Orr v Hunter Quarries Pty Limited

The Relevant Law

1. The objects clause in s 3 of the WHS Act provides: "(1) The main object of this Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and work places by: (a) protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from specified types of substances or plant, and … (h) maintaining and strengthening the national harmonisation of laws relating to work health and safety and to facilitate a consistent national approach to work health and safety in this jurisdiction. (2) In furthering subsection 19(1)(a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work or from specified types of substances or plant as is reasonably practicable."
2. The offence is one of strict liability: s 12A of the WHS Act.
3. The content of the duty is set out in s 19 of the WHS Act which relevantly provides: "(1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of: (a) workers engaged, or caused to be engaged by the person, and (b) workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking. (2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking. (3) Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable: (a) the provision and maintenance of a work environment without risks to health and safety, and … (c) the provision and maintenance of safe systems of work, and (d) the safe use, handling, and storage of plant, structures and substances, and … (f) the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking, and (g) that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking."
4. The requirement to "ensure" means to guarantee or make certain: Carrington Slipways Pty Limited v Callaghan (1985) 11 IR 467 at 470.
5. The meaning of "worker" is dealt with by s 7(1) of the WHS Act which provides: "A person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work as: (a) an employee, or (b) a contractor or sub-contractor, or (c) an employee of a contractor or sub-contractor, or (d) ..."
6. A duty provided for by the WHS Act is not transferrable: s 14 of the WHS Act. Section 16 of the WHS Act provides that more than one person can have a duty, and says: "(1) More than one person can concurrently have the same duty. (2) Each duty holder must comply with that duty to the standard required by this Act even if another duty holder has the same duty. (3) If more than one person has a duty for the same matter, each person: (a) retains responsibility for the person's duty in relation to the matter, and (b) must discharge the person's duty to the extent to which the person has the capacity to influence and control the matter or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity."
7. Section 17 of the WHS Act deals with management of risks and provides: "A duty imposed on a person to ensure health and safety requires the person: (a) to eliminate risks to health and safety, so far as is reasonably practicable, and (b) if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable."
8. Safety cannot be ensured if a risk to the health and safety of a worker exists. The existence of the risk constitutes a breach of s 19 of the WHS Act. It is not necessary that there is an accident or that a person is injured: Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 at [13]. The relevant risk for the commission of the s 32 offence is the risk of death or serious injury.
9. The word "risk" is not defined in the WHS Act. Risk means the mere possibility of danger and not necessarily actual danger: R v Board of Trustees of the Science Museum [1993] 1 WLR 1171 and Thiess Pty Limited v Industrial Court of New South Wales [2010] NSWCA 252; (2010) 78 NSWLR 94 at [67].
10. An incident causing injury may be evidence of the presence of a risk and may be relevant in due course to sentencing as a measure of the severity of the harm suffered as a result of the risk. A distinction must be drawn between the specific risk that manifested in the incident and the general class of risk on which the analysis must focus. Paying too close attention to the specific risk resulting in an incident can lead to error: Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015.
11. The prosecution bears the onus of proving as an element of the offence that at the time of the offence it was reasonably practicable to ensure the health and safety of the persons alleged to be at risk. The risk should be identified with sufficient precision to determine if it was reasonably practicable to eliminate the risk, or if not, if it was reasonably practicable to minimise it. In this way the application of reasonable practicability may arise more than once.
12. "Reasonably practicable" is defined in s 18 of the WHS Act which provides: "In this Act, 'reasonably practicable', in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all the relevant matters including: (a) the likelihood of the risk concerned occurring, and (b) the degree of harm that might result from the risk, and (c) what the defendant knows or ought reasonably to know about; (i) the risk, and (ii) ways of eliminating or minimising the risk, and (d) the availability and suitability of ways to eliminate or minimise the risk, and (e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk."
13. The state of knowledge applied to the definition of reasonably practicable is objective. It is that possessed by persons generally who are engaged in the relevant field of activity and not the actual knowledge of a specific defendant in particular circumstances: Laing O'Rourke (BMC) Pty Ltd v Kinwin [2011] WASCA 117 at [33].
14. The reasonably practicable requirement applies to matters which are within the power of the defendant to control, supervise and manage: Slivak v Lurgi (Aust) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304 at [37] per Gleeson CJ, Gummow and Hayne JJ.
15. The s 19 duty requires knowledge of the risk emanating from the activities of the defendant: Slivak. Foreseeability of the risk to persons from the activity is an element of this question of knowledge. It would not generally be practicable to take measures to guard against a risk to safety that was not reasonably foreseeable: Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267 at [68]; (2001) 110 IR 57.
16. The statutory duty is not limited to simply preventing foreseeable risks of injury. The duty is to protect against all risks, if that is reasonably practicable. Reasonably practicable means something narrower than physically possible or feasible: Slivak at [53] per Gaudron J.
17. The words "reasonably practicable" indicate that the duty does not require a defendant to take every possible step that could be taken. The steps to be taken in performance of the duty are those that are reasonably practicable for the employer to achieve the provision of and maintenance of a safe working environment. Bare demonstration that a step might have had some effect on the safety of a working environment, does not without more demonstrate a breach of the duty: Baiada Poultry Pty Ltd v R [2012] HCA 14; (2012) 246 CLR 92 at [15] and [38] per French CJ, Gummow, Hayne and Crennan JJ.
18. A duty holder must have a proactive approach to safety issues. The question is not did the duty holder envisage a particular danger, but rather should it have: Workcover Authority of NSW (Inspector Glass) v Kellogg (Aust) [1999] NSWIRComm 453; (1999) 101 IR 239.
19. A duty holder must have a structured and systematic approach to risk management: WorkCover Authority of NSW (Inspector Egan) v Atco Controls Pty Limited [1998] NSWIRComm 200; (1998) 82 IR 80 at 85; Inspector Ching v Bros Bins Systems Pty Limited [2004] NSWIRComm 197 at [32].
20. A defendant must have regard not only for the ideal worker but for one who is careless, inattentive or inadvertent: Dunlop Rubber Australia Limited v Buckley [1952] HCA 72; (1952) 87 CLR 313 at 320 per Dixon CJ. If there is a foreseeable risk of injury arising from the employee's negligence in carrying out his or her duties then this is a factor which the employer must take into account: Smith v The Broken Hill Proprietary Company Ltd [1957] HCA 34; (1957) 97 CLR 337 at 343. It may not always be possible to foresee various acts of inadvertence by workers but defendants must conduct operations on the basis that such acts will occur and they must be guarded against to the fullest extent practicable.
21. The unforeseeable behaviour of a disobedient worker may well lead to the happening of an event that could not be reasonably foreseen and therefore it was not reasonably practical to guard against it: WorkCover Authority of NSW v Kirk Group Holdings Pty Limited [2004] NSWIRComm 207; (2004) 135 IR 166 at [129].
22. The prosecution must prove that the act or omission of the defendant was a significant or substantial cause of the worker being exposed to the risk of injury: Bulga Underground Operations v Nash [2016] NSWCCA 37 at [127]; (2016) 93 NSWLR 338.
23. The question is to be determined by the application of common sense to the facts, bearing in mind that the purpose of the inquiry is to attribute legal responsibility in a criminal matter: Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378.
24. Regard must be had to the scope and objects of the WHS Act: Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316 at [79]-[102]; (2011) 214 IR 373. The relevant question is not whether the particularised failures of the defendant were the cause of the death or injury, but rather whether there was a causal relationship between the act or omission and the risk to which a worker was exposed: Bulga Underground Operations at [130].
25. Section 275 of the WHS Act provides that an approved code of practice is admissible in proceedings for an offence against the WHS Act as evidence of whether a duty under the WHS Act has been complied with. The court may have regard to the code as evidence of what was known about a risk or the measures available to control a risk, and may rely on the code to determine what is reasonably practicable in the circumstances to which the code relates.
26. Part 13 of the WHS Act deals with legal proceedings. Division 4 deals with offences by bodies corporate. Section 244 provides: "Imputing Conduct to Bodies Corporate (1) For the purposes of this Act, any conduct engaged in on behalf of a body corporate by an employee, agent or officer of the body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, is conduct also engaged in by the body corporate."
27. Section 244(1) is a deeming provision that has the effect of facilitating proof of the responsibility of a corporation and it is designed to attribute conduct to the corporation for which it would not otherwise be responsible: Walplan Pty Ltd v Wallace (1985) 8 FCR 27 at 38; Houghton v Arms [2006] HCA 59; (2006) 225 CLR 553 at [37]-[38]. The words "engage in conduct" are defined to include an omission: s 4 of the WHS Act.

The Amended Summons

1. The particulars of the offence are set out in Annexure A to the Amended Summons as follows: "The particulars of the offence under section 32 for a breach of section 19(1) of the WHS Act are as follows: 1 At all material times the Defendant, being a corporation, was a person conducting a business or undertaking within the meaning of that term in the Work Health and Safety Act 2011 (NSW) (WHS Act). 2 At all material times the Defendant, as part of its business or undertaking: (a) was the nominated mine holder and mine operator under section 22 of the Mine Health and Safety Act 2004 (NSW) of the quarry known as the Karuah Quarry, Karuah (Quarry); (b) extracted andesite, a hard igneous rock, which was processed into blue metal rock in a range of aggregate sizes for road, building and landscaping projects from the Quarry; (c) engaged or caused to be engaged, or in carrying out work, influenced or directed, Ryan Anthony Messenger (Mr Messenger) as a Leading Hand at the Quarry; (d) owned, managed and/or controlled an item of mobile earth-moving plant, being a tracked hydraulic excavator known as a 'Caterpillar Model 345C Excavator' (Excavator); (e) used the Excavator to carry out work including digging, excavating, lifting, rock-breaking and moving earth and material (Work); and (f) carried out the Work in various areas of the Quarry, including in the quarry pit, on the quarry face and on benches, pads, roads and ramps (Work Areas). 3 At all material times the Quarry was a 'mining workplace', within the meaning of that term in the WHS Act. 4 On 9 September 2014, Mr Messenger was operating the Excavator at the Quarry. 5 At about 8.00am on 9 September 2014, Mr Messenger was operating the Excavator on a bench at the top of a high wall face on the North side of the Quarry. At this location there was a vertical drop from the top of the high wall face to the bench below of approximately 12 metres. 6 Mr Messenger was using the Excavator's bucket to pick up large rocks and drop them over the high wall face onto the bench below (Task). 7 While performing the Task, Mr Messenger had a large rock weighing approximately 2.92 tonnes in the Excavator's bucket. Mr Messenger swung the Excavator around, with the Excavator's boom almost fully extended, in order to drop the rock over the high wall face onto the bench below. While performing this manoeuvre the Excavator overturned onto its cabin and onto another large rock which penetrated the cabin, causing the cabin door and cabin structure to be crushed. 8 Mr Messenger was wearing his seatbelt at the time, with the cabin door closed. The large rock which penetrated the cabin caused fatal crush injuries to Mr Messenger. The Duty 9 The Defendant had a duty under section 19(1) of the WHS Act to ensure, so far as was reasonably practicable, the health and safety of Mr Messenger while he was using the Excavator to carry our Work in the Work Areas of the Quarry (Duty). The Risk 10 Mr Messenger was exposed to a risk of death or serious injury, including a crush injury, from the Excavator overturning while he was carrying out the Work in the Work Areas of the Quarry (Risk). Particulars of the acts or omissions in failing, so far as is reasonably practicable, to eliminate or otherwise minimise the Risk 11 The Defendant failed to ensure, so far as was reasonably practicable, the provision and maintenance of safe plant, and in particular, failed to ensure that the Excavator was fitted with an adequate operator protective structure such as a 'Roll-Over Protective Structure' (ROPS); and/or 12 The Defendant failed to ensure, so far as was reasonably practicable, that a safe system of work was provided for the operation of the Excavator. In particular, the Defendant failed to; (a) adequately risk assess the potential for the Excavator to overturn when carrying out Work in the Work Areas; and/or (b) develop, implement and enforce an adequate work procedure for operating the Excavator, which specified: (i) that prior to commencing work, an assessment be undertaken to identify any potential for the Excavator to overturn; and/or (ii) a requirement to undertake planning, selection of plant and sequencing of work to eliminate or minimise the risk of the Excavator overturning; and/or (iii) the measures that the operator was to adopt to eliminate or minimise the risk of the Excavator overturning; and/or (iv) that (A) if the Excavator was not fitted with an adequate operator protective structure, such as a ROPS; and (B) in circumstances where there was a potential for the Excavator to overturn; work should not be undertaken; and/or (c) provide adequate information, instruction and training to Excavator operators with respect to the matters set out in 12(b)(1) - (iv) above. 13 As a result of the Defendant's failure to comply with its Duty, Mr Messenger was placed at risk of death or serious injury. That risk was manifested by the fatal injuries sustained by Mr Messenger when the Excavator overturned at the Quarry on 9 September 2014."
2. Senior Counsel for the prosecutor characterised the particulars in par 11 of the Amended Summons as the "plant charge" and the particulars in par 12 as the "systems charge". Those expressions will be adopted as a convenient shorthand in this judgment.

Authority to Bring Proceedings

1. A certificate pursuant to s 233A of the WHS Act (PX 2, Tab 1) establishes that the prosecutor has authority to bring these proceedings.

Structure of the Defendant

1. The defendant was incorporated on 26 July 2000. An organisational chart of the defendant (PX 2, Tab 3) shows that the officer immediately responsible to the Board of Directors was Mr Alex Badior, who was the Quarry (Production) Manager. Two senior employees reported to Mr Badior. Mr Neil Canavan was the Operations Manager and Mr Brian Russell was the Quarry Supervisor.
2. The deceased Mr Messenger was a Leading Hand who reported to Mr Russell. Below Mr Messenger on the organisational chart were a number of Plant Operators, including Mr Danny Bridges, Mr Terry Black, Mr Tom Guy and Mr Paul Henderson, all of whom gave evidence.
3. Mr Duane Harrison was the Work Health and Safety and Human Resources Manager for the Hunter Group of Companies (Hunter Group). In the organisational structure he reported to Mr Badior. Mr Nav Pun was the Business Strategist for the Hunter Group, and he too reported to Mr Badior. Both gave evidence.
4. The defendant used a number of contractors on site. One of those was Premiair Drill & Blast (Premiair). Mr John Gillespie, a Driller employed by Premiair, was on site. He saw the excavator roll over from a distance. He gave evidence.

Mine Operator

1. The defendant was the nominated mine operator of the Karuah Quarry pursuant to s 22 of the Mine Health and Safety Act 2004 (NSW) (MHS Act).

Layout of the Quarry

1. The layout of the quarry is best understood by consideration of the aerial photograph tendered as PX 9. North is towards the top of the photograph and south is towards the bottom. On the western side of the quarry is the stockpile area and the crusher. To the south of that area, and below the photograph, is the entry to the quarry, the office and weighbridge. The quarry floor is in the centre of the photograph. To the east of the quarry floor are a number of benches marked with their relative levels. These benches have been formed where rock has been blasted and extracted. The drilling rig operated by Mr Gillespie is marked near the southeast corner of the quarry floor. The area where Mr Messenger was operating the excavator is towards the northern side of the quarry. The dark markings on the photograph are shadows, simply being an artefact of the time of day at which the aerial photograph was taken. Contour lines have been superimposed on the photograph. It can be seen that to the immediate south of the area where the excavator was working, the contour lines are close together, indicating a steep drop off. The surveyor engaged by the prosecutor has marked not only the contour lines but the position of the excavator after the accident.
2. To the north of the area of the accident is marked a "pad". On the day of the accident this area was a road. A level pad was only formed after the accident so that heavy cranes could position themselves safely above the excavator in order to lift it from its fallen position. To the west of the area where Mr Messenger was working is marked a trench. Evidence given by Mr Russell was to the effect that one of the duties allocated to Mr Messenger on the day was to take the excavator to the trench to perform work. Between the area marked as "pad" and the area marked as "trench", there appears a red triangle which is a surveyor's survey station. It was in this approximate area that Mr Russell had directed Mr Messenger to build a bund across the road.
3. The red dotted line marked as "track" was the access road leading from the south western part of the quarry up to the north and around to the area marked "pad".
4. A road down to the quarry floor can be seen to the west of the floor in the area where there are two survey stations marked by red triangles. This was the route taken by Mr Russell and Mr Messenger when they drove past the drill rig and up towards the northern end of the bench RL 78. That evidence will be discussed below.
5. Finally, the position of "Ryan Messenger's ute" is marked to the north of the "pad". Evidence, to be discussed below, indicates that Mr Messenger did not park the ute there before he took the excavator down onto the rocky slope. The ute was moved there later by other workers. That evidence shows that at the time the accident occurred, Mr Messenger's ute had been left down in the area of the trench.

Caterpillar 345C Excavator (CAT 345C)

1. Documents were tendered regarding the excavator which Mr Messenger was operating at the time of the accident. It was purchased by the defendant on 26 June 2008. It came with an Operation and Maintenance Manual (PX 2, Tab 14). Page 27 of that manual contained the following: "Be careful to avoid any ground condition which could cause the machine to tip. Tipping can occur when you work on hills, on banks, or on slopes. Tipping can also occur when you cross ditches, ridges, or other unexpected obstructions. When possible, operate the machine up slopes and down slopes. Avoid operating the machine across the slope. … Avoid changing the direction of travel on a slope. This could result in tipping or side slipping of the machine. Bring the load close to the machine before travelling any distances. Bring the load close to the machine before swinging the load."
2. The excavator was not supplied with a Roll-Over Protective Structure (ROPS) over and around the operator's cabin. On 22 January 2014 Mr Canavan conducted a Risk Assessment on the excavator. This document will be referred to in more detail below when dealing with the evidence of Mr Canavan.
3. After the accident the excavator was delivered to O'Neils at Sandgate, pursuant to a notice under s 177 of the WHS Act. It was there photographed and examined. It was later returned to the defendant. The excavator was written off as a result of damage sustained in the accident. It was replaced by a Caterpillar 345D excavator, which was similar to the 345C, but which came with a ROPS already fitted.

ROPS

1. A ROPS is defined in cl 3.19 of ISO 12117-2 as a "system of mainly metallic structural members whose primary purpose is to provide a seated operator, held by a seat restraint system, with reasonable protection in the event of a machine overturning (roll-over)". This exact definition was used by the prosecutor's expert Dr Richardson, in his report dated 8 November 2018 (PX 57).
2. In layman's terms, a ROPS is a strong steel frame around the operator's cabin on an excavator. If the excavator rolls over, the ROPS is designed to prevent the cabin itself from being deformed and crushed.
3. Other terms of art were FOPS (Falling Object Protective Structure) and TOPS (Tip Over Protective Structure).

Standards and Other Safety Material

1. The prosecutor tendered the Guideline for Mobile and Transportable Equipment for Use in Mines MDG-15 (PX 2, Tab 33). Section 3.13 dealt with "Operator's Cabin And Protection". Clause 3.13.1.1 provided that a ROPS should be fitted to all earthmoving equipment in accordance with AS-2294. That Australian Standard will be dealt with in more detail below, but it did not apply to excavators. Clause 3.13.1.2 dealt with the types of vehicles to which a ROPS should be fitted. Excavators are not on the list.
2. Clause 3.13.1.1 contained the following: "All equipment not covered under the ROPS, FOPS and TOPS standards shall be subject to a risk assessment to determine if the requirements of ROPS, FOPS or TOPS needed to be adopted."
3. As noted above, a Risk Assessment was conducted by Mr Canavan on 22 January 2014.
4. The prosecutor tendered Australian Standard AS-2294 - 1997. Part 1 of the Standard (PX 2, Tab 36) dealt with "Earth-moving Machinery - Protective Structures". The scope of the Standard was expressed as follows: "This Standard specifies the requirements for roll-over protective structures and falling-object protective structures, additional to those given in AS 2294.2, AS 2294.3 and AS 2294.4. The Standard is intended to apply to operator controlled earth-moving machinery as given in AS 2294.2 and AS 2294.3 and where the design allows for a seated operator. While there are certain types of earth-moving machinery to which this Standard is not intended to apply, it may be used to provide guidance to the manufacturers of roll-over or falling-object protective structures should it be decided to fit such protection in a particular application. NOTE: Roll-over protective structures and falling-object protective structures are structures whose primary purpose is to reduce the possibility of an operator who is wearing a seat belt in accordance with AS 2664, ISO 6683 or SAE J386 from being crushed or otherwise injured should the machine roll over or be struck by a falling object."
5. Clause 3 of the Standard indicated that it was intended "for use by designers and manufacturers of roll-over and falling-object protective structures fitted to earth-moving machinery". Figures 1.1 to 1.11 inclusive contained pictorial representations of the kind of machinery to which the Standard applied. Excavators were not depicted in those figures.
6. Part 2 of AS 2294 - 1997 (PX 2, Tab 37) dealt with laboratory tests and performance requirements for ROPS. The technical requirements of such tests were the subject of expert evidence in the case, which will be summarised below.
7. The prosecutor also tendered International Standard ISO 12117-2 (the ISO Standard). This international standard did cover excavators. Part 1 dealt with laboratory tests and performance requirements for protective structures of excavators. Part 2 dealt with ROPS for excavators of over six tonnes. Figure 1 in the ISO Standard depicted a machine shaped similar to the excavator involved in the accident.
8. The prosecutor tendered a two-page document headed "WorkCover Obligations of plant operators" (PX 2, Tab 42). That document said that there were legal obligations for those who manage or operate powered mobile plant. Those obligations were to control risks associated with powered mobile plant "including risks from the plant overturning, falling objects, collisions and the like".
9. The prosecutor tendered a WorkCover Position Paper dated May 2003 entitled "Protective Structures for Earthmoving Equipment" (PX 2, Tab 44). This Position Paper gives a background to understanding an Exemption dealt with below. The Position Paper noted that among the types of earthmoving machinery excluded from provisions under the Occupational Health and Safety Regulation 2001 (NSW), which required the fitting of operator protective structures that conformed with AS 2294, were hydraulic excavators. Under the heading "Conditions", the Paper said: "The 'Exclusions' outlined above may be applied providing: (a) The risks of the earthmoving equipment overturning or objects falling on their operators have been assessed and other means are used to control them. The risk assessment should be in writing and the controls should form part of a documented safe work method statement. NOTE: The risk of a machine overturning increases as variables increase. These variables are both operational - amount of load, distribution of load, speed of machine, ground conditions (including obstructions), gradient, tyre pressures where relevant, steering angle, resistance of object (including overload) - and design, such as a machine's centre of gravity, the stiffness of its suspension and its track width. (b) … (c) … (d) Where a risk assessment indicates that it is necessary to fit the machines listed for exclusion with operator protective structures other than those within the scope of AS 4987 and AS 4988, the structure is designed by a suitably qualified engineer having regard to the performance requirements of the relevant part(s) of the Australian Standard AS 2294: 1997. Such a structure would not require deformation testing if the engineer is satisfied that calculations are sufficient to prove its performance."
10. The prosecutor also tendered certain industry publications. A European document from 2010 headed "Rollover protection excavator cabs become a reality" was tendered (PX 2, Tab 45). It said: "It's been a long time coming, but certified ROPS cabs on excavators are a reality following the recent release of a standard, ISO 12117-2: 2008, which sets out laboratory tests and performance requirements for protective structures on excavators weighing between 6 and 50 tonnes."
11. The article included a photo of a Caterpillar excavator entitled "CAT's new Rops compliant excavators can be identified by their all-cab".
12. The prosecutor tendered a Safety Bulletin dated 18 April 2011 from the Queensland Government (PX 2, Tab 46). This referred to the risk of excavators rolling over in mines and quarries and listed recent examples of excavator roll-overs. The document said that common factors contributing to the incidents were poorly constructed and narrow working pads, uncompacted ground, working too close to the edge of benches or ramps, and not applying basic risk management principles, particularly hazard identification. The bulletin made six recommendations to reduce the risk of roll-overs. All of those were administrative controls, rather than engineering controls.
13. The prosecutor tendered a NSW Government Safety Bulletin dated 12 January 2015, entitled "Roll-over Incidents involving load shifting plant" (PX 2, Tab 48). This bulletin drew attention to a number of roll-over incidents in recent years and made seven recommendations to assist in compliance with legislation. They were: "1. Identify all work activities on the mine site where load shifting plant is, or is likely to be used. 2. Where load shifting plant is, or is likely to be used, for each activity determine if there is a potential risk of the plant rolling over or objects falling on the operator. 3. Where there is an identified risk of load shifting plant rolling over (or objects falling on the operator), risk control measures must be implemented to manage those risks in accordance with 'hierarchy of risk control', see clause 36. 4. So far as is reasonably practicable, in managing the risks (as identified in 3 above), provide, maintain and use operator protective structures on load shifting plant. 5. Provide for adequate training, supervision and task observation of site practices. 6. Consult with workers (in accordance with Section 47 of the WHS Act) in carrying out the recommendations. 7. Use a change management process to document all identified changes in the mine safety management plan and communicate those changes to all employees."

Work Health and Safety Regulation

1. Chapter 3 of the Work Health and Safety Regulation 2011 (NSW) (the Regulation) deals with general risk and workplace management. Part 3.1 deals with managing risks to health and safety. The Part applies to a person conducting a business or undertaking who has a duty under the Regulation to manage risks to health and safety - cl 32. A duty holder, in managing risks to health and safety, must identify reasonably foreseeable hazards that could give rise to risks to health and safety - cl 34. A duty holder, in managing risks to health and safety, must eliminate risks to health and safety so far as is reasonably practicable, and if it is not reasonably practicable to eliminate risks to health and safety, minimise those risks so far as is reasonably practicable - cl 35.
2. Clause 36 sets out the hierarchy of control measures, referred to in the Safety Bulletin summarised above. Clause 36 applied to the excavator. "36 Hierarchy of control measures (1) This clause applies if it is not reasonably practicable for a duty holder to eliminate risks to health and safety. (2) A duty holder, in minimising risks to health and safety, must implement risk control measures in accordance with this clause. (3) The duty holder must minimise risks, so far as is reasonably practicable, by doing 1 or more of the following: (a) substituting (wholly or partly) the hazard giving rise to the risk with something that gives rise to a lesser risk, (b) isolating the hazard from any person exposed to it, (c) implementing engineering controls. (4) If a risk then remains, the duty holder must minimise the remaining risk, so far as is reasonably practicable, by implementing administrative controls. (5) If a risk then remains, the duty holder must minimise the remaining risk, so far as is reasonably practicable, by ensuring the provision and use of suitable personal protective equipment. Note. A combination of the controls set out in this clause may be used to minimise risks, so far as is reasonably practicable, if a single control is not sufficient for the purpose."
3. Clause 37 required a duty holder to maintain control measures and cl 38 required a duty holder to review control measures.
4. Clause 217 of the Regulation provided that the person with management or control of earthmoving machinery at a workplace has to ensure that the machinery was not used unless it was securely fitted with a protective structure, which was defined to mean "a structure designed to protect the operator from injury if the machine rolls over…".
5. However, at the time of the accident, cl 217 did not apply to the excavator because an Exemption existed. The prosecutor tendered the NSW Government Gazette 51/2012 dated 21 December 2012 which contained the Exemption (PX 2, Tab 43). The Exemption was expressed as follows: "Work Health and Safety Regulation 2011 Exemption (No. 13/12) 1. Name of Exemption This Exemption is the Work Health and Safety Regulation 2011, Exemption No. 13/12. 2. Commencement This Exemption commences on the date of gazettal in the NSW Government Gazette and has effect until 31 December 2014. 3. Exemption This Exemption is made by the WorkCover Authority of New South Wales on its own initiative. It applies to persons with the management or control of earthmoving machinery at a workplace. Those persons are exempt from the requirements of Clause 217 of the Regulation, subject to the condition in the Schedule to this Exemption. 4. Definitions For the purposes of this Exemption: Earthmoving machinery has the meaning provided in Clause 5 of the Regulation, Regulation means the Work Health and Safety Regulation 2011, __________ SCHEDULE This Exemption is subject to the following condition: (a) nothing in this Exemption affects any other applicable requirements imposed by law in relation to the matters relating to this Exemption, including the other operator protection Clauses 214 and 215 of the Regulation."
6. Thus at the date of the accident, cl 217 did not apply to the excavator, although cll 214 and 215 did.
7. Clause 214 of the Regulation, which applied to earthmoving machinery, and which was not affected by the Exemption, provided that: "The person with management or control of powered mobile plant at a workplace must in accordance with Part 3.1, manage risks to health and safety associated with the following: (a) the plant overturning …"
8. Part 3.1 has been summarised above, and includes in cl 36, the hierarchy of risk controls.

The Defendant's Key Employees

1. The defendant set out the duties and responsibilities of Mr Badior, Mr Canavan, Mr Russell and Mr Messenger in a written response to a notice under s 155 of the WHS Act (PX 2, Tab 55).
2. Mr Badior, the Quarry (Production) Manager, was responsible for the operational activities of the defendant and had statutory duties as Production Manager. He had to monitor and implement safety compliance.
3. Mr Canavan, the Operations Manager, was responsible for safely leading the production team, including attending toolbox talks and completing daily drive-around assessments of day-to-day tasks. He responded to identified hazards on site and implemented practical control measures.
4. Mr Russell, the Quarry Supervisor, was required to operate and maintain all items of equipment in the quarry in a safe and efficient manner, supervise employees in their daily tasks, assist management and plant maintenance scheduling, and attend toolbox talks and safety meetings.
5. Mr Messenger, as Leading Hand, was required to operate and maintain all items of equipment in the quarry in a safe and efficient manner, supervise employees in their daily tasks, assist management and plant maintenance scheduling, and attend toolbox talks and safety meetings.

Training of Mr Messenger

1. The employees of the defendant were generally trained and assessed by external trainers. Such training included the trainer making observations of the employee's operation of equipment, as well as requiring the employee to answer test questions concerning safe operation. Mr Messenger was trained in relation to the operation of the excavator in 2012 and obtained appropriate certification. There was follow-up training. In 2014, one of the questions he correctly answered in an Assessment Record (PX 3, Tab 74) was: "What is the danger of slewing the load when the turntable is not level? A. The machine could overturn as its centre of gravity could move towards the fall-line."
2. Mr Messenger demonstrated to the assessor his competence in walking the excavator onto a bench, loading a dump truck and tidying the work area. A Knowledge Assessment (PX 3, Tab 76) recorded Mr Messenger providing the following correct answers: "5. What do you do to prepare your work area? Look for dangers, including overhead power, cliff faces, damp trenches. … 27. What action do you take if you come across a work area hazard? Stop work, report hazard. … 32. What is the danger of slewing with a load when the turntable is not level? Could turn over the machine. … 36. What are the major hazards and emergency situations that can occur during operations? Overhead services, underground services, cliff faces, machine fire. … 39. How do you increase the reach of the machine without compromising safety? Cut a bench or build a pad to suit. … 43. When working in soft and uneven ground conditions, what precautions must be taken? Make sure ground is stable and operate at a safe distance. 44. When travelling up or down a steep slope, what is the preferred direction of travel? Straight up or straight down. 45. When travelling with a loaded bucket, how high off the ground should you have the bucket? As low to the ground as possible. … 47. How do you avoid the hazards associated with walking the shovel/digger? Crowd bucket in, pull dipper arm down close to the ground."
3. Mr Messenger passed a Practical Skills Assessment on 30 April 2014, conducted by Mr Lee (PX 3, Tab 77).
4. Mr Messenger was awarded a "Statement Of Attainment" for "Conduct civil construction excavator operations" (PX 3, Tab 78).
5. Documents were also tendered to show that Mr Messenger had been trained in the operation of a front-end loader, a rough terrain forklift, a slewing mobile crane, a haul truck, and a skid steer loader.
6. The prosecutor also tendered the training records of Mr Russell, Mr Guy, Mr Black, Mr Canavan, Mr Bridges and Mr Badior.

Mine Safety Management Plan

1. The prosecutor tendered the defendant's Mine Safety Management Plan (MSMP) dated 29 April 2013 (PX 3, Tab 126). Section 7 of the MSMP dealt with Risk Management. The MSMP set out requirements for hazard identification, Risk Assessment and risk review. At p 1478 of PX 3 the MSMP set out a matrix-style Risk Management Tool. This ranked the likelihood of the occurrence of an event against the consequence or impact of an event. The likelihood was ranked from "almost certain" to "rare" and the consequence was ranked from "catastrophic - death - huge financial loss" to "insignificant - no injury or illness - low financial loss". Numbers were then allocated in the matrix against the various combinations of likelihood and consequence. This resulted in a risk ranking for a particular event. That numerical ranking was: extreme: 5; significant: 3-4; medium: 2; low: 1. A further table set out the action or responsibility appropriate to each risk ranking. The table was: Risk Ranking Action/Responsibility Extreme 5 Risk is unacceptable - Related work is to stop and full Risk Assessment or a detailed Safe Work Method Statement to be carried out. Senior member of staff to participate. Significant 3-4 Risk is undesirable. Risk Assessment and/or Safe Work Statement to be reviewed and/or supplemented by appropriate person. Actions to be documented. Medium 2 Risk is tolerable - Hazards to be controlled as a minimum and documented by employee. Low 1 Risk is acceptable - Normal safe behaviour and systems of work apply.

WHS System at the Quarry

1. The prosecutor tendered a large volume of material concerning the WHS system at the quarry (PX 4). Included in the material were hazard reports, Job Safety Analyses (JSAs), Safe Work Method Statements (SWMSs), Risk Assessments (RAs) and inductions.
2. Included in the Site Hazard/Risk Register dated 4 June 2014 (PX 4, Tab 134) was consideration of the risk of "Mobile plant equipment tipping, rolling or losing a load due to travelling across uneven, unstable or sloping surfaces". The risk rating was 5 being "Catastrophic - Possible". The risk controls were all administrative, including inspecting the stability of ground, consultation with the Quarry Supervisor and Operations Manager, external training, a suitable SWMS and ongoing task observation. The Register suggested that after such risk controls were implemented the risk ranking would be 2 being "Major - Rare".
3. While the prosecutor tendered a large number of SWMSs, evidence given by employees of the defendant (referred to below) suggests that many of those documents were drafts for review. The final version of any SWMS was required to be discussed with workers at the quarry and signed off by those people who had discussed a particular SWMS. Many of the documents tendered did not have signatures by employees, or were stamped "To Be Reviewed". For example, a SWMS for the use of the CAT 345C in preparing a road along the top of Bench 5 (PX 4, Tab 151) was signed only by Mr Russell and Mr Badior. A SWMS for the use of a Caterpillar D10 Dozer to form an access ramp down to Bench 2 (PX 4, Tab 152) was signed by Mr Russell and Mr Gould, but was stamped "To Be Reviewed".
4. There was no SWMS for the task being carried out by Mr Messenger at the time he had his accident. Nor was there a Risk Assessment for that task. The significance, if any, of the absence of such documents is dealt with below in relation to the issues of foreseeability and reasonable practicability.
5. A large volume of the material tendered in relation to the WHS system at the quarry was characterised by the prosecutor in the Tender Bundles as "General". Included in that material was an email dated 7 March 2014 from Mr Duane Harrison to Mr Badior, Mr Canavan and Mr Russell (PX 4, Tab 167). Mr Harrison drew the attention of those employees to a Safety Alert found on the Victorian Worksafe website. Mr Harrison asked for the recipients of the email to discuss and display the Safety Alert.
6. The Safety Alert, dated February 2014, was headed "Mobile plant overturns". It reported on an incident in Victoria where a fully loaded articulated dump truck overturned while travelling along a section of sealed road inside a mine. The Alert referred to 30 reported mobile plant overturn incidents in Victoria since January 2010. Three of those related to excavators, although there was no detail about those incidents. The Alert listed factors commonly involved in the overturning incidents, and these included unstable ground conditions and uneven ground.
7. The Alert listed recommended risk control measures. The first was ensuring appropriate safe systems of work are in place and that these are regularly monitored, reviewed, and if necessary, revised. Operators were asked to consider "the availability of the latest operator protective devices (such as reversing cameras etc)". The risk control measures included appropriate training, the adoption of rules and standards for safe on site road use, communication and ensuring that the surface of any offloading area is appropriate for the vehicle being used. It is to be noted that there is no mention of ROPS in the Safety Alert.
8. The WHS material also included many records of toolbox talks. The crucial toolbox talk was held on 9 September 2014, on the morning of the day of the accident (PX 4, Tab 177). The Quarry Supervisor was noted as Mr Russell, and Mr Messenger was noted as being present. He initialled the document to indicate his presence.
9. There was a "WHS Checklist", which had a list of topics to be discussed in the meeting. Where a topic was discussed, the box next to the topic was ticked. One of those was "No Go Areas - identified and discussed". There was no written detail as to where these areas, if any, were.
10. On the second page of the toolbox talk minutes there was an entry which Mr Russell said read as follows: "Take Ryan tour of quarry to look at bund wall".
11. This entry was initialled by Mr Russell.

Evidence of Workers at the Quarry

1. In assessing the evidence of the workers at the quarry on the day of the accident, I keep in mind the following: 1. All of the witnesses to the events at the quarry on the day of the accident, bar Mr Gillespie, worked for the defendant. 2. All of the defendant's employees who gave evidence, except for Mr Canavan who has since retired, still work for the defendant. 3. Some of the witnesses had not been conferenced by the lawyers for the prosecutor. 4. The cross-examination of those witnesses was in effect "friendly fire", in that there was no attack on the credibility of the defendant's employees - rather, they were cross-examined to elicit information favourable to the defence case.
2. Nevertheless I formed the impression that all of the witnesses were trying their best to tell the truth. I deal specifically with each witness below.

Evidence of Brian John Russell

1. Mr Russell commenced employment with the defendant in about 1990 or 1991 at the Karuah quarry. After 2013 he was the Quarry Supervisor. He reported directly to Mr Canavan, and also to Mr Badior. Mr Harrison provided work health and safety information to Mr Russell.
2. Mr Messenger as a Leading Hand directly reported to Mr Russell. The Plant Operators reported to Mr Messenger.
3. Mr Russell had himself operated excavators at the quarry, including the CAT 345C. He had been trained by external trainers in relation to the operation of excavators, loaders, dump trucks and water carts.
4. Mr Russell said that it was important to assess and prepare the ground upon which an excavator would work, so as to ensure that the excavator was stable and was working on flat ground. That was important to prevent rolling over or tipping over. Mr Russell was unable to say whether there was a written SWMS or a JSA in relation to the safe operation of excavators at the quarry. The regular operators of the CAT 345C were Mr Messenger, Mr Guy, Mr Bridges, and Mr Russell himself.
5. Mr Russell agreed that Mr Messenger, as a Leading Hand, made decisions and gave directions about the work that employees did at the quarry. Further, he had the ability to determine what tasks he himself would do. He could use his own initiative to do something that he thought needed doing.
6. Mr Russell was taken to a detailed SWMS regarding the use of an excavator to make a road. He was responsible for implementing that SWMS. He said that he told employees that a roll-over was possible on uneven ground, or on sloping ground. He agreed that one hazard of unstable ground was that an excavator could roll over. Another was that it could get bogged. Mr Russell agreed that a hazard involved in an excavator making a road was that it might fall off a bench or be involved in a roll-over.
7. Mr Russell was questioned in relation to the use of an excavator in loading a haul truck. He said that the excavator would make itself a pad so that it could operate on the level in loading a haul truck. Such pads were around a metre and a half to two and half metres high. The operator would build the pad, then build a ramp to drive up onto the pad. Loading of a haul truck would only occur when the excavator was level on top of the pad. There was no SWMS for the operation of excavators loading haul trucks as at the date of the accident. Rather, there were oral instructions.
8. Mr Russell was also questioned about the use of an excavator in pulling up a stockpile. Once again, he said that the operator would build a ramp and a pad and walk the excavator up on top of the flat stockpile, before any scooping or loading was done.
9. Mr Messenger was involved from time to time in using the excavator to break rocks at the quarry. There was no SWMS for this operation. Nor was there a SWMS in relation to using the excavator to do digging work.
10. Mr Russell was then asked about the use of the excavator to dig the trench at the northern end of the quarry. The purpose of the trench was to drain water out of the quarry. The trench had been dug for several months prior to the date of the accident on 9 September 2014. Mr Messenger was one of the workers who had operated the CAT 345C to excavate the trench. The area was blasted, and then the excavators pulled a pad out of the blast material and sat on the level pad to dig the trench out. The material dug out was loaded onto dump trucks. The excavator was working on a level surface during these activities. There was no JSA or SWMS in relation to the work done in excavating the trench.
11. The excavator was required to go from one level of the quarry to another by driving on haul roads. That involved driving the excavator on a sloping road. There was no SWMS at the quarry for the operation of the excavator in driving up haul roads.
12. Mr Russell himself had been operating the CAT 345C on Saturday, 6 September 2014. He was clearing the RL 78 bench, which was the bench immediately beneath the area where the excavator overturned on 9 September 2014. He described the operation as "cleaning up the bench RL 78". He was not cleaning the face of the highwall with the bucket of the excavator.
13. Mr Russell was asked whether there was any usual procedure for clearing an area above a bench before drilling was done. He said that there was not. He was asked whether there was any procedure to clear rocks to make sure there was nothing that could fall down during the drilling or blasting process and he said that there was not. Mr Russell did no work on the area above the RL 78 bench where he worked on Saturday, 6 September 2014.
14. Mr Russell was taken to photographs of the excavator lying on its side after the accident occurred. He described the area where the excavator had been operating as: "That's just an overburden area. It's a no go area."
15. Mr Russell could see no reason to clear any large rocks off the area of overburden if there was drilling to be later undertaken down on the RL 78 bench.
16. Mr Russell said that prior to 9 September 2014 he had never been given any documents or other information by the defendant in relation to the purpose of ROPS. He had never raised any concerns with management at the defendant about the need for ROPS on the CAT 345C. He was aware that other mobile plant at the quarry was fitted with ROPS, but it was equipment which came as standard with those machines.
17. Mr Russell was shown the Site Hazard/Risk Register referred to above. He said that he had seen such a document at the quarry. He said that the purpose of a JSA was to "look at the risk and analyse the risk and then to eliminate them". He said that there was no list of all of the JSAs in operation at the quarry. Mr Russell had no personal knowledge of AS-2294, or of cl 141 of the Occupational Health and Safety Regulation. Mr Russell was taken to several SWMSs and JSAs, and said in general terms that if an employee had been trained in that particular document they would have signed off on the document. If there were no signatures on the document then the document was most likely a draft.
18. Mr Russell was asked about the area where the excavator was operating when the accident occurred. He agreed that it could be described as a "weak area". He said that the road and the pad above the area was not a weak area. The area where the excavator had its accident was a weak area "because there was overburden and it would have been overburden with clay and decomposed rock there, and it was never ever worked to be compacted, or anything like that".
19. Mr Russell was asked about the use and construction of bunds or windrows in the quarry. He said that their height had to be three-quarters of the highest wheel height that would use the area. This meant in practical terms that the bund or windrow should be about four and a half feet high.
20. Mr Russell attended toolbox talks every day. It was part of his job to run the toolbox talks. Everyone there had an input on what they were talking about. There were no set topics for a day, it was just what people wanted to talk about. They generally started at 6.30am and ran for 10 or 15 minutes. Sometimes Mr Russell was given written documents by Mr Canavan or Mr Harrison to discuss with the workers who were present. Mr Russell was taken through a large number of records of toolbox talks which pre-dated the accident.
21. Mr Russell said that as the supervisor of Mr Messenger, he had the opportunity to observe him carrying out his work on a day to day basis. He regarded him as a good employee. He regarded him as an obedient employee who did what he was asked to do. He was taken through employee personal development records of Mr Messenger, which Mr Russell had filled out, as assessments of Mr Messenger's performance. Included in the assessments was Mr Russell stating that Mr Messenger listened to and followed directions. Further, he certified that Mr Messenger had demonstrated a commitment to health and safety. Mr Russell was then taken to the events of 9 September 2014.
22. Mr Russell said that on that morning at the toolbox talk he gave directions to the employees about the work they were supposed to do that day. His direction to Mr Messenger was: "He was to fuel up the machines that was required to be fuelled up, as he always did. And then he had to go and do some work in the - what is labelled on this thing here as the trench. …He was to go and work on the trench he had to walk up that - up to the pad and build a bund wall on top of the - on the old haul road on the pad."
23. Mr Russell did not tell Mr Messenger this during the toolbox talk, but did when the two of them were driving around in the ute. They left the workshop area in the ute and drove up through the stockpile area. They then drove down into the quarry. They went to the contractor's drill rig, stopped there and spoke to the Driller. He told them that he required fuel. Mr Russell told the Driller (Mr Gillespie) that Mr Messenger would be back to fuel him up after they finished their drive around. Mr Russell said he may have told Mr Gillespie that they were going to have a drive around to show Mr Messenger the job that Mr Russell had done on the Saturday.
24. Mr Russell said that they then drove to the far end of the RL 78 bench, where he had cleaned up on the previous Saturday. He did not think they got out of the ute. They then turned around and drove back out. Mr Russell said that Mr Messenger had been away on sick leave for a couple of days plus the weekend, so Mr Russell wanted to let him know what had been done over the weekend. He gave Mr Messenger no directions about any work to be done on that area, saying "there was no work in that area for him to do". He thought that they stopped for only about a minute or two at the northern end of the quarry. The conversation about the work done on the previous Saturday was held while the two men were sitting in the ute.
25. Mr Russell said that the ute then drove back along the RL 78 bench past the drill rig and came back out of the cut in the quarry to the stockpile area. They then turned right to go up the hill towards the back of the quarry, or the northern end. They went up the haul road and turned around to the right and came to an area called in the evidence "the pad". Mr Russell said that at the time it was not a pad, but that a pad was later constructed there after the accident, so that cranes could be set up to lift the excavator off the hillside. Mr Russell said: "We pulled up on the pad area and I told Ryan we needed to build a bund across the end of the pad and then we left there and went back to the workshop."
26. This was a direction given by Mr Russell to Mr Messenger to build a bund across the road where it ended near the trench. All of these movements were marked on maps and plans during the course of the evidence.
27. Mr Russell said that he had been directed to have a bund built at the end of the road by Mr Badior. There had been a bund there but it had collapsed. He directed Mr Messenger to use the excavator to build the bund. He could not say whether there was a JSA or a SWMS in relation to building the bund.
28. Mr Russell said that in the weeks prior to 9 September 2014 there had been a bit of rain. The two men then drove back to the workshop. Mr Russell went to the office to do some work and then went to the workshop area where the crushing plant was. There was no line of sight from there to the northern end of the quarry. He saw Mr Messenger drive off in the ute to fuel up the machinery. Mr Messenger had his own ute that he drove on the quarry site. The expectation of Mr Russell was that Mr Messenger would go and fuel up the drilling contractor and the other machines, then come down to the crushing plant and do some shovelling, then get the excavator and walk it up to the pad and make the bund. Then he was supposed to walk the excavator back to the trench and clean up in the trench.
29. Later in the morning Mr Russell received a radio message from Mr Black to say that there was an issue with the excavator. This would have been after 8.00am. Mr Russell left the crushing plant and went back to the workshop, took his ute and drove up to where the excavator was. Mr Black was on site. Mr Black told Mr Russell not to go down to Mr Messenger. Mr Russell did go down to the overturned excavator. He saw Mr Messenger crushed inside the cab. He then went back up to the pad area and made some phone calls.
30. Mr Russell said that the gradient of the slope where the excavator was operating was not outside the normal operating range of the CAT 345C. The rocks on the slope were of a size which the excavator could move around. He said that the excavator in normal operations could pick up rocks of that size, but that it would not drop them over the cliff. Normal operations would be to put the rocks on the back of a truck.
31. Mr Russell was asked to look at the written record of the toolbox talk that morning. He explained that his handwriting in relation to Mr Messenger read: "Take Ryan tour of quarry to look at bund wall."
32. Mr Russell was then cross-examined by Senior Counsel for the defendant. He agreed that the function of the toolbox talk was for anybody who was there to raise anything, so that any issue that was important to be known for that day was covered before everybody went out to work. He agreed that because Mr Messenger had been away for a few days he took Mr Messenger on a drive around the quarry to ensure that he understood what had been going on, because Mr Messenger was the next most senior person on the site after himself.
33. Mr Russell accepted the proposition that his task was to make sure that the quarry operated in a safe manner. In addition to toolbox talks there were safety meetings, which Mr Harrison attended from time to time. Mr Harrison would raise with him any problems concerning workplace health and safety at the quarry. It was also the practice of Mr Canavan to go around the quarry when it was operating and observe how people were operating the plant.
34. Mr Russell was taken to the record of the toolbox talk on 9 September 2014 and he identified Mr Messenger's signature underneath his name. Two pages which dealt with the topic of chain of responsibilities were signed by Mr Messenger on 9 September 2014.
35. Mr Russell was asked about blasting and shot firing. He said that there was a drop of about 10 metres from one bench to the next, and that the quarry always placed a bund along the side of a bench to stop people driving off the edge. A bund can be made out of overburden, small rock and waste. When there is drilling to be done, the bund is removed by pushing it over the edge of the bench onto the next bench below. When a shot is to be fired, the quarry is shut down entirely and everybody leaves. After the shot is fired, Mr Russell, Mr Badior and Mr Canavan (if they are present) go back into the quarry to look at the shot to see the quality of the rock obtained. They then make a decision as to what to do. An excavator then goes to the shot rock, builds a pad which is level, makes a ramp and walks up the ramp onto the pad, to load the shot rock onto the haul trucks. The bund in that area is replaced.
36. Bunds were put in place to ensure safety and to prevent people going over the edges of highwalls. The purpose of a bund or windrow is to identify the edge of the face and to stop people from driving over it. Bunds were also used to identify no-go zones. The rule in the quarry was that if an operator saw a bund they should not cross it. This was the reason why, on the day of the accident, Mr Messenger was directed to put a bund across the old haul road. That old road ran towards the trench which was being excavated and finished in a sheer drop. The road had been carved away because the trench was being built. In order to make the quarry safe, it was necessary to build a bund across the end of the road.
37. The benches themselves are horizontal and are made of rock so they do not get boggy. When an excavator is used to push over a bund, the excavator walks along the flat bench, and sits the length of the boom away from the edge. The bund is then pushed by the bucket over the edge. The boom on CAT 345C was about six metres long. This means that the body of the machine is six metres back from the edge of the highwall. When that work is done, there is an exclusion zone below the bench where the bund is being removed. Thus people know not to be in the area below the bench where the work is being done and the bund is being removed.
38. In cross-examination Mr Russell agreed that if there was a bund across a road the rule in the quarry was that you do not cross it. If there was a bund along the side of a road, you do not drive up onto or over it under any circumstances. He agreed that the "absolute rule" is "you don't cross a bund". The bund which Mr Russell directed Mr Messenger to construct was to be built across the old haul road to prevent anyone inadvertently driving up there and going over the edge into the trench which was being dug out.
39. In relation to the operation of heavy equipment at the quarry, Mr Russell said that operators always had to have a competency ticket for the machine they were to operate. They were trained in the quarry as to how the machine should be used.
40. Mr Russell said that the CAT 345C was a 45-tonne tracked excavator with a very wide track. It was lower to the ground than ordinary wheeled vehicles and significantly heavier. All those things combined to give it greater stability with a very low centre of gravity. It also had counterweights behind and around the engine.
41. Mr Russell said that the training on site in relation to the practices for operating machinery was not necessarily governed by a JSA, but that everybody had been trained that if the excavator was to get up onto a stockpile, it was necessary to build a ramp. He said that it was a practice and a rule of the quarry that an excavator was not to be used on a slope to do excavation work. It was not to be used on a slope to pick up rocks. It was not to be used on a slope to dig out overburden. He said that if that job was to be done, the operator would need to build a flat pad first and then do what is required to be done. He said that that was "the invariable rule that everybody knew applied".
42. When Mr Russell told Mr Messenger to build a bund across the end of the road, there was available material nearby which could have been used to build the bund. This was overburden being clay mixed with rock. It was not useable quarry rock. An operator would have walked the excavator down the road, swung around and grabbed the overburden on the side of the road and tipped it across the road to shape a bund. It would have taken an operator about two to three minutes to build a bund of four and half to five feet high. It was not a big job. The material did not need to be compacted, it could just be picked up and dropped in the shape of a bund.
43. Mr Russell was questioned about his description of Mr Messenger as someone who was very obedient as a worker and who usually did exactly what he was asked to do. He said that the job of building the bund, and the job of cleaning up material in the trench, could have been done with the excavator on a flat pad. The freedom given to a Leading Hand at the quarry did not extend to breaching the rules completely. Nor did that freedom extend to driving over a bund or operating in an area that was not flat.
44. Mr Russell said that having given Mr Messenger two particular jobs to do, he would have expected him to complete those two jobs before he did anything else.
45. Mr Russell said that there had never been a practice in the quarry of throwing rocks off a highwall. If rocks had to be removed from a bench, they would not be thrown off. They would be pushed to the edge of the bench and then pushed off. If there was a big rock, it would be picked up and put on a truck.
46. Mr Russell agreed that the area of the quarry where the excavator was operating was no longer in use. The extracted material in that area had been found to be unsaleable because it was not andesite, the rock which the quarry was designed to recover. That area of the quarry was therefore closed off and not used. For that purpose it was bunded off.
47. When the accident occurred, Mr Messenger's ute was down near the trench. Mr Russell arranged for another quarry worker to move it up to the area of the pad. Mr Guy did this.
48. Mr Russell agreed with the proposition that if Mr Messenger had found any reason to deviate from his two assigned tasks (the bund and the trench) then for safety reasons and so that everyone in the quarry knew what people were doing, it would have been necessary for Mr Messenger to contact Mr Russell as his supervisor. Mr Russell received no communication from Mr Messenger on the morning. There was available radio communication in quarry, which had been used in the past when Mr Messenger contacted Mr Russell to enquire about doing additional or different work.
49. Mr Russell was shown a photograph (PX 8, Tab 2) which depicted the area of the pad and looked down towards the overturned excavator. Mr Russell identified the material at the side of the road as a bund, which indicated that it was not to be crossed and that beyond the bund was a no-go zone. He said that it was between 18 months and two years since there had been any activity on that part of the quarry where the accident occurred. On the photograph he identified where the excavator had driven across the bund, flattening it in the process.
50. It was put to Mr Russell that when he met Mr Black at the pad area after the accident he said to him (speaking of the excavator and Mr Messenger): "What the fuck was he doing here? He wasn't supposed to be here."
51. Mr Russell agreed that he said that and that it was the case that Mr Messenger was not supposed to be in that area.

Evidence of Terry Ross Black

1. Mr Black had been employed by the defendant since 2003 as a Plant Operator. He usually operated a front-end loader. He had done a small amount of work on excavators, but had never operated the CAT 345C.
2. He recalled attending the toolbox talk on the morning on 9 September 2014. Mr Russell gave him a direction regarding the task he had to do that day, which was to clean the screens and put back some concrete blocks that he had moved the day before. He was then to tidy up the roads. This large job involved using the loader to clean up or fix the haul roads within the quarry. He recalled Mr Russell telling Mr Messenger that his job for the day was "to put a bund up the top of the northern end of the quarry".
3. Later in the morning while he was doing his work he had radio communication from the Driller Mr Gillespie. The Driller drew his attention to the excavator which had rolled over onto its side. He got into his vehicle and headed up towards the excavator, after calling Mr Russell to advise him to come to the site. When he got to the top he parked his loader and walked down the hill to where the excavator was.
4. Mr Black was shown photographs and identified the material at the edge of the roadway, where the excavator had driven over, as a bund. He said that the excavator "had obviously walked over it". He described the ground conditions in the area between the bund and the position of the excavator as "steep and rough" and as "soft in places".
5. After the event he used the loader to create a pad so that cranes could be positioned to retrieve the excavator.
6. Mr Black confirmed that there was a practice at the quarry that if he had been shown a safety document and been asked to read through it, he had to sign off to indicate that he had read and understood the document.
7. In cross-examination Mr Black said that he recalled the first words that Mr Russell said to him after he attended on the excavator. Mr Russell said: "What the fuck was he doing there? He wasn't fucking supposed to be there."
8. Mr Black identified the bund that the excavator had crossed to get to the rocky slope. To his understanding, a bund delineated a no-go zone. To his understanding, employees of the defendant were not permitted to disregard bunding, by driving over it. He understood that one of the "fundamental rules" in the quarry was that an excavator had to work on a flat surface to ensure that it was stable. He had seen excavators working in the quarry and had always seen them operating on a flat surface.

Evidence of Thomas Roy Guy

1. Mr Guy commenced work with the defendant in August 2012 and was a Plant Operator. He operated the CAT 345C and another excavator, the PC 600 Komatsu. He learnt to operate excavators at the quarry "on a log book" meaning he was learning under supervision. In June 2014 he received a verification of competency in relation to the operator of excavators. He had been trained by external trainers in relation to the operator of excavators. He reported to Mr Messenger, the Leading Hand. Mr Russell also supervised his work as an excavator operator.
2. Mr Guy attended the toolbox talk at about 6.30am on 9 September 2014. Mr Russell directed Mr Guy to do general cleanup work in the morning around the crushing plant and then to operate the Komatsu excavator loading dump trucks for the crushing plant. He did not recall Mr Russell giving Mr Messenger any instructions for his tasks on the day. Mr Guy then went to the crusher and started his cleaning up work.
3. After hearing radio communication, he went and saw the excavator which was overturned. He proceeded to the area where the accident had occurred. He went over to Mr Russell and Mr Black to offer any assistance he could. Mr Guy also indicated that there was a bund wall that the excavator tracks had obviously crossed.
4. Mr Guy said that he had been trained to load dump trucks by building a raised flat pad to work on when doing the loading. He said that when a shot was fired, he pulled up some rock to make a flat pad and a ramp to climb up onto the pad to load the dump truck for the crushing plant. He could not recall there being any document from the defendant that told him how to build the pad, but he said that it was part of his training by the external trainer. Mr Guy had seen Mr Messenger do that same work using the CAT 345C.
5. Mr Guy said that a bund wall would be in place when the CAT 345C was clearing a bench "so no-one can go over the edge of the bench, or to stop people from going where they shouldn't need to go".
6. Mr Guy had done the task of clearing overburden using an excavator, and he had seen Mr Messenger operate the CAT 345C to do the same task. The method of clearing overburden was to build a ramp, sit on the pad and load the overburden into a truck. The excavator was only operated on a flat level surface. He knew from his training and experience that he had to operate the excavator on level ground so as to prevent roll-over.
7. Mr Guy was asked what the hazards were which could lead to a roll-over. He nominated uneven ground, having a rock in the bucket with the boom extended fully, and driving over a bund wall "when you're not meant to be there".
8. In cross-examination Mr Guy was shown the photograph at PX 8, Tab 1. He said that it looked to him to be a photo which indicated that the excavator had "driven over a bund wall". He said that the bund wall in PX 8, Tab 1 and Tab 3, was "to prevent anyone going over the edge of that road that was originally going down the side there". He knew that it was a rule in the quarry not to cross bund walls. He knew that bund walls were there to stop people going into an unsafe area. He had been trained to operate an excavator only on a level surface. He said that Mr Messenger was "on that wrong side of the bund wall". He was not meant to be in that position because there was uneven ground, clay, big rocks and overburden.
9. Mr Guy said that the area was unsafe because: "It's the general practice in the quarry not to go over a bund wall and if the bund wall's there, it's there for a reason; obviously it's not safe."
10. Mr Guy acknowledged that in his interview with an inspector, he had repeatedly said that he could not explain why Mr Messenger was in that position. In cross-examination he said that this was because it was completely against the training he had been given about how to operate an excavator safely. He had been trained not to pick up a rock and drop it over a bench. If a rock had to be pushed past the edge of a bench, the excavator was kept back and the rock was pushed over with the bucket. He had been taught to drive the excavator up and down slopes at 90 degrees and with the bucket as close to the ground as possible.
11. Mr Guy said that if anyone was pushing rocks off a bench, the area beneath would be bunded off to make sure that people were not standing where rocks were being dropped. He said that the first thing he was ever told at the quarry was: "Don't go past the bund wall". He had never seen anyone drive over a bund wall at the quarry.

Evidence of Daniel Mark Bridges

1. Mr Bridges started work with the defendant in 2009 and was a Loader Operator. He loaded the road trucks with material and moved material from under the conveyors to the stockpiles. From time to time he did operate the CAT 345C. He reported to Mr Messenger, the Leading Hand. He also reported to the Quarry Supervisor Mr Russell.
2. Mr Bridges recalled attending the toolbox talk on 9 September 2014. The tasks for the day were allocated by Mr Russell. He could not recall what tasks Mr Russell gave him that day. He went to his loader and then commenced loading the road trucks that were waiting.
3. He became aware of the problem with the excavator from radio communication. He did not go to the scene that morning. In the afternoon he loaded a truck with rock to take up to the top of the quarry to make a pad for the crane.
4. Mr Bridges was taken through his training, and through the safety documentation relating to the operation of excavators in the quarry.
5. In cross-examination he said that he was always encouraged to report hazards to his supervisor or the Quarry Manager if he thought there was a problem. He was never told to just keep working if he spotted a hazard. The practice in the quarry, as he observed it, was to operate excavators on a flat pad. He knew that if the excavator was operated when it was not level, it could tip over. Mr Bridges had been taught that a bund was to stop a vehicle going over an edge or a machine going into an unsafe area. He knew that employees were not to drive over the top of a bund. He had never seen anyone drive over the top of a bund. If that happened, he would have expected to be disciplined for it, because it was unsafe.

Evidence of Paul Stewart Henderson

1. Mr Henderson started work with the defendant in 2010 as a Driver of road trucks. In 2014 he became a Plant Operator, mainly driving the water cart for dust suppression. He did some work driving a skid steer loader to clean up around the crushing plant. He had no qualifications on excavators.
2. Mr Henderson recalled the toolbox talk conducted by Mr Russell on 9 September 2014. He could not recall what directions Mr Russell gave him for his tasks for the day. He went off and did some cleaning up around the crushing plant with a shovel, and then drove the water cart for dust suppression along the haul roads.
3. When Mr Henderson was in the stock pile area, Mr Messenger called him on the UHF radio and asked if he could go into the stockpile area and hose out a clogged roller on one of the conveyors near the screens. He went to the job and met Mr Messenger at the stockpile area. He discussed the work required and started that work. Mr Messenger then left.
4. Later in the morning when he was filling up his water cart at the dam, he recalled hearing a radio communication and he went back to the workshop mustering area. He did not go to the site of the accident.
5. In cross-examination he said that a "bund prevents vehicles and people from entering no-go areas or dangerous areas". They are usually made out of earth or rock left over from the crushers.

Evidence of John Leonard Gillespie

1. Mr Gillespie was employed by Premiair Drill and Blast as a Blast Hole Driller. He had worked as a contractor at the defendant's quarry at Karuah for three days prior to 9 September 2014.
2. When he worked on Friday, 5 September 2014 he saw Mr Russell operating the CAT 345C clearing rocks on the RL 78 bench and flattening the area. When he worked on Monday, 8 September 2014 he saw the CAT 345C in a stationary position and not being operated.
3. Mr Gillespie arrived at the quarry at about 6.00am on 9 September 2014 to do his drilling work. He recalled Mr Russell arriving at the drill rig between 6.30am and 7.00am in his ute. He said that Mr Russell was alone. Mr Russell told him that Mr Messenger was going to bring fuel for the drill rig. At about 7.15am Mr Messenger arrived in his ute which had a fuel tank on the back. Mr Messenger fuelled up the drill rig for about 15 minutes. Mr Messenger then drove back out of the quarry. At about 7.45am Mr Russell and Mr Messenger arrived at the drill rig in a ute. They called Mr Gillespie on the radio and said that they were coming through "to show Ryan what he needed to be doing". They drove around the back of the drill rig.
4. Mr Gillespie said that he saw the ute drive north in the quarry and then stop about 250 metres away, at approximately the eastern end of the RL 78 bench. He saw Mr Russell and Mr Messenger get out of the ute. He saw them "sort of pointing up in the air". They were pointing towards the area above where they stopped. The area to which he thought they were pointing was the area where the excavator later rolled over. He thought that they were out of the car for about 10 minutes. The area to which Mr Gillespie thought the men were pointing was a wet, muddy and rocky area.
5. Mr Gillespie saw the two men return to the vehicle and then call back up on the radio to say they were going to drive past the drill rig again. Later Mr Gillespie saw the CAT 345C move from its stationary position at the bottom of the quarry, out of the quarry (along the road on the western side) until it went out of sight.
6. The next time Mr Gillespie saw the excavator was when it was up in the area towards which he thought the two men had been pointing. This was the rocky area above the RL 78 bench. He thought this was about an hour or an hour and a half after 7.00am. He had a clear view of the excavator, although it was about 250 metres away. He saw the excavator "clearing an area … cutting an area to get where he needed to go". He saw the bucket extended and moving things with a sweeping motion. He saw the excavator "picking rocks up and throwing them over the high wall". The excavator was operating at a 45 degree angle to the face.
7. Mr Gillespie had seen excavators working in quarries before, and he himself held an excavator ticket. He did not see the excavator operator cut a pad, rather he saw the excavator clearing an area to get through. The excavator was slewing to its right, picking up rocks and slewing back to the left and dropping the rocks over the edge of the highwall. The boom of the excavator was fully extended during this operation. The slewing motion was carried out with the boom at full extension. The bucket of the excavator ended up very close to the edge of the highwall during this operation. He saw the excavator pick up about half a dozen rocks and then he saw it "pick one up and slewed back across and very, very slowly rolled on its side". The boom was at full extension and very close to the edge.
8. Mr Gillespie called up the Loader Operator (Mr Black) on his radio to alert him to the accident. He got out of his drill rig and ran over to the loader. Mr Black then drove the loader to the accident site. Mr Gillespie went back to his drill rig. Later in the day Mr Gillespie spoke to Mr Russell, who told him that there would be no more drilling done that day. He then left the quarry. Later in the day he spoke to a police officer.
9. In cross-examination Mr Gillespie said that he had never been up to the area of the quarry where he saw the excavator working on the day of the accident. He was cross-examined about his brief police statement, and it was pointed out to him that he did not mention many things which he did say in his evidence-in-chief.
10. His attention was drawn to question and answer 37, in his statement made to an inspector, where he said: "The rest of the day, well, obviously, before I started drilling they come and fill me up. Spoke to Brian, I think it was Brian, sure it was Brian. He said he was taking Ryan, I'm assuming, across to show him what he was doing and then they were coming back out of my sight."
11. In cross-examination Mr Gillespie had his attention drawn to question and answer 138 from the interview with the inspector. He acknowledged that he had told the inspector that he had no idea whether the area where the excavator was working was soft or not. Again, he said that he had not been up to that area of the quarry and had not made his own observations of the area.

Findings of Fact - What happened on 9 September 2014

1. I found each of the witnesses whose evidence is summarised above to be credible witnesses. All did their best to say what had happened on the day. All of them were willing to indicate at various points in their evidence that there were things that they could not remember. All of them were careful in indicating which documents they could recall and which documents they could not recall. Where there were things they did not know, each of the witnesses indicated that they did not know something.
2. In spite of the factors which I have to take into account in assessing the credibility of the witnesses who were employees of the defendant, I find them all to be credible and I accept their evidence.
3. I find that Mr Gillespie was doing his best to give his evidence from memory. However, I do not place a lot of weight on the evidence he gave about the events of the day of the accident. Firstly, a lot of what he said in his oral evidence was not in his police statement given on the day of the accident. Secondly, some of the evidence given orally was at odds with the interview he had with the inspector within a relatively short time after the accident. Thirdly, it is difficult to place much weight on observations made from 250 metres away. Fourthly, Mr Gillespie had no particular reason to be carefully observing the behaviour of Mr Russell and Mr Messenger when they drove up to the northern end of the quarry in the ute.
4. Fifthly, and most importantly, Mr Gillespie could only indicate the general direction in which he believed the two men were looking and pointing. While that general direction was towards the area where the excavator later rolled over, it is to be noted that the area where the bund was to be built across the old haul road above the trench was also in that same general direction if the ute was parked down near the eastern end of the RL 78 bench. The purpose of the drive around was not only to show Mr Messenger what work had been done when he had been off work for a few days, but also, as recorded in the toolbox talk minutes, to inform him where the bund was to be built across the haul road. If the two men did get out of the ute, as Mr Gillespie said, or even if they simply sat in the ute as Mr Russell said, any looking and pointing towards the northwest could well have been Mr Russell pointing to the work he had done on the previous Saturday, or telling Mr Messenger where the bund was to be built across the haul road.
5. On the issue of whether Mr Russell and Mr Messenger got out of the ute, I cannot be satisfied that they did. Even if they did get out of the ute, I would not draw the inference from the evidence of Mr Gillespie that in looking and pointing towards the area above the RL 78 bench, there was any instruction given by Mr Russell to Mr Messenger to go and take the excavator to that unworked area to perform the work which eventually led to the overturn of the excavator. Even if the two men were out of the utility pointing towards that direction, that is consistent with Mr Russell giving an instruction to Mr Messenger to build a bund across the old haul road, above the no-go zone where the excavator ended up operating.
6. Where the prosecution case rests substantially on circumstantial evidence the Crown must exclude all reasonable hypotheses consistent with innocence: The Queen v Baden-Clay [2016] HCA 35 at [46], [50]; (2006) 258 CLR 308. For an inference to be reasonable it must rest upon something more than mere conjecture: Baden-Clay at [47]. It is not incumbent on the defence either to establish that some inference other than guilt should be drawn from the evidence or to prove particular facts tending to support such an inference: Baden-Clay at [62]. That proposition merely reflects the fundamental principle that the prosecution must prove the charge beyond reasonable doubt: Baden-Clay at [62].
7. One of the submissions made by the prosecutor (MFI 60, par 3.9), was that there is an inference available that Mr Messenger formed the view, by reason of what Mr Russell said to him, that he ought to clear rocks from the hilly area. If that inference were drawn, it would mean not only that Mr Messenger was performing authorised work in the quarry on the day of the accident, but that he had been directed to do so by his superior Mr Russell. I do not draw the inference sought by the prosecutor for the reasons set out above.
8. In the alternative the prosecutor submits that there was an inference available that Mr Messenger formed the view, from his own experience at the quarry, that he ought to clear rocks from the hilly area, even if he had not been specifically directed to do so. I also decline to draw that inference. I have accepted the evidence of Mr Russell that Mr Messenger was an obedient employee who did what he was told. I have also accepted the evidence of Mr Russell that no-one could do work in the quarry without being directed or authorised to do so. If Mr Messenger took it upon himself to do work in the area where the accident occurred, he should have communicated with Mr Russell to obtain permission to do that work, or at the very least, to inform Mr Russell that he was about to embark upon that work. I have accepted the evidence of Mr Russell that there was no such communication by Mr Messenger.
9. I have accepted the evidence of Mr Russell that the freedom given to a Leading Hand at the quarry did not extend to breaching the safety rules. Nor did that freedom extend to driving over a bund. Nor did it extend to operating an excavator in an area that was not flat.
10. The prosecutor submitted (MFI 60, par 10.52) that the actions of Mr Messenger on the day of the accident were similar to an exercise carried out on an earlier occasion by Mr Russell, when he operated the CAT 345C to remove large rocks from the top bench - Bench 5. I reject that submission. The evidence of Mr Canavan, who observed and planned that operation, is to be found at T 1344-1347. There was a SWMS prepared for that "one off operation". The excavator prepared a road and walked along it. It then knocked rocks down onto a road, from which they were carted away. There was no suggestion that the excavator operated otherwise than from a level and stable surface. It did not operate on or across a slope, nor did it swing the rocks around with the boom fully extended before dropping rocks onto the road. They were "pushed" down.
11. The prosecutor disputed in final submissions that the mound of dirt and rocks through which the excavator drove to get to the rocky slope was in fact a bund. The defendant submitted that this proposition had not been put to any witness (MFI 62, par 106). The prosecutor pointed out that the defendant's own evidence was that a bund should have a minimum height of about six feet, being three-quarters of a haul truck wheel. The prosecutor submitted (MFI 60, par 14.28) that the mound of rocks alongside the road, looking down towards the fallen excavator, was not six feet high. Submissions were made that various photographs demonstrated that the mound was not the standard height of a bund, being six feet. While caution has to be exercised in drawing conclusions from an examination of photographs, I do accept that submission by the prosecutor that this was not a bund. The dirt and rocks over which the excavator drove, and which were flattened by the path of the excavator, were not six feet in height.
12. However, every witness taken to those photographs described what they saw as a bund. Thus the employees of the defendant, who had been trained not to cross a bund, all said that they saw a bund in that area and that indicated to them that behind the bund was a no-go area. No witness said that the mound of rocks did not constitute a bund, as they understood it. For those reasons I find that the mound of rocks at the side of the pad area, through which the excavator tracked to get to the rocky slope, was, in practical terms, a bund which indicated to employees of the defendant that the rocky slope was a no-go area.
13. I make the following findings of fact: 1. At about 6.00am on 9 September 2014 there was a toolbox talk conducted by Mr Russell. 2. Mr Russell gave directions to the employees about the work they were supposed to do that day. 3. At the toolbox talk Mr Russell said to Mr Messenger that he was going to take him on a tour of the quarry to look at the bund wall. 4. This was said in front of the other workers, and was recorded in the Minutes. 5. After the toolbox talk Mr Russell and Mr Messenger went in Mr Russell's ute to drive around the quarry. 6. During the drive Mr Russell gave Mr Messenger other instructions about the work to be done that morning. 7. The two men first drove to the drill rig being operated by Mr Gillespie. 8. Mr Gillespie told them that he needed fuel and Mr Russell told Mr Gillespie that Mr Messenger would be back to fuel him up when they had finished their drive around. 9. Mr Russell and Mr Messenger then drove to the far end of the RL 78 bench, where Mr Russell had done his cleanup work on the previous Saturday. 10. Mr Russell showed Mr Messenger the work he had done on the RL 78 bench. 11. Mr Russell and Mr Messenger then drove back along the RL 78 bench past the drill rig and came back out of the quarry to the stockpile area. 12. They then turned right and drove up the hill towards the back of the quarry at the northern end. 13. The utility went up the haul road and turned to the right and came to an area called in evidence "the pad". 14. Mr Russell told Mr Messenger to build a bund across the end of the haul road. 15. The reason for this instruction was that the bund was required to stop people driving off the end of the haul road into the trench which was being excavated to the west of the haul road. 16. At some point on the drive around Mr Russell told Mr Messenger that after building the bund across the haul road, he was to take the excavator to the trench and do further digging work there. 17. The two men drove back to the workshop area and crushing plant. 18. Mr Russell saw Mr Messenger drive off in his ute to fuel up the machinery, including the drilling rig. 19. Later in the morning Mr Messenger was operating the excavator at 45 degrees across a slope which was unstable, rocky and boggy, slewing its fully extended boom with a bucket which contained a large rock, when the excavator rolled over onto its left side. 20. This area was not a bench. Benches are horizontal surfaces made of blasted andesite rock, with a highwall on one side and a vertical drop on the other. The area where Mr Messenger was operating the excavator was very different in nature. It was not an area of the quarry which was to be blasted or mined. 21. Mr Gillespie saw the excavator roll over from 250 metres away and contacted Mr Black on the radio. 22. When the excavator rolled over to its left, it fell onto the cabin side of the excavator resulting in fatal crush injuries to Mr Messenger. 23. A large rock penetrated the left-hand side of the cabin, contributing to the fatal crush injuries. 24. Mr Russell received a radio message from Mr Black and went to the top of the quarry. 25. Mr Black told Mr Russell not to go down to the excavator, which had rolled over onto its left-hand side. 26. Mr Russell did go down to the excavator. He found Mr Messenger crushed inside the cabin. 27. Mr Russell came back to the pad area and spoke to Mr Black saying words to the effect: "What the fuck was he doing there? He wasn't supposed to be there". 28. The area where the excavator had been operating and had rolled over was a "no go" zone. 29. It was bunded off, but the excavator had been driven across the bund separating the haul road from the no-go area, flattening the bund in the process. 30. Mr Messenger was not instructed by Mr Russell to take the excavator into the no-go zone to do any work. 31. There was no reason for the excavator to be in that no-go zone. 32. There was no reason why Mr Russell, or anyone else at the quarry, would have known that Mr Messenger was working in the no-go zone. 33. In operating the excavator on the rocky slope, Mr Messenger breached a well-known rule in the quarry that no-one was to cross a bund. 34. Mr Messenger was operating the excavator in a manner contrary to how he had been trained, which was to operate the excavator on a level surface, not across a slope, and with the boom close to the body of the excavator.

Evidence of Senior Employees of the Defendant

1. I will deal separately with the evidence of the senior employees of the defendant. These employees were not present at the quarry on the day of the accident. However, their evidence is important in relation to understanding the safety system at the quarry. In assessing the evidence of the senior employees of the defendant, I keep in mind the following: 1. All of the senior employees who gave evidence still work for the defendant, bar Mr Canavan who is now retired. 2. Some of the witnesses had not been conferenced by the lawyers for the prosecutor. 3. The cross-examination of those witnesses was not an attack on the credibility of the defendant's employees. Rather, they were cross-examined to elicit information favourable to the defence case.
2. Nevertheless, I formed the impression that all of the witnesses were trying their best to tell the truth. I deal specifically with each witness below. The evidence of Mr Canavan was inaccurate in one important respect, and the parties agreed that this was so. This too is dealt with below.

Evidence of Richard Alexanda Badior

1. Mr Badior has been a Director of the defendant since 2001. As at 9 September 2014 he was the Quarry Manager and the Production Manager, as well as the nominated operator of the mine, pursuant to s 22 of the MHS Act. The defendant employed Mr Duane Harrison, as the Occupational Health and Safety Co-Ordinator. Mr Badior liaised with Mr Harrison on a needs basis.
2. Mr Badior was responsible for the development of the Mine Safety Management System. He was also responsible for acquiring and maintaining equipment fit for purpose, which included the CAT 345C. While Mr Harrison was the OH&S Co-Ordinator for Hunter Group, Mr Noel Canavan was the OH&S Officer for the quarry itself. Mr Badior attended monthly meetings with his fellow directors, during which work health and safety matters were discussed.
3. Mr Badior was absent from the quarry on 9 September 2014. So was Mr Canavan. In the absence of Mr Badior, Mr Russell had been appointed as Acting Production Manager. Mr Badior was asked questions in-chief by Senior Counsel for the prosecutor, which demonstrated that he did not have knowledge of the fine detail of work health and safety matters. For example, he could not explain the common phrase "hierarchy of controls". This is not surprising. Work health and safety was only one of the areas over which Mr Badior had control. He had both Mr Harrison and Mr Canavan, two qualified people in the work health and safety area, overseeing that aspect of the quarry's operations and reporting to him.
4. The understanding of Mr Badior concerning a ROPS on an excavator was that there was no requirement for a ROPS if the excavator was used on a flat area. He was asked whether he ever considered the possibility of Plant Operators, including operators of excavators, not working in accordance with quarry procedures due to carelessness or inadvertence. He said that this was never a consideration.
5. Mr Badior was asked whether the defendant ever conducted an MDG15 compliance audit on the CAT 345C after it was purchased. His answer was that it had only asked the salesman whether the excavator was MDG15 compliant. When asked whether he kept himself apprised of the appropriate work health and safety legislation, he said that he relied on the OH&S personnel at the quarry to keep him updated, if anything in the legislation changed. He said that neither Mr Harrison nor Mr Canavan had ever informed him of any changes in relation to a ROPS on excavators, prior to 9 September 2014. He could not recall discussing the retrofitting of the ROPS on the CAT 345C with Mr Harrison, prior to 9 September 2014.
6. Mr Badior said that he recognised that there was a hazard or risk associated with the operation of the excavator in the quarry if it was not operated on a flat zone. The risk was that "it would fall over". He acknowledged that if the excavator was operating on unstable ground, that would be a risk. Mr Badior was questioned about the creation of JSAs at the quarry, and said that he left it to "the experts", meaning the OH&S personnel. The impression gained overall from the evidence of Mr Badior was that he did not have a hands-on role in relation to safety analysis or the creation of safety documentation. He said that it was the job of the OH&S co-ordinators to review JSAs and if satisfactory, to give them to the men and speak about them. Where his signature did appear on a JSA, that would mean that he had read it and authorised it. He knew that toolbox meetings and safety meetings were held very often, and that sometimes Mr Harrison came to those meetings and spoke.
7. Mr Badior acknowledged that in his role as Production Manager, he did not personally go through the JSAs, the Risk Assessments, or the SWMSs, to see what was in force. Mr Badior was not aware of Mr Canavan conducting a Risk Assessment in relation to the CAT 345C excavator. Mr Canavan never approached him in relation to whether a ROPS should be fitted to the CAT 345C, between 27 January 2014 and 9 September 2014.
8. Mr Badior left the quarry on 8 September 2014 to go on holidays. He did not give any instructions in relation to work to be done in the area of the trench at the northern end of the quarry. He did give instructions to put a bund across the road that had been dug up. He had gone to that area with Mr Russell to drive around. When they were in the trench and looked up, he said to Mr Russell that something had to be done to bund off the road. Mr Messenger did not go on that drive-around inspection with Mr Badior and Mr Russell on 8 September 2014. Mr Messenger was not at work that day. Directions about the building of the bund were only given to Mr Russell.
9. In cross-examination Mr Badior was asked about the various inspectors who attended the quarry from time to time. The defendant submitted (MFI 62, par 220) that evidence concerning supervision and observations by inspectors is relevant to the issue of foreseeability - Orr v Cobar Management Pty Limited [2019] NSWDC 224 at [66-70]. I accept that submission. There was a practice of keeping a diary (DX 8) at the quarry, and departmental inspectors made entries in the diary at the time of their visit. The entries generally record the inspector's view that "the quarry appears to be operated in a safe manner". Many of the entries refer to the inspector observing the operation of excavators at the quarry. The entries from time to time record minor matters which needed improvement, or suggestions made by the inspector for the improvement of specific safety issues. However, there are no adverse comments concerning the way in which excavators operated at the quarry. In particular, Inspector Norcott attended the quarry prior to 9 September 2014 on several occasions. He was taken on tours of the quarry in a ute. The ute took him anywhere in the quarry he asked to go, so that he could observe the operations at that point.
10. Inspector Barnes sent an email dated 29 September 2013 (DX 12) which recorded 48 assessments done by inspectors at the quarry over the 10 years prior to 1 January 2004. There were no incidents reported in relation to excavators. There were 29 notices issued over the same period, but none of them related to excavators. Inspector Barnes concluded his email as follows: "Does any of the above highlight interactions with excavators and in particular ROPS and FOPS? No not particularly to excavators, but it should be noted that the following may be of some importance: 1. If the excavator was purchased under the NSW Occupational Health and Safety Regulation 2001, then under clause 141 OHS 2001, powered mobile plant was required to be fitted with roll over protection conforming to AS 2294 (1997). AS 2294 does not apply to excavators over 6 tonnes. Note: Excavators under 6 tonnes have to have Tip Over Protection (TOPS). Since 2008 there appears to be an ISO 12117 in relation to ROPS for excavators but it is unsure if this applies or has been used in Australia. However if the machine is built after 2011 then WHS Reg 217 may apply but only to machines that are greater than 1500kgs and it does not appear to reference any standard."
11. Mr Badior also said that there were quarterly safety meetings where everyone attended, as management put on a barbeque for all of the workers. Workers were actively encouraged to raise any safety concerns. In relation to the toolbox talks, he said that the Safety Minutes were pinned up on the wall near the weighbridge in the office and in the lunch room.
12. Mr Badior said that he had observed excavators loading material on a bench. He saw them sitting on a pad so that they were operating on the level. Mr Badior was not the one who trained excavator operators. Mr Badior said that Inspector Norcott never voiced any concerns to him in relation to the manner in which excavators were being operated. He did recall Inspector Norcott discussing bunds around the entrance coming into the quarry (to the south), but he could not recall the inspector raising any other issues about the safe manner of working of the quarry. A copy of the quarry inspection diary was tendered (DX8).
13. Mr Badior said that he was aware of the formal training and qualifications of Mr Harrison and Mr Canavan in OH&S. He understood that Mr Harrison and Mr Canavan liaised with each other from time to time about safety matters at the quarry. He did not see it as necessary to become involved in every single conversation between the two men in relation to safety matters as "I had too many other roles". He relied on their training as part of the way that safety matters were attended to at the quarry.
14. In relation to bunds, Mr Badior said that they were a "safety delineation of the edges of the quarry". Bunds had to be maintained, because the dust or waste material used to build them could wash away in times of heavy rain or wind. One of the reasons that there was a drive around the quarry at the beginning of each day was to check that the bunds were in place. One of the things Mr Badior did on his last day of work before his leave, being 8 September 2014, was to identify that the bund up on the pad area needed to be put in place. This is what he spoke to Mr Russell about.
15. Mr Badior gave evidence about the training of workers by external trainers and certification of workers. Anyone operating an excavator had to be certified or ticketed to operate that machine, by an external trainer.
16. Mr Badior did return to the quarry on the day of the accident, at about 11.00am. Mr Russell told him that Mr Messenger had an accident and that he was in the wrong place and should not have been there. He saw the excavator had rolled over. He said that that part of the quarry was not being worked. He never told Mr Russell to go to that area to work.
17. Many of the instructions given to workers in the quarry were verbal rather than written instructions. There was no written document created every time there was a bund built. Building a bund was a routine task in the quarry and the verbal instruction he gave to Mr Russell for the bund to be built was standard practice.
18. Mr Badior said that he had worked for 20-30 odd years in quarrying and had never seen an excavator overturn when it was working on a flat surface.
19. Mr Badior had made observations of the way that Mr Messenger worked at the quarry. He said that if he was instructed to do something he would usually go and do that task. Working in the area where the accident occurred was out of character for Mr Messenger.

Evidence of Duane Allen Harrison

1. Mr Harrison was employed by Hunter Group Consulting in relation to both work health and safety, and human resources. He commenced that work in 2008. He holds a Masters Degree in Occupational Health and Safety. He worked directly with the six or seven companies in the Hunter Group, helping the General Managers of each company with health and safety, human resources and workers compensation. He directly reported to the Board of the defendant and also to the Quarry Manager Mr Badior.
2. Mr Harrison conducted random inspections at the quarry. He attended management meetings with Mr Badior, Mr Russell, Mr Pun, Mr Canavan and Miss Clements. As part of those meetings he presented a health and safety report for the month. This set out Key Performance Indicators (KPIs). When he attended the quarry he drove around and he also walked around to look at the operations. He took photos of anything that needed to be discussed. He undertook desktop audits of the work health and safety system at the quarry prior to 9 September 2014. This involved looking at the documentation that was generated through the health and safety system. Part of that exercise was to improve the Mine Safety Management Plan.
3. Mr Harrison was taken to a Risk Assessment performed in relation to the CAT 345C. He was not involved in the conduct of that assessment. His name was not on the document, which indicated that he was not part of that process.
4. After the accident on 9 September 2014, Mr Harrison reviewed the SWMS and other safety documentation at the quarry. He looked at the Codes of Practice and the Australian Standards. He sent his documents to the quarry to be further discussed there. The SWMS that he developed after the accident was sent to the quarry to be reviewed and for any changes to be suggested by people at the quarry.
5. In cross-examination, Mr Harrison said that he had met Inspector Norcott, who had visited the quarry in the course of his duties.
6. Mr Harrison confirmed that when Inspector Norcott came to the quarry, he was driven around to points which he nominated. Mr Harrison and Mr Badior were in the ute with Inspector Norcott, and they discussed things with him and answered his questions. Inspector Norcott had never said anything to indicate that he observed a problem with the way in which excavators at the quarry operated. The quarry had never been issued with a notice to improve the way that excavators were operated.
7. Through Mr Harrison were tendered emails dated 20 December 2013 and 1 July 2014 from Inspector Norcott in relation to site inspections at the quarry. The first of those emails expresses the view that "the quarry appears to be operated in a safe manner". The email refers to Inspector Norcott observing an excavator operating to load haul trucks with the material from a recent blast. He also observed an excavator operating on the top bench in the southern area. He raised three matters for improvement, none of which concerned the operation of excavators.
8. The second email, which post-dates the accident, again expressed the view that "the quarry appears to be operated in a safe manner". This email also referred to an observation of an excavator loading a haul truck. Nothing adverse was said about those observations.
9. Mr Harrison said that the Hunter Group had never placed any restriction on the time he spent doing work concerning safety at the quarry. If anything was identified that needed to be bought, it was bought. Mr Harrison offered the view that verbal instructions to quarry employees were valuable, as "everybody learns differently". He noted that some people cannot read something and understand it, and verbal instruction was useful in those circumstances.
10. Mr Harrison said that besides written Risk Assessments, there were also visual Risk Assessments conducted. He said that conditions can change daily in the quarry so that it is important when someone has to do a job, they look to make their own assessment of whether the area they are going to work on is safe. This method was known as a "Take 5", which requires the worker to pause, analyse and recognise before commencing work. Mr Harrison was also aware that the Quarry Manager would take employees around the quarry, point out what he wanted done and explain the task that had to be performed. There was not always a written Risk Assessment done as part of that process.
11. When Mr Harrison did attend the quarry from time to time, one of the things he paid special attention to was bunding. A bund was a barrier in the quarry which employees were not supposed to cross. Bunding was discussed very regularly in and around the quarry. To the observation of Mr Harrison, people did not cross bunds. That was just something standard which happened at the quarry.

Evidence of Navtej Pun

1. Mr Pun is the Business Strategy Manager for Hunter Group Consulting Pty Limited. One of the companies in that group is the defendant. Mr Pun's background is in finance, and he provides financial advice to the companies in the group.
2. The group has a formal management meeting and a formal Board meeting each month. Mr Pun works with the companies in the group to assist them with their day to day activities. His evidence went to the cost of retrofitting a ROPS to the CAT 345C, if that option had been taken.
3. Mr Pun was asked whether, as at January 2014, it was his view that the defendant was financially capable of spending a sum in the vicinity of between $15,000 and $20,000 in respect of plant, to fit a ROPS to the CAT 345C excavator. His answer was "it wouldn't be an issue at all".
4. In cross-examination, Mr Pun confirmed that in his experience, if money needed to be spent for safety at the quarry, the money was spent.

Evidence of Neil Thomas Canavan

1. Mr Canavan commenced employment with the defendant in December 2012 at the Karuah quarry. From December 2012 he was the Operations Manager. His duties were: to safely lead the production team; to monitor the appropriate maintenance and use of equipment; to monitor health and safety policies, goals objectives and procedures; to respond to identified hazards on site; and to implement practical control procedures. He reported directly to Mr Badior who was the Production Manager. Mr Russell, the Quarry Supervisor, reported to Mr Canavan.
2. It was the job of Mr Canavan, in consultation with Mr Harrison, to review the Mine Safety Management Plan and the other safety documents. Mr Canavan was away on leave at the time of the accident, but he had briefed Mr Russell, who was taking over as Acting Production Manager.
3. Mr Canavan said that he did a daily drive-around inspection of the quarry and carried out the toolbox talks each morning. If a hazard was noticed, there was a toolbox talk about it. Mr Canavan conducted weekly plant inspections, which included an inspection of the CAT 345C. He made observations of that excavator, and the other machinery at the quarry, on his daily drive-around.
4. Mr Canavan was asked about his understanding of Reg 217, as it applied to excavators. His answer was that a Risk Assessment was required for the machine in relation to fitment of a ROPS. He said that there was a dispensation in place which allowed such an excavator to operate without a ROPS being fitted. He said that if a Risk Assessment was done, which resulted in a finding that a ROPS was required, then it should be fitted.
5. Mr Canavan was asked about Risk Assessments and the preparation of a SWMS in relation to the operation of excavators. He said that the Risk Assessment showed that the way the excavators were operated at the quarry meant that there was no risk of overturning. He was referring to the requirement to operate excavators only on a flat stable surface.
6. Mr Canavan acknowledged that in creating Risk Assessments and SWMSs, it was necessary to take into account that employees might inadvertently or carelessly do something wrong. These safety documents were presented to new employees in their induction, and were discussed with the workforce and reviewed on a regular basis. When such documents were reviewed, the employees who were trained in the documents signed off on them.
7. Mr Canavan was asked what he would do to identify the risk of a roll-over for an excavator at the quarry. He said that the first thing he would do would be to go and look at where the excavator was to be operated. He would look at the terrain, and whether it was flat and level or sloping. He would take an excavator operator with him. He would apply the hierarchy of controls by attempting to identify the steps in the job, the hazards that would arise from each of those steps, and the things that would be put in place to control those hazards. He acknowledged that engineering controls were better at providing health and safety control than administrative controls. He said that controls were not designed to tell workers how to do a job, they were designed for the worker to understand what the job entails, and to think about what was required to do that job safely. This was the purpose of a JSA.
8. Mr Canavan was asked about a JSA for a CAT 345B excavator. When asked whether that JSA was still in force as at 9 September 2014, he said that he thought there would have been an updated one. This was the start of his evidence which led to a lengthy adjournment while there was a search for documents about which Mr Canavan gave evidence.
9. Mr Canavan said that the JSAs and SWMSs were collected in a list, and there was a register of those which were in force. Such a register had never been produced as part of the overall documentation supplied by the defendant to the prosecutor. He said that there was a list of all the SWMSs and that they were all in force at the time. He said that a SWMS would not be on the list if it was not yet in force. Mr Canavan gave evidence as to where the register could be found, being a folder in the office. It was clear that such a folder had never been produced by the defendant. He said that when a JSA or a SWMS was finalised, after it had been discussed with workers at a toolbox talk, it would be registered in the SWMS register and then set to be reviewed every 12 months. He was taken to a large number of the defendant's safety documents, some of which had been signed, many of which had not been signed, and some of which were labelled "Draft".
10. Many questions were directed by Senior Counsel for the prosecutor to Mr Canavan concerning particular documents produced by the defendant. Mr Canavan continued to assert that unless the documents were signed off, it meant that they were documents which were not in force. He repeated many times that the safety documents such as JSAs and SWMSs which were in force, were recorded in a particular register.
11. The necessity for the prosecutor to seek to obtain the register, which had not been produced by the defendant, resulted in a lengthy adjournment and the issue of a subpoena to the defendant for the production of further documents. In the end no further documents of any consequence were produced, and in particular, there was no production of the register which Mr Canavan had asserted was in existence. The parties agreed that the evidence of Mr Canavan in relation to the existence of the register was unreliable and should not be taken into account.
12. When the hearing resumed after the fruitless search for the SWMS register, Mr Canavan was asked about the Risk Assessment performed on the CAT 345C and about consideration of retrofitting a ROPS to the excavator. He said that he discussed the Risk Assessment with Mr Harrison at the time. He was aware that there was a "dispensation from the Mines Department" in relation to a ROPS, but that consideration had to be given to whether a ROPS should be retrofitted or not. This was a reference to the necessity to conduct a Risk Assessment. He said (T 176/2): "Q. But why would you be discussing ROPS if in fact you understood there to be an exemption? A. Because you had to - it had to be a consideration whether we would fit them or not. Even though there was a dispensation, you still had a piece of equipment that could be fitted with a ROPS and FOPS. Our - the way we worked, because we were always on a flat surface, the discussion - the end result of the discussion was that because of that, and the dispensation that we had, we decided not to fit the ROPS and FOPS to the 345."
13. Mr Canavan was asked about the document which he completed on 22 January 2014, which was his Risk Assessment in relation to the excavator and in relation to ROPS. The document was in two parts. The first document was headed "Mobile Equipment: Minimum Safety Hardware Requirements" (PX 2, Tab 15). It was completed by Mr Canavan in his handwriting on 22 January 2014 and was described by him as an "audit" on the CAT 345C. The document was a pro forma, which listed the equipment on the plant, and required Mr Canavan to tick a box if the equipment was "ok". For example, listed equipment included a seat belt, a flashing light, a rear vision mirror and a fire extinguisher. All of these boxes were ticked "ok".
14. Item 3 in the audit document related to hardware being "Roll Over Protective Structure (ROPS)/Tip Over Protective Structure (TOPS)". Under the heading "Detail" the pro forma document said "Required on new, others on a case-by-case basis". Mr Canavan did not tick the box but instead wrote "As above" in handwriting. This was a reference to what he wrote in relation to item 2, which was consideration of a FOPS. Thus the handwriting "As above" in relation to item 3, picked up his handwritten entry in relation to item 2 which is "RISK ASSESSMENT TBCO". The abbreviation "TBCO" stands for "To Be Carried Out".
15. The second document which was part of the "audit" was a Risk Assessment Form which was an internal document of the defendant (PX 2, Tab 16). This was a typewritten document which was created by Mr Canavan, as he said, in consultation with Mr Harrison. It was dated 22 January 2014 and was a Risk Assessment developed by Mr Canavan. It related to the specific work activity of "Excavator Operations 345C". The document then set out a "Risk Management Tool", which is a matrix for assessing the likelihood of a risk and the consequence or impact of a risk. The document then refers to the hierarchy of risk controls.
16. There were nine identified risks then dealt with in the document, of which two are relevant to the present proceedings.
17. Item 2 as "Inadequate ground assessment - resulting in the potential for plant rollover and crush injury sustained from falling rocks or debris". The risk ranking for that was "1". By reference back to the Risk Management Tool, a ranking of 1 meant one of three possibilities: 1. Likelihood Rare (Practically impossible to occur, Exposure not possible) and consequence or impact Minor (First Aid Treatment, Medium Financial Loss). 2. Likelihood Unlikely (Not likely to occur, Infrequent time exposed) and consequence or impact Insignificant (No Injury or Illness, Low Financial Loss). 3. Likelihood Rare (Practically impossible to occur, Exposure not possible) and consequence or impact Insignificant (No Injury or Illness, Low Financial Loss).
18. There were five existing control measures for the identified hazard of inadequate ground assessment. In summary, they were: 1. Consideration by the excavator operator of, inter alia, the depth and stability of the excavation and the rock surface. 2. Not operating the plant within the zone of influence. 3. Digging a hole to check the ground stability. 4. Assessing the setup to evaluate the potential for rock fall. 5. Assessing a six metre clearance to the machine fall zone near an edge, and building a rock wall at an appropriate height for further protection.
19. There was a box in which Mr Canavan could have listed any "Additional Control Measures" but none were listed. The Residual Ranking was said to be "1", the same as the initial Risk Ranking.
20. The other item in the document which was relevant to the present proceedings was item 8, being "Machine Rollover". This was given a Risk Ranking of "4". There were four possibilities in the Risk Management Tool which resulted in a Risk Ranking of 4. They were: 1. Likelihood Unlikely (Not likely to occur, Infrequent time exposed) and consequence or impact Catastrophic (Death, Huge Financial Loss). 2. Likelihood Possible (Could Occur, Frequently at least one a day) and consequence or impact Major (Extensive Injuries, Loss of Work, Major Financial Loss). 3. Likelihood Likely (Will probably occur, Regular exposure during day) and consequence or impact Moderate (Medical Treatment, Injury, High Financial Loss). 4. Likelihood Almost Certain (Common repeating occurrence/exposure) and consequence or impact Minor (First Aid Treatment, Medium Financial Loss).
21. Mr Canavan listed the Existing Control Measures as: "1. Move and store loads outside zone of influence. 2. If possible, place the undercarriage up or down a slope, rather than across for maximum stability. 3. Do not drive across steep slope. 4. Ramp is to be built and stable enough to support the machine. Use plant bucket to aid plant stability, climbing and machine set up."
22. There were no Additional Control Measures listed. The Residual Ranking was "1".
23. Mr Canavan said that to his understanding, the purpose of the documents was "to make the machine as safe as possible to operate". He could not recall why this document was completed, and he said that he thought that the SWMS for excavator operation was up for review. Mr Canavan said that he would have discussed the Risk Assessment with Mr Harrison and Mr Badior. He did not access any written information about how to undertake a Risk Assessment, as he had the experience to do that, being a fully qualified occupational health and safety manager, as well as a qualified lead auditor for safety and environmental systems. Mr Canavan noted that there were no signatures of the operators on the last page of the second audit document, where there was a box for employees to consult and sign off. He said therefore that the document was his draft. He could not explain why there was another form of this document with signatures on it. He said that he did discuss the document with Mr Harrison and Mr Badior. He said that he probably would have looked at MDG15, as well as the current SWMS that was in place for the excavator.
24. Mr Canavan was asked why he gave a possibility of a plant roll-over a Risk Ranking of "1". He said (T 1727/1): "A. Because in normal operation of an excavator at the quarry those parameters would have - well, what we were attempting to do there was ensure that the machine was operated safely and it wouldn't tip over."
25. When asked why he had assumed that if the hazard did manifest, it would only result in first aid treatment or no injury, he said (T 1727/8): "Because we didn't expect for that to happen at the quarry with the way that our procedures were in place, that the excavator was to be on flat ground at all times, no matter what the operation it was doing, where - loading out of a shot or loading off a rock pile. There was always a flat surface made."
26. Mr Canavan was asked why there were different Risk Ratings for item 2 (a Risk Rating of 1) and item 8 (a Risk Rating of 4). His explanation was that item 2 concerned a situation where the machine was not actually operating, whereas item 8 concerned a situation where the machine was working (T 1727/35).
27. Mr Canavan was asked how it was that he was conducting an assessment in relation to a ROPS, when a ROPS was not mentioned. His answer was (T 1734/24): "Because after the safety audit was done, and in a discussion that I would have had with Alex and Duane - and I quite clearly remember the conversation; I can't say exactly when it happened, or give a date or a time, but I know I had the conversation. We ran with the mines dispensation that we were not required to fit a ROPS to that machine."
28. The prosecutor attempted to have Mr Canavan identify any SWMS for excavator operation which was in place at the relevant time, but no such document could be identified.
29. Mr Canavan said that after the accident, the PC 600 excavator was retrofitted with a ROPS. The CAT 345C was written off, and a Caterpillar 345D excavator was purchased, which came with a ROPS already fitted.
30. In cross-examination Mr Canavan said that the practice for use of excavators in the quarry was that they were always used on a flat surface. A flat pad was always made for the excavator to operate from. The only time they were ever on a surface which was not flat, was when they were tramming along a haul road to get to a work site. Mr Canavan had formed the view, in the light of his experience, that because of the way the machines were used at the quarry, it was unnecessary to fit a ROPS. He assessed the risk on the basis that the excavators were always used on flat ground. He also took into account that it was part of the training given to Mr Messenger and other quarry workers that excavators were to be operated only on a flat surface. He said that this was a standing order in the quarry. Mr Canavan had personally observed Mr Messenger on a number of occasions and had observed him to be a careful and safe operator.
31. In cross-examination Mr Canavan said that areas which were no longer in use in the quarry were bunded off. The purpose of a bund was to make clear that there was delineation between work areas and non-work areas. As the Work Health and Safety Manager, Mr Canavan ensured that all of the operators were fully aware that bunding meant that a bund was not to be crossed. He said that if someone was going to undertake work which involved operating on sloping ground, that would need to have been as a result of a direction from the Quarry Manager.
32. Mr Canavan made safety observations from time to time. He had never seen an excavator become unstable when it was working on the flat. He had never seen an excavator being operated at the quarry otherwise than on a flat surface. Mr Canavan had observed that it was Mr Russell's practice to always give directions to excavator operators before they undertook work. Mr Russell took them and inspected the area where they were to be working. This involved making an assessment of the work site.

Consideration of the Risk Assessment of 22 January 2014

1. The evidence-in-chief concerning this Risk Assessment is set out above at pars 250-267. The cross-examination relevant to that Risk Assessment is summarised above in pars 268-270.
2. There was criticism of this Risk Assessment in the prosecutor's Written Submissions (MFI 60). The prosecutor submitted that the Risk Assessment failed to comply with the defendant's own procedures because there was no consultation between management, supervisors and workers, and no engagement with the operators who used the excavators. There were no signatures on the Risk Assessment for employee consultation and sign off. No signed version of the document was ever produced by the defendant. None of the excavator operators had any familiarity with the Risk Assessment. Mr Canavan did not consult with or obtain assistance from any of the excavator operators prior to completing the Risk Assessment document.
3. It was submitted that Mr Canavan was not in a position to adequately identify all of the relevant hazards and control measures because he was not a qualified excavator operator. He had no experience in operating the excavator, he sought no input from excavator operators and he did not have the assistance of an expert in respect of the safe operation of excavators.
4. The prosecutor submitted that the most significant omission from the Risk Assessment was that, having been undertaken to determine if a ROPS should be fitted to the excavator, there is no reference to a ROPS in the document. The prosecutor submitted that the court should draw the conclusion that Mr Canavan did not consider a ROPS at all. The prosecutor submitted that the Risk Assessment was nothing more than a form filling exercise and did not involve any real analysis. The prosecutor submitted that the defendant did not come to a reasoned decision about whether or not a ROPS was required.
5. Contrary to the written submission of the prosecutor, Mr Canavan gave evidence that he did discuss the Risk Assessment with Mr Harrison. Mr Canavan also gave evidence that he discussed the Risk Assessment with "Alex", meaning Mr Badior. He also said that he gave consideration to a ROPS, even though the document did not mention a ROPS, because while there was a "dispensation from the Mines Department" in relation to a ROPS, there was still the need to carry out a Risk Assessment. In broad terms, this is a correct statement of the position arising from the Exemption in relation to having a ROPS on an excavator. There was no other conceivable reason for Mr Canavan to go through the exercise of conducting a written Risk Assessment on the CAT 345C. The Risk Assessment consisted of two documents, which when read together make clear that a ROPS was a consideration.
6. The submission of the prosecutor that the Risk Assessment only proposed administrative control measures is accepted. The control measures recorded in the document are set out in pars 256 and 259 above, and clearly do not involve any engineering controls.
7. As to why the document did not propose any engineering controls, and why it did not come to the conclusion that a ROPS was required, Mr Canavan repeated several times that the normal operation of the excavators at the quarry meant that they were always operating on a flat surface and therefore could not tip over. Some of his answers are recorded at pars 262 and 263 above.
8. In the prosecutor's Written Submissions at par 12.5 it was submitted that cl 36 of the Regulation (dealing with minimising risks) operates so that a PCBU is required to implement the specified controls in a cascading manner. It has to start with substitution, isolation or the imposition of engineering controls to minimise a risk. Then, and only if those controls are not reasonably practicable, is a PCBU permitted to rely on administrative controls.
9. The prosecutor submitted that a ROPS is an engineering control, and thus it should have been implemented to minimise risks, before any consideration was given to implementing administrative controls.
10. The pleaded risk in the Amended Summons is set out in par 10 as follows: "Mr Messenger was exposed to a risk of death or serious injury, including a crush injury, from the Excavator overturning while he was carrying out the Work in the Work Areas of the Quarry (Risk)."
11. It should be recognised straight away that fitting a ROPS to an excavator does not eliminate the risk of death or serious injury from the excavator overturning. Ideally the risk of the excavator overturning in the first place should be eliminated. This cannot be achieved by any engineering control. However, the evidence shows that the risk of an excavator overturning (and thus the risk of death or serious injury from an excavator overturning) has been successfully eliminated over many years of operation at the defendant's quarry, by administrative controls. Those controls have included the training of workers, the prescription of certain safety rules, and the reinforcement of those rules, by toolbox talks, safety documentation and further training.
12. Put plainly, the position of Mr Canavan, and of the defendant, was that if excavators were operated in accordance with the safety precepts for excavators which applied at the quarry, they would not overturn in the first place. In fact, the only control measures which would prevent an excavator overturning in the first place were all administrative measures, as implemented and enforced by the defendant, rather than engineering controls.
13. In the circumstances in which excavators were operated at the quarry, as observed on many occasions by inspectors as well as employees of the defendant, the control measures which were in place were seen as adequate and appropriate to eliminate the risk of death or serious injury arising from the overturn of an excavator. The key concept to be kept in mind is not the protection which should be provided if an excavator overturned. That should never happen. Rather, the focus of safety should have been on preventing excavators overturning in the first place. The evidence in the case demonstrates that there was an appropriate focus upon that aim by the defendant and in those circumstances the Risk Assessment conducted by Mr Canavan, while not perfect or perfectly documented, was an adequate and appropriate Risk Assessment. I am not satisfied beyond a reasonable doubt that the Risk Assessment was inadequate, as alleged in par 12(a) of the Amended Summons.

Findings of Fact - Safety of Work at the Quarry

1. As previously stated, I find that all of the senior employees were witnesses of truth. They made appropriate concessions when they could not recall matters. Mr Canavan's evidence in relation to the existence of a Register which collected all of the SWMSs and other safety system documents was inaccurate, a matter agreed between the parties. This is not a criticism of Mr Canavan's other evidence. In fact it is understandable that he was no longer au fait with all of the documentation at the quarry, as he no longer works there, having retired. I also take into account that during the hearing, he had to be called away as his wife suffered a serious health issue, and he too now had medical problems.
2. The prosecutor submitted that the safety documentation at the quarry was a confused and chaotic system. Certainly the defendant could not produce a complete and seamless collection of written safety documents. However, all the safety documentation in the world is of little use unless workers are trained in matters of safety, and safe working practices are then constantly observed and enforced.
3. In its Written Submissions (MFI 62, par 93) the defendant submitted that there was a simple and effective system for the safe operation of excavators at the quarry, which was disregarded by Mr Messenger. The defendant submitted: "Mr Messenger was in a no-go area as he first dismantled and crossed a bund and worked on the edge of a cliff or sheer face. That was not what he was instructed to do. He had never been known to cross bunds. There was no system in place at the quarry that permitted persons to simply cross bunds if they chose to. The system was that bunds were NOT to be crossed."
4. As to the absence of some written safety documentation, the defendant drew attention (MFI 62, par 91) to the decision of Morrison v Milner and Baldwin (No. 2) [2009] NSWIRComm 191; (2009) 191 IR 158, where the Full Bench of the Industrial Court of New South Wales said at [89-90]: "89 There was, as we earlier found, a complete absence of a written procedure. However, there was no statutory or other mandated requirement for the company to have a written SWP. Further, the authorities make it plain that not all systems of work must be documented: Genner Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Guillarte) [2001] NSWIRComm 267; (2001) 110 IR 57 at [56], [57] and [71]; Inspector Kilpatrick v Jae My Pty Limited [2004] NSWIRComm 109; (2004) 136 IR 148 at [23] and [31]; WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Ltd [2002] NSWIRComm 316; (2002) 123 IR 121 at [82]. 90 The absence of a written procedure, therefore, is not conclusive of a failure to have an SWP. In any event, the appellant did not prove to the relevant standard that the absence of a documented SWP was causally connected to the risk. That is to say, it was not proven beyond reasonable doubt that because no procedure existed in writing, that caused the relevant personnel to be exposed to a risk to their health and safety when engaged in rescuing a CM stranded under unsupported roof."
5. I take into account the evidence summarised above in relation to: the training of employees of the defendant, including Mr Messenger; the safety system documents; the knowledge of safety matters of the senior employees, and the knowledge of safety matters of the workers at the quarry on the day of the accident. I make the following findings of fact: 1. Employees of the defendant were trained to operate excavators only on level and stable ground. 2. Employees of the defendant were trained not to operate excavators on unstable, rocky or boggy ground. 3. Employees of the defendant were trained not to operate an excavator across a slope. 4. Employees of the defendant were trained not to operate an excavator with the bucket extended from the body with a large weight in the bucket. 5. Employees of the defendant were trained not to slew the turntable of an excavator when it was on a slope. 6. Employees of the defendant were trained not to slew the turntable of an excavator when the boom was extended with a weight in the bucket. 7. Employees of the defendant were trained not to cross a bund, which indicated that beyond the bund was a no-go zone. 8. Employees of the defendant were trained to do the work they were instructed to do, and not to do any other work unless they first checked with a superior. 9. Such training was put into effect, as no breaches of those trained procedures had ever been observed by an inspector, senior employees of the defendant, or Mr Russell the Quarry Supervisor. 10. Not all of these procedures were appropriately documented by the defendant's safety system. 11. Nevertheless, by oral instruction, and by observation, these safety rules were implemented, observed and enforced within the quarry. 12. Mr Badior did not have a detailed knowledge of safety matters in the quarry, as he left this to senior employees who had appropriate qualifications and responsibilities. 13. Mr Harrison and Mr Canavan had such qualifications, and carried out their safety duties in an adequate fashion, apart from fully documenting and/or retaining copies of documented SWMSs and JSAs. 14. Until the day of the accident, excavators at the quarry had been operated without exception on level and unstable ground, meaning that there was no risk of them overturning.

Evidence in relation to ROPS

1. The prosecutor called evidence from Mr Jeff Samuels of QMW Industries Pty Limited (QMW) and Mr Jason McCallum of A D McCallum & Son Pty Limited (McCallums). Both those companies have for many years manufactured ROPS which can be retrofitted to earthmoving plant and machinery, including excavators.
2. The prosecutor also called evidence from Dr Shane Richardson, an engineer with particular expertise in relation to ROPS.

Evidence of Jeff Samuels

1. Mr Samuels commenced his career in 1978 as an apprentice welder. In January 1984 he started up his own business QMW. The business of this company is general welding. In about 1990 QMW expanded into the manufacture of ROPS for earthmoving and mining equipment in Queensland. Mr Samuels has been a member of various groups and associations which have a working interest in ROPS.
2. Mr Samuels gave evidence that ISO 12117-2 is used by QMW as a design guide for the design of ROPS. That ISO Standard is also used for calculating the test requirements when physical tests are conducted upon ROPS manufactured by QMW. The company uses an independent registered practising mechanical engineer to witness the physical testing of ROPS manufactured by QMW, and a certification is obtained from that independent engineer that a ROPS manufactured by QMW has performed in accordance with the ISO Standard. QMW has been using ISO 12117-2 since the ISO Standard was published in 2008. Besides physical testing, QMW also conducts finite element analysis testing (FEA). This is computer simulated modelling of the engineering calculations involved in the testing. After physical testing and FEA testing, QMW Industries supplies a certificate with each ROPS, stating that the ROPS is compliant with ISO 12117.
3. Test reports and engineers certificates, of the kind described by Mr Samuels in evidence, were tendered by the prosecutor.

Evidence of Jason McCallum

1. Mr McCallum is the Managing Director of McCallums and commenced working at that company in 1992. He was appointed as the Managing Director in about 2013. Prior to that he was the Workshop Foreman. He is a sheet metal worker and welder by trade. The business of McCallums includes the design and manufacture of ROPS for earthmoving equipment, including excavators. After 2008, McCallums started designing and manufacturing ROPS for retrofitting to excavators, adopting the requirements of ISO 12117-2. The company not only manufactures ROPS but also fits them to equipment. When a ROPS is supplied to a customer, it comes with an engineer's certificate.
2. The company had supplied one ROPS for a CAT 345C, which cost around $19,000. The company conducts its own tests on excavators, in which it tries to get them to tip over. Mr McCallum said that it was not possible to tip an excavator over when it was working on flat ground. To test the machine in a roll-over, weights were added to the hitch of the excavator, in order to deliberately tip it over. In cross-examination Mr McCallum accepted that the ROPS which he manufactured would not stop objects penetrating into the side or the front of the cabin.

Evidence of Shane Richardson

1. Dr Shane Richardson is a Forensic Engineer. In 29 years of experience he has conducted over 1,000 investigations of vehicle collisions and industrial and mining accidents. He has designed, developed and supervised the manufacture of roll-over protection systems in Australia and many other countries. He has done such work for the Australian Army and large worldwide mining corporations. Dr Richardson has a PhD from Monash University, acquired through research into roll-over protection systems for light passenger vehicles.
2. Dr Richardson provided an expert report (PX 57), gave oral evidence and was cross-examined. I accept Dr Richardson as a suitably qualified expert to give evidence in these proceedings.
3. The report of Dr Richardson is replete with engineering and mathematical calculations, to support his opinion that had a ROPS been fitted to the CAT 345C which rolled over at the quarry, the ROPS would have protected the structural integrity of the cabin of the excavator. Dr Richardson also gave evidence concerning the engineering and mathematical factors involved in testing of a ROPS.
4. Dr Richardson was given photographs of the excavator in its rolled over condition. He came to the view that a suitable ROPS, if fitted to the excavator in question, would have maintained its integrity in the overturn.

Findings of Fact in relation to ROPS

1. I make the following findings of fact in relation to the evidence concerning ROPS summarised above: 1. QMW Industries Pty Limited manufactured ROPS which could have been retrofitted to the defendant's CAT 345C. 2. A D McCallum & Son Pty Limited manufactured a ROPS which could have been retrofitted to the defendant's CAT 345C. 3. The cost of such an after-market ROPS for the CAT 345C would have been about $20,000. 4. Had such a ROPS been fitted to the CAT 345C involved in the accident, the structural integrity of the operator's cabin would have been maintained. 5. The defendant would have spent the money to fit an after-market ROPS, if it had perceived the need to do so.
2. It is to be noted that when the excavator rolled over onto its left-hand side, a large rock on the ground penetrated into the cabin and came into contact with the body of Mr Messenger. Even if a ROPS were fitted to the CAT 345C, it was not designed to, and would not have, prevented the large rock from entering the side of the cabin and crushing Mr Messenger. This was a matter accepted by Senior Counsel for the prosecutor, and indeed was reflected in par 8 of the Amended Summons which stated: "The large rock which penetrated the cabin caused fatal crush injuries to Mr Messenger".

Element 1 - The defendant was conducting a business or undertaking

1. This element was admitted by the defendant in final submissions (MFI 62, par 104). All of the evidence shows that the defendant was conducting the business or operation of andesite mining at the Karuah quarry. The defendant owned the site, it employed all of the workers at the site and it owned and supplied all of the machinery at the site. There was really no contest about Element 1. I find that the defendant was conducting a business or undertaking.

Element 2 - The defendant owed a work, health and safety duty

1. As recited in par 6 above, Element 2 is that the defendant owed a health and safety duty to ensure, so far as was reasonably practicable, the health and safety of: 1. workers engaged by it or workers whose activities are influenced or directed by the defendant; 2. while the workers were at work in the business or undertaking.
2. The evidence shows, and it is not in contest (MFI 62, par 105), that Mr Messenger was an employee of the defendant, who was using the defendant's CAT 345C in the northern part of the defendant's quarry, when the accident occurred. Mr Messenger was thus a worker engaged by the defendant and was at work in the business or undertaking of the defendant.
3. I find that the defendant had a duty under s 19(1) of the WHS Act, to ensure, so far as was reasonably practicable, the health and safety of Mr Messenger while he was using the excavator at the quarry.

Element 3 - Failure to comply with the health and safety duty

Exposure to Risk

1. The safety of workers cannot be ensured if a risk to the health and safety of a worker exists at the workplace. The existence of the risk constitutes a breach of the primary duty under s 19 of the WHS Act. The relevant risk for the commission of the s 32 offence is the risk of death or serious injury.
2. It is an element of a Category 2 offence that a person is exposed to such a risk. The phrase "exposed to risks" has been interpreted to mean that a person was sufficiently proximate to the source of a risk for the risk to come home, irrespective of the mechanism by which that could happen - Thiess at [67].
3. It is not necessary that there is an accident or that a person is injured - Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 at [13]. Nor is it necessary for the prosecutor to prove the particular circumstances in which an incident occurred, in order to establish the existence of the pleaded risk. The risk to be assessed is not the risk of the consequence, to the extent that a worker is in fact injured or killed, but is the risk arising from the failure to take the reasonably practical steps to avoid injury or death occurring - Nash v Silver City Drilling Pty Limited [2017] NSWCCA 96 at [53].
4. Paragraph 10 of the Amended Summons pleads the risk as follows: "Mr Messenger was exposed to a risk of death or serious injury, including a crush injury, from the Excavator overturning while he was carrying out the Work in the Work Areas of the Quarry (Risk)."
5. Paragraph 2 of the Amended Summons defines "Work" as using the excavator "to carry out work including digging, excavating, lifting, rock-breaking and moving earth and material". Paragraph 2 defines "Work Areas" as various areas of the quarry "including in the quarry pit, on the quarry face and on benches, pads, roads and ramps".
6. As can be seen from the definition of "Work" and "Work Areas" in Annexure A to the Amended Summons, the prosecutor did not confine his case to the particular risk of the excavator overturning while working on the rocky uneven ground at the northern end of the quarry on the date of the accident. The prosecutor also relied upon risks arising from the excavator carrying out other work elsewhere in the quarry. All of the evidence in the case points to the operation of the excavator on the rocky uneven ground, where the accident occurred, as being work which involved a significant risk of serious injury or death. However, the evidence in relation to the existence of a risk, or the degree of risk, involved in everyday work in the quarry was broadly to the effect that it was impossible to overturn an excavator when it was working on a flat pad or surface, or when it was tramming or walking around the quarry to get to the next work task. Because of the stark contrast in the evidence concerning those different situations, I propose to separately consider the risk arising from the operation of the excavator which resulted in the death of Mr Messenger, and the risk arising from other work in the quarry.
7. When Mr Messenger was operating the excavator immediately prior to the accident, the excavator had crossed a bund, and entered into a no-go zone in the quarry. The excavator was working across a slope, and on unstable and boggy ground. The excavator was operating with its boom fully extended and with a large rock in the boom. The excavator was slewing upon its turntable, while operating on a slope, which only added to the instability of the machinery and to the risk of the excavator overturning, as it did.
8. The manner in which the excavator was operated on the day of the accident undoubtedly exposed Mr Messenger to a risk of death or serious injury from the excavator overturning while he was carrying out work at the northern end of the quarry.
9. On the other hand, the everyday operation of the excavator in digging out material, loading blasted material onto trucks, excavating trenches and moving around the quarry, did not expose Mr Messenger to a risk of death or serious injury. The evidence in the case established that the operation of an excavator on level ground, or on a stable elevated pad, or driving directly up or down a haul road, involved no risk of death or serious injury being caused by the excavator overturning. Because such excavators are broad-tracked vehicles, with a low centre of gravity, and counterweights behind the main cabin, they do not overturn if operated properly.
10. This was dramatically demonstrated by the evidence of Mr McCallum, who had tried to tip excavators over to test them. True it is that any excavator can tip over if it is operated on ground that is not level, or is not firm, or if it were to go so close to an edge that it rolled over. The evidence of every witness called by the prosecution established the stability and safety of excavators when operated in an appropriate fashion. The rules of the quarry, and the training of the operators of the excavators in the quarry, meant that excavators did not cross bunds, they did not go into no-go areas, and they were not operated on any ground which was not both level and stable. Further, the absence of any prior problems in operating excavators at the quarry, and the recordings made by inspectors who visited the quarry from time to time over many years, indicated that the excavators in the quarry were always operated within the rules laid down by the defendant, and in accordance with the training provided by the defendant.
11. I find that the everyday operation of excavators in the quarry, by which I mean the operation of excavators on flat surfaces and stable surfaces, in accordance with the guidelines and training, did not pose a risk to workers from excavators overturning.

Reasonably Practicable Measures

1. The prosecutor is required to demonstrate that the particular measures pleaded in the Amended Summons should have been taken to minimise the risk identified - Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 at [37].
2. Any failure by the defendant does not have to be the sole cause of the creation of the pleaded risk. The relevant question on causation is whether the pleaded act or omission of the defendant was a significant or substantial cause of a worker being exposed to the risk of serious injury or death - Bulga Underground Operations Pty Limited at [127]. A duty holder under s 19(1) of the WHS Act must have a proactive approach to safety issues and the identification of risks within its workplace. It must have a structured and systematic approach to risk management - WorkCover Authority of NSW v Atco Controls Pty Limited at [85]. The question is not - did the duty holder envisage a particular risk - but rather should it have - WorkCover Authority of NSW v Kellogg (Aust).
3. In par 11 of the Amended Summons, the prosecutor alleges that the defendant failed to ensure, so far as was reasonably practicable, the provision and maintenance of safe plant, and in particular, failed to ensure that the excavator was fitted with an adequate ROPS. This paragraph pleads the "plant charge" as referred to by Senior Counsel for the prosecutor.
4. In par 12 of the Amended Summons, the prosecutor pleads that the defendant failed to ensure, so far as was reasonably practicable, that a safe system of work was provided for the operation of the excavator. This paragraph pleads the "systems charge" as referred to by Senior Counsel for the prosecutor. The sub-pars of par 12 will be dealt with further below.

Foreseeability of the Risk

1. In order to assess the practicability of minimising the risk, it is necessary to have regard to the foreseeability of that risk. The definition of "reasonably practicable" in s 18 of the WHS Act alone makes this plain. Among the relevant matters to be taken into account in deciding what is "reasonably practicable" the court is required to look at "the likelihood of the risk concerned occurring" and "what the defendant knows or ought reasonably to know about the risk and ways of eliminating or minimising the risk" - s 18(a) and (c) of the WHS Act.
2. In Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209 proceedings were brought against the Authority for a breach of the Occupational Health and Safety Act 1983 (NSW). Roofing work needed to be done on the rail repair plant at Eveleigh. A sub-contractor was engaged to carry out the work. Two workers had to work close to electrical mains. One of the workers died after being electrocuted, when he came into contact with the cables of the sub-main. There was a practice in place for the electricity to be isolated when work was to be done. The mains were not switched off by the employees on the day that the death occurred.
3. The Court of Criminal Appeal held that if a company has sub-contracted another to perform work, and the company has taken reasonable precautions in selecting and training the latter to perform supervisory duties, has in place an effective system of supervision and has taken steps to ensure the system is adhered to, if the sub-contractor does not comply with such procedures, then the company is entitled to a defence - at p 215.
4. In WorkCover Authority of NSW v Kellogg (Aust), Kellogg was charged with a breach of s 15(1) of the Occupational Health and Safety Act 1983. The breach concerned an accident at the defendant's factory when two workers suffered severe burns when the contents of a cereal cooker exploded, as the employees attempted to remove the lid. Oral evidence showed that the explosion was due to the lid being removed in error.
5. The Industrial Relations Commission of NSW In Court Session held that if a defendant can show that the causes of, or circumstances surrounding, the breach of duty to employee safety were not reasonably foreseeable, it would generally be concluded that it would not have been practicable to take measures to guard against that risk - at p 259.
6. The court held that where the likelihood of the risk occurring and the propensity for harm are high, the higher the duty of an employer to take precautions, even if such precautions are expensive or difficult to implement - at p 260.
7. In WorkCover Authority of NSW (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 the court held: "If the happening of an event is not reasonably foreseeable, it is not practicable to make provision against it."
8. Sometimes it will not be practicable to prevent a risk from occurring when a suitably trained and instructed employee departs from usual safety precautions. This may be because it was not reasonably foreseeable that the employee would depart from known procedures, or that the training and instructions provided to the employee were sufficient to ensure that they understood the risk of departing from the procedure. Nevertheless, there is a minimum level of instruction which should be provided to an experienced employee - Genner Constructions Pty Limited at [68].
9. In WorkCover Authority of NSW (Inspector Byer) v Cleary Bros (Bombo) Pty Limited [2001] NSWIRComm 278 a worker stepped out of a truck at a waste management centre to undo the clip of the door of a bin to allow the bin to be emptied into a pit. He slipped and fell into the pit which was approximately 1.8 metres deep. The Industrial Relations Commission of NSW In Court Session said that to determine whether it is reasonably practicable to address a known risk, a balancing exercise must be undertaken. The seriousness of the risk must be measured against the cost and difficulty of implementing the measure to protect against the risk - at [83]. The meaning of the phrase "reasonably practicable" was summarised as: 1. Reasonably practicable means something narrower than physically possible or feasible. 2. What is reasonably practicable is to be judged on the basis of what was known at the relevant time. 3. 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 the risk - at [87].
10. The unforeseeable behaviour of a disobedient worker may well lead to the happening of an event that could not be reasonably foreseen and therefore it was not reasonably practicable to guard against such event: WorkCover Authority of NSW v Kirk Group Holdings Pty Limited [2004] NSWIRComm 207; (2004) 135 IR 166 at [129]. The duty of an employer in respect of health and safety requires a proactive approach. The authorities agree that employers are statutorily obligated to ensure the health and safety of not only competent employees and contractors, but also "hasty, careless, inattentive or unreasonable employees and contractors" - at [128].
11. In R v Commercial Industrial Construction Group Pty Limited [2006] VSCA 181, the Court of Appeal of the Supreme Court of Victoria was dealing with a contravention of a duty under the Victorian legislation to "provide and maintain so far as is practicable for employees a working environment that is safe and without risks to health". It was a contravention of that duty if an employer failed "to provide and maintain plant and systems of work that is so far as is practicable safe and without risks to health". In pars [49]-[50] the Court of Appeal said: "49 An employer should recognise that it is common experience that human error will be encountered in the workplace. Error can range from inadvertence, inattention or haste through foolish disregard of personal safety to deliberate non-compliance with the prescribed safe system of work … An employer's responsibility for the safety of its workers will not be discharged unless the employer takes 'an active imaginative and flexible approach to potential dangers in the knowledge that human frailty is an ever-present reality'. 50 The events of this day suggest a foolish or deliberate disregard of the company's safety management system by three of its employees, as a consequence of the company's failure over time to supervise and monitor its employees sufficiently in the course of the performance of their work and its over-reliance upon the discretion of employees in matters of safety. The conclusion is inescapable that its employees' non-compliance with its safe system of work was not the consequence of a sudden lapse of judgment by them during these two days. The company's duty was to ensure that its employees worked in accordance with the safety instructions that they had been given. The company's submission, that it could have done no more to comply with its statutory obligation to provide a safe system of work, cannot be sustained."
12. In the present case there was no evidence of a failure by the defendant to supervise and monitor its employees sufficiently in the course of their work. Nor is there evidence that the defendant was over-reliant upon the discretion of its employees in matters of safety. The findings recorded above are to the contrary on both matters.
13. In Baiada Poultry Pty Ltd at [15] the High Court of Australia said that the meaning of "reasonably practicable" does not require employers to take every possible step to guard against injury to employees. The steps that are to be taken in fulfilling that duty are those that are reasonably practicable to achieve the end goal of providing and maintaining a safe place of work.
14. In Orr v Cobar Management Pty Limited, Judge Scotting of this Court dealt with a case involving an underground mine. In the mine there were sumps which were designed to collect waste water. In the waste water there would often be dirt, rocks and plastic fibres. The debris would fall to the bottom of the sump and the water would be pumped out. In some of the sumps there were drain holes with a strainer over the top to prevent debris from coming out. The accident occurred when a worker entered a sump to unblock it. The worker was standing near the drain hole when the drain hole suddenly unblocked and his leg was sucked into the drain hole, dragging him under water. The water pressure was too strong and he could not free himself. The water was above his head as a result of his leg being sucked into the drain hole. The worker died as a result.
15. Judge Scotting held that to consider whether something was a reasonably practical measure to protect health and safety is an objective consideration. Regard must be had to the knowledge possessed by persons generally in the relevant field and should not be based on the actual knowledge of a specific defendant in the circumstances - at [184].
16. His Honour said that s 19 requires knowledge of the risks associated with the business of the employer. Knowledge of such risks requires foreseeability and it would not be practicable to take measures to protect employees from a risk that was not reasonably foreseeable - at [187]. It may not be reasonably practicable to guard against an event which could not have been reasonably foreseen due to the unforeseeable behaviour of a worker who does not follow instructions and procedure - at [193].

Consideration of Element 3

1. In order to find Element 3 established the court must be satisfied beyond reasonable doubt that the defendant failed to comply with its health and safety duty by failing to take the steps set out in pars 11 and/or 12 of the Amended Summons, and that the steps were reasonably practicable.
2. In relation to the pleaded risk, I have already indicated that I will separately consider the risk involved in the excavator working on the rocky uneven slope on the northern end of the quarry on the day of the accident, as opposed to excavators generally doing everyday tasks within the quarry.

Element 3 in respect of the operation of the excavator at the time of the roll-over

1. In relation to the operation of the excavator by Mr Messenger on the day of the accident, the likelihood of the risk occurring was extremely high. The excavator should not have been sitting across the slope. It should not have been operating with the boom fully extended with a large rock in the bucket. It should not have been operating by slewing the turntable, while the excavator was across a slope, with the boom fully extended. However, for reasons given below, I find that it was not reasonably foreseeable to the defendant that Mr Messenger would have operated the excavator in the fashion he did on the day of the accident.
2. So far as the degree of harm is concerned, the harm that might eventuate if the excavator rolled over when operated on the rocky slope, as happened on the day of the accident, was very significant.
3. As for the defendant's knowledge of the pleaded risk arising from the method of operation of the excavator on the day of the accident, I find that the defendant did not know and could not know that Mr Messenger was going to take the excavator down the slope at the northern end of the quarry and operate it in the fashion which he did. I make this finding because: 1. Mr Messenger was told by Mr Russell to build a bund across the "pad" area above the rocky slope, and then take the excavator down to the trench and continue to excavate it. 2. The toolbox talk minutes record the bunding task as being given by Mr Russell to Mr Messenger. 3. Mr Black corroborated Mr Russell's evidence that this was the job he allocated, in front of the other workers, at the toolbox talk. 4. Workers at the quarry, even those of the status of Mr Messenger, were expected to perform the tasks allocated to them, and not to perform any extra tasks unless, at the very least, they informed Mr Russell of their proposed task and obtained his agreement to it. 5. Mr Messenger was seen as an obedient employee - both in relation to following directions from his superiors and in relation to observing the safe working practices of the quarry. 6. To enter the rocky slope, Mr Messenger breached a cardinal rule in the quarry, which was that workers were not to cross a bund. 7. There was no particular need for this work to be done on the day, and certainly not in this fashion. 8. Having the excavator working across the slope, rather than facing up the slope, conflicted with the practice of using excavators in the quarry, and conflicted with the training which had been given to Mr Messenger. 9. Slewing the turntable with the boom extended and a weight in the bucket also conflicted with the practice in the quarry and the training which had been given to Mr Messenger. 10. Operating the excavator on unstable and rocky ground, let alone on a slope, conflicted with the practice in the quarry and the training which had been given to Mr Messenger. 11. Dropping rocks off the edge of the highwall conflicted with the practice in the quarry and the training which had been given to Mr Messenger. 12. Operating the excavator above the highwall, without the area below being bunded off to prevent others from going onto the bench, conflicted with the training given to Mr Messenger. 13. Finally, even being on the rocky slope, let alone operating an excavator there, meant that Mr Messenger had entered a no-go zone in the quarry. The reaction of Mr Russell to the excavator being on the rocky slope, as corroborated by Mr Black, was "What the fuck was he doing there?"
4. While a person conducting a business or undertaking must guard against the possibility that an employee may be careless or inadvertent in carrying out a task, there is a line to be drawn between such behaviour and the deliberate and unforeseeable flouting of rules in the workplace and the training given to employees. On all of the visits by inspectors to the quarry, and in the experience of all employees of the quarry who gave evidence, no-one had ever seen an excavator being operated: after driving across a bund; in a no-go zone; across a slope; on unstable ground; or with the boom fully extended near a highwall.
5. All of these matters lead me to conclude that the risk of death or serious injury from the excavator overturning on the day of the accident was not reasonably foreseeable. It follows that it was not reasonably practicable for the defendant to make provision against the happening of such event.

Element 3 in respect of the everyday operation of excavators

1. In relation to the everyday operation of excavators, all of the evidence in the case was that excavators in the quarry, apart from that operated by Mr Messenger on the day of the accident, were engaged in activities of digging or loading, only when operated on flat and stable ground. When moving within the quarry the excavators travelled up and down haul roads which were sloped, but did so only by going directly up or down the slope and not across it, keeping the boom and the bucket as close as possible to the ground. Any dangerous areas in the quarry were bunded off, and this included no-go zones, and the edges of benches and roads. All of the evidence in the case established that excavators operated in this fashion are particularly stable pieces of machinery. The likelihood of the risk of overturn when an excavator was operated in accordance with these precepts was non-existent. There was thus no need for the defendant to take additional steps to ensure safety within the meaning of the Act.

The Plant Charge

1. For these reasons I am not satisfied beyond a reasonable doubt that the defendant failed to ensure, so far as was reasonably practicable, the provision and maintenance of safe plant, and in particular failed to ensure that the excavator was fitted with a ROPS, as alleged in par 11 of the Amended Summons.

The Systems Charge

1. For the same reasons I am not satisfied beyond a reasonable doubt that the defendant failed to ensure, so far as was reasonably practicable, that a safe system of work was provided for the operation of the excavator, as alleged in par 12 of the Amended Summons.
2. Paragraph 12 of the Amended Summons sets out the particulars of the systems charge. Paragraph 12 is divided into three sub-paragraphs.
3. Paragraph 12(a) is an allegation that the defendant failed to "adequately risk assess the potential for the Excavator to overturn when carrying out Work in the Work Areas". Once again, it is necessary to separately consider the situation of the excavator working on the rocky unstable ground, as opposed to the excavator conducting everyday tasks such as digging and loading.
4. There was no Risk Assessment conducted of the potential for the excavator to overturn when working on the rocky unstable ground, where the accident occurred on 9 September 2014. This was because no-one knew, nor could they have foreseen, that Mr Messenger would have operated the excavator in that location, in the fashion which he did. I have accepted the evidence of Mr Russell, and other employees of the defendant, that none of them saw Mr Messenger operating the excavator on that day, and all of the evidence points to Mr Messenger having been instructed to do other tasks, and not being instructed to be on the rocky slope. This case would be very different if Mr Russell had instructed Mr Messenger to drive the excavator onto the rocky slope and start throwing rocks over the highwall with the boom extended. However, I have rejected the inference which the prosecutor asked the court to draw to that effect, arising from the evidence of Mr Gillespie. In the absence of any such evidence, I find that there was no breach by the defendant in failing to risk assess the potential for the excavator to overturn on the rocky slope, because the defendant did not know of that risk and could not have foreseen that risk.
5. So far as the excavator performing everyday tasks in the quarry, I find that there was an adequate Risk Assessment of those tasks, as part of the general running of the quarry. The risk of an excavator overturning, if operated on soft or boggy ground, or on a slope, was known not only to the senior employees of the defendant, but to each and every operator who gave evidence. All had been adequately trained in the risks. All observed the necessary safe operating procedure for using the excavator in the quarry, which involved carrying out an assessment of the ground before the machine was put into action. There did not have to be a written Risk Assessment created every time an excavator was to perform an everyday task such as digging or loading. The operator did have to look and assess the ground conditions before operating an excavator. The evidence shows that the employees of the defendant were trained to make such assessments, and that they did make them.
6. I am fortified in reaching that conclusion by the observations made from time to time by inspectors who visited the quarry. They never saw a problem with the way in which excavators at the quarry were operated. There was absolutely no evidence of any other event at the quarry involving an excavator which involved a risk of overturn.
7. Paragraph 12(b) alleges that the defendant failed to "develop, implement and enforce an adequate work procedure for operating the Excavator". Within par 12(b) it is alleged that: the defendant should have made an assessment to identify any potential for the excavator to overturn; it should have required the undertaking of planning and sequencing of work to eliminate or minimise the risk of overturning; it should have specified the measures that the operator was to adopt to eliminate or minimise the risk of the excavator overturning; and if the excavator was not fitted with a ROPS and there was potential for it to overturn, then work should not have been undertaken.
8. The evidence shows that the defendant did have adequate work procedures for assessing any potential for the excavator to overturn, requiring the work to be done in a fashion which eliminated the risk of the excavator overturning. Operators had been taught to adopt measures to eliminate the risk of the excavator overturning. Those measures were observed and enforced within the quarry.
9. Paragraph 12(c) alleged that the defendant failed to provide "adequate information, instruction and training to excavator operators with respect to the matters set out in 12(b)(i)-(iv) above".
10. I have already made findings of fact concerning the information, instruction and training given to excavator operators. There was ample evidence in the case that the training provided to excavator operators by external third parties was appropriate and adequate training. There was also evidence in the case that each of the ticketed excavator operators had observed and understood that training, and followed it in the operation of excavators in the quarry.
11. I have previously found that the way in which Mr Messenger was operating this excavator on the day was against all instruction and training with which he had been provided. Again, it was not foreseeable to the defendant that Mr Messenger would have acted in this fashion. I find that, in any event, adequate information, instruction and training had been provided to all excavator operators by the defendant and thus there was no failure to ensure a safe system of work in that respect.

Element 4 - Did the defendant's breach of duty expose Mr Messenger to a risk of death or serious injury?

1. Given my findings above on Element 3, that there was no breach of duty by the defendant, consideration of Element 4 really does not arise. However, I will set out my findings on causation.
2. The relevant question on causation is whether the act or omission of the defendant was a significant or substantial cause of the worker being exposed to the risk of injury: Bulga Underground Operations v Nash at [127].
3. The question is to be determined by the application of common sense to the facts, bearing in mind that the purpose of the inquiry is to attribute legal responsibility in a criminal matter: Royall.
4. Regard must be had to the scope and objects of the Act: Simpson Design & Associates Pty Ltd at [79]-[102]. The relevant question is not whether the particularised failures of the defendant were the cause of the injury to the worker, but rather whether there was a causal relationship between the act or omission and the risk to which the worker was exposed: Bulga Underground at [130].
5. For the reasons I have already expressed, my conclusion is that the defendant did not breach its duty by reference to the particulars of breach pleaded in pars 11 and 12 of the Amended Summons. I am also not satisfied beyond reasonable doubt that the prosecutor has proved Element 4.
6. The following submission appears in par 333 of the defendant's written submissions (MFI 62): "It is a tragedy that Mr Messenger lost his life. The Court has seen the effect it had on his step-father Mr Russell. No-one can explain why he did what he did. The only matter which is known about the tragedy is that it was done in direct contravention of the work procedures in place at the time; done in direct contravention of the direction given to Mr Messenger less than hour before; done by literally dismantling the safety barrier in place to stop people going into the dangerous area of the quarry; done without the authority to enter such an area; done in circumstances where no one had ever observed any individual simply removing bunds and barriers to enter such areas; and done by a person whose previous work record was excellent."
7. This submission is accepted.
8. The facts show that the cause of Mr Messenger being exposed to the risk was the unforeseeable actions of Mr Messenger himself. As previously found, the excavator should not have been: 1. driven across a bund; 2. operated in a no-go area; 3. operated on unstable or rocky ground; 4. operated while sitting across the slope; 5. operated with the boom fully extended with a large rock in the bucket; 6. operated by slewing the turntable, while the excavator was sitting across a slope, with the boom fully extended; 7. operated in a fashion contrary to the training and instruction given.

Conclusion and Orders

1. The prosecution has not proved all of the elements of the offence beyond reasonable doubt.
2. The matter will be adjourned to allow the prosecutor to consider its position in relation to any appeal pursuant to s 5AE of the Criminal Appeal Act 1912 (NSW).
3. My orders are: 1. The prosecution has not proved all of the elements of the offence beyond reasonable doubt. 2. Final orders will not be entered until the prosecution has had an opportunity to consider an application pursuant to s 5AE of the Criminal Appeal Act 1912 (NSW). 3. The matter will be listed on a date for entry of final orders or argument on the proposed questions of law to be stated to the Court of Criminal Appeal.

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: 08 November 2019