Rodney Dale Morrison v Peter James Buchanan

JUDGMENT: - 14 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM : Staunton J DATE: 3/8/2004

Prosecution pursuant to s16(2) of the Occupational Health and Safety Act 1983 Judgment NSWIRComm 223

1 This matter concerns a prosecution laid by Rodney Morrison, an officer of the Department of Mineral Resources authorised to bring such proceedings pursuant to s48 of the Occupational Health and Safety Act 1983.

2 The prosecution alleged an offence involving a breach of s16(2) of the Occupational Health and Safety Act 1983. On 13 April last the defendant entered a plea of guilty to that offence. That offence as expressed says that: On 28 March 2000, the defendant, being a self-employed person conducting opal mining in the underground mine in question and being a person who instructed Mr Kennedy as to the work that he was to perform, failed to ensure that the underground mine work premises and the means of access thereto, were without risk to Mr Kennedy's health and safety in that he, that is the defendant: (i) Failed to ensure that the shaft used for access remained uncluttered and able to be used in an emergency situation to retrieve injured persons; (ii) Failed to ensure that the ladders used to gain access to the mine were properly secured and not swinging; (iii) Failed to ensure that adequate and proper propping and/or bracing of the roof took place; (iv) Failed to ensure that the mine was equipped with an adequate communication system so as to enable medical and emergency services to be contacted when persons were injured in the mine; (v) Failed to develop and put in place an emergency procedure; (vi) Allowed the roof collar to be over-excavated so as to reduce its support, and; (vii) Directed Mr Kennedy to work in an area of the mine knowing that area was without adequate and proper roof support.

3 In the proceedings now before me, the prosecution has tendered an agreed statement of facts. The agreed statement of facts are as follows: [1] Claim 26313 located at Dead Bird, Coocoran Opal Fields outside Lightning Ridge, is the place where Mr Peter Buchanan was engaged in mining operations seeking to discover opals. [2] Mr Peter Buchanan was entitled to conduct such mining operations as a consequence of permission being granted by the claim holder, Eureka Opals Pty Ltd. [3] Up until 1997 some of the equipment utilised at the mine including the pelican picks, blower and compressor was owned by Eureka Opals Pty Ltd. [4] Mr Peter Buchanan entered into an arrangement with Mr Anthony Kennedy in which Mr Kennedy was to receive 10% of the value received by Mr Peter Buchanan for opals jointly discovered by Mr Peter Buchanan and Mr Anthony Kennedy at Claim 26313. [5] Mr Anthony Kennedy had commenced working with Mr Peter Buchanan shortly before Christmas 1999. Mr Kennedy, prior to working with Mr Peter Buchanan, had only limited experience in performing mining work. Mr Peter Buchanan was aware, however, that Mr Kennedy had undertaken some opal mining work with his father in the Lightning Ridge area. [6] Specifically, Mr Kennedy, prior to working with Mr Peter Buchanan, had not undertaken the Lightning Ridge Safety Awareness Program Mining Course, which was made available by the Department of Mineral Resources in the Lightning Ridge area at the relevant time. [7] Mr Peter Buchanan instructed Mr Kennedy on a day-to-day basis as to the work he was to perform. The work performed by Mr Kennedy was primarily: (i) Digging; (ii) Cleaning up material excavated. [8] It is the nature of opal mining in the Lightning Ridge area that a 3-foot diameter shaft is drilled from the surface to a point in the subsoil where opal bearing clay bands are found. Further, access down the shaft hole is obtained by ladder. Once at the base of the shaft hole excavation of the deposit bearing clay band commences. The material excavated is brought to the surface via a vacuum/blower pipe where it is mechanically sorted. As the excavation continues the roof is secured by the use of rock bolts, or more usually, timber props. The placement of such timber props, the number of props and the pattern of placement is subjectively determined by the miner having regard to the geological nature of the material being excavated, any visual signs of roof decay or instability and knowledge of the prevailing geological formations in the area. [9] The Dead Bird field was known to be geologically dangerous with a high rate of roof collapse due to the geology of the field. This had resulted in a number of serious injuries and fatalities in the past. [10] Claim 26313 had four 3 foot shafts and several 14 inch holes which all joined underground. One shaft was used for access, egress, placement of service pipes as well as the placement of the blower tube. It is recommended by the Department of Mineral Resources that a second shaft be used to accommodate the services leaving the main shaft free for access and egress. [11] Photographs taken at or around 28 March 2000 showed that prior to reaching the area where Mr Kennedy was injured a series of timber props had been put in place to support the roof. As at 28 March 2000, a ballroom excavation had taken place. This excavation meant there was approximately 5.5 metres of unsecured roof. [12] On 28 March 2000 Mr Peter Buchanan and Mr Kennedy entered the mine. Mr Peter Buchanan conducted a visual inspection of the roof and concluded that it was safe to work under. Mr Peter Buchanan did not discuss the state of the roof with Mr Kennedy. [13] Mr Peter Buchanan had instructed Mr Kennedy to work in the ballroom area breaking up lumps of toe dirt. He was further instructed by Mr Peter Buchanan to feed dirt into the blower pipe so that the dirt could be removed to the surface. Mr Peter Buchanan was engaged at the relevant time in unblocking a bend in the blower pipe when he noticed a lump of dirt landing near him. Mr Peter Buchanan on noticing the lump of dirt further checked the roof, did not see any movement and told Mr Kennedy to continue to feed the dirt. On inquiry from Mr Kennedy, Mr Peter Buchanan stated that there was only about five more minutes to complete this part of the job. [14] It was intended that after the area had been cleared and the blower pipe moved that Mr Peter Buchanan and Mr Kennedy would then install up to six roof props in the area in which Mr Kennedy was working. [15] After Mr Peter Buchanan informed Mr Kennedy that there was only five minutes to go to finish the job, Mr Peter Buchanan looked at the roof where he observed a crack of 1 or 2 inches opening up. Mr Peter Buchanan yelled out a warning to Mr Kennedy. Mr Kennedy responded by trying to move out of the area but he was struck by the fall of roof. Mr Kennedy was not wearing a hard hat at the time as he had lost it up the blower pipe the previous day. Mr Kennedy's body was covered from the waist down with pieces of sandstone that had fallen from the roof. Mr Peter Buchanan went immediately to Mr Kennedy at which time Mr Kennedy requested that Mr Peter Buchanan remove him from under the unsupported roof. Mr Peter Buchanan dragged Mr Kennedy out of the area of immediate danger. [16] There was no method of communication within the mine for communicating from the mine to the surface. Mr Peter Buchanan exited the mine and sought assistance from his brother, Mr Wayne Buchanan. He found Mr Wayne Buchanan working some short distance away and informed him of the need for assistance. [17] Mr Wayne Buchanan followed Mr Peter Buchanan down into the mine and assessed the injuries to Mr Kennedy. Mr Wayne Buchanan then came back to the surface, spoke to a Mr Pace, and inquired whether Mr Pace had a mobile phone. Mr Pace did not. Mr Wayne Buchanan then drove to a place known as the Smoko Van and sought to use their telephone. This was unsuccessful. Mr Wayne Buchanan then saw a Mr Cree. Mr Cree said that while he had a telephone, he did not bring it to work that day. Mr Wayne Buchanan went back to the Smoko Van and spoke to a Mr John Venning. Mr Venning finally managed to contact Emergency Services and inform them of the situation. [18] Mr David Lane, the local SES Controller, arrived at the scene. Mr Lane descended into the mine noticing that the ladders in the shaft were not pegged into place but were swinging. Once Mr Lane had determined that the area was safe enough for Ambulance Officers to be able to attend, those Ambulance Officers descended into the mine. In doing so they complained to Mr Lane about the instability of the ladders and the lack of space available in the shaft due to the presence of services and the blower tube. There was another shaft 26 metres away but that shaft did not have ladders in at the time. Mr Lane had the Ambulance gear lowered down the shaft. The Ambulance Officers made an assessment of Mr Kennedy. This assessment was that he was suffering from life threatening injuries and needed emergency evacuation. Mr Kennedy was unable to be evacuated out of the mine using the main access shaft because it was cluttered and because the ladders were not fixed. Mr Lane therefore sought to identify an alternate exit. Mr Lane travelled underground until he reached an adjoining mine and located an exit shaft that could be used. Mr Kennedy was then strapped to a stretcher and was carried over 30 metres or so of tunnels until the exit shaft was reached. He was then transported up the exit shaft and into a waiting ambulance. There were other shafts available at Claim 26313 that Mr Kennedy could have been evacuated out of. The closest of these was 26 metres away from where Mr Kennedy was injured. Mr Kennedy was later transported by Air Ambulance to the Prince of Wales Hospital in Sydney. [19] Mr Kennedy's injuries were found to be:

· Left haemopneumothorax; · Fractured pelvis; · Disruption of right knee; · Haemoperitoneum; · Fractured sacrum. [20] Mr Kennedy survived his injuries.

4 In addition to the statement of facts, the prosecution has placed before the Court a bundle of documents identified as being a sentencing bundle that has been tabbed into five discrete parts, they being: (1) Nine photographs taken at the accident scene on 28 March 2000; (2) The renewal and conditions of mine claim 26313 dated 16 June 1999 with an expiry date of 30 June 2000; (3) Map indicating the Dead Bird opal field; (4) Extract from the Lightning Ridge Miner's Handbook published February 1996, specifically pages 283 to 286 and 289 to 330; and (5) The Prince of Wales Hospital notes in relation to Mr Kennedy.

5 On behalf of the defendant two documents have been tendered without objection. The first is an affidavit sworn by the defendant Peter James Buchanan on 3 August and annexed to that affidavit are two documents. The first annexure is a printout from Centrelink dated 27 April 2004. The second annexure is a summary of accounting details relevant to Mr Buchanan from the Australian Government Child Support Agency. The second document tendered on behalf of Mr Buchanan is identified as being a bundle of references which is seven personal testimonials on behalf of Mr Buchanan.

6 The relevant factual background to the offence before me is that the defendant, Mr Peter Buchanan had been given permission by Eureka Opals Pty Limited to mine for opals at claim 26313 located at the Dead Bird field as part of the Coocoran opal fields outside Lightning Ridge in New South Wales. Mr Buchanan, in turn, engaged Mr Anthony Kennedy to assist him in undertaking that job, in exchange for payment in the terms agreed in the statement of facts.

7 The work being undertaken by Mr Kennedy involved working underground and, in that task, Mr Kennedy was primarily engaged in digging and cleaning up material excavated.

8 As the statement of facts discloses, Mr Kennedy had had limited mining experience prior to working for Mr Buchanan. He had certainly not undertaken the Lightning Ridge Safety Awareness Programme mining course which is made available by the Department of Mineral Resources at Lightning Ridge, amongst other places.

9 The area where Mr Kennedy and Mr Buchanan were working on 28 March 2000 was known to be geologically unstable. On the day of the accident Mr Kennedy was excavating in an area described in the statement of facts as the 'ballroom area' of the mine where there was some 5.5 metres of unsupported roof. It seems there was an early indication of some roof instability when a lump of dirt fell from the ceiling in the course of that work. Shortly after that a one to two inch crack opened up in the roof almost immediately followed by the roof fall that trapped Mr Kennedy and caused the injuries that I have already outlined. Fortunately, Mr Buchanan managed to drag Mr Kennedy out of that area of unsupported roof to a relatively secure place while emergency assistance was sought.

10 After the roof fall, there were no communication facilities within the mine to make contact with outside emergency services. Next, there was considerable difficulty experienced by the local SES and ambulance officers in reaching Mr Kennedy and then evacuating him from the mine. For example, in trying to get access to the location where Mr Kennedy was lying injured, the ladders in the mine shaft were not fixed into place but were swinging freely, creating considerable instability and difficulty to the ambulance officers trying to access the underground site.

11 As well there was an overall lack of space in the mine shaft due to the presence of services and the blower tube. That created a problem of access to the place of work and to those steps that had to be taken to provide emergency services and evacuate Mr Kennedy. Those factors clearly exacerbated an already significant risk to safety that had been created by working under the unsupported roof in the first instance. For example, the SES officer had to ultimately locate another shaft some thirty metres away in order to safely evacuate Mr Kennedy from the mine.

12 As the defendant before me, Mr Buchanan has no prior convictions and the maximum penalty in this matter is agreed as being $55,000.

13 In considering offences under the Act for the purposes of penalty, one must start by considering the objective seriousness of the offence. That principle is well settled and was expressed by a Full Bench of this Court in Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 and more specifically at 476: In the case of an offence under s 15(1) of the OH&S Act there are a number of factors which may tend to establish the existence of an objectively serious offence. It will be a serious offence where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken, even though such measures were available and feasible. The gravity of the consequence of an accident does not, of itself, dictate the seriousness of the offence. However the gravity or otherwise of the potential risk to safety flowing from a breach is relevant as a measure of the gravity of the breach and the culpability of the defendant.

14 To the above comment I would add only that the same approach would apply in relation to offences arising under s16 of the Act. 15 When one has regard to the comments of the Full Bench in Lawrenson and having regard to the facts and circumstances of this matter, it must be said that, on any view, this offence is an objectively serious one.

16 The risk to safety was clearly foreseeable. Working in an underground mine in an area of unsupported roof and in a mine area known for its geological instability is clearly a workplace replete with risks to safety.

17 Those clearly foreseeable risks to safety were undoubtedly exacerbated by the failure of the defendant to address those preliminary and important issues that one would need to address in relation to underground mining. They include matters such as a clear and unimpeded access to the mine working area, the need to ensure that there was proper and adequate communication in the event of an emergency and the need to ensure, in the event of an emergency, immediate medical assistance and that egress from the mine was able to be safely undertaken.

18 When considering all of those matters, it would have been expected, in my view, for the defendant to have addressed those preliminary steps while at the same time guarding against roof instability with the provision of proper roof supports.

19 I note also that when he was undertaking his work on that day and prior to the roof collapse, Mr Kennedy did not have on his protective hard hat. He had lost it, as the statement of facts tells me '... up the blower pipe the previous day'.

20 On any view, Mr Kennedy is lucky to be alive. It is fortunate his injuries were not more serious and that he has recovered.

21 It is of course relevant to the objective seriousness of an offence to consider if there were readily and easily available remediation steps which could have been undertaken by the defendant before the accident to prevent the injury occurring. By all accounts, the overall working environment of the mine was inherently unsafe both as to the roof support and the general work area as far as access and egress were concerned.

22 In imposing a penalty in this matter, regard must be had on first considerations to general and specific deterrence. That much is evident from the decision given by the Full Bench of this Court in Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 99 IR 29 particularly at paras [74] and [77].

23 The defendant is no longer operating a mining lease but he continues to obtain casual work in opal mining in and around Lightning Ridge. I accept that some element of specific as well as general deterrence is appropriate for considerations on penalty.

24 On the issue of general deterrence, I have been asked to take account of the wider context of mining activities in areas such as Lightning Ridge and the need for a penalty in this matter to be seen as a clear signal on the part of the Court that the need for safe standards of work is as important in areas such as small mining activities at Lightning Ridge as it is in large mining corporations. To the extent that is a matter I can realistically give consideration to is a matter that I will need to comment further on in relation to the defendant's financial circumstances.

25 On that latter point, I refer to Mr Buchanan's affidavit, and para [3] in particular. No issue is taken as to the contents of that affidavit in which Mr Buchanan states: I am currently unemployed but obtain occasional work as an opal miner and also carry out work on my own claims. The income I have received is minimal and it has not affected my Centrelink payment.

26 Reference to Centrelink payments brings me to the need to have regard to the defendant's financial circumstances in imposing a penalty. That much is clear from the provisions of s6 of the Fines Act 1996 which require me, in the exercise of my discretion, to consider: (a) such information regarding the means of the accused as is reasonably and practicably available to the Court for consideration; and (b) such other matters as in the opinion of the Court are relevant to the fixing of that amount.

27 The further information contained in Mr Buchanan's affidavit is a statement from Centrelink that confirms fortnightly payments of $379.20 as at 27 April 2004.

28 Mr Buchanan also cites ongoing medical problems arising from a motor vehicle accident that he sustained in 1989. Additionally, on the question of financial circumstances, Mr Buchanan sets out in some detail his weekly expenses in para [7] of his affidavit. They include child support payments as well as a scholarship payment for his son Timothy. The latter payment is $7.50 a week. His total weekly expenses identified are $176. In para [8] of his affidavit he sets out his assets. The most significant are two mining leases which have an estimated value of $4,000 and a car valued at $1,000. He is currently residing in a caravan which is valued at approximately $500. That is on site at Lightning Ridge. On the material before me, Mr Buchanan details a total asset base of $6,000.

29 Overwhelming all of those figures are his liabilities to the Child Support Agency in relation to his children. The accompanying statement from the Australian Government Child Support Agency states that the balance as at 20 May 2004 is $50,203.87. He is currently managing to pay $5.00 per week in child support payments. Mr Buchanan's significantly outstanding child support payments cannot and should not be overlooked by this Court as a genuine liability on his part.

30 Finally, in his affidavit Mr Buchanan says that he has only worked on an occasional basis since the incident in relation to this offence and that he has not been required to file tax returns since 1997. His taxable income in 2001 was $9,859.20 which was moneys primarily received from his Centrelink payments. On any view, when one has regard to the overall financial circumstances of the defendant, I am looking at a defendant that is in what I would consider to be straitened financial circumstances. That is clearly a matter I must take into account.

31 Counsel on behalf of the prosecution has quite properly drawn my attention to the decision of Walton J in WorkCover Authority of New South Wales (Inspector Farrell) v David Carl Schrader (2002) 112 IR 284 and particularly at para [6] when his Honour said in relation to what you might call similar financial circumstances of the defendant then before him: Having regard to the aforementioned authorities regarding the relevance of the financial means of a defendant I shall significantly reduce the amount of fine which would have otherwise been ordered to be paid by the defendant due to the defendant's limited means and impecuniosity. 32 There is no doubt in my mind as a result of the information before me in relation to Mr Buchanan's financial circumstances, as well as the provisions of the Fines Act 1996, I should and will significantly reduce the amount of the fine I might otherwise have imposed because of what I consider to be Mr Buchanan's 'limited means and impecuniosity' as expressed by Walton J in WorkCover v Schrader. But for those factors, Mr Buchanan would be facing a significant financial penalty. That is because of the seriousness of this matter together with the clear need for an element of general deterrence in the sentencing process. However, those matters must be balanced against the defendant's own financial circumstances. 33 The plea of guilty was entered at the last minute. To some extent I acknowledge that may in part be due to the absence of legal representation on the part of Mr Buchanan when he first appeared before this Court.

34 Notwithstanding that, the late entry of the plea has eroded the otherwise full utilitarian value of it. Nevertheless, I assess the discount on plea as fifteen per cent.

35 Mr Buchanan has no prior convictions in relation to these types of offences. To the extent that I am able to understand he has fully cooperated with investigations in relation to this matter and he has done all that he can to try and assist himself in a limited way in enabling this matter to come before the Court.

36 I have already expressed earlier today, and I say it again, that the impression I have received in my observations of Mr Buchanan and my dealings with him when he first came before the Court as an unrepresented defendant was that he is a straightforward, simple, uneducated man who, I think, has learnt a very expensive and hard lesson about what was probably an activity that he went into without any great deal of thought given at all to the safety circumstances that he needed to properly consider. I do accept that he has been genuinely sorry and remorseful for what has happened to Mr Kennedy as well as his part in that.

37 Taking those factors into account I determine a further discount on penalty of ten per cent. Taking into account all the matters that I have referred to, I determine a notional penalty in this matter of $6,000. In applying the discounts I have determined, I determine a financial penalty of $4,000. 38

· The defendant is convicted of the offence charged.

· I allocate a moiety to the prosecution on the usual terms.

39 In exercising the discretion that is inherent on the question of costs and having regard to what I have already detailed as the straitened financial circumstances of the defendant, I make no order as to costs.

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