Regan v Bulga Underground Operations Pty Ltd [2012] NSWIRComm 19 | Case summary

Industrial Relations Commission (NSW)|2011-11-18|Before: Marks J, Mr P

Judgment 1These are defended proceedings in which the prosecutor seeks to have the defendant convicted of a breach of a provision of certain occupational health and safety legislation. The hearing commenced on 31 October 2011 and extended over many days, culminating in oral addresses by counsel on 5 March 2012, which supplemented extensive written submissions. On that occasion I reserved my decision and gave the prosecutor an opportunity of making further submissions consequent upon the predicted delivery of a decision of the High Court of Australia dealing with causation. By email communication to my associate on 15 March 2012, the prosecutor eschewed any submissions concerning causation but asked that I refer certain questions of law as formulated by him to a Full Bench of this Court under the provisions of s 5AE of the Criminal Appeal Act, which applies to these proceedings by reason of s 196 of the Industrial Relations Act 1996. 2I conducted a hearing on 22 March 2012 to consider the request of the prosecutor and to allow the defendant the opportunity to make submissions about it. At the hearing that day, I expressed concern that, of the three Questions formulated, I did not fully comprehend the first, and I had doubts whether they raised questions of law simpliciter and could be formulated in the manner sought without reference to a factual matrix. 3The defendant submitted that it would be inappropriate for the Court to refer the Questions as formulated by the prosecutor to a Full Bench because, inter alia, such referral should not, in the circumstances, be made until I had determined the relevant factual matters in the proceedings. 4In written submissions, the defendant said: [5]It is trite that questions of law under s 5AE are submitted to the Full Bench by the judge, not a party. Section 5AE is the modern statement of the old power of a court of trial to seek the opinion of a superior court for its assistance on an identified question of law arising in the proceedings. Once the superior court has provided its opinion, the court of trial determines the matter in accordance with that opinion (Young v Campbell (1948) 49 SR (NSW) 103 per Jordan CJ (Street & Maxwell JJ agreeing) at 104-105; Budget Nursery Pty Ltd v Commissioner of Taxation (Cth) (1989) 42 A Crim R 81 (NSW CCA) per Hunt J (Grove & Allen JJ agreeing) at 82; Frost v Amaca Pty Ltd (2004) 61 NSWLR 159 per Mason P (Beazley & Ipp JJA agreeing) at [19]; Wolf v Rockdale Beef Pty Ltd (2006) 155 IR 366 (FB) at [50]), if necessary by reconsidering its reasons (Director of Public Prosecutions v Cassell (1995) 80 A Crim R 160 (CCA) per Kirby P at 165, see also at 166). [6]Questions of law either stated or reserved should not be hypothetical. They must raise a point of law that arose in the case and has been determined by the trial judge (Environment Protection Authority v Sydney Water Corporation Ltd (1997) 98 A Crim R 481 per Gleeson CJ (Ireland & Bruce JJ agreeing) at 485; Director of Public Prosecutions (SA) v B (1998) 194 CLR 566 per Gaudron, Gummow & Hayne JJ at [11]-[12]; Director of Public Prosecutions v G (1999) 85 FCR 566; R v Nixon (2000) 159 FLR 296 (SASC-FC) at [1], [30], [63], [66], applying Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334). [7]Accordingly, special cases apart, questions cannot be formulated in abstract. Of necessity they are anchored in the relevant facts in the case. Accordingly, questions are submitted as part of a stated case which includes, amongst other things, a statement of the judge's relevant findings of fact (Glover v MacDougall [1976] 2 NSWLR 359 (Yeldham J) at 361; Environment Protection Authority v Ampol Ltd (1993) 81 LGERA 433 (CCA) per Mahoney JA at 436-437, Badgery-Parker J at 440; R v Madden (1995) 85 A Crim R 367 per Hunt CJ at CL (Allen & Dunsford JJ agreeing) at 370-371; Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW (2007) 165 IR 7 (CA) per Spigelman CJ at [8], Basten JA (Mason P agreeing) at [150]). Proper time to make this request is after delivery of reasons and before order [8]Each of the questions suggested by the Prosecutor necessarily depend upon the findings of fact to be made in the case. Those findings have yet to be made. ... [10]Because it is not possible to formulate any questions for submission to the Full Bench before a judgment is delivered, the obligation to submit them is not enlivened until such time as there is utility in considering a prosecutor's request. A request by a party under s 5AE should be determined with the desired questions properly formulated (EPA v LEC at [59]). Only then can both the Court and the requesting party's opponent know what the application truly is and whether the conditions for submission of questions set by s 5AE have been met. 5The reference in [10] to EPA v LEC is a reference to Environment Protection Authority v Land and Environment Court (NSW) and anor [2004] NSWCA 50. 6Section 5AE of the Criminal Appeal Act 1912 is in the following terms: 5AE Point of law stated during summary proceedings (1) At any time before the completion of proceedings before the Supreme Court in its summary jurisdiction, the Land and Environment Court in its summary jurisdiction, the District Court in its summary jurisdiction or a Court of Coal Mines Regulation in its summary jurisdiction, the judge hearing the proceedings may, or if requested by the Crown must, submit any question of law arising at or in reference to the proceedings to the Court of Criminal Appeal for determination. (2) The Court of Criminal Appeal may make any such order or give any such direction to the court concerned as it thinks fit. 7These provisions have been considered recently in the New South Wales Court of Appeal in EPA v LEC. The judgment of the Court was delivered by Tobias JA, Meagher and Santow JJA concurring. In discussing the provisions of s 5AE as they applied in the circumstances of those proceedings, Tobias JA said: [54] In my opinion, s 5AE(1) should not be so construed. The making of a request by the claimant that one or more questions of law be submitted is what enlivens the obligation of the judge hearing the proceedings to submit any question of law to the Court of Criminal Appeal for determination. The section does not in terms require that the request identify, or to indicate the nature of, any particular question of law; nor should such a requirement be inferred. [55] Obviously, once the request is made, there will be some delay before a case is stated on a particular question of law. The case will need to be drafted and settled by the judge (if necessary after hearing argument) who must be satisfied that it does in fact pose a question of law for the Court of Criminal Appeal's determination. This is in accordance with the practice of the Land Court as well as that in other jurisdictions. [56] Furthermore, in many cases it would be impracticable for the particular question of law to be identified at the time the request is made if only because the prosecution will require time to consider the judge's reasons in order to identify the question of law which has been decided against it and to prepare a draft stated case setting out the necessary factual context in which that question is to be determined: cf Glover v MacDougall (1976) 2 NSWLR 359 at 361; Environmental Protection Authority v Ampol Ltd (1993) 81 LGERA 433 at 437, 440. [57] In the present case it would have been absurd if, notwithstanding that the claimant had not had the opportunity of considering his Honour's published reasons, his Honour had responded on 9 September 2003 to a request by the claimant to state a case, by making formal orders dismissing the summons because the claimant had not then and there identified the question of law to be submitted. It would be wrong for a judge whether on the request of the defendant, or of his or her own motion, to frustrate the only right of the prosecution to test the judge's findings on questions of law where otherwise it was proposed to decide the case in favour of the defendant. No doubt this was why the primary judge differed the making of final orders when, on 9 September 2003, he adjourned the matter to enable the claimant to consider its position. He was clearly required to do so. [58] Again, questions of law which would otherwise arise in a particular case, may become academic if the facts are found by the trial judge against or in favour of one or other of the parties. This will not be known until the judge's factual findings are pronounced. Until then, there would be no utility in the prosecution requesting the judge to state a case on those questions. 8The tenor of the observations of Tobias JA supports the approach contended for by the defendant. Unless a question of law can be formulated without reference to any of the factual material in the proceedings, common sense dictates that the facts that are necessary to found the formulation of a question of law should first be determined by the trial judge. 9During the course of the hearing on 22 March 2012, Mr Buchanan SC, who appeared for the defendant, referred to the fact that a question of law should be formulated by way of a case stated. This submission, which accords with my understanding of the appropriate procedure, and which is certainly consistent with the approach taken by the New South Wales Court of Appeal in EPA v LEC at [55] seemed to come as some surprise to counsel for the prosecutor, Mr Skinner. Mr Skinner submitted at that hearing that appropriate extracts from the transcript and other material could be provided to the Full Bench to enable any outstanding question of fact to be understood. However, once there is any question of fact finding that needs to be determined by an Appeal Court, this will fall outside what is intended by s 5AE, namely the referral of a question of law simpliciter. 10By email communication with my associate on 30 March 2012, the prosecutor's solicitor forwarded a reformulation of the Questions that the prosecutor asked that I refer to a Full Bench. They are as follows: Q1. Is it correct in law for his Honour the trial judge to hold that the defendant has been charged by particular 3c in the Application for Order filed 18 August 2010 with an allegation that Gregory Thomas and Scott Redgrove agreed in advance of him doing so that Mr Thomas would lean down and attempt to hold up the coupling lug on the cassette upon which he was standing as Mr Redgrove pushed in the other cassette towards it. Q2. Is it correct in law for his Honour to hold that all other particulars of the charge that the defendant faces "hinge" upon particular 3c in the Application, read in that way, and that for the defendant to be found guilty of breaching subs 8(2) of the Occupational Health and Safety Act 2000 particular 3c, read in that way, must be proved beyond reasonable doubt. Q3. If the answer to Q1 or Q2 is yes, do sections 11 and 16(2) of the Criminal Procedure Act 1986 nonetheless require that his Honour proceed to hear and determine whether or not this defendant has breached subs 8(2) of the Occupational Health and Safety Act 2000 by its failures as pleaded to avoid the risk as pleaded, upon a consideration of all the evidence presented at trial. 11The prosecutor's solicitor asked that those Questions be referred to the Full Bench together with copies of the following material: 1.the Application for Order filed 16 August 2010; 2.the Affidavit in Support of the Application for Order affirmed by Mr Regan on 13 August 2010 and filed 16 August 2010; 3.the Order made by his Honour dated 17 August 2010; 4.Exhibit A in these proceedings, being copies of the pre-trial correspondence upon particulars between the parties, to wit: a.Sparke Helmore Lawyers letter to Crown Solicitor's Office dated 22 October 2010; b.Crown Solicitor's Office letter to Sparke Helmore Lawyers dated 12 November 2010; c.Sparke Helmore Lawyers letter to Crown Solicitor's Office dated 22 November 2010; d.Crown Solicitor's Office letter to Sparke Helmore Lawyers dated 2 December 2010; e.Crown Solicitor's Office letter to Sparke Helmore Lawyers dated 6 December 2010; f.Sparke Helmore Lawyers letter to Crown Solicitor's Office dated 30 May 2011; and g.Crown Solicitor's Office letter to Sparke Helmore Lawyers dated 15 June 2011; and 5.the Transcript of the proceedings on 5 March 2012. 12The difficulty I have with the Questions is that to varying degrees they all require some understanding of the factual matrix against which the prosecution has been brought. For example, in connection with Question 1, the Full Bench would need to understand what happened at the time that the particular incident occurred in order to comprehend the significance, or otherwise, of what is referred to as having been agreed, and the activity that is said to be the subject of that agreement. There seems to me to be no utility in dealing with any question of law that might arise in the absence of any finding of fact about whether there was any such agreement, the precise subject matter of that agreement and the significance or otherwise of any such facts in the determination of the proceedings. Once this assessment is applied to particular 3(c), which is the subject of Question 1, the same observation applies to the matter that is sought to be covered by Question 2. 13There are even more fundamental problems with the first two Questions as formulated by the prosecutor. As the defendant submitted, as at the date of their formulation I have not made any finding or determination that would constitute a holding of the kind referred to in Questions 1 and 2. That holding refers to the subject matter of the charge brought against the defendant. I do not understand how it can be said that I have so held. If the Questions are directed to what I might hold in connection with these matters, then they become an even more blatant example of questions that are hypothetical. Whatever meaning one gives to the Questions as framed, they must be characterised as hypothetical. This characterisation taints Question 3, which is predicated upon positive answers being given to Questions 1 and 2. 14Furthermore, the subject matter of Questions 1 and 2 is arguably only tangentially relevant to any critical issue in the proceedings. As the defendant submitted, what is relevant is a determination about whether the defendant failed to ensure that people other than its employees were exposed to risks to their health and safety in circumstances that would render the defendant culpable under the legislation, as charged. 15As to Question 3, as the defendant pointed out, the provisions of s 11 of the Criminal Procedure Act 1986 have never been raised by anyone in the proceedings. Furthermore, at this stage of the proceedings it cannot be said that any question has arisen as to whether or not either of these sections might apply to the proceedings. A consideration of the application of these sections is premature and the Question is therefore hypothetical. 16The defendant also objected to certain of the material being provided to a Full Bench with the referral of the Questions as formulated by the prosecutor. In view of the conclusion that I have reached, it is not necessary that I deal with this matter. 17In referring any matter to a Full Bench, I am conscious that I have to be satisfied that the Questions are questions of law simpliciter and that there is some utility in referring them to a Full Bench. In making these observations I am conscious of the mandatory nature of s 5AE; my reservations are expressed solely in connection with the appropriateness and utility of any referral of any question of law as currently framed at this stage of the proceedings, and in the absence of any findings of fact. As the New South Wales Court of Appeal said in EPA v LEC: Again, questions of law which would otherwise arise in a particular case, may become academic if the facts are found by the trial judge against or in favour of one or other of the parties. This will not be known until the judge's factual findings are pronounced. Until then, there would be no utility in the prosecution requesting the judge to stay the case on those questions. (At [58]) 18For the reasons that I have stated above, I conclude that it is inappropriate for me to accede to the prosecutor's request to refer the Questions as formulated to a Full Bench at this stage of the proceedings. They are hypothetical and in the absence of any findings, particularly findings of fact, there would be not utility in a Full Bench dealing with them. I make no observations at this stage about whether the Questions formulated by the prosecutor are questions of law simpliciter. I have determined that the appropriate course of action for me to take in the circumstances of these proceedings, and consistent with the submissions of the defendant, is for me to deliver reasons for judgment in the proceedings but refrain from making any orders for a short period to allow the prosecutor to consider whether he wishes to maintain, amend or withdraw his request for the submission of any questions of law. I shall proceed to do so and the material that follows constitutes my reasons for judgment. 19These proceedings are constituted by an application for order filed 16 August 2010. The prosecutor is Robert William Regan of the Department of Industry and Investment of New South Wales. The defendant, Bulga Underground Operations Pty Ltd, formerly known as Beltana Highwall Mining Pty Ltd, is charged with a breach of s 8(2) of the Occupational Health and Safety Act 2000 ("the Act"). 20Section 8(2) is in the following terms: 8 Duties of employers ... (2) Others at workplace An employer must, so far as is reasonably practicable, ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work. 21The charge is that on 21 August 2008 at its place of work at the Beltana No 1 mine near Singleton, a coal workplace, the defendant:

The incident on 21 August 2008 26The only persons who were present at the time that the incident occurred were Messrs Thomas, Redgrove and Hafey. They all gave evidence. Other evidence given in the proceedings is to the effect that, shortly after the incident, the immediate vicinity in which it occurred was secured and that, next morning, detailed inspections were undertaken by a number of persons, including representatives of the defendant and the prosecutor, when a series of photographs was taken. Some of those photographs became evidence in the proceedings. I am satisfied, on the basis of the evidence given, and without recounting it in detail, that what is depicted in the photographs accurately reveals the state of the equipment and the site of the incident as at the time that the incident occurred. There is not one shred of evidence or, indeed, any suggestion that the site including the equipment on it was tampered with or changed in any way between the time that the incident occurred and the time when the photographs were taken the next morning. 27There is also other evidence that assists in understanding how the incident occurred. The defendant arranged for models of the cassettes and the Juganaut to be prepared. Those models became evidence in the proceedings. During the course of the proceedings, evidence was given by a number of witnesses that demonstrated the coupling of the cassettes, both as to what actually occurred during the incident and reflecting the manner in which the coupling process was usually undertaken in the course of the defendant's operations. Photographs were taken of the position of the cassettes and the Juganaut vehicle, which also became evidence. In addition, a number of plans, some more formal than others, were tendered into evidence. At the request of the defendant, the Court conducted an inspection of similar equipment and the coupling process at a mine which was located nearby to the one at which the incident occurred, to assist in the understanding of the evidence given in these proceedings. 28On the day of the incident, Messrs Thomas and Redgrove were working as part of a team that had been allocated to perform certain work. They commenced work at about 3pm as part of the afternoon shift. They were to be assisted for a short time by Mr Hafey, who had worked the day shift and was to work overtime at the beginning of the afternoon shift in order to gain experience. At the commencement of the shift, their team was allocated a number of tasks to perform. Mr Thomas could not remember whether there was a list of tasks in writing; if there had been, he assumed it had been given to Mr Redgrove. Mr Thomas recollected that there probably would have been a pre-shift briefing about the work that was to be performed, but could not recollect any details. 29It is clear from the evidence in the proceedings that one of the tasks that this team was given was to complete the coupling of a cassette to two other cassettes, which had already been coupled together. For this purpose, Mr Redgove was to drive the Juganaut vehicle and Messrs Thomas and Hafey were to assist in the coupling. However, this was primarily to be done by Mr Thomas because of Mr Hafey's general inexperience. Mr Hafey was described generally in the proceedings as a "cleanskin", being a person who was not very experienced. Messrs Thomas and Hafey left the last task that they had completed and they walked between 200 to 300 metres to where the existing coupled cassettes were placed. When they arrived, Mr Redgrove had already used the Juganaut to pull the third cassette, the one that needed to be coupled, alongside the cassette to which it was to be attached. 30There is evidence that there was a discussion between Mr Redgrove and Mr Thomas about the work that they were to perform in the coupling exercise. Mr Redgrove said that he and Mr Thomas were talking about and discussing the work that had to be done. Mr Thomas said that he could not specifically remember the conversation with Mr Redgrove but agreed that "we would have talked about what we were going to do but I can't remember the conversation, anything like that." 31For the purpose of these reasons for judgment, and consistent with the evidence given in the proceedings, I shall described the cassettes already coupled as being cassettes 1 and 2 and the new cassette, to be joined to cassette 2, as cassette 3. 32The effect of the evidence given in the proceedings is that these cassettes, which are quite large and heavy, are constructed of metal and are in the form of sleds, in that they do not have wheels and are moved within two parallel metal rails for the purpose of the mining operations; hence the name "sled". They are about 9 metres long by 2.15 metres wide with a tare weight of about 4.7 tonnes. The evidence was that the coupling was to be effected on a road area, the surface of which was smooth. It was not a bitumen road in the sense encountered within the normal road transport system, but more in the nature of compacted earth mixed with sundry metals. 33It was the evidence of Mr Thomas in chief that after he and Mr Hafey arrived he stood on the end of cassette 2, close to the edge. Mr Hafey stood to the side to watch the coupling process. Mr Thomas said that he had not been involved in the coupling of cassettes before, he had never performed this task and he had received no instructions as to how it should be done. 34At the end of the cassette 2 on which Mr Thomas was standing was a coupling lug manufactured of metal. Essentially it consisted of metal jaws into which a metal tongue had been inserted and which was held in place by a pin. The metal tongue could swivel through each side of the jaws and there was a fair bit of play in it. The coupling lug with the tongue was resting downwards towards the ground. There is a hinge that allows it to move up and down. The tongue on the coupling lug inserts into an identical coupling lug on the other cassette to which it is to be joined, namely cassette 3. For this to be done, the coupling lug on cassette 3 has to be moved close enough to cassette 2 to allow a large metal pin to be inserted into a hole created by both of the jaws of the coupling lug and an elongated slot within the other end of the tongue. Because the pin is a little smaller than the holes in the jaws of the coupling lug, and because of the elongated slot in the tongue, there is a little room for movement so that the alignment does not have to be exact, and cassette 3 does not have to be lined up exactly so that it is in a precise straight line with cassette 2. 35Mr Thomas said, in his examination in chief, that the coupling lug with tongue attached on cassette 2 was laying down but the coupling lug on cassette 3 was "sitting up - and it looked like it was going to move in, so that's when it happened. I went over to try and pick it up so it'd slide in and there was - it just full of coal and mud and I just stepped off, overbalanced and stepped down and instead of - for some reason it just come forward and I wasn't quick enough to get out of the road." Mr Thomas sustained serious injuries to his right lower leg. 36In further elaboration of his evidence, Mr Thomas was asked in chief how he grasped the coupling lug to lift it up. He said that he was standing just behind the coupling; he squatted down and tried to grab it and lift it up. It was too heavy for him to remain standing on the cassette. He had used both hands to try to lift up the coupling lug when he overbalanced. 37Significantly, Mr Thomas, in his evidence in chief, said that he had no equipment with which to lift the coupling lug. There was no rope or other equipment like a block and tackle or a pole or lever. 38In elaboration of the information and instruction given to him before the incident, Mr Thomas said in chief that he had not been through any toolbox talks or received any other communication about how the task had to be done, he had not been involved in any written risk assessment about that task, nor had he been given any instructions other than the fact that the task had to be carried out. 39In cross-examination, Mr Thomas said that although he had never coupled cassettes before, he had worked on them, he had dragged them, he had loaded them, "I've done everything, unloaded them, but I've never coupled them before." 40During cross-examination, Mr Thomas was asked whether he had ever seen rope used to keep a coupling horizontal on other pieces of equipment similar to the cassettes on which he was working on the day of the incident. At first he said that he had only ever seen one tied up as depicted in a photograph taken after the incident. He was then asked to refer to a transcript of an interview conducted by the prosecutor on 26 September 2008. During the course of that interview, Mr Thomas said that he was shown a photograph of a coupling on the front of a cassette showing it being held up by a nylon rope. He agreed that this was a safe method of lifting it up because it did not involve anyone using their hands to do it. He said that "Different people do it different ways and that's, I have seen people ... .". Mr Thomas said that what he had told the prosecutor was referable to couplings used on other equipment, not the cassettes on which he was working on the day of the incident. Mr Thomas was asked whether he knew that that was a method that he could use on the day of the incident and he replied that he did. 41Mr Thomas also said that he had seen other coupling lugs being supported with blocks of timber under them to keep them horizontal and that these were similar couplings to those on which he was working on the day of the incident. 42Mr Thomas then gave this evidence in cross-examination: Q. And so as at 21 August you knew that a way of safely keeping couplings horizontal when they needed to be kept horizontal was by blocking them up with pieces of timber? A. Yes. Q. That was not at all uncommon, was it, on mines, both on the surface and underground? A. Yeah. Q. And the advantage of that, tell me if I am wrong, was that it meant that during the coupling process there was no need for a person to be in the no go zone between the two pieces of machinery that were being joined, is that right? A. Yes. Q. And you understood that on the 21 August 2008, didn't you? A. Yes. Q. And that's why on the evidence that you have given to the court you didn't stand in between the two cassettes when they were being aligned by Scott Redgrove on the 21 August? You stood on the deck of the stationary cassette? A. Yes. Q. That's what's you've told the court? A. Yes. Q. So there is no necessity at all is there to have a person in between the cassettes, the monorail service cassettes for the purpose of alignment or for the purpose of coupling is there? A. No. Q. If you needed to, thinking back to the time where you were involved in this task on the 21 August, if you had needed, if you had wanted to, sorry, support the coupling and the tongue on the stationary cassette where you were standing on the deck, you could have done that using a rope or chain couldn't you? A. Yes. Q. And you could have, you would have had to have got a rope or chain, wouldn't you? A. Yes. Q. And you know, you knew at the time that there were stores at the mine in containers? A. Yes. Q. And those stores were the sorts of places that you could go to in order to try and locate a chain with hooks on end of it for example or a piece of rope? A. Yep. Q. That could be used to support the coupling lug and tongue that was attached to the stationary cassette? A. Yes. 43Mr Thomas was then shown, in cross-examination, the photographs taken shortly after the incident. Depicted in the photographs on the stationary cassette on which he was standing is a chain lying on the floor of the cassette to which two hooks were attached. He said that he could not remember the chain being there. He was sure that the chain was not there because that was where he had been lying. 44Mr Thomas had previously given evidence about a procedure for coupling the cassettes that involved a two-stage process. The first stage involved the use of a Juganaut to push cassette 3 from the side so that it was in close alignment with cassette 2. That is, both cassettes were in the same line. The second stage involved the Juganaut proceeding to the rear of cassette 3 and pushing it forward slowly so that eventually the coupling process could be completed by the insertion of the pin through the coupling lug of cassette 3 and the elongated hole in the tongue attached to cassette 2. 45In cross-examination, Mr Thomas conceded that, at the time that he was standing on cassette 2 and Mr Redgrove was pushing cassette 3 toward cassette 2, he knew that Mr Redgrove was involved only in the first stage and that it was not intended that the final coupling would be undertaken then. 46It was the effect of Mr Thomas' evidence that as cassette 3 was being pushed towards cassette 2 he thought, on the spur of the moment, that final coupling could be accomplished during that first stage. That is why he decided to attempt to lift up the coupling lug attached to cassette 2, which caused him to overbalance. 47Mr Thomas gave the following evidence concerning his knowledge about the coupling process and what was involved immediately prior to the incident in the following terms: Q. Whilst that is happening, you have agreed, you understood at the time that no one should be in between the two cassettes, haven't you? A. Yes. Q. And so it is necessary so that the coupling can take place for the two lugs to be horizontal at the time that the third cassette is being nudged forward if the tongue is to get into the opposing coupling lug, isn't it? A. Yes. Q. So you needed a method like the method you told Inspector Freeman you had seen of holding a coupling lug up, of a rope or a chain attached on the one hand to the tongue of your coupling lug and on the other hand to some part of the frame of the cassette that you have told us you were standing on, didn't you? A. Yes. Q. And you knew that that was the sort of thing that you needed to do, isn't that fair? A. Yes. Q. But you didn't take any step, you have told us, to make sure that that could happen, is that right? A. That's right. Q. And was there any reason why you didn't take any step to make sure that that could happen, like getting a piece of rope or a chain? A. Because when he pushed it across the couplings were in line they looked like they were about to join so I lifted the damned thing up, and I couldn't do it, I stepped off. If it had aligned like you were just trying to show us, yes I probably would have got some timber and stacked underneath it, it would have been there, as was happening that is what was happening, it was going to line up, I tried to lift it up. 48In further elaboration, Mr Thomas said that after he made a judgment that it looked as though cassette 3 would be sufficiently aligned with cassette 2 to allow the coupling to be completed, a period of 3-4 seconds, "not long", elapsed between the time that he squatted down and reached out to try and lift up the coupling lug and the time when he realised that he was going to be hit. He confirmed that his decision to squat down and try to lift up the coupling lug and tongue was made "on the spur of the moment", was not the method that he had proposed to adopt and the incident occurred "entirely by accident". As far as he was concerned, he agreed that the method of work which he had anticipated using before making a spur of the moment decision was "entirely safe". 49In cross-examination, Mr Thomas also said: Q. Thinking of how the accident occurred, you told us that you were standing on the cassette, you saw the cassette coming in, you made a judgment in your head that it looked as if the protruding lug on the third cassette that was coming in would be able to be connected as it slid in to the coupling lug on your cassette? A. Yes. Q. And you, in a split second, squatted down and put your arms out and tried to lift the coupling lug with the tongue out? A. Yes. 50Mr Thomas denied that, at the time that the incident occurred, he had been standing on the ground straddling the coupling of cassette 2 because that would have been contrary to all of his training and knowledge about how the job should be done safely. 51In terms of his training, Mr Thomas said that he had been trained to be aware of pinch points, areas where persons may become hurt in between moving equipment and "no-go zones" areas where it was not safe to stand. Furthermore, he had been taught to perform an intuitive risk assessment for every task that he was to undertake as part of his job and he had been taught to make an appropriate assessment of the safe means of carrying out the coupling exercise. He further confirmed, during his cross-examination, that he was aware that a safe means of completing the task was to have either propped up the coupling affixed to cassette 2 with wood blocks to make it horizontal or to achieve the same result by use of a rope or chain. 52In his evidence in chief, Scott Gregory Redgrove confirmed that he was the driver of the Juganaut at the time of the incident. He said he was told by the undermanager of the afternoon shift, Brett Russell, what work he was to do on that shift, in company with Mr Thomas and, presumably, Mr Hafey. Having performed some work underground, they then went to the area where the cassettes were placed. Mr Redgrove had been advised that there were two additional cassettes to be added to the two cassettes that were already coupled. He had performed coupling work once before at the mine, about 12 months previously. It was his intention to push cassette 3, the front of which was approximately aligned with the rear of cassette 2, into a position where it was approximately in line with cassette 2. From there, he would take the Juganaut, move to the rear of cassette 3 and then push it further to complete the lining up process so that final coupling could take place. 53Mr Thomas agreed, in answer to a question put by Mr Skinner, counsel for the prosecutor, that there was "much discussion" between himself and Mr Redgrove as to how to do this job. It was "about just basic joining of them ... .". 54Once he had positioned the Juganaut ready to push cassette 3 toward cassette 2, to bring them into line, Mr Redgrove said that he waited for Messrs Thomas and Hafey to call him in. He could see Mr Thomas standing on cassette 2 behind the coupling. Mr Hafey was standing over to the side and behind Mr Thomas, but on the ground. Mr Redgrove then received signals from Mr Hafey both using his hand and nodding with the light on his helmet, indicating that he should commence pushing with the Juganaut. At that stage, Mr Redgrove said that he could see Mr Thomas' helmet, "He was sort of in a bent over position, I could see him nodding ... " and that is when he looked at Mr Hafey and was given the signal. He said that the only part of Mr Thomas that he could see was his helmet but could not see his face because it was inclined forward. Mr Redgrove said that he started to push whilst in first gear. He said, "They do take off without you having to rev so I don't think I gave it much of a rev and it just started going forward ... " in idling speed. He then said that he looked back to see how it was moving and at that point he heard Mr Thomas yell out and Mr Thomas was, obviously, at that stage trapped. At that time he was unable to see Mr Thomas, who was obscured by the bucket attached to the Juganaut. 55It was the evidence of Mr Redgrove that he had seen coupling processes on other equipment during his career as a miner. He understood that, before the final adjustment of the couplings was made, it was common practice for the coupling lugs to be held in a horizontal position by the use of ropes or, in the case of the stationary equipment, being packed with timber. He regarded the process as a relatively simple one. He regarded the manner in which it was intended to be undertaken on the day of the incident as being safe because there was never an intention that Mr Thomas would be positioned on the ground at any stage whilst cassette 3 was being moved towards cassette 2. I should add that, on the evidence, Mr Redgrove was an experienced and skilled miner, thoroughly familiar with the equipment that he was using and competent to undertake the coupling task that he was performing at the time of the incident. 56Evidence was given in the proceedings by Bradley John Hafey. His role at the time of the incident and his circumstances have already been referred to in the narration of the evidence to date. I do not find it necessary to discuss his evidence in any detail for the purpose of these reasons for judgment.

Conclusions on the evidence 57On the basis of the evidence given in the proceedings, I am satisfied that the following facts have been established beyond any reasonable doubt:

That at the time of the incident Messrs Redgrove, Thomas and Hafey had embarked on a course of action that involved a two-stage process, as was understood at the least by Messrs Redgrove and Thomas.
The first stage was to involve Mr Redgrove using the Juganaut to push cassette 3 towards an alignment with cassette 2.
During this stage: a) Cassette 3 was being moved slowly by Mr Redgrove, who was using the Juganaut as intended. There is no evidence that the cassette moved other than in a slow manner. There is evidence that it moved "forward" while being pushed sideways. b) Mr Thomas was standing on cassette 2 and was observing cassette 3 being pushed towards it. Cassette 2 was at all relevant times stable and stationary. There is no evidence that there was any risk of Mr Thomas falling off cassette 2 or otherwise being subject to any circumstances that would cause him to leave cassette 2 other than intentionally or inadvertently. c) Mr Redgrove could at all material times see the top of Mr Thomas' helmet whilst he remained standing on the cassette. d) It was the understanding both of Mr Thomas and Mr Redgrove that no attempt would be made by Mr Thomas to align the level of the tongue of cassette 2 so that it was on the same plane as the coupling lug on cassette 3. e) Mr Thomas would not, as he knew and as he had been generally trained and instructed, intentionally place himself within any area where he personally could come into contact with any part of cassette 3 as it was being moved towards cassette 2.
Whilst cassette 3 was being pushed towards cassette 2, Mr Thomas, on the spur of the moment and suddenly, squatted down on the edge of cassette 2 and endeavoured to lift up the tongue because he thought he might be able to move it into alignment with the coupling lug on cassette 3. This action on Mr Thomas' part was not part of the work method that he and Mr Redgrove had understood would be used. It was something that was unexpected by Mr Thomas on his own part and could not have been anticipated by Mr Redgrove. Mr Thomas was unable physically to lift the tongue, he overbalanced and his right leg came into contact with the ground and was crushed between the two cassettes. Because Mr Thomas knew that the tongue on cassette 2 had to be lifted up before it could fit into the coupling lug of cassette 3, it may be deduced that he was aware that the final coupling could never have been accomplished within the proposed first stage of the plan.
The second stage of the coupling process that both Mr Thomas and Mr Redgrove understood would be used for the coupling process would have commenced once the two cassettes had been aligned during the first stage. The Juganaut would have been repositioned behind cassette 3 and cassette 3 would have been pushed close enough to cassette 2 to allow the final coupling operation to have occurred. That also would have involved using some process to fix the tongue of cassette 2 in place so that it would slide into the coupling lug on cassette 3. That would have been accommodated by using a rope or chain or by blocking up the tongue with pieces of wood.
It was well understood by Mr Thomas and Mr Redgrove, as a result of their general training and instruction, that the area between the cassettes being coupled and in the close vicinity of the cassettes whilst they were being moved was a "no go zone", a prohibited area in which no person would place any part of himself or herself whilst any piece of equipment was being moved.

The defendant's contrary assertion as to what happened 58The defendant submitted that the Court should reject the account of Mr Thomas as to how the incident occurred, or decline to act on it, because it was not credible in all the circumstances. Indeed, this suggestion had specifically been put to Mr Thomas in cross-examination, but rejected by him. Having regard to the dimensions of the coupling lug and tongue on cassette 2, as disclosed in the evidence, if Mr Thomas had squatted down, leant forward and reached downwards to pick up the tongue, the top of his body would have been tilted forward and into a position in front of the lower part of his body. It was said: The only outcome from overbalancing forward from this position would have been that the whole body with his hands and head leading would have fallen forwards and downwards. The last part of the body to move forward would have been the legs and, rather then the foot leading, it would be the upper portion of the leg. This is in contradistinction to the evidence of Mr Thomas that when he overbalanced he actually stepped with his right foot off the cassette and his right leg became caught in the pinch point between the two cassettes. In defending his version about what happened, Mr Thomas said: "That's the way I remember it, yes", "Instead of falling on me face I put me leg out and it went off the edge into the gap" and "Must have been possible because that's what happened, I overbalanced, I put my leg out and it went over the edge of the bloody cassette and that's where it got caught. I'm not supposed to keep me feet there and fall on me face, no, I'm not going to do that." 59The evidence given by Mr Thomas is in clear and unequivocal terms. I do not understand him to have perfect recall about what happened at the time that the incident occurred. Common sense dictates that recollection may not necessarily be entirely accurate in circumstances where a person is involved in a serious accident which happens suddenly, is associated with trauma and, on the evidence, causes considerable pain. 60I appreciate that the defendant does not postulate any alternative hypothesis to explain how it is that Mr Thomas' right leg became caught in the pinch point between the two cassettes. It does not have to. However, I can only reject Mr Thomas' account if there is some good reason for doing so. The hypothesis that was put to him by the defendant would have resulted in Mr Thomas falling forwards onto the ground between the two cassettes. This certainly did not occur and the only injury was sustained to his right leg. No other alternative mechanism, which might explain how Mr Thomas' right leg came to be on the ground between the cassettes, has been made known to me. Furthermore, if I were to accept the defendant's position that it was physically impossible for the incident to have occurred in the manner contended for by Mr Thomas in his evidence, I would need to be satisfied, with the assistance of someone with appropriate expertise, that there was a good reason why I should reject Mr Thomas' account. Someone with appropriate expertise in the human anatomy and the mechanism of the hips and leg would arguably be a person with appropriate expertise in this area. 61In all the circumstances, I accept the evidence of Mr Thomas that the incident occurred in the way in which he has described, and that, in some way, he managed to avoid overbalancing so that the upper part of his body fell forwards and that he managed to stabilise himself by placing his right leg on the ground. I reject the defendant's submission accordingly.

Mr Thomas' training and experience 62In the course of giving evidence, Mr Thomas was taken through his training and experience in the coal mining industry commencing in about 2002. For the purpose of this evidence, he was taken to in excess of 1100 pages of documents, which evidenced training programs that he had undertaken and the contents of that training. 63I shall not traverse the details of this evidence and documentation, but I shall refer to some aspects of it that I consider relevant to the determination of these proceedings. I make the following observations concerning this material: a) Mr Thomas has undergone, in general terms, comprehensive training and instruction concerning a large range of activities associated with work that he performed in the mining industry, much of that training and instruction being repeated at regular intervals. b) He learned to operate long haul dump vehicles of the kind of which the Juganaut, which was being used at the time of the incident, was an example. c) There was constant and repetitive emphasis on the need for care to be taken to ensure his own safety and that of other persons who were working with him and in the vicinity of his workplace. d) Particular equipment, and especially long haul dump vehicles, could only be driven by persons who had received a ticket to do so after demonstrated competency in their safe and proper operation. The training, the emphasis on safety and the establishment of competencies in certain tasks and in the operation of certain equipment was repeated and applied to each of the collieries in which Mr Thomas worked from time to time. e) Part of the training and instruction given to Mr Thomas included the use of correct hand signals to be used in certain operations. These included: "demonstrate correct signal for raising load. demonstrate correct signal for holding load steady. demonstrate correct signal for lowering load." f) Included within the training and instruction was reinforcement of "the need for appropriate communication to be maintained with all personnel in the work area." g) There was emphasis on the need for constant vigilance to ensure that there was a safe work environment and to identify hazards in circumstances that may affect the safety of other persons. h) There was continual assessment of competencies and participation in the conduct of a risk assessment to make sure that the each particular work situation was safe. i) On 27 January 2006, Mr Thomas completed an induction assessment, conducted by United Collieries. He was asked: "What three hazard management tools are available from United Staff to assist contractors manage safety?" He replied:

JSA
Safe working procedures
Proactive safety. In oral evidence, Mr Thomas explained that JSA meant "Job Safety Analysis". He said that he was "virtually trained" to evaluate each task before he started a new job. It consisted of undertaking his own personal risk assessment. The "safe working procedures" was a reference to documents that were supplied by mine management that set out the way in which a job was to be carried out safely. The reference to "proactive safety" was a reference to "safety amongst the crew, make sure you keep yourself safe and your crew who you work with." Mr Thomas, in elaboration, said that the risk assessment that he undertook was "automatic", "it just happens". j) He had been trained in working within a safe work zone, being a place where he could stand without risk of injury, even following an unexpected movement. He referred specifically to training about this in January 2006 but said that he carried this training with him throughout his career. k) In February 2006, Mr Thomas undertook reaccreditation conducted by the New South Wales Coal Mines Rescue organisation ("Coal Mines Rescue"). He was exposed to four methods that would assist him in recognising and overcoming "unresolved hazards". The first was referred to as "Take Two". It consisted of firstly "Stop" and secondly "Think and Plan" as a two stage process and these were to apply continuously to every job undertaken by an individual. The second method was described as "Task Analysis" and consisted of documentation of the "Take Two" process, which was to be applied to "high risk and/or non-routine and/or complicated tasks" involving teamwork. The third method, called "risk assessment", required a "formal comprehensive documented process" created by the members of the workforce carrying out the work. The fourth was "Peer on Peer Observations". In oral evidence, Mr Thomas agreed that as at February 2006, at the latest, he had "the skills ... to analyse a task and to determine what can go wrong here, what could possibly cause injury, how we're going to do it, what could cause injury if we do it that way, how can we prevent injury from occurring, what controls can we apply ... .". Furthermore, Mr Thomas agreed that he carried that particular skill with him throughout his career as a coalminer. I would add that the reaccreditation process required Mr Thomas to complete a written test in which he demonstrated his knowledge of all of the matters covered, including, particularly, the safety matters to which I have referred. Mr Thomas undertook further accreditation with Coal Mines Rescue in February 2007. l) In other training and instruction given to him, Mr Thomas was introduced to a concept entitled "SLAM". This also involved a procedure for creating awareness of and dealing with work hazards. SLAM is an acronym for "Stop, Look, Assess, Manage". Mr Thomas said that this was another method of expressing the way in which he should approach the question of safety in his work environment. 64The above matters are set out by way of summary only. I should emphasise that the training and instruction which Mr Thomas underwent during his career in the coal industry, and up to the time of the incident, was continuous and covered a great many activities involving exposure to particular processes such as long wall mining and the use of a variety of machinery and equipment. In particular, Mr Thomas was familiar with and had operated long haul dump vehicles of the kind of which the Juganaut is an example. He was thoroughly and comprehensively trained in, and understood, the need for safe work zones and to observe them, and the instinctive need to evaluate each task that he was undertaking to ensure that he could perform it safely and to remove or deal with any risk to his safety and that of persons who were working around him. Specifically, also, Mr Thomas agreed that at all times he needed to be careful, when being involved in moving machinery and equipment, of the need to avoid "pinch points", being areas where a person might become injured. 65The last documented comprehensive instruction given to Mr Thomas before the incident was a safety communication issued on 12 July 2008 by his employer, UGM Engineers, which was addressed in general terms to all UGM staff. The letter attached a "repeat incident alert" which referred to two "preventable" incidents involving the interaction of people and machinery. Persons who received that letter were asked to be able to identify and communicate "safe zones, pinch points and isolation for all equipment."

Mr Redgrove's training and experience 66During the course of his evidence, Mr Redgrove was taken through his training and experience in the coalmining industry commencing in about 2004. He was taken to, or perused, in excess of 500 pages of documents that evidenced training programs that he had undertaken and the contents of that training. 67Mr Redgrove had received training in the operation of the Juganaut machine and similar long haul dump vehicles. He had had extensive experience in using these vehicles. 68Mr Redgrove's training and instruction extended to a number of safety matters. That training and instruction was repeated and reinforced during the course of his work, which extended over a number of coalmines, including the mine at which this incident occurred. He was aware of risks to the safety of people coming into contact with machinery generally, including pinch points. He agreed that a fundamental part of his training and instruction extended to concerns for the safe operation of coalmines generally and that he and others were taught to conduct both informal and formal risk assessments in connection with the work that was required to be undertaken. He agreed that, as at the date of the incident, he was very experienced ... in analysing what was required in a job, and working out well what are the risks that can occur in this job, even if you might not say it out loud to yourself, you intuitively did this for the work that you did ... . In particular, Mr Redgrove had been taught about no go zones and that instruction and training had been reinforced from time to time. Mr Redgrove said that at the time of the incident he was fully aware that the area on the ground between the two cassettes was a no go zone.

The significance of the charge as particularised 69It is a trite observation that the particularisation of the charge brought against a defendant is a fundamental process in the administration of the criminal law. See, for example, the judgments of Dixon J and Evatt J in the High Court of Australia in Johnson v Miller (1937) 59 CLR 467 at 489 and 497-8 respectively. The prosecutor is required to establish an offence whether at common law or statutory as particularised. Accordingly, the prosecutor in these proceedings must establish a breach by the defendant in the manner particularised as set out in the application for order. It is not necessary that the prosecutor establish each and every particular, but at the least one such particular. 70By reason of the provisions of the Act, the statement of the offence levelled against the defendant must identify the act or omission that is said to constitute the contravention. So much is clear from the recent judgment of the High Court of Australia in Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531. That decision discussed the provisions of the 1983 Act, the predecessor to the Act. Nevertheless, although the section numbers have changed, the substance of the observations of the Court applies with equal force to the provisions of the Act. At [14], [15] and [17], the plurality said: [14] A statement of an offence must identify the act or omission said to constitute a contravention of s 15 or s 16. It may be expected that in many instances the specification of the measure which should have been or should be taken will itself identify the risk which is being addressed. The identification of a risk to the health, safety and welfare of employees and other persons in the workplace is a necessary step by an employer in discharging the employer's obligations. And the identification of a risk which has not been addressed by appropriate measures must be undertaken by an inspector authorised to bring prosecutions under the Act[14]. But it is the measures which assume importance to any charges brought. Sections 15 and 16 are contravened where there has been a failure, on the part of the employer, to take particular measures to prevent an identifiable risk eventuating. That is the relevant act or omission which gives rise to the offence. [15] The necessity for a statement of offence to identify the act or omission of the employer said to constitute a contravention of s 15 or s 16 is even more apparent when regard is had to the defences which were available to employers in proceedings for offences against the provisions. Section 53 provided: It shall be a defence to any proceedings against a person for an offence against this Act or the regulations for the person to prove that: (a) it was not reasonably practicable for the person to comply with the provision of this Act or the regulations the breach of which constituted the offence, or (b) the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision. ... [17] Section 53(a), in the context of proceedings for offences against ss 15 and 16, referred to the situation where it is not reasonably practicable for an employer to comply "with the provision of this Act". It is not to be understood as requiring an employer to negative the general provisions of ss 15 and 16 and to establish that every possible risk was obviated. It requires that regard be had to the breach of the provision which it is alleged constituted the offences. A breach or contravention of s 15 or s 16 is the measure not taken, the act or omission of the employer. 71For completeness, I also refer to [30] and [34] of the plurality: [30] No application was made to the Court of Appeal for an order in the nature of certiorari quashing the orders made by the Industrial Court that required Mr Kirk and the Kirk company to appear to answer the offences charged. Those orders of the Industrial Court were expressed as being made pursuant to s 4(1) of the Summary Jurisdiction Act as applied by s 168 of the IR Act. Section 4(1) of the Summary Jurisdiction Act permitted the making of an order "[u]pon an application being made ... in accordance with the rules" and the relevant rules required that the nature of the offence be stated. Section 6(1) of the Summary Jurisdiction Act provided, in effect, that no objection was to be taken or allowed to any order made under s 4 by reason of any alleged defect in it in substance or in form. Because no application was made to quash the orders requiring appearance to answer the charges, it is neither necessary nor appropriate to examine whether those orders were made upon an application made "in accordance with the rules", or to consider whether or how s 6 of the Summary Jurisdiction Act might affect the availability of an order in the nature of certiorari. However, it may be said that the matter should not have proceeded without further particularisation of the acts and omissions said to found the charges. Without that particularisation, the Industrial Court would be placed in the position to which Evatt J referred in Johnson v Miller where it would act as "an administrative commission of inquiry" rather than undertake a judicial function. Proceeding without further particularisation of the acts and omissions said to found the charges reflected views as to the nature and extent of the duty cast upon an employer by ss 15 and 16 and the limited operation to be given to the s 53 defences. ... [34] Walton J referred to earlier case law that the duty imposed upon an employer "is to be construed as meaning to guarantee, secure or make certain" and that the duty is directed at obviating "risks" to safety at the workplace. References to guarantees, and emphasis upon general classes of risks which are to be eliminated, tend to distract attention from the requirements of an offence against ss 15 and 16. The approach taken by the Industrial Court fails to distinguish between the content of the employer's duty, which is generally stated, and the fact of a contravention in a particular case. It is that fact, the act or omission of the employer, which constitutes the offence. Of course it is necessary for an employer to identify risks present in the workplace and to address them, in order to fulfil the obligations imposed by ss 15 and 16. It is also necessary for the prosecutor to identify the measures which should have been taken. If a risk was or is present, the question is - what action on the part of the employer was or is required to address it? The answer to that question is the matter properly the subject of the charge. 72Accordingly, the prosecutor is required to establish to the requisite standard of proof that the defendant breached the Act in the manner particularised. In doing so, it is also necessary for the prosecutor to establish that the failure to ensure the risk to the health or safety of Mr Thomas arose from the conduct of the defendant's undertaking and that there was a causal nexus between that risk to health and safety and some conduct, whether by way of act or omission, on the part of the defendant. The defendant's submissions were in accordance with this general approach. 73However, in submissions in reply the prosecutor eschewed that this was the proper approach to be adopted in considering these proceedings. Counsel for the prosecutor said: It is well settled, however, that it is erroneous to concentrate the causation analysis upon a determination of the causes of the accident. The submission, after citing a number of decided cases in this Court, then adopted a statement that the legislation is directed to obviating actual risks to safety in the workplace even absent any actual incident causing injury either by eliminating the risk or by protecting employees from the dangers presented by the risk. The submission went on: The question is not whether the defendant should be liable for an accident immediately caused by the possibly unforeseen actions of Mr Thomas, the question is whether the defendant should be liable for having caused Mr Thomas to be in that position in the first place, that is working in an inadequate system as pleaded whilst inadequately informed, instructed, trained and supervised as pleaded. 74The difficulty that I have with this submission of the prosecutor is that it conflates the purpose of the legislation, as an approach to its construction, with the ultimate matter for determination, namely whether or not the prosecutor has established the charge against the defendant as particularised. 75I am not sure what is intended by the prosecutor's submissions in referring to the defendant having placed Mr Thomas in a position "in the first place", namely working "in an inadequate system as pleaded whilst inadequately informed, instructed, trained and supervised as pleaded." This assertion deflects attention away from the real issue that needs to be considered in determining these proceedings, which is the alleged breach as particularised. This requires a consideration of the particular task that Mr Thomas was performing at the time that he was put at risk of being crushed. That consideration must take into account all of the relevant circumstances. This will include the conduct and actions of Mr Thomas at the time that the risk was created, namely at the time that he determined unexpectedly and on the spur of the moment to squat down and attempt to lift up the coupling lug. It would be erroneous to consider the circumstances that applied to Mr Thomas prior to him commencing to act in that manner. To do so would ignore the clear thrust of the risk as identified in the particulars and the particulars of the breach, which are set out, and which I shall shortly discuss in some detail. If I were to adopt any other approach I would, as submitted by the defendant, fall into error because such an approach would clearly be inconsistent with that formulated by the High Court of Australia in Kirk.

The charge as particularised 76I have previously set out the charge and the manner in which it is particularised. The risk identified in the particulars is that of a risk of injury to Mr Thomas of being crushed between the two cassettes. 77Particular (2) asserts that the system of work being used by Messrs Thomas, Redgrove and Hafey was unsafe. That system is described in particular (3). Particular (4) again refers to that system of work and asserts the manner in which it is alleged to have been unsafe. 78Particular (5) alleges a failure to provide information, instruction, training and supervision in the manner set out in subparagraphs (a), (b) and (c). Subparagraph (a) refers to "the job". Subparagraph (b) refers to the "system" adopted by the three men and subparagraph (c) refers to the requirement of a no go area whilst the cassettes were being moved into position. Each of the these subparagraphs, and particular (5) as a whole, seems to me to refer to the methodology, that is the system of work, used by the three men at the time of the incident and to assert that there were failures on the part of the defendant by the failure to provide these processes which, presumably, would have resulted in them adopting a different way of doing the work. Accordingly, it seems to me that all of these matters refer back to the actual system of work that was allegedly adopted by the men as particularised in particular (3). 79Particular (6) refers to the system of work actually adopted by the men, which must be a reference back to the system as described in particular (3). It is complementary to particular (4). Although there is an initial reference to "coupling", the particular concludes by referring to the "final closure of the coupling lugs." This final coupling is what is intended by particular (3)(c), which speaks of the task of "manually joining" the coupling lugs together once they were aligned. 80Particular (7) refers to information, instruction and training and would appear to be complementary to particular (5). That is, particular (5) asserts the failure and particular (7) asserts, as is apparent from the subheading immediately prior to particular (6), what the defendant should have done by way of information, instruction and training. Again, I read particular (7) as being directed to a means of overcoming the alleged deficiencies in the system of work described in particular (3). Particular (7) contains a reference to "the particular task" that was being carried out on that occasion. To read particular (7) as referring to any system of work other than that which was alleged to have been used on this particular occasion and as contained within particular (3) would involve the defendant and the Court in some degree of uncertainty and speculation in comprehending precisely what was intended by particular (7). 81I adopt the same approach to the construction of particular (8) that I have referred to in relation to particular (7). Particular (8) complements particular (5)(b) in that it is directed to supervision. The reference to "the risk" in the context of "an inadequate and dangerous system" must be a reference back to the system described in particular (3). 82Accordingly, I approach the charge brought against the defendant, as informed by the particulars provided. That is, one that is predicated upon a system of work alleged to have been used by the three persons involved, as described in particular (3).

Some general observations 83The obligation imposed on employers and others under the Act has been variously described as absolute and strict. The former, since the decision of the High Court of Australia in Kirk, seems no longer to be favoured and it might be said that the latter is now the prevailing characterisation of the obligations. Whatever the approach, there can be no doubt that the intention and purpose of the Act is to impose a very high standard indeed on those bound by it to achieve the highest possible standard of care and to create a working environment to the extent possible free or risks to the health, safety and welfare of persons performing work. The Act specifically allows a defendant to escape culpability in circumstances where a defence under s 28 applies. The offence must be considered in its totality by reference to the available defences as established by the High Court in Kirk. "The OH&S Act delimits the obligations of employers by the terms of the defences provided in s 53." (At [18]. Accordingly, the totality of the offence with which the defendant is charged includes a consideration of whether or not the commission of the offence was due to causes over which the defendant had no control and against the happening of which it was impracticable for it to make provision as described in s 28(b) of the Act, albeit that this is a matter that the defendant is required to establish on the balance of probabilities. 84There is, in addition, one other element that a prosecutor needs to establish before a defendant can be found guilty of an offence under the Act. This element is clearly established in the principles developed by this Court, both at appellate and single judge level. Namely, there must be a causal relationship between the conduct of the defendant, whether by way of act or omission, and the risk to health, safety or welfare of a person protected by the legislation. 85In essence, the injuries sustained by Mr Thomas and the risk to his health and safety that was created by the incident that is at the heart of these proceedings, occurred as a result of a spontaneous, unexpected and spur of the moment activity undertaken by him, which was no part of the way in which both he and Mr Redgrove understood that the work was to be carried out. In these circumstances, can it be said that the defendant did something that it should not have done or failed to do something that it should have done, which caused or contributed to Mr Thomas acting in this way? 86The prosecutor submitted that, firstly, Mr Thomas should have been shown what to do and, secondly, he should have been instructed and trained to carry out the particular manoeuvre. Thirdly, it was said that he should have been supervised. I shall consider these matters in greater detail later in these reasons for judgment. It is not sufficient for the prosecutor to state these matters baldly. They need to be established by the evidence given in the proceedings. In summary, I have concluded, for reasons that I shall later state, that the prosecutor has not established that there was any act or omission on the part of the defendant in terms of demonstrating to Mr Thomas how the work was to be performed. This is because he understood that it was to be performed in a manner that was, in all the circumstances, appropriate. In these circumstances, the prosecutor has not demonstrated any act or omission on the part of the defendant by way of instruction and training because, again, Messrs Redgrove and Thomas had contemplated the work would be carried out in a perfectly orthodox manner. Supervision would not have assisted because the incident happened very quickly and there is no evidence that a supervisor nearby would have been able to have precluded Mr Thomas from doing what he did. 87A consideration of the instruction and training and, to a limited extent, supervision involves a consideration of a subsidiary matter. Given the fact that an employee such as Mr Thomas is experienced in the work that is performed in a coalmine such as the one operated by the defendant and, on the evidence, was comprehensively and continually trained to be aware of the safety of himself and of others, what more should the defendant have done, or what did it fail to do to have precluded Mr Thomas from acting in an unintended and unexpected manner on the spur of the moment? What he did may be characterised as a spontaneous error of judgment, as he conceded. As a hypothetical juryman, I am able to take notice of the fact that sometimes human beings act in this way. Many motor accidents are caused by spontaneous errors of judgment. An error of judgment is, by definition, conduct that is inconsistent with what the exercise of good judgment would have produced. I do not know what can or should be done to avoid persons such as Mr Thomas acting in this way. 88The prosecutor submitted that, in some way, I should conclude that Mr Thomas did what he did because he had not been properly instructed or trained (as well as supervised). Perhaps if he had received instruction or training immediately before undertaking the task, it would have been fresh in his mind. However, arguably the instruction or training might need to have extended to Mr Thomas acting in a manner inconsistent with what had been understood was to be the method of operation and doing so unexpectedly and on the spur of the moment. However, I do not know whether such instruction or training would have had that result; it seems to me that this is more properly the subject of evidence from someone with appropriate expertise in the area such as a neuroscientist, psychologist or psychiatrist. I would regard any assessment that I would make about this as involving a degree of speculation and thus an inappropriate consideration upon which to determine these proceedings. 89There is one other element that is arguably relevant here. Even in the context of the very high standard that is created by the Act, the Act nevertheless needs to be administered and applied having regard to matters of practicality and common sense. 90In R v Chargot Limited (t/a Contract Services) and ors [2008] UKHL 73, Lord Hope of Craighead, delivering the principal speech in the House of Lords, speaking admittedly about a provision of a different kind in the equivalent English legislation, said: The first point to be made is that when the legislation refers to risks it is not contemplating risks that are trivial or fanciful. It is not its purpose to impose burdens on employers that are wholly unreasonable. Its aim is to spell out the basic duty of the employer to create a safe working environment. This is intended to bring about practical benefits, bearing in mind that this is an all-embracing responsibility extending to all workpeople and all working circumstances: Robens report, para 130. The framework which the statute creates is intended to be a constructive one, not excessively burdensome. (At [27]) 91The obligations imposed upon the defendant with respect to the occupational health and safety of Mr Thomas must also be seen in the context that he was skilled and experienced, albeit that he had never personally attempted the particular work of coupling previously. However, the obligations imposed on the defendant under the Act need to be determined having regard to all of the circumstances that applied. These include the fact that Mr Thomas was a skilled workman and had some experience working in coalmines. This consideration calls into mind the oft quoted extract from the judgment of Viscount Simonds in the House of Lords in Smith v Austin Lifts Ltd (1959) 1 All ER 81; (1959) 1 WLR 100. His Lordship said, albeit in discussing the common law duty of care owed by an employer to a skilled workman, that: there is a sphere in which it is reasonable to leave to a skilled workman the decision whether the difficulty that he encounters is one in which he needs help. I deprecate any tendency to treat the relation of employer and skilled workman as equivalent to that of a nurse and imbecile child. (WLR at 105).

The charge as particularised and the evidence 92The analysis of the evidence in the context of the charge as particularised that follows must be seen against the content of particular (1) which describes the risk. The risk is that of Mr Thomas being crushed between the two cassettes whilst he and Messrs Redgrove and Hafey were engaged "in the task of coupling them together." 93As I have already pointed out, the remaining particulars relate to and focus attention on the system of work that is described in particular (3). The evidence that I have earlier described enables me to conclude that the prosecutor has established, to the requisite degree of proof, that particulars (3)(a), (b) and (d) have been established. 94However, the defendant asserts that particular (3)(b) is irrelevant, for reasons that I shall discuss later. 95The provisions of particular (3)(c) are important for the determination of these proceedings. The particular asserts that as part of the task of manually joining the coupling lugs after alignment, which Mr Thomas was to undertake, "he was to hold up the coupling lug on the cassette/sled into which the Juganaut was pushing the other cassette/sled." For this purpose, Mr Thomas stood on cassette 2 as cassette 3 was being pushed towards it. 96I have already discussed the evidence in the proceedings, and in particular the evidence concerning the understanding that both Mr Thomas and Mr Redgrove had about what was to occur at the time that the incident happened. Particular (3)(c), in referring to the part of the task that Mr Thomas was undertaking, asserts that Mr Thomas was to hold up the coupling lug. This must be a reference to Mr Thomas himself personally and physically holding up the coupling lug, which he was endeavouring to do at the time that the incident occurred. However, it was no part of the plan, as he understood it and as Mr Redgrove understood it, that at the time that the incident occurred Mr Thomas was to personally and physically hold up the coupling lug to facilitate final closure. In making this observation, I read particular (3)(c) as referring to final closure, as was asserted by the defendant and conceded by the prosecutor. In contradistinction to the allegation contained in particular (3)(c), at the time of the incident Messrs Redgrove and Thomas were engaged in what was anticipated to be the first stage of the process only. There was no need for the coupling lug to be held up during that process, there was certainly no need for it to be physically lifted up by Mr Thomas and when the process started neither Mr Redgrove nor Mr Thomas anticipated that Mr Thomas would attempt to perform this movement. Accordingly, the prosecutor has failed to prove that the system of work used by Messrs Thomas and Redgrove was that described in the second sentence of particular (3)(c). In the same way, the prosecutor has failed to establish that Mr Thomas stood on cassette 2 as the cassettes were coming together for the purpose of physically lifting up the coupling lug to achieve final closure. That was not to be achieved until stage two. 97As I read the particulars of the charge, they are all predicated on the basis of the system of work that was alleged to have been adopted by Messrs Thomas, Redgrove and Hafey, as described in particular (3). The prosecutor has failed to establish, to the requisite proof, that the system of work alleged in particular (3) was that actually intended to be used by these persons and, accordingly, it may be concluded that the prosecutor has failed to make out his case. 98Counsel for the prosecutor accused the defendant of "rewriting" the prosecution pleadings, "dealing with the artificially created results piecemeal" and claimed that this approach "make no sense in logic or upon the application of ordinary English usage ...". 99In his principal submissions, the prosecutor focussed attention on the fact that what was undertaken by Messrs Redgrove, Thomas and Hafey was inherently unsafe, particularly as Mr Thomas was placed in an unsafe situation by standing on cassette 2 as cassette 3 was being pushed towards it. In oral submissions, made on 5 March 2012, Mr Skinner, counsel for the prosecutor, conceded that Mr Thomas' action in suddenly moving forward, squatting down, leaning forward and attempting to lift up the coupling lug was something that he undertook spontaneously and on the spur of the moment. However, in written submissions, counsel for the prosecutor said: By virtue of the way that the couplings on each cassette were positioned, it is submitted that there was every likelihood that this diligent but uninformed worker in that position would spontaneously attempt to align his coupling with the other as the cassettes seemed to be coming together perfectly. Thomas was only "trying to get the job done". (This was a reference to Mr Thomas' explanation as to why he behaved in that way at the time of the incident.) 100In making this submission, the prosecutor emphasised that Mr Thomas had received no particular instruction or training in carrying out the task that he was performing at the time of the incident. This submission was repeated by Mr Skinner in dealing with the defendant's argument concerning the proper construction and understanding of particular (3)(c). However, this submission does not deal with the construction and meaning of particular (3)(c) as asserted by the defendant and which I have accepted as being correct. Once the prosecutor has failed to establish a matter which is as significant as the system of work that it alleged was undertaken by these three men, any allegation of a breach of s 8(2) of the Act must be particularised in some other way, presumably by reference to the system of work actually used by these men as found on the evidence. The position taken by the defendant in construing the provisions of particular (3)(c) could not have come as a surprise to the prosecutor, or at least counsel for the prosecutor. This position was made abundantly clear by senior counsel for the defendant in the manner in which he undertook the cross-examination of Messrs Thomas, Redgrove and Hafey, which occurred at a very early stage of the proceedings. The defendant's position was repeated in comprehensive written submissions filed on 21 February 2012. The prosecutor had an opportunity to reply to those submissions in further written submissions filed 28 February 2012. The matter was debated at length in the course of oral submissions on 5 March 2012. On that occasion, I specifically asked Mr Skinner whether the prosecutor wished to amend the particulars of the charge. The Court was told that the prosecutor did not wish to amend the particulars in any way. 101Mr Skinner submitted that in any event the defendant was precluded from relying on what was described as "an overly legalistic approach" to the particulars by reason of the provisions of s 16(2) of the Criminal Procedure Act, and in particular s 16(2)(b). Section 16 of that Act is in the following terms: 16 Certain defects do not affect indictment (1) An indictment is not bad, insufficient, void, erroneous or defective on any of the following grounds: (a) for the improper insertion or omission of the words "as appears by the record", "with force and arms", "against the peace", "against the form of the statute" or "feloniously", (b) for want of an averment of any matter unnecessary to be proved or necessarily implied, (c) for want of a proper or perfect venue or a proper or formal conclusion, (d) for want of any additional accused person or for any imperfection relating to any additional accused person, (e) for want of any statement of the value or price of any matter or thing, or the amount of damage or injury, if such value, price or amount is not of the essence of the offence, (f) for designating any person by the name of his or her office, or other descriptive appellation, instead of by his or her proper name, (g) except where time is an essential ingredient, for omitting to state the time at which an offence was committed, for stating the time wrongly or for stating the time imperfectly, (h) for stating an offence to have been committed on a day subsequent to the finding of the indictment, on an impossible day or on a day that never happened, (i) if the indictment was signed by an Australian legal practitioner who has been instructed to prosecute the proceedings to which the indictment relates on behalf of the Director of Public Prosecutions-for failure by the Director to authorise the Australian legal practitioner by order in writing under section 126(2) to sign indictments for and on behalf of the Director. (2) No objection may be taken, or allowed, to any indictment by which criminal proceedings (including committal proceedings) in the Local Court or for any other offence that is to be dealt with summarily are commenced, or to any warrant issued for the purposes of any such proceedings, on the grounds of: (a) any alleged defect in it in substance or in form, or (b) any variance between it and the evidence adduced at the proceedings for the offence charged in the indictment or warrant. 102In written submission in reply, counsel for the prosecutor said, in part: The "pleadings points" of the defence, even if accurate (which is strongly contested) are not allowed. ... it is submitted that the wording of subs 16(2)(b) is quite clear and the attack of the defence upon the pleadings is not a debate that it is allowed to be entered into, particularly at this late stage of the proceedings. 103I am somewhat at a loss to understand what is intended by this submission. 104The provisions of s 16 of the Criminal Procedure Act reflect earlier legislation such as the provisions of s 30 of the former Justices Act. The history of provisions of this kind is referred to in the judgment of Mahoney JA (as his Honour then was) in De Romanis v Sibraa (1977) 2 NSWLR 264 commencing at 290. There are many authorities at appellate level that deal with these or similar provisions. In essence, s 16 is intended to avoid criminal proceedings being unduly frustrated by an undue recourse to objections of a technical nature, and to allow the proceedings to be determined by reference to the underlying merits. There are, of course, caveats on this broad statement of principle and certainly, as Basten JA in the New South Wales Court of Appeal observed in Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW [2007] NSWCA 128 at [133], these provisions are not intended to deprive a defendant of a fair trial. The application of these provisions must be attended by considerations of procedural fairness. 105The provisions of s 16 of the Criminal Procedure Act were considered by the New South Wales Court of Criminal Appeal in Epacris Pty Limited v Director-General, Department of Natural Resources [2007] NSWCCA 76. The Court (Hunt AJA, Barr and Johnson JJ) examined the history of the provision and its earlier manifestations, commencing at [71]. In the course of doing so, the Court made reference also to the general power of a court to amend and adjourn proceedings. The Court noted that in conjunction with the application of s 16(2), there existed a power of amendment that could be used for the purpose of avoiding any injustice. As the Court noted, "s 16(2) is a 'disregard' provision, and not an amending provision" (at [86]). The Court said that the purpose of s 16, and other complementary provisions, was: [88] ... amongst other things, to facilitate a fair trial on the merits without the proceedings being defeated by technical points. Although these provisions are now worded in contemporary language and appear in modern form in the Criminal Procedure Act, the rationale for the provisions remains the same as those identified by Jordan CJ in Ex parte McAuley; re Cam (at 259), by Herron J in Parmeter v Proctor (at 49-50) and by Mahoney JA in Boral Gas (at 515-517): see pars [75]-[76] supra. 106There are many cases that deal with the provisions of s 16(2)(a), and they are irrelevant for present purposes. There are surprisingly few cases that deal with s 16(2)(b); perhaps because its application is obvious. One example of circumstances in which the subsection would arguably apply is where, in proceedings alleging that a defendant had stolen certain property, the initiating process had incorrectly named the owner of the property. (See Reg v Justelius (1973) 1 NSWLR 471). In such a case, an application could be made to the Court to amend the proceedings and the defendant could be recharged to reflect the amendment, accompanied with the grant of any adjournment if this was appropriate. 107An example of circumstances where there was a variation between matters alleged in particulars and the evidence tendered before the Court in the context of occupational health and safety legislation is to be found in the decision of the Full Bench of the South Australian Industrial Relations Court in T&R (Murray Bridge) Pty Ltd v Hillman [2011] SAIRC 4; (2011) 203 IR 66. An employee of the defendant injured his finger whilst using a cutter on a slaughter line in an abattoir. The employer was charged with a breach of the South Australian Occupational Health, Safety and Welfare Act. The charge was that the defendant "failed to maintain, so far as was reasonably practicable, plant in a safe condition, in that it failed to adequately guard the plant so as to prevent the employee from making unintentional contact with the shearing blades of the cutter." The prosecutor had asserted that the installation of a particular guard would have prevented the employee from making unintentional contact with the blades. However, the evidence did not establish this. It only established that injury would be prevented provided the employee held the relevant part of the animal in the correct way. Accordingly, on the evidence, the installation of the guard would not have prevented injury, it would have minimised the risk of injury. 108The relevant provisions of the South Australian legislation were similar to, but not identical to, s 16 of the Criminal Procedure Act. However, the approach adopted by the South Australian Industrial Relations Court is, in my opinion, appropriate to be adopted in the context of these proceedings and in the context of s 16(2)(b). The Court said: [32] In Hayes v Kenning [1992] SASC 3616 Duggan J referred to the importance of particulars in defining the issues and contributing to the fairness of the proceedings. His Honour referred to Godbee v Samuels (1973) 5 SASR 236 at 239 in which Mitchell J said: if there is any variance between matters alleged in the particulars and the evidence tendered the Special Magistrate should at the time that evidence is tendered consider any prejudice which the defendant may suffer, and should also have regard to such variance in considering his verdict. [33] Duggan J drew a distinction between particulars on the face of the complaint which constitute the particular act alleged as the foundation of the charge and particulars provided in addition to the facts contained in the statement of the charge. In that context His Honour said "if a material averment in the complaint itself has not been proved then the prosecution must fail". This position was more recently confirmed in Kyriakopoulos v Police [2006] SASC 71 by White J. [34] In this instance there was a variance between the material averment that the reasonably practicable measure was the operation of a guard to prevent unintentional contact between the operator's off-hand and the shearing blades of the cutter and the finding that the guard minimises the risk but does not prevent an employee making unintentional contact with the shearing blades. [35] The Industrial Magistrate correctly found that the charge, as framed, had not been proved beyond reasonable doubt. 109It will be noted that the Court adopted a distinction between a material averment in a complaint, being "particulars on the face of the complaint which constitute the particular act alleged as the foundation of the charge" and particulars provided in addition to those facts. This is a distinction that I accept and adopt, and to which I shall shortly return. 110For completeness, I note that the Court in T&R (Murray Bridge) went on to consider whether the defect was susceptible to amendment and whether the charge should have been amended. The Court was asked, on appeal, to amend the complaint. It chose not to do so, for reasons that it is unnecessary for me to discuss. However, the Court pointed out that in the course of the initial proceedings heard before an industrial magistrate, it was made abundantly clear to the complainant by counsel for the defendant that the defence focussed on the deficiency in the complaint. The particular is that which I have earlier identified. In the course of submissions, the industrial magistrate raised the same matter with counsel for the complainant, who chose to argue that there was no variation between the charge and the evidence and made no application to seek leave to amend. 111During the course of oral submissions, heard on 5 March 2012, I specifically asked Mr Skinner, counsel for the prosecutor, whether the prosecutor proposed to seek any amendment of the proceedings. Mr Skinner stated in unequivocal terms that no amendment was sought. He submitted, however, that the Court could proceed to deal with the matter on the basis of the charge as particularised, notwithstanding any finding that I might make concerning the construction of particular (3)(c). 112The difficulty that I have in applying this approach, as contended for by the prosecutor, is that it is necessary to remove the second sentence from particular (3)(c) and to qualify the first sentence of particular (3)(c). The qualification is necessary because, at the time that the incident occurred, Messrs Thomas, Redgrove and Hafey were engaged on the first stage only of the coupling process. That is, as I have said, Mr Thomas was standing on the deck of cassette 2 as cassette 3 was being pushed towards it in preparation for stage two, where the final adjustment was to be made to allow final manual coupling. 113If particular (3)(c) were to be read in the way contended for by Mr Skinner, it seems to me that this would materially alter the nature of the case that the defendant was required to meet, and did so, in terms of its approach to the evidence adduced by the prosecutor in the proceedings. Whilst the defendant did focus its attention, during the course of the proceedings, on any risk to safety that might be created by Mr Thomas standing on cassette 2 whilst cassette 3 was being pushed towards it, the overwhelming focus of attention by it, and also by the prosecutor, was the circumstances in which Mr Thomas unexpectedly and on the spur of the moment squatted on the edge of the cassette and leaned forward to attempt to physically pick up the coupling lug. This was the context in which the evidence about this particular matter was primarily adduced. 114In written submissions, counsel for the prosecutor attempted to describe the system of work in a manner that, in my opinion, was illogical and inappropriate. The submission said: The system adopted by the men includes not only what may have been predetermined or premeditated by any of them, to the extent that anything was with any specificity, but also what in fact happened. I am unable to understand how it can be said that a system that is "adopted" by workmen includes some conduct or activity that was not part of the manner in which they understood the work was to be carried out. What happened on this occasion was unplanned, unexpected by any of them and occurred on the spur of the moment. Conduct and activity will only fall within a system of work where it is consistent with and reasonably able to be understood as an incident or outcome of the plan of action. At the least, what happened would need to be determined, on the evidence, as something reasonably foreseeable arising out of the system of work. It was not. 115I regard the provisions of particular (3)(c) as being fundamental to the prosecution case and of such significance that to omit the second sentence and to qualify the first sentence in the manner that I have described would constitute a variation of a material averment, which is a foundation of the charge as particularised. It would be unfair, in these circumstances, to proceed on the basis that the proceedings could be considered as having been litigated without reference to an allegation that at the time of the incident Mr Thomas was participating in an agreed manoeuvre which was part of a system of work used by Messrs Thomas, Redgrove and Hafey. 116In all the circumstances, if the prosecutor had wished to proceed on any basis requiring an amendment to particular (3)(c) of the kind to which I have referred, the prosecutor should have sought leave to amend the proceedings so as to allow the Court to disregard any variation created by the evidence adduced. The prosecutor having declined to seek leave to amend the proceedings, they should be determined strictly on the basis of the charge as particularised including particular (3)(c) which, as I have found, is fundamental to the totality of the allegations contained within the particulars. 117On this basis, and for the reasons that I have earlier stated, I conclude that the prosecutor has failed to make out a case against the defendant consistent with the charge as particularised against it. 118There are a number of other specific particulars of the charge contained within the application for order that were the subject of contention and that were strongly resisted by the defendant. I mention them for completeness, although, as I have said, they are centred around and are predicated upon the system of work described in particular (3)(c), which the prosecutor has failed to establish. 119Particular (4)(a) asserts that the use of the Juganaut did not provide adequate control of the speed or direction of the movement of cassette 3. This begs the question as to what is meant by the word "adequate". It was the prosecutor's case that at the time that Mr Redgrove was using the Juganaut to push cassette 3 toward cassette 2 it moved unexpectedly quickly and much faster than Mr Thomas anticipated. There is no evidence that it moved unexpectedly quickly. The evidence of Mr Thomas is that cassette 3 was initially moving in a sideways direction but then moved in a forward direction, which he did not anticipate. It was the evidence of Mr Thomas that the speed of the cassette did not allow him time to remove himself before he became caught between the two cassettes. However, this needs to be seen in the context that, at the time that his right leg inadvertently and unexpectedly came in contact with the ground, the cassettes were sufficiently close together to enable him to judge that the coupling lugs on each might be sufficiently aligned. I agree with the defendant's submission that the overall effect of the evidence was that the cassette, having been moved for a few metres only and the Juganaut being in low gear at idling speed, could not be said to be moving in a manner that was inappropriate in all the circumstances. The prosecutor sought to emphasise that whilst the cassette was being pushed by the Juganaut, there were no means of retarding its process and, certainly, no braking system, which made it inherently unsafe. Whether something is or is not unsafe needs to be considered in the context of the prevailing circumstances. One cannot exercise a value judgment about such a matter in a factual vacuum. The prosecution's submission may have some merit in a theoretical sense, but in the context of the evidence given in these proceedings and in the context of my understanding of that evidence in light of the observations that I made during the inspection of the equipment, I conclude that the prosecutor has failed to demonstrate to the requisite standard of proof that the use of the Juganaut to push the cassette created any relevant unsafe situation. I repeat that Mr Thomas' unfortunate injuries and the particular risk to his safety were created solely by the fact that, on the spur of the moment and in disregard of the intended course of action, he determined to squat down, lean forward and physically pick up the coupling lug, overbalancing as he did so. 120Particular (4)(b) asserts that Mr Thomas was in danger of stepping into the pinch point as the cassettes were being brought together. In considering this, I shall disregard the remainder of (4)(b), which is obviously directed at the system of work as described in particular (3)(c), which has not been made out. This needs to be put into perspective. Prior to the actual incident occurring, Mr Thomas was standing on the stationary cassette 2. He was "pretty close to the edge" of the deck, as he said in his evidence. However, it is clear that the deck was quite large, was flat and, on the evidence, on reasonably level ground. I repeat that it was stationary. The prosecutor asserted that there was a risk that whilst cassette 3 was being pushed toward cassette 2, Mr Thomas would step off the edge of the cassette. Common sense dictates that, as the defendant asserted, any such risk would constitute the same risk that any person would have of stepping off a footpath into the path of an oncoming motor vehicle. There was simply no evidence of any risk that whilst standing close to the edge of the deck of the cassette there was a risk that Mr Thomas might overbalance and fall off it into the pinch point. There is no suggestion that Mr Thomas suffered from any physical condition that made him more susceptible than anyone else to losing his balance. I regard the prosecution's submission that there was any such relevant risk created by Mr Thomas standing near the edge of the cassette deck per se as being impractical and bordering on fantasy. It might be assumed that the prosecutor would adopt an ordinary, pragmatic and common sense approach to what constituted a risk of injury that might give rise to culpability on the part of this defendant with a criminal sanction attaching to it. 121In any event, this allegation has no relevance to what in fact occurred and to the incident that is at the heart of these proceedings. Mr Thomas did not overbalance and fall whilst standing close to the edge of the cassette deck. Such a risk, even if established, was not particularised. He overbalanced because of the particular movement that he undertook and that I have now described on a number of occasions. 122Particulars (4)(c) and (4)(d) focus on the fact that Mr Redgrove lost sight of Mr Thomas whilst cassette 3 was being pushed toward cassette 2 and that this was to be accommodated by the use of Mr Hafey as a spotter, with associated deficiencies in this arrangement as alleged in particular (4)(d). 123The prosecutor asserted that, on the evidence, Mr Redgrove could not see Mr Thomas whilst pushing cassette 3 because his vision was obscured by the bucket of the Juganaut. The evidence is to the contrary. In his evidence Mr Redgove said that he could see Mr Thomas' helmet. It was only at the point that Mr Thomas squatted down to commence his spur of the moment and unexpected movement that Mr Redgrove lost sight of him. This was not part of the agreed system of work between them. Furthermore, at that stage Mr Hafey also could not see Mr Thomas. 124There is nothing in the evidence to suggest that the system of signals and other communication between the three persons concerned was inadequate or inappropriate, nor that the system failed. There is no suggestion made by the prosecutor that in some way there should have been some communication of some kind made by Mr Hafey to Mr Redgrove or that, of his own motion, Mr Redgrove should have done something once they both lost sight of Mr Thomas. Presumably, the prosecutor made no such assertion because, on the evidence, within a very short time of them losing sight of Mr Thomas, he had undertaken his unexpected movement, on the spur of the moment, and his right leg came into contact with the ground. In his evidence, Mr Thomas thought that he had been on the ground for three to four seconds. Given all the circumstances in which the incident occurred, the traumatic injury that Mr Thomas suffered, the length of time between the incident and the time when Mr Thomas gave evidence and the time taken for every person to react physically after the brain has received the appropriate stimulus, it would be unsafe to make any conclusion about such a matter, especially as it was not raised by the prosecutor. 125On the evidence, I am unable to conclude that the prosecutor has made out his case to the requisite standard of proof based on particulars (4)(c) and (d). 126Particular (5) focuses attention on failures asserted against the defendant with respect to information, instruction, training and supervision. 127There was no evidence that any of Messrs Thomas, Redgrove or Hafey received any specific information, instruction, training or supervision in connection with the task that they undertook on the day of the incident, either from the defendant or from their employer, UGM. Nor were they supervised when attempting to carry out the task. 128The prosecutor asserted that if information, instruction, training or supervision had been provided to them, and in particular to Mr Thomas, then the risk of injury particularised against the defendant would have been avoided. 129The prosecution case needs to be assessed in the context of the evidence given in the proceedings. Mr Redgrove had undertaken the task of coupling only once before. However, on the evidence, his understanding as to how the task was to be accomplished was in accordance with the procedure adopted by the defendant generally in connection with its operations and adopted by many other mining entities undertaking coalmining, particularly in the Hunter area. There was some evidence about whether or not the Juganaut should have been used for the final coupling stage and whether a block and tackle or some other device should have been used at that time, but this evidence is irrelevant because final coupling was not part of the plan that these men had agreed to undertake at the time that the incident occurred. 130It is true that Mr Thomas had never undertaken this task previously. However, in his evidence he acknowledged that he understood that there was to be a two-stage process and that the final lifting of the coupling lug would be undertaken either by using timber to block it or by using a rope or chain to hold it at the appropriate level. On the evidence, no amount of information, instruction or training would have brought about the use of any other process as contemplated by them. 131Despite the submission of the prosecutor, based on evidence given by a number of persons in the proceedings and based also on my own observation of the procedure when demonstrated, I would not regard the coupling process as being unduly complex. It is a relatively simple process not unlike that involved in coupling a trailer to a motor vehicle. Obviously, there is a difference in the coupling mechanism; the former used two coupling lugs with a pin to be inserted and the latter uses a towbar. There are obvious differences in the manner in which the cassettes are moved into position, namely by being pushed, and the manner in which the vehicle is moved into position, mainly by being reversed near the trailer. The process itself is a simple one. The undertaking of the final coupling requires a degree of precision in the operation of the equipment, but does not create any intellectually challenging process. 132Furthermore, each of Messrs Redgrove and Thomas had received extensive training, instruction and information about pinch points, no go zones and the necessity to undertake a risk assessment for every task in which they were involved. I agree with the defendant's submission that, as at the date of the incident, "the men in fact possessed the information, instruction and training necessary to ensure Mr Thomas' health and safety in doing the job" and that, therefore, "there was no causal connection between the failings of the defendant as alleged and the detriment to health and safety pleaded." On the evidence, each of the men possessed a sufficiently high level of information, instruction and training in the skills required to perform the particular task of coupling the cassettes. 133The defendant complained that the prosecutor had failed to identify the information, instruction and training that was necessary to ensure the health and safety of Mr Thomas. The only specificity is that contained in particular (5)(c) which was directed to the requirement for a no go area around the cassettes as the Juganaut was moving them into position. I have previously dealt with this aspect in connection with other particulars. Mr Thomas, on the evidence, was aware that the area in between the cassettes and around the cassettes was an area where his physical presence was precluded as a matter of safety. Although he did not receive specific instruction with respect to the particular work being undertaken at the time of the incident concerning the no go zone, he was, at all times, as he conceded, aware of the fact that he should not place himself in that area. In these circumstances, it cannot be concluded that the defendant had failed to instruct Mr Thomas in the manner alleged. Whilst I have concentrated on the training, awareness and knowledge of Mr Thomas, as is obvious Mr Redgrove had been informed, instructed and trained in the same manner and was equally aware of this matter at the time of the incident as Mr Thomas. Given the nature of the charge as particularised, and given the circumstances in which the incident occurred, it is only necessary that I focus on Mr Thomas in this regard. 134The matters referred to in particular (5) were complemented by particular (7). The focus of attention on what the prosecutor asserts the defendant should have done in all the circumstances appears to be the establishment of and compliance with a no go zone around the cassettes. For reasons that I have already given, the defendant was not in breach of any of the matters referred to in particular (5). It follows that I conclude that Messrs Thomas and Redgrove did receive sufficient information, instruction and training as would make them properly aware of the risks asserted and the need to establish and comply with a no go zone as described. 135There is no evidence that would allow me to conclude that if the persons concerned had been given information, instruction and training about the particular task of coupling, which they were to undertake on 21 August 2008, this would have precluded Mr Thomas from acting in the way in which he did. His conduct was unexpected, on the spur of the moment and contrary to everything that he had been informed, instructed and trained to do in connection with the safe carrying out of his work. Evidence of this kind would need to have been given by someone with appropriate expertise in the neurosciences or possibly psychology or psychiatry; that is, by an expert in human behaviour and, in particular, aberrant human behaviour of the kind that Mr Thomas engaged in at the time of the incident. 136Particular (6) is the complement to particular (4). Of course, particular (6) is framed in such a way that it is confined to the final closure of the coupling lugs, something which the men were not undertaking at the time that the incident occurred and which was to be carried out as part of the second stage. Leaving this aside, to the extent that this is possible, I have already held that the system which was in fact agreed between Messrs Redgrove and Thomas did not require Mr Thomas to be anywhere near the pinch point between the cassettes. He was standing on the stable, flat and level platform of cassette 2, which was motionless at the time that the incident occurred. The prosecutor has failed to make out any case that, in all the circumstances, the defendant failed to do what was required of it in the circumstances of this incident as set out in particular (6). 137 The final element in particular (5) relates to supervision. Particular (5)(b) asserts that the men were not supervised and then refers to the fact that they were left to their own ad hoc devices. The complementary particular is particular (8) which asserts that the defendant should have ensured supervision "by an experienced person so as to eliminate the risk that an inadequate and dangerous system would be adopted." 138Particulars provided by solicitors for the prosecutor to solicitors for the defendant said that supervision when used in particular (8) referred to supervision "under the direction of a person authorised to give them commands" who was "experienced in the analysis and elimination of at-risk situations such as Mr Thomas was in." Accordingly, the allegation in particular (5)(b) is that the men were not supervised by a person experienced in the analysis and elimination of at-risk situations such as the one Mr Thomas was in but were left to their own ad hoc devices. 139Leaving aside the fact that the system adopted by Messrs Redgrove and Thomas was not the one that Mr Thomas undertook on the spur of the moment and unexpectedly, there is grave doubt that supervision by a person experienced in the analysis and elimination of at-risk situations would have had any impact upon the happening of the incident. Messrs Thomas and Redgrove were fully experienced in the analysis and elimination of at-risk situations. Mr Thomas did not intend that he would act in the manner in which he did, unexpectedly and on the spur of the moment. There is no evidence that any degree of supervision as to the analysis and elimination of the at-risk situation would have had any impact. Furthermore, it cannot be said that the risk of injury that is at the heart of these proceedings was the result of any lack of supervision on the part of the defendant. 140In written submissions, the prosecutor's counsel asserted that: it is obvious that if one of [a number of named persons in managerial and supervisory functions] or any of the men involved in the coupling exercise in the View had intervened with some supervisory guidance and imposed their preferred system, the risk to Thomas that eventuated in his injury would have been eliminated. With respect, such a bald assertion needs to be supported by evidence. Leaving aside the fact that the system of work agreed upon between Messrs Redgrove and Thomas was not followed by Mr Thomas, I would need to be satisfied that in some way supervision of this particular task would have eliminated the risk that Mr Thomas would have sustained his injury in the way that he did. Even if someone had been standing nearby, supervising the manner in which the work was to be carried out, there is simply no evidence that such a person would have been able to intervene in some way in circumstances where Mr Thomas squatted down suddenly, unexpectedly and on the spur of the moment to do what he did. There is no evidence that the physical presence of someone nearby may have precluded Mr Thomas from doing what he did. A proposition of this kind was not put to him whilst he was giving evidence; any other evidence would need to be given by someone with the requisite expertise in human behaviour such as a neuroscientist, psychologist or psychiatrist. There is no such evidence. 141In the course of submission for the prosecutor in reply, counsel for the prosecutor made further submissions about supervision. Counsel said: It is entirely speculative and irrelevant to assert that had Mr Thomas received supervision he would have behaved in a different manner. The issue on supervision is whether in reality on the day a lack of supervision constituted a failure by the defendant to ensure the safety of Mr Thomas in the way pleaded. The first sentence of this submission is entirely consistent with the conclusion to which I have come. The second sentence is a reference back to the failure as pleaded which must in reality be a reference back to particular (5)(b) and particular (8). If it is "speculative and irrelevant" to consider whether Mr Thomas would have behaved in a different manner if he had been supervised, then I fail to see how the prosecutor can establish the necessary causal nexus between the asserted failure to supervise and the risk to health and safety of Mr Thomas which the defendant is accused of creating. Rather than spend any more time on this particular submission, it seems suffice to leave it on the basis that I adopt it in its entirety and in particular the first sentence.

142I conclude that the prosecutor has not made out a case that the system of work as particularised was in fact used by the men as alleged. Accordingly, in that the remaining particulars refer back to and are predicated upon the basis of that system of work, it follows that the prosecutor has not established any of them. Independently of this conclusion, I also conclude that the prosecutor has failed to make out his case against the defendant as particularised. 143On this basis the proceedings should be dismissed. I would propose to reserve costs. I shall refrain from making any formal orders to give effect to these conclusions so that the prosecutor may have an opportunity to consider his position. I stand the matter over until 1 May next at 9.30am for mention or for the making of formal orders.

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: 05 April 2012

Occupational Health, Safety and Welfare Act 1986(SA)

Regan v Bulga Underground Operations Pty Ltd

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