, 4 and, to the extent not admitted, 5 significantly changed the prosecutor's case for the efficiency of an energy absorbing concept model of FOPS. It changed numerous parameters for the design of the structure, features of the structure itself and changed and added hypotheses on which the rationale for the efficiency of the structure depended. In my view, permitting the prosecutor to rely upon the further reports from Mr Wiltshire in the manner that it did and at the time that it did, would have been to bring upon the defendant an oppression and unfairness.
6. By the change of opinion and consequential changes of her case, both as to non-efficiency of a standard compliant FOPS and features of the concept model FOPS, the prosecutor undermined, in my view, both the conclave and the Joint Report, which was ordered by the Court upon the basis of the consent of the parties. I agree with the submission of the defendant that it would be unfair for the defendant to have to meet substantial new evidence which changed the evidence of the prosecutor and changed the prosecutor's case when the defendant participated in the conclave process in good faith and all parties were entitled to assume that the outcome of the conclave would not be subverted.
7. The provisions of the Uniform Civil Procedure Rules 2005 (NSW) relating to expert evidence, in particular conferences between expert witnesses and joint reports arising from such conferences, do not apply to criminal proceedings. Hence, the provisions did not govern this trial. However, the general law must be that the purpose of the conclave and the consequent joint report is to facilitate the administration of justice in proceedings by identifying for the Court and the parties areas of agreement and disagreement between expert witnesses. It is the antithesis of a conclave of expert witnesses and the consequent production of a joint report for evidence to be led which substantially contradicted and undermined that process, in particular the product of that process - the Joint Report. I agree with the submission of the defendant that where experts qualified by parties had been required by direction of the Court to confer and prepare a joint report and have done so including reaching agreement on some issues, the Court should be slow to permit one of the parties to adduce evidence, from an expert witness who participated in the conference and prepared a Joint Report, which includes an opinion contrary to the opinion agreed to in the Joint Report or substantially changing it: Lucantonio v Kleinert [2009] NSWSC 929 at [6] (per Brereton J). That principle is not universal but will have great force in circumstances where the effect of granting permission to call such contrary evidence may be oppressive. This meets with the basic principle that, as a matter of fairness in a criminal trial, the prosecutor is required to formulate the basis upon which it puts its case against the defendant, call that evidence in its case and essentially adhere to that case: Wood v The Queen [2012] NSWCCA 21 at [654].
8. One feature of the approach by the prosecutor is that it effectively robbed the defendant of an opportunity to respond to the new reports within the timetable which had been set by the Court, which was, in turn, critical given the length of the proceedings and the stage the proceedings were at on 28 June 2016 and at the time of the ruling of the Court on 14 September 2016.
I will return now to the discussion as to whether the prosecutor has proved this particular. However, it is useful given the discussion which will now follow to extract the prosecutor's submission on the statutory defences as follows:
12. The prosecutor submits the Court would find that the defendant has not discharged its onus and that, on the balance of probabilities, it was reasonably practicable for the defendant to have ensured that the trucks driven by Mr Oldknow and his fellow drivers had FOPS. In summary this is because:
(a) While the prosecutor does not assert that a FOPS design based on energy-resisting principles that was commercially available in 2008 was capable of mitigating the risk, Dr Richardson and Mr Wiltshire agree that it was possible to develop and manufacture a FOPS in 2008 based on energy-absorbing principles of the kind proposed by Mr Wiltshire in his first report;
(b) The experts further agree that, subject to proper testing and expected usual design refinements, the design proposed by Mr Wiltshire in his first report was capable of protecting the driver of a T401 truck in the event of a discharge of approximately 10 tonnes of chitter from the bin and would have mitigated the risk in the circumstances of the Incident itself;
(c) The mass of the FOPS design proposed by Mr Wiltshire in his first report would not have significantly reduced the amount of the payload that could be carried by the truck without breaching mass and/or dimension requirements under the Road Transport legislation; and
(d) The cost and timeframe for developing and manufacturing a bespoke FOPS as proposed by Mr Wiltshire in his first report were not disproportionate to the risk and its consequences, both of which were foreseeable and serious.
What was fundamental to the defendant's contentions on liability was that the prosecution cannot satisfy the Court beyond reasonable doubt that the defendant had breached s 8(2) in circumstances where the FOPS model was, as the measure to ensure safety, a design of a model concept which had not been the subject of any physical testing or proof. The highest the prosecutor's case reached, it was contended, was a hypothesis supported by a "thin veneer" of modelling without that which both experts considered necessary - physical tests to provide input data to allow proper characterisation and qualification of the loading requirements for the model concept of FOPS. The defendant's case went further - it was contended the prosecutor had not proved that Mr Wiltshire's concept for "overhead fall protection" could have ensured health and safety.
Some aspects of the evidence requires attention in the consideration of these submissions. It was submitted by the prosecutor that ultimately both Mr Wiltshire and Dr Richardson agreed that an energy absorbing FOPS of the kind proposed by Mr Wiltshire would prevent a large proportion of the 10 tonnes of reject (which fell at the time of the incident) from entering into the cabin of the truck. Consistent with the above submissions, the defendant disputed that such a conclusion was available on the evidence.
In his first report Mr Wiltshire opined that in the period March 2008 to February 2009, it was: "possible to, 'Design a FOPS which could have been utilised to mitigate or eliminate the risks', in the subject incident…".
Further, in his first report, Mr Wiltshire said of his model concept energy absorbing FOPS:
70. I … consider that given a better understanding of the actual load requirements and an optimised mass sensitive design, a suitable FOPS with a mass in the order of 650 kg (or even less) could be achievable.
71. My opinion is based on that fact that at March 2008, the appropriate engineering design technology was well established, and suitable energy absorbing materials were commercially available.
In the absence of testing Mr Wiltshire's approach was "to form a reasonable view as to how the chitter impact is imparted to the crush box" (original emphasis). Throughout his reports and his oral evidence, Mr Wiltshire made it clear that his design activities should be considered to be "explorations of feasibility" and that "the design of any structure for crashworthiness/high energy impact has to be validated by physical tests." He stated that it was possible to design a FOPS which could be utilised to mitigate risk of the incident, this was "based on the premise that any design or design modifications would be based on physical tests to estimate the actual impact loads".
By Dr Richardson Report 5, the author stated:
As a result of the lack of scientific, engineering and/or published information it is necessary to use a first principles approach for estimating the potential and kinetic energy of the coal chitter. This was the approach adopted at the conclave and continues to be the approach of the author, because there is no currently available scientific, engineering and/or published information and a safety critical FOPS would be otherwise unsafe without physical testing or proof.
Dr Richardson gave an opinion that the Wiltshire model, being "predicated upon unknown values and an assumption that everything will work" is "a recipe for disaster in the development of a safety critical system". He critiqued the model for its simplicity, (internal) contradictions, a fundamental failure to understand; costings and a failure to be "responsible".
In the Joint Report, the experts answered in the affirmative the following question:
During or prior to the period March 2008 to 18 February 2009 was it possible to design a FOPS which could have been utilised to mitigate or eliminate the risks referred to above in the circumstances referred to above?
The facts and circumstances to which the question was directed were the minimisation (or elimination) of the risk to health and safety of a truck driver consequent upon his truck cabin being struck by "10 tonnes of chitter [falling] 3.02 m partially onto [the cabin] and partially into the bin behind the cabin, on 18 February 2009". Dr Richardson stated, in an observation accompanying the answer to that question, "an energy absorbing structure for 10,000 kg of falling chitter is possible" and, further:
Dr Richardson accepts the methodology in general terms that Mr Wiltshire is putting forward and that methodology may lead to an energy absorbing FOPS which could address 10,000 kg of falling chitter, however, it remains a concept today as of June 2016 not a commercially available product.
The experts were asked the following question by the Court in the course of concurrent evidence:
HIS HONOUR: … Were an energy absorbing model FOPS built to the specifications in Mr Wiltshire's first report and/or the joint report to have been fitted with the Bin 802 on 18 February 2009, would it have protected the drivers of the trucks?
Dr Richardson's answer was as follows:
WITNESS RICHARDSON: It is possible that it would have protected, or conceptually there would have been protection provided, by the energy absorbing structure. The issues that I have with the structure, as defined by Mr Wiltshire, is that it doesn't protect the whole of the cabin of the vehicle and is possible for material to have not impacted the structure or only partially impacted the FOPS and still then impacted the structure of the cabin of the vehicle, either at the front or behind, such that the occupant's space could have been impinged. That is my concern with the design, as presented by Mr Wiltshire's report 1. So, it may have provided protection conceptually.
After stating that he had an issue with the absence of loading values, he also stated in answer to the same question: "So, conceptually, I think it might work, but I don't know it as a fact".
Mr Wiltshire stated that he considered the testing of his concept to be "vital" and that "it is absolutely certain that detailed tests need to be undertaken" (he also made an observation about the model "completely" protecting the cabin of the truck to which I will return).
Dr Richardson was asked if he wished to add to his answer to those questions. He stated:
The early testing defines the problem and quantifies it. As an engineer, I want to have that definition before I start any development. So, I am going to conduct a thorough and comprehensive series of tests to understand what that load is. …
I also put forward that the fundamental object that needs to be protected in this event is the occupant of the cabin. So, it's imperative. Whenever you are conducting a test, and it's imperative, I don't really care how the FOPS performs, but it's got to protect the occupants in the actual cabin. So, you need to be testing and evaluating for that.
… I can envisage, with what's been put forward by the design as proposed at the moment, that either material fallen behind the FOPS, or falling both on the FOPS and forward of the FOPS, there could be material coming inside the cabin of a sufficient impact that will entrap the occupant of the vehicle and, therefore, lead them to the risk of becoming mechanically asphyxiated. I see that as a problem with the design, as it stands at the moment. I think you could develop it, and you need to spend time, effort and energy to get to a point where it would work. But as it stands at the moment, I disagree that the design would work. There is a risk with it. And that risk is unknown and it's unquantified at the moment. That's the problem that I have with what is being proposed.
In cross-examination his evidence was:
AGIUS: Would you agree with me that in relation to the overall structure of the FOPS, that if Mr Wiltshire's concept FOPS is developed, leaves you with a FOPS structure which is intended to, and if it's properly tested, et cetera, will prevent a large proportion of 10 tonnes of chitter from falling into the cabin of the truck?
WITNESS RICHARDSON: I think I've, from the report 2, conceptually I would accept an energy absorbing FOPS would perform that function.
Further, Mr Wiltshire accepted in the Joint Report that testing might reveal the load applied to the model would be greater than theorised in the model.
The defendant observed that no such tests were conducted leading to Mr Wiltshire, in the alternative, taking a "reasonable view of the likely loading" - a "first principles" approach to estimating the impact of the loading. The model was, therefore, not based on test or published scientific or enquiry information. There was not sufficient time or information to be able to conduct the required analysis, including an analysis of how the model may respond to a given loading.
In her principal FOPS submission, the prosecutor submitted:
19. In their concurrent evidence, Dr Richardson and Mr Wiltshire agreed it was theoretically possible, in 2008, to develop and construct a FOPS for the trucks using Bin 802 on 18 February 2009 based on energy absorbing principles of the kind proposed by Mr Wiltshire. Both Dr Richardson and Mr Wiltshire further agreed that if an energy-absorbing model FOPS built to the specifications in Mr Wiltshire's first report and/or the joint report had been fitted, it would have provided protection to the drivers.
20. Dr Richardson expressed concern that the FOPS did not protect the whole of the cabin and that it was possible for material to have not impacted the structure or only partially impacted the FOPS and still then impact the structure of the cabin. Dr Richardson also expressed concern about the lack of a thorough understanding of the forces involved in the loading as it exists coming out of the bin.
21. For his part, Mr Wiltshire accepted that an ideal design objective would be to avoid any material getting into the truck cabin at all, but made the point that material entering the cab does not necessarily mean that the driver suffers the ultimate injury (death). His point was that, having regard to the design constraints posed by the fact that the FOPS was to be fitted to a road registered truck, the design had to be compromised to some extent.
22. Dr Richardson ultimately accepted that an energy absorbing FOPS of the kind proposed by Mr Wiltshire would prevent a large proportion of 10 tonnes of chitter from falling into the cabin of the truck.
The prosecutor also submitted that Dr Richardson's evidence accepted that once property tested, "the concept would work" (the difference being only the degree of testing required and associated costs and timeframes). It was submitted that it was always possible the model may be developed by testing and the development model proposed by Mr Wiltshire was practicable and feasible.
The defendant criticised that assessment of the evidence as it failed to fully take into account the evidence of Dr Richardson. It was submitted:
50. The Prosecutor has consistently misrepresented Dr Richardson's evidence as to his position. Dr Richardson agrees that the concept of an energy-absorbing FOPS could achieve what it is intended to be designed to achieve. What he disagrees with is that, if the concept were implemented, it would work. What also must not be overlooked is that the premise in the question Dr Richardson was answering [a reference to the cross-examination of Dr Richardson by senior counsel for the prosecutor]. The premise was that the FOPS had been "properly tested, et cetera". The evidence shows that Dr Richardson's understanding of what "proper testing" involves would be much more rigorous and extensive than that proposed by Mr Wiltshire or that the Prosecutor accepts would be necessary.
Further, the defendant submitted:
58. In the absence of physical tests, Mr Wiltshire says that the only alternative was to take "a reasonable view" of the likely loading. That is, in the absence of tests or published scientific or engineering information, Mr Wiltshire and, to the extent that he has been involved, Dr Richardson also, have been forced to use a first principles approach for estimating the impact energy loading. In taking that approach, according to Mr Wiltshire he neither had sufficient time nor sufficient information to be able to conduct the analysis which was in fact required. Consequently, further analysis would be required to ascertain the response of his model concept FOPS to a given loading - analysis which has not been conducted.
59. But that is simply a reason given for the undoubted fact that the entirety of the Prosecutors case that Mr Wiltshire's model concept FOPS could have been effective to ensure health and safety under s 8(2) is based on hypotheses, with only a thin veneer of modelling to support them. As will be seen later in these submissions, that modelling actually provided little support for the hypotheses. At the end of the day, the agreed position of the experts is that those hypotheses would require physical tests to provide the input data to allow proper characterisation and quantification of the loading requirements for the model concept FOPS.
As to the prospect of reject entering the cabin of the truck, notwithstanding the presence of the model FOPS, the prosecutor submitted:
20. Development would have taken account of the area of the cabin to be protected. The main purpose of the FOPS was to protect the driver from death or serious injury. It was not to prevent any chitter at all from entering the cabin through the windscreen. It is not to the point to argue, as the defendant appears to be submitting, that the crush box needed to be of such a size that chitter could not under any circumstances enter the cabin.
21. The prosecution case is that preventing the chitter from crashing through the roof would have provided a significant mitigation of risk in the case of Mr Oldknow. It is enough to prove that the FOPS would have mitigated the risk, even if it did not prevent the incident from occurring or eliminate the risk.
22. In the incident not more than 5 tonnes of chitter fell onto the roof and or into the cabin. If only 15% of that chitter came into the cabin then only 750 kilos would have come into the cabin as against up to 5000 kilos. That chitter would have come through the windscreen and not down onto Mr Oldknow's head. A great deal of protection would have been provided. This protection satisfies a requirement for mitigation of the risk. It is for the defendant in this case to prove otherwise and it has failed to do so.
The evidence of the experts needs to be considered in light of the fact that, not unexpectedly, there was an emergence of a substantial measure of agreement through the process of a conclave and concurrent evidence, notwithstanding some reasonably strident views expressed in Wiltshire Report 1 and the Richardson Report 5 and the maintenance of areas of significant disagreement.
By and large, I do not consider that the prosecutor has overstated the measure of agreement reached between the experts, save for [22] of the prosecutor's principal FOPS submission which is too emphatic given that it made no allowance for Dr Richardson's position on testing.
In the Joint Report, the experts agreed with the proposition that the model concept FOPS would have mitigated risk arising in circumstances similar to those found in the incident. Dr Richardson accepted the methodology employed by Mr Wiltshire in the design of an energy absorbing FOPS was sound (and that methodology may lead to an energy absorbing FOPS "which could address 10,000 kg of falling chitter") but expressed a caveat, which he maintained, that the model remained a concept (in Richardson Report 5 more stringent issues as to method were, as I have noted, identified). In his concurrent evidence, Dr Richardson accepted that a protection, albeit incomplete (due to the failure of the model to take into account post impact flow of reject), would have been afforded to employees via the model albeit at a conceptual level.
The evidence given by Dr Richardson in the taking of the concurrent evidence that he disagreed that the design "worked" needs to be seen in the context of his accompanying statement "as it stands at the moment" and as to his related and proximate discussion of shortcomings in the model regarding the provision of full protection and the need for testing. Those reservations do not detract from the overall effect of his evidence that the model would provide a degree of protection and that it was capable of being brought to fruition.
I turn then to examine those issues and the efficacy of the proposed model concept FOPS of providing for safety having regard to the particularised risks. This will involve examination of the structure which was to offer protection (by FOPS) and what it was intended to protect against having regard to the incident and the agreed statement of facts.
A useful starting point is the defendant's principal FOPS submission, as follows:
88. The magnitude of the force required to penetrate or destroy the roof of the cabin on Mr Oldknow's truck was determined by the stiffness of the cab structure. If the cab structure was stiff the force required to penetrate or destroy it would be high. If the cab structure was weak the force would be less.
89. Because it was made from fibreglass, the roof of the cabin of Mr Oldknow's truck was not very strong. Accordingly, very little force was required to penetrate it. The force involved in this case was approximately 5 kN to 10 kN, equivalent to the weight of masses of between 500 kg and 1,000 kg. The nominal impact force for 5 tonnes of chitter falling 2.7 m is in the order of 1,300 kN, the equivalent of 130,000 kg or 130 tonnes. For 10 tonnes, the nominal impact force would be in the order of 2,600 kN, the equivalent of 260 tonnes.
90. It is to be noted that there was consensus between the experts that no-one actually knows what the forces that would be applied to the FOPS by the impact of 10 tonnes of chitter falling from the reject bin in this case. This was because no testing has been done to ascertain what forces were involved.
The following considerations bear upon the issues raised above and ultimately the question of liability:
1. It may be accepted as a matter of principle that the circumstances of work at the time of the incident, whereby truck drivers were required to drive under a bin which had the potential to release kinetic energy through the fall of reject on a cabin roof entirely incapable of protecting a driver in such a fall (the vehicles driven by the truck drivers referred to in the charges did not have FOPS) may attract an obligation in s 8(2) of the Act insofar as the defendant may be required, in appropriate circumstances, to provide additional layers of safety than, for example, the electronic control system or any administration controls.
2. It may also be accepted that FOPS was a known means of providing safety from overhead falling objects in the mining industry although, as the prosecutor seemed to acknowledge, by means of trucks which were manufactured with such protection. There is no evidence that the defendant made any inquiry at the time about whether FOPS was a reasonably practicable system for the protection of truck drivers.
3. My findings as to the expert opinion as to the protection afforded by the model concept FOPS.
4. The evidence of Mr Samuels was that, in 2008, his company was engaged in the business of fitting FOPS to road registered vehicles including the making of any necessary modification to such vehicles, such as the repositioning of a tipper bin.
5. Dr Richardson raised doubts about the absence of testing and the risks associated with various unknown and unqualified factors. Mr Wiltshire accepted that, what kinetic energy is imparted by a drop of 10 tonnes of reject from the chute of Bin 802 is unknown, let alone the kinetic energy imparted by the most aggressive drop (in the force of reject falling) having regard to all input variables. There is no published information on such a question. Mr Wiltshire, therefore, resorted in his model to estimations or calculations, derived from a first principle approach based upon complex physics. The undefined nature of the problem would have represented a difficulty in optimising the model.
6. There were numerous input variables. The loading required varied depending upon the variable present or absent from any given drop of reject. Examples include reject surge and moisture and variability in the bin gate doors opening times due to variability in the operation of the hydraulics powering them. Each of these factors had ranges in their variability including the flow rate itself.
7. As mentioned, Mr Wiltshire described his design process for the preparation of his first report as "explorations of feasibility". He modified the design during the conclave but never suggested that the concept he there developed represented a final model or design. The model concept FOPS as developed in revised form was a concept which might work subject to time being available to properly test it to allow qualification and characterisation of loading requirements.
8. The measure proposed is novel. As at 2008 (and even now) the FOPS structure did not exist anywhere in the world. It has nowhere been tested or proved effective. However, as Mr Wiltshire indicated, the technology to devise and construct such a structure was available and widely known as at 2008.
9. It follows that the prosecutor's case cannot rise above a proposition that the model concept FOPS may be viable, subject to physical tests to provide input data.
10. There was an omission in the modelling by Mr Wiltshire one of which will be discussed immediately below. The model concept FOPS would not prevent reject entering the front of the cabin roof or the windscreen of the cabin. I agree with the submission of the defendant that neither in his proposal for the model concept FOPS nor in his proposed testing program did Mr Wiltshire give consideration of where the mass which fell onto the FOPS would go. In Wiltshire Report 5, he considered that attempting to observe what the reject did after impact was "unlikely to achieve helpful information".
11. Mr Wiltshire's design goal had been to design a "minimum mass" energy absorbing structure rather than a shield. In the investigations leading to his Report 1 and to the Joint Report, Mr Wiltshire did not investigate what would happen to the fibreglass cabin rear if it was impacted by 750 kg of coal reject falling from a height of (having regard to my earlier discussion of the infrastructure of Bin 802) 2.7 m. Mr Wiltshire agreed that the shorter the crush box the more he limited the bending moments on the support posts.
12. The deformation plots from the finite element analysis ("FEA") in Fig 6.1 of Mr Wiltshire's first report showed the rear plate was twisting and the side, top and base plates tilted downwards at the front. This was all consistent with the crush box deforming downwards towards to the front of the cabin roof. The plascore at the front of the crush box was not crushed out but the rear of the plascore was either crushed out or very close to crushed out. This meant that, during impact, the impact load would be funnelled off the crush box towards the front of the cabin such that the plascore had either failed to absorb the energy it was intended to absorb or it absorbed in a way that was not intended.
13. In his first report, Mr Wiltshire designed the crush box so that its length was 1200 mm and, as a result of that fact and the area of the load at that stage being 1.6 m in diameter, 15% of the load would not hit the model concept FOPS he had designed (resulting in him discounting the load for modelling purposes by 15%). This was illustrated in Fig 4.4 of his report. As the defendant submitted, if, in fact, the reject fell as shown in Fig 4.4 then 7.5% of the reject would have impacted the front of the top of the roof of the cabin and the windscreen and 7.5% would have fallen into the area between the rear of the cabin and the front of the tip of the bin. I agree that no consideration was given to the safety implications of this post impact flaw (although it might be noted that the drawings in the first report, showing the dimensional relationship between a crush box and a cabin roof of T401, showed both the front of the truck cabin roof and the windscreen project beyond the front of the crush box). If the reject missed the FOPS and fell at the velocity of gravity, given that the cabin roof had limited stiffness, its capacity to withstand the impact was negligible. If half of the 15% of 10 tonnes (750 kg) falling from a height of 2.7 m had hit the front of the top of the cabin roof it would have been completely crushed.
14. Mr Wiltshire initially stated in answer to the same question in the conclave that the design would have "afforded complete protection" but qualified his answer by stating that the design was achieved in about a week; thus, with limited time. He then added in answer to a question about "post impact flow":
WITNESS WILTSHIRE: Yes. The ideal situation would be that all of the chitter is, or the design of the FOPS, or the protective structure, whatever one wants to call it, to the extent that one can, it will have to avoid any material getting into the cab at all. There are, however, constraints on the design. It's not possible to have an unlimited mass of the FOPS. So, there will always be a trade-off between what can be achieve within the design parameters, which includes, it's got to be fitted to a road registered truck.
But what Dr Richardson says is a point well made. If the design can avoid any material whatsoever going into the cab, then that's obviously a very good design objective and one that one should try to achieve. But material entering the cab does not necessarily mean that the driver suffers the ultimate injury. It's a compromised design. The weight is important, and testing is definitely required to look at that.
I think the early stage testing, the important thing is to get as good an idea as possible of what the loads might be. Otherwise, one is progressing the design without knowing sufficient about what the structure has to achieve. So, in the early stages of testing, I think the important thing is to get whatever information we can because we started off with simply not knowing enough.
1. Even a tiny proportion of a 10 tonne load entering the cabin through the roof had the potential to be serious, if not fatal. That risk would be significantly magnified in the postulation by the prosecutor that 15% of 5 tonnes or 550 kg might come into the cabin through the windscreen.
2. The defendant was correct to submit that the model concept FOPS would not have prevented some reject entering the cabin through the roof (at the front) or the windscreen. I also agree that the computer modelling of the design for Mr Wiltshire's model concept FOPS when properly analysed allowed for reject to penetrate the roof of the cabin. What quantity may enter the cabin was not the subject of modelling. However, small quantities (of the percentages I have mentioned above) had potential serious health and safety implications for the occupant of the cabin. All this followed because the modelling did not provide for covering anything like the whole of the cabin roof and windscreen of Mr Oldknow's truck.
3. The defendant pointed to various other defects in the efficacy of the model concept FOPS which will be elaborated upon in discussing the statutory defence. I accept deficiencies exist in the areas of modelling there discussed.
As earlier mentioned, the defendant submitted that whilst the concept model FOPS might "work", the defendant could not be found guilty for omitting to do something which conceptually might possibly work, particularly in circumstances where the model has been demonstrated to have many flaws including one which permitted potential injury or death to the occupant of a truck. It was submitted, on this basis, that the prosecutor had failed to prove beyond reasonable doubt that the model concept FOPS would have eliminated or minimised the risk to Mr Oldknow or any other driver. Alternatively, it was submitted that a model concept FOPS would not have mitigated the risk to Mr Oldknow or any other driver. Further, the defendant submitted that there was no causal relationship between the omission to ensure trucks such as Mr Oldknow's had been fitted with energy absorbing FOPS or the model concept FOPS and the pleaded risk whether to Mr Oldknow or any other driver.
The prosecutor contended that it was not the point that the crush box needed to be of such a size that the reject could not under any circumstances enter the cabin. It was enough for the prosecution to prove that the FOPS would have mitigated risk, even if it did not prevent the incident from occurring or eliminate the risk. It was in this context that the prosecutor argued that if only 15% of reject came in, then only 750 kg would have come into the cabin as against 5000 kg and the reject would have come through the windscreen and not down onto Mr Oldknow's head. A great deal of protection would have been afforded and, at the very least, there would be substantial mitigation of the potential risk of death or injury because the model concept FOPS would prevent a large portion of the 10 tonne discharge from the bin from falling into the cabin of the truck.
Stripped of the form of the particulars, and concentrating on the question of liability assessed in the light of the revised model concept FOPS proposed by Mr Wiltshire, there is some force in the prosecutor's submission. The defendant did not require FOPS to be fitted to the vehicles. The report of the experts and their evidence during the conclave was to the effect that it was possible to design a FOPS which could have been utilised to mitigate or lessen the particularised risk by preventing the fall of a substantial proportion of the 10 tonne of reject which fell onto Mr Oldknow's truck falling into the cabin, albeit that the protection afforded by the model FOPS was not such that would have provided complete protection.
What is clear is that there was a sharply defined disagreement between the experts about not just timing and costing, as the prosecutor submitted, but the inadequacy of the model in terms of its design parameters (the minimum mass model leads to the prospect of post impact flow into the cabin with dangerous consequences) and testing as to the veracity of the model.
Neither lacunae in the model or its development, as identified by Dr Richardson, detracted from the basic proposition that the concept did permit a minimisation or mitigation of the uncontrolled risk and that there existed, as Mr Wiltshire explained, the technology and know-how in 2008 to put the concept, after testing, into commercial application.
The evidence demonstrated that the model was something the defendant could have developed, but did not. That it is conceptual in nature does not undermine the viability of the model to afford protection, unless it can be shown that it is incapable of doing so. The evidence does not support that conclusion or that the model is merely a "band-aid" solution.
The model is feasible as a measure of protection against a very serious, uncontrolled risk and, in that sense, the bringing of the model to fruition by its installation on the trucks falls within the obligation of an employer under the Act: it was necessary to explore proactively this means of protecting "the men" by the development and installation of FOPS on the trucks.
I do not consider that the authorities permit a conclusion that a contravention of s 8(2) might not be found by virtue of the fact, as here, that the safety system did not afford a full means of protection or that it left significantly unchecked an uncontrolled risk. It was not contended that the system proposed might itself create a risk to health and safety. That issue can await consideration in the development of this area of law.
The fact the model is conceptual, has flaws in that the modelling is thin and in need of testing and ultimately may leave a significant residue of risk capable of producing serious injury (albeit providing some protection) are matters which, in my view, are relevant to the statutory defence afforded the defendant under s 28(a).
However, the question arises as to whether that conclusion may be altered as a result of the particular referring to "adequate FOPS".
The use of the adjective "adequate" in particulars in the manner in which the prosecutor has in particular 9 gives rise to a question as to whether the particulars should be construed as one which particularises that the defendant should have eliminated or minimised or mitigated the risk or one which establishes a qualitative differentiation which requires the particular to be tested against whether the proposed model concept FOPS was both feasible and efficacious in obviating the risk or, to employ a dictionary definition, whether the FOPS is proportionate to requirements, sufficient or satisfactory. Presumably, as earlier mentioned, at the very least the measure so particularised may only be proved if the measure is something the employer may have done.
It follows that I do consider that the prosecutor has satisfied the Court beyond reasonable doubt that the defendant has breached s 8(2) of the Act by omitting to take the measure in particular 9.
The prosecutor has proved beyond reasonable doubt that the measure would have minimised or mitigated the risk to safety to Mr Oldknow on 18 February 2009 (or, to the extent applicable, the other particularised drivers). Further, I consider that the prosecutor has proved that there was a causal connection between the omission to take the measure and the exposure to risk of Mr Oldknow or other drivers.
However, I have formed the view that, for the reasons I will now give, the defendant has overwhelmingly established a defence of s 8(2) charge so far as particulars 3(d) and 9 are concerned.
The reasons I have come to that view are as follows:
1. no reasonable colliery operator in the position of the defendant could possibly be expected to take a measure (not the ensuring the FOPS was fitted) which did not protect the whole of the cabin roof, the front of the roof and the whole of the windscreen. That conclusion has greater force when the assessment of whether the measure was not reasonably practicable is determined without the benefit of hindsight.
2. It was not incumbent upon the defendant to take a measure which was novel, untested (in particular, the loading had been inadequately tested) and untrialled. The model concept FOPS had not been successfully designed, had never been tested to determine whether it would work at all and had never been in operation. Coextensively with the previous reason, it would not have been reasonably practical for the defendant to take a measure which, on the modelling by the prosecutor's expert, it would have permitted most of the load to have entered the cabin by a penetration made in the front of the roof by the front of the crush box.
3. The prosecutor submitted that the measure of fitting FOPS was obvious given the risk associated with material falling onto the roof of the cabin from Bin 802. There is some substance to this submission given that the duties under the Act require the defendant to effect in essence layers of safety. The fact that the bin had a higher order of functional safety by an engineering control does not overcome that consideration in terms of the statutory defence given the gravity of the offence. However, the defendant is correct to submit that, as at 2008-09, it was not unusual in the Hunter Valley to see a surge bin operated by road trucks without FOPS. After the incident the regulator published a safety alert about the risk in this case. That alert included a number of recommendations none of which incorporated trucks operating mass flow bins at coal mines having FOPS attached to them.
4. Reasonable practicability is to be judged by reference to availability and suitability of ways to eliminate and minimise the risk. This needs to be measured in terms of the only evidence as to a model of FOPS available to be used at the time of the incident. In this respect I accept the submission of the defendant, in application of the principles in Cleary Bros, that the model concept FOPS was not reasonably practicable because:
1. it would not have been of a mass which could have been fitted to a road-registered truck. The risk would be that fitting a FOPS such as the model concept FOPS would not only involve a breach of the law but expose drivers and other road users to detriments to their safety.
2. it would have been highly expensive, time-consuming to implement and costly to operate (resulting in lost payload to the defendant and to the subcontractors when working on other jobs), particularly if it were to be installed on every truck which operated the bin.
Before expanding upon those reasons, I would note my acceptance of the aid memoire submission that the assessment of questions such as time, cost and effort in implementing a measure need to be balanced against the value of the FOPS structure in reducing the particularised risk. My findings as to the issues with the structure and its design are such that the fitment of the FOPS would be undertaken in relation to an untrialled and untested structure which, on the evidence, would leave, by design, a serious issue as to safety unchecked such that there would still be a serious risk of death or serious injury if the measure adopted as constituting adequate FOPS on the prosecutor's case were applied by the defendant in 2008-09.
It is with those considerations in mind that I turn to the issue of the mass of the model concept FOPS on the evidence. It is clear that Mr Wiltshire's proposed model concept was designed to take into account, as earlier discussed, an energy resisting FOPS designed to withstand 10 tonnes would have placed so much weight on the front axle of a truck as to leave no room for a payload in the tipper bin. The model concept FOPS was said to overcome that difficulty because it provided a minimum mass energy absorbing structure.
My acceptance of the submission by the defendant in relation to "mass" is predicated upon a conclusion, on the evidence, that, in order to provide protection to the truck driver from the risk of death or injury the FOPS fitted would weigh so much that the front axle load limits set by law and by the manufacturer's rating for Mr Oldknow's truck would have been either exceeded or so close to the limit as to leave no room for a viable payload.
In the Joint Report, it was agreed that Mr Wiltshire's design as presented in his first report, based on modelling 5.1 tonnes of reject falling approximately 2.7 metres onto the model concept FOPS would result in a FOPS mass of approximately 630 kg. It was also agreed that, if the load was increased from 5.1 to 6 tonnes, the mass would increase to what Mr Wiltshire suggested was less than 800 kg.
By the conclusion of the conclave, Dr Richardson and Mr Wiltshire had agreed that the mass of Mr Wiltshire's concept FOPS was likely to be greater than 800 kg to take account of the change in loading strategy. They disagreed as to the extent of that increase. Mr Wiltshire suggested that it would be less than 200 kg (ie, a maximum possible total weight of 1 tonne). Dr Richardson estimated an increase of between 100 kg and 400 kg (ie, a maximum possible total weight of 1.2 tonnes). In evidence before the Court, he increased this estimate to something in the order of 1.2 tonnes up to 1.5 tonnes if the design was altered to cover the entire structure of the cabin.
The prosecutor advanced the following submission as to the findings the Court should make regarding mass:
26. In his evidence in Court, Mr Wiltshire adhered to his opinion that the total mass of the FOPS would be less than 1,000 kg and probably less than 900 kg. It was apparent from Dr Richardson's evidence, that he was unable to identify any scientific basis for his estimated increase of between 100 kg and 400 kg. At best it was a guess.
27. Further support for Mr Wiltshire's estimate of the mass of his FOPS design is provided by the evidence of Mr Samuels, who estimated a total mass of 954 kg.
The prosecutor submitted that the Court would accept Mr Wiltshire's evidence as to the likely mass of the concept FOPS over the estimate provided by Dr Richardson, which had no scientific basis. On that basis, it is submitted the Court should find that the likely total mass of the FOPS proposed by Mr Wiltshire would be no less than 800 kg and no more than 1 tonne as fitted to a truck. I will return to Mr Samuel's evidence shortly but it should be immediately noted that I do not accept the prosecutor's submissions in this respect.
I have found the crush box in the model concept FOPS did not arrest or attempt to arrest a hazard vis-à-vis post impact flow which was known to both experts in the consideration of the design of the model. In those circumstances I consider that the question of reasonable practicability needs to be undertaken in the light of adjustments to the model which may remove that deficiency. This is not a matter of accepting the tests sought to be developed by the defendant, with respect to liability, that in considering whether a measure may mitigate a risk for the purposes of s 8(2) there must be an assessment made against a standard that the measure must provide minimisation to the greatest extent possible. Rather, the question, in this context, is whether it is reasonably practicable for an employer to adopt a measure which is known, on a scientific or engineering basis, to be deficient in providing for the health and safety of workers (that is, truck drivers) where modelling is available to rectify that deficiency. Put in another way, in examining whether it is reasonably practicable to comply with the provisions of s 8(2) (see Hunter Quarries at [80]), where the measure propounded in the particulars is based upon a construct which is conceptual in nature (and subject to testing), it would be entirely artificial to test the efficacy and viability of the measure in the absence of design features which are known to be required to make the measure practicable to provide for the health and safety of workers (and the development of the model).
It may be noted, in that respect, in cross examination Mr Wiltshire acknowledged both the need to increase the size of the crush box if the cabin including the windscreen were to be protected with the consequent increase in the stresses on the crush box and the bending moments at the support posts. That concession alone raises issues about Mr Wiltshire's estimate for the mass of the FOPS. At the very least, it requires that the model concept FOPS be judged in the light of what was necessary to meet the health and risks arising from the post impact flow. The concerns, in this respect, were the length, width and depth of the crush box (in order to avoid that consequence). It shall be sufficient for the purposes of this judgment to focus upon the length of the crush box as, to add that change would, on the evidence, eliminate or minimise post impact flow reaching the cabin via the roof or windscreen. The introduction of that feature to the crush box demonstrates, in part, the measure proposed is not practicable.
However, there were issues of credit raised to which I will firstly turn.
It may be immediately acknowledged that both expert witnesses had specialised knowledge in the relevant areas of physics, mathematics and mechanical engineering, although I agree with the submission of the defendant that Mr Richardson appears to have had a greater body of experience and knowledge in the design and constructions of ROPS/FOPS.
Both parties submitted that the respective witnesses became an advocate for the parties' respective cases. I consider those submissions to be overstated but it is clear that at various stages of the proceedings both experts, to significantly varying degrees, gave the impression of having an investment in their respective models or positions. The manner of Mr Richardson's approach to Mr Wiltshire's evidence in the final stages leading up to and during the concurrent evidence might suggest that was the case (the prosecutor was correct to refer to hyperbole and ad hominem attacks). However, of greater significance was the investment of Mr Wiltshire in his idea of energy absorbing FOPS and how that affected his evidence.
The defendant drew particular attention, in this respect, to some of the opinions expressed by Mr Wiltshire and significant assumptions with no supporting evidence.
One observation, in that respect, concerned a 40% discount of impacting energy for internal impacts that Mr Wiltshire suggested would occur between particulars of reject whilst the reject was falling. I will extract the defendant's submission in that respect, which I consider is correct, below:
217. Mr Wiltshire's assumption about internal energy of any chitter load dropped from the bin was that vertical kinetic energy of the falling chitter would become absorbed and redirected by the chitter. He considered that this entitled him to ignore 40% on the estimated impact loading. That was how Mr Wiltshire arrived at his position of only considering 5.1 tonne of the actual 10 tonne load being dropped. He assumed 15% or 1.5 tonnes missed the FOPS leaving 8.5 tonnes impacting the FOPS but, of the 8.5 tonne, he assumed 40%, or 3.4 tonnes of the load, could be neglected with respect to the load impacting the FOPS.
218. Mr Wiltshire provided no engineering or scientific basis or reference document for the 40% discount of the estimated impact loading or even for the purported phenomenon of loss of internal energy through particles striking each other during fall. Although he denied he abandoned the discount in the Joint Report, the fact was that, by the Joint Report, he omitted it from his considerations.
219. Consistent with his expressed design intent of "keeping the impact loading on the crush within certain limits", it can be inferred that, despite his denial, Mr Wiltshire made this assumption about a discount of the energy loading by reason of an assumption as to internal energy of any dropped chitter load in order to reduce the energy loading that his model concept FOPS would have to deal with. It is a plain contradiction for a design engineer to advocate physical testing to determine the loading but to then to assert, without an engineering or other scientific basis, reference or document, that the loading imposed by the impacting mass can be reduced by 40%.
220. It may have been possible there was a reduction in the effective impacting mass. However there may not have been any effective reduction. In the absence of conclusive evidence (ideally test data from loads of falling chitter from the subject mass flow bin), the prudent cautious and conservative approach would have been not to discount the energy of the impacting mass.
Perhaps more telling is the defendant's analysis of velocity modelling showing deformation of the crush box. After analysis of the velocity chart in figure 6.5 and distance travelled by reject at a given velocity the defendant made the following submission which again I consider is a correct critique:
127. In his Report 1, Mr Wiltshire said he allowed for up to 150 mm for Plascore which at 70% stroke (the amount it will crush out) enabled a 105 mm crush. Parenthetically, it is to be noted that Mr Wiltshire also said that 150 mm was the depth of his crush box which, in addition to the 150 mm deep Plascore material, also required further depth to contain the rectangular hollow steel (RHS) stiffeners . The end result is that it is impossible for the Court to conclude what the structure was that Mr Wiltshire modelled.
128. Returning to the velocity chart and the sheet of distances calculated from that chart , based on the distances in the velocity chart of 209 mm to 235 mm that the load had travelled post-impact - subtracting the 105 mm of crush taken up by the Plascore - it could only be concluded that, by the completion of the analysis (but not the exhaustion of the velocity or kinetic energy) the load had already fully crushed the Plascore and the crush box structure had deformed 104 mm (blue line) to 130 mm (red line) towards the cabin In addition, by the completion of analysis, the process of deformation was continuing and the load was still travelling at a rate of between 1.8 to 2.7 m/s.
129. It is significant that when asked to look at these calculations, not for the first time in his cross-examination, Mr Wiltshire told the Court:
(a) that he would not rely on "the numbers" in his Report 1,
(b) when forced to agree that the FEA modelling showed that the bottom of the FOPS would penetrate the cabin roof under the impact of the 5.1 tonne load of chitter being dropped on its centre, that they were not relevant to a situation where a well-designed FOPS is placed over the cab and
(c) that he had not warned the Court that it should not place very much weight on the FEA modelling data in his Report.
130. The distance between the base of the crush box and the cabin roof was about 170 mm. The analysis thus showed that the crush box or canopy component of the structure would have collapsed that distance towards the cabin. Given the distance between the base of the crush box and the cabin roof was 170 mm, this means analysis showed that the crush box had collapsed towards the cabin roof - and would continue to do that until the velocity stopped. Mr Wiltshire conceded that the figures produced by his FEA modelling showed that the bottom of the FOPS had penetrated the cabin roof. Accordingly, the analysis showed that there was a very high risk of the chitter from the impact emerging and filling the truck cabin. The likely consequence would be serious injury or death of the occupant. Mr Wiltshire would only agree that the chart showed that there was a high probability that a 5.1 tonne lump of chitter would damage the cab. Tellingly for his credibility, Mr Wiltshire gave no hint of such consequences when he presented this data in his report.
That conclusion may represent a similar error of calculation. However, of concern was that Mr Wiltshire was adamant that he did not use computer-aided design ("CAD") early in the design of his project on the grounds that it would neither be necessary nor helpful. As Dr Richardson pointed out, if Mr Wiltshire had used CAD he would have detected the error in his model set out in the extract in the immediately preceding paragraph.
Mr Wiltshire responded by suggesting the depth of the crush box would need to be increased. Mr Wiltshire rejected the proposition that he had made a plain error in calculating the dimensions of either the Plascore or the crush box, stating that he "did not have unlimited time to run analysis". However, this response does not reflect well on Mr Wiltshire's evidence since the error was not dependent upon analysis but simply upon ensuring that the structure is big enough to accommodate the materials it is required to envelope. It may be noted that this position by Mr Wiltshire attracted some of the hyperbole by Dr Richardson to which I have referred, such as to him being "amazed" and "astounded" but nonetheless a rejection of a CAD device which provided the ability to look at the interface between objects, that is, how they interact with each other, including with a complex model, is of concern.
My impression is that Dr Richardson was far more cautious as an expert when it came to designing and developing safety critical equipment such as the model concept FOPS, particularly having regard to its novelty and untested and untrialled nature. It is of particular significance, in my view, that Mr Wiltshire's approach to his design task was not to design a structure which would provide protection to the cabin's occupants from injury (due to a load of reject falling onto the cabin of a truck) but to design minimum mass structure which would absorb the impact forces of such an event. During the concurrent evidence Mr Wiltshire accepted that his design was "mass sensitive" and that it was compromised in that respect.
My observation, in this respect, should not be taken as a sharp criticism of Mr Wiltshire's work as he was commissioned to design a structure which was mass sensitive in a short period of time. This consideration does go to the reliability of his evidence when it came to designing a structure to afford protection from a falling load of reject, the very question which is central to these proceedings. Dr Richardson's approach to adopting a design to afford protection to the cabin occupants as a principal cause for concern is far more in keeping with the objects of the Act. I consider it is significant, as submitted by the defendant, that the model developed in the first report by Dr Richardson did not indicate that the bottom of the crush box of the FOPS would have deformed to a point where it penetrated the roof cabin. As I will turn to shortly, these considerations extend to the issues of timing and costing.
Central to the issue of timing and costing was the contrast in opinions between the two expert witnesses as to the extent to which testing of the loading requirement and its impact upon the model concept FOPS would be required or should be undertaken. I do not consider that Dr Richardson can be criticised for expressing an opinion as to the lack of wisdom involved in a short bout of research and testing in the light of the engineering sources to which he referred. As I have found, the model concept FOPS was developed in circumstances of a significant range of unknown inputs into the loading requirements for an energy absorbing FOPS. I consider that in those circumstances Dr Richardson was correct in asserting that testing should be undertaken for all possible scenarios and that the failure to do so might result in the embedding of latent defects ultimately resulting in the need to scrap a prototype and start again.
I return to the considerations of mass, focusing upon the length of the crush box. Noting again that the model concept FOPS proposed by the prosecutor through Mr Wiltshire would not have ensured safety within the meaning of s 8(2) by mitigating the risk to the extent possible unless the crush box was, inter alia, lengthened.
Mr Wiltshire originally proposed that the length of his FOPS may be increased by only 200 mm to accommodate post impact flows. He later accepted that the FOPS should extend forward of the area protected (the forward most part of which is the bottom of the windscreen) by 50 mm. He accepted that the extension of FOPS past the windscreen would be "prudent and ideal".
The defendant undertook an analysis of the additional length of the FOPS to protect the cabin of the truck. That estimation was provided in the schedule which appears in Ex 196, based upon evidence there described so far as applicable (see also Ex 192), and the discussion of "horizontal windscreen forward length" discussed at [194]-[197] of the defendant's principal FOPS submission. Mr Wiltshire generally accepted those dimensions in case 3 and 5 within the schedule, which I accept represent the range of appropriate extensions to the model to provide adequate protection to the cabin. The extension required to the crush box was as follows (as set out in the defendant's principal FOPS submission):
206. The extent of the extension required depends upon a number of factors. Most of these factors have been discussed above and will be detailed further below. A further factor which needs to be understood at this stage is that, ideally, the front of the FOPS should extend forward of the area to be protected, the forward-most part of which is the bottom of the windscreen. A nominal 50 mm would be a reasonable allowance for that purpose. In combination, these factors are represented in cases 3 and 5 in the table entitled "Extension of FOPS Required" As can be seen from the table, depending on the source of data being used for the dimensions of the truck cabin requiring protection, the extension of the crush box required:
(a) would range from 409 mm in case 5 to 462 mm in case 3 (or 389 to 442 mm if the cab and support post gap was reduced from 120 mm to 100 mm in line with Mr Wiltshire's evidence ); and
(b) would comprise a 34% to 39% increase in length in Mr Wiltshire's design of 1200 mm (or 32% to 37% if the post gap was 100 mm)
In that respect I also accept the following submission by the defendant:
365. … Taking a very rough average of the crush box length extension required, say 400 mm, the increase in the bending moments at the top of the support posts would be 67%. As Mr Wiltshire conceded, this would mean that the steel support posts would need to be strengthened. Whilst there would not be a 1:1 correspondence with the mass, some increase in the mass of the support posts would be required to accommodate that degree of increase in bending moment. Mr Wiltshire estimated it would be necessary to increase the mass of the support posts by 25%. Thus the mass of both the crush box and the support posts would need to be increased.
If the mass of the FOPS were to increase by 25% (the bottom of the range of Dr Richardson's estimate of the mass of the FOPS required to accommodate a worst case loading scenario) 900 kg would increase to 1,125 kg. Taking Dr Richardson's upper range estimate of the mass of the FOPS required to accommodate a worst case loading scenario of 1,200 kg, if the mass were to increase by 25%, that would mean an increase to 1,500 kg. (In his concurrent evidence, Dr Richardson provided similar figures. He thought that, taking into account the need to increase the length of the crush box to protect the truck cabin, there would be a consequent increase in the mass of the structure to what he estimated at between 1,200 kg to 1,500 kg).
Whilst I consider there is some substance to the defendant's submissions as to the need to widen and increase the depth of the crush box it is unnecessary for me to resolve those questions in the present context because I consider that on the basis of the need to lengthen the FOPS crush box, to provide an adequate FOPS, Mr Wiltshire's estimate of mass on FOPS cannot be accepted.
Based on the above assessments, I accept as more reliable the estimates given by Dr Richardson and that the mass of the FOPS would likely range from 1,200-1,500 kg just to accommodate the increase in the mass required by the extension required by the length of the crush box. It may be noted, in this respect, that Mr Wiltshire in his first report indicated that a FOPS with a mass of 1,200-1,500 kg or more would leave very little for payload.
I extract below, the table prepared by the defendant at paragraph 374 of the defendants principal FOPS submission without footnotes (that schedule refers to a FOPS mass of 630 kg but that was the original mass for the FOPS which was abandoned by Mr Wiltshire):
FOPS mass (kg) 630 900 954 1200 1215
consisting of:
• crush box 230 400 429 690 690
• posts and chassis attachment 400 500 525 510 525
25% increase of FOPS mass for length (FOPS extension) 158 225 239 300 304
25% increase of crush box mass for width 58 100 107 173 173
6% increase in FOPS mass for Initial velocity not being zero 38 54 57 72 73
10% increase of crush box mass for depth of crush box 23 40 43 69 69
Total mass (kg) 906 1319 1400 1814 1833
[92]
For completeness, I should note that, as extracted above, the prosecutor submitted that Mr Wiltshire's estimate of the mass of his model concept FOPS was based on the evidence of Mr Samuels. However, I do not consider that this contention may be sustained. Mr Samuels prepared three reports. In the first such report a number of questions were posed to Mr Samuels. It is the answers to questions 4-8 which are relevant. In that respect, Mr Samuels concluded that it was not possible to fit FOPS to Mr Oldknow's truck without making modification by moving the bin towards the rear so that there was sufficient room for the posts to be installed between the cabin and the bin.
Mr Samuels was asked to assume a mass for the crush box of 690 kg and, with reference to a diagram, to estimate the gross mass of the FOPS fitted. Mr Samuels derived a gross mass of 954 kg (see question 4(a)). However, that estimate did not include posts and stiffeners and chassis mounting plates and other brackets. For those items he estimated a total of 525 kg, which, when combined with the FOPS crush box weight of 690 kg, gave a mass for the FOPS of 1,215 kg, which was significantly greater than the mass estimated by Mr Wiltshire.
Having regard to the mass of the FOPS, I return then to the submissions of the prosecutor as to, the repositioning of the existing tipper bin rearwards thereby shortening the tipper bin by that amount (it was submitted that the repositioning of the tip rearwards would not result in a breach of the dimension requirements for the road transport legislation or introduce any instability in the operation of the tipper). The following submission, from the prosecutor's principal FOPS submission, was then made as to the reasonable practicability of the fitment of the model concept FOPS:
30. The evidence of Mr Dikranian was that in the event of a reduction of the bin length by 350 mm the maximum payload that could be carried in the tipper without breaching mass axle limits ranged from 8.8 tonnes in the case of a truck fitted with a FOPS weighing 800 kg and 6.7 tonnes in the case of a truck fitted with a FOPS weighing 1.2 tonnes. A reduction of the bin length by a further 100 mm increased the maximum payload to 9.5 tonnes in the case of a truck fitted with a FOPS weighing 800 kg and 7.6 tonnes in the case of a truck fitted with a FOPS weighing 1.2 tonnes. Mr Dikranian also said that these figures allowed some capacity to increase the payload further before reaching the statutory limits of 6 tonnes on the steer axle and 16.5 tonnes on the rear axle group.
31. Mr Dikranian also gave evidence that in the event of a repositioning of the tipper bin 250 mm rearwards, the maximum payload ranged from between 9.2 tonnes for a truck fitted with a FOPS weighing 800 kg and 7 tonnes for a truck fitted with a FOPS weighing 1.2 tonnes. In the case of a repositioning of the tipper bin 350 mm rearwards, the maximum payload ranged from between 10.9 tonnes for a truck fitted with a FOPS weighing 800 kg and 8.2 tonnes for a truck fitted with a FOPS weighing 1.2 tonnes.
32. It is submitted that a reduction maximum payload even to 6.7 tonnes, was not so significant to make the fitment of FOPS an impracticable measure, particularly when regard is had to the consequences of the risk as manifested in the Incident. It is also noteworthy that there is no evidence that the fitment of FOPS to the trucks would have necessitated a reduction in the payload for the dog trailers and, in any event, the truck drivers were not paid according to the volume of coal reject conveyed from the reject bin to the void but on an hourly rate. A reduction in the maximum weight of coal reject in a truck's bin of even 4 tonnes would reduce the maximum payload of truck and trailer from 30 tonnes to 26 tonnes. In effect, this would require an extra load by truck and trailer approximately every 8 loads. In circumstances where the trucks and trailers were paid by the hour and not the load, this would not have any significant impact on the efficiency of the project and certainly not have such an impact as to render the fitting of FOPS impracticable. The defendant has not led any evidence to support a contrary conclusion.
Some preliminary observations should be made in dealing with the prosecutor's submissions in this respect. First, in Wiltshire Report 1, Mr Wiltshire made the following observations:
… a FOPS will have most of its mass supported at the front axle, and that the unladen front axle load is 4.8 tonnes with a limiting front axle load of 6 tonnes. This suggests that with the payload 800 mm from the rear axle, any FOPS with a mass of more than 1.5 tonnes (say) will consume most of the remaining 1.2 tonnes of available capacity at the front axle leaving very little for payload.
Secondly, Mr Dikranian made the following observations regarding the regulation by legislation of the capacity of a truck to carry a load in NSW and the corresponding statutory limits for masses of heavy vehicles and limits on individual axles and actual groups:
One of the fundamental issues is that infrastructure has limits, both in terms of bridges, pavements, culverts and a whole range of the factors. Those limits then determine the forces that are imposed on it from the tyres, as well as transposed from the axle mass limits. There are regulatory limits imposed due to braking distances, performances of vehicles. … There is an incremental risk associated with all this in terms of a vehicle at 6 tonnes would actually take longer to stop than a vehicle at 5.5 tonnes. So in terms of a principle, the heavier the vehicle the longer it will take to stop. So somebody has actually made a determination what the limit should be in terms of stopping distances, stability of the truck, as well as how much pavement damage that vehicle would actually cause to the road.
Mr Oldknow's truck was a 1997 bonneted T401. It had a total mass load limit of 22.5 tonnes; a front axle mass load limit of 6 tonnes and a rear axle group mass load limit of 16.5 tonnes.
The focus of the evidence was the front steer axle load limit. Like Mr Wiltshire, Mr Dikranian said that the limiting constraint in increasing the payload was the 6.0 tonnes front axle mass load limit.
Referring to Mr Driver's report, Mr Dikranian thought it was reasonable to assume that the unladen mass of the (front) steer axle was 4.3 tonnes, and that the unladen mass of the rear axle group was 5.8 tonnes. This meant that the truck had a residual capacity of 1.7 tonnes, which could be carried on the front axle without breaching the overloading legislation.
What became clear from the evidence was that the weight of a FOPS will have a significant effect upon the load-carrying capacity of the truck. Rounding the percentages calculated, 70% of the mass of the FOPs will be directed to the steer axle.
Mr Dikranian explained how this worked with respect to a 1000 kg FOPS:
Q. If you put a 1,000 kilo FOPS on the vehicle, as you have been asked to assume, and you have a 70 per cent figure for the front axle, 70 per cent of 1,000 is 700?
A. That's correct.
Q. If you add the 700 to 4.3 tonnes, which is the weight of the front axle unladen?
A. That's correct.
Q. You get to 5,000 kilos?
A. That's correct.
Q. And so if you have a maximum of 6,000, you effectively have 1,000 kilos that you can now apply to the front of the truck?
A. That's right.
The placement of the payload in the truck is crucial as the weight distribution of the payload cannot place 650 kg weight on the front axle. The location of the payload's centre of gravity determines the distribution of weight over the front and rear axles. Shifting the centre of gravity of the payload rearwards allows the redistribution of mass, by reducing the front axle mass load and increasing the rear axle mass load. Conversely, shifting the centre of gravity of the payload forward reduces the payload capacity of the truck by increasing the front axle mass load and decreasing the rear axle group load.
At an early stage, Mr Wiltshire concluded that fitting his model concept FOPS would significantly reduce the legal payload because of the weight that his FOPS would add to the front axle. By way of introduction, in Wiltshire Report 1, using two assumed wheelbases, Mr Wiltshire said that installation on the T401 of a FOPS with a mass of either 630 or 800 kg would leave the truck with a capacity for a payload of less than 8 tonnes.
On the prosecutor's submissions, in order to both fit the model concept FOPS and to cater for the front axle load limit, it would be necessary to reduce the payload which the truck would take. The prosecutor submitted that a reduction in payload to 6.7 tonnes would be acceptable having regard to the consequences of the risk.
Mr Dikranian's third report was amended by substituting new tables 2, 3, 5, 6, 8 and 9. It is useful to compare substituted tables 5 and 6. These provide information relating to shortening the bin, first by 250 mm (table 5) and then by 350 mm (table 6).
It is a reasonable inference to draw from Mr Dikranian's evidence that his calculations were designed to maximise the load, that is, the values for the front axle load and mass are constructed to be close to the 6 tonne maximum as possible.
Mr Dikranian was required to correct certain of his calculations (the front and rear axle mass distribution were back to front) resulting in the loads assumed by the prosecutor to be reduced. I set out the table showing these calculations by the defendant as follows:
FOPS Mass (tonnes) Payload (tonnes) Corrected Payload (tonnes)
Ex 176 Table 3 Ex 176 Table 5 Ex 181 Table 5
Column 2 Column 1 Column 1
0.8 9.7 7.7
0.9 9.5 7.2
1.0 9.3 6.7
1.1 9.1 6.3
1.2 8.9 5.8
[93]
However, these calculations are premised on earlier assumptions as to mass and need to be adjusted in terms of the findings in this judgment. In that respect the following submissions by the defendant may be accepted:
416. Whilst it may have been arguable that a reduction of payload capacity from 10 tonnes to a range of 9.7 to 8.9 tonnes was not significant, it is a completely different outcome when the load is reduced to a range of 7.7 to 5.8 tonnes.
417. Another issue is that these numbers no longer correlate with the estimates of the experts as to the mass of the FOPS. If one assumes for current purposes that the mass of the FOPS would have been 1500 kg, then following the arithmetic sequence disclosed by the right hand column of the table above, for every 100 kg of extra weight imposed by the FOPs the payload decreases by 500 kg. An increase of 300 kg to the mass of the FOPs (from 1200 kg to 1500 kg) suggests a decrease in the carrying capacity of between 1200 kg (400 kg x 3) and 1500 kg (500 kg x 3). Applying those reductions it would reduce the payload to between 4.6 tonnes (5.8 tonnes - 1200 kg) and 4.3 tonnes (5.8 tonnes - 1500 kg). This corresponds, as earlier set out, to Mr Wiltshire's estimate that, a FOPS with a mass of 1.5 tonne would have the effect of consuming most of the remaining 1.2 tonnes of available capacity at the front axle leaving for very little payload.
Further, the difficulty with the prosecutor's hypothesis is ultimately that many of the figures relied upon by the witnesses could not be described as final figures as they all depended upon physical testing, which will have relevance to the mass of the FOPS amongst other things. Further, it requires very little movement of the payload's centre of gravity to significantly affect the axle loading. Any errors in loadings or movements in loads would also significantly impact upon axle loads There are further considerations, however, going to the question of reasonable practicability at this juncture, as follows:
1. When properly analysed, the prosecutor's case would require a significantly reduced payload for the truck. However, as at the date of the incident, truck and dogs were being used. To continue to load the dog trailers would require the reject bin to be enabled to allow differential loading into the truck bin in contrast to the dog (unless it was suggested all would receive a lower payload). This meant, in effect, that the prosecutor would require the defendant have the PLC re-coded so the bin dropped different loads into the back of the truck as against the loads it dropped into the trailer. The assumption implicit in this requirement is that the PLC could be relied upon for that purpose.
2. The prosecutor's maximum payloads give no consideration to the fact that the payload would not be secured and the propensity for it, as loose chitter, to move within the tipper bin. In practice, the load could either be loaded too far forward and/or the load could move forward during travel, increasing the load on the front axle and causing it to become overloaded thereby causing the truck to exceed its safe operating limit. Given that this consideration is not factored into the maximum payloads considered by the prosecutor, there is a real prospect that the prosecutor's payload estimates are too high to ensure that, in all the circumstances, the truck would stay within its legal and safe operating limits.
This leads to the overall conclusion that if reasonable practicability is to be judged by, as it must be, reference to the availability and suitability of ways to eliminate or minimise a risk, the evidence in this case demonstrates that the measure of FOPS being fitted to the truck operating Bin 802 did not meet those criteria. The prosecutor accepted that, as a matter of logic, the weight of the crush box when taken with the weight of the reject in the truck's bin had the capacity to exceed the permissible weight applied to the front axle. However, it was considered that the mechanisms proposed or a reduction in payload would overcome that difficulty. I have rejected that submission but note that, as the defendant submitted, the submission by and large ignores considerations of safety as well as the manufacturer's requirements. As earlier observed, actual load limits were not confined to protection and preservation of roadway infrastructure - they raised safety issues.
As has been found, upon the necessary lengthening of the crush box, the payload available for the truck bin would be significantly reduced.
The prosecutor sought to meet those difficulties by leading evidence by Messrs Wiltshire, Samuels and Dikranian as to modifications to Mr Oldknow's truck beyond fitting a FOPS. One tranche related to the movement rearward of the bin to allow for the installation of the model concept FOPS between the cabin and the bin. This second tranche again involved a movement of the tipper bin rearward but also involved shortening of the bin. This arises from the combination of the weight loading that the FOPS places on the front axle and the effect this has on the capacity of the truck to carry payload.
Based on the aforementioned findings, it is plain that the mass imposed on the front axle of the T401 would leave no room for any reasonable payload and raise axle load limit issues such that the effect of the evidence led by the prosecutor as to modifications to the truck bin was that a FOPS would not be able to have been installed and thus be effective to ensure safety, unless in addition to installing the FOPS, the modifications were made.
There is substance in the defendant's submission that the extent of the modifications to the tipper bin to allow the payload to be maximised would itself suggest that it was not reasonably practicable for the defendant to comply with its duty under s 8(2) by taking a measure to ensure the trucks were fitted with "adequate overhead fall protection". However, the more significant consideration, as I have found, is that the modifications of the bins fall outside the particulars of the charge. I agree with the submission of the defendant that to take into account the evidence as to an omission to modify the trucks would be to take into account a measure which was not identified in the application for order and therefore contrary to authority.
In any event, even with the modifications to trucks, there would need to be a substantial reduction in payload. That needs to be considered in the light of the fact that the trucks were operated by third parties who were subcontractors working for Daracon thereby not having continuous work with the defendant. Not only would the alteration to trucks substantially reduce the payload of those operators when working for the defendant, and potentially result in an overall reduction of their income when working for other operators, the case for the prosecutor would require modifications to the bins of the trucks. There was no obligation on the subcontractors to give consent. I agree with the defendant that there was every prospect that they would not in those circumstances.
[94]
Cost and Time
The evidence of Mr Wiltshire concerning this aspect of the matter was principally contained within his 5th Report as redacted to reflect the Court's rulings as to its admissibility. In summary, Mr Wiltshire considered that the energy-absorbing FOPS he had proposed could be designed and built in 2 to 3 months at a cost of between $80,000 and $120,000. Mr Wiltshire based his estimates on his own experience in designing and manufacturing energy-absorbing protective structures and upon information sourced from QMW Industries, a company with extensive experience in the design, development and manufacturing of ROPS/FOPS.
Mr Wiltshire's evidence in this regard is supported by that of Mr Samuels of QMW Industries. Mr Samuels estimated the total cost of design and testing to be between $55,000 and $75,000. Mr Samuels further estimated that upon completion of successful testing, the cost of manufacturing and fitting a FOPS to a truck would be approximately $15,500. Mr Samuels based these estimates on actual jobs his company had performed that were comparable.
Dr Richardson divided his analysis into four stages:
1. stage 1 - problem definition (including initial testing);
2. stage 2 - design phase (including designing, prototype construction and testing);
3. stage 3 - modification phase (including modification of prototype and testing, manufacturing process analysis and operational testing); and
4. stage 4 - product manufacture.
Dr Richardson considered that the cost of the first three stages would range between $198,000 and $846,000. It can be seen from his analysis that these estimates did not include other costs which would obviously also be incurred such as:
1. the designer's fee; and
2. the costs to the owners and operators of the trucks involved, which presumably would have to be borne by the colliery operator.
The time the first three stages would take would range between 11 and 34 weeks. Manufacture, according to Dr Richardson, would entail a maximum cost of $80,000 for a FOPS for one truck and occupy about 4 weeks. Apart from the time actually involved in research, trialling and testing, Dr Richardson explained that, because this work would need to be carried out on a mine site, this would necessitate the design and performance of risk assessments and induction processes which would take further time.
As earlier observed the central point of departure between the respective theses of Mr Wiltshire and Dr Richardson was the amount of time required for testing. This involved issues as to the period required to test what the variables were for the inputs into the loading requirement and any further testing to ensure that the range of variables had been determined.
The prosecutor's submission, taken from the prosecutor's principal FOPS submission, as to Mr Wiltshire's approach was as follows:
38. For his part, Mr Wiltshire made the point that the reject bin is in operation and the operator has got the material. Thus, appropriate information concerning the nature of the chitter experienced at the washery and reject bin could be obtained directly from the client. Furthermore, the client is in a position to provide the quantities of chitter for the initial testing and access to the reject bin for that purpose. Mr Wiltshire proposed a relatively simple test in which load cells could be placed under the front plates of the tipper bin and then measure the resultant forces from deposits of 10 tonnes of chitter could be measured. Everything necessary to do such tests was already available but for the load cells, which are a fairly straightforward piece of instrumentation to acquire and the testing could be done in the first week.
The period of initial testing required was a significant issue. Dr Richardson maintained that it was necessary to source multiple loads of 10 tonnes of reject and undertake evaluation and analysis of falling reject to quantify and characterise issues relating to density, granularity, moisture content and clumping. Dr Richardson said that was necessary to get an idea of what are the likely worst case loading scenarios.
For example, when considering one circumstance discussed in the Joint Report as to a worst case loading, namely, the dropping of a full load at the outer edge of the structure, Dr Richardson commented:
[c]onsidering the design, there are probably five, six, seven, there could be eight worst case loading scenarios that need to be tested and understood. If I am to design and be the engineer signing off at the bottom saying, this product is safe, I would test and evaluate all of the worst cases.
Putting aside for the moment my observations as to the credibility of Mr Wiltshire's evidence, a preliminary observation may be made consistent with the submission advanced by the defendant. Irrespective of the type of FOPS being contemplated, the impact energy loading to be accommodated by the structure is essential data. Mr Wiltshire made very clear that it would not have been possible to design and construct his concept model FOPS without physical testing to determine the loading requirement and then the efficacy and the details of the various components of his FOPS. Dr Richardson and Mr Samuels agreed. In response to a question about determining post-impact flows, Mr Samuels said:
the scenario … would change every time that coal chitter was release [sic] from the bin. … Every time you release that coal chitter from the bin it would react differently. Sometimes it would be clumped, sometimes it would be wet. Every time that you release that chitter you are going to have a different scenario. So all you could do is try to take worst case and apply the loads based on that.
The question then becomes solely: What is the degree of testing required? The answer to that question reveals, by and large, the amount of time and cost involved in the development of the model concept FOPS.
Returning to Dr Richardson's evidence, he advocated for a comprehensive testing program to determine the worst case loading requirements, taking all possible variables into account. He explained that comprehensive early testing is not an objective but is necessary to define the problem in an engineering sense. In that respect, I recount my earlier observations that Dr Richardson relied upon reputable engineering sources to demonstrate the lack of wisdom of too short a research and testing process and the consequences for, inter alia, embedding latent defects. That approach was supported by Mr Samuels, who stated:
A. You would essentially have to have an understanding of what you are trying to achieve, so an understanding of the design before you would start building prototypes.
Q. If you develop a prototype and then test that prototype against worst case scenarios then you run a risk don't you that the prototype won't survive?
A. That's correct.
Q. The worst case scenario if you have to go back to square one redesign, rebuild the prototype test again for worst case scenario you have could have a number of iterations?
A. That's correct and that often does happen with … designing roll over protection. …
As I have noted in discussing questions of credit earlier, the conservative approach advocated by Dr Richardson is one which is consistent with the principles and objects of the Act, particularly when account is given to the particular responsibility falling upon an engineer when testing and trialling a safety related product that has never before been developed or used. The tests need to be thorough and comprehensive cognisant of the fact that, until the loading requirements are known, a designing engineer will not have a definition of the problem for which any given design might represent a solution.
I do not consider that Dr Richardson's approach in this respect represents "an extremely negative point of view", as put by the prosecutor, but rather one which is commensurate with the associated novelty, complexity and uncertainties. The following submission, from the defendant's principal FOPS submission, may be accepted in that respect:
339. As the Court knows, initial velocity affects velocity which is a most significant factor in kinetic energy. Neither witness, however, felt he had the competence to provide an opinion about the various ways in which chitter might behave in differing circumstances. What Dr Richardson could say was that he had enough knowledge of the subject:
to appreciate that there are issues as to how material will behave under different conditions … and that is why I wanted to conduct extensive testing of them.
340. Mr Wiltshire, on the other hand, despite acknowledging he was not an expert in the behaviour of materials inside a mass flow bin and despite acknowledging that that behaviour would feed into the loading requirement, did not provide for any period of time or any dollars for this research to be conducted. That is to say, he did not allow for the time required:
(a) for the task of sourcing the appropriate expertise;
(b) establishing the scope and cost to complete the work;
(c) contracting the expert/s to complete the works; or
(d) by the expert/s to undertake their research and supply a report appropriate for the use in the development of a safety-critical product.
It is true that Dr Richardson accepted that the testing proposed by Mr Wiltshire would produce a range of measures depending upon the variability of the culture, size and moisture content of the reject in Bin 802 which could be then used in an FEA to progress the design and that it was a legitimate approach to construct the FOPS and test it with plascore as proposed by Mr Wiltshire. However, the essential difference is as to the testing required to analyse those variables.
I have earlier provided reasons for accepting the reliability of Dr Richardson's evidence over that of Mr Wiltshire incorporating that the approach of Mr Wiltshire was inconsistent with the design and production of safety critical equipment and based also upon his admission of a goal to design a minimum mass structure which comprised this fundamental foundation for the design and production. I agree with the submission of the defendant that Mr Wiltshire's program did not take into account:
1. all the variables which would be inputs into the loading requirement;
2. anything more than an average loading rather than the peak loadings imparted across the area of the load (for example, proposing only to drop loads onto a truck tipper bin using load cells on the bin pads to measure the loading requirement ); or
3. how post-impact flows affected the cabin.
Mr Wiltshire was cognisant of the need for thorough and detailed testing and that the objective was to achieve safety but he accepted that he did so in an environment where "there were constraints on the designer".
Two other factors may be taken into account in this respect. First, before timing and cost become an issue in the proceedings, Mr Wiltshire stated (in his first report) that designing and testing can "take a very long time" and that his involvement in similar projects had resulted in those things lasting "many months". During the proceedings Mr Wiltshire noted on a number of occasions that he had not had enough time to design the model concept FOPS represented in Report 1. He also conceded, in his first report, that physical testing to determine impact loading imparted by a nominal 10 tonne load of coal reject falling from Bin 802 would be very difficult to set up and execute.
In the final analysis, I accept the submission by the defendant that Dr Richardson showed a better understanding than Mr Wiltshire of the prospect that the reject content from the reject bin would, for various reasons, be variable and that particular care needed to be taken because of the safety critical nature of the project.
The prosecutor made the following submission:
42. Unlike the estimates provided by Mr Wiltshire and Mr Samuels, Dr Richardson's estimates are speculative. Dr Richardson has no experience in designing structures using forms such as honeycomb to absorb energy. While he disagreed with the proposition that the ranges of cost and time he provided were so broad as to be nonsensical, it is submitted that he did not provide any concrete basis for those estimates. His only explanation for the broad range was that the FOPS proposed by Mr Wiltshire has never been done before and had never been tested before.
The difficulty with this submission is twofold:
1. There is a large range of variables affecting the input into the loading requirements. It follows that the test to obtain the information necessary to design a model and effective energy absorbing FOPS needs to be thorough and comprehensive and will vary in its dimensions because of the absence of available published data and the absence of a defined problem together with undefined resource inputs. As Dr Richardson noted, it is necessary to conduct multiple tests to capture worst case loadings particularly in relation to novel designs. Given the number and seriousness of the issues identified with the results of the initial modelling presented by Mr Wiltshire in his Report 1, the absence of data from his modelling during the conclave considerably lessens the weight which can be placed on his statements in the Joint Report responding to that modelling. In any event, it is clear that, in offering their opinions, both experts were of the view that they were commenting on "the design concept options of the FOPS".
2. Dr Richardson has developed structures for the protection of people and vehicles and has published on criteria for testing the efficiency of roll over protective structures for vehicles. Mr Wiltshire has never developed or constructed a FOPS structure such as the one being considered by the Court.
It was further submitted by the prosecutor that Dr Richardson failed to give any proper weight to the utility of testing that Mr Wiltshire said developing his model would entail. It was contended that Dr Richardson failed to take into account the fact that the bin was operational and reject was available from the operator. A great deal of knowledge about the consistency or otherwise of the reject could be available from the operators of the washery or the engineer assigned the task of designing the energy absorbing FOPS. This would greatly shorten the time required to undertake the testing and reduce the cost. It was also submitted that Dr Richardson failed to acknowledge the testing described by Mr Wiltshire using strain measurement devices.
The difficulty with this approach is that there was no evidence that the colliery operator possessed such expertise or knowledge. There was also no evidence that the defendant's leading electrical and mechanical engineers held the relative expertise or knowledge.
In contrast, Mr Wiltshire did not make any allowance for experts involved in testing, design and trialling processes uncovering information which had not been previously considered. No allowance was made for the possibility that further tests or studies might be required.
I accept the submission of the defendant that, notwithstanding the passing of five months after the writing of Report 1, Mr Wiltshire accepted that there were still changes required to adapt the model for use. Further, it may be noted that, despite the use of mass flow bins in many related work sites and the passage of nine years after the incident, there was no evidence that any person has attempted to design for use a structure such as that proposed by the prosecutor.
Finally, reliance was placed by the prosecutor upon the evidence of Mr Samuels.
I do not consider the evidence of Mr Samuels ultimately assists in sustaining this part of the prosecutor's contentions regarding reasonable practicability for the following reasons:
1. Mr Samuels had no experience with the testing for, or development or manufacture of a unique new FOPS based on principles of absorbing rather than resisting energy. He agreed that accommodating a load of falling reject would be a completely different application from a structure designed to resist a falling object. He was unaware of what variables were involved in the loading requirement for the model concept FOPS.
2. Whilst Mr Samuels had experience in testing using his specially constructed and certified testing facilities in QMW Industries, that experience was with testing structures to the Australian standard. Whereas the model concept FOPS was designed because that standard would not work. Mr Samuels conceded that the criteria for testing a ROPS, set out in the ISO, had no relevance to the development, including testing, of Mr Wiltshire's energy absorbing model FOPS.
3. Mr Samuels accepted that until loading requirements were known it would not be possible to determine what test or tests will be required to determine whether an energy absorbing FOPS would be effective and that his experience had not been involved in testing to determine what a loading requirement was. He accepted that until the loading requirement was known it was not possible to determine what test or tests would be required to determine whether an energy absorbing FOPS would be effective.
[95]
Conclusion
In my view, the defendant has proved, on the balance of probabilities, that it was not reasonably practicable for the defendant to comply with its duty under s 8(2) by taking the measure of ensuring the trucks were fitted with "adequate overhead fall protection".
[96]
Different Trucks
Despite the potential significance of this issue in relation to this particular, this part of particular 9 received scant attention from the prosecutor. This is reflected in the reply submission of the prosecutor in which it was said that the fitting of FOPS was "dealt with as a matter of principle" and there was "nothing in the design or modelling that indicates that the fitting of FOPS to a cab over an engine truck would not have been reasonably practicable". It was also accepted during the "running of this matter that mine trucks would have mitigated the risks" and that the fact that the defendant moved to use mine trucks after the incident indicated they were "safer".
The defendant's submission that the prosecutor has not made a case in this respect must be accepted for the following reasons:
1. Reliance was placed upon the observations by Mr Farrelly that he had seen CAT-773 trucks with FOPS at Ravensworth mine. However, Mr Farrelly only gave evidence that he had seen such trucks but did not say whether or not they had FOPS.
2. There was no evidence that the lip of the bin of such a truck was a FOPS designed and constructed to a design standard greater than the Australian standards or any particular standard. Both experts in these proceedings accepted that a FOPS built to the prevailing standards would not have eliminated or minimised the risk. There was no evidence therefore as to whether a CAT-773 or mine truck would have ensured the safety of the driver from the impact of a falling 10 tonnes loading reject, particularly because the impact loading imparted by such a drop was unknown.
3. The evidence in the Joint Report indicated that it was extremely unlikely that such overhead protections as existed on such trucks would provide any effective protection against an impact of a drop of reject from Bin 802.
4. As to the submission that the defendant used mine trucks after the incident, the defendant correctly submitted that the evidence of Mr Huthnance was that in 2008-09 the defendant tried to get Macquarie Generation to agree to the use of mine trucks on its haul road for primarily commercial reasons, the safety reason being that Mr Huthnance was concerned that truck and dogs were prone to roll overs at the void. The evidence was that the move to mine trucks after the incident was because an in principle agreement was struck by Mr Huthnance just before the incident that the defendant could operate mine trucks on the haul road. There was no evidence that the defendant entered into those negotiations because the mine trucks would have provided drivers with any measure of protection from drop of reject.
The prosecutor has failed to prove beyond reasonable doubt the alleged omission particularised in the second part of particular 9. In particular, the prosecutor has failed to prove beyond reasonable doubt that the measure of insisting on different trucks being driven that had adequate overhead fall protection would have eliminated or minimised the risk to Mr Oldknow on 18 February 2009 (or, to the extent applicable, the other particularised drivers). Further, the prosecutor has failed to establish a causal connection between this aspect of the particularised omission to take a measure and the exposure of Mr Oldknow (or other particularised drivers) to the particularised risk.
[97]
Conclusion
I find that the defendant is not guilty so far as concerns the allegations in particulars 3(d) and 9 of the s 8(2) charge.
[98]
Particulars 4 and 10 - Failure to ensure truck drivers have enough information about how the electrical control system worked to enable them to properly protect their safety and failure to ensure traffic lights were properly described and that the lights were positioned so they could at all times be seen
Particular 10 was in the following terms:
The defendant should have ensured that the men had enough information by way of instruction or otherwise about how the automated part of the system for delivery of material worked to enable them to properly protect their own safety, and should have ensured that the operation of the traffic lights was properly described to the men and that the lights were positioned so that at all times they could be seen by the drivers.
Particular 10 consists of two allegations, the first of which is that the defendant should have ensured that the truck drivers had enough information by way of instruction or otherwise about how the automated part of the system for delivery of material worked to enable them to properly protect their own safety. This particular corresponds with particular 4(c) which provides there was a failure by the defendant to advise the truck drivers as to the defect in the software system such that it was possible for the hopper of Bin 802 to open when their truck was beneath the delivery chute of the hopper.
It should be noted, at the outset, that I do not consider that the first part of the particular is bad for failure to articulate a measure. When particular 4(c) and 10 are read together the word "ensured" used in particular 10 does not deprive the particular of the stipulation of the measure (as opposed to an outcome). The measure required to meet the failure to provide information as to the control system (and its defects) was the provision of information by way of instruction or otherwise. There was specificity in the pleading of the measure which was the requirement to give information about how the "electrical control system worked".
There was a subsidiary element to the defendant's preliminary contentions. The defendant submitted that the first part of particular 10 does not allege the defendant should have provided a particular system of work which would have ensured the drivers were not exposed to risk. Rather, it was contended the allegation was that the defendant's failure was to omit to provide drivers with sufficient information to enable the drivers themselves to work out a system of work.
Whilst I do not consider this contention is without substance, I have come to the view that the proper construction of particular 10, when read with particular 4, does not support the contention.
When read with the preamble of particular 4, the measure does seem to allege the defendant should have provided a particular system of work. Whilst the measure stipulated in the opening words of particular 10 stipulates that the action, which was required to be taken by the defendant, was to ensure that the truck drivers had enough "information", that action is conditioned by the further words "by way of instruction". Particular 4 states that the defendant failed to provide the nominated truck drivers with "such information or instruction, as was necessary to ensure their health and safety" but it is clear that one of the failures pleaded is a failure to provide instruction. The reference to instruction in that respect is suggestive that the measure was to impose a system of work by means of an administrative control.
This is not to suggest that there is not an apparent tension within the particular following the opening words, to which I have referred, namely, "about how the automated part of the system for delivery of material worked to enable them to properly protect their own safety". The reference to "properly protect their own safety" is, on the face of it, consistent with the contention developed by the defendant. However, an alternative construction is available and one which does not overly strain the construction of the provision. The particular may be read as one in which an instruction is given as to the operation of the system which, by the employees' compliance with it, will protect their safety. In other words, an administrative control by its nature requires compliance with the work method by a worker and, in that sense, by the adherence to the instructions the workers protect themselves.
Particular 4(d) does seem to contain a similar tension. The opening words of the particular, namely, "as a result" relate to the three immediately preceding sub-particulars (a)-(c) each of which merely refer to the provision of information about the operation of the automated system and not the giving of an instruction. It was said in the result of the absence of that information that they were unable to "protect their own safety". However, each of those preceding steps that an employee was said to have failed to have taken are equally consistent with the employee acting upon that information or upon an instruction to behave in the manner specified. Indeed, immediately after the words "protect their own safety" the particular contains the words "by ensuring that". It is difficult to conceptualise how the specified actions then listed in the balance of the sub-particular may be effected by an employer merely by the giving of information in contrast to an instruction accompanying that information.
Thus, by way of illustration, the prosecutor contended that the SOP instructed drivers that if their truck was not positioned under the bin correctly the sensor would not allow the bin to open when the remote control button was pressed. It also gave instructions as to the manoeuvring of the truck around the chute and then, by inference, reversing into position. It was submitted that the drivers had been instructed by the SOP and believed that unless their trucks were stopped in position the chute would not open if they pressed and thereby activated their remote control.
Despite the inelegance of the language used in particulars 4 and 10, I consider that, when read with particular 4, the particulars should be construed as meaning that the defendant should have provided information by way of instructions as to how the automated part of the system for delivery of material worked.
When seen in that light, the particular does not, as contended by the defendant, allege that the defendant's failing was omitting to provide the drivers with sufficient information to enable the drivers "themselves" to work out a safe system because the system would be a derivative of the information or instruction provided by the defendant. In that light there is no collision with the purposes of the Act as the defendant is not derogating its duties under Part 2 of the Act contrary to law: see Kirk at [10].
In the alternative, the defendant submitted that the prosecutor had failed to prove beyond reasonable doubt that ensuring the truck drivers were provided with the "particularised information" would have eliminated or minimised the risk to Mr Oldknow on 18 February 2009.
Before turning to the submissions made by the defendant in that respect, I propose to firstly travel to the defendant's submissions concerning a defence to the s 8(2) charge founded upon particular 6.
It is there submitted that the defendant, in accordance with the approach that should be taken by a prudent employer (see Workcover Authority (Inspector Robins) v Ecolab Pty Limited (1999) 90 IR 413; [1999] NSWIRComm 300 at 429-430 (per Wright J) and Inspector Batty v Intercoast Refrigerated Transport Pty Ltd [2012] NSWIRComm 55), there were layers of safety built into the "reject system" to protect drivers using it. In addition to the electronic control system and what the defendant described as "secondary hardware measures", the defendant referred to "the instruction to drivers that they were 'to ensure that remote controller is not used until you are in a position to unload the reject'". This was a reference to s 3.2 of the SOP. It was submitted that the drivers made clear, in their evidence, that they behaved consistently with the instruction in the SOP (namely, cl 3.2) and that they did not push the button on the remote controller until they were satisfied they were in a position to take a correct load. It was said that the SOP was based upon the accumulated knowledge of the drivers and that the SOP had been used in their induction.
A difficulty with that submission is that it is undermined by the instruction given in the seventh bullet point in item 3.1 of the SOP.
In substance, the prosecutor contended that that information or instruction given to the truck drivers via the SOP was false and that, in the result, they were exposed to the identified risk because that failure would have the effect of misleading them and undermining or reducing the alertness, care or attention given by truck drivers if they were aware of the danger. The provision of the information or instructions could act as a secondary measure beyond the control system by providing an administrative rule or policy directed to ensuring safety, but it was compromised by inconsistent and, ultimately, unreliable information.
The submission advanced by the defendant, that there was no evidence as to what any driver would have done had they been provided with the information that the bin gate could open while their truck cabin was beneath the bin chute, cannot be accepted. Whilst no driver gave evidence of what he may have done if provided with such information or instruction, all drivers stated that they would not, as a matter of practice, open the bin gate doors when the truck cabin was under the bin. It may be inferred that they would continue in that practice. However, that conclusion has implications for causation.
As the defendant submitted, the information (and it may be added, instruction) necessary to enable the drivers to properly protect their own safety would have been that they should never open the bin gate doors when their truck cabin was underneath the chute or that they should only do so when their truck cabin was forward of the chute. However, it was said that such information is meaningless because of the SOP. As I have noted, the SOP did not function effectively as an administrative control because of the inconsistent advice contained within it.
Reference was made to the evidence of Mr Punch that merely informing people that a risk exists is not a control. However, as I will discuss in the following particular, Mr Punch's evidence was that, although lower in the hierarchy of controls, an administrative control which specified a rule or procedure was a measure which effected the control of risk as a matter of functional safety.
The defendant submitted that had it known the risk was uncontrolled, it would not be sufficient to tell drivers not to park in an incorrect position and press the remote control. That much must be accepted because, as the defendant observed, the safer course was to eliminate or minimise the risk by means of the removal of the defect within the PLC code so as to control the risk by the electronic control system under Bin 802.
I do not consider the prosecutor has proved beyond reasonable doubt that the failure to provide the particularised information, such as the gates could not open whilst the truck cabin was beneath the chute, made a significant and substantial contribution to the detriment to Mr Oldknow's safety on 18 February 2009. In other words, I consider that the prosecutor has failed to prove the requisite causal connection between the particularised omissions and the risk to Mr Oldknow's safety.
Whilst I have rejected the defendant's submission that what the drivers might or might not have done by the provision of information was speculation, the evidence of what they would have done demonstrates that, even with the deficiencies in the SOP, all drivers would have done what they already did, as a matter of practice, namely, they would not open the bin doors when the truck cabin was under the bin. That was Mr Oldknow's practice.
The prosecutor has not established how in Mr Oldknow's case or, more generally, in the case of the drivers who gave evidence, the provision of the additional information would, in some way, have enhanced or strengthened adherence to that practice. There was no evidence that an alteration to false information in the SOP would have made any difference because the drivers were adhering to a safe practice irrespective of that information.
Nonetheless, in the event that this conclusion is not accepted, I have, for reasons which will follow after discussing the second part of this particular, accepted the defendant has a defence in relation to this part of the particular under s 28(a) of the Act.
[99]
Traffic Lights
I agree with the submission advanced by the defendant that the prosecutor has failed to prove beyond reasonable doubt that ensuring that either the operation of the traffic lights was properly described to the truck drivers, or the lights were positioned so that at all times they could be seen by drivers, would have eliminated or minimised the risk to Mr Oldknow's safety on 18 February 2009, or any other driver on that night.
I accept the following submission of the defendant as to the first of those alleged failures. It is convenient to set out the defendant's principal submission in that respect:
By particular 4(b), the Prosecutor has alleged:
The men received erroneous information about the operation of the traffic light signals, and in any event the exit signals were positioned so that they were unable to be properly observed by the drivers, particularly before the second and third drops from the hopper.
First, it was not the exit lights which provided the drivers with information as to whether or not they should proceed under the bin. It was the entry traffic lights which performed that function.
Second, the Prosecutor has failed to prove that the truck drivers received erroneous information about the operation of the traffic light signals. The traffic lights referenced in particular 4(b) were those comprising a red, an amber and a green light, positioned at the exit to the bin race on the passenger (southern) side of vehicles. When considering whether it has been proved that "the operation of the traffic lights was properly described to the men", it is necessary to recall that the driver witnesses were giving evidence from an old, unrefreshed memory, of what they were told about the operation of the lights in 2007 (some nine years before their evidence). Counsel for the Prosecutor conceded during the examination of Mr Delaney that the memory of driver witnesses as to what they were told about the traffic lights would be unlikely to be reliable because it was such a long time ago. The Court should accept that concession.
Nevertheless, the thrust of the understanding which driver witnesses who could recall had was that, on the exit lights, green meant "go", or continue moving forward, while red meant "stop" or that the truck was in position to receive a load. Both of these pieces of information about the traffic lights were accurate.
As to the second alleged omission, vis-à-vis traffic lights, I accept the defendant's principal submissions as follows:
The meaning of that part of particular 10 which is about the positioning of "the lights so that at all times they could be seen by the drivers" is to be gleaned from particular 4(b):
… in any event the exit signals were positioned so that they were unable to be properly observed by the drivers, particularly before the second and third drops from the hopper.
The factual basis of this part of particular 10 and particular 4(b) has not been established. Mr Delaney said he could see the traffic lights when he was in a position to take the first load into the back of his truck. Mr Russell and Mr Sales could see them because they used them to ensure they were in the correct position to take the first load into the back of their trucks. The evidence clearly shows that the traffic lights were located forward of and facing the trucks at a location that would be visible by the drivers.
Even if this were not the case, the Prosecutor has failed to prove that the traffic lights were incorrectly positioned. Further the Prosecutor has failed to prove that had the traffic lights been positioned so that they could be seen by the drivers when taking the first drop from the bin the risk to Mr Oldknow (or any other driver) on 18 February 2009 would have been eliminated or minimised. There is no evidence implicating an inability in seeing the traffic lights in the risk on 18 February 2009.
[100]
The Statutory Defences
If the defence was to be considered as to the first part of particular 10 I would find the defence, as I have noted, to be made out for the following reasons.
As the prosecutor submitted, it is true that drivers had been instructed by the SOP and believed that, unless their trucks were stopped in position, the chute of Bin 802 would not open if they pressed the button A of their remote control. The drivers were, in that respect, and upon the evidence in the proceedings, misled by the SOP - they were given false information as to the safety afforded by the electronic control system within Bin 802.
It is not to point that the SOP also instructed the drivers not to use or touch the remote control unless their truck was "in position" as the driver was required to observe that practice based upon the false premise to which I have referred in the preceding paragraph.
It is no defence, as such, that the SOP was developed by CMOP as the defendant relevantly bore the relevant obligation under s 8(2) at the time of the incident. Nor is it any answer that the drivers provided information leading to the SOP being drafted as the defendant had a non-delegable duty to provide instructions which ensured safety. In any event, as the evidence disclosed, the drivers most likely derived their information from CMOP or one of its sub-contractors. After all the drivers were inducted into the SOP.
In making out its defence to this particular the defendant made a number of submissions which, as I will discuss in dealing with the defence to particular 11, may be accepted. They are as follows:
1. The defendant did not rely upon the SOP to ensure safety but relied upon the electronic control system designed by experts.
2. The defendant was not aware that the SOP was incorrect, with respect to the opening of the bin gates.
3. The defendant did not know how the automated part of the system for the delivery of material worked "because it understood there was no flaw in the system". . That understanding was held on reasonable grounds.
4. The existence of the particularised risk as deriving from the flaw was not reasonably foreseeable.
Given the manner in which this particular is pleaded those submissions must be accepted as constituting a basis for a defence.
It is true, in a broad sense, that it was reasonably foreseeable that a driver might place reliance on the advice and instruction received in the SOP and, in the result, be less diligent in maintaining a practice of not using the remote control unless in position to take a load, particularly where the work conducted by the drivers was monotonous and where work was performed over long and often evening hours. The driver may have activated the control inadvertently.
Those assessments may lead to a rejection of the defence if the prosecutor had pleaded that the defendant should have provided an additional element of control to protect the safety of the drivers by way of an instruction insisting that, irrespective of any other safety measure, drivers should adhere to an administrative control that they only take a load when in the designated position for taking loads (i.e. they were not under the gates).
However, that is not how particular 10 was pleaded by the prosecutor. The measure the defendant was required to take was that the drivers be given information by way of instruction "about how the automated part of the system for delivery of material worked". What is clear from the combination of particulars 4 and 10 is that the information to be provided was that there was a flaw or potential flaw in the electronic control system. The defendant did not have the information the particular required. There were reasonable grounds for that state of affairs (for the reasons given in the conclusions as to the statutory defence in relation to particular 11). In those circumstances, it was not reasonably practicable for the defendant to provide information about how the automated control system worked as pleaded and that the bin gates may open over the drivers because this was information the defendant did not have and, in fact, was contrary to the information it did have.
Further, in this context, the defendant may rely upon the bases for the statutory defence which I have accepted in dealing with particular 11.
The defendant is not guilty so far as particulars 4 and 10 are concerned.
[101]
Particulars 5 and 11 - Failure to conduct or commission an adequate risk assessment according to Australian Standards
Particular 11 was in the following terms:
The defendant should have conducted or commissioned an adequate risk assessment in accordance with accepted methodology as published in Australian Standards or otherwise accepted in the mining industry.
To repeat earlier observations as to applicable principles under s 8(2) an employer has an obligation to be proactive in ensuring safety at the workplace which involved both preventative and remedial measures. There is a need to exercise abundant caution, maintain constant vigilance and take all reasonable steps to maintain safety at the workplace involved, most fundamentally, the conducting of appropriate risk assessments: Abigroup at 364; Kennedy-Taylor (NSW) Pty Limited v WorkCover Authority of NSW (Inspector Charles) [2000] NSWIRComm 240 ("Kennedy-Taylor") at [62]. As stated in Kirk at [14], the identification of a risk to the health, safety and welfare of employees and other persons in the workplace is a necessary step by an employer in discharging the employer's obligations.
However, as earlier mentioned, s 8(2) is only contravened where there has been a failure, on behalf of the employer, to take a particular measure to prevent an identifiable risk eventuating. In the present context, the defendant may then contravene the obligations under s 8(2) by failing to make an assessment of the risks inherent in a workplace by omitting to undertake a risk assessment.
Some other preliminary observations should be made:
1. Both parties placed reliance upon the judgment of the Full Bench of the Industrial Court of NSW in Kennedy-Taylor. That judgment makes clear that a failure to undertake a risk assessment to prevent an identifiable risk eventuating will only represent a contravention of the Act where proper enquiry by the employer by that means would have revealed the existence of the risk (and its nature). (See also Abigroup at 373);
2. This approach has its counterpoint in the principles relating to offences under s 8(1). In Drake Personnel Limited trading as Drake Industrial v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 432, the Full Bench of the Industrial Court had the occasion to consider the judgment of Peterson J in WorkCover Authority of NSW (Inspector Smith) v Dubavo Pty Limited (unreported, CT93/1247-1249, 24 July 1995). The Full Bench approved the opinion expressed in that judgment that there could be no failure on the part of an employer to not take steps to preclude a risk which was "impossible" to anticipate. The Full Bench distinguished, however, that situation from one where the employer does not know of a hazard or, as the defendant submitted, could not "reasonably know" of that hazard.
3. As earlier discussed, the concept of reasonable foreseeability is not apt to be applied to the duties owed under the Act but is applicable to defences brought under the Act. Thus, the question may be asked in relation to a statutory defence as to whether, by the undertaking of a risk assessment, a risk may have been reasonably foreseen.
4. A change in work processes or methods may result in a risk to health and safety in circumstances where the measures adopted by an employer to deal with risks may have been previously adequate. The need to risk assess in these circumstances arises whether or not a previous risk assessment has been undertaken as it is necessary to avoid risks emerging through those changed circumstances which might be quiescent: Abigroup at 364 and 365.
5. In that respect, whilst the Occupational Health and Safety Regulation 2001 imposed a duty to conduct a risk assessment, an omission to do so, without more, was not a breach of the duties imposed by the Act. As noted, the Act required proof that an omission, that is to conduct a risk assessment, breached a duty to ensure safety. Further, the duties of risk management imposed by the regulation were not charged as part of the breach of duties in this matter.
The defendant is correct to submit that the prosecutor cannot, by the form of drafting of particulars, overcome the necessity to prove that the measure particularised in particular 11 was one which was sufficient to uncover the risk. I do not accept the further submission of the defendant that, as matter of liability, and noting the existence of an uncontrolled risk has been identified, that a contravention may not occur as a result of a failure to undertake a risk assessment because an action must be taken before a risk can be affected. As was implicit in the submission advanced by the defendant in its principal submissions in relation to particular 10, had the defendant known that the risk was uncontrolled, the safe course to eliminate or minimise the risk would have been to implement an engineering control to reprogram the PLC code. In other words, the identification of the risk by means of the risk assessment would have eliminated or minimised the risk by directing the defendant to the avoidance of the risk.
The defendant submitted that the Court's attention must be confined to the consideration of an omission to risk assess the "system of delivery of the waste material" and not any "system of work" per se. This was said to arise because the defendant was not charged with contravening s 8(2) for failing to risk assess the system of work because the original particular 5 was amended to remove a reference to a system of work simplicitor by an Order made by the Court on 21 June 2014.
In substance, the Court was said to be precluded by this amendment from considering a number of factors said to give rise to the need for the conduct of a risk assessment as a result of changes arising following the last risk assessment, namely, the Connell Hatch Risk Assessment. The changes that could be significant in that respect were: the type of truck used, whether the truck would move in a forward direction only (and not whether reversing into position is any part of the manoeuvring to take a load).
That submission appears to derive from the fact that the nominated written submissions by the prosecutor variously referred to "work systems" relating to the type of truck or the means of positioning the truck, although one submission nominated a failure to risk assess the electronic control system per se.
I do not consider that the defendant's submission in this respect may be accepted. Particular 5 refers to "the risk inherent in the system of delivery of the waste material" and particular 11 states that the measure required was the conduct or commissioning of an adequate risk assessment of that system. No definition of the term "a system of delivery of the waste material" was identified in the defendant's submissions nor does any definition appear in the particulars of the s 8(2) charge. As the evidence revealed, the system of delivery of waste material involved the combination of the conveyance of material to a hopper situated in Bin 802 and, by the process of electronic and mechanical operations, the release of that material into the bin of a truck. The "system of delivery" involved both the release of the material and its receipt by trucks.
In any event, particular 5 refers to "the risks inherent in the system of delivery of waste material" which necessarily involve the interaction of the safety control system of Bin 802 in or in connection with the receipt of materials by trucks. As the prosecutor submitted "critical to the safety of the system was the method by which a truck entered to collect reject". Further, the "accepted methodology" referred to in particular 11 draws attention to the method of the delivery of material into trucks for transport.
Particular 5 refers to the "risks inherent in the system" which risks, as identified in the particulars of the charges, concern the risk of materials falling onto the roof of the truck cabin. That makes the necessary connection to the utilisation of trucks in or in connection with, or as part of, the system of delivery of the waste material. The risks inherent in that system are those, inter alia, connected with the risk of materials falling on the truck and the operation of safety systems within Bin 802 with respect to the delivery of material into trucks.
I turn then to the question as to whether the prosecutor has discharged the burden of proof that conducting a risk assessment of the risks inherent in the system of waste material (as the measure is described above) would have eliminated or minimised the particularised risk. In the defendant's case, a fundamental question, in that respect, was whether such a risk assessment would have uncovered that the bin could open its gates over the cabin of a truck travelling underneath it; a consideration to which I shall return to in some detail.
The defendant undertook no risk assessment of the operation of Bin 802 from the period it took over control of the operations of the reject handling system until the date of the incident.
The prosecutor submitted that it was trite that the defendant had an obligation to conduct a risk assessment or, in the very least, ensure that an adequate risk assessment had been conducted. The defendant submitted that it was necessary for the prosecutor to demonstrate why "in the circumstances" a risk assessment was required. Submissions as to this issue often intersected with submissions as to a statutory defence. For example, submissions were made in that latter context as to whether it was reasonably practicable for the defendant to "prioritise" the risk assessment of Bin 802 in contrast to other aspects of the mine operation after the defendant took over control of the surface operations and, in particular, the reject handling system. Submissions were also made as to whether there were any triggers requiring a risk assessment. It is suffice to mention, at this juncture, that the fact of the defendant not having conducted a risk assessment cannot be determinative of either the question of liability or statutory defences. For the reasons given above, I reject this relatively simplistic proposition advanced by the prosecutor (although I acknowledge that her submissions were overall more elaborate).
From 30 March 2008, the defendant acquired control of the reject handling system of the coal mine and with it the obligations for occupational health and safety of employees and non-employees under the Act. It may have, pursuant to s 20(4) of the CMHS Act, adopted the health and safety management of its predecessor operator, CMOP, provided that that system was compliant with the Act and the CMHSR. In circumstances where the defendant had not previously identified or assessed the risks associated with the service operations of the mine and received no more than a cursory, but not insubstantial, checklist of problems (or safety issues) from the predecessor operator and preliminary observations made by its Manager, Mr Huthnance (outside of the fully acquired role in the management of those operations), this provision could not provide comfort for the defendant. Absent any other relevant imperatives affecting the defendant's obligations, these factors alone would have pointed to the need to undertake risk assessments, albeit not just for Bin 802, but the surface operations generally (a consideration which will impact on the defence brought under s 28(a)). No submission was really made to the contrary by the defendant and there was certainly no evidence called that a risk assessment should not be undertaken. Rather, it was submitted that the defendant was required to prioritise its identification and assessment of risks and the management of them in the period it had between taking control of the operations and the incident. It was submitted by the defendant, correctly, there were no triggers pointing to the need to prioritise Bin 802. However, as I will discuss, had the last risk assessment for Bin 802 (or the truck haulage section of the same) have been consulted, the need to undertake a risk assessment would have become immediately apparent. I will return to those issues after a consideration of why a risk assessment of Bin 802 was required.
The evidence in these proceedings showed that, if there had been recourse to the last risk assessment undertaken with respect to Bin 802, there would have been identified that a significant change had occurred in the work method previously assessed for use with Bin 802. The evidence further disclosed that had such a change been identified, it was necessary, in order to proactively ensure safety at the workplace, to do a further risk assessment.
That conclusion requires elaboration.
The prosecutor submitted a consideration of the last risk assessment, the Connell Hatch Risk Assessment, would have identified the changes in the work methods assessed in the Connell Hatch Risk Assessment as follows:
1. The change in the type of truck planned to be used - from semi tippers to truck and dog; and
2. A change in the system of work - the method of operation of the Bin used by drivers of reversing.
The prosecutor relied upon a further contention that the electronic control system that was in use in the period 31 March 2008 to 18 February 2009 was not risk assessed in the Connell Hatch Risk Assessment.
The first change identified by the prosecutor cannot constitute a relevant trigger for a risk assessment. True it is, the truck type contemplated by the 2006 Connell Hatch Risk Assessment was, as earlier discussed in this judgment, a road-registered truck, specifically a semi tipper.
However, the flaw in the prosecutor's contention was that there was simply no evidence that the fact the truck and dog took multiple loads while a semi tipper took one load would have constituted any relevant difference in the operation of Bin 802 or risks associated therewith. There was no indication in the prosecutor's case as to what the relevant difference may have meant in terms of risks.
In all likelihood, there was no relevant difference, given that the risk associated with the truck and dogs arising from the flaw in the software logic in the PLC was the taking of the first load into the truck in what would presumably be the same manner as the receipt of the load into the semi tipper.
It may be noted that there was very little evidence in the proceedings as to what actually constituted the semi tipper. Mr Braun gave evidence from observation, that a "semi tipper is a vehicle that is a rear tip semi-trailer" which is "articulated". It has a bin that is capable of tipping out of a gate at the rear of the bin. Mr Farrelly gave evidence the semi tipper had one long single body which could tip. Apparently there was some difficulty in materials sticking to the back of semi tipper trucks when being tipped.
It also might be mentioned that the prosecutor opened her case on the basis there was a change of truck type from the mine truck to a truck and dog. There is some substance in the submission by the defendant that the prosecutor did not give Mr Gibson or Mr Huthnance an opportunity to meet, in evidence, her case in this respect.
On the other hand, the evidence revealed the use of the bin by trucks moving forward in the race around the chute and then reversing into position was a change in the way that it had been contemplated the bin would be used before it was commissioned. Nor, for reasons given below, was that a method of loading trucks which was in contemplation by Mr Ambrose when coding during the wet commissioning of Bin 802 (there were also serious limits in Mr Barnes' appreciation of such reversing in the commissioning process).
Those findings are a matter of significance in terms of the need to risk assess. Professor McAree considered that the Connell Hatch Risk Assessment would have been of utility in the review of safety of plant to "understand that the thinking was that it led to the conclusions last time, and you would make an assessment of their continued value. In the result, it would be necessary to consider whether the procedures for operating equipment had changed. Specifically, if the reversing of trucks into position had not been part of the original concept of the operation, it would be necessary to consider that change because your risk assessment is based on that concept of operation".
Mr Punch identified that the change involved in drivers reversing into position to take a load would represent a change of requiring "focus on what the impact that change would be". He assessed that such change potentially affected the way in which the control system operated which required an "engineering change management process whereby you identify what the change is and what the potential impact would be". Even though Mr Punch gave his evidence in relation to the combined effect of a different truck type and a change in the work practice of driving through the race, and then reversing, it is clear that his assessments are equally applicable to either occurrence and, in that respect, it would be necessary to return to the original risk assessment to consider the effect of all the changes within the risk assessment.
The defendant submitted the identification of such a change would not have concerned any risk assessment team in 2008 to February 2009 because it was understood "by all involved", including the designer of the control system that, irrespective of how the bin was placed, the bin gate doors would not open for the first load unload unless the truck blocked all three sensors at the same time. That consideration may be relevant to whether a risk assessment may uncover a risk, but it does not alter the fact that no steps were taken by the defendant to evaluate the change in work method from the last risk assessment when those steps were plainly available, albeit affected by competing priorities.
Similarly, the fact that administrative controls were introduced by the painting of a white line on the wall inside the race does not diminish the need for inquiries as to what was the principal safety control mechanism operating in Bin 802.
The defendant also pointed to the evidence of Mr Gibson who said, in order to appreciate that a change has occurred to require the risk assessment to be reviewed, it is necessary to know that there had been a change and that a change in the way something is operated may simply require a review of procedure for operating. However, when given the illustration of a procedure for trucks moving from driving forward and then reversing into position, Mr Gibson considered that to be a significant change which would require recourse to a risk assessment after an understanding of operational aspects.
The defendant submitted in order to determine change from the model considered at the time of the Connell Hatch Risk Assessment (or in the coding of the PLC application software) as a mode of operation, it would have been necessary to review that risk assessment having regard to Primatec's Functional Description. It was said that that investigation would provide for greater difficulty in order to appreciate there was a trigger. However, it was not suggested that that documentation and its association with a risk assessment would not have been readily available to the defendant.
Further, the defendant accepted that a reasonable reading of the specification, namely the Functional Description, was that it was premised on trucks operating the bin by continually moving forward. Later, in its submissions, there was some prevarication in that respect; with the defendant arguing that there were no words in the specification denying that trucks might use the bin by reversing. My view is that the concession was correctly made in the first place having regard to the document in question.
It is useful at this juncture to return to some historical considerations.
I first turn to a summation given by the defendant which I accept (by way of emphasis and elaboration on earlier findings):
706. So far as concerned those programmers, as the Court knows, Mr Ambrose of Primatec worked for a number of months on the electrical control aspects of the refurbishment of the CPP. From the point of view both of Primatec and CMOP, the electrical control work on the reject conveyors and Reject Bin 802 was (to use Mr Ambrose's words) "follow-on" work from the work done in the refurbishment of the CPP. From the point of view of Primatec, the code for the reject bin was written "to comply with all the other PLC code that had been written for the washery". From the point of view of CMOP, it was important that the control systems for the reject handling system be refurbished to the same standards as the control systems in the refurbished CPP. The content of the Roche Control System Standards and Conventions document had to be taken into account when considering how and to what standards the control systems of the reject handling system were to be refurbished. And in its 13 September 2006 scope of work and budget estimate for the reject bin upgrade, Primatec told CMOP not only that the standards would be taken into account but that they would be maintained on the work Primatec did in relation to the PLC software at Reject Bin 802.
707. In addition, in June 2006, CMOP took part in a risk assessment meeting facilitated by Connell Hatch for, amongst other things, the truck haulage procedure to be put in place once the reject bin was refurbished and the reject emplacement area was operational. The main recommendations from that meeting included:
Ensure truck loading interlocks are designed to meet requirements for the safety applications defined in AS 61508.
This report was sent to both the Defendant and Mr Kevin Nott and Peter Braun of CMOP.
708. The final report of the Connell Hatch risk assessment, dated December 2006, in respect of truck haulage procedure, for the risk of spillage as a result of the truck not being aligned under the filling point, identified as an additional control:
Ensure systems to appropriate electrical standards for safety application AS61508.
709. CMOP gave a copy of this report to Mr Richardson of Demat which was contracted to design, construct and commission the new electrical control system for Reject Bin 802.
710. In their scope of work and budget estimates which they provided CMOP for the work they were to do on upgrading the reject bin, both Demat and Primatec set out exclusions - work they would not do. Neither company excluded functional safety or compliance with the standards identified in the Roche Control System Standards and Conventions document.
(e) Primatec's Functional Description
711. In May 2007, Primatec provided Demat and CMOP with a Functional Description for the electrical control system of the bin. It was written by Shane Ambrose and provided to Jamie Ramplin to review. By email, Richardson told Ambrose that he would discuss the document with Ramplin. The document was designed to be a description of how the PLC would be coded so as to allow for the functions described in the document to occur.
712. The document made it very clear - stating it no less than three times - that under the design described, unless all 3 of 3 sensors were "active" (ie, blocked simultaneously), the bin gates could not open. Because the third sensor was located forward of the bin chute, the bin gates could not open unless the truck cabin was forward of the bin chute.
Some other historical factors, may be mentioned (again by way, in part, of emphasis of previous findings):
1. Prior to 31 July 2007, the PLC operated such that all three sensors were required to be simultaneously blocked (activated) before TIP.
2. In CMOP's design specification to Primatec, the specification required that the bin doors not open in auto mode unless the truck was in position, a requirement to be secured by two sensors. Mr Richardson took the view that an additional PE Cell would make the system safer in positioning the truck. Thus, the specification provided by Primatec and Demat to CMOP (the Functional Description document) operated upon the basis of three sensors and, in particular, that the bin gates could not open unless the three sensors in the bin race were simultaneously blocked.
3. On 31 July 2007, Mr Ambrose made a modification to the PLC program logic. First, he inserted before the first bin gate sequence an instruction that when TIP was asserted it would latch, that is, as previously discussed, remain asserted until cleared.
4. The concept of latching was introduced, together with the abandonment of the need for all three sensors to be broken simultaneously, by Mr Ambrose to accommodate the gap between truck and dog.
5. The second cause of the risk occurred by this change was twofold. Firstly, the truck had to drive forward through the race and around the chute then to reverse into position. Secondly, it was necessary for the driver to misjudge the distance the truck was reversed, such that the truck cabin was underneath the bin chute past the white line painted on the wall of the bin race below PE Cell 3 and out of alignment with the image in the side mirrors and the overhead mirrors in the gantry. As earlier discussed, this causal positioning may have arisen by the truck cabin simply being driven underneath the chute or being driven even further and then the driver moving forward.
6. Mr Ambrose made no record of having made any modification. Mr Ambrose did not make known the change in the coding to his employer, ZMD Engineering, Demat, Daracon, CMOP or the defendant and, thus, did not make known the departure from the functional specification or the requirements of CMOP's design specification that, for the bin doors to open in automatic mode of operation, the truck had to be in position. He did, however, consider that the bin controlled by the PLC coded software was safe to use.
7. The risk emerged in the narrow sense of circumstances that I have earlier described. The change was not known to the defendant until well after the incident. Further, the traffic lights operating in the system did not indicate the alteration to the PLC software because the traffic lights operated independently of the logic in that software and were simply controlled by whether the PE Cell line was blocked or unblocked.
In that light, I turn to reject two submissions by the prosecutor.
Two further submissions require attention at this juncture. It was submitted by the prosecutor that it was inaccurate and misleading to submit that there was any error in the coding. It was submitted that Bin 802 operated in a way in which it had been programmed and it had been programmed in accordance with the design brief.
I do not accept this submission as it misunderstands that, at the time of the further coding by Mr Ambrose, the requirements of the Functional Description document for the bin were that it would only operate when all three PE Cells were blocked. Mr Ambrose appreciated that he had altered the PLC software logic so that it no longer functioned as described in that document. He did so in order to accommodate the truck and dogs. It is true, as earlier found, the truck's moving forward under the altered code would not have affected the safety of the system, but it does not follow that the system operated in a way that it had been designed to operate.
I accept, also, the submission by the defendant that the prosecutor's reply submission on liability that the reject bin had been programed in accordance with the design brief should be rejected. Mr Barnes' belief was that the bin gate doors would not open in the incident scenario because the Functional Description document had provided that the bin would operate only when all three cells were blocked. What Mr Ambrose did by his alteration to the software logic system was, as earlier discussed, to provide that all three sensors were not required to be blocked for the bin gate doors to open over the back of the truck. I return then to discuss my earlier conclusion that the method used by Mr Ambrose in coding the PLC software did not take into account the reversing of trucks.
It is true, as submitted by the defendant, so far as Mr Barnes, the commissioning engineer, was concerned, the purpose of Bin 802 being commissioned for the operation of trucks and dogs on 31 July 2007, was to ensure it operated with trucks and dogs as per specification, namely, the functional description. It is also true that he was satisfied that the bin operated the trucks and dogs as per that specification.
Consideration may then be given to the earlier finding that Mr Ambrose did not have available to him, and take into account in coding the PLC software logic, to use the shorthand, the reversing of trucks to take the first load of reject.
The evidence reveals that on the day the bin was commissioned for trucks and dogs, the drivers were instructed that, to deal with the drip of dirty water from the chute, they could operate the bin by reversing their trucks through the race and thereafter the trucks did so. This was the same occasion that Mr Ambrose made his change to the software and the same occasion Mr Barnes commissioned the bin to ensure that it operated in accordance with the Primatec Functional Description.
The defendant referred to the evidence of Mr Delaney, as earlier mentioned, that on the day the bin was commissioned for use by truck and dogs the drivers were instructed that, to deal with the drip of dirty water from the chute, they could operate the bin by reversing their trucks through the race and did so (as mentioned this was at the time Mr Ambrose made the change to the software code and Mr Barnes commissioned the bin). It was also submitted, as previously mentioned, that Mr Barnes' belief was that the bin gate doors would not open in the circumstances described by Mr Delaney.
However, none of that evidence or indeed the evidence of Mr Barnes himself on the topic warrant a conclusion that Mr Ambrose was doing anything more, when sitting in the control room on 31 July 2007, then making modifications in the software to account for the geometry of the truck and dogs. I agree with the submission by the prosecutor that it may be inferred by the evidence of Mr Barnes and Mr Ambrose that the change to the coding undertaken on 31 July 2007 was not based upon the premise that the trucks would be reversing into position in the manner described by Mr Delaney and, in particular, reversing once the third PE Cell had been blocked by the truck and TIP achieved. Such an assessment is consistent with Mr Ambrose not advising of the change to the coding of the software logic to the defendant or its subcontractors. The software logic change vis-à-vis the latching TIP and not requiring all three sensors to be broken was seen as inconsequential.
Whilst it is true that the commissioning engineer found no inconsistency between that fact and compliance with the bin's control system with the requirements of the Functional Description, that consideration must be seen in the light of the fact that, when commissioning for the use of trucks and dogs, Mr Barnes did not test for the incident scenario of trucks moving forward and then reversing until the cabin was under the chute. He gave evidence that, had he been aware that all three sensors (presumably because PE Cell 1 was permanently blocked) having been broken at the same time, would leave the system latched and reliant upon the response of the remote control regardless of where the cabin was positioned, he would have redesigned the electronic control system.
What is also available on the evidence is the submission by the defendant that the procedure described by Mr Delaney and other drivers whereby the truck would drive forward through the chute and through the bin race and then reverse back until the tray of the truck was under the chute when taking the first load into the tray of the truck and moving forward to take the remaining loads was known to CMOP and after the takeover was known to the defendant. It is also true that the mode of operation vis-à-vis reversing was adverted to in the SOP.
However, the defendant had no knowledge of the change in the coding introduced by Mr Ambrose and was of the understanding, as disclosed by the SOP, that the trucks operating the bin by reversing still needed to block all three sensors before the chute would open. The defendant was also correct to submit, despite a detailed and lengthy investigation and presentation of a prosecution case comprising of numerous witnesses over many weeks, there was no evidence that, before 18 February 2009, any person thought that the risk of a driver being injured by reject fall from the bin was not controlled. There were no visual indicators that the system was adopting a logic different to the functional description.
That said, the combination of the aforementioned findings permits an acceptance of the following submission by the prosecutor (so far as it concerns the reversing of trucks (after moving forward through the race to take the first load):
The defendant did not conduct its own risk assessment of the use of the reject bin at any time before the incident. The defendant could have, but did not, review the risk assessment of Connell Hatch (the last that it had on file) to determine whether the system of work upon which it was based was the same system of work that was being employed by truck and dog combinations. Critical to the applicability let alone the reliability of the of the Connell Hatch risk assessment was the nature of the work system that is the way in which the trucks were to interact with the computer driver safety system. That it was so is obvious from the fact that ultimately the safety of truck drivers depended upon their trucks being "in position" and the identification by the system of whether a truck and dog combination was "in position". This was in turn dependent upon the way in which the truck engaged with the sensor beams.
The prosecutor was also correct to submit that a comparison of the risk assessment held by the defendant with its own work system, namely, the SOP, would have made it plain that the risk assessment was undertaken on a basis different to the work system operating as described under the SOP. This would have only required a documentary comparison. I accept the submission of the prosecutor:
If employers or head contractors or operators of plant are to rely upon computer systems, just as if they are to rely upon physical but non electronic safety systems they have a duty to ensure that the systems are designed and operate so as to render the plant or work system safe.
Those assessments indicate why recourse to the previous risk assessment would have alerted the defendant to the need to conduct a risk assessment. It does not follow that the risk assessment would have uncovered the uncontrolled risk. I will now return to that issue.
The defendant submitted that a risk assessment would not have uncovered the risk for the following reasons:
1. Any risk assessment would inevitably have comprised people who understood or believed that the gate doors would not open unless all PE Cells were blocked. In particular, had Mr Barnes been consulted about the lack of conformity between the Functional Description and drivers reversing to take a load, his conclusion would have been, based on his knowledge, that the gate doors would not open onto the cabin of the truck because the Functional Description document continued (to his knowledge) to provide that all three PE Cells must be blocked in order for the gates to open. Additionally, only one person, Mr Ambrose, knew the PLC application software was coded such that the bin's electrical control system worked differently from the specifications in the Functional Description document which he had provided to the control system designer, Demat and CMOP as well as Mr Barnes. Mr Ambrose thought that the bin controlled by the PLC he had coded was safe to use and did not appreciate the functionality of the software he wrote no longer complied with the requirements of CMOP's design specification that for the bin doors to open in automatic mode of operation, the truck had to be in position, that is, in a safe position for the doors to open.
2. The Functional Description document would have been the guiding document for any risk assessment team as to how the bin's control system operated, but, in the absence of knowledge provided by Mr Ambrose, that document would have confirmed the safe system by virtue of the requirement that all three PE Cells be blocked. The evidence from witnesses like Mr Gibson was, in the case of a plant like Bin 802, a risk assessment would be conducted by reviewing documents. Neither Professor McAree nor Mr Punch suggested otherwise. Indeed, it is earlier recorded Mr Punch was concerned about a review of previous risk assessments.
3. A further submission was made that there was no evidence that a risk assessment would have revealed that the risk was not controlled. Nor was there evidence as to how a risk assessment would have determined that the bin doors would open if the third sensor beam did not remain broken after a truck had driven through the bin race and reversed and the remote control activated.
4. The various propositions put by the prosecutor were not supported by evidence. Those propositions included that a risk assessment could have been conducted with the drawings as to truck positions compiled by Inspector Smith.
5. The FMEA was conducted over three days involving a large number of people associated with the bin and numerous experts including the bin's control system designer, Mr Richardson. Although conducted with the hindsight of the risk and, indeed, the incident itself, the FMEA process did not identify the cause of the risk.
6. Risk assessing the reversing of the truck and dog would have conformed with the provisions of the SOP that the bin would not operate unless all three lights were blocked unless the truck was in position and a risk assessment by means of emptying Bin 802 and using truck and dogs and checking whether the bin would open and a risk assessment involving the use of paddles blocking sensors could not have revealed the risk.
7. Once the bin was in operation there was a very high unlikelihood of any risk assessment team being able to identify that there was a latent fault in the PLC application code logic due to the complexity of the code and the specialised qualifications required to read and understand it. Mr Georgevits took well over 100 hours to conduct his analysis of the code and write his report identifying that there was a flaw in the logic of the software.
The defendant further submitted that the only reference point applicable for the performance of a risk assessment at the coal mine of which there was "serious evidence" was MDG1010, a Mining Design Guideline produced by the DPI for risk assessments at coal mines. It was argued that AS 61508 was not applicable because the lifestyle process could not be applied to the bin because it was a legacy plant. However, the risk assessment requirements of that standard did not provide a process that was significantly different from the process provided by MDG1010. Springing from those submissions, it was submitted the prosecutor had not proved there was a requirement or collection of requirements in MDG1010 for a risk assessment which, if complied with, would have resulted in the elimination, management or minimisation of the risk to Mr Oldknow on 18 February 2009 or that a risk assessment, in accordance with the requirement of the collection of requirements set out in MDG1010, would have eliminated or minimised the risk.
It was submitted that a number of risk assessments had not eliminated or minimised the pleaded risk, including the Connell Hatch Risk Assessment, the Demat CHAZOP in March 2007 or the operational risk assessment conducted by Daracon in September 2008 for the use of the bin by truck and dog. Nor did the Connell Hatch Risk Assessment review or the Hardy Bros JSEA have the effect of disclosing the risk.
It might be said at the outset of the consideration of these submissions that I do not accept the last proposition advanced by the defendant. As earlier mentioned, the Connell Hatch Risk Assessment was undertaken when the work system envisaged did not contemplate trucks reversing into position. It was completed at a time when the PLC software logic had not been written or changed to allow TIP to be latched. Similarly, the Demat CHAZOP was also conducted prior to the change in the manner in which drivers accessed the bin (by reversing) and prior to the alteration of the PLC code, corresponding with the use of truck and dogs, to provide for the latching.
I agree with the submission of the prosecutor that the operational risk assessment conducted by Daracon was directed to the broader task of coarse reject material haulage using truck and dog trailers and identified only one potential hazard being bin malfunction. The only controls that were identified were daily mechanical inspections being performed and training with respect to Hardy Bros' use of the coarse reject bin operation. It was a virtual copy of the Hardy Bros JSEA. The Connell Hatch Risk Assessment review was conducted in May 2007 and was prompted by the design modification to water collection methods, not the bin refurbishment.
There are a number of factors reflecting upon the likelihood that the uncontrolled risk, that the bin gates may open on the cabin of a truck, would have been discovered during any risk assessment conducted by the defendant. They are as follows:
1. The particularised risk was known but understood, on reasonable grounds, to be controlled. Putting aside Mr Ambrose, the members of any risk assessment team would have comprised persons who held the view that the bin's control system operated in accordance with the Functional Description document such that all three PE Cells were required to be blocked before the bin gates could open. This included the defendant's managers, Demat, ZMD Engineering and the drivers. The commissioning had gone forward on this understanding.
2. In order for the risk assessment to reveal the uncontrolled risk arising from the PLC software, it would have been necessary for a software engineer to analyse the PLC code. Without having a detailed and comprehensive knowledge of how the plant under control worked or how it was intended to work, how it actually worked, as well as the potential failure model, it would have been unfruitful, if not futile, for a software engineer, save for Mr Ambrose, to review the PLC code to try to work out whether the equipment controlled by the code may have operated unsafely. Even with the benefit of hindsight, and the provision of particular rungs of the software involved in the flaw and detailed instructions, the software expert, Mr Georgevits, took well over 100 hours to identify the latent flaw in the logic of the software. Mr Geogevits' evidence was that a review of the software logic used in Bin 802 would be a major enterprise. Mr Ambrose indicated that he had never been asked to analyse someone else's code to determine whether plant under the control of a PLC operated safely.
3. Consistently with the evidence in the proceedings, as a derivative of the analysis in (1) and (2) above, it follows, that unless the person who coded the software was "in the room" during a risk assessment, it was unlikely that it would have discovered the software was coded so that, once asserted, TIP latched until all three PE Cells cleared.
4. The question then arises: Would Mr Ambrose, the software writer, have been "in the room" and, if so, identified the risk resulting from the coding change he made? (Mr Punch indicated that to identify the risk it would have been necessary for Mr Ambrose to recall how he coded the software and appreciate the significance of the logic in the coding vis-à-vis the risk when considering how the bin might be used or misused). The latter question shall be first considered.
5. There was no evidence of what Mr Ambrose would have done or said if he was "in the room" in a risk assessment process. The defendant suggested that Mr Ambrose may not have recalled his coding but this seems a most unlikely scenario given that he displayed little difficulty in recalling his work generally in his evidence in the proceedings. Certainly, had attention been directed to the change from the last risk assessment to the instruction found in cl 3.1 of the SOP vis-à-vis drivers reversing into the bin, his attention to previous coding would have been likely to be elevated because this factor was not brought to his attention in his work in coding for Bin 802. Indeed, the realisation that the previous coding had not incorporated an allowance for the actual practice of reversing by drivers may have increased the prospect of the discovery of the risk, save for the following counterbalancing considerations next discussed.
6. Mr Ambrose considered that the changes he introduced to the coding to accommodate the truck and dogs were safe and so inconsequential it did not require recording. He would have approached the risk assessment without the benefit of hindsight including that the reversing of trucks was centrally related to the software logic flaw. Further, the risk was such that it did not emerge merely because of latching (which methodology Mr Ambrose considered was neither alarming nor unorthodox) but because the latching occurred before the first opening and closing of the gates and when trucks reversed into position by moving out of position when operating the remote. It may be recalled that the evidence was that, in the case of a plant like Bin 802, a risk assessment would likely be conducted by reviewing documents and thus not necessarily revisiting all of those factors.
7. The further question is whether Mr Ambrose would have been retained for such a risk assessment outside, that is, the occurrence of the incident.
8. There does appear to be in the evidence some ambiguity caused by the reference by Mr Punch to a designer as opposed to a software writer. Mr Punch gave evidence that any review of the system, including the software logic system, in a risk assessment would have involved designers of the software system. The defendant submitted that Mr Punch gave no evidence that the software writer would have been in the room in contrast to the designer. I consider the reference to designer in this evidence may be understood as incorporating Mr Ambrose. Demat contracted Primatec to effect the design and it was Mr Ambrose who forwarded the Functional Description document to CMOP and Mr Richardson.
9. The defendant was right to suggest that Mr Punch did modify his evidence somewhat when asked to remove consideration of hindsight: in those circumstances he accepted that the site operator may not call on the original contractor who had left a couple years before to undertake a risk assessment. Mr Punch later stated, however, that if it had been discovered that the operation of the bin was different to the original design or the original assumption that the design was based on then he would naturally try and involve the designer. Professor McAree did not give evidence that the designer would be in the room for the risk assessment.
10. On the other hand, Mr Punch accepted that to try and involve, in a risk assessment review process, all contractors involved in the design and construction of the plant on site, or even just one piece of plant, would have resulted in the risk assessment being overwhelmed by the practicalities of trying to bring all those people together.
11. Contrary to the submissions of the prosecutor, I do not consider the evidence supports a conclusion that the various experiments with the machinery contemplated in the prosecutor's submissions would have been employed in any risk assessment or, if undertaken, have revealed the risk. I refer here to the reference to the drawings undertaken by Mr Smith or a risk assessment being done with paddles blocking sensors or emptying the reject bin and using truck and dogs and checking whether the bin would open. As mentioned, the evidence from various witnesses was that, in the case of the plant like Bin 802, a risk assessment would be conducted by reviewing documents.
From the standpoint that s 8(2) of the Act imposes an absolute liability on employers, subject always to any defence that may arise: Hunter Quarries at [76], I consider that the prosecutor has proved beyond reasonable doubt that the measure particularised would have mitigated the risk. Without the need to undertake any other task than consulting the previous risk assessment, the Connell Hatch Risk Assessment, the defendant would have learnt that Bin 802 had not been risk assessed as to its mode of operation at the time the defendant became the operator of the surface operations at the Mine. That factor alone would have identified the need to conduct a risk assessment. It would have also identified the need to re-assess hazards associated with Bin 802 which may have arisen as a result of changes to the fundamental underpinnings of the operation of the system, namely, the truck haulage process. By the obligation on the defendant to be proactive in ensuring the health and safety of persons not in its employment within that operation, it was necessary to seek out uncontrolled risks including those which were quiescent.
From the viewpoint of functional safety, the risk assessment, on Mr Punch's evidence, would have initiated an investigation into the safety integrity of the system. This would not have guaranteed the risk would be identified but would increase, on his evidence, the likelihood that the risk would be found; thereby, as earlier discussed, mitigating the risk.
There can be no doubt that the likelihood of uncovering the uncontrolled risk in the circumstances earlier discussed was remote. That did not entail the risk assessment being a futility and there was certainly no evidence that the nature of the uncontrolled risk was such that it was impossible to uncover. If complex electronic systems are to be employed to provide for the health and safety of workers then it follows that employers must be adept, in the ordinary course, in searching out risks which, by the very nature of those systems, will provide for difficulties of detection and control. None of those difficulties alleviate the strict obligations falling upon employers under the Act. That does not rob the employer of recourse to defences, as I will discuss below, in the particular circumstances in which they operate but it does speak to the nature of the liability imposed upon employers under the Act.
In my view, the prosecutor has proved beyond reasonable doubt the omission in particular 11 and, in particular, that the measure would have minimised the risk to the safety of Mr Oldknow on 18 February 2009 (and the other particularised truck drivers, if applicable).
Further, the prosecutor has proven that the omission to perform or cause to be performed a risk assessment to applicable standards of the risks inherent in the system of delivery of waste material significantly and substantially contributed to the exposure to risk of Mr Oldknow on 18 February 2009. That is partially because I consider it was possible to uncover that the bin gate could open over the cabin of the truck.
Risks assessments are a significant tool in provision of safety by directing, in a systematic way, inquiry into risks - even those that are quiescent. There is, therefore, a palpable connection between the conduct of such assessments and the elimination of minimisation of risk. The failure to undertake such an assessment, therefore, was significant because a valuable tool for the detection of uncontrolled risks was not employed by the defendant. I do not consider the remoteness of the prospect of discovery means the contribution of a risk assessment is insubstantial because, as I have noted, the value of such assessments is that they offer the prospect of uncovering difficult to find, but not undetectable, risks.
I do, however, consider that the defendant has succeeded in making out a defence under s 28(a) of the Act with respect to these particulars. My reasons for that conclusion appear below.
1. It was not reasonably practicable for the defendant to have conducted or commissioned a risk assessment at a time when it did not have statutory or contractual responsibility for occupational health and safety for Bin 802. The control of Bin 802 was designed, constructed, commissioned and, for the first eight months of its refurbished life, operated when the bin was not controlled by the defendant and nor was it legally responsible for it.
2. The defendant assumed responsibility for the control and operation of Bin 802 in March 2008. The defendant's connection with the refurbishment of Bin 802 was largely historical in the sense that it inherited Bin 802 which had been operating since 31 July 2007. It is at that point that a risk assessment may have been undertaken by the defendant but was not. The risk was known. The fact that it was uncontrolled was due to the way the PLC application itself was coded, a flaw which was latent in the logic of the software.
3. Whilst it was not impossible that a risk assessment would have uncovered the flaw, it was highly unlikely to the point of being remote. It should be emphasised, there was no record that any modification had been made to the software logic and Mr Ambrose made no report of the detail of the amendments. Mr Barnes, if asked, would have simply verified that, after commissioning and the amendments to the software logic were made, the system achieved the functionality that was required vis-à-vis the Functional Description document.
4. The effect of the latent flaw was that the risk was not controlled in a very narrow set of circumstances described earlier in this judgment.
5. These findings are reflected in what actually occurred in inquiries after the incident. A multidisciplinary departmental investigation took well over a year and a software expert's analysis with the benefit of hindsight took well over 100 hours to identify that there was a latent flaw in the logic of the software. It took an inquest three years after the incident before the flaw was discovered and understood. Even after all his investigation with all the assistance that he had, the "reversing" theory of causation, depending as it did on an understanding of the way the PLC logic was coded, was considered by the Department's lead investigator to be speculative.
6. The defendant believed, on reasonable grounds, that the bin had been upgraded to applicable Australian Standards and was controlled. The evidence disclosed that the defendant was proactive in reviewing plant, equipment and processes to ensure health and safety throughout the surface operations after taking over responsibility in March 2008. The evidence disclosed that there were no triggers which would have indicated that Bin 802 should receive priority within the large number of activities to review and correct health and safety at the workplace. The bin had only been recently refurbished and the trucks had been reversing since the day the bin was commissioned. There was no change in the drivers, the contractor Daracon, the mechanical supervisor, the safety manager (Ms Bosworth) or the mechanical engineer and the work systems remained the same. The defendant had no reports of incidents in the operation of the bin since it started operations on 31 July 2007.
7. The Court has evidence of four or five incidents with the operation of the bin whilst it was operated by CMOP. None of the incidents involved an unplanned opening of the bin at a time when the truck was not in position to take the first load or involved consideration of whether a truck was or was not blocking sensors. More significantly, Mr Huthnance was not aware of the incidents and had no reason to be aware of them. No incident report was created about any of the incidents other than a hard drop into the back of Mr Russell's truck on 8 August 2007. While the defendant had CMOP's incident register at an early stage after the takeover, there was nothing in it or any other documents to suggest there had been any incidents at Bin 802 requiring notification. Mr Farrelly did not raise any incidents with Mr Huthnance. Both Daracon and CMOP had incident reporting systems, noting that CMOP had a duty to notify the Department of incidents which involved unplanned activation or movement of machinery. On the face of it the system had operated flawlessly until the incident.
8. The prosecutor made a submission that deficiencies on the part of the previous operator would have alerted to the need for risk assessment. The evidence does disclose some such deficiencies but, having regard to the defendant's submissions, they need to be seen in context. Many of the rectification works required to be undertaken by the defendant arose from the fact that CMOP was contractually obliged to fund the works. By contrast, the defendant knew CMOP had asked for funds to upgrade Bin 802 which had been provided by the defendant. Another major safety issue, the safety of dozers on the stockpile, was an issue at all mines, which the defendant was "a pioneer in fixing". There was no reason to doubt the competencies of CMOP in selecting subcontractors such as Demat and Primatec. Demat and Primatec were experienced in building the same control systems for mass flow bins at other mines. They had been successfully involved in the refurbishment of the control systems in Newpac CHPP. Prior to takeover, the defendant had experience with Demat performing electrical design work including risk assessment in relation to such work and was aware of Primatec's role and the rebuild of the CHPP. There was no contention made by the prosecutor that either Demat or Primatec were apparently or obviously incompetent. There was no trigger with respect to Bin 802 to have alerted the need for priority to be given to the risk assessment of Bin 802 before the date of the incident.
9. As earlier discussed, the prosecutor's case is that the defendant should have had the risk assessments for and covering Bin 802 reviewed and should have seen what the prescribed maintenance system was for the reject bin before the incident. I have accepted as much. However, it must follow that the defendant would, in the absence of the need for prioritisation, based upon a trigger (and there was none), required to do the same for all of the equipment and processes at the site.
10. It is not reasonably practicably to have embarked upon a review of all risk assessments rather than prioritising the identification of uncontrolled or inadequately controlled risks on the site and putting in place adequate controls (or for that matter putting in place a combination of reviewing existing risk assessments and proactively searching for uncontrolled or inadequately controlled risks). Mr Gibson's view was that not all risk assessments would be reviewed. Mr Gibson's priority was to look at what posed a high risk. Drawing upon the opinions of both Mr Gibson and Mr Punch, it would be reasonable to confine the resources and time required for a review of risk assessments of existing equipment, plant or process to cases where there was a trigger - such as the age of the last risk assessment, the occurrence of an incident or history of incidents or a change in regulatory requirements.
11. I accept the submission of the defendant that to have embarked upon a program of reviewing risk assessment of all plant and processes, the combination of the length of time that such a program would have taken (some 43 weeks) and the large number of other plant processes involving known potentially fatal risks (see CMOP Newpac high level risk assessment) would mean that it could not be suggested that Bin 802 would have been prioritised in any such review program. To review the risk assessments for all surface equipment, plant and processes alone, as well as applicable major hazard plans and other statutory management plans applicable on the surface, would on the evidence take in the order of 2 years.
12. As earlier noted, Mr Punch considered that undertaking such a broad based risk assessment was impracticable.
13. Overall, I consider the defendant has proved that the fact the risk as particularised was uncontrolled was not reasonably foreseeable and further, in the context of this particular, it was not reasonably foreseeable that Mr Oldknow would be exposed to risk to his safety on 18 February 2009
The defendant has made good a statutory defence under s 28(a) of the Act with respect to this particular. The defendant has proved, on the balance of probabilities, that it was not reasonably practicable for it to comply with the duty imposed by s 8(2) of the Act.
The defendant is not guilty of the s 8(2) charge so far as particulars 5 and 11 are concerned.
[102]
THE SECTION 10(2) CHARGE
Given the nature of the particulars of this charge, it is important to note at the outset my conclusions as to the latent flaw in the logic of the PLC software which controlled the operation of Bin 802 operated; the narrowness of the window of a truck driver being exposed to the particularised risk deriving from that flaw; the rejection of the prosecutor's dirty PE Cell 2 theory; and, the determination that Messrs Fairley, Sales and King were not exposed to risk on 18 February 2009 in consequence of the flawed logic in the PLC application software are applicable with respect to the present charges. I will apply them to my findings with respect to the particulars of the s 10 charge in terms.
[103]
Particular 8 - Defendant should have ensured it was impossible for bin gates to be manually triggered by driver when truck cabin beneath chute
The terms of this particular were as follows:
The defendant should have ensured that the system for delivery of material provided for additional and independent safety measures preventing the Reject Bin being opened if the truck cabin was beneath it, such as hard-wired switches only accessible by a driver after his truck was past the delivery chute of the hopper.
The defendant received further and better particulars by correspondence from the prosecutor dated 13 February 2013.
I agree with the submission of the defendant that, by these further and better particulars, the prosecutor has simply repeated the contents of particulars 10 and 11 of the s 10 charge and that it was appropriate in those circumstances for the defendant to direct its submissions to those particulars rather than to particular 8. In any event, I consider that the defendant cannot be found guilty of contravening s 10(2) by reason of content of the allegation in particular 8 because the defendant cannot be convicted of something which is not an act or omission to take a specified measure. The Act does not authorise the conviction of a person who controlled plant simply because they failed to ensure there was no risk or that a pleaded risk was not controlled.
The defendant is not guilty of the s 10(2) charge so far as particular 8 is concerned.
[104]
Particular 9 - Defendant should have ensured plant was certified as complying with AS61508, AS62061 & AS4024 by a person with appropriate knowledge & skills before allowing any truck drivers to work with it
The terms of this particular were as follows:
The defendant should have ensured that the plant was certified as complying with Australian Standards AS61508, AS62061 and AS4024, by a person with appropriate knowledge and skills, before allowing any truck drivers to work with it. By "certified" the prosecutor means a review, examination, audit or assessment of compliance with those standards.
Despite the development of submissions by the defendant in this respect, in substance, this charge replicates the charge brought with respect to particular 6(a) of the s 8(2) charge. It is true that the particular refers to "plant" rather than the "software logic system". However, as the defendant acknowledged, the evidence, in this respect, was largely confined to the software logic system, specifically the application software in the PLC for the bin. This means that the question of proof of the charge in respect of this particular and any defence under s 28(a) of the Act are common with the earlier findings of the Court with respect to particular 6(a). In reality, the proof of the particular is to be determined by reference to that part of the plant which had a compromised software logic system rather than other safety related parts of the bin.
Whilst the defendant did develop submissions on this question they appear to merely repeat, albeit in a different context, the submissions which were made in relation to particular 6(a) of the s 8(2) charge. In any event, the prosecutor effectively repeated her submissions with respect to this charge.
In the result, I have determined for the reasons given with respect to particular 6(a) of the s 8(2) charge that the defendant is not guilty so far as concerns the allegations in particular 9 of the s 10(2) charge.
[105]
Particular 10 - Defendant should have ensured the PLC code was written and sensor arrangement operated so plant would not permit material to be dumped onto truck cabin - particularly taking into account trucks reversing
The terms of this particular were as follows:
The defendant should have ensured that the software logic code was written and the sensor cell arrangement operated in such a way that the plant would not operate so as to permit the Reject Bin to dump material onto the cabin of the truck as opposed into (sic) the tray or trailers of the truck. In particular the electronic system should have been designed and written to take account of the possibility that a driver of a truck would drive through the race and engage the third photoelectric light or sensor cell and then reverse under the Reject Bin chute so that the chute was positioned above the cabin of the truck, rather than over the tray or a trailer of the truck.
The prosecutor relied, in respect of this particular, on its submissions at [53]-[55] of the prosecutor's principal submission. Those paragraphs relate to submissions made with respect to particulars 3(a) and 6 of the s 8(2) charge, which the prosecutor described as the "unsafe system of work" charge. Particular reference is made to submissions concerning particular 6(b), 6(c) and 6(d). Plainly the substance of the charge bares a close resemblance to the substance of particular 6(c) of the s 8(2) charge. I agree with the defendant that no special significance should be attached to the addition in particular 10 of the words "and the sensor cell arrangement". The bulk of the prosecutor's submissions were that, putting aside the PE Cell 2 theory, the charges were predicated upon the fact that a risk existed on 18 February 2009 because of the way the PLC application software was coded.
Having regard to the approach of the parties to this particular, I consider that the conclusions that should be reached are the same as those which have been reached by the Court with respect to particulars 6, namely, 6(b), 6(c) and 6(d) of the s 8(2) charge. For the reasons there given, the defendant is not guilty of the charge so far as it concerns particular 10 of the s 10(2) charge.
[106]
Particular 11 - Defendant should have installed hard-wired switch or pull chain which could only be used by driver if truck cabin was clear of the chute so that reject could not be unloaded onto cabin
The terms of this particular were as follows:
The defendant should have installed a simple mechanical safety system such as a hard wired switch or pull chain, which could only be used by the driver if the truck was in the correct position under the chute and if the cabin was clear of the chute of the Reject Bin, so that the material in the hopper could not be unloaded onto the cabin.
The prosecutor submitted that particular 11 of the s 10(2) charge was in substance the same as particular 8 of the s 8(2) charge.
Nonetheless, I consider that there are material differences as described in the defendant's principal submissions below:
1161. Particular 11 is different from particular 8 in the s 8(2) charge. The material differences are:
(a) in this instance the omission alleged extends not only to the absence of a hard-wired switch but also to the absence from the plant of a pull chain to be operated by the driver;
(b) particular 8 in the s 8(2) charge pleaded that the hard-wired switch would be an:
additional and independent safety (measure) preventing the Reject Bin being opened if the truck cabin was beneath it" (emphasis added),
whereas particular 11 of the s 10(2) charge makes no such distinction;
(c) because particular 8 in the s 8(2) charge had to be read in the context of particular 3(c), it was clear that, by "additional and independent", particular 8 meant "additional and independent of the reliance upon correct positioning of the trucks in accordance with the sensor cells".
1162. Those second and third differences mean that, in particular 11, it is not clear:
(a) whether the nominated hard-wired switch or pull chain would:
(i) operate in substitution for the electronic system for detecting the position of trucks, or
(ii) operate in addition to the electronic system for detecting the position of trucks, with the final input into the PLC being operation of a hard-wired switch or pull chain, or
(b) that the plant would be operated without any PLC controlling its gate operations at all, the bin gates being opened by the hard-wired switch or pull chain.
1163. The Prosecutor's use in pleading particular 11 of the expression "a simple mechanical safety system" to describe a system operated by a hard-wired switch or pull chain located past the bin chute suggests she does not mean option (a)(ii) above. An electronic system is not a simple mechanical system.
In my view, there is no evidence proving beyond reasonable doubt that s 10(2) imposed a duty to install a hardwired switch or pull chain located beyond the bin chute. There is no evidence that a hardwired switch or pull chain located beyond the bin chute would have eliminated or minimised the risk to which Mr Oldknow was exposed on 18 February 2009. The prosecutor has failed to prove that the particularised omission caused a detriment to safety.
Additionally, I consider that for the reasons given in relation to particular 8 of the s 8(2) charge the prosecutor has failed to make out this particular of the charge.
If called upon to consider the defence I would conclude that the defendant has established a statutory defence with respect to particular 11 of the s 10 charge. That conclusion is primarily derived from the evidence which demonstrated:
1. The introduction of pull chains was not a safe system of work due to the variety of trucks and trailers which needed to be positioned within the race to align themselves with the drops into the trailer. The greater the number of pull chains or hardwired switches to achieve this outcome, the greater the potential for error. In other words, I consider the pull chains were unsafe.
2. As for a hardwired switch comprising a part of a pendant, a driver would need to reach out of the cabin for the pull chain. If the truck was not close enough he would potentially open the door and lean out of the truck, risking falling or injuring himself or potentially being struck by falling material.
The defendant is not guilty so far as particular 11 of the s 10 charge is concerned.
[107]
Particular 12 - Defendant should have ensured PLC code written and sensors arranged to take account of fact that trucks had changed from trucks with FOPS to trucks without FOPS and that, if trucks not fopped and bin dumped material when truck cabin below chute, driver could be killed
The terms of this particular were as follows:
The defendant should have ensured that the software logic code was written and the sensor cell arrangement operated to take account of the fact that the trucks being used by the drivers had changed from trucks with overhead FOPS protection to trucks with no overhead FOPS protection and that in that case a situation where the chute dumped material when the truck cabin was beneath the chute would have the potential to be fatal for the driver.
At the outset of the defendant's principal submissions an analysis of particular 12 is conducted in some detail. In reply, the prosecutor criticised this approach as being "a dissection of the wording of this particular the sole purpose of which appears to be to distort its plain meaning by focusing on a narrow concept of the word 'used by driver'". The prosecutor submitted that a fair and sensible reading of the particular is that it is predicated upon the fact that the PLC code was originally written with semi-tipper trucks in mind; such trucks having FOPS. It was also submitted that, as earlier discussed in this judgment, the alteration to the PLC code to allow for truck and dogs was concerned with difficulties posed by the different geometry of trucks and dogs. Ultimately, it was submitted that the very fact that the code was amended to accommodate truck and dogs was evidence of the fact that there was a change in the type of truck used.
I accept the defendant's submission.
Particular 12 is not a reproduction of the allegation in particular 9 of the s 8(2) charge that the defendant had a duty to ensure that the trucks which used Bin 802 had FOPS installed. The operative part of particular 12 is, in fact, similar to the substance of the allegations in:
1. the first sentence of particular 10 of this charge, and
2. particular 6(c) of the s 8(2) charge.
The difference is that particular 12 of this charge depends for its force upon the accuracy of two asserted facts.
Taken as a whole, however, particular 12 is an allegation that the defendant should have ensured that:
1. the software logic code was written, and
2. the sensor cell arrangement operated
to take account of two asserted facts.
The second part of particular 12 comprises two factual assertions:
1. the fact that the trucks being used by the drivers had changed from trucks with overhead FOPS protection to trucks with no overhead FOPS protection; and
2. in that case a situation where the chute dumped material when the truck cabin was beneath the chute would have the potential to be fatal for the driver.
The other part of particular 12 is the allegation that s 10(2) imposed a duty: "to ensure the software logic code was written and the sensor cell arrangement operated to take account of" the two asserted facts.
It follows that the alleged duty depends, therefore, on the accuracy of the two asserted facts.
Putting aside the question of causation, what the prosecutor was, therefore, required to prove with respect to this particular was:
1. The particular is of a failure, by an act or omission, to take or implement a specified measure and the taking or implementing of that measure would have ensured Mr OIdknow's safety on 18 February 2009 in the sense that the measure eliminated or minimised the risk;
2. The existence of the asserted facts (where the alleged duty to take or implement a measure depends on the prior existence of facts, the prosecutor assumes the burden of proving the same).
In my view, the reference to "drivers" in particular 12 is a reference to the drivers alleged to have been at risk on the date of the offence.
Particular 3 provides that Mr Oldknow and his fellow nominated drivers were engaged in "the work of driving trucks under Reject Bin 802 to receive into the trucks and their trailers approximately 30 tonnes of material…". In the immediately preceding paragraph the prosecutor adopts a shorthand which is obviously referrable to particular 3. Reference is made to "the trucks and their trailers" and at the close of particulars "the truck drivers". In the description of "plant" in particular 5 that expression is further shortened to "the drivers". Particular 6 refers to the risk. The particular is opened by the words "Mr Oldknow and his fellow drivers". The description of the failures of the defendant which then immediately follows in paragraph 7 reverts to the words "the drivers" in particular 7(a). Allowing for the need for some grammatical differences, that approach is continued consistently to particular 12. It follows, therefore, that the use of the words "the drivers" is a reference to the drivers referred to in particular 3 and that approach is entirely consistent with the reading of any instrument by reading it as a whole.
On that basis alone the particular must fail because the evidence in the proceedings is clear, namely, that the trucks used by the driver never changed from being trucks with FOPS to being trucks without FOPS. As the defendant put it "at all times the trucks driven by the drivers were trucks which did not have FOPS".
There is a further consideration, irrespective of who drove the trucks. As earlier found, notwithstanding clarification during commissioning that the bin would be operated by "normal road trucks" rather than mine trucks, on 4 July 2007 a mine truck was used during the commissioning process. It is also likely that by 4 July 2007 the PLC for the bin had been coded for use by mine trucks and that the code was changed on that date to accommodate a different geometry of a mine truck. It was earlier noted that Mr Barnes thought that in all likelihood the vehicle referred to as "alternative vehicle" in the notation he made about the code being altered on 4 July 2007 was a mine truck.
The prosecutor submitted that the evidence indicates that those who were retained to write the code believed the trucks to be used were mine trucks with built in FOPS protection, whereas the trucks that were actually used were road registered trucks without FOPS fitted. It was added that mine trucks were safer than road trucks.
There was no evidence that those who were retained to write the code, namely, Mr Ambrose, held a belief of the kind contended for by the prosecutor. Nor, as earlier discussed in this judgment, was there evidence to support the submission that the mine trucks were safer. If the lip of the tipper bin of a mine truck was a FOPS, as earlier discussed, it may be presumed it was built to the standard for a FOPS which the evidence disclosed would have been inadequate to protect the occupant of a cabin from the impact of a drop of 10 tonnes of reject. Ultimately there is no evidence that the flaw in the software logic system was due to a belief on the part of Demat, Primatec or Mr Ambrose that the trucks to be used had built in FOPS protection.
Some other submissions were made by the prosecutor in relation to particular 12. These should be seen in the context of the oral submissions made by senior counsel for the prosecutor which describe the role of the allegation as no more than a "make weight" in relation to earlier pleadings relating to ensuring that the software logic code and sensor cell arrangements operated safely.
A submission was made by the prosecutor that the absence of FOPS should have focused attention on the need for protective measures to be taken to ensure that if the truck cabin was under the chute that the reject bin would not operate having regard to the closeness of the cabin to the bin. As I have found, the defendant believed, on reasonable grounds, that protective measures were in place but I have also rejected the prosecutor's particulars as to the use of a pendant or hard wired switch or an extra pair of sensors and the re-writing of the software code (although particular 12 does not specify the measure either of the use of a pendant or the installation of extra sensors).
The defendant is not guilty of the s 10(2) charge so far as particularised in particular 12. The prosecutor has failed to prove beyond reasonable doubt that the measure particularised would have minimised the risk to safety to Mr Oldknow on 18 February 2009 (or the other particularised drivers, if applicable).
[108]
CONCLUSIONS
I have reached the following conclusions in the matters before the Court:
1. The prosecutor has failed to prove the defendant committed the charged contravention of s 8(2) of the Act with respect to particulars 6, 7, 8, 9 (as to the second particularised measure that the defendant should have insisted on different trucks that had adequate overhead fall protection) and 10 (noting that failures are particularised which correspond to each such particular) in proceeding 2016/00019632.
2. The defendant has proved that it was not reasonably practicable for it to have complied with s 8(2) in the respects particularised in particulars 9 (with respect to the first particularised measure) and 11 (noting that failures were particularised corresponding to each such particular) in proceeding 2016/00019632.
3. The prosecutor has failed to prove that the defendant committed the contravention of s 10(2) of the Act in the respects particularised in proceeding 2016/00019616.
The defendant is not guilty of the charges brought under ss 8(2) and 10(2) of the Act. The charges are dismissed.
[109]
Amendments
06 March 2018 - Typographical, formatting and grammatical errors corrected.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 06 March 2018
Parties
Applicant/Plaintiff:
Nash
Respondent/Defendant:
Resource Pacific Pty Ltd
Legislation Cited (17)
Clean Waters Regulations 1972(NSW)
Coal Mine Health and Safety Act 2002(NSW)
Coal Mine Health and Safety Regulation 2006(NSW)
(UK) Coal Mines Regulation Act 1982(NSW)
Environmental Offences and Penalties Act 1989(NSW)
Work Act 1974(Vic)
(UK) Mining Act 1992(NSW)
Mining Act 2002(NSW)
Occupational Health and Safety Act 2000(NSW)
Occupational Health and Safety Regulation 2001(NSW)
08
Austin Rover Ltd v Inspector of Factories [1990] 1 AC 619
Baiada Poultry Pty Ltd v R (2012) 246 CLR 92; [2012] HCA 14
Buchanans Foundry Ltd v Department of Labour [1996] 3 NZLR 112
Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
Burns v The Queen (2012) 246 CLR 334; [2012] HCA 35
Chevalley and Another v Industrial Court New South Wales and Others (2011) 82 NSWLR 634; [2011] NSWCA 357
Chevalley v Morrison [2012] HCATrans 31
Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249
Coca Cola Amatil (NSW) Pty Ltd v Pareezer & Ors [2006] NSWCA 45
Dinko Tuna Farmers Pty Ltd v Markos (2007) 98 SASR 96; [2007] SAFC 166
Director of Public Prosecutions (Cth) v Poniatowska (2011) 244 CLR 408; [2011] HCA 43
Drake Personnel Limited trading as Drake Industrial v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 432
Edwards v National Coal Board [1949] 1 KB 704
Environmental Protection Authority v Alkem Drums Pty Limited (2000) 121 A Crim R 152; [2000] NSWCCA 416
Genner Constructions Pty Ltd v WorkCover Authority (NSW) (Inspector Guillarte) (2001) 110 IR 57; [2001] NSWIRComm 267
GPI (General) Pty Ltd v The Industrial Court (NSW) (2011) 207 IR 93; [2011] NSWCA 157
Hammersley Iron Pty Ltd v Robertson (unreported, WASC library No 980573, 2 October 1998)
Haynes v CID Manufacturing Pty Ltd (1994) 60 IR 149
Hunter Quarries Pty Ltd v Morrison; Badior v Morrison [2017] NSWCCA 326
Inspector Batty v Intercoast Refrigerated Transport Pty Ltd [2012] NSWIRComm 55
Inspector Batty v Intercoast Refrigerated Transport Pty Ltd [2012] NSWIRComm 55
Inspector Christensen v Abigroup Contractors Pty Limited and Anor (2013) 238 IR 360; [2013] NSWIRComm 111
John Holland Pty Limited v The Industrial Court of NSW (2010) 202 IR 82; [2010] NSWCA 338
Kennedy-Taylor (NSW) Pty Limited v WorkCover Authority of NSW (Inspector Charles) [2000] NSWIRComm 240
Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1
Kirwin v The Pilbara Infrastructure Pty Ltd [2012] WASC 99
Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117
Lucantonio v Kleinert [2009] NSWSC 929
Marshall v Gotham Co Ltd [1954] AC 360
McMartin v The Broken Hill Proprietary Company Ltd (1988) 100 IR 241
Morrison v Chevalley (2010) 198 IR 30; [2010] NSWIRComm 116
Morrison v Coal Operations Australia Ltd (2004) 137 IR 375; [2004] NSWIRComm 239
Morrison v Powercoal Pty Ltd (2004) 137 IR 253; [2004] NSWIRComm 297
Nash v Resource Pacific Pty Ltd (No 2) [2016] NSWIC 8
National Hire Pty Ltd v Howard (2003) 126 IR 240; [2003] NSWIRComm 144
Paric v John Holland (Construction) Pty Limited (1985) 59 ALJR 844; [1985] HCA 58
Plomp v The Queen (1963) 110 CLR 234
Ramsay v Watson (1961) 108 CLR 642
Ridge Consolidated Pty Ltd v WorkCover Authority (NSW) (2002) 115 IR 78; [2002] NSWIRComm 108
Rockdale Beef Pty Ltd v Industrial Court of NSW (2007) 165 IR 7; [2007] NSWCA 128
Shannon v Comalco Aluminium (1986) 19 IR 358
Shepherd v The Queen (1990) 170 CLR 573
Simpson Design Associates Pty Ltd v Industrial Court (NSW) (2011) 214 IR 373; [2011] NSWCA 316
Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304; [2001] HCA 6
Slogget v Adams (1953) 70 WN (NSW) 206
St Hilliers Contracting Pty Ltd v WorkCover Authority (NSW) (2007) 162 IR 241; [2007] NSWIRComm 39 State Rail Authority (NSW) v Dawson (1990) 37 IR 110
State Transit Authority (NSW) v Guillarte (2003) 123 IR 237; [2003] NSWIRComm 128
The Crown in the Right of the State of New South Wales (Department of Education and Training) v Maurice O'Sullivan (2005) 143 IR 57; [2005] NSWIRComm 198
The GEO Group Australia Pty Limited t/as Junee Correctional Centre v WorkCover Authority of New South Wales [2012] NSWCA 150
The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13
Thiess Pty Limited v Industrial Court of New South Wales (2010) 78 NSWLR 94; [2010] NSWCA 252
Thorneloe v Filipowski (2001) 52 NSWLR 60; [2001] NSWCCA 213
Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62
Wood v The Queen [2012] NSWCCA 21
Workcover Authority (Inspector Robins) v Ecolab Pty Limited (1999) 90 IR 413; [1999] NSWIRComm 300
WorkCover Authority (NSW) (Inspector Legge) v Coffey Engineering Pty Ltd (No 2) (2001) 110 IR 447; [2001] NSWIRComm 319
WorkCover Authority (NSW) (Inspector Mulder) v Arbor Products International (Aust) Pty Ltd (2001) 105 IR 81; [2001] NSWIRComm 50
WorkCover Authority (NSW) (Inspector Wolf) v Rockdale Beef Pty Ltd (2006) 155 IR 366; [2006] NSWIRComm 280
WorkCover Authority (NSW) v ATCO Controls Pty Ltd (1998) 82 IR 80
WorkCover Authority (NSW) v Kellogg (Aust) Pty Ltd (No 1) (1999) 101 IR 239; [1999] NSWIRComm 453
WorkCover Authority (NSW) v Police Service (NSW) (No 2) (2001) 104 IR 268; [2001] NSWIRComm 90
WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Ltd (2002) 123 IR 121; [2002] NSWIRComm 316
WorkCover Authority of NSW (Inspector Smith) v Dubavo Pty Limited (unreported, CT93/1247-1249, 24 July 1995)
WorkCover (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd (2001) 110 IR 182; [2001] NSWIRComm 278
Category: Principal judgment
Parties: Jennifer Ann Nash (Prosecutor)
Resource Pacific Pty Ltd (Defendant)
Representation: Counsel:
JV Agius SC with BL Clark and RJ Rankin (Prosecutor)
DA Buchanan SC with ML Shume (Defendant)